Lords Sitting of 19 July 1982

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR On the Woolsack.
Prayers—Read by the Lord Bishop of Lincoln.

Pitcairn Island
Lord McNair: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether the Governor of Pitcairn Island has reported on his recent visit to the island and, if so, what he said and what action is being taken.
The Minister of State, Foreign and Commonwealth Office (Lord Belstead): My Lords, the Governor has reported on his recent visit to Pitcairn Island. During the visit, on the 11th to the 18th of June, the Governor discussed with the Island Council numerous matters of current interest and matters concerning the island's future development. These will form the subject of considered recommendations by the Council to the Governor.
Lord McNair: My Lords, while thanking the noble Lord for that Answer so far as it goes, may I hope to get a little more information out of him meanwhile? In particular, may I ask him about the money? Does he remember that his noble friend Lord Trefgarne told us on 9th March that their investment portfolio now has a current market value of three-quarters of a million pounds? is the noble Lord aware that recently a consignment of supplies and equipment destined for Pitcairn Island was lost in a shipboard fire—an apparently uninsurable loss—and that when the Island Council was considering whether to apply to the Commissioner for money to replace this order they decided not to, on the grounds that they did not want to seem to "scrounge"? Can the noble Lord assure the House that the three-quarters of a million pounds really belongs to the Pitcairn islanders and they know it, and would it not be sensible to put a fraction of this—perhaps I per cent.—into a float or a petty cash fund which the Island Council could use at its sole discretion, without any fear of being thought to "scrounge"?
Lord Belstead: My Lords, the sum of money which the noble Lord, Lord McNair, has mentioned—indeed, over three-quarters of a million pounds—is in fact from income from the sale of postage stamps and has become this very substantial investment which, I confirm, is the property of the Island Council. The actual portfolio is handled by the Crown Agents. As to the specific point which the noble Lord puts to me about keeping a small float of the money ready for contingencies, I wonder whether I might look at this and perhaps take advice, and also consult the Governor and take his advice.
Lord Kennet: My Lords, does the Minister remember that the noble Lord, Lord Trefgarne, on 9th March also told us that new telecommunications equipment was to arrive on the island early the following month; that is, April? Should we be right in assuming that it has not yet arrived, and can the noble Lord say when it will arrive and what it will do when it gets there?
Lord Belstead: My Lords, the appropriate type of radio equipment has been chosen. It is hoped to complete the tendering process by August and to place a firm order in September. When the equipment is in place it will represent a voice-to-voice instead of a Morse link between the Island Council and the administrator in Auckland, New Zealand.
Lord Kennet: My Lords, is there not a startling discrepancy between April and a tender accepted in August and an order placed in September?
Lord Belstead: My Lords, that is a perfectly fair point. We should have liked to conclude this very much more swiftly, but the type of equipment which was found to be needed cannot be bought off-the-shelf.
Baroness Llewelyn-Davies of Hastoe: My Lords, could the noble Lord confirm that the recent British Nationality Act has deprived the islanders of their British nationality? How will that affect their future development? Could he also say whether there is any news about a possible extension to the landing strip?
Lord Belstead: My Lords, so far as British citizenship is concerned, the Pitcairn islanders will acquire British Dependent Territory citizenship on the commencement of the British Nationality Act. Under the Act, this will give them rights of residence in the United Kingdom; but I am bound to say to the noble Baroness that the inhabitants of Pitcairn Island do not show the slightest desire to become residents of the United Kingdom. They appear to be contented with their life on the island.
So far as the airstrip is concerned, the island has been visited—indeed I am not sure that he is not still there—by a New Zealand Army officer, Major Jason-Smith, who has been there to organise repairs to the jetty. If he has time, I am advised that he intends to look at the airstrip proposal and the possibilities of a seaplane service.
Baroness Llewelyn-Davies of Hastoe: My Lords, while being most grateful for the last piece of information, may I ask whether the noble Lord is not aware that there is great disquiet and disappointment; and there have been many talks on the radio in England about the Pitcairn islanders losing their British nationality?
Lord Belstead: My Lords, I repeat that when the British Nationality Act comes into force, the Pitcairn islanders will acquire British Dependent Territory citizenship. It gives British Dependent Territory citizens rights of residence in the United Kingdom. But I repeat yet again—because the message, with

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respect, does not seem to have gone home—that this is not what the Pitcairn islanders require.
Viscount St. Davids: My Lords, may I say that on a matter of pure information there was some surprise? If the Governor does not reside on the island, can the noble Lord say where he does reside?
Lord Belstead: My Lords, the Governor is Sir Richard Stratton, who is our High Commissioner in New Zealand. He is resident in New Zealand and he paid this visit, which is in fact the first Governor's visit since 1976, from the 11th to the 18th June.
Lord Brockway: My Lords, does the Minister agree that his original reply did not tell us much more than that discussions are proceeding? Can he give us any indication when these discussions are likely to conclude, and can he say whether a statement will be made to this House when they are?
Lord Belstead: My Lords, I must apologise to the noble Lord, Lord Brockway, and, indeed, to the noble Lord, Lord McNair, who asked the original Question, if I have inadvertently misled the House. The situation is that the Governor, in paying his visit had two discussions with the Island Council. As the original reply said, during those discussions numerous matters of current interest, and matters concerning the island's future development, were discussed. There is no secret about them, but these are matters primarily between the Island Council and the Governor because they will involve, in some cases, the expenditure of money. If there is anything further that I can say on these matters, I certainly wish to do so. I would not be averse, in the least, to writing a letter to the noble Lord, Lord McNair, and copying it to the noble Lord, Lord Brockway, if that would help. These are not secrets, but I do not think I can add a great deal more across the Floor of the House to help noble Lords today.
Lord McNair: My Lords, perhaps in conclusion I may ask the noble Lord about two specific points. First, on the reservoir, as I am sure the noble Lord is aware, in the last year they have had a water crisis on the island, in spite of their abundant rainfall. This is because they have no way of storing water. Does the noble Lord agree that all that seems to be needed is a simple reservoir, such as one has on many farms? Would it be possible for Major Jason-Smith, if he is still there, to advise them on how to construct this and what material to order? Lastly, is the noble Lord aware of what one might call the Henderson Island project, which involves the construction of an airstrip on Henderson Island, which is relatively near, and which would not use up all the arable land on Pitcairn Island? If the noble Lord is aware of this project, which I believe the Governor discussed with the Island Council, can he tell us whether Her Majesty's Government would regard it with sympathy if the islanders proceeded?
Lord Belstead: My Lords, as regards the important first point concerning water storage, Major Jasonsmith
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was asked, if he had time, to look at any other technical problems which the islanders may have. So far as putting an airstrip on Henderson Island is concerned, the only person I know of who wishes to be on Henderson Island at the moment is an American millionaire who has said that he wants to live there, and the Island Council have agreed. So I think that that point does not help with the airstrip problem.

Wool Exports
2.46 p.m.
Baroness Elliot of Harwood: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what was the figure earned by the wool industry in exports in January 1981 and in January 1982.
Lord Lyell: My Lords, the f.o.b. values of woollen and worsted textiles exported from the United Kingdom in January 1981 and January 1982 were £22 million and £23 million respectively.
Baroness Elliot of Harwood: My Lords, I am delighted to hear that this is an increasing export, in view of the fact that exports are so vital to us. I hope that the Government will help in every possible way the production and exports of the woollen trade.
Lord Lyell: My Lords, I am grateful to my noble friend for her robust support. Indeed, the Government are concerned to improve the competitiveness of British industry generally, and the wool industry in particular.
Lord Bishopston: My Lords, can the noble Lord give us figures for the year, because the figures for 1979 total about £386 million, which rather suggests better exports for the year than the figures given? Are the Government satisfied that the Woollen Industry Research Association is still able to help to keep our industry competitive?
Lord Lyell: My Lords, on the noble Lord's last question, I could not answer him straight away but will write to him on that point. So far as the noble Lord's first question is concerned, I am sure he will have noticed that the two figures that I gave were for the two months of January 1981 and January 1982. We understand that, for the calendar year 1981, the total value of exports was £410 million, while for 1979 we understand that the total value was £409 million.

British Telecom: Postal Circulars
2.48 p.m.
Baroness Trumpington: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government how much money British Telecom is spending on circulars sent through the post to customers.
Lord Glenarthur: My Lords, this is a commercial matter for British Telecom. But I understand that their expenditure on circulars sent in the post is in the region of £750,000 a year, and therefore extremely small in relation to the number of telephone subscribers and British Telecom's annual turnover of around £4½ billion.
Baroness Trumpington: My Lords, I thank my noble friend for his reply. Would I be right in thinking that they actually make a profit out of the circulars which they are distributing? If that is so, why is it necessary to put up many charges, including telephone rentals?
Lord Glenarthur: My Lords, it is not strictly true to say that they make a profit from their circulars, but of course the sending out of circulars increases revenue in certain areas. So far as charges are concerned, I think the noble Baroness may feel that they do not relate strictly to the Question. But, so far as I understand it, it is the hope that it will not be necessary for one area of British Telecom to subsidise another. Therefore, the charges in one area might come down while the other goes up.
Lord Airedale: My Lords, do the Government think that it is fair competition for a public utility, like British Telecom or, particularly, an electricity board, which has free postal access to every household in the country, because of course it passes on the postage charge to the customer, to include with the bill a leaflet advertising appliances for sale, when it would cost the private sector of the industry a fortune in postage charges to do direct mail advertising on that scale?
Lord Glenarthur: My Lords, no, I do not see any reason at all why British Telecom should not send out material with telephone bills, if, in their commercial judgment, it is wise to do so. It might help the noble Lord if I say that the material which goes with bills mainly comprises private advertising, the revenue from which more than compensates for the production and marginal distribution costs.

Aircraft Noise: Relief Measures
2.50 p.m.
Lord Jenkins of Putney: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they agree that some relief from aircraft noise for the many living under the glidepath to Heathrow is long overdue and that Stansted is the only real choice for such relief; and whether they will therefore urgently develop Stansted as the third London airport.
Lord Lyell: My Lords, those living under the glide-path to Heathrow have already been afforded a measure of relief from aircraft noise by the gradual
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phasing out of the noisiest jets and their replacement by modern, quieter aircraft. As I am sure the noble Lord is aware, Her Majesty's Government have invited the British Airports Authority to bring forward the proposals to develop Stansted which are currently the subject of a public inquiry, and it would not be right for me to prejudge the outcome.
Lord Jenkins of Putney: My Lords, I am grateful for that Answer. Is the noble Lord aware that, while there has been some degree of reduction in noise, there has at the same time been an increase in the number of aircraft? Therefore the nuisance is unabated. Will he be aware that this Question is for the purpose of strengthening the Government's hand in the matter and their resolution to stand by Stansted, and not to give way to the very heavy pressure which will be placed upon them to abandon this necessary project?
Lord Lyell: My Lords, we are very grateful for the noble Lord's support in this matter. I am not entirely sure which project the noble Lord has in mind. If it is the subject of the inquiry at Stansted, the noble Lord and, I am sure, all noble Lords will be aware that this is in two halves. The first half is now nearing completion. The second half of the entire Stansted inquiry will commence, I understand, in January of next year. While the entire project of Stansted, or not, is under discussion, it would not be right for me to speculate on the outcome.
Lord Ardwick: My Lords, is the noble Lord aware that those of us who live in this district are praying for the day when Stansted comes into fuller operation? Is he also aware that while most of us have learned to accommodate ourselves to the noise for most of the time, if we are ill and going through a period of anxiety, or if we sit in our gardens or walk in Kew Gardens or across Richmond Park, the noise varies from the merely disturbing to the terribly distressing?
Lord Lyell: My Lords, any aircraft noise is of course distressing and disturbing. I am sure the noble Lord will be aware, from all the debates, discussions and questions which there have been in your Lordships' House, that the Government share this concern, especially in the Heathrow area and particularly on the glide path—either landing or taking off. The Government are very much aware of this and are taking steps to try to reduce the noise level, together with aircraft movement, in so far as that is possible.
Lord Ponsonby of Shulbrede: My Lords, reverting to the noble Lord's earlier Answer to the noble Lord, Lord Jenkins of Putney, I wonder whether he could indicate now when the Government anticipate that they will be able to give their decision on the report of the public inquiry?
Lord Lyell: No, my Lords.
Lord Boothby: My Lords, may I ask the noble Lord whether he can tell us the reason for the interminable delay, which has now lasted several years, in deciding the location of a third airport for London, and whether

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he realises that it is now doing severe damage to the trade and commerce of this country?
Lord Lyell: My Lords, I hope the noble Lord will accept that my right honourable friend the Secretary of State for the Environment and my noble friend Lord Cockfield will take a joint decision on the provision of further airport capacity when they have considered the inspector's report on the Stansted and Heathrow inquiries.
Lord Molloy: My Lords, is the noble Lord aware that the people of the London Borough of Ealing have for many years suffered appallingly from aircraft noise, both leaving and arriving at Heathrow, particularly in the Ealing sectors of Greenford and Northolt? Is the noble Lord further aware that although the building of the A.40 flyover has caused considerable concern, people have been helped by the Department of the Environment assisting them to install double glazing? Could not the Minister please inquire whether or not it is possible for those who suffer from aircraft noise to receive similar treatment? Finally, would it be possible for the Minister to inquire into whether the stacking of aircraft before they arrive at Heathrow could be so organised as to limit, so far as is humanly possible, the amount of noise?
Lord Lyell: My Lords, so far as the noble Lord's last question is concerned, it involves rather a technical point, and perhaps I could inquire briefly into the stacking procedure and write to him about it. So far as the A.40 flyover is concerned, I hope that we are dealing with transport in the air and not necessarily with motor-cars flying, or not, over other roads. I am afraid that I missed the noble Lord's first point.
Lord Molloy: Double glazing.

Business
Lord Denham: My Lords, at a convenient moment after 3.30 this afternoon, my noble friend Lord Elton will, with the leave of the House, repeat a Statement which is to be made in another place on the resignation of a Metropolitan Police officer. This will be followed by my noble friend Lord Trefgarne who will repeat a Statement, again with the leave of the House, on telecommunications policy.
It may be for the convenience of the House if I announce that dinner will be available at the usual time this evening. The Report stage of the Criminal Justice Bill will be adjourned at approximately seven o'clock for approximately one hour. During this adjournment the debate on the Eleventh Report of the European Communities Committee on Radiation Protection will be taken.

Criminal Justice Bill
2.56 p.m.
Report received.
Clause 1 [General restriction on custodial sentences]:
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 1:
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Page 2, line 1, at end insert ("or make a detention centre order.").
The noble and learned Lord said: My Lords, from noble Lords' departure the enthusiasm which the prospect of discussing the Criminal Justice Bill arouses in the House is manifestly apparent. However, the purpose of this amendment is to try to achieve the amalgamation of the custodial sentences for young offenders—that is to say, imprisonment, borstal and detention centres—into one youth custody system.
This proposal was recommended in 1974 by the Advisory Council on the Penal System in its report Young Adult Offenders. It recommended in that report that the three custodial sentences which I have mentioned should be amalgamated into one youth custody system. The matter was put in this way. The general concept of constructive training, pioneered by the borstal system, has won such wide acceptance that it is largely applied not only in borstals but throughout the young prisoners' centres and detention centres as well. The result is that the supposed distinctions, which were once real and significant, between prisons, borstals and detention centres as establishments offering alternative ways of dealing with young adult offenders in custody, have now become blurred and misleading.
The Green Paper of the previous Administration, Youth Custody and Supervision and New Sentence, of 1978 accepted this recommendation and the proposed merger. Unhappily, the present Government's White Paper, Young Offenders, published in 1980, while accepting that borstal training and imprisonment for young offenders should be combined, contended that the separate detention centre sentence should be retained. This is reflected in the provisions of the Bill.
One of the problems which does arise from keeping up separate custodial systems for young offenders is the difficulty of being able to relieve overcrowding in one part of the system by using vazancies which may arise in another. If we merge two of these sentences into one, as the Bill provides, this will help, as far as that goes, to achieve greater flexibility for the Prison Department in trying to minimise the effects of overcrowding. But if we went further, as the first amendment proposes, and incorporated detention centres also in the same youth custody system, the flexibility I have mentioned would be even greater.
The view that is strongly put by those responsible for these matters is the advantage that will be derived by making it possible to allocate more offenders to places near their homes, and so make it easier for relatives, families, probation officers, social workers and others to visit them. Incorporating the detention centres into the system would increase the scope of that still further. I expect that the noble Lord, Lord Elton, will agree that it is very important in the resettlement of difficult offenders to maintain strong links between the offenders and their families and with persons such as probation officers and social workers who will have responsibilities in regard to them. Therefore we see considerable beneficial advantages flowing from what we propose, in the merger of the three types of sentence into one.
The Advisory Council on the Penal System said in 1974 that it should be an object of policy so to reorganise the pattern of location of establishments and

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the allocation of young adult offenders to them that periods in custody will normally be spent in establishments situated near to their home areas. My recollection from being a Member of Parliament is that one was being constantly approached by families faced with the difficulty of long and expensive travel to maintain a connection with members of their families held in one form or another of prison or borstal establishment.
The difficulty, I fear, in regard to this matter is the change of attitude which developed in Government thinking when the "short sharp shock" concept was developed. It may well be that that will be put forward as the explanation for keeping separate the régime of detention centres. It is extremely doubtful whether the Home Office hope for better results from shocking young people out of their delinquency has any basis in probability of achievement. Indeed, the opposite conclusion seems to be the view of those who write with some authority on these matters. At any rate, there is no evidence that "short sharp shock" régimes will prove any more beneficial in reducing crime than more constructive approaches. Indeed, the probabilities are that the results will be less productive.
Therefore, while we appreciate that the Government have admitted that the "short sharp shock" detention centres are now more or less on an experimental basis—and I believe there are only four of them at the moment—it will be important to learn from the Minister when the Government hope to derive some firm conclusions from their experience of these centres. I had handed to me just before coming into the Chamber a highly critical report from the Probation Officers' Association on the way in which these centres are being conducted and the effects of them, which leads to the association regarding what is taking place with dismay. With the Prison Officers' Association taking a similarly critical and pessimistic view, we consider it would be deplorable if, because of this experiment of uncertain consequence and probably adverse consequence in the attempt to deal with juvenile crime, the more constructive step which is embodied in this amendment were either totally frustrated or held back for an indefinite period. I beg to move.
Lord Donaldson of Kingsbridge: My Lords, in support of the noble and learned Lord I would make only two points. The first point is that, as the noble and learned Lord said, there are only four "shock" detention centres. Let us at least merge the rest of the detention centres with the new arrangements, because we shall thereby achieve the most important of all advantages; closeness to family. Secondly, it seems to me perfectly clear from what the noble and learned Lord has said, and from what I myself have heard, that the experiment is not being sufficiently successful to bother about. My own advice would be to move all detention centres into the arrangements: but we should be content, and I believe that the noble and learned Lord would be too, to reserve the four experimental centres and move the rest. Having said that, I support the amendment.
Baroness Gaitskell: My Lords, may I ask why this "short sharp shock" exercise is being resurrected? When this exercise was first mooted, I remember
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reading that it was considered shocking and was rejected by every person who knew something about crime and punishment. Why is it being resurrected now?
Baroness Wootton of Abinger: My Lords, I should like to support the noble and learned Lord on this amendment. We shall gain by pooling these various youth institutions, by the greater fluidity and the possibility, therefore, of placing more people because there are no blockages in the particular types of institutions. Moreover, there are the distinctions between borstal, for instance, and young prisoner centres. Originally, the borstal institutions were primarily training places, whereas the young prisoner centres were for more punitive cases. Those distinctions have worn out in the course of time and there is now great similarity between all the institutions of all types available to young offenders—except the four particular detention centres.
I agree with those who have already said that the "short sharp shock" detention centres have a very bad record for subsequent offences. If we left those out and brought in the other detention centres we should have a more or less flexible and homogeneous type of institution. Each institution could then mould itself in its own way, without having these rather outmoded distinctions between borstal and young prisoner detention centres.
Lord Soper: My Lords, the claim that the unifying process which has already taken place is a good one is a claim which is irrefutable—but I would invite your Lordships to think again about the "short sharp shock" sentence. That is much more complicated in its effect than the assumption that it will probably lead to an amelioration in the character of those who are subjected to it. My own experience over many years of having something to do with young offenders is that the initial incarceration process leads to all kinds of psychological difficulties and results, and I believe that only a few of them are necessarily beneficial. The danger of the short sharp sentence is that psychologically it is unsound, and therefore should be rejected on the grounds that it does not in fact produce the kinds of result now advertised as coming from it.
Baroness Bacon: My Lords, I agree with the amendment moved by my noble friend but I am not very happy about the suggestion of the noble Lord, Lord Donaldson, that it would be a good thing to leave out the four experimental centres—what are called, but are really not, short sharp shock detention centres. After all, when the original detention centres were first set up there, they were supposed to be for a short sharp shock. I know several of them. We are having the experiment now, in four of them, but there seems to be no difference between those detention centres which are not in the experiment and those which are. What I should like to know from the noble Lord, is where does the régime in the four experimental centres differ from the régime in the other detention centres? I have a feeling that there is not much difference at all, and, if there is not much difference, there is no point in leaving these out.

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I do so agree with the amendment moved, that it would be much simpler, better, more convenient all round, if we left out the whole of the detention centres. I should like to hear a little more, In my local paper, which covers one of the so-called short sharp shock detention centres, it was said by the warden some time ago that he did not see what he was going to do in addition to what was being done, and that it meant very little to call these four different in any way as regards the short sharp shock, whatever that might mean. So, if we could have a little more explanation of this, it would be very helpful.
Lord Wigoder: My Lords, I think many of us approach this question of the detention centres and their new stringent régime from an empirical point of view, and are very anxious to know how the experiment is doing. The noble Lord the Minister at Committee indicated that he would try to give some information at this stage. I have had for a long time a suspicion that the Home Office computer is specially programmed so as not to be able to give information which might conceivably be helpful to anybody. If the noble Lord is able to give some information today as to how this new short sharp shock réegime is doing since it was restarted, and particularly what the reconviction rates are, it might assist many of us to make up our minds on this matter.
Baroness Macleod of Borve: My Lords, may I rise briefly to disagree with the noble and learned Lord, Lord Eiwyn-Jones, and others who have supported him. The Government are now trying, so far as I can see, to have a new structure for trying to persuade young people not to re-offend. It is not necessarily punishment; sometimes it is rehabilitation, sometimes trying to persuade them not to re-offend. The young people in our country today are re-offending at a great rate, and they are committing, as we all know, very violent crimes. Dealing with the detention centre, the children sent to a detention centre would be there for a minimum of 21 days and a maximum of four months, from which is deducted remission. They have remission automatically. The length of time they stay at the detention centre is governed by the warden of that centre. He decides on their behaviour within the detention centre how long they shall stay. When we move on to the youth custody centres, which are almost in place of borstal, which will now be taken out of the system, children then will be encouraged to be rehabilitated; they cannot be within three months, which is the amount of time they will be in, with remission.
I feel that this part of the structure of sentencing is very important. If we carry on with this structure and this amendment is not agreed to, or indeed if it is agreed to, who is going to decide on the allocation? The structure now is that there are two systems, in that the children stay either for a short time or for a longer time. If it is an overall youth custody system and the magistrates can only say, "We cannot deal with you outside; you have got to be in a closed environment for a short time", who is going to decide where they go? Being near to their homes, I submit, is not always a very good thing. Some of our children come from
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very delinquent families, and sometimes it is a good idea, even for three weeks or a fortnight, to show them another side, not as a punishment, because that is not part of it, perhaps being taught to do what they are told. I am afraid I cannot agree with this amendment. I do not know what my noble friend is going to say, but for my part I cannot support it.
The Parliamentary Under-Secretary of State, Home Office (Lord Elton): My Lords, as at Committee, so on Report, the debate has veered towards consideration of the experimental new régime in four of the 19 detention centres. I should point out to your Lordships, in case you have been distanced so far from the expert introduction of the amendment by the noble and learned Lord, Lord Elwyn-Jones, that the amendment refers to all sorts of detention centre orders and not just to the special régime. Having said that, I do recall the undertaking I gave, of which the noble Lord, Lord Wigoder, reminded me, to be more explicit on a number of aspects of the régime in these centres, and that I propose to be, as far as is possible.
To start with I should say that the régime does differ from that of other centres in that the supervision by staff is closer, the periods of association or free time are shorter, there are more parades and inspections, there are formal drill sessions, there is more physical education, and there is not a full-time training course, because that would not be appropriate to the short duration of the custody.
The noble Lord, Lord Donaldson, suggested that there would be advantages in the generic sentence, if the detention centres were retained within it. Leaving aside the difficult problems of sentencing policy which would result, it would, of course, only produce the advantages of proximity to the offender's home if every centre was able to cater for every sort of offender, and the treatment given in the centres would, therefore, have to be generic as well. What we are trying to do, as I said at Second Reading and again at Committee, is to tailor the treatment to the criminal, rather than to the crime, and in this case to the young offender, and that the result of this generic treatment would be that every centre would have to give the full range of treatment, and that would not lend itself to the specialist treatment with which we are now experimenting. The question of whether the detention centre order should be retained does not turn on decisions about the particular type of régime. That was made quite clear in the White Paper which the Government published over 18 months ago. I shall not quote it, but shall refer your Lordships to paragraph 14.
The second point that I should like to make in this connection is that young offenders serving short sentences have different needs from those who will be in custody for some time. Nobody can be properly trained or reformed in a matter of days or weeks. It is no good starting someone on, for instance, a six months vocational training course if he is going to be released after two months. The great danger is that those with short sentences could become the Cinderellas of a large amorphous system. In fact, young people with short sentences are probably those with whom we should take the greatest care: they are not too far gone in crime to be retrieved and we do not want them inside the system again. That is what the detention centre

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order is about. It is in practice not possible to operate a full training régime in less than four months. The question then is: what can we constructively do with these offenders? That is what the pilot project is about.
I said during earlier debates that I would give your Lordships some information about the progress of the pilot project and the way in which it was shaping up in terms of re-offending. However, such information as is available at this comparatively early stage is not very helpful or revealing, in spite of what noble Lords opposite attribute to it. The pilot project with a brisker réegime now operates in four establishments. It offers 398 places; there are 2,297 places in 19 establishments in the system as a whole, and it therefore applies to 17 per cent. of that system. The project started in one senior and one junior centre in April 1980, and was extended to two more centres—one senior and one junior—in September 1981. Up to and including 8th July 1982, the four centres between them had received 4,160 trainees.
An evaluation programme is being carried out into many aspects of the project's operation and its effects. The work is being done by the Young Offender Psychology Unit of the Prison Department with assistance from the Home Office Statistical Department. I do not think that there is a computer involved and if it were I trust that the noble Lord, Lord Wigoder, would not feel that it was programmed by the same hand that programmes the Ministers at the Department. This programme is under the oversight of a steering committee which includes members of the Home Office Research Unit, administrators from the policy divisions concerned, and two senior independent academic members. It is intended that the programme should assess as many aspects of the project as possible, including its effect on the morale and outlook of the staff as well as that of the offenders themselves. If that aspect of the inquiry surprises your Lordships, I think that I should say with some emphasis that the success of this type of programme depends very largely, as it does in any detention centre, on the relationships established between the staff and the inmates. It is proper to realise that if what is proposed is depressing to the morale of the staff, or if they feel unfulfilled or frustrated by it, then it is bound to affect the inmates adversely as well. The steering committee is also going to look at re-conviction rates and it was on that aspect that I was so strongly pressed in Committee.
Re-conviction rates are, of course, a fairly rough measure of the success of any sentence. But if they are not to be wholly misleading comparisons have to be made between comparable sets, like sets, of statistics. The period chosen is bound to be arbitrary, but our practice is to adopt a two year re-conviction rate after release from custody. The accumulation of statistics collected on this basis provides some kind of measure; they are the best yardsticks of comparisons that we have.
The most recent figures relate to offenders released in 1977. What we need for the pilot project is comparable re-conviction figures and not just statistics in a vacuum. That means collecting figures over another two-year period and the period, of course, can only start when the first substantial batch of trainees were released, and the last figures can only come to hand as a part of a massive annual statistical exercise when it is over, and they then have to be checked and processed.
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So with the very best will in the world, they could not be had for a quite a time yet. This is, I recognise, very tantilising and as an interim indicator we are at present actually collecting one-year re-conviction rates. All these figures are also returned from the courts on an annual basis as part of the exercise to which I have referred. We hope that the 1981 figures will be available later this year, and that if all goes well all the processing involved will be done by the middle of next year. But let me stress again, like must be compared with like and that is only a one-year span. One obviously cannot draw firm conclusions from a comparison of the rate of re-conviction of one group one year after release, with another two years after release, and get any firm and useful conclusions.
I can assure your Lordships that the Government are, if anything, more anxious that anyone else to have concrete information about the outcome of the project in terms of re-conviction rates. The close monitoring would, of course, give us an immediate warning of any obviously adverse effect of the new régime, but so far there has been none. I hope that noble Lords opposite will accept that they now have the information which my right honourable friend the Home Secretary and I have. If we want more, we shall simply have to be patient.
I apologise for having spent so long on this aspect of the matter, but I thought it right to go to some lengths to fulfil the undertakings I gave in Committee in view of the considerable interest there was at that stage and the interest which has been reaffirmed at this stage. Although it is Report stage I believe that the noble Lord, Lord Donaldson of Kingsbridge, would like to speak twice and if I can facilitate him by giving him a brief interruption I shall do so.
Lord Donaldson of Kingsbridge: My Lords, I do not want to speak twice but I would like to ask a question before the noble Lord sits down, with is a convention to which we all agree. Would the noble Lord agree that figures for convictions for a year, it they were twice as bad as the figures over two years, would be indicative of anything—because he speaks as if they would not be?
Lord Elton: No, my Lords. I hoped to have given the impression that the monitoring process would set off an alarm bell if anything was going severely wrong and that, of course, would be a very loud alarm bell.
Lord Wigoder: My Lords, I am grateful to the noble Lord for giving way and I promise not to make a practice of this. However, is the noble Lord really saying that in July 1982 he does not know what proportion of those who went on the stringent régime in April 1980 have been re-convicted, and how that compares with the re-conviction rates of those who in April 1980 went to other detention centres?
Lord Elton: My Lords, what I am saying is that the retrieval of the figures in an annual event and the figures for the year 1980–81 are, therefore, only coming out of the system now. They then have to be processed. That is what I am saying. Let me remind your Lordships that the amendment itself is not addressed to the pilot schemes or to the stricter régime itself; it is addressed to the whole concept of detention orders.

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The Government see very good reason for retaining these orders as a distinctive sentence. The minimum sentence will now be three weeks—which will mean two weeks in custody, as my noble friend has rightly said, in most cases—and the maximum will be four months. It is simply not realistic to try to provide a training régime within that period of time, but if most offenders with these very short sentences go to separate detention centre establishments which are specially geared to cater for them, it will be possible to provide a structured régime which can operate constructively within the short time available. Our efforts will be concentrated on finding out what is the best sort of régime.
Under the provisions in the Bill the detention centre order will, on the whole, be used for those who are reasonably fit and who have little or no previous experience of custody. It seems right that they should be held in separate establishments apart from those more serious offenders who have received longer sentences. We intend also to retain the distinction between junior and senior detention centres, so that juveniles are, whenever possible, held separately from older offenders. Under a generic sentence, such as the noble and learned Lord and his supporters favour, these advantages would be lost and the courts would have no idea, when sentencing a young offender to a short period in custody, where he would go or to what sort of régime he would be submitted. That is to hand to the executive a valuable function of the courts. It is valuable for two reasons. First, the function serves to ensure that the court examines the full implications of its sentencing policy for each individual offender and, secondly, by giving to the court a reasonable degree of direction over the sort of experience the offender is to get as a result of his offence, it gives the court the confidence to use the system rather than to rely upon more traditional and inflexible sentences. Our object remains to make the sentence fit the criminal and finish his criminal career.
The Government, therefore, consider it very important to keep a separate sentence of detention. For many years now the detention centre system has not known what its fate will be. The Children and Young Persons Act 1969 contains a provision which would enable the sentence to be abolished for juveniles. During the 1970s the Advisory Council on the Penal System put forward proposals which would have merged the detention centres with the rest of the young offender system. This feature was preserved in the last Government's proposals in the Green Paper. For well over a decade those who work in detention centres have kept going without knowing whether what they were working for was likely to be abandoned or continued, and that uncertainty must be brought to a conclusion.
Detention centres are valuable, specialised establishments dealing with young, short-term offenders who need to be kept apart from the general run of hardened and serious offenders. If your Lordships accept this amendment, it will be among them that your Lordships will be throwing these youthful and still redeemable scapegraces. For many that would be to slam shut the doorway to a reasonably conducted and happy life. I ask your Lordships to reject the amendment.
3.32 p.m.
Baroness Birk: My Lords, I think that the noble Lord has made out as good a case as he possibly can on this amendment and has answered a number of questions. He did not answer a question put by the noble Lord, Lord Wigoder, and I think that the noble Lord is absolutely right when he says that for us to go ahead in this way, without having more information, is quite wrong.
We are concerned whether what is being done to and for these young people is, in itself, effective. The noble Baroness, Lady Macleod, spoke about a great many young people committing violent crimes. The point is that in seeking a solution to this we should try to ensure that what is being done is effective in dealing with the young people. If it is not, it is not only a waste of time and money, but it is extremely harmful.
Lord Elton: My Lords, if the noble Baroness will forgive me—and I am most reluctant to interrupt her—I am not certain whether she made that point in respect of the special régime or of the whole system; but it is of material importance because the amendment relates to the whole system of detention centres, and not just to the special régime.
Baroness Birk: My Lords, yes, it does. I thought that the noble Baroness was making a general statement as a matter of fact.
The Minister referred to the experimental new régime. He also reminded us that the amendment refers to all detention centres, which is absolutely true. My noble friend Lady Wootton was, I think, absolutely right when she drew attention to the fact that what had started off as being training within the borstal system, had, in fact, disappeared. We can see that from the results: where people are reconvicted after borstal sentences, and from what is now happening in detention centres. Although the Minister referred to it in connection with all detention centres—and that is absolutely true—it would be quite impossible and wrong for the House not to be very aware of the fact that there has been a tremendous emphasis on and hope expressed in the short, sharp sentences in detention centres. It is this to which we have also to address ourselves and which we must consider when we look at this amendment. In looking at the amendment, this aspect would come into the matter as well as all detention centres generally.
When my noble and learned friend moved the amendment he referred to the report of the Prison Officers' Association. I believe that we should attach a great deal of consideration to what they have said. I do not think that anyone could accuse the Prison Officers' Association—they would be the first to refute it themselves—of being a soft organisation. In April of this year they published a document entitled The Tougher Régimes Pilot Project, which dealt with what was happening at the four detention centres—in fact, the very centres which are referred to as the experimental project. What they say is I think very relevant, and to some extent answers some of the questions raised by the noble Lord, Lord Wigoder. For instance, they say:

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"As the day itself involves the brisk changing from one activity to another, a considerable amount of time is lost in the changeover periods … without doubt the effect of chopping and changing of activities has a debilitating effect on the staff who are supervising the activities".
They go on to say:
"We believe that drill training occurs too often and for too long a period…".
Then they say:
"It has to be recognised that some staff feel that drill is a waste of time, a boring and demoralising activity and that any purpose of ensuring a rigorous activity for the trainees is lost as they prefer it to any form of work activity".
That seems to me to be a very counterproductive way of doing things.
They then say:
"We remain to be convinced that the mental ability of some trainees lends itself to being drilled in this fashion as so many are so badly co-ordinated and have such a low mental age that marching in any uniform sense is impossible to achieve. The resultant effect is that some trainees are pressurised by other trainees to improve their performance and because of their inability to do so they become frustrated during that session. This, of course, has a detrimental effect on the other activities as well …".
The document then mentions a number of other things and, finally, there is the reference to staff morale:
"The project has proved quite clearly that prison officers have found it impossible to sustain the purely negative approach to their work and now see the distinct possibility that even shorter sentences will thrust upon them an even more negative régime. This is again viewed with great dismay and prison officers, and indeed the Prison Officers' Association, are sadly moved by the prospect".
At this stage, when we are dealing with this very important Bill, I do not think that we ought to, or can, wait for the very long-delayed figures from the Minister's department. We are concerned with the working of the system and the effect on the young people, who are, in fact, going through it now. For those reasons, and for reasons which have been given by other noble Lords from different parts of the House, I hope that the House will support the amendment moved by my noble and learned friend Lord Elwyn-Jones.
Lord Elwyn-Jones: My Lords, in the light of the strong opinion that has been expressed, with one exception on the other side, which naturally I respect, I hope that the noble Lord the Minister will give further thought to this matter. I did intend to cover the detention centre réegime generally and I only mentioned the four special centres because I suspected that adherence to that experiment would be at the basis of the rejection of this amendment by the Minister. That is not wholly true, but I believe that the arguments that have been put forward for incorporating this part of the penal process in relation to the young, as part of a unified programme giving flexibility to those who have the responsibility for these centres, would be the best solution to this grave problem of recidivism among young offenders which present arrangements, alas! are not doing a great deal to remedy. If the noble Lord wishes me to give way, of course I shall.
Lord Elton: My Lords, the noble and learned Lord was inviting me to think and I thought that I ought to reply. If the House would allow me to do so, I would
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give the basis on which I was replying. I have thought a great deal about what has been said. It appears to me that the discontent which the noble Baroness, Lady Birk, has most recently referred to among those operating the régime, dates from a rather earlier time than the present. It is certainly true that there was difficulty with the fragmentation of the timetable by drill and more frequent PE sessions, but adjustments to the timetable seem to have overcome this. There have not been any unusual medical problems and I have, in fact, visited Haslar to see the régime in work. I was not aware of discontent there; I was aware of a rather good atmosphere.
Certainly, there may be some people who are less well fitted to the régime than others, but on either physical or mental grounds, it is within the powers of the Bill that they should be transferred elsewhere. I think that some people ought not to be sent to long custodial sentences, and, if they go to detention centres, the ré there should be tailored to their requirements. This is what this Bill does, and it is what the noble and learned Lord is asking us to throw out of the window.
Lord Elwyn-Jones: My Lords, I am afraid that that somewhat lengthy intervention may encourage others to follow suit at the Report stage. That worries me a little. However, I did invite the Minister to apply his mind to this matter. I am disappointed with the consequence of that application and I invite the House to come to a view upon this amendment.
Baroness Macleod of Borve: My Lords, before the noble and learned Lord sits down, if he wishes to do away with the detention centres, may I ask him whether he envisages that children will be sent to up to 18 months across the board and not have the opportunity of going for 21 days?
Lord Elwyn-Jones: My Lords, it is not proposed to do away with the short sentence of three weeks but to embody it in the other arrangements, and, for those who are to be dealt with in that way, that will continue. The amendment is not directed against short sentences.
3.41 p m
On Question, Whether the said amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 80; Not-Contents, 87.

DIVISION NO. 1

CONTENTS

Airedale, L.

Bishopston, L.—[Teller.]

Amherst, E.

Blyton, L.

Amulree, L.

Boston of Faversham, L.

Ardwick, L.

Briginshaw, L.

Bacon, B.

Brockway, L.

Balogh, L.

Bruce of Donington, L.

Banks, L.

Buckinghamshire, E.

Barrington, V.

Byers, L.

Beaumont of Whitley, L.

Caradon, L.

Beswick, L.

Cledwyn of Penrhos, L.

Birk, B.

Collison, L.

635

Cooper of Stockton Heath, L.

Lovell-Davis, L.

McCarthy, L.

David, B.

McNair, L.

Denington, B.

Mayhew, L.

Donaldson of Kingsbridge, L.

Mishcon, L.

Molloy, L.

Elwyn-Jones, L.

Northfield, L.

Ewart-Biggs, B.

Oram, L.

Fisher of Rednal, B.

Peart, L.

Gaitskell, B.

Phillips, B.

Gardiner, L.

Ponsonby of Shulbrede, L.

Gladwyn, L.

Reilly, L.

Gore-Booth, L.

Roberthall, L.

Gosford, E.

Rochester, L.

Grey, E.

Sainsbury, L.

Hampton, L.

Seear, B.

Houghton of Sowerby, L.

Shackleton, L.

Hunt, L.

Soper, L.

Hutchinson of Lullington, L.

Stewart of Alvechurch, B.

Stewart of Fulham, L.

Jeger, B.

Stone, L.

Kagan, L.

Strabolgi, L.

Kennet, L.

Strauss, L.

Kilmarnock, L.

Taylor of Mansfield, L.

Leatherland, L.

Underhill, L.

Listowel, E.

Wallace of Coslany, L.

Llewelyn-Davies of Hastoe, B.—[Teller.]

Wells-Pestell, L.

White, B.

Lloyd of Hampstead, L.

Wigoder, L.

Lloyd of Kilgerran, L.

Wootton of Abinger, B.

Longford, E.

Wynne-Jones, L.

NOT-CONTENTS

Alexander of Tunis, E.

Ilchester, E.

Ampthill, L.

Inglewood, L.

Avon, E.

Killearn, L.

Belhaven and Stenton, L.

Kinloss, Ly.

Beloff, L.

Lane-Fox, B.

Belstead, L.

Lauderdale, E.

Bledisloe, V.

Long, V.

Boyd-Carpenter, L.

Lyell, L.

Caccia, L.

Mackay of Clashfern, L.

Campbell of Alloway, L.

Macleod of Borve, B.

Campbell of Croy, L.

Mancroft, L.

Chelwood, L.

Marley, L.

Clitheroe, L.

Merrivale, L.

Constantine of Stanmore, L.

Mersey, V.

Milverton, L.

Cullen of Ashbourne, L.

Mowbray and Stourton, L.

Daventry, V.

Murton of Lindisfarne, L.

Davidson, V.

Newall, L.

De Freyne, L.

Northchurch, B.

De L'Isle, V.

Nugent of Guildford, L.

Denham, L.—[Teller.]

O'Neill of the Maine, L.

Derwent, L.

Onslow, E.

Drumalbyn, L.

Portland, D.

Duncan-Sandys, L.

Rankeillour, L.

Ebbisham, L.

Richardson, L.

Eccles, V.

Romney, E.

Effingham, E.

Saint Brides, L.

Ellenborough, L.

St. Davids, V.

Elles, B.

St. John of Bletso, L.

Elliot of Harwood, B.

Sandford, L.

Elton, L.

Sandys, L.—[Teller.]

Ferrers, E.

Sharples, B.

Fraser of Kilmorack, L.

Skelmersdale, L.

Gainford, L.

Somers, L.

Garner, L.

Spens, L.

Glanusk, L.

Strathcarron, L.

Glenarthur, L.

Strathclyde, L.

Gridley, L.

Strathspey, L.

Hailsham of Saint Marylebone, L.

Sudeley, L.

Trefgarne, L.

Halsbury, E.

Trumpington, B.

Harvey of Prestbury, L.

Vaux of Harrowden, L.

Hayter, L.

Vivian, L.

Home of the Hirsel, L.

Young, B.

Hylton-Foster, B.

Resolved in the negative, and amendment disagreed to accordingly.

The Queen's Police Officer: Resignation
3.50 p.m.
Lord Elton: My Lords, with the leave of the House, I will now repeat a Statement being made in another place by my right honourable friend the Home Secretary. The Statement is as follows:
"With permission, Mr. Speaker, I will make a Statement.
"Commander Trestrail, the Queen's Police Officer, has confessed to having a homosexual relationship over a number of years with a male prostitute. He has resigned from the Metropolitan Police.
"I have thought it right to report this to the House at the earliest possible opportunity. I shall make a further announcement in the course of my Statement on Wednesday".
Lord Elwyn-Jones: My Lords, the House will be grateful to the noble Lord for repeating that Statement. May I ask him whether the purpose of making it today, instead of enabling the whole matter to be considered in full context on Wednesday, is to enable Parliament to be informed of this grave development before the matter was reported in the press? I think I hear from the Woolsack confirmation of what I have suggested; I suspected that was the reason. May I therefore assume that on Wednesday this grave matter will be placed in its context in relation to the events which have caused such concern arising in Buckingham Palace? In the meantime, may I ask the Minister to say what the duties of the Queen's Police Officer are and whether there will be an immediate appointment of a successor to the officer named in the Statement?
Lord Wigoder: All I would ask at this stage, my Lords, is whether it is thought there may be security implications in what has been said, because if there are no security implications we on these Benches would find it odd for this matter to be made the subject of a Statement in your Lordships' House at all.
Lord Elton: My Lords, the Statement was made in order that your Lordships and Members of another place should have this information from my right honourable friend and myself and not from another source. The full context of what has taken place will be made apparent, I can confirm, on Wednesday. The duties of the Queen's Police Officer are to be responsible for the personal protection of Her Majesty when she attends public functions at Buckingham Palace and at all times when she is outside the palace. He also supervises the personal protection of all members of the Royal Family. The third point which arises from the noble and learned Lord's question is that Superintendent Hagon has already been appointed the Queen's Police Officer on an acting basis. I think that what I have said will indicate to the noble Lord, Lord Wigoder, that the Queen's Police Officer is so closely concerned with her security that this must be a matter for security concern.
Lord Donaldson of Kingsbridge: My Lords, we appreciate that it is better that the noble Lord should inform us of this matter than that we should read it in

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the newspapers, and from this Bench we shall withhold comment until Wednesday.

Telecommunications Policy
3.54 p.m.
The Parliamentary Under-Secretary of State, Department of Health and Social Security (Lord Trefgarne): My Lords, with the permission of the House, I should like to repeat a Statement being made by my right honourable friend the Secretary of State for Industry in another place. The Statement is as follows:
"With permission, Mr Speaker, I should like to make a Statement about the future of telecommunications in Britain.
"It is the Government's aim to promote consumer choice. Wherever possible, we want industrial and commercial decisions to be determined by the market and not by the state. We believe that consumer choice and the disciplines of the market lead to more stable prices, improved efficiency and a higher quality of service.
"Since the British Telecommunications Act 1981 received Royal Assent less than a year ago, some progress has been made in breaking the state monopoly in telecommunications. I have licensed the Mercury Consortium to provide a new telecommunications network in competition with BT. I intend shortly to issue a general licence permitting all bona fide value-added network service operators to use the BT and Mercury networks. The way is now open for the private sector to sell telephone apparatus direct to the public. Liberalisation of telecommunications has started and we intend to see it through.
"For BT, the prospect of competition and the advent of new technology are now stimulating them to provide a wider range of competitive services. I pay tribute to the way Sir George Jefferson and his hoard are transforming what was not so long ago a Government department into a commercially oriented business. Mr Speaker, we now want to take the next step.
"As a nationalised industry, BT does not have direct access to financial markets. Its borrowing is controlled by Government and counts against the PSBR. To bring inflation under control, these borrowings have inevitably to be subject to strict limits. But external finance is only part of the picture. In the past, monopoly power has allowed BT to raise prices to finance investment without doing all that could be done to increase efficiency. Around 90 per cent. of BT's investment programme, about £2,200 million this year, has been self-financed. By 'self-financed', I mean of course 'customer financed'; BT's charges to customers not only cover current running costs but are also paying for 90 per cent. of new investment. As a result, charges have risen steeply while investment is still not enough. Unless something is done radically to change the capital structure and ownership of BT and to provide a direct spur to efficiency, higher investment would mean still higher charges for the customer. The Government, BT and the
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general public would find that unacceptable. We need to free BT from traditional forms of Government control.
"We will therefore take the earliest opportunity to introduce legislation which, while keeping BT as a single enterprise, will enable it to be converted into a Companies Act company, British Telecommunications plc'. The legislation will allow the sale of shares in that company to the public. It is our intention, after the next election, to offer up to 51 per cent. of the shares on the market on one or more tranches.
"Once half of the shares have been sold, the Government will give up control over the commercial decisions of BT plc. BT plc will be outside the public sector; its borrowing will cease to be subject to Exchequer control, and it will look to its shareholders and the markets for its external financing. It will be for the board of the company to decide when and how much to borrow, taking account of internal factors and market conditions in the same way as any other private sector company. This will mean not only a greater flexibility for BT and less pressure on consumers and taxpayers, but also that BT will be subject to proper market disciplines. BT will be in a position to provide better services which are more responsive to customer needs, like those provided by the privately-owned telephone companies in the United States.
"BT plc will nevertheless dominate the British market for telecommunications for some years yet. The Government consider, therefore, that there will be a need for regulatory arrangements for the industry to balance the interests of those supplying telecommunications services, their customers, their competitors, their employees, their investors and their suppliers. The legislation will reform the arrangements for licensing telecommunications so as to end BT's exclusive privilege and its role in licensing. Instead, there will be a new Office of Telecommunications, modelled on the Office of Fair Trading, under a director general appointed by me. He will have powers similar to those of the Director General of Fair Trading. He will operate with the same degree of independence from Government. It will be his job to ensure fair competition and fair prices.
"The legislation will contain provisions to safeguard existing pension obligations. There will also be special provisions to ensure that those employed in BT can acquire shares in the company.
"Finally, the legislation will reform the Telegraph Acts which were passed in the last century. We need to recast the law to make it relevant to the technology of today and tomorrow. I will be issuing a consultative document on this aspect shortly.
"Because these propsals are far-reaching and will affect a lot of people, I am today publishing this Statement, with some additional background information, in the form of a White Paper.
"Mr. Speaker, these proposals follow naturally from the liberalising measures passed by the House last year. It would make no sense to stop half way. If those who work in telecommunications are to provide the range and quality of service which modern technology now permits, and if they are to do so in

639
competition with each other, it cannot be right that BT should remain subject to the web of Government interference and controls which are the inevitable lot of an industry which enjoys the privilege of Exchequer finance.
"The quality of the service which any enterprise provides depends upon the skills, energy, and leadership of the people who work in it. We want to provide those people with the environment—market, financial, legal and structural—which will free them to give of their best.
"In the view of the Government, that is what the proposed legislation will do. I look forward to its early introduction".
My Lords, that is the Statement.
4.2 p.m.
Lord Ponsonby of Shulbrede: My Lords, I should like to thank the noble Lord for repeating the Statement and to say straight away that it is not a Statement which we welcome; nor is it welcomed in the industry. The contents of the Statement have been widely predicted in the press over the last few days, and I am told that members of all the unions involved in the industry have already condemned the proposals which have been set out in the Statement. The Statement pays tribute to the progress made by BT in transforming itself into a commercially oriented business, and the last thing that it needs at present is a further period of uncertainty before it has fully adjusted itself to its current situation. Undoubtedly the morale and enthusiasm of management in the industry will suffer as a result of the proposals.
The Statement rightly points to the problems of BT's finances and the financing of its investment. The only answer that the Government can find to this particular problem is a dogmatic one; yet it would have been possible, and indeed more sensible, for the Government to have altered their public sector financing policy so that they could remove the cash limits restrictions which they impose on BT and allow BT to go to the market under its own steam. I was surprised to learn from the Statement that the Government are so cock-a-hoop about their election chances that they propose to sell 51 per cent. of the shares after the election. Let me assure your Lordships that the shares will not be sold if we win the next election. We intend to restore the integrity of the BT network and we very much regard this as an election issue. If the Government reach a situation in which they sell off 51 per cent. of BT, one wonders how they will price the issue. Are we in for another Amersham International scandal?
I should like to ask the noble Lord one or two points of detail arising from the Statement. What effect will the licence arrangements envisaged at the beginning of the Statement have on the cost of services in the rural areas? In particular, can one be assured that for those people without a telephone of their own, coin-box telephones will continue to be as widely available as they now are? I know that there is very great concern among the employees of BT about their pension provisions, and I wonder whether the noble Lord can assure employees that under the new arrangements they will be no less well off than they are now? In listening to the Statement one detects an implication that under the
640
system that the Government propose prices will come down, and I wonder whether the noble Lord would care to comment on that point too?
Lord Byers: My Lords, I do not think that I can follow the noble Lord, Lord Ponsonby of Shulbrede, in what he has just said. I think that the intention to sell off 51 per cent. of British Telecom can at this stage be offered a cautious welcome, though I must say that for over two years some of us have contended that to inhibit British Telecom from raising investment finance on the open market has been absolutely, totally illogical, and that, provided the Government do not give a guarantee, the investment finance raised on the open market should not count against the public sector borrowing requirement. This is the illogicality of the myth of the Treasury, and we shall have this argument about other organisations that are to be privatised.
On the question of pensions, is it the intention that all the presently available benefits should be transferred to the new private company? Does that include indexation? If it does, will it not place a very heavy burden on a private company which no longer will have the Treasury behind it? We very much welcome the proposal regarding share ownership. Will shares he offered to employees not only at the beginning of the life of the private company, but also at intervals along the road? That is what gives the incentive to people, in particular newcomers, to get an organisation moving. May I also ask the Government not to take too seriously the threat from the official Opposition about making the organisation a political football. That would be horrifying.
Lord Trefgarne: My Lords, I am greatly obliged to the noble Lord, Lord Byers, for his response to the Statement. I am sorry that the noble Lord, Lord Ponsonby of Shulbrede, was less enthusiastic towards its contents. The noble Lord, Lord Ponsonby, asked me a whole string of questions, and perhaps I may reply to those which I believe he would regard as the most important. First, with regard to rural costs and coin-box telephones, unhappily it is the case that the cost of the provision of all utilities, whether the utility be water, electricity, telephones, gas, or anything else, is much higher in rural areas—for example, to remote houses in the midst of Wales—than it is in the centre of a large town or city. However, as at present constituted, British Telecom has a certain duty, spelled out in Section 3 of the British Telecommunications Act 1981, to provide its services, save where it is,
"in its opinion, impracticable or not reasonably practicable",
to do so. It is certainly the intention of the Government that that obligation should be carried over to the new company, BT plc. Therefore I very much hope that the kind of fears which the noble Lord expressed will not be realised; indeed I believe that they will not be. Certainly British Telecom plc will continue to have an obligation to provide coin-box telephones, which was a particular concern of the noble Lord.
The noble Lord, Lord Byers, and indeed the noble Lord, Lord Ponsonby, referred to the question of pensions. The existing pension fund of the Post Office is now being split in half in respect of the postal services on the one hand, and British Telecom, as it presently exists, on the other. The present idea is that

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the British Telecom pension fund should be transferred to the new BT plc. It is certainly the intention that after the transfer pensioners and prospective pensioners should enjoy the same rights as they do at present, including the indexing to which the noble Lord, Lord Byers, referred.
Both noble Lords referred to the question of British Telecom's borrowing being counted towards the PSBR. I recall that we discussed this matter in great detail at the time of the passage of the British Telecommunications Act. I fear the fact is that the borrowing which British Telecom at present undertakes, which constitutes a comparatively small part of its capital expenditure, must count towards the PSBR, because, although the Government do not necessarily have to guarantee such borrowing, the fact of the matter is that there is an inherent guarantee in any such borrowing; at least, that has been the considered opinion over a matter of years of those more learned in these matters than myself.
But the result of this proposal will be, of course, that such borrowing no longer forms part of the PSBR, which can only be to the benefit of British Telecom, its customers and, indeed, its staff. Incidentally it will have an effect on prices, which I think one noble Lord referred to (I think it was the noble Lord, Lord Ponsonby) because with their greater freedom to borrow free from the shackles of the PSBR it will be possible for them not to have to make such a provision out of revenue for their capital expenditure.
Lord Kennet: My Lords—
Lord Boyd-Carpenter: My Lords, is my noble friend aware—
Several noble Lords: Order! Order!
Lord Boyd-Carpenter: My Lords, is my noble friend aware that most users of telephone services will be very happy to know that the era of ever-increasing charges, largely for the purpose of financing very necessary investment, will, as a result of the measures he has announced, be shortly brought to an end? Is my noble friend aware, therefore, that this particular Statement will go very well with the users of the telephone services? Would he tell me whether, having disposed, after the next election, of 51 per cent. of the stock in British Telecommunications, the Government intend to retain the remaining 49 per cent. indefinitely; and, if so, why?
Lord Trefgarne: My Lords, I certainly agree with my noble friend that the difficulties which telephone users have been subjected to in recent times, particularly the sharply escalating cost of the service, are matters from which we ought to offer them the earliest possible relief, and I am certain that this is the best way to do that. As to whether or not the Government w ill retain 49 per cent., or any other percentage, of the shares in this corporation, I should say that that is not a matter upon which we have yet reached a final decision. Speaking for myself, I see no reason why, in principle, we should retain any particular percentage of the corporation; but in the first instance we are proposing to dispose of the 51 per cent. which is referred to in the Statement.
Lord Kennet: My Lords, we up here are not against the injection of private capital into BT, even if only as a means to enable its employees to invest in it themselves directly; but the House has just heard the declaration of the next battle in the continuing frontier war in British politics between nationalisation and denationalisation, in the pledge by the Labour Party to repeal the 51 per cent. which the Government have promised to enact if they win the next election. We are for moderation and slowness in these matters.
Will the Government say anything at this stage about the maintenance of our vital national interest in telecommunications and about the public service obligation which lies upon British Telecommunications at the moment, and the related question of possible foreign ownership? Further, could the Government make clear whether or not the new "plc", after it has been fully privatised, will be a monopoly as regards the provision of the network itself, or will there be an element of competition introduced (because that would appear difficult in so small a country as ours); but if it is to be a private monopoly, in what way do the Government think things will be improved over the present condition of public monopoly?
Lord Trefgarne: My Lords, first of all, on the monopoly question, as I said when I repeated the Statement, a second network has now been licensed, the Mercury Consortium, and it will be open to them to provide such additional services as they feel able and as they want to do. Value-added services—that is to say, services which derive their usefulness from being attached to the network—will be generally licensed under the provisions which, again, are referred to in the Statement. On the question of employee shares, which the noble Lord raised—and I regret I did not reply to that point when the noble Lord, Lord Byers, raised it—it is certainly our intention that employees should be entitled to acquire shares. The detailed proposals have not yet been worked out, but I fancy they may well be something along the lines of the scheme we devised for British Aerospace, the Bill for which passed before your Lordships a year or so ago.
As for the question of foreign ownership, to which the noble Lord referred, that also is a matter to which the Government have given some thought, and, again, our initial thinking is along the lines of the provisions contained in the British Aerospace Bill; but I should say that we have not yet reached a final decision on that matter, and it may be that some other, more appropriate scheme will occur to us. The noble Lord also asked about the general duties of BT plc. May I again refer him to Section 3 of the British Telecommunications Act 1981, which laid certain duties upon British Telecom, as it now is. We have it in mind, in a general way, that similar duties should be assigned to British Telecom plc when that company comes into being.
Lord Oram: My Lords, while it is perhaps too much to hope that the Government can be halted in their rush to privatise state-owned industry, can we not on this occasion, at least, be spared the empty pretence that the Government are promoting wider share ownership in privatised industry? Has the Minister seen the evidence that was before the Public Accounts

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Committee in another place respecting British Aerospace, to the effect that shareholdings slumped by as much as 83 per cent. in 10 months, from 158,000 shareholders to 27,000 shareholders, and in the case of small shareholders by 93 per cent.? Can we, if this present scheme goes ahead, expect a different result on this occasion?
Lord Trefgarne: My Lords, it is one thing to create a scheme to facilitate the purchase of shares in a company by the employees of that company—that is what we did in terms of British Aerospace, and that is what we have in mind to do in respect of British Telecom—it is another to insist that they hold on to those shares for ever and a day. Sometimes they sell them for perfectly good and justifiable reasons. Most of the schemes that are devised in this sort of area usually have a proviso that the shares have to be held for a certain period by trustees, or some such; but I think that the important thing is to make available the necessary facilities for employees in the business if they wish to acquire shares at the outset.
The Earl of Onslow: My Lords, I do not know whether my noble friend saw in The Times today a letter from the chairman of the British School of Motoring, explaining that his telephone bill for local charges had gone up by 37 per cent. compound per annum over the last two years, whereas the costs of international dialling, et cetera, had gone up by very little. If this scheme which my noble friend and his right honourable friend are going to produce is going to have the effect of checking the rise in local charges, which are the charges affecting most of us most of the time, then surely this is something which can be very much welcomed. How in fact is the new competition going to be introduced into the local telephone system, which is the telephone system which the vast number of ordinary people in this country use? How is that going to happen?
Lord Trefgarne: My Lords, as I have explained, the existing level of telephone charges is set having regard to the need, not only to provide the running costs of the network and the equipment, but also to make provision for 90 per cent., no less, of the capital investment of British Telecom in any particular year. Under the new arrangements, British Telecom will be able to borrow as they think fit on the market, and as they are able to do so, and this may well relieve them of some of these very high capital appropriations which have to be made. That is the first answer to my noble friend; but there is going to be a considerably greater degree of competition generally in the telephone service, overseen, as I have said, by a new director-general, and I am certain that that, too, will have an effect on the charges to which my noble friend referred.
Lord Airedale: My Lords, can we be assured that with the onset of the fierce new competition, the Act which safeguards the continuance of telephones in remote areas will also safeguard telephones of the elderly, the sick and lonely, some of whose telephones probably do not make any commercial sense but probably make
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the difference between these people continuing to live independently and having to move into institutions?
Lord Trefgarne: My Lords, I suspect that the fear of the noble Lord will prove to be unfounded. The telephone arrangements at present are that there is an initial fixed charge for the installation, followed by annual or quarterly rentals and then additional charges are levied in respect of each call. With a simple installation, the fixed charge is not unprofitable, and I see no reason why difficulty which the noble Lord foreshadows should arise.

Criminal Justice Bill
Further considered on Report
4.21 p.m.
Lord Elton Lord Elton moved Amendment No. 2:
Page 2, line 18, leave out from ("appropriate") to end of line 22.
The noble Lord said: My Lords, at Committee stage, my noble friend Lady Faithfull successfully moved an amendment to Clause 1(4) of the Bill, indicating the grounds on which a court should be satisfied, before passing a custodial sentence on a young offender, that no other method of dealing with him is appropriate. The Government are quite content to accept the will of the House on that. A second amendment, adding the same words to Clause 1(5), was accepted without debate. The Government feel, as I have explained to my noble friend, that the second amendment involves different considerations, and that it is not appropriate to seek to add guidelines to Clause 1(5).
Clause 1(5) relates to Clause 9, under which young adult offenders can be committed to be detained for default or contempt. Clause 9 replaces the present power to imprison such people. It has no application to juveniles. Indeed, it has very limited application in practice to any contemners; because in 1980, only 17 were committed.
The first of the criteria added to the Bill, that the young person is unable or unwilling to respond to non-custodial penalties, hardly seems appropriate since a defaulter has by definition already been made subject to a non-custodial penalty. The second, the protection of the public, seems even less appropriate since default does not make a young offender a danger to the public. Nor does the third, the seriousness of the offence, seem altogether apt. What would be needed, if one wished to go down the guidelines path for this subsection, are criteria specifically designed to cover default and contempt.
So far as default is concerned, Section 82(4) of the Magistrates' Courts Act 1980 already provides criteria which in most cases govern the use of the committal power. The court can only commit to custody if it is satisfied that the default is due to the offenders' wilful refusal or culpable neglect and the court has considered or tried all other methods of enforcing payment of the sum and it appears to the court that they are inappropriate or unsuccessful. It seems to us that this is a good deal more stringent than the guidelines being attached to Clause 1(5).
It therefore seems appropriate that Clause 1(5) should be left as it was before the amendment was added. It already required the court to refrain from committal to custody for default or contempt "unless it is of the opinion that no other method of dealing with him is appropriate That seems an apt and adequate safeguard, and I hope the House will accept the amendment.
Baroness Faithfull: My Lords, may I thank my noble friend the Minister for his explanation of that amendment. I agree with him that the criteria laid down in Clause 1(4) is not entirely satisfactory for defaults. Therefore, may I say that I should like to consider the question of criteria and perhaps reserve the right to bring this forward at a later stage.
On Question, amendment agreed to.
Clause 2 [Social inquiry reports etc.]:
Baroness Faithfull Baroness Faithfull moved Amendment No. 3:
Page 2, line 41, at end insert—
("(3A) Where a magistrates' court deals with a person under 21 years of age by a method whose use in the case of such a person is restricted by section 1(4) above, it shall state in open court the reason for its opinion that no other method of dealing with him is appropriate because it appears to the court that he is unable or unwilling to respond to non-custodial penalties or because a custodial sentence is necessary for the protection of the public or because the offence was so serious that a non-custodial sentence cannot be justified.").
The noble Baroness said: My Lords, with the agreement of the House, may I speak to Amendments Nos. 3, 4 and 5 together. These three amendments are consequential upon Clause 1(4). The reason for this amendment is to ask that it shall be stated in open court the reasons for giving a custodial sentence to a child or young person. There are really two reasons for this. One is that if one is dealing with a child or young person they want to understand why something has happened and they want to be sure not only that justice is done but that it is seen to be done. It is much easier and more productive to help a child when the child knows why it is that he or she is being given a custodial sentence. Therefore, this amendment simply says that it shall be stated in open court the reason for its opinion. This is the raison d'être for this amendment. I beg to move.
Lord Mishcon: My Lords, I wonder whether I may add one short reason in support of the amendment moved by the noble Baroness. It is this. It is not only a question of the young person—and it is not just a child but anyone under 21—hearing what the reason is. I think that it is a safeguard so that we have the court having to think very carefully about the restrictions we have imposed upon the custodial sentence and I think furthermore that it enables one to consider whether or not there should be an appeal; because one can look at the reasons given and decide whether those reasons can be argued against on appeal as being unsatisfactory.
Lord Hunt: My Lords, the noble Lord, Lord Mishcon, has anticipated the point that I was going to make in support of the amendment so that I will do no
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more than endorse from this Bench the point that he has made.
Lord Elton: My Lords, in Committee, the House decided that statutory guidelines incorporating the three criteria set out in the first of these amendments should be added to the restriction on the imposition of custodial sentences on young offenders.
I doubt myself whether it is actually necessary to add the criteria explicitly to Clause 2 in this way. But I would not for a moment seek to argue that there is any harm in spelling out the criteria again. If the House is content, I am content, also.
Baroness Macleod of Borve: My Lords, this is rather a long-winded amendment. Can we not just say: "and give their reasons in open court"? That would be enough and is usual. It seems to me that it is inferring that the chairman of a juvenile court is somebody of perhaps very little experience. I can assure the House that they are people of wide experience who will be able to put the reasons before the parents, the children and the social workers in perhaps better language than this.
On Question, amendment agreed to.
Baroness Faithfull Baroness Faithfull moved Amendment No. 4:
Page 3, line 1, leave out ("1(4) or (5)") and insert ("1(5)").
On Question, amendment agreed to.
Baroness Faithfull Baroness Faithfull moved Amendment No. 5:
Page 3, line 10, after ("subsection") insert ("(3A),").
On Question, amendment agreed to.
Clause 11 [Provision of premises for young offenders etc.]:
Lord Elton Lord Elton moved Amendment No. 5A:
Page 10, line 13, after ("Sections") insert ("5A,").
The noble Lord said: My Lords, this is a paving amendment on Amendment No. 81A, which I shall be moving before Clause 53. That amendment inserts a new section into the Prison Act 1952 concerning the office of Chief Inspector of Prisons. This amendment merely seeks to add reference to that new section to the new Section 43 for which Clause 11 of this Bill provides. This is thus no more than a technical amendment. I think that the House will agree with me that it would be to the convenience of us all if we were not to discuss the substantive issues arising under the proposed new section until we reach it at Amendment No. 81 A. I beg to move.
On Question, amendment agreed to.
4.30 p.m.
Lord Elton Lord Elton moved Amendment No. 6:
Page 10, line 26, after ("to") insert ("detention in").
The noble Lord said: This is a drafting amendment. I hope that its purpose is self-evident, but I wonder whether I may take the opportunity in moving it to inform the House of a matter on which we shall have to bring forward an amendment on Third Reading. We are providing in Clause 10 of this Bill that, where

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young offenders are not remanded on bail but in custody, the period spent in custody should count towards all young offender sentences. Where juveniles are concerned, there is of course a third remand category besides bail and custody: namely, remand in care.
It has, I am afraid, only recently become apparent that the law on remand in care is unclear. The position in relation to Clause 10 needs to be put beyond doubt. The Government intend therefore to bring forward an amendment at Third Reading to make it clear that the remand of a juvenile to the care of a local authority will not count as a remand in custody for the purposes of Clause 10. I do not wish to detain the House further. The substance of the issue can be debated at Third Reading. I regret that this has come up at such a late stage; but this appeared to be the convenient way to give your Lordships notice of it now that it has. I now return to commending Amendment No. 6, and I beg to move.
Lord Mishcon: My Lords, the House will be obliged to the noble Lord for that intimation; but it is rather late at Third Reading to put down an amendment of this kind which obviously has great import and which has to be studied very carefully. I wonder whether the noble Lord would at least do this for us: can any note on this clause reach those who are interested in the matter—it may be that everyone present is—so that at least we have ample opportunity of studying it?
Lord Elton: My Lords, with the greatest of pleasure. I welcome what the noble Lord has said. He has recognised that this is an embarrassing difficulty. This situation has only very recently come to light; I was only aware of it today. As soon as there is a substantive amendment available, I shall see that he and the Front Benches of the other parties and the noble Baroness who speaks for the Cross-Benches have copies of it and also an explanatory note, insofar as I am able to devise one, to explain its effect and purposes of reaching that effect.
Baroness Trumpington: My Lords, I wonder whether my noble friend will be good enough to send copies to the All-Party Penal Reform Group at the same time?
Lord Elton: My Lords, if the noble Baroness will give me her valuable and edited address list I shall try to do that also.
On Question, amendment agreed to.
Clause 12 [Accommodation of young offenders and defaulters etc.]:
Lord Hunt Lord Hunt moved Amendment No. 7:
Page 11, leave out lines 3 to 7.
The noble Lord said: My Lords, in rising to move Amendment No. 7, I propose to speak to Amendment No. 10 at the same time, as the objections of the All-Party Penal Affairs Group to the references to juvenile offenders, whether sentenced to youth custody or to detention centres, is identical in principle in both cases. The objection relates to the powers
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of the Secretary of State to direct that 15- to 16-year old offenders should serve their sentences in an adult prison instead of a youth custody centre, detention centre or, if need be, a remand centre, as the case may be.
In response to representations made by Mr. Kilroy-Silk during the Committee stage on this Bill in another place, the Government have already amended the Bill so as to prevent juveniles given custodial sentences of 21 days or more from serving their sentences in adult establishments. But this clause would still allow them to serve in adult prisons if their sentences were less than 21 days—that is to say, if I have understood correctly the convoluted legal phraseology of this Part of the Bill. No doubt the Minister will correct me if I am wrong.
During the Committee stage in your Lordships' House, the noble Baroness, Lady Faithful], has already conceded on behalf of the All-Party Penal Affairs Group that it may unavoidably sometimes be necessary for offenders, even at this tender age, to be held for a strictly temporary and specific purpose in a prison—for instance to receive a visit from a relative who cannot move to the centre where he is incarcerated or perhaps for an interview in exceptional cases—on the premise that the offender would be taken to the prison for that purpose and returned to the youth custody, detention or remand centre immediately afterwards.
We find it quite unacceptable that 15- or I6-year olds should—however short the period—actually serve their sentences in prison. It will not be the intention of the courts that they should do this. It is quite bad enough that young adult offenders of 17 years and upwards, may have to be subjected to these conditions until sufficient youth custody, remand or detention places become available, but it is intolerable that younger boys should be incarcerated in such conditions as have been described by the borstal and prison governors' branch of the Civil and Public Services Association in their comments on the young offenders White Paper of 1980, which has already been quoted by the noble and learned Lord, Lord Elwyn-Jones, during the Committee stage. I think that the particular reference they made is so important that I am going to quote it again. They describe the circumstances for young boys of 15 to 16 in adult prisons where the pressures on the system make it impossible to make separate facilities for them. They are squeezed into a bank of cells at the end of a landing or in a basement. Recreational facilities are meagre and sometimes non-existent, and the same applies to work and physical education. Under such conditions, the youngsters w ill be denied the benefit of special programmes of training and education which youth custody and detention centres are designed to provide. They will be exposed to the proximity of adult criminals in the disgraceful, overcrowded conditions of a local prison.
The experience is likely to be positively harmful to the young persons concerned—and, let us not forget, on that account, also harmful to society. I am well aware of the difficulties. I am not going to pre-empt the difficulties which the Minister will no doubt explain to us. I would merely say that

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if something is as wrong as this, those difficulties must be overcome. I beg to move.
Baroness Faithfull: My Lords, on behalf of the All-Party Parliamentary Group, I support the noble Lord, Lord Hunt, in this amendment. I do not think that it is fully appreciated sometimes by our colleagues in the Home Office what it means when a young person goes to prison. That is where they start. They make friends and they are got hold of. I have dealt with many boys who have got into trouble subsequent to being in prison and when I have asked, "Why are you mixing with this person, or that person?" they reply that it is because they met in prison and arranged to meet them when they came out. I strongly support this amendment and I support the noble Lord, Lord Hunt.
Lord Elwyn-Jones: My Lords, I, in turn, do likewise. I agree with the noble Lord, Lord Hunt. I cannot think that any court passing a custodial sentence on a 15-year old would intend that he should be dumped by the prison- department in an adult prison. That cannot be the intention of the courts. I hope that the noble Lord, Lord Elton, will be able to accept this amendment.
Baroness Masham of Ilton: My Lords, I should like to support this amendment, but, where it reads, "aged 17 or over", I should like it to read, "aged 18 or over". Over the years I have dealt with many 17-year olds, and many of them are still maturing and are very young. After all, people get the vote at 18 and they are supposed to be adults. Seventeen-year olds are at a very in-between age and therefore I should like the age to be 18.
4.40 p.m.
Lord Elton: My Lords, it has been urged on the Government, both here and in another place, that we should not let juveniles be held in prisons for a substantial part, or the whole, of their sentences. While we are short of places we cannot make such a concession in respect of group after group of trainees, but we do recognise the strong case that the youngest should be kept out of prisons when at all possible. That is why we amended this Bill on 22nd June to make the provisions now in Clause 12. The effect of what is now of Clause 12(2) is that where a juvenile is not already subject to the training guarantee set out in subsection (1), he may be held in a youth custody centre or a remand centre but not in a prison, except in very limited circumstances. Those circumstances are specified in the subsection.
The first two of those circumstances, which are described in paragraphs (a) and (b), relate to very short sentences. If a person has time in custody on remand to court against sentence and the effect is to reduce the term below three weeks—that is, two weeks when remission has been deducted—we do not think it is practicable to provide that he should always move on from the local prison in which he was originally received after sentence to a youth custody centre. The same applies to a person sentenced to less than 21 days for breach of supervision under Clause 15. I should emphasise that our general aim will be to return
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such people to the establishments from which they were previously released, but, with a very short term, that will not always be practicable. We are talking of periods of a fortnight, where full remission is available.
The effect of the first of the amendments moved by the noble Lord would be to remove paragraphs (a) and (b), and hence the very limited discretion we have, to place in a prison a juvenile subject to a youth custody sentence. I have explained that that residual discretion has been retained for sound practical reasons, and its removal would place the prison system under a requirement it cannot properly meet.
The procedures for receiving, discharging and allocating prisoners are not perhaps the simple and glib operations some noble Lords may think they are. On reception, when a person is received into an establishment it is necessary to check the court documents to ascertain the conditions of his detention, to make a preliminary medical check, to check and list his property, exchange his clothing and have him bathed. He is then seen by the governor, finger-printed and photographed, given a full medical examination and interviewed about his physical and mental history. Inquiries are made about his social circumstances and his criminal background, and he is interviewed by the chaplain and the probation officers. These procedures are normally carried out in two working days. I will not elaborate on the effects of this, but if there is a move from one establishment to another, you need to have, as it were, the debriefing and the reception into the second establishment.
Your Lordships will then see the difficulties that could arise from this. Even in cases where the requirement could technically be met, it could operate to the detriment of the people concerned. It would often result, for example, in transfers for very short periods to establishments further from home, and noble Lords on the opposite Benches were anxious to bring home to me earlier this evening how important it was that that should not happen.
Then the administrative burden on staff, and hence on other offenders and on régimes in youth custody centres, of individuals passing through them in a matter of days, would also be bad. Instead of a single discharge at the end of a fortnight, there would be, first, discharge from the prison, secondly, admission to the centre, and thirdly, final discharge from the centre. That is a tripling of the administration to be done after the sentence has been passed and all of this done by staff who could otherwise be supervising out-of-cell activities. While therefore the price of the amendment might not be large, to the extent that it results in longer periods without supervising activity it will be very expensive, at least to those who pay it. The Government have already gone as far as they can to meet the case put forward on behalf of the juveniles and I hope that the proposers of this amendment will be prepared to withdraw it.
May I now turn to the second amendment. Here the noble Lord will have noted that subsection (8) is rather similar in form to the part of subsection (2) dealing with youth custody trainees. Its purpose is also specific and limited. It does not, in my view, represent a serious incursion into the principle, which we all support, that people subject to detention centre orders should actually be held in detention centres. The

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point of the subsection is this: the Bill creates a new range of shorter detention centre sentences, running from three weeks up to a maximum of four months. That is a change for which there has been considerable pressure for many years. I think it is fair to say that it has been given a general welcome.
The new minimum of three weeks was set on the basis of advice from detention centre managements at a level which would still enable the detention centre to operate a worthwhile régime with a properly constituted programme of activities for the inmate. Allowing for one-third remission, that minimum period again is 14 days. If a period in custody is below that, practical problems will ensue. First, the offender could spend a disproportionate part, or even the whole, of his total time spent in custody going through the reception and discharge procedures. He could even spend all of it, as I say, in that process. But these procedures are still necessary, even when people come in for a short time.
Secondly, he could, if he is sent to a detention centre in the normal way, go under police escort a very long way from home, only to be returned to his home area after a very short period. However, there will necessarily be certain exceptions to the three-week minimum sentence. One will be where time in custody on remand is counted against a sentence of 21 days or more and brings the term below 21 days. I think it is absolutely fair that the person should have the benefit of all that time.
The second would be where a very short sentence is imposed for a breach of supervision—a circumstance in which it is right for a court to have the ability to pass a very short-term sentence. The number of people in custody at any one time would probably not be great, precisely because their terms were so short; but they could prove to be the straw that breaks the camel's back in detention centres, which become very hard pressed at certain seasons of the year because of fluctuations in the level of sentencing. They could also have a disproportionate impact on the reception and discharge facilities in those establishments, as I have sought to show.
Since this Bill came before Parliament the Government have gone a very long way and done a very great deal to ensure that juveniles sentenced for periods between three weeks to five months do go to detention centres and nowhere else. We have made exceptions but they are few and they operate, in my view, to the advantage of the young people concerned. They keep them closer to home; they prevent them becoming an unpopular "spanner" in the constructive works intended for the benefit of the vast majority of that class of offender. I accept that the amendment has been moved from the best possible motives, but I think its effects will be against the best interests of the very people it seeks to serve, and I hope the noble Lord will not press it.
Lord Avebury: My Lords, if the Minister suggests that this is going to be a very large problem when he paints a picture of the enormous administrative burdens that will be laid on the staff if our views prevail, would he care to tell the House how many young people aged 15 and 16 he calculates will be sent to prison if the
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Government's views are accepted by the House? I think it is important that we should know precisely how many of these juveniles will find themselves in adult prisons before we leave this particular amendment.
Lord Harris of Greenwich: My Lords, if I may say so, that seems to be an extremely well-taken point. The Minister can only have it in one of two ways. If, as I understand the argument to run, this will impose an intolerable strain on the prison service, then by implication the number of children in this category is going to be substantial. If, on the other hand, the numbers are going to be limited, as I assume is the position, the strain on the prison officers and the prison department establishments will be fairly small. I do not, with great respect, think that the Minister has made an altogether persuasive argument.
Lord Elton: My Lords, I am in some difficulty as to the procedure of the House. Having been rebuked for replying at inordinate length before, I can only give a cautious estimate at this stage of the figures for which the noble Lord asked. I should not probably give them, but perhaps your Lordships will give me leave. If there are about 30 in the system at any one time, and if the length of stay in each case is somewhere between one and two weeks, your Lordships will have to do the arithmetic more quickly than I can in order to get the answer before I sit down, which I must now do.
Lord Elwyn-Jones: My Lords, I am sure that the House will be grateful to the Minister for intervening in response to a specific question. He must not take umbrage at my having taken him to task a little earlier for gilding the lily.
Baroness David: My Lords, the Minister said a great deal in his reply, but I do not think any of it has convinced me that there is any good reason why a young person should be sent to an adult prison, even for a very short time. As the noble Lord, Lord Avebury, said, many of the objections are administrative ones which surely could be got over; and the finger-printing and so on could be done at a police station. Anything is better than having a young person in prison, even if it means going slightly further from home. If the detention régime is upset at the thought of having a youngster there for a time, may I quote what the Minister said at Committee stage, though admittedly in another context:
"… the fact is that one can accommodate oneself to a certain number of people who are not capable of taking up the full benefits of a régime, or a curriculum, without throwing out the administration for the rest."— [Official Report, 22/6/82; col. 996.]
I am unconvinced by his argument and I hope that the noble Lord, Lord Hunt, will press his amendment.
Lord Hunt: My Lords, the noble Baroness, Lady David, has said just about what I was going to say, after listening with great attention to the noble Lord. He has listed the difficulties which I anticipated he would list. I am very familiar with the allocation procedures in Her Majesty's prisons or penal establishments. I accept the difficulty about the distance from home for visits from relatives and so on, but the numbers of visits that can be fitted into 14 days under the prison rules make that argument more or less invalid.

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As regards what the noble Lord described as the straw that might break the camel's back in regard to the régime in a detention centre, and the spanner that might be put into the works by having young offenders serving these very short sentences committed there when they should be committed to a youth custody centre or a detention centre, I should like to quote back to the noble Lord what he said in speaking to an amendment moved by the noble Baroness, Lady Faithfull, on 22nd June. The immediate context of that was the suitability, or otherwise, of youth custody centres for very short sentences, and he was responding to a question put to him by my noble friend Lord Hutchinson of Lullington. He said:
"… the fact is that one can accommodate oneself to a certain number of people who are not capable of taking up the full benefits of a régime, or a curriculum, without throwing out the administration for the rest."—[Official Report, 22/6/82; col. 996.]
The noble Lord will know that he was speaking from his background as a teacher. I suggest that, if that is true in his experience, it is equally true of the situation where 15 to 16 year-olds are serving less than 21 days in—if the Government have their way—a prison. There is no magic in the figure of 21. It is neither more nor less difficult to accommodate, in the noble Lord's expression, a young offender of 15 to 16 in a youth detention centre or a youth custody sentence, than it is to accommodate
"such an offender who is serving 21 days or more."
I am going to respond positively to the hopes expressed by one or two noble Lords. I really think that this is a matter which ought not to be decided on party political grounds. It is much too fundamental an objection that I am raising in this amendment. I hope that many of your Lordships will join me in promoting this amendment.
4.55 p.m.
On Question, Whether the said Amendment (No. 7) shall be agreed to?
Their Lordships divided: Contents, 83; Not-Contents, 83.

DIVISION NO. 2

CONTENTS

Airedale, L.

Davies of Leek, L.

Amherst, E.

Denington, B.

Ardwick, L.

Donaldson of Kingsbridge, L.

Avebury, L.

Bacon, B.

Elwyn-Jones, L.

Balogh, L.

Elystan-Morgan, L.

Banks, L.

Ewart-Biggs, B.

Beaumont of Whitley, L.

Faithfull, B.—[Teller.]

Beswick, L.

Fisher of Rednal, B.

Birk, B.

Gaitskell, B.

Bishopston, L.

Gardiner, L.

Blease, L.

Gladwyn, L.

Blyton, L.

Gosford, E.

Boston of Faversham, L.

Hampton, L.

Brockway, L.

Harris of Greenwich, L.

Bruce of Donington, L.

Hatch of Lusby, L.

Burton of Coventry, B.

Houghton of Sowerby, L.

Byers, L.

Hunt, L.—[Teller.]

Caradon. L.

Hylton, L.

Chitnis, L.

Ingleby, V.

Cledwyn of Penrhos, L.

Irving of Dartford, L.

Collison, L.

Jeger, B.

Cooper of Stockton Heath, L.

Kagan, L.

Kennet, L.

David, B.

Kilmarnock, L.

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Leatherland, L.

Rochester, L.

Listowel, E.

Sainsbury, L.

Llewelyn-Davies of Hastoe, B.

Seear, B.

Sefton of Garston, L.

Lloyd of Kilgerran, L.

Spens, L.

Longford, E.

Stamp, L.

McCarthy, L.

Stewart of Alvechurch, B.

McNair, L.

Stewart of Fulham, L.

Mais, L.

Stone, L.

Masham of Ilton, B.

Strauss L.

Melchett, L.

Taylor of Mansfield L.

Milverton, L.

Underhill, L.

Mishcon, L.

Wallace of Coslany, L.

Molloy, L.

Wells-Pestell, L.

Phillips, B.

Whaddon, L.

Ponsonby of Shulbrede, L.

White, B.

Porritt, L.

Wigoder, L.

Roberthall, L.

Wynne-Jones, L.

NOT-CONTENTS

Airey of Abingdon, B.

Lyell, L.

Alexander of Tunis, E.

Mackay of Clashfern, L.

Atholl, D.

Macleod of Borve, B.

Avon, E.

Mancroft, L.

Belhaven and Stenton, L.

Margadale, L.

Bellwin, L.

Marley, L.

Beloff, L.

Merrivale, L.

Belstead, L.

Mersey, V.

Bessborough, E.

Mottistone, L.

Bledisloe, V.

Mowbray and Stourton, L.

Caccia, L.

Murton of Lindisfarne, L.

Caithness, E.

Newall, L.

Chelwood, L.

Northchurch, B.

Clitheroe, L.

Nugent of Guildford, L.

Cockfield, L.

Onslow, E.

Constantine of Stanmore, L.

Orkney, E.

Daventry, V.

Platt of Writtle, B.

Davidson V.

Portland, D.

De Freyne, L.

Rankeillour, L.

Denham, L.—[Teller.]

Romney, E.

Drumalbyn, L.

St. Davids, V.

Ebbisham, L.

St. John of Bletso, L.

Ellenborough, L.

Sandford, L.

Elles, B.

Sandys, L.—[Teller.]

Elton, L.

Sempill, Ly.

Fortescue, E.

Sharples, B.

Gainford, L.

Skelmersdale, L.

Glenusk, L.

Soames, L.

Glenarthur, L.

Stanley of Alderley, L.

Gridley, L.

Strathclyde, L.

Hailsham of Saint Marylebone, L.

Strathspey, L.

Sudeley, L.

Holderness. L.

Swinfen, L.

Hylton-Foster, B.

Swinton, E.

Ilchester, E.

Terrington, L.

Inglewood, L.

Teviot, L.

Killearn, L.

Trefgarne, L.

Kilmany, L.

Trenchard, V.

Kinloss, Ly.

Vaux of Harrowden, L.

Lane-Fox, B.

Vivian, L.

Lauderdale, E.

Wynford, L.

Long, V.

Young, B.

The Deputy Speaker (Lord Murton of Lindisfarne): My Lords, the Contents are 83, the Not-Contents 83. There being an equality of votes, in accordance with Standing Order No. 53, which provides that no proposal to amend a Bill in the form which is before the House shall be agreed to unless there is a majority in favour of such amendment, I declare the amendment disagreed to.
5.4 p.m.
Baroness Faithfull Baroness Faithfull moved Amendment No. 8:
Page 11, line 17, at beginning insert ("Subject to subsection (4A) below,").
The noble Baroness said: My Lords, I beg to move Amendment No. 8, and, with your Lordships' permission, I shall speak also to Amendment No. 9. In many ways, this amendment is to some extent the same as the last amendment, but this one concerns mentally unfit children who have a youth custody order made against them. Children who are mentally unfit are not, by protocol and practice, sent to a detention centre. If they are not sent to a detention centre, a youth custody order can be made, which means that they might, or could, serve a prison sentence in a prison for adults.
Your Lordships' House has shown how equally divided it is on the question of children and young offenders being sent to prison. How much worse it would be for a mentally unfit child or young offender to be sent to prison. It would be worse for two reasons. First, there is no treatment in prison for the mentally unfit person, either adult or child. Secondly, although prison staff have a three-month training in medical practice, they have admitted to me that they do not feel that they are capable of coping with or giving treatment or help, even on a short-term basis, to the mentally unfit. I believe that in our hospital and psychiatric services the mentally unfit child or young person should be treated as such and should not be sent to prison. I beg to move.
Baroness Bacon: My Lords, I support the amendment, but I think we must go a little further than the noble Baroness, Lady Faithfull, has gone and see what the alternatives are. At the moment, psychiatric hospitals and centres for young people are under the jurisdiction of the Department of Health and Social Security. I raised this matter during the Second Reading debate and I must thank the noble Lord, Lord Elton, for the letter which he sent to me about it. But it does not clear up the difficulty which I am in, and I think the noble Lord realises that it does not go as far as perhaps it ought to go.
May I go back quite a long way to the time when I was a Minister at the Home Office and dealt with some rather distressing cases of young people who were very severely mentally disturbed? The difficulty was to know where those young people ought to go. I shall describe one of those cases in a moment. Just before I left the Home Office, I mooted the idea of centres for young psychiatric delinquents. Since then, however, there have been organisational changes. Child care is now under the jurisdiction of the Department of Health and Social Security, while juvenile delinquency is still under the jurisdiction of the Home Office. Home Office Ministers are sometimes put into very difficult predicaments. Although they may want to move someone from a penal establishment, it is sometimes very difficult to get the Department of Health and Social Security to accept them. There is an impasse. I am wondering whether the noble Lord, Lord Elton, can say in his reply whether or not the position is any better today.
I shall not detain the House for long, but it is important for the House to know what has sometimes happened in the past and to ask whether it could happen now. The case I want to mention is that of a girl of 14 who was in the care of a very good local authority.
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She was put into an approved school because she had been delinquent. She escaped and then attempted murder and suicide and was brought before the courts. The girl was remanded for three weeks and—as the courts can do—the court said, "This girl is too unruly to be put in any remand home". The court committed her to the only place that was available then, which was the hospital at Holloway Prison. The first I knew of this—even though I told my department always to let me know when any young person was admitted to prison, because it is usually the courts who make this order—was when I saw the headlines in some of the tabloid newspapers, such as "Scandal of Girl of 14 in Holloway". I immediately said to my officials, "Get her out". After a few hours they came back and said to me, "That is all very well, but where can we put her?" We tried to get the girl into a psychiatric hospital but were told there was no room.
The local authority concerned was that of a city which was renowned for its good child care services. They felt that as the girl was in their care, they were really her "parents" and representatives came to London to see me. They asked very reasonably whether they could see the girl in Holloway. She was in a single room in the hospital at Holloway Prison, where she was looked after day and night, 24 hours a day, for her own safety and for the safety of others. The chairman and the child care officer of the local authority came back to me and said, "Keep her there—she is safer there than anywhere else we could find for her". We tried desperately to get her into a psychiatric hospital and it was only at the last minute, before she went back to court, that, luckily, we managed to get her a place. I am pleased to say that all ended happily. A year later, I received a photograph and a letter from the city concerned. The photograph showed a very happy girl with a bicycle. She had been completely cured and had bought a new bicycle, and she was very happy.
Another case—and here I will not go into such detail—did not end so happily. The boy concerned was found dead, and it was discovered afterwards that he had been suffering all the time from epilepsy. I should like to ask the noble Lord whether things are any different from those days. If he considers that a boy or girl should be removed to some kind of psychiatric unit, does he have the power to say, "Remove this person to that psychiatric unit", or is he still dependent upon the permission of the Department of Health and Social Security? When I mooted the idea of these units, I hoped that they would be under the control of the Home Office. But things changed, and they were in fact under the control of the Department of Health and Social Security. It is said that the Home Office is not the department to run any kind of hospital, but the Home Office does run Grendon for adults and so the Home Office is in a position—and Ministers are—of transferring persons from prison to Grendon, and then from Grendon back to prison. I would like to know whether the noble Lord the Minister has this difficulty.
I suspect that he does still have this difficulty. In a letter to me he said that the difficulty is rather more apparent in the letter than in actual fact—or words to that effect. I would like this matter to be cleared up because until it is, there is no use saying

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that these young people should not go into prison unless there is some alternative place for them.
Lord Avebury: My Lords, I believe that the noble Lord the Minister has accepted—although I cannot find the actual quotation—that young persons of 15 and 16 should not be detained in adult prisons. Therefore, there is no argument between us on the matter of principle; it is solely a question of practicalities and of how one can keep this very small number of young persons of 17 or 18 years of age out of adult prisons when they are unfit for a detention centre. When we were last discussing this, the Minister did say that there were as many as 100 young persons who were mentally unfit at any one time, although he subsequently qualified this and went on to say that they were not only the mentally unfit but also those who had any kind of disability which made it impossible to deal with them in a detention centre—including those who had a mild ailment such as a hernia. As he rightly pointed out, these are of a different order.
The figure which was asked for at Committee stage as to the number of persons who are mentally unfit were not given. I really believe we ought to know what this figure is. If the difficulty is one of resources and that we cannot yet provide enough places to cope with the mentally unfit—and therefore we need to send them to adult prisons—then we need to see the magnitude of the problem facing the noble Lord. It is remarkable that every time I ask for a figure it is not available from the Front Bench, but has to be sought from elsewhere. One would have thought that in coming to Report stage, Ministers would be properly armed with these figures. They are of crucial importance. Every time we talk about resources we need to know about numbers.
It seems to me, if I may say so with great respect, that it is surprising that the Minister does not have these figures at his fingertips and always has to obtain them from some other source before he can tell the House. Surely this is the crux of the matter. We are talking about the resources and whether we can provide enough places, so that we do not have to send these young people to prison. I believe that the noble Lord put his finger on it when he answered my question at Committee stage, when I asked did he not think that it would provide a strong incentive to the Government and the Home Office to get on with the job of providing youth custody centres for the small number of persons concerned if the House was to pass the amendment at that stage? The noble Lord replied, Yes, indeed it would. If we tell the Government that we do not want these young persons who are mentally unfit to be sent to adult prisons they would very soon get on with finding resources.
Lord Hunt: My Lords, I would like to say to the noble Lord, Lord Avebury, that I am much less concerned about the figures which he is asking the noble Lord the Minister to furnish. I am totally concerned about the very root of the matter, which is the principle; it does not matter if we are talking only single figures in terms of young people whose mental condition is such that they are likely to be sent to adult prisons. It is desirable that your Lordships should know what
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was said in 1980 in the White Paper on this subject, The Young Offender, in referring to those young adults who are the subject of the amendment of the noble Baroness. It stated:
"These young people will be placed as appropriate by the Prison Department"—
and it goes on to say
"They are most likely to serve their sentences in accommodation in adult prisons."
There is no basic question but that this is a scandalous suggestion. Young people whose mental condition requires them to have the best possible medical care are to be dumped, if this Bill goes unamended, into the worst conditions in our penal system.
Lord Elwyn-Jones: My Lords, I must confess that when I discovered the facts—to some of which the noble Lord, Lord Hunt, has just referred and which other noble Lords mentioned—at Committee stage, it distressed me greatly. It seemed intolerable that young persons needing psychiatric care and suffering from some degree of mental disorder should be dumped in prisons. From what I read in an earlier report, they are sometimes dumped in the most unsatisfactory parts even of our most unsatisfactory prisons.
The noble Lord, Lord Elton, was kind enough to send a letter to me in relation to this matter, in which he said:
"Our intention is that young offenders who need psychiatric care while in custody will receive it."
His letter goes on:
"Normally, this would be in an establishment within the youth custody system, primarily in what are now the borstals at Feltham and Glen Parva."
Is the implication of that that since we last discussed the matter, arrangements are now being made so that none in this class of offender will in fact go to prison? If the noble Lord, Lord Elton, can give that assurance, then we shall be reasonably content. The letter certainly does not commit the Home Office to that degree. I think there ought to be such a commitment. Of all the people who need humane and civilised and competent medical care in custody, these are they. What is happening to them now is, I agree, a very serious scandal, and I hope that, as this led so many noble Lords into the Division Lobby in support of our last amendment, there will be even more who will rally this time to see that the Home Office must face the fact that this is unendurable and should not be tolerated.
Baroness Masham of Ilton: My Lords, there is almost an explosion situation in our prisons because of overcrowding and many other reasons. Yet these unsuitable people are still being sent there. Having mentally unfit young people in our prisons is of great concern to the staff who have to try to deal with them. The worrying situation of the drugging of these prisoners is of great concern to many. Surely, my Lords, they should be in special units.
Baroness Trumpington: My Lords, in supporting this amendment, to which my name is attached, I would say that I, too, have had a letter from my noble friend the Minister, for which I thank him very much, in which he said:

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"The Government made it clear in the White Paper on Young Offenders published in October 1980 that it did not consider the detention centre order suitable for offenders who are mentally or physically unfit."
Therefore, how much less suitable a place must a prison be for these kind of people? I am very much hoping that my noble friend the Minister will give us an assurance that people who are mentally or physically unfit will not go to prison.
Baroness Macleod of Borve: My Lords, may I briefly support this amendment. The noble Baroness, Lady Bacon, with her wide knowledge from the Home Office side, has hit on a very great problem, in that when we try to send somebody into medical care a different department is concerned. This has been the problem for a very long time. Not only is it a different department, but it is also a problem to try to get psychiatrists to take the children involved from a court. This has been a real problem. I shall be most interested to know what my noble friend is going to say.
Lord Milverton: My Lords, I, too, will support this amendment. I hope Her Majesty's Government and my noble friend Lord Elton will be able to say that they will find a way to agree to this. As has been said, it is not nice for the young who are fit to have to stand up to our prisons, but for those who are not fit in any way it is even worse. So I do hope Her Majesty's Government will be able to respond.
Lord Somers: My Lords, from these Benches I should like to support this amendment and to remind the Government that being mentally ill is not in itself a crime. No doubt they will remember that for some years now we have recognised that fact, in that we refer to those who are mentally unsound as the mentally ill, and not as "lunatics", as we used to. I do hope, therefore, that this amendment will be allowed.
Lord Elton: My Lords, I will first look at what this amendment actually does. It relates to a young offender who is ineligible for a detention centre by virtue of his mental condition and who is instead sentenced to a short term of youth custody. If it were to be accepted, such an offender could be accommodated in a youth custody centre or in a remand centre, but not, as Clause 12 at present also provides, in a prison. Perhaps inadvertently, the amendment would also have the effect of preventing a mentally unfit offender from being held in a prison even temporarily. I assume that that effect would be inadvertent, because the temporary purposes for which, inter alia, subsection (4) provides will generally be to the benefit of the offender, and welcome, I should think, to those supporting this amendment. They include allocation at the beginning of the sentence—a time when links with relatives and friends can be of particular value—and, later on in the sentence, transfers for further appearances in court, accumulated visits and compassionate reasons. I hope there is no disputes about the merits of that provision.
However, the clause as it stands also permits these young people to be held in prisons for the whole of their sentence. I agree that that does require some
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explanation. I was asked in the earlier debates during the Committee stage how many young people would be excluded from detention centres on physical or mental grounds and said that there might in future be up to 100; that is, up to 4 or 5 per cent. of the estimated total number of short-term prisoners. The figure is derived from our experience of operating the tougher régimes pilot project in detention centres, under which transfers are carried out by the Prison Department on account of physical or mental unfitness for that régime. Your Lordships will notice that it is the tougher régimes and not the whole of the spectrum. The figure can only be an estimate, since it relates to future use by the courts of a statutory provision which does not at present exist. If it is of help to your Lordships, I should add that, so far as the prison system as a whole is concerned, there were 320 mentally disordered offenders on 30th June last year, and that was 137 less than at the same time the previous year.
Lord Donaldson of Kingsbridge: My Lords, may I ask the noble Lord, is that of all ages?
Lord Elton: Yes, my Lords. It is, therefore, not strictly relevant, but I am trying to give approximations because approximations are all that I can produce. I hope the noble Lord will bear with me before he gives vent to his spleen until I have completed what I wanted to say. Well, I have just done it, in response to the noble Lord.
Most people will be excluded from the régime because of physical conditions, including relatively minor ones, as the noble Lord, Lord Avebury, has said. Of the minority we expect to be mentally unsuitable, we would expect only a handful, probably less than half a dozen, to be mentally disordered within the meaning of the Mental Health Act 1959, which is a much tighter criterion than that which determines whether somebody is suitable to go in for this strict régime.
As to how these young offenders will be dealt with, I made it clear that the general rule, now reflected in Clause 12, will be that juveniles—that is, the under-17s—who are excluded from detention centres on medical grounds will go to youth custody centres by virtue of their age alone; that the young adults, people aged between 17 and 21, will normally go there, and that, wherever they are placed, particular account will be taken of any need for psychiatric care or oversight.
The principal facilities for young offenders with mental conditions which render them incapable of coping with normal régimes are at Feltham and Glen Parva Borstals, and at Grendon Prison. Under the new scheme, the first two will be youth custody centres and the last will have a youth custody wing. They will thus continue to be the main outlets for young offenders. But there are two particular reasons why the Government think it should be possible, as Clause 12 provides, for them also to be held in prisons. There are self-contained young offender wings, which will remain as prisons in law because they cannot meet the overall standards set for youth custody régimes but will continue to hold young offenders. The wing at Liverpool Prison, for example, will continue to provide psychiatric facilities for young offenders. Secondly, it will probably be clear from

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what I have already said that very few of those who are excluded from detention centres on account of their mental condition will be mentally disordered within the terms of the Mental Health Act.
The noble Baroness, Lady Bacon, gave a dramatic illustration of the sort of problems which can present themselves to people in the position which she held and I hold. I have to tell her that it remains the case not that the Department of Health and Social Security determines whether a particular case is suitable for admission to hospital, but that the consultants at the hospital have to agree that the patient is one whom they can or will treat. That is where the difficulty arises which she experienced some years ago, and to which my noble friend has also referred.
Some of the people who are not regarded as suitable for the régime will not require full-time medical supervision at all. Some of them may have quite short periods in custody to serve. Quite apart from that, there will be cases where it is very much in the offender's own interests to spend a short period in custody in a local prison where he can be closer to his home and to the support he can receive from his family, and also closer to the outside facilities which may be appropriate to him on his release than would be the case if he were transferred.
I have spent some time elaborating my hesitation about this amendment. It seems to me that I am compassed about by a great cloud of people who disagree with me. I have noted no sudden and loud changes of opinion and gasps of gratitude for what I have said already. That being so, I revert to the suggestion that we should look at this amendment with a view to the structural weaknesses to which I drew your Lordships' attention at the start and which I trust will be found in the first paragraph of this debate in Hansard—that is to say, it appears to do some things wider than what were noted as the purposes of the amendment when it was moved. If my noble friend would be content for me to do that with some reluctance but with I trust a good grace, perhaps she will feel that she need not press the amendment at this stage.
Baroness Faithfull: My Lords, I find myself in a very real dilemma. My noble friend the Minister has pointed out to me that perhaps the amendment is not worded exactly as it should be, and he has agreed to take the matter back. As the noble Baroness, Lady Bacon, has said, this is a complicated matter, because I also have had experience of trying to get a child into a mental hospital. Let me say at this stage that I do not think that the Home Office and the Department of Health and Social Security have come to terms with one another as to whether treatment should be given, who it should be given by, and where. I think that I almost—and I repeat "almost" —feel like pressing this amendment in order for that to be done. But, having been given the assurance of the Minister that this matter will be looked into—
Lord Mishcon: My Lords, the noble Baroness is always so courteous. I did not wish her to give away too much. I wonder whether the noble Lord the Minister could help by informing the House whether the assurance which he gave with some reluctance but nevertheless with considerable charm, is an undertaking
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that there will be an amendment in the spirit of the one now before the House but with certain structural defects remedied? If that is the assurance that the noble Lord the Minister is giving to the House, it might help us all, including of course, the noble Baroness.
Lord Elton: My Lords, I am grateful for the way in which the noble Lord describes my manner; he has also got my intention right.
Baroness Faithfull: My Lords, as the intention is right—and I am grateful to the noble Lord, Lord Mishcon, for clearing up the point—I hope that my fellow workers on the All-Party Penal Affairs Group would agree that I should withdraw the amendment until the next stage. My Lords, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 9 not moved.]
5.34 p.m.
Lord Hunt Lord Hunt moved Amendment No. 10:
Page 12, line 11, after ("or") insert ("(where the offender is aged 17 or over)").
The noble Lord said: My Lords, I spoke to this amendment when moving Amendment No. 7. Those of your Lordships who were in the House when the debate took place on that amendment will not wish me to rehearse the case for this amendment again. The Minister, in his usual charming and extremely clear way, responded to the points that I made in favour of that amendment, which are the same as those which relate to Amendment No. 10. Those of your Lordships who were here will have heard him, and I am sure will not wish the Minister to repeat all the arguments against Amendment No. 10.
Your Lordships will be well aware that the Division on Amendment No. 7 ended in a draw: 83 were content, and 83 were not-content. Emboldened by that result and in the hope that, maybe impressed by that outcome, at least one or more noble Lord opposite or on my left will take the plunge and have the courage to come across into the Content Lobby, there will not be a "but" in this case, because I propose to press the amendment to a Division. I beg to move.
Lord Elton: My Lords, if it is the noble Lord's intention to divide the House and silence any criticism of the amendment, at the same time forfeiting any defence of the amendment, then I am not sure that that is within the power of the noble Lord to achieve. I must repeat to your Lordships that there are cogent reasons why the first amendment was not agreed to with a majority of this House, and that is the only way in which it can be agreed to. The noble Lord has now cut off the pair of legs at one end of the table and is expecting us to address ourselves favourably to the others. I think that the table would stand flat if we cut the legs off at that end too.
Lord Mishcon: My Lords, perhaps I may help the noble Lord with a different kind of surgery. Having seen that, indeed, on the last occasion this was not completely cured by the doctor who was trying very

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hard to cure it, is he not prepared himself to look at the way in which the doctor managed to look after the patient and help that patient by agreeing that a dead heat on a matter of this importance obviously necessitates that the Government very seriously rethink the whole matter?
Lord Elton: My Lords, the noble Lord, who is intending to be helpful, places me in a very difficult position. I shall read the debate with the greatest care and I shall also read the Division List with the greatest care. In the light of that, I will consider what has gone before. However, the fact remains that we have discussed the merits on one occasion. Your Lordships have shown that you very nearly agreed with the noble Lord and that you very nearly agreed with me and that actually you were equally divided. But, if the noble Lord, Lord Mishcon, is asking me to bring an amendment to the House at Third Reading, then that is something which, at this short notice and without debate of this amendment, I could not undertake. I can undertake to read what the noble Lord, Lord Hunt, and others have said in moving exchanges, to see whether there is anything I can do in order to go some way towards what he wants. But, on the basis of the Division as it was, it is not something as regards which I can undertake to come back with an amendment.
Lord Hunt: My Lords, I should like to begin by apologising to the noble Lord, Lord Elton, if I have pre-empted his opportunity to speak against this amendment. I realise that I was too precipitate in that regard. I should have listened to him and invited him to reconsider the opposition he had put forward to it when I was speaking to this amendment while moving Amendment No. 7. I am very sorry about that indeed.
I would point out to your Lordships that there is an essential difference, in that we are talking now about 15-and 16-year olds who are sentenced to detention centres rather than to youth custody centres. Therefore, although the principle is exactly the same, the issue is, in that respect, different. I have every intention of testing the view of the House on the proposal in the Bill for the power to be given to the Secretary of State to require that even a few 15- to 16-year old boys should, when given a detention centre sentence, serve it in an adult prison. The conditions are such that I need not repeat them again; they have been aired extremely fully. It is totally and absolutely wrong in principle. It is very important that we should have yet another go to spare at least those who are given detention centre sentences, as distinct from those given youth custody sentences, the ignomony and the damage that would be done to them by serving in an adult prison.
Lord Elton: My Lords, with your Lordships' leave—because we were discussing whether the amendment should be put; we have now decided that it should be put, and the noble Lord has said that there are arguments in favour of it—I shall also be brief. People are apt to dismiss as irrelevant or bureaucratic arguments of administrative convenience. All I want to do is to put a gloss on what I said before—that
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when the time of prison officers is taken up in an operation of this kind, which is of marginal benefit and which is sometimes contrary to the interests of the people caught up in it (sometimes it is a considerable period of time extending over a number of days), and when you take these people away from their normal duties, somewhere else in the prison system someone is locked up for 23 hours a day who might be out doing other things under supervision. That is what I was trying to say. I shall not wax eloquent—if I am eloquent—at greater length on other points. I take the emotive question of the mental stress in good part; I recognise it. But when you come to the individual cases, as I have already sought to describe, I think you do little or no good to the individual concerned and you do a great deal of harm to somebody else somewhere else who has to sit behind bars for 23 hours in the day instead of having association or going to a workshop. That is the nub of the matter.
Lord Harris of Greenwich: My Lords, with great respect to the Minister, that is not at all a satisfactory answer to my noble friend Lord Hunt. Prisoners will continue to be locked up 23 hours out of 24 whether or not this amendment is passed. That is the fact, as I am sure the noble Lord, Lord Elton, will be the first to agree. The difference that would be made in terms of lessening the pressures on prison officers has, I think, been considerably overstated by the noble Lord. I certainly recognise the problems of management, which the noble Lord, Lord Elton, put earlier. He certainly has a case there.
But I am bound to say that when he starts using arguments about people being locked up 23 hour out of every 24, he knows perfectly well that in all the local prisons of this country that is exactly the régime that exists. I know that he has visited a number of prisons since he went to the Home Office and took charge of the prison department. He, like me, has seen the conditions in which children are kept in custody. They are, in fact, wholly deplorable. They create great anxiety for the prison officers. I am sure the noble Lord will agree with me that when one is talking about the attitude of the prison service, prison officers are often deeply concerned about the conditions in which children of this age are kept in custody.
I put it to him that on an issue where the House has been evenly divided it is right for him—I hope—to get up and say that he is prepared to reconsider this matter as a question of substance before the Third Reading of this Bill. I think that it would be most unfortunate if we took a marginal decision one way or the other on this matter. It seems to me perfectly reasonable to ask the noble Lord, Lord Elton, to discuss the matter with his right honourable friend the Home Secretary, pointing out to him that, on the last occasion the matter was put to the test, the House was evenly divided, and on that basis, before the Third Reading, to reconsider whether he can meet the wishes of at least 50 per cent. of the House.
Baroness Macleod of Borve: My Lords, before the noble Lord sits down, I wonder whether recently he has visited many children's custodial establishments. At those that I have visited, although they have been

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locked between large dormitories, they have been outside kicking balls about. They are not being treated as prisoners in any way. They are taken out of society because of the way in which they behave in society. They are not locked in small rooms for 23 hours a day, as are some of the adults. I think that, inadvertently, the noble Lord might have given the House the wrong impression.
Lord Harris of Greenwich: My Lords, with great respect, with the leave of the House, perhaps I could answer that point. I have, indeed, visited a number of such establishments in the recent past. The conditions to which I referred reflect the general situation prevailing in local prisons; and some of the problems attendant on this situation of over-crowding, in fact, put the position of the prison service in a great deal of difficulty because it then has to deal with the problem of looking after teenage prisoners of this kind. It is that to which I refer.
Of course, the prison service does everything it can to minimise the damage being done to children who are being kept in adult prisons. The point which I was making in answering the noble Lord, Lord Elton, was that he appeared to be implying that in some remarkable way we were discussing whether, in fact, prisoners were or were not to be kept locked up 23 hours out of every 24. That is the situation which exists now in local prisons, and it will continue, whether or not this amendment is passed.
Lord Elton: My Lords, at the risk of annoying your Lordships by asking your indulgence a second time for speaking more than once, I do not wish to appear curmudgeonly about this. I recognise the narrowness of the Division and I have already said that I shall look at this very carefully. I cannot anticipate the result of that look. I cannot say to your Lordships that, as we are exactly evenly divided on this, I shall come back with something which will satisfy one 50 per cent. rather than the other. But if what the noble Lord, Lord Harris, said accurately expressed what the noble Lord, Lord Hunt, thinks about this, I am perfectly willing to consider the whole of this debate and the Division List, and the debate that produced that Division List, with my right honourable friend before the Third Reading to see whether, in the light of that, there is a new positon that we could take. If that is of assistance to the noble Lord, I am very happy to offer it to him.
Lord Hunt: My Lords, the noble Lord the Minister has spoken with his usual courtesy and I have a very high regard for his sincerety in this matter. Undoubtedly, I can confirm that what my noble friend Lord Harris has said accords with my own feelings on this matter, and I can also say to the noble Baroness that I, too, have visited adult prisons and have seen 15- to 16-year-olds incarcerated in them. I confirm what the borstal and prison governors branch of the Civil and Public Servants Association has written, which I have quoted to your Lordships. So I know the conditions.
In view of what the Minister has said, I shall not press this amendment to a Division. I shall await hopefully—although he has not been able to offer the House
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much hope—the outcome of his deliberations in the Home Office between now and the Third Reading. Depending on what he is able to tell me between now and Third Reading, I shall stand ready to put both these amendments down again at Third Reading. On that basis, I beg leave to withdraw the amendment
Amendment, by leave, withdrawn.
Clause 15 [Release on licence of young offenders]:
5.48 p.m.
Baroness Birk Baroness Birk moved Amendment No. 11:
Leave out Clause 15 and insert the following new clause:
Repeal of s. 60(5A) of Criminal Justice Act 1967.
("15. Subsection (5A) of section 60 of the Criminal Justice Act 1967 shall cease to have effect.").
The noble Baroness said: My Lords, this amendment, again, deals with young people. It sets out to make the length of licence for those young offenders released on parole the same as for adults. The licence would then end at the remission date. A similar amendment was moved in Committee by my noble friend, Lord Elystan-Morgan but it was late at night so it was withdrawn in order that it could have a better hearing and airing at this time of the day.
In general, distinctions between young and adult offenders are—and I think quite rightly—made with the intention of benefiting the younger offenders. However, the present parole arrangements have the opposite effect and they can, in fact—and, indeed, they do—put young offenders in a worse position than adults in similar circumstances.
The Bill—and one must be fair here—improves on the existing arrangements under which parole for young offenders extends to the latest date of release rather than the remission date. However, we feel very strongly that it does not go far enough.
Therefore, a young offender released on parole could still be subject to licence and, therefore, to recall for a longer period than an adult serving the same length of sentence. This seems to us to be unfair, and it also sets up a great deal of bitterness and ill feeling. It also means that the young offender who is subject to recall is liable to spend a longer period in custody as the unexpired part of the licence will be longer. This amendment would remove this anomaly and the potential for a serious injustice.
Parole, as it is framed at the moment, is only available to those serving over 18 months. All young offenders serving shorter sentences will be related on licence, under Clause 15, on their remission date. For a breach of licence a court may fine them up to £200 or impose up to 30 days custody. Those serving less than nine months will be on licence for three months; those serving from nine to 18 months will have licences between three and six months.
If the Bill is amended, some young offenders released on parole will then have shorter licences. For example, someone serving two years and released at 12 months will have four months' licence. However, this will be a parole licence carrying recall either by the Secretary of State or the courts and with the sanction of longer periods in custody. Therefore there are ample safeguards for anyone who offends while they are on parole. Without the amendment those young offenders

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will face longer periods on the parole licence, which carries a greater sanction, than other young offenders who have spent less time in custody.
At Committee we felt that the Minister, Lord Elton, when he spoke of the value of a period of supervision following release—which we accept, and it is absolutely right—minimised the important differences between a parole licence and normal supervision on release, which are two quite different things. Under a parole licence there is an expectation of much more stringent and frequent reporting to the probation officer, and throughout the period on parole the offender remains liable to recall to prison. This is a very real sanction. We believe that there should be parity between adults and young offenders and that young offenders released on parole should not be at a disadvantage in comparison with adults. We also believe that this outweighs any inequity that would be created between young offenders.
There is a further point. The Minister has on many occasions, and no doubt will during the passage of the Bill on Report, refer to the question of resources, whether financial or resources of personnel. Without this amendment this Bill adds to the burden on probation officers, which must mean extra demands on the people available and also extra demands on finance. Therefore, as well as doing something that is equitable and wanted by probation officers and other people who are concerned with the licensing system in this area, the amendment would also reduce—and this is extremely important—the demand on resources, and do it in a good cause. In other words, it would not be trying to reduce resources by cutting corners but by doing something which is badly needed. I beg to move.
Lord Donaldson of Kingsbridge: My Lords, the arguments have been fully deployed by the noble Baroness on the Opposition Front Bench. Beyond adding that the National Association of Probation Officers are keen on this I will say no more than that I support the noble Baroness fully.
Lord Elton: My Lords, in Committee I set out quite fully the reasons why the Government cannot accept this amendment. They were, I think, fairly substantial. The argument put forward in support of the amendment was simply that young offenders should be treated in the same way as adults. My Lords, I certainly agree that young offenders should not generally be denied any advantages which adult prisoners enjoy. That is why parole will be available for those serving youth custody. But it is not always and invariably possible to achieve exact parity because young offenders do not serve the same sentences as adult prisoners. The crucial difference is that when young offenders are released from custody, they are all under supervision. Adult prisoners are not. The arrangements we make for young offenders on parole must take account of what happens to young offenders who are not released on parole. That is what the present parole provisions do and that is what we are doing in Clause 15.
The general rule we introduce in Clause 16 is that all young offenders will be supervised until the date
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on which their full sentences would have expired. That can be called the "remission period". The period of supervision is therefore related to the length of the sentence but with a minimum of three months and a maximum of 12 months. We do not, however, intend that this new arrangement should interfere with a young offender's chances of being released earlier on parole. At present, young prisoners are eligible for release under the parole arrangements in the same way as adult prisoners. The only difference between the two categories is that the parole licence of a young offender runs until the end of the full term of his sentence. The parole licence of an adult is shorter. It runs until the two-thirds point of his sentence. That is the date on which he would otherwise have been released without, of course, any supervision.
This amendment to Clause 15 would abolish the existing differences between adults and young offenders released on parole. The Government intend to retain it, because it balances the general principle underlying the custody and supervision of young offenders. In general, offenders released under Clause 16 will spend two-thirds of their sentences in custody and one-third under supervision. Those released early on parole under Clause 15 might spend one half of the sentence in custody and one half on licence under supervision. That means that there is some equality of treatment as between young offenders as a class, and that is the Government's aim. If this amendment were to succeed it would make a severe inroad into this general approach to young offenders. It would also introduce a dramatic difference to the way we treat those who are released on parole and those who are not. The Government regard that as highly undesirable, and I must ask the House to reject this amendment.
Lord Elystan-Morgan: My Lords, we on these Benches are deeply disappointed that the noble Lord has taken so rigid a line in relation to this matter, an attitude which is markedly different from that taken by his honourable and learned friend the Minister of State in another place who, at Committee stage, was prepared to give the matter further consideration. The basic point has been avoided by the Minister. It is not a question of giving young offenders the same benefits as older offenders. The basic point is that a young offender is on risk of recall for a longer period. He is on risk of recall to the end of his sentence, whereas the older offender is on risk only to a point in time two-thirds through his sentence; that is, the first release date. That is the difference. It is a difference that has not been justified, either today or on the earlier occasion on, I think, 28th June, when we last debated the matter in Committee. No cogent argument has been put forward for that distinction.
Baroness Birk: My Lords, my noble friend Lord Elystan-Morgan has answered the Minister's reply. He is right when he says that no real answer has been given. The noble Lord still appears to have overlooked the difference which we both stressed, between being on a licence of parole or being under supervision under a supervision order. There is a strong element of unfairness to the young offender in the way the system is

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working at the moment, even with the changes that have been made in the Bill up till now.
However, at this stage I do not think there is much point in pressing it to a Division. I should like to see exactly what the Minister said and read that in Hansard, and reserve our position until Third Reading. I do not know whether in between the Minister will be able to help me by letting me have any figures on how this works and how it affects a number of young people. I think it could be a considerable number of young people who will find themselves at fairly quick recall to prison and who, as my noble friend said and as I said at the outset, will be punished more severely than older offenders, and there does not seem to be any rhyme or reason for it.
I do not accept the argument about supervision because it is an entirely different sort of supervision. As has been pointed out, the type of supervision when one is on licence under parole is much more stringent than under a supervision order. Although the Minister's reply was completely unsatisfactory, at this time of the afternoon we had better leave it and move on, so I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 16 [Supervision of young offenders released otherwise than on licence]:
6.1 p.m.
Lord Elton Lord Elton moved Amendment No. 12:
Page 14, line 23, leave out ("A") and insert ("Subject to subsection (8) below, a").
The noble Lord said: My Lords, it might be to the advantage of the House if I spoke also to Amendment No. 14. The Government have tabled these amendments after giving further thought to a point which the noble Lord, Lord Donaldson, raised in Committee. He was concerned about young offenders who were under supervision after being released from custody and who, under Clause 16(6), were given a short custodial sentence for being in breach of that supervision. That short custodial sentence would, as the Bill stands, itself attract a further period of supervision. The Government are persuaded by the arguments which the noble Lord put forward. There is the possibility that a young offender could be caught in a long cycle of custody, supervision, breach, yet more custody and more supervision and a further breach, and so on. The effect of our two amendments to Clause 16 is to prevent that.
If a young offender is in breach of supervision, he can be given a short custodial sentence. The penalty for the breach will not itself carry a further fresh period of supervision. This seems on reflection to strike the right balance. It is in general desirable that young offenders should have the benefit of supervision after serving a custodial sentence and that the supervision should be proportionate in length to the time spent in custody. But where custody is imposed becuase of a serious breakdown in supervision, it is less profitable to impose a new period of supervision. The original period of supervision should, however, continue to run. It would be undesirable for an offender to be able to
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cut short his supervision liability as a result of a breach. The Government amendment makes this clear.
There are other detailed points which have led us to table our own amendment in preference to that tabled by the noble Lord, Lord Donaldson. The Government amendment makes it clear that the new exception for sentences imposed for an offence under subsection (6) is to prevail over the general rule in subsection (1) that any custodial sentence carries with it a liability to supervision. More importantly, the Government amendment makes it clear that where an offender is dealt with for breach of supervision at the same time as for a further offence, and receives a custodial sentence in respect of both, it is only in respect of the custodial sentence for breach of supervision that no further supervision arises. Suppose an offender receives a sentence of 12 months' youth custody on re-offending. It would surely be wrong to deprive him of the advantages of supervision to help him resettle after several months in custody merely because he had committed a serious breach of the period of supervision following his first custodial sentence. I hope your Lordships will agree to the amendment and that I have in fact made clear the distinction between the two classes.
Lord Donaldson of Kingsbridge: My Lords, I am most grateful to the noble Lord. My gratitude is slightly tinged with disappointment because I had prepared a powerful short speech, and it was not until I read Amendments Nos. 12 and 14 that I realised there was nothing to say, except "Thank you".
On Question, amendment agreed to.
[Amendment No. 13 not moved.]
Lord Elton Lord Elton moved Amendment No. 14:
Page 15, line 23, leave out from beginning to ("of") in line 24 and insert—
("(8) A person released from a custodial sentence passed under subsection (6) above shall not be liable to a period of supervision in consequence of his conviction under that subsection, but his conviction shall not prejudice any liability to supervision to which he was previously subject, and that liability shall accordingly continue until the end").
The noble Lord said: This is consequential, my Lords. I beg to move.
On Question, amendment agreed to.
Clause 18 [Attendance centre orders]:
Baroness Birk Baroness Birk moved Amendment No. 15:
Page 17, line 6, at end insert ("where the offender is under 17 years of age, or 36 hours where the offender is under 21 but not less than 17 years of age.").
The noble Baroness said: This is concerned with attendance centres, my Lords. Clauses 17 to 20 deal with this subject, and some changes, which have been beneficial, have been made. This is in the nature of a probing amendment and if the information we are given supports the need for an amendment such as this, hopefully the Government will see it that way. The attendance centre provides a useful form of punishment, being midway between a fine or community service and a detention centre, and it is believed by some people, particularly the Justices' Clerks' Society, that there is a case for increasing the maximum number of hours that can be ordered for a senior attendance centre. At present, someone aged 17 and under 21

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can be ordered to perform community service of up to 240 hours, but can be required to attend an attendance centre for only 24 hours. The amendment proposes that the maximum period of attendance at a senior centre should be increased to 36 hours, bringing the period nearer to the lower limit of 40 hours for community service.
There is no question of wishing to add any draconian factors to attendance at an attendance centre. If it were thought that by increasing the maximum—obviously it does not have to be given every time—fewer people would go to detention centres or to some other form of custodial service, then in those circumstances it might be worth considering. On that basis, by extending the hours that can be spent at an attendance centre, we may encourage benches to use the attendance centre more frequently than is presently the case, or to use it for offences for which at the moment they may think the maximum is too low to deal with a particular offence. It is really in that spirit, rather than wishing to press hard on the amendment, that I move it.
Lord Elton: My Lords, I am grateful to the noble Baroness for the opportunity provided by her amendment to say a few words about the development of senior attendance centres. As was indicated in the White Paper on Young Offenders, the Government are extending the provision of attendance centres for young men aged 17 and under 21. In 1979 there were only two. There are now 14, including one which opened at Middlesbrough last Saturday, 17th July. At all these centres the usual duration of a session is three hours, which means that a young man undergoing a 24-hour order (the maximum a court may impose under existing law, and the Bill as drafted) must attend on at least eight Saturdays to complete the order. The effect of enabling courts to make orders for up to 36 hours, as proposed by the amendment, would be to require a young man to attend the centre on a minimum of 12 occasions. For young men of the age in question, at least 17 and under 21, the longer order would be compatible with the aims of the attendance centre order as we see them, which are to vindicate the law by imposing loss of leisure and to teach offenders something of the constructive use of leisure. The noble Baroness said it was a probing amendment which she would not push too hard. I hope I do not astonish her by opening the door against which she is pressing because I am disposed to accept the amendment.
Lord Harris of Greenwich: I welcome that, my Lords. For some time it has been regarded as rather unfashionable to have senior attendance centres but, speaking for myself, I thought the decision of the Government is this respect was very sensible. I has an opportunity of visiting one of the two centres which existed before the present Government came into office. The centre was in Greenwich, and was run by officers of the traffic branch of the Metropolitan Police. I thought that it was run with a high degree of efficiency, and, what is more, having visited it, I had no doubt that the kind of young men who were sent there would otherwise in many cases have attracted custodial sentences. I was agreeably surprised at
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the kind of risks—they were risks—which the court ran when making the attendance centre orders. I repeat that I consider that the senior attendance centres have a useful role, and I very much welcome the noble Baroness's amendment, as well as the fact that she is pushing at what is at least an opening door. It is with pleasure that I support the amendment.
Baroness Birk: My Lords, I am very grateful to the noble Lord, Lord Harris, not only for his support, but for his enabling me to recover from my surprise; pushing the opening door had knocked me backwards. I am also grateful to the Minister. I hope it will be realised that the maximum number of hours is not the same as the normal number, and that the amendment will prove to be a constructive move towards keeping at least some people out of custodial care.
On Question, amendment agreed to.
Clause 21 [Requirements in supervision orders]:
6.11 p.m.
Lord Elton Lord Elton moved Amendment No. 16:
Page 21, line 10, leave out ("aggregate of any periods specified in") and insert ("total number of days in respect of which a supervised person may be required to comply with").
The noble Lord said: My Lords, in speaking to this amendment, I shall with the leave of your Lordships, speak also to Amendments Nos. 17 to 22, and Amendments Nos. 23 to 30. I understand that there is another amendment, No. 22A, that has slipped in between the two series of amendments, and I do not wish to address myself to that particular amendment in the same terms as I address myself to the other amendments.
This amendment—or set of amendments—gives effect to the Government's decision to add to the requirements which the court may impose in making a supervision order. As I indicated to your Lordships during the Committee stage, this follows consultations arising from the consideration given in another place to the proposal for a curfew order. I must admit that this battery of amendments has a rather daunting appearance. Much of it arises from the need to reframe Clause 21. Clause 21 amends Section 12 of the Children and Young Persons Act 1969. That is the section which provides for requirements to be attached to supervision orders. The essence of these amendments is set out in paragraph (aa), which amendment adds to subsection (3C). This empowers the court to add a requirement when it imposes on an offender under 17 years old a supervision order to the effect that he must stay at home during specified night hours. Hence the description "night restriction" which subsection (3CA) adopts, and which I hope your Lordships will find preferable to the description of "curfew order" which we have used in the past.
Since the requirement is complex, perhaps I should first summarise the new provision. It will enable the court, after consultation with the supervisor, to require the young offender to remain at home for up to 10 hours, between 6 p.m. and 6 a.m., on up to 30 nights during the first three months after the supervision order is made. As I say, there is a requirement to consult the supervisor. Secondly, there is a requirement to

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obtain the consent of the young offender, or, if he is under 14, that of his parent or guardian. Thirdly, there is a requirement to obtain the consent of the parent, or guardian, or other person with whom the young person lives. Where appropriate, the night restriction may apply to more than one place; nor will the young offender be confined absolutely to his home, even during those hours. He will be able to leave it if he is accompanied by his parent, or guardian, or his supervisor, or by someone else specified in the order. Those are the restrictions and limitations on the order, and the exceptions to it.
Let me now turn to the value of the new provision. The supervision order is designed to enable a wide range of young offenders to be dealt with in the community. Clause 21 is designed to provide a framework for extending the use of intermediate treatment. It enables requirements covering programmes of activities to be written into the supervision order. Under subsection (3C)(b) it also enables the court to require an offender to refrain from certain activities. This is the "negative" requirement which we discussed at the Committee stage.
The night restriction builds on that. To those who doubt the principle, I would say that difficult young offenders, even those under 17, cannot be dealt with merely by being assisted. They have to be taught to refrain from unlawful activities. It may be necessary for the supervision order to encompass that restraint. We are all agreed that taking away young offenders from home and putting them in custody, or residential accommodation, should be avoided wherever possible. This power is designed to enhance the strength of the supervision order to achieve that objective. The courts must have confidence that there is a reasonable chance that a young offender who has committed a serious offence will not continue offending with impunity if he is not put into residential accommodation. They must feel that the imposition of a supervision order is compatible with their public duty.
Where a young offender is in the habit of spending his evenings out on the streets getting into trouble, courts have to find a satisfactory way of seeing that he does not just go on getting into trouble. Custody has many disadvantages, but at least it promises that much—it keeps the offender off the streets at night. If the court is to consider a supervision order seriously, the possibility of adding a requirement that the young offender shall not go out of an evening and will therefore be restrained from getting into trouble will add a considerable degree of extra confidence. Without that confidence a custodial sentence will look far more attractive than we should like it to be. Our original proposal was aimed at this problem, but it attracted widespread criticism. It was precisely for that reason that the Government consulted widely on the new proposal. We believe it in its revised form to be a modest, but nonetheless very useful, strengthening of the supervision order, and it is on that basis that it must be judged.
Our consultations with the Magistrates' Association made it clear that the night restriction will be widely regarded as a useful addition to the powers available to the courts, and there was fairly general agreement that to put it within the framework of the supervision
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order was a considerable improvement on the original proposal for a free-standing curfew order.
The notion of a "contract" within the supervision order is well established. It may involve regular time-keeping. The Medway scheme is a well-known example of the use of that kind of approach. The value of such a requirement as part of a package of positive and constructive activities carried out under a supervision order was noted in the comments made to us by both NACRO and the British Association of Social Workers. Certainly the latter organisation did not favour a statutory basis for the order, but it is clear that the courts would have more confidence in a supervision order made with the backing of legislation, and in which the courts themselves would be involved, rather than in one made informally by agreement with the supervisor and the young offender.
I do not seek to play down the fact that there are substantial reservations about the proposal, nor that some bodies have expressed outright opposition. The National Association of Probation Officers and the National Intermediate Treatment Federation both oppose it. They and other bodies have clearly given careful consideration to the issue. We are grateful for the trouble that they have taken.
Your Lordships will, quite rightly, expect me to explain why, having studied carefully the comments put to us, we nevertheless think it right to go on. One of the principal fears expressed about confining a young offender to his home is that it may impose an unbearable strain on relations between parent and young person; and those relations may already be precarious. In particular, the inappropriateness of such a requirement where the young offender comes from a single-parent family living in deprived circumstances has been widely emphasised. The Government accept that.
To say that the requirement, like many another power available to the courts, is inappropriate in many, or even in most, circumstances is surely no argument for not making it available for those cases where it is appropriate. Where a conscientious parent is striving to control a difficult adolescent, the authority of a court order in the context of supervision with the support and assistance of a supervisor and the backing of sanctions, can make a real contribution in reinforcing that authority. At best, it can take the resentment out of the situation—the resentment, I mean, of the rebellious youth for the parent's assertion of authority—because the authority of the parent has been not so much reinforced as overtaken by the authority of the court. It is an endorsement of father's stand, if I can so put it. If the resentment does not go, at least it is transferred outside the home to the court, which stands behind the supervisor as well as the offender; and if there is no authority in the home, or very little, then this is the addition of a stabilising influence to a precarious situation.
Lord Harris of Greenwich: My Lords—
The Deputy Speaker (Baroness Wootton of Abinger): My Lords, the Question is, Whether Amendment No. 16 shall be agreed to?
Lord Harris of Greenwich: My Lords, may I ask

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the noble Lord a question? I did not want to interrupt him, because he was developing his argument. He very fairly mentioned that two of the organisations he had consulted had come out against this proposal, and he mentioned the Magistrates' Association, which had in fact endorsed it. Given the fact that in a Written Answer to me the other day he indicated that a very large number of organisations had been consulted, I wonder whether he could assist the House by telling us whether any organisation other than the Magistrates' Association has in fact supported this idea.
Lord Elton: My Lords, we had reached, not the end but an interesting caesura in my speech, I regret, and I apologise to the noble Baroness on the Woolsack that, perhaps because this is an important issue, I had spoken at greater than usual length, and in my sitting down she understandably hoped that I had finished, but I fear I have not. Perhaps I may return to my muttons and deal with the noble Lord a little later.
The role of the supervisor in all this is clearly crucial. The implications of the requirement for the supervisor's relationship with the young offender is an issue which has attracted a good deal of comment. It is suggested that the restraint which the requirement to be at home during certain hours involves will conflict with the relationship of support and trust which the supervisor has to seek to build up with the young offender. That relationship is of fundamental importance. Of course, the requirement of the restriction order cannot work unless its validity is accepted. That is why it is right that the young offender must consent to it. That consent is now built into what we propose. Without it there can be no order. But once that crucial element is secured, we see no reason why that requirement should underline the relationship between the supervisor and the young offender more than any other.
The element of enforcement which the night restriction will place on the supervisor is nothing new. All the rules to which the young offenders must conform while under supervision are already backed by the sanctions available on breach. It is part of the supervisor's duty to enforce the requirements. He brings the young offender back to court where this is necessary to deal with a breach. The crucial consideration is that the night restriction should be a part of an appropriate response to the young offender and his offending, secured with his own consent and that of those in natural authority over him.
There is, I know, concern about enforcement. Of course, guaranteed watertight enforcement, with no possibility of evasion, cannot be secured. That is unobtainable in many respects of the context of dealing with offenders in the community. But that does not render the requirement ineffective in this case any more than it does in others. In the context of the relationship between supervisor, parent and the young offender, the restraining sanction of the court order can be an effective support; a sort of sea anchor in troubled waters.
Thus, my Lords, we believe that the night restriction is a constructive addition to the supervision order power. It is a constructive supplement in those
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cases where the court is dealing with serious offenders who need to be restrained from getting into trouble and where family circumstances make it possible to do this in the context of supervision in the community.
I have already made it clear why the Government do not agree with those who oppose the concept in principle because they consider that it conflicts with the supervisor's role of assisting young offenders. To those who do not oppose it in principle but who do think that such a restriction should be left to private agreement between the supervisor and young offender, I would say this. It is the courts that have to decide what response should be made to each offender who comes before them. They make the supervision order. We want them to prefer supervision to custody. I believe your Lordships do as well. The principle behind the whole approach which this Bill adopts to the strengthening of the supervision order is that the courts should be more involved in the process of deciding what is the right response to each offender and each offence. That is right in principle. It is also desirable in practice, since the courts will not make supervision orders if they lack confidence in them.
There is talk of the contract between the supervisor and the young offender. The strengthened supervision order provisions give the courts their place in drawing up that contract. Deciding on proper cases for attaching the right restriction will depend on careful judgment of the circumstances of the offence, of the offender and of his home background. These amendments enable the courts to tailor the restriction to suit the circumstances of each case. It depends on close co-operation between the supervisor and courts in identifying appropriate cases and drawing up the appropriate requirement.
My Lords, the clause provides for proper consultations between supervisor and court. The court will be dependent on the supervisor for advice on the circumstances of the offender. The supervisor will be responsible for the supervision package. It is clear that the courts are bound to pay close attention to the advice they receive from the supervisor. We believe that the courts and supervisors can be relied upon to make proper use of the powers which the amendments propose. Against that background we consider them to be a valuable reinforcement of parental responsibility; and where there is hostility to them by the supervisor, the court will be steered by them. We believe that they are a valuable way of keeping young people out of custody. If that is what your Lordships also want—to keep young people out of custody—I ask your Lordships to put these amendments into the Bill.
The Deputy Speaker: My Lords, I apologise to the noble Lord for my premature interpretation of the conclusion of his speech. The Question is, Whether Amendment No. 16 shall be agreed to?
6.28 p.m.
Baroness Birk: My Lords, I rise to oppose the amendments that the Minister has must moved, not because I think the motivation behind them is wrong or bad; in fact, I think they are based on good intentions, but this is a case where good intentions, even those of

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the Minister and the Government, I am afraid, are not going to get us very far and are in great danger in fact of effecting exactly the reverse of what is intended. I agreed entirely with the Minister when he said that young offenders should be dealt with in the community. There are a variety of ways of doing that, and we would like to see these added to; but I do not believe that this is one of them. May I say that in addition to all the letters and pieces of paper flying around, which I think most of us have seen—and the majority are against this proposal; the Minister cited the Magistrates' Association, but I am afraid that stands out in rather lonely isolation as being in support of this particular measure—over the last few weeks, between Committee and Report stage, I have discussed this at considerable length with the magistrates on my own bench (a fairly large number; we are a large bench) and with the probation officers. One thing has emerged. Among all the magistrates—and we are a very varied collection of people, not only of different political parties but different in our approach to crime and sentencing; we are different people individually—there is not one who supports this approach or thinks that it can be made to work. This applies to the probation officers, too, who also have considered it very carefully and seriously.
I think that the reasons are quite clear. First, the Government are proposing something which is going to be unworkable. Let us consider that and not whether it is good or bad. What we are asking is that this curfew (or the different phrase that the Minister used) should be imposed on young people for this period of 10 or 12 hours and that this should be abided by. For this to happen it means that the young person has to be followed all the time; it has to be monitored. It means that either the police have to be brought in in order to help to effect it, to see whether it is working or not; or that without having a young person supervised almost like a captive for all that period, it is not going to be practicable with the resources available. If it is not going to work it will be brought into disrepute and it will become almost a game. They will say: "Don't worry about it. Accept the curfew! You will not have to worry about it. Unless you are very unlucky you will not be caught". A number of young people and their parents will accept this as being, as they see it, an easier way out. They may have the intention of trying to keep it but without the real motive of being able to keep it. That is the first point.
Secondly, I find it anathema to put something like this in a supervision order which, if it is to be successful, depends on a great deal of rapport and mutual confidence between the probation officer and the person for whom the order is made. Once you put in criteria like this—and later there is Amendment No. 22A dealing with a different area but it is the same principle of putting negative criteria in the order—then you immediately start destroying, before it has been able to be built up, the relationship between the probation officer and the young person. Thirdly, there are the parents. There may be parents who find it impossible to control the young persons certainly as far as keeping them in is concerned. They will do their best but will not be able to do it. They are brought into a situation where they are having to be in collusion with their own children in what would amount to breaking the law. If this were not a serious subject, the idea, when a
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young person goes out, of either a parent or guardian escorting him, would be ludicrous. It will not work. And what about the occasion when either the mother or father—and we have a great many single-parent families in the country today—say to the child; "Run to the corner and buy this or that". Either they do not think about it or they just feel that that does not count. Nevertheless, he would be acting against the order; he would be liable to be hauled in for that and would be in trouble about it.
Then there would be parent who would feel badly about this curfew. You are not by this going to turn a bad relationship (whether with the parents or whoever) into a good one by imposing something of this sort. Although the motives may be worthy, I think it would be disastrous if the Government pursued this course in the face of the tremendous amount of opposition across the board from every type of person who has any concern with young people and who feel strongly that this would not work. I hope that when the Minister and the Government take into consideration the effect on the young person, that it will not be practicable, that it will put a great burden on the parents many of whom will not be prepared to bear it at all and that it will turn the law into ridicule and destroy what could be a good supervision order, they will think again about it.
Lord Avebury: My Lords, I feel unhappy about this and I am reinforced in that feeling by the strength of the opposition against it. I think the noble Lord the Minister could have told us a little more. Many of us will have seen the paper which embodied the view of a great many responsible organisations: the Association of Directors of Social Services, the British Association of Social Workers, the Conference of Chief Probation Officers, the National Association for Care and Resettlement of Offenders—I will not read them all out because the Minister is aware of the generality of the opposition expressed. Although the present amendment is a great deal better than the original proposal in the Bill it does not take care of the objections voiced by the noble Baroness.
In Committee, the noble Lord, Lord Elton, said that the general reaction among the bodies consulted has been that although there are reservations and some opposition, a curfew requirement in a strengthened supervision order would be more constructive than a free-standing curfew order. But he did not say whether the question that was put to the organisations was whether they thought that this kind of provision was necessary or desirable. So much depends in consultation on how you put the questions, and perhaps the noble Lord may have misled himself in making the inquiries he mentioned.
I think that of the points which make me most anxious, one is that because the provision is, admittedly, very difficult to enforce, the young offender may be tempted to break it and thereby acquire a greater disrespect for the law than he had initially. I know the Minister will say that he has had to accept the order and agree to abide by it. But we are talking about a young person who is asked, when in a difficult position to say "No", whether he will accept the order. He says "Yes" at the time, thinking it will be easy to comply, but then afterwards he thinks it will be possible

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to slip out to a disco and nobody will know; and nine times out of ten they will not know. Then he discusses it with his friends and they all realise that the orders are not enforceable. Therefore I do not believe that young people will respect that particular aspect of the law and it will encourage them to a disrespect of the rest of the law.
Secondly, what are the parents expected to do if there is a breach? We are presupposing that relationships between the parents and the young offenders are reasonable. The noble Lord, Lord Elton, said that the courts will be well advised on these matters and will not impose requirements like this unless they think that the relationship is a reasonable one and that the parents can be expected to try to see that the child complies. Not only will it not turn a bad relationship into a good relationship, as the noble Baroness, Lady Birk, has said, but it will put under strain the good relationships which already exist, by inference because the order would not have been imposed if they were not there As soon as the offender breaks the requirement and goes out the parent is in the appalling position of having to decide whether to turn a blind eye and to keep on good terms with the young offender or to report to the supervisor that the order has been broken.
These are two of the main reasons why I think this set of amendments is not good enough and we should throw this particular provision out altogether. But there are so many others which have been dealt with comprehensively in the representations we have had from many national organisations with great experience that I cannot see that it would be wise for the Government to proceed with a proposal which apparently has the support only of the Magistrates' Association and none of the other professional organisations concerned in the field.
6.40 p.m.
Baroness Faithfull: My Lords, I oppose this clause and all these amendments both in practice and in principle. First of all, I absolutely agree—which makes it difficult—with the idea behind the amendments, which is to put family responsibility on to families. I know that this was the way in which the magistrates who recommended this amendment were thinking: that responsibility should lie with families for their children.
I should like to take up one or two points that my noble friend the Minister made. He said that he had consulted widely with a number of organisations. I decided also to consult widely. I rang up Lancaster Research Unit and they told me that of course they agreed with anything that kept children out of custody, but they did not think that this amendment would do so. This was their considered opinion. I have spoken to my former colleagues of the Association of Directors of Social Services. They also said that they would like to keep children out of custody but not this way. Strangely enough, when it became known that these amendments were likely to be put down, I had calls from magistrates saying, "We know that this was recommended by magistrates but we should like you to know that we do not agree". I said, "Why don't you consult with your Magistrates' Association?" But by that time it was too late. So, the people who
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are going to have to carry this out are the people who disagree with it.
My second point has already been touched upon: what goes on inside a family; what are the dynamics of a family? My experience is that it depends on good relationships in a family. Some children are of course naughty and they get into trouble. There are other children—and I am not saying that I am making an excuse for children—whose misdemeanours are due to very poor relationships within a family. Those relationships very often stem from poor conditions. Every time I look at a high-rise flat, I wonder how I should feel living at the top with four children.
Therefore, there is going to be an injustice done. Just take, for example, two children appearing before the court: one child has good relations with his family and his motivation for making the mistake that he did or committing the crime that he did, which he should not have done, was just sheer naughtiness, or perhaps weakness with the other boy. Another boy commits the same crime at the same time with the same boy but the relationships with his family are very bad. Therefore, what will happen? According to this, the boy with the good relationships will be given a night custody order; the other boy will be given a supervision or youth custody order, or whatever. In the eyes of the children this is unjust. Not only is it unjust for the children, but it gives the parent who is at fault a deeper feeling of guilt than ever before. That is saying something sometimes.
Therefore, the carrying out of these orders, as has been said by the noble Baroness, is going to be almost impossible. You are going to have confusion worse confounded where relationships are concerned within that family. It has been suggested to me by one father that if a night curfew were made on his son, he knows that he could not keep him in. He is going to buy nails and a hammer to hammer the door closed, so that he can keep the child in.
Lord Elton: My Lords, may I ask my noble friend whether, when she put that question to him, she said that it would be entirely up to him whether such an order was made?—because he would have to give his consent before it was. If so, what on earth was the point of the hammer and nails? Presumably he would not accept the order.
Baroness Faithfull: My Lords, may I thank my noble friend. I am coming on to that aspect. If you say to a child in court, "Will you accept a curfew", or "Will you accept night supervision?", the child will say almost anything. Although it has to be with approval and agreement, the child will not really know what is happening. May I say that it is always mothers who come to the courts and not fathers.
Lord Elton: My Lords, it is most kind of my noble friend to give way again. Either the mother or the father has to agree before the order can be made. The noble Baroness is suggesting that the parents would not agree.
Baroness Faithfull: My Lords, again may I say that there are many mothers who will agree to anything. They do not know what they are agreeing to, however

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carefully what is involved is explained by the magistrates and by the social worker. The mother will agree in court and when she gets home she has a frightful row with father who says: "If I had been there, I would not have agreed".
I know that this is only one option open to the magistrates and that a number of magistrates would not take it. The difference between town and country has to be considered. If a child lives in a cottage, with the fields beyond and a nice garden, it is probably possible for the night supervision order to be carried out fairly comfortably. The child can go into the garden and the garden gate can be locked, or whatever. But, imagine a single parent family with three children living in high-rise flats. I shall not name any area in London because that would be invidious; but I leave it to your Lordships' imagination. Therefore, there is a very different application between town and country.
May I speak on the question of contract? Those of us who are involved in intermediate treatment lay down on a voluntary basis a contract between the child and the parents and those running intermediate treatment. But it is one thing to agree in a social setting to a contract that you will attend an intermediate treatment centre and that you will be home at 10 o'clock at night—which is very often in the voluntary contract—and quite another thing to agree to a contract laid down by a magistrate in a court. That is where there is confusion; some people have said that they have agreed to the contract, the night supervision, when in fact many of us have carried out contracts with parents and children but in a social setting and not in the setting of the court. All the other points that I wanted to refer to have been mentioned. As a practitioner, I would say that this will be an almost impossible piece of law to administer, to administer well and administer wisely.
6.49 p.m.
Lord Campbell of Alloway: My Lords, may I say a word in favour of this amendment, and may I apologise for not having been able to be present when this part of the debate was initiated, because I was in the Temple. Of course, there is no easy answer, especially for those who have the job of sentencing. This was not made any easier by Dr. Beeching who, having been let loose on the railways and wrecked them, then was then let loose on my profession and did his best to wreck that, and certainly destroyed the sense of involvement between the old recorders and following up their sentencing policies, which in the days when I first sat, some 18 years ago, we always did. Now we sit anywhere, ad hoc, where we are sent.
The loss of this sense of involvement—personal involvement—with the probation officers, the police, and so on, makes it all the more difficult for us to do our job always as conscientiously as we would wish to do it. All developments in sentencing procedures are, and of their very essence and nature must be, experimental because we want to reach forward, we want to produce something better. Therefore, if I may say so with the utmost respect, for the noble Baroness, Lady Birk, to say that it is unworkable before it has been set to work is going a little too far. One really ought
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to put this experiment to the test to see whether it works before condemning it out of hand.
Baroness Birk: My Lords, if I may interrupt the noble Lord for a moment, would he, as a lawyer, not agree that there are many things on which there is plenty of evidence to show, as his noble friend has already pointed out, that it would be quite silly to have an experiment when all the evidence is against it? He must agree that is so.
Lord Campbell of Alloway: I am obliged to the noble Baroness, my Lords. Of course I agree; I agree that there are circumstances where the evidence is overwhelming and therefore the experiment should not be indulged in. I am trying to follow the intellectual analysis by which the noble Baroness put her case, that this experiment, which is what it is, is unworkable. In doing that I do not want to be side-tracked on to the path of my noble friend Lady Faithfull, because I do not accept her approach on this matter at all. The fact that we happen to sit on the same side of the House does not mean that I, from my experience or from the process of reasoning I have adopted, adopt what she has said at all. To deal with the intellectual analysis of the noble Baroness, which was tight and is something with which one ought to deal because it is a question of reasoning, she says it is accepted as the easier way out. That is true; it is. But surely it is better than the prison sentence which in practice, at this stage of the sentencing quandary for the judge, is usually the only other viable option.
Secondly, she refers to "mutual confidence destroyed". Why should it be? Now is not the time to argue in fine detail, but the mere assertion on one side or the other that confidence is destroyed or that confidence in not destroyed takes the argument no further. In my submission, there is no reason why it should be destroyed. Thirdly, on the problems of parental control, I am not going into the business of nails on the door and one thing and another. It is perfectly plain that there has to be a full measure of consent. True, I concede against myself that there are circumstances where there is a temptation for consent to be given because, as I have already said, the only viable option is the prison sentence. But one has to take the broad view and simply has to try—whether or not one succeeds is another matter—to instill a sense of responsibility on the part of parents.
For these reasons I would support my front Bench over this. I would support it with caution; but one does not have to be certain. This is an experiment which will do no great harm. If it is unworkable it can at some future time be dealt with; but to kill an experiment before it gets off the ground, especially in this sphere, would in my submission be most unwise.
Lord Hunt: May I intervene briefly in this discussion and take up the noble Lord, Lord Campbell, on his concluding words. It is my conviction—and I really am speaking with considerable knowledge of the probation service and of their national association—that this experiment will do great harm. It is axiomatic that the experiment is going to depend on the active and willing co-operation of the probation service, and I should like to say to my friends in the national association that whereas they do not always represent

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the view of probation officers working on the ground, in this case I am sure they do. I am sure that the great majority of probation officers will have a rooted objection to operating curfew orders. I realise the noble Lord, Lord Elton, may say, "In that case the curfew order will not be imposed". But I think it is a great pity to launch an experiment which ab initio one can say with strong confidence is opposed by those who have got to make it work.
I do not believe that the imposition of negative conditions into a supervision order, whether it is in parole or for other reasons, is necessarily a bad thing. I know this is unenforceable. I would repeat what others have said: that whatever may be agreed in the circumstances of a court is not a true test of what the young person or the parents really would accept if they were in a relaxed discussion working out a contract such as was mentioned by the noble Baroness opposite. Therefore, I am quite sure this is not enforceable. I am pretty sure that, being unenforceable, it would be breached; and I would forecast confidently that the breaches will do harm in terms of the young offender's respect, if he has any, for the law, because it will merely increase his disrespect or his contempt for the law. It will undoubtedly damage relationships with some parents, and the relationship with the probation officer, which is the most important element of all. I do not believe that relationship will be other than harmed by the imposition of a curfew order.
6.57 p.m.
Lord Wigoder: My Lords, this is a new, imaginative and constructive proposal. Therefore, like all good conservatives, I view it with considerable suspicion. My doubts arise because of the factor which has been referred to, though not directly in this context, that there are so many youngsters who get into trouble and who in fact come from homes where conditions are totally unsatisfactory—not always visible to the outsider, but nevertheless homes where there is marital discord and where there may be drunkenness and the pressures of poverty and squalor. It is precisely those children who get into trouble. I do not want to suggest that their domestic conditions are the sole, or even necessarily the principal, cause of their getting into trouble, but that they form a contributory factor I do not think can be doubted.
If we have a situation, which I believe is true, where a very large proportion of juvenile offenders come from unsatisfactory homes, the real effect of this provision is that it is going to be precisely those children who are going to be ordered to spend long hours in the homes from which they have been seeking to escape. I do not suggest, therefore, that the home conditions are going to get worse, but simply that the children are not going to put up with the restrictions imposed upon them. They are going to break them and they are going to do so on a substantial scale.
In that situation, the question then arises: how enforceable is it going to be? Of course you can enforce a military curfew without any difficulty: you merely order the troops to arrest or shoot on sight anybody who is out at night. But in these conditions the question really does arise: to what extent are
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conditions of this sort enforceable? I accept what the Minister has said, that no law is fully enforceable. Of course not. It is obviously a matter of degree. But if you conceive of the situation in which youngsters subject to this sort of order decide to go round to the local public house at night with some of their friends, and then ask whether there is even a remote possibility that breaches of these orders will be detected, I think the almost inevitable answer is going to be, "No". And if the answer will be, No, and the orders, inevitably, by their very nature, will be broken on a substantial scale, then there is something to be said for the views of your Lordships who have indicated that all this will achieve is still further disrespect for the law in the minds of those whom we are attempting to teach to respect and obey the law. I do not think that the arguments in this are all one way. In many ways, we are arguing in the dark. I accept the view of the noble Lord, Lord Campbell, that this is a matter where there is scope for a difference of opinion.
All I venture to say at this stage is that it is something that has been thrown up very suddenly, and very abruptly, in the course of the passage of this Bill. No serious research has been done upon it, and I should have thought it would be very wise, before we take a step which could have considerable repercussions, to withdraw this measure at this stage. It could then be seriously looked at and researched, in order that if the research looks hopeful it can be reintroduced at a later stage.
Baroness Macleod of Borve: My Lords, I am very sorry this evening to have to disagree with my noble friend the Minister, for the reasons that other noble Lords—in particular, the noble Lord, Lord Wigoder—have given. We are in danger of putting into a Bill something which a child will know is not enforceable. He will see to it that it is not enforceable because, as other noble Lords have said, a child, or the parents, will agree to anything in court, whether they are told to agree or are just persuaded, because they are given the problem of deciding what is to be done.
But I go one step further than that. I wonder in what circumstances this would be put as part of a supervision order. I have been trying to think of any reason, and the only one might be that, if a child was on supervision because he had behaved badly at a football match, he might be told that he could not go out at night to see another football match. But, after all, we also have it within the Bill—and it has always been part of the juvenile court's discretion—to make the parents enter into recognisances for their children's good behaviour to the tune of £50 or £100. In my view, that has always been a very useful part of sentencing.
I have to think of the one-parent family, perhaps the mother, bringing up a child and being out at work all day. She might want to go and have a drink at the pub. What can she do? She will have to leave the child by himself because he has to be at home, so she cannot supervise whether he is really at home or not. The local authority also come into this and, if they are responsible for a child, they will have to see that he is within the home in which they are keeping him during all the hours that the court has suggested.

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I put down a query as to whether it is worth trying, as the noble Lord, Lord Campbell, suggested. As a magistrate, I have not sat on a juvenile court for two years since I moved house. But I am not certain whether it is worth trying, much as I like to think that the Government are trying to do their very best, and I do not think that I can support this amendment this evening.
The Earl of Onslow: My Lords, there is one small point which I should like to suggest to your Lordships. At first, I thought "What a good idea to have a curfew. How sensible." But one has listened very carefully to the arguments, and one is persuaded that the points which are against it, such as unenforceability, probably make it unacceptable. I should like to suggest that this will introduce a certain amount of class feeling into punishment, in that a child from a middle-class home or a well-off home will be more likely to have a curfew order put on it, and the parents will have a greater ability to look after the child than one from a less well-off or less privileged home. If two children are going out to commit some "yobbery" and one of them comes from a bad or a poor home, and gets a more serious sentence than a child who comes from a better class of home, then there will be an air of injustice and privilege, which will do the law, and respect for the law, no good at all. Instinctively, I thought, "What a good idea". But, on listening to the arguments, I am not at all sure it is a good idea.
Baroness Masham of Ilton: My Lords, I should like to ask the Minister a question, and I apologise for the fact that I was not here at the beginning of his speech, I was trying to pay a call down the passage, which I failed to do. I should like to ask the noble Lord whether, before a curfew is imposed by a court, there will always be a social report, because nearly all the boys whom I see have worrying drinking habits, as well as home problems. One example is the broken home, where the mother has an "uncle" living with her. That is the term which the boys use for her lover, because they like to be respectable. So, often, there is frustration and disharmony between the lover and the son. Shutting them up with their frustrations might create a very great problem for the mother, who wants to keep her son from custodial treatment, as has already been said. If the curfew could take place by giving offenders evening classes with a probation officer or a youth worker until the pubs close, then I would support it.
Lord Harris of Greenwich: My Lords, I think on one issue we are all agreed; that is, that we want to do everything we possibly can to avoid children or adults being sentenced to a period of custody. Therefore, it is perfectly reasonable to look at what the Government have come forward with, to see whether this is a workable proposition. It turns exclusively on the issue of enforceability, and, initially, I certainly did not approach this issue as a dedicated opponent to the idea.
First, I should like to make one point in commenting on what the noble Lord, Lord Campbell of Alloway, said; and my noble friend Lord Hutchinson,
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with his very substantial experience, confirmed that this is correct. It is untrue to say that experiments of this kind have never been tried before. In fact, on a number of occasions, sentencing judges have discussed with probation officers whether some form of curfew is an appropriate way of dealing with the persons appearing before them and, invariably, the answer is, No. That guidance is given by the probation officers simply on the grounds that there is no way of ensuring that the curfew, as I like to call it, or the night restriction order, as I see it has now become, could be enforced.
With the noble Baroness, Lady Faithfull, with her very substantial experience as a director of social services, and the noble Baroness, Lady Birk, I have in the last few weeks discussed this matter with a number of organisations and a substantial number of magistrates. It is rare to find such unamimity. I have found no such organisation, with the exception of the Magistrates' Association, which has come out in favour of this proposal. All the others have indicated their opposition, or a very restrained degree of enthusiasm for this proposal.
That is borne out by what the Minister said earlier today, I reminded him that I had asked him a Question which he replied to by Written Answer on 7th July. I asked him which organisations the Government had consulted before putting down these proposals and he listed them in Hansard. I should like to remind the House of the names of those organisations, which were: the Association of Directors of Social Services, the Association of County Councils, the AMA, the British Association of Social Workers, the Central Council of Probation and After-Care Committees, the Conference of Chief Probation Officers, the Greater London Council, the Justices' Clerks' Society, the Magistrates' Association, NACRO New Approaches to Juvenile Crime, the National Association of Probation Officers, the National Intermediate Treatment Federation and the National Youth Bureau. I ask the Minister—no doubt he will give an answer to the question when he replies—which of these organisations, apart from the Magistrates' Association, have endorsed these proposals. I am bound to tell him that I know of no organisation, apart from the Magistrates' Association which has.
The views of the organisations can be fairly briefly summarised. The Minister referred to the British Association of Social Workers. Their comment was:
"We think it is likely that the responsibility for enforcement of a curfew requirement could cause considerable practical problems to supervising officers as well as damage their relationship with the young people concerned".
We then turn to the views of the National Youth Bureau, with their very substantial experience. They draw attention to the point raised by the noble Lord, Lord Avebury: what an intolerable dilemma the parents will face. After their child has agreed to the night restriction order—and they will do so for exactly the reason which the noble Baroness, Lady Faithfull, indicated; they will be fearful of the consequences of not agreeing to the night restriction order—what are the parents then to do? Are they going to collude with their child and not inform the supervising officer that their own child has breached the terms of the order, or are they going to inform the supervising officer? It will

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be an extremely difficult decision for the parents to make.
This brings me to the point made by the noble Earl, Lord Onslow. We are talking here about some of the most acutely disadvantaged children. They are exactly the children who appear before the courts. There are of course a number of children from middle-class backgrounds who find their way before the courts. For the reasons which the Minister indicated, these are the kind of cases which in some circumstances might attract a night restriction order. But in many cases there are grievously damaged personal relationships within the home and often that is precisely the reason why the child has come before the courts. It is because of a breakdown in family relationships. It seems to me to be quite clear, on the basis of what is contained in the Government's amendment, that these relationships will be even more acutely put under pressure if we pass these particular amendments.
I have one last point to make to the Minister. It relates to the parole scheme. As I think my noble friend Lord Hunt, would agree, panels of the Parole Board have on a number of occasions made all kinds of recommendations to the Home Secretary. They have recommended that special conditions should be attached to a parole licence. Sometimes because of a great problem which is perceived—that the offender concerned has a very substantial amount of drink abuse in his background or has consistently got into trouble in one particular area of the country—the recommendation of the panel of the Parole Board has been that special conditions should be attached to the parole licence: that he should not go to public houses or to a particular town. In every case, so far as I can recall, the view of the Home Office has been that these conditions are unenforceable. I was told on a number of occasions that there is no point in attaching unenforceable conditions to parole licences. I see the force and logic of that view but, that being so, I find it extremely difficult to understand why suddenly, when we are talking about juveniles, the unenforceable becomes enforceable. I very much hope that the noble Lord, Lord Elton, will address his mind to the matter and answer it.
In conclusion, although I am certainly in favour of a firm policy for dealing with the problem of juvenile delinquency, I do not believe that a firm policy for dealing with juvenile delinquency is aided by giving to the courts a power to make orders which are unenforceable. All that that does, I believe, is to bring our system of criminal justice into disrepute.
Earl Fortescue: My Lords, I should like to speak very briefly in favour of this amendment. I believe that it would provide a very useful non-custodial sentence which might be used on many children and many families but by no means all. It will be particularly useful in rural areas where no attendance centres are available. I would stress that obviously it will not be the right sentence for all children and all families. The courts will get reports on the children, their families and their background before they decide on such a sentence.
Turning to the question of its non-enforceability, I
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think exactly the same argument applies to a driver who has been disqualified from driving. One knows that disqualified drivers do drive from time to time and get away with it, but it is a serious offence and many of them do get caught driving while disqualified. A child who breaks its curfew may get away with it. If it does not get away with it, it is in for worse trouble. Breach of the order is another offence. It will be a deterrent. To sum up, I am all in favour of the amendment.
7.16 p.m.
Lord Elton: My Lords, your Lordships have asked me many questions. I shall not always attribute the question to the asker. Certainly the noble Lord, Lord Harris of Greenwich, was among those who were keenest that I should come clean—I do not know whether that is the right phrase—and should say a little more about what support and what opposition we have had to this requirement in our consultations.
It is very difficult to give a head count of pros and cons, given the nature of the consultation process and the nature of the question. I accept, as I did at the beginning, that there was not much unqualified support. NACRO and the British Association of Social Workers gave qualified approval, at least in principle, as I mentioned earlier on. To that I could add the Justices' Clerks' Society. A number of other bodies certainly did criticise what we proposed, without rejecting the requirement altogether. I would quote from that list the Association of Directors of Social Services, the Central Council of Probation and After-Care Committees, the Conference of Chief Probation Officers. Those are all bodies representing the management of the supervisory services.
I note that I am asked to accept that whereas the National Association of Probation Officers represents its membership when they do not want this measure I am asked to accept that the Magistrates' Association does not represent its membership when it does—which, in spite of what individual members may have said, is something in the nature of partial pleading. The noble Lord, Lord Avebury, was anxious to know the terms on which we consulted. We did so after the debate in another place on what was then the curfew proposal. We asked for comments, in perfectly neutral terms, on the general principle of the proposal and the specific terms.
May I now try to deal fairly briefly, as I think noble Lords would wish with their dinners cooling on the table, with the points which have been made—treating them none the less with due respect because of the weight which has been given to them. I can assure the noble Baroness, Lady Masham, that there will have to be a report about the offender and his circumstances. That is contained in subsection (3E)(a). The court must be satisfied, in the light of that report, that it is possible to secure compliance with the order. I hope that those of your Lordships who have talked about the enforceability of the order will note that preliminary reference to it; the court has to be satisfied that compliance can be secured before the order is made.
If the magistrate is a magistrate not represented by the Magistrates' Association and is one who does not want to see this kind of legislation; or if the probation officer advising the court is a probation officer who does not wish to see his relationships put under strain;

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or if the parent of the child in question is in doubt as to whether this would be a good thing; or if the child himself feels he is not willing or able to make this undertaking—then of course the order cannot or will not be made.
Certainly some wives say what their husbands would regret, and certainly some children undertake what they cannot deliver—but, as my noble friend Lord Fortescue has rightly said, it is not in generality regarded as a reason for throwing out a law that it cannot always be made to stick. If your disqualified driver was required, first, to agree that he would not drive and his parents, if he lived with them, had to agree as well, and enforceability was a question, then maybe the number of drivers who drive when disqualified would be reduced because the numbers disqualified would be reduced. It seems to me that we have to be a little more hard-headed and practical about this than we are being at the moment.
On the next point on enforceability, I have not said, but I should say, that the supervisor will take special action to check that the night restriction requirement is being obeyed under differing circumstances. It will be for him to judge how far he should do that. There are clear limits on the extent to which, in practice, compliance can be checked. Most of your Lordships are parents, for goodness' sake, and most of your Lordships know the extent to which authority can be exerted; to which, when your child is away from home, you can depend on him or her to do what you bid and not to do what you bid him or her not to do. What he or she does or does not do will depend in part on your relationship and in part on his or her relationship with the people with whom he or she is staying, or is with at camp, or whatever the circumstances may be.
As to where he will be, I was at pains to say at the beginning that the child need not be restricted to his home. All this emotive question of a top floor of a high rise block of flats, or my noble friend Lord Onslow—in one of his less well-chosen interventions—linking yobbery with snobbery, seems to me to be wide of the mark. The child may be required to reside at an intermediate treatment centre, for instance, where there will be no difficulty of supervision and where there is a good deal of engaging in activity to be undergone. I have been to one of those places and have seen the children actually under contract to stay for various weekends enjoying it, profiting from it, and becoming more adult and responsible as a result. This is the sort of thing we want to foster; not to have a timid approach and say, This is a difficult experiment—we have not tried it before." For God's sake let us try something new. It is worth trying, and I beg to move.
Lord Donaldson of Kingsbridge: My Lords, before the noble Lord, Lord Elton, resumes his seat I wish to correct an inaccuracy in his speech. He may wave at me as much as he likes, but I am more difficult to stop than that. He said that NAPRO had given qualified approval. If he will turn to the letter from the director of NAPRO of 14th June he will see that the disapproval was unqualified.
7.24 p.m.
On Question, Whether the said amendment (No. 16) shall be agreed to?
Their Lordships divided: Contents, 79; Not-Contents, 64.

DIVISION NO. 3

CONTENTS

Airey of Abingdon, B.

Lane-Fox, B.

Alexander of Tunis, E.

Lauderdale, E.

Allen of Abbeydale, L.

Long, V.

Atholl, D.

Lyell, L.

Avon, E.

Margadale, L.

Bellwin, L.

Masham of Ilton, B.

Beloff, L.

Merrivale, L.

Belstead, L.

Mersey, V.

Bessborough, E.

Morris of Kenwood, L.

Birdwood, L.

Mottistone, L.

Boardman, L.

Mowbray and Stourton, L.

Brougham and Vaux, L.

Northchurch, B.

Camoys, L.

O'Neill of the Maine, L.

Campbell of Alloway, L.

Orkney, E.

Cathcart, E.

Pender, L.

Chelwood, L.

Rankeillour, L.

Colville of Culross, V.

Redesdale, L.

Colwyn, L.

Reigate, L.

Craigmyle, L.

Richardson, L.

Davidson, V.

Sandys, L.—[Teller.]

De Freyne, L.

Seebohm, L.

Denham, L.—[Teller.]

Shannon, E.

Drumalbyn, L.

Sharples, B.

Eccles, V.

Skelmersdale, L.

Elliot of Harwood, B.

Stamp, L.

Elton, L.

Stanley of Alderley, L.

Ferrers, E.

Stodart of Leaston, L.

Fortescue, E.

Strathclyde, L.

Gainford, L.

Strathcona and Mount Royal, L.

Gardner of Parkes, B.

Glanusk, L.

Sudeley, L.

Glenarthur, L.

Swinton, E.

Gridley, L.

Teynham, L.

Hailsham of Saint Marylebone, L.

Trefgarne, L.

Trenchard, V.

Holderness, L.

Trumpington, B.

Home of the Hirsel, L.

Vaizey, L.

Hornsby-Smith, B.

Vaux of Harrowden, L.

Hylton, L.

Wynford, L.

Kilmany, L.

Young, B.

Kinnaird, L.

NOT-CONTENTS

Airedale, L.

Gardiner, L.

Ardwick, L.

George-Brown, L.

Auckland, L.

Greenway, L.

Avebury, L.

Hall, V.

Aylestone, L.

Hampton, L.

Bacon, B.

Harris of Greenwich, L.

Beswick, L.

Hatch of Lusby, L.

Birk, B.

Houghton of Sowerby, L.

Bishopston, L.

Hunt, L.

Blease, L.

Hutchinson of Lullington, L.

Brockway, L.

Brooks of Tremorfa, L.

Ingleby, V.

Cledwyn of Penrhos, L.

Jeger, B.

Collison, L.

Kagan, L.

Craigavon, V.

Lincoln, Bp.

David, B.

Llewelyn-Davies of Hastoe, B.—[Teller.]

Davies of Leek, L.

Donaldson of Kingsbridge, L.

Longford, E.

Lovell-Davis, L.

Elwyn-Jones, L.

McGregor of Durris, L.

Elystan-Morgan, L.

Macleod of Borve, B.

Evans of Claughton, L.

Melchett, L.

Ewart-Biggs, B.

Mishcon, L.

Faithfull, B.

Monson, L.

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Northfield, L.

Stewart of Alvechurch, B.

Onslow, E.

Stewart of Fulham, L.

Oram, L.

Stone, L.

Paget of Northampton, L.

Taylor of Mansfield, L.

Peart, L.

Tordoff L.

Phillips, B.

Underhill, L.

Pitt of Hampstead, L.

Walston, L.

Ponsonby of Shulbrede, L.—[Teller.]

Wells-Pestell, L.

Wigoder, L.

Seear, B.

Winstanley, L.

Resolved in the affirmative, and amendment agreed to accordingly.
7.32 p.m.
Lord Lyell: My Lords, I believe that it might be the wish of your Lordships who have been sitting here through the heat of the afternoon that we should adjourn this business now for the dinner break. Accordingly, I beg to move that further consideration of the Bill on Report be now adjourned. I understand that it has been agreed through the usual channels that further consideration of this Bill on Report will not start before 8.35 p.m.
Moved, That further consideration on Report be now adjourned.—(Lord Lyell.)
On Question, Motion agreed to.

ECC 11th Report: Radiation Protection
7.33 p.m.
Lord Seebohm Lord Seebohm rose to move, That this House takes note of the Report of the European Communities Committee on Radiation Protection (11th Report, 1981–82, H.L. 108).
The noble Lord said: My Lords, if I may start in a somewhat Irish manner, before I speak, may I say something. I believe we have only an hour for this debate, and therefore the speeches must be very short. I myself shall be very brief. Not only do we have to speak but also we have to have a reply from the Government Bench. I suggest that something like eight minutes is about the right length for any one speech.
The Select Committee on the European Communities has been examining a proposal for a Council directive laying down basic measures for the radiation protection of persons undergoing medical examination or treatment. The Select Committee's report has now been published, and the Government's views are sought on the acceptability of the conclusions and recommendations.
The subject is a highly technical one and it was several weeks before such phrases as a computerised tomological radiographical examination tripped lightly off the tongue. However, we were extremely lucky in obtaining the assistance of Sir Brian Windeyer, and internationally renowned radiologist, as our technical adviser. The committee is also indebted to the noble Lords, Lord Richardson and Lord Hill of Luton, who joined the sub-committee for the duration of the exercise. In addition, of course, we had oral and written evidence from a large number of bodies. I will not mention them all, but, among others, we heard from the DHSS, the Royal College of Radiologists, the National Radiological Protection Board, the Health and Safety Executive, the British Chiropractors Association, the
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British Acupuncture Association the Osteopathic Associates and the College of Osteopaths, the College of Radiographers, the British Medical Council, the General Medical Council, the General Dental Council, the Consumer Council, and so on. We therefore covered a fairly wide field.
The committee gained the impression that much legislation, and the work of the National Radiological Protection Board and the Health and Safety Executive, was primarily directed to the protection of the worker and practitioner rather than to the patient, and I give as an example the experience of a Member of your Lordships' House. He was having a tomological examination, which, as all your Lordships' know, is being photographed from a large number of angles, basically computerised, to help the diagnostician. He asked the radiographer whether she knew all about the dangers of radiation, and she said, "Oh, Yes, you do not have to worry; I am examined every month and if anything is wrong with me it will be found at once". So he said, "Well, what about me?" and the answer was, "Well,", and that was the end of the conversation.
This is not to say that the protection of patients in Great Britain is unsatisfactory; far from it. I would say that it probably compares more than favourably with any other European country. But, like most things, it could be improved. The reasons why the committee place such importance on the matter are these. First, the committee was informed that exposure to any dose of ionising radiation must be considered to be of danger to health, and there is no threshold below which there will be no effect. Secondly, radiation protection is based on the thesis that any dose in excess of natural radiation is potentially dangerous, not only to the recipient, but damaging effects could be passed on to future generations. Thirdly, the National Radiological Protection Board suggest that genetically significant doses could be reduced by 30 per cent. if greater attention were paid to protective techniques. For these and other reasons, and particularly for flexibility and for future development, and there are many developments on the stocks, it is very necessary that knowledge of these hazards should be widely disseminated.
As regards the directive itself, the committee concluded that the general principle of providing greater protection in the community should be strongly supported, but that the Government are right in opposing the original draft and in suggesting that a greatly shortened and simplified directive should be produced. It is understood that a number of amendments have already been discussed at expert level, although no revised draft has yet been issued by the secretariat. For instance, British radiological practice would not be able to carry on under the directive as originally drafted, but apparently the United Kingdom objections would largely be met from the new proposals, though I am not quite clear whether they go far enough.
These new proposals would appear to accord with the committee's views. Article 3 now appears likely to be largely altered so that British radiographers will be able to continue operating as at present, which they certainly would not under the directive that the committee have seen. Similarly under the same article as at present drafted, various users of radiological examinations, such as members of the British Chiropractors

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Association, and the osteopaths and the acupuncturists, would be stopped from continuing to practise as at present.
A later speaker will, I understand, be dealing with some of the alarming and costly administrative changes that would result from the adoption of the unamended directive, but it is the committee's view that this also is a very serious matter. Other points I think worth mentioning relate to the following articles. Article 2 has implications for the examination of immigrants and for fitness for employment. Under this article an individual would have the right to refuse to be examined by X-rays, but insurance companies consider that they would in consequence have the right to refuse to accept the contract or to raise the premium, and suggest that this sentence is the article be deleted.
I have already mentioned the position of radiographers and other paramedicals under Article 3, but this article also affects osteopaths, chiropractors and acupuncturists for the same reason. The committee, therefore, conclude that the introduction of some form of recognition on this context for paramedicals who conduct X-ray examinations should be considered by the Department of Health and Social Security in conjunction with the appropriate professional bodies concerned.
Article 5 deals with the exchange of information which is important in achieving a reduction in the duplication of X-ray examinations. It has been suggested that the carrying of cards, like vaccination cards, should be introduced, although we were told that it would probably be impracticable. On the other hand, I have heard in recent days that it is, in fact, in practice in France and it has not been found entirely unsatisfactory.
I shall leave Articles 6 and 7 to subsequent speakers. 'Therefore, while the committee believe that this country is not in need of a directive, the evidence shows that several of the other member states are far behind in these protective measures and from a Community point of view some direction could be beneficial, if not essential.
I shall leave the matter there. I have spoken in rather general terms, but others who have more expert knowledge will fill in the gaps. I look forward to hearing what they have to say and also to the Government's conclusions on our report. I have taken under eight minutes. My Lords, I beg to move.
Moved, That this House takes note of the report of the European Communities Committee on Radiation Protection (11th Report 1981–82, H.L. 108)—(Lord Seebohm.)
7.41 p.m.
Lord Richardson: My Lords, I speak as a doctor and therefore I want to emphasise some of the points that have been so ably made by the noble Lord, Lord Seebohm, that affect the practice of medicine particularly in this country. Radiographers are the people who take the photographs when we go to hospital and they, in their practice, are quite essential to the whole of radiography in this country. They are an independent profession although they are answerable to radiologists who are, of course, fully qualified and specialist qualified doctors.
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Radiographers became a profession by the will of Parliament in 1960 and they set up a regulating body similar to other professional regulating bodies, such as the General Medical Council, under the Professions Supplementary to Medicine Act 1960. Their position, therefore, is essential to this country's medical services and must be firmly established.
A large number of people are treated by paramedical professional people such as oestopaths and chiropractors—literally manual practice. Their position is different in that they do not have a single registration body and they do not even have a single organisation for each discipline. This makes the position for them so much the more difficult and it was emphasised in evidence to us that some are well trained in radiological protection and, in fact, meet the requirements of the National Radiological Protection Board. However, this does not apply to them all. It would seem wrong to allow those who have not had satisfactory training in the protection of their patients, to use X-ray equipment. But, likewise, it would seem to be against the public interest to stop those who, after all, are legally entitled to practice medicine—as are most of the members of your Lordships' House here this evening—and who have been properly trained in radiological protection, to continue their practice as at present because much good practice by these people depends on good radiology. The noble Lord, Lord Seebohm, has drawn your Lordships' attention to the recommendation that consideration should be given to some recognition of the people engaged in paramedical fields.
On a broader canvas is the question of the results that could arise from the excellent intentions of some of the articles of the proposed directives. These, although unexceptionable at first glance, raise anxieties in the minds of those who can visualise them in practice. Everyone is anxious to raise standards. However, we are also anxious in case the directive should reduce standards by rigidity of performance and enforcement. The noble Lord, Lord Seebohm, mentioned the word "flexibility ".
The possibility of rigid application leads to anxiety under two headings. The first is the use of resources. Resources are, of course, scarce and I think always will be scarce. Moreover, expensive activities—and they will be dealt with, as the noble Lord, Lord Seebohm, has indicated by another of the noble Lords who is to speak tonight—can involve loss to other fields and the loss of the powers of decision as to how priorities for expenditure should best be distributed. The matters of which I am thinking come under Article 5: ensuring the availability of information about previous diagnostic radiological exposure—on the face of it quite unexceptionable; and under Article 6, dealing with an inventory to help decide what equipment is useful, effective and safe. Both are highly desirable but, as I believe we shall be told, highly expensive.
On the clinical side Article 2 with its list of desirable principles—namely, to give no more radiation than is required and so on—is again admirable but if too rigidly applied might lead to inefficient radiology and to the stultification of thinking both in a research sense and, indeed, in the case of the individual patient. There would be a loss of flexibility.
Going back to Article 5 and the question of the records, here again there would be a complication

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because information that would give, and most desirably give, a record of previous exposure, could lead to the deduction of a great deal about the individual—both physical and psychological—through the simple study of dates, the frequency of investigations and the nature of the examination. Thus it would not only pose a real threat to confidentiality with all the anxiety that that would raise in the minds of the individual patients, but it would also cause great concern to my profession who sets so much store by preserving the confidentiality of their patients.
Therefore, the risks of lack of flexibility, of rigidity, damaging practice are not illusory and the committee has given expression to this in its recommendation that the directive should be shortened and simplified but nevertheless should oblige member states to carry out, domestically, the general objective. The Committee and our witnesses, although seeing difficulties—as I have endeavoured to indicate—feel that where less organisation of these matters exists, something positive but simple and clear should be done.
7.50 p.m.
Lord McGregor of Durris: My Lords, the report of your committee carries on page 5 a remarkable table which shows the frequency of radiological examinations per thousand of the population among most of the developed societies. It demonstrates, provided that the data are accurate, that the Netherlands has nearly three times the frequency of examinations as does Great Britain; Switzerland has exactly three times; and Germany has four times the British frequency. Your committee had no evidence that the explanation for Britain being at the bottom of this league was to be found in public meanness or public thrift, rather, to the contrary, that the low rate was held to be evidence of the superior protection of citizens in this respect, which has been stressed by both the noble Lord, Lord Seebohm, and the noble Lord, Lord Richardson.
It is hard to know wherein the explanation lies. It may be that the explanation is within the organisation of health care or in circumstances which affect doctors' attitudes. It may well be, for example, that if they fear litigation for negligence, they may seek protection in undertaking a very large number of examinations which may be unnecessary. As the noble Lord, Lord Seebohm—the chairman of the committee—pointed out, it is very desirable to regulate exposure, because the committee was told that every exposure to ionising radiation carries with it a risk not only to the person being examined, but a risk of genetic hazard as well. Thus, examinations should only be undertaken if the benefits are likely to exceed the potential risks.
Many people nowadays fear radiation, and sensibly so. But properly used, surely these developments have been a tremendous advantage to mankind in the alleviation of suffering and it is, therefore, very necessary to retain a sense of proportion in assessing risks. Some doctors, skilled in this branch of medicine, believe that there would be great advantage in having many more critical evaluations of the usefulness of radiological investigations carried out on patients. One glance at the table that I mentioned must underline this point. How does one explain such remarkable differences in the frequency of investigations in countries
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practising the same medicine by doctors with much the same training and with a citizen body having much the same access to medical facilities?
But if one accepted that it would be useful to have more scientific inquiries rather than better regulations, or more regulations, one is then faced with what I understand to be a shortage of radiologists in this country. I am told that there are at the moment 117 vacancies for consultants in the specialty in the United Kingdom. This is a very surprising situation if one considers the usefulness of such a specialty for married women, who are at the stage of their careers of having families. It would seem, to a layman at any rate, that here is a field in which part-time work, or work at odd hours, could very usefully be performed without any interference, or without much interference, with normal routines. Nevertheless, we have a severe shortage.
If one turns from that sort of consideration—and I shall be very brief—to what, as a layman, again seems to me to be a vital aspect of the way in which the directive, as originally conceived, would impinge upon our arrangements, and if one examines—as the committee did—the arrangements for regulating the amount of ionising radiation to which citizens are opposed, at first sight there appears to be a hotch-potch of statutory provisions, codes of practice, professional standards and even suggestions coming from ethical committees. But if one attempts to disentangle the superficial appearance of chaos, what I think emerges is a characteristic situation in this country in which regulation is achieved by a variety of means within a framework—often a very small framework—of statute law.
It is clear from the evidence given to the committee that our system of regulation works very effectively. It has given us, so we are assured, the best system in Europe, and I very much hope that the Government will resist any suggestion of introducing the sort of rigidities into the system to which the noble Lord. Lord Richardson, referred.
7.58 p.m.
Lord Allen of Abbeydale: My Lords, one is bound to have sympathy with the underlying purpose of this draft directive and to acknowledge, notwithstanding what we have just heard, that there is quite considerable room for improvement in this country. But, as the report of the committee says, the draft seems to be somewhat over-rigid and, for my part, I should like to comment quite briefly on two aspects where I think there is a risk of the bureaucracy simply overdoing it. I speak as a bureaucrat of some years' standing.
The first is the requirement in Article 5(a), which would oblige member states to set up a system:
"allowing any practitioner who may be consulted to ascertain what previous radiological examinations a patient has undergone."
One idea which was floated to us was mentioned by the noble Lord, Lord Seebohm; that is, that we should all have cards on which a note would be entered of any radiological examinations we undergo as the years roll on. Whatever happens in France or Germany, we had quite impressive evidence about the practical difficulties in this country of relying on every citizen keeping such a card up-to-date and remembering to have it available at the right time. I cannot imagine what

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would happen to immigrants and other people who did not have the great fortune to be brought up in an EEC country.
There may be force in the argument put to us by the Consumers' Association for a voluntary scheme which left the initiative to the individual, but that hardly amounts to having a system as required under the present draft. There was an alternative suggestion. That was to have a Swansea type computer, only bigger and better, which would maintain a central record of every examination in the National Health Service, private practice, the Services, in the dentist's surgery, by the osteopath and acupuncturist, and so on, and then all practitioners would be given access as occasion arose and, unlike Swansea, would be given an immediate reply. The cost and the practical problems of identification would be enormous. Then, on either course, card or computer, substantial problems would still remain.
I was impressed by the expert evidence that the chances of any such record being sufficiently accurate and detailed to be of real use were not all that great, and that the analogy with the simple, factual record of the vaccination certificate is really not a good one. The more sophisticated the record became the more this would aggravate the difficulty to which the noble Lord, Lord Richardson, has already referred; the confidentiality of medical records. Therefore, I think that this draft article in its present form gives rise to genuine practical difficulties and calls for rather more thought.
The second point relates to the draft Article 6, to which reference has already been made. This would require a member state to draw up an inventory of medical and dental equipment and to arrange for its surveillance. It is a subject already covered to some extent by the agreed 1978 directive, but the evidence brought it out that our current dispositions in this country fall short of perfection. It may be my fault, but it seemed to me that the present arrangements between the Health and Safety Executive, with their primary concern for the staff, and the National Radiological Protection Board, who in some respects act as the agents of the executive, are a bit hazy at the edges.
I also have the impression that there is hardly an abundance of qualified inspectors on either organisation and that dentists, for example, are not likely to be overburdened by visits from inspectors. At present, the executive simply does not know all the people who are using ionising radiation. Having said all that, however, considerable efforts are currently being made in the way of tightening up legal requirements, for example over notification, and issuing better and up-to-date guidelines. Like the noble Lord, Lord McGregor, I found it a bit of a morass. Things are being done. Admittedly, they are taking time, and quite a long time, but it is as nothing compared with the task of literally carrying out the draft directive. This task would be enormous and would raisea number of problems to which no one at present knows the answer, such as codifying the criteria in the highly complex area for the replacement of installations. We in this country can take a certain pride in the fact that if we enact a law, or enter into a treaty obligation, we make a conscientious attempt to carry out our obligations.
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I think that the obligations of these two articles in their present form are beyond us.
8.5 p.m.
Lord Alexander of Potterhill: My Lords, I joined Sub-Committee C, which prepared this report, because I had some experience and education. I am bound to say that as a member of Sub-Committee C I have been better educated on things about which I had very little knowledge than I had expected. My concern with this report is for the paramedicals, and particularly the osteopaths. Unless I misunderstand it, there is a danger, as the directive is drafted, that they would be debarred from what is now fairly regular practice. It is argued that some of the people who call themselves osteopaths are not properly qualified, and this is true. Anybody can put up a board and say that he is an osteopath. But, unless I am misinformed, you can equally put up a board and say you are a doctor, and nobody can stop you.
My concern is with the British School of Osteopathy which trains these people, and in my judgment effectively, and whose principal, Sir Norman Lindop, is a man for whom I have the highest respect, and who was principal of Hatfield Polytechnic for many years. The school has an X-ray clinic supervised by fully qualified radiologists and radiographers, and whose members, when they leave the college, are perfectly competent not necessarily to take X-rays—I do not think that is the issue—but to read X-rays, which is imperative if they are to do their work effectively. They must have access to X-rays. If this directive is carried out as at present drafted, unless I misunderstand it, they would be debarred from so doing. I would therefore hope, as the noble Lord, Lord Seebohm, has suggested, that the directive would be sufficiently amended to provide for that.
Our recommendation includes the suggestion that some appropriate form of recognition should be given to those in the paramedical group, and I think particularly of osteopaths, who have been appropriately trained. It has been suggested that this could mean giving them recognition in terms of the General Medical Council. I find this difficult to understand. Surely we can distinguish between osteopaths or other paramedicals who have been reasonably well-trained and who are satisfying appropriate requirements from those who have no such training. If that were done, then I see no difficulty in securing that access to the necessary X-ray information would enable osteopaths to do their work effectively.
I should add one thing—and I add it from personal experience. The medical profession must not claim that they are the only people who can deal with problems relating to health. I have three friends all of whom suffered from serious back troubles, including my own wife. She reached the stage where the medical profession proposed to operate after five months of trying to do something about it. By the grace of God she was cured in two weeks by an osteopath.
Lord Richardson: My Lords, before the noble Lord sits down, may I ask him a question? When he said that anyone could put the name or the title "doctor" legally in front of his name in this country, he does not recognise that it is a criminal offence to pretend

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to be a registered medical practitioner when not one. Anyone may practise medicine, but no one other than a registered medical practitioner may claim to be a registered medical practitioner.
Lord Alexander of Potterhill: My Lords, I fully accept that. I did not say that he would claim to be a registered medical practitioner. I said he could put up a board which says he is a doctor. So, can somebody put up a board and say that he is an osteopath, and he has no right to claim it, if he has no training, any more than the other.
8.10 p.m.
Lord Lyell: My Lords, the House will be very grateful indeed to my noble friend Lord Seebohm for introducing this subject today and, above all, for giving the House the opportunity to debate the report on radiation protection produced by the European Communities Select Committee of your Lordships' House, so ably chaired by Lord Seebohm. All of your Lordships who are responsible for the report are to be congratulated very warmly on preparing a document which, as we might have expected, is clear, concise and, above all, helpful.
The first of the Select Committee's recommendations is one with which the Government warmly agree. In discussions in Brussels our representatives have placed great emphasis on our concern for the well-being of people undergoing radiological diagnosis and treatment. They have stressed our resolve to maintain and, when we can reasonably do so, improve standards of radiation protection in the United Kingdom. But, like my noble friend and his companions on the Select Committee, the Government do not believe that the Commission has proposed the most suitable means of achieving these objectives.
I hope your Lordships will bear with me if I add a few points to the report's admirable sketch of the background to the proposal for a directive on radiation protection. The European Commission proposed a directive laying down basic measures for the radiation protection of persons undergoing medical examination or treatment. The proposal was referred by the Council of the European Communities to its Working Party on Atomic Questions—a title which filled me with considerable apprehension, but having read the report I was entirely mollified. From November last year until June this year, the draft was considered by an expert group set up by the working party. The expert group has now reported back to the working party, where the draft is due for further consideration.
At the first meeting of the expert group, the United Kingdom entered a general reservation regarding the proposed directive. This reservation still stands. We nevertheless took part in discussions of the articles of the draft directive, and our representatives were able to secure a number of significant changes in the draft. If the recommendations made by the expert group to the Working Party on Atomic Questions were adopted, they would result in a document differing substantially from the one initially drawn up by the Commission, and from the set of proposals which were available to the Select Committee.
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I must tell your Lordships that there is some difficulty about the recommendations submitted by the expert group. The English text of a working document presented to the working party differs in a number of important respects from what the United Kingdom representatives understood to have been drawn up at the last meeting of the expert group. We are therefore asking for some corrections to be made. Assuming, however, that a new document is presented to the working party in a properly corrected form, it could result in the removal of many of the objectionable features of the original draft directive.
Paragraph 22 of the Select Committee's report quite rightly stresses that, if Article 1 of the draft directive were adopted in the form proposed when they were considering the matter, it would interfere with the radiological practice in this country. We think it would interfere to no great purpose, and to the detriment of some of the professions involved. It could limit the range of choice which people in this country have in seeking examination and treatment. If the expert group's recommendations were followed, Article 1 would be redrafted to allow medical procedures involving ionizing radiation to be carried out under suitably trained and competent practitioners other than doctors and dentists. The position of the paramedical professions, about which the noble Lord, Lord Alexander, in particular, expressed concern, would be more satisfactory if the expert group's recommendations were followed.
Article 2, as the Select Committee noted, suffered from a variety of defects. The expert group has proposed that it should be simplified. It would then refer to, and accord with, good medical and dental practice, in seeking to minimise patients' exposure to radiation. So would Article 4, in requiring a sound justification for the use of procedures involving radiation. Article 5, dealing with the exchange of information between practitioners about the radiation to which a patient has been subjected, would again be simplified, and would no longer demand the impracticable and expensive measures which the Select Committee rightly criticised.
Article 6 would undergo the least change as the result of proposals made by the expert group. It would still require the drawing up of inventories of radiological equipment and nuclear medical installations, and would still require all installations in use to be kept under surveillance with regard to radiological protection. The withdrawal or replacement of inadequate installations could be demanded under its provisions. The draft of Article 7 would, by contrast, require simply that member states should discourage the unnecessary proliferation of radiological equipment. It would also require that departments of radiotherapy and nuclear medicine should have a qualified expert in radiophysics readily available to them. In this form, it seems to be unexceptionable.
Your Lordships will see that the provisions of the draft directive in the form proposed by the expert group would be considerably more suitable to the situation in the United Kingdom than those of the original draft. Why, then, have we maintained our reservation regarding a directive? There are a number of reasons for this. First, we shall have to see what

701
happens in the Working Party on Atomic Questions, where further discussion of the expert group's proposals is to take place, although, even if those proposals were accepted, there would be some problems with the draft. It is almost inevitable that a document prepared by a large multilingual committee should be less than elegantly drafted or consistent, but we hope such problems will be cleared up.
There are other, more fundamental, reasons for our stand. In the United Kingdom we take seriously our responsibilities in relation to European directives. We should expect to do everything necessary to comply fully with the requirements of any directive on radiation protection. We are advised that this would almost certainly require legislation. The implementation of such legislation could very well entail effort and expenditure out of all proportion to any benefits that could be gained in a field where the United Kingdom has a good record. For a long while we have had a code of practice for the protection of persons against ionizing radiations arising from medical and dental use. Figures show that radiological examinations occur less frequently in this country than in most others, as has been pointed out forcibly this evening. If we take an example, in relation to Article 6, we should need to be very sure that the expense of compiling full inventories of equipment was justified by a commensurate gain in radiation protection. There would be other objections to legislation. We find it difficult to see at present how some of the proposed provisions could satisfactory be embodied in it, or effectively enforced if they were.
We take the view taken by my noble friend Lord Seebohm and other members of the Select Committee when they said:
"The legislative or administrative means to pursue the underlying objectives of the draft Directive should be kept to Member States to decide".
The situation is different in different countries. A directive at Community level is inappropriate. It is up to individual member states to decide on means, suitable to their own circumstances, of improving radiation protection.
Nothing I have said should suggest that, despite our good record, we or the medical profession are complacent. Far from it. Although we are justly proud of our position regarding the radiation protection of people under-going medical examinations or treatment, there is evidence that there is scope for reducing still further the number of x-rays taken. Studies by the Royal College of Radiologists and others suggest that not all radiological examinations are clinically necessary. This obviously requires careful consideration because it involves issues of clinical judgment. The Royal College is already aware of the problem and is considering what further study is necessary and what advice may need to be given to clinicians.
We should very much prefer that improvements in practice should be sought along lines such as these. As I said, we see considerable difficulties in trying to give effective legal form to some of the requirements of the proposed directive and in trying to implement them. The view which our representatives have put forward in the expert group, and in the Working Party on Atomic Questions, is that it would be sufficient to have from the Council a recommendation that the measures outlined in the draft should be introduced
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where appropriate. There are precedents for a recommendation of this kind. It would do nothing to prevent those countries which see a need for stronger action from taking it individually, but it would avoid the imposition on us of legislation which we believe to be quite necessary—I apologise to your Lordships; I should have said, "quite unnecessary". I was hastening both to cover the Government's view and to leave the noble Lord, Lord Seebohm, at least a moment or two to reflect upon it.
I am sure that your Lordships understand that the report before us can be no more than a progress report, since discussions are still continuing in the Working Party on Atomic Questions. However, I believe that there is support for our views among some other member states, and I trust that they will have the support of your Lordships' House for as long as we find it necessary to maintain them.
8.21 p.m.
Lord Seebohm: My Lords, I thank the noble Lord very warmly for his welcoming our report and for what he has said, which encourages us to realise that considerable studies and thought are continuing on this particular subject. I should like to leave with him two points about which we feel very strongly, as will be evident from what has been said today. One relates to the position of the radiographers, and the other is concerned with the position of the people who are so inelegantly, and inappropriately, called paramedics. Apart from that, I should like to thank very warmly my colleagues who have put such good flesh on the very bare bones of my remarks.
On Question, Motion agreed to.
Lord Skelmersdale: My Lords, I hope that your Lordships will not consider it inopportune for me to congratulate you upon the speed, succinctness and lucidity that you have displayed in regard to the complicated subject which has just been debated. Having said that, I beg to move that the House do now adjourn during pleasure until 8.35.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended front 8.22 until 8.35 p.m.]

Criminal Justice Bill
Report stage resumed.
Lord Elton Lord Elton moved Amendments Nos. 17 to 22:
Page 21, line 11, after first ("of") insert ("paragraph (a), (b) or (c) of").
Page 21, line 12, leave out ("days or such shorter period") and insert ("or such lesser number").
Page 21, line 15, leave out ("period or periods") and insert ("total number of days").
Page 21,line 20, leave out from ("with") to end of line 23.
Page 21, line 37, leave out from first ("to") to ("but") in line 38 and insert ("the following provisions of this section and to section 19(13) of this Act,").
Page 21, line 45, at end insert—
("(aa) to remain for specified periods between 6 p.m. and 6 a.m.—

(i) at a place specified in the order; or

(ii) at one of several places so specified;").

The noble Lord said: My Lords, I spoke to Amendments Nos. 17 to 22 immediately before the dinner break, and with your Lordships' leave I beg to move them en bloc.
On Question, amendments agreed to.
Lord Mishcon Lord Mishcon moved Amendment No. 22A:
Page 22, leave Out lines 1 to 6.
The noble Lord said: My Lords, I apologise to the House that this amendment is in the form of a manuscript amendment and was delivered very late. I know not where the source of the error lies, but if it is with my noble friends or myself I apologise very deeply to the House. But this is an amendment that was dealt with at the Committee stage, although, as I remember, no conclusion was reached upon it.
If I may put the point very briefly, it is that we are here dealing with a stipulation which provides for negative restrictions in regard to supervision orders. The paragraph at the top of page 22 of the Bill reads:
"to refrain from participating in activities specified in the order … on a day or days so specified; or … during the period for which the supervision order is in force or such portion of that period as may be so specified".
If I may say so, if there was a case for the last series of amendments that we were dealing with in regard to curfew orders or night restriction orders (call them what you will), there is a very much stronger case, I would submit, in regard to the amendment I am moving for the deletion of these words.
The case for the deletion is, first, that it is undesirable, and thought to be undesirable by those who would have to administer this provision; namely, the probation officers. I see that the Association of Directors of Social Services have pithily put the point for the amendment by saying:
"This provision is unworkable and would bring the law into disrepute".
That it is unworkable to try to enforce a negative stipulation is pretty obvious, because it means that the people who have the job of supervising and who can indeed report the breach would have to be watching the person they are supposed to be looking after, the subject of the supervision order, presumably all day and all night, and all the week. That, of course, is the reason why I say it is unenforceable.
It is even worse than that. It is undesirable, one would have said, because, again, if the curfew order had its undesirable features in that parents might be brought into a bad relationship with children by virtue of it, this will bring a bad relationship with the supervising officer and, indeed, with the police. The police could do nothing about it, indeed, if they did manage to monitor it and saw that the negative order was not carried out. But if the resultant effect of the subject of the supervision order, finding that by sneaking out at all sorts of odd times, or whatever be the restriction which has been imposed, leads to a successful breach, undetected, of the supervision order, that again, obviously, puts the authorities into a position of contempt.
Thirdly, and lastly, it is so much easier to put in a positive condition. I see that in one of the documents put in front of me the example is given (all too common these days) of hooliganism on a football ground. If
704
one puts in the negative stipulation, which is that the subject does not attend a football match on a Saturday afternoon, it is, of course, as I said before, an almost impossible thing to enforce. If, however, you put the positive condition, that on a Saturday afternoon the subject of the supervision order should attend a certain place or do a certain thing, then quite obviously it is something which is easily monitored. My Lords, I do not think I make the case any stronger by making an elaborate speech. It seems to me, as I have said, that the people who would have to enforce this provision regard it as unenforceable and as bad. I hope that the House will therefore agree with the amendment.
The Deputy Speaker (Lord Ampthill): The amendment proposed is, on page 22, leave out lines 1 to 6. I should point out to the House that if it should be agreed to I cannot call Amendments Nos. 23 or 24.
Lord Donaldson of Kingsbridge: My Lords, I am happy to support this amendment. I think that during the course of this Bill the Government have several times ignored the views of the people who have to carry out the orders contained in the Bill. I hope that on this occasion they will not do the same thing again. If the noble Lord has had the opportunity to talk with probation officers, he will find almost total unanimity as to the impossibility of keeping a good relationship with the client while enforcing negative provisions. I do not think it necessary to say more at this moment than that I hope very much that the Government will not persevere in this attitude, which seems to me to be absolutely wrong, because the people who have to do the thing, are those whose advice in the end you must take. I hope that the Government will accept the amendment.
Baroness Faithfull: My Lords, I rise to say that I support this amendment.
Lord Trefgarne: My Lords, as the noble Lord, Lord Mishcon, has pointed out, the purpose of this amendment was discussed at the earlier stage. The purpose of enabling the courts to include negative requirements is to strengthen the supervision order. Our intention is to restore the confidence of the courts in the use of this non-custodial measure, particularly in cases where the offender might otherwise be given a custodial sentence. A negative requirement can be included in an order only under the provision which this amendment would delete and after the court has gone through several steps—and these have been strengthened since the provision was debated in another place.
A court might think it right when making a supervision order to require that the offender should not attend a football match for the remainder of the season. I make no apology for following the noble Lord, Lord Mishcon, in his example. The supervisor cannot necessarily personally ensure that the juvenile never does so. It is not the supervisor's job to police the offender's every movement; his role is to make sure the offender understands his obligations under the order and the consequences of breach and generally to advise and assist the offender. If, on the other hand, it is discovered that the offender has attended a football match, there is no question but that he is in breach

705
of the requirements of his order and can be brought to court and punished for it.
The views of both the supervisor and the offender would be taken into account in making the order. The supervisor would be consulted and the court would have to be satisfied that it was feasible to secure compliance. The offender, too, would have to consent to the provision. There is no question of detecting a breach in that sense. The police would never be involved. The supervisor could use breach proceedings to strengthen this hand if necessary.
The Government are fully aware that this provision has been greeted unenthusiastically in some quarters, but there may well be some courts which will find it useful, and, if they use it instead of custodial sentences even on a small scale, the Government's aim will have been fulfilled. I ask your Lordships to recognise that the Government regard it as very important to restore the courts' confidence in the supervision order. The use of the order has declined so dramatically in the last ten years and the use of custody by contrast has risen so dramatically that something has obviously gone wrong. The provision which this amendment would delete may not command universal support, but, if it is of some use to some courts, then it is, I believe, worth retaining. For those reasons, I hope that the noble Lord will not press his amendment.
Lord Mishcon: My Lords, I rise again somewhat disconsolate at the Minister's reply. It seemed to have this result. First, it is conceded that the supervising officer could not possibly monitor the subject of the supervision order and that the Minister is, therefore, content to rely upon the off-chance of the offender being detected breaching a supervision order—hardly a way of commanding respect for the law and for the order by those whom we are anxious to impress. The second point that the Minister made was that the supervising officer would be consulted, and had to be consulted, in regard to a negative restriction as in regard to any restriction.
What would be the result of that if this clause was in? The magistrates would, presumably, ask the supervising officer and say: "There is a negative provision enabling power in the Bill. Do you think you could enforce this? If you could, then we would think in terms of making a supervision order". Presumably, on the basis of the professional opinion we have had, the answer in many cases would be that it would be impossible to supervise and enforce. Therefore, we are encouraging the court to do the exact opposite of what we want, because the court would then have to say, "In those circumstances, we think we had better look to the alternative sentence here"—and that could be the very sort of order and the very sort of sentence that we are trying to avoid.
There is never any point in putting into an Act of Parliament something which is completely unenforceable when you know that from the beginning. All you are doing is encouraging not only disrespect for those who are supposed to enforce it but encouraging a disrespect for Parliament itself.
Baroness David: My Lords, I have not spoken very much during this Report stage, but I have been listening.
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I have been very surprised particularly about the attitude to magistrates of the Front Bench opposite. It seems to me that the Home Office is out of touch with most magistrates' courts and how they think about things. I do not think that the courts need to be helped towards giving non-custodial sentences. I believe that nearly every magistrates' court would prefer to give non-custodial sentences. A speaker said that if in breach the young person could be brought to court and punished for it. I do not like that attitude. If they are in breach, they may get custodial sentences, and that would be a great pity, but the whole attitude about this is wrong. There is a misconception about the way it works.
I have listened to the noble Baroness, Lady Faithfull. She seemed to be totally in touch with the way it works. I have a number of friends who are social workers. I spoke to our own director of social services over the weekend. Their attitude is the same as that of the noble Baroness I think that the Government are misguided when they try to do this. I wish they would listen.
Lord Trefgarne: My Lords, I wonder whether I have permission to speak just once more. Both sides of the House appear to agree that we need to provide the court with the maximum number of non-custodial options. These supervision orders are one of those options, but they have unhappily fallen into disuse in recent years because of their shortcomings. One of their shortcomings we seek to reduce—if not eliminate—by providing for these negative conditions.
I do not say that negative conditions are the be-all and end-all so far as supervision orders are concerned and that every magistrate will hasten to use these orders with this new capability. But it is a short step in the right direction. I think that your Lordships will be mistaken if they were to think that it was not that. I say again that I do not think that we are eliminating all the shortcomings of these orders in one step by the provision of this negative condition procedure, but I think it is a help. I think that it will enable magistrates to consider on more occasions than they are able at present the use of these orders which again will keep a few people out of custody who would otherwise have no alternative. I hope therefore that the noble Lord, Lord Mishcon, and his noble friends will not wish to press this amendment and remove this provision from the Bill.
Lord Donaldson of Kingsbridge: My Lords, the noble Lord's argument is very difficult to understand. The position, roughly speaking, is that we all agree with him that there has been a sad falling off in the use of supervision orders, the reason for which nobody knows and nobody has been able to explain. He says that one way to deal with this is to produce a remedy with which everybody concerned with executing that remedy disagrees. This really is not a very serious argument. I should like the noble Lord to speak again, with the leave of the House, and put up something more serious. The probation service is wholly against negative orders. How can it be said that this is a way of making supervision orders work better?
8.52 p.m.
On Question, Whether the said amendment (No. 22A) shall be agreed to?
Their Lordships divided: Contents, 41; Not-Contents, 55.

DIVISION NO. 4

CONTENTS

Airedale, L.

Hutchinson of Lullington, L.

Avebury, L.

Hylton, L.

Birk, B.

Irving of Dartford, L.

Bishopston, L.

Jeger, B.

Blease, L.

Kagan, L.

Brockway, L.

Llewelyn-Davies of Hastoe, B.—[Teller]

Brooks of Tremorfa, L.

Cledwyn of Penrhos, L.

Longford, E.

Collison, L.

Masham of Ilton, B.

David, B.—[Teller]

Mishcon, L.

Davies of Leek, L.

Mountevans, L.

Donaldson of Kingsbridge, L.

Oram, L.

Peart, L.

Elwyn-Jones, L.

Pitt of Hampstead, L.

Elystan-Morgan, L.

Stewart of Alvechurch, B.

Evans of Claughton, L.

Stewart of Fulham, L.

Faithfull, B.

Stone, L.

Gardiner, L.

Tordoff, L.

Hall, V.

Underhill, L.

Harris of Greenwich, L.

Wigoder, L.

Houghton of Sowerby, L.

Winstanley, L.

Hunt, L.

NOT-CONTENTS

Alexander of Tunis, E.

Greenway, L.

Ampthill, L.

Gridley, L.

Avon, E.

Hornsby-Smith, B.

Bellwin, L.

Ingleby, V.

Beloff, L.

Kilmany, L.

Belstead, L.

Kinnaird, L.

Boardman, L.

Long, V.

Brougham and Vaux, L.

Lyell, L.

Camoys, L.

Mackay of Clashfern, L.

Campbell of Alloway, L.

Mottistone, L.

Cathcart, E.

Norfolk, D.

Chelwood, L.

Onslow, E.

Coleraine, L.

Rankeillour, L.

Cork and Orrery, E.

Sandford, L.

Craigavon, V.

Sandys, L. —[Teller]

Craigmyle, L.

Sharples, B.

Crathorne, L.

Skelmersdale, L.

Davidson, V.

Stanley of Alderley, L.

Denham, L.—[Teller]

Stodart of Leaston, L.

Drumalbyn, L.

Swinton, E.

Eccles, V.

Teynham, L.

Elliot of Harwood, B.

Trefgarne, L.

Elton, L.

Trenchard, V.

Ferrers, E.

Trumpington, B.

Gainford, L.

Vaux of Harrowden, L.

Gardner of Parkes, B.

Wynford, L.

Glanusk, L.

Young, B.

Glenarthur, L.

Resolved in the negative, and amendment disagreed to accordingly.
9 p.m.
Lord Elton Lord Elton moved Amendments Nos. 23 to 30:
Page 22, line 3, leave out ("day or days so specified") and insert ("specified day or days during the period for which the supervision order is in force").
page 22, line 4, leave out from first ("the") to end of line 6 and insert ("whole of that period or a specified portion of it.").
page 22, line 6, at end insert—
("(3CA) A requirement under subsection (3C)(aa) of this section is referred to in this section as a "night restriction".").
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page 22, line 7, leave out ("aggregate of any periods specified by the court") and insert ("total number of days in respect of which a supervised person may be subject to requirements imposed").
page 22, line 8, after ("(a)") insert ("or (aa)").
page 22, line 9, leave out from ("90") to end of line 12.
page 22, line 29, at end insert ("by virtue of subsection (3C) of this section").
page 22, line 37, at end insert—
("(3G) The place, or one of the places, specified for the purposes of a night restriction shall be the place where the supervised person lives.
(3H) A night restriction shall not require the supervised person to remain at a place for longer than 10 hours on any one night.
(3J) A night restriction shall not be imposed in respect of any day which falls outside the period of three months beginning with the date when the supervision order is made.
(3K) A night restriction shall not be imposed in respect of more than 30 days in all.
(3L) A supervised person who is required by a night restriction to remain at a place may leave it if he is accompanied—

(a) by his parent or guardian;

(b) by his supervisor; or

(c) by some other person specified in the supervision order.

(3M) For the purposes of this section a night restriction imposed in respect of a period of time beginning in the evening and ending in the morning shall be treated as imposed only in respect of the day upon which the period begins.").
The noble Lord said: My Lords, we now return to the block of amendments to which I spoke before dinner. I beg to move Amendments Nos. 23 to 30 en bloc.
On Question, amendments agreed to.
Lord Harris of Greenwich Lord Harris of Greenwich moved Amendment No. 31:
Page 22, line 37, at end insert—
("( ) In section 15 of the Children and Young Persons Act 1969 (variation and discharge of supervision orders) at the end of subsection (2A) (which was inserted by section 37(2) of the Criminal Law Act 1977) there shall be inserted the following words—
"; or
(c) if the application is brought within six months of the date of the original order, deal with him for the offence in respect of which the supervision order was made in any manner in which it could deal with him if it had just convicted him of an offence.".").
The noble Lord said: My Lords, I beg to move this amendment. It is one which I moved at Committee stage, and the noble Lord, Lord Trefgarne, at column 15 of Hansard of 28th June, indicated that the Government would reconsider carefully whether it was possible to deal with the issues raised in that amendment. This is a matter on which I rose in Committee, as I said then, following discussions I had had with the conference of Chief Probation Officers and the Council of Aftercare Committees—in other words, the management of the probation service. I am sure they would have rejoiced to hear the noble Lord, Lord Trefgarne, saying a few moments ago that something has to be done about the supervision order: it is falling into disuse and, by implication, that too many custodial penalties are being handed out.
I agree with him and I think that probably the whole House will agree with him. Our intention in this matter is one which unifies both sides of the House; namely, that we should do everything we can to avoid custodial sentences. The issue is slightly complicated but it is worth reminding the House of it. Essentially the issue behind this amendment is that if the supervision order is breached the court can deal with the

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offender as though it had just convicted him of the original offence.
What I have done is slightly to change the amendment in character by laying it down that the application would have to be made within six months of the date of the original order. The noble Lord, Lord Trefgarne, indicated some of the arguments against this proposition when he spoke on the last occasion, and I would not for a moment suggest that the course of action I am putting forward tonight is manifestly and demonstrably the right course of action. Nevertheless think it is one that we should look at seriously because, quite apart from the fact that the noble Lord said time and time again on the last amendment that the supervision order is falling into disuse, there is an even greater danger; that is, that as a result of the provisions of this Bill, when enacted, the magistrates will have the power to award a new range of custodial sentences from 21 days upwards in the case of detention orders. The problem is that some magistrates, I know, find the supervision order at the moment wholly inadequate. They do not believe they have adequate powers to deal with a breach of the supervision order.
I am looking forward with interest to hearing what the noble Lord, Lord Trefgarne, proposed to say to the House, given the fact that he very kindly undertook to look at this matter again when we discussed it on the last occasion. I would remind him that the two organisations representing the management of the probation service believe that this is the most appropriate course of action in order, in their judgment, to safeguard the position of the supervision order itself. I repeat that it is not only a matter of the current position but of the prospective position which will apply once the new range of custodial penalties is on the statute book. That is the proposal and I look forward to what the noble Lord, Lord Trefgarne, will say, and whether he will give us some indication of the Government's thinking on this matter, now that they have had the opportunity to review it since the Committee stage. I beg to move.
Lord Donaldson of Kingsbridge: My Lords, the whole House is evidently on tenterhooks to hear what careful consideration over the last fortnight will produce from the Government. I would only say that it seems to be enough to mention that the National Association of Probation Officers is in favour of anything or that the Council of Chief Probation Officers are in favour of anything for the Government totally to ignore it. So I, too, am on tenterhooks and will now sit down, hoping to hear something useful from the noble Lord, Lord Trefgarne.
Lord Trefgarne: My Lords, it may come as something of a surprise or as a disappointment to your Lordships that the performance which I am about to give, so widely foreshadowed and expected, is unlikely to achieve the rave reviews that are hoped for. During our discussion in Committee I described this as a serious and thoughtful amendment which deserved proper consideration. Indeed, the noble Lord, Lord Harris, has himself given it further consideration, for the power to resentence for breach would now be available only within six months of the making of the supervision order and not, as in his earlier amendment,
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nine months. We have ourselves looked into this matter in considerable depth. The amendment is in accord with the Government's policy and we should, if possible, not discard any measure which could lead to an increased use of the strengthened supervision order as an alternative to custody. It is, therefore, with reluctance that the Government have concluded that this amendment cannot be accepted.
The supervision order is not a conditional sentence, where the juvenile simply has to keep out of trouble. He has to comply with directions and requirements and it is when he fails to do that that he can be brought to court to be dealt with for the breach. Very often, the breach will have nothing to do with further offending. Breach proceedings are really a way of enabling the supervisor's authority to be reinforced when the offender is being wayward. The present penalties of a fine or an attendance centre order are quite appropriate for that purpose. The Government are, I am afraid, not happy about the possibility of a custodial sentence being made at that point.
If the juvenile under supervision commits a further offence, he can of course he sentenced for it. But what we are concerned with here is behaviour which is not criminal, but which constitutes a breach of the supervision order and is therefore punishable. The amendment would, therefore, allow the court to impose a custodial sentence which is not an immediate consequence of a criminal offence. That is the focus of the Government's concern. The whole of Part I of this Bill directs the courts towards making a clear and unequivocal decision at the time of sentencing that a custodial sentence is wholly unavoidable. It is preferable that they should not be able to return to the issue some months later and decide that, although the juvenile has committed no further offence, perhaps a custodial sentence would have been better after all.
Turning to a more detailed point, I would point out that the amendment still creates difficulties arising from the lapse of time. Juveniles become eligible for different penalties at various ages. The supervision order can be made on children aged 10 and over, but boys become eligible for custodial sentences only at the age of 14, and girls at the age of 15. If a boy is given a supervision order when he is 13, and commits a breach when he is 14, is it right that he should then receive a custodial sentence when he could not have been given one when he was convicted? For these reasons, I hope that the noble Lord, Lord Harris, will not press his amendment.
Lord Harris of Greenwich: My Lords, I am in a state of some puzzlement, if the noble Lord, Lord Trefgarne, will forgive me for saying so. He is such an agreeable Member of your Lordships' House that it is quite impossible ever to become cross with him, but if he were not so agreeable one might be mildly tempted to be a little cross. He having delivered that speech, which I think he would agree was remarkably reminiscent of a speech which he made at Committee stage, I fail to understand why the Government said that they would consider the matter between Committee and Report, because the argument which the noble Lord has addressed to the House is an argument against the principle of this amendment. That being so, I am in something of a difficulty of wanting to apologise

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to the House for troubling it again on this issue, which I certainly would not have done had I realised that the Government were wholly opposed to the principle of the amendment. However, having said that, and having reassured the noble Lord, Lord Trefgarne that he is still affectionately regarded on this side of the House, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 23 [Charge and control of offenders]:
Baroness Faithfull Baroness Faithfull moved Amendment No. 32:
Page 26, line 31, after ("appropriate") insert ("because it appears to the Court that he is unable or unwilling to respond to other non-custodial penalties or because the offence was so serious that another non-custodial sentence cannot be justified.").
The noble Baroness said: My Lords, this amendment deals with the criteria for the making of a residential care order. Your Lordships will remember that, under Clause 1(4), the criteria are laid down for custody and detention in criminal cases. As your Lordships know, I have never agreed with the residential care order, and still do not agree with it. The noble Lords, Lord Trefgarne and Lord Elton, have said continually that they support non-custodial care and not custodial care, and therefore it seems to me that any criteria that can work towards helping not only magistrates, but social workers, probation officers and clerks to the court should be looked at very carefully.
I wonder whether I may have the indulgence of your Lordships' House, since I feel very strongly against the residential care order. I realise that it is with us, but I would point out to your Lordships that, despite what the Front Bench say about supporting supervision orders and non-custodial care, they have allocated £6 million for residential care resources and only £2 million for intermediate treatment. With that, I would also point out that, as things stand at the moment, there are 17,150 social workers working in residential care, of whom 14,000 are untrained, leaving only 18 per cent. trained. Many of the untrained as well as the trained are seeking to do very good work, but it is essential—I am sure this is in line with the views of noble Lords on the Front Bench—that we should go as far as possible towards helping non-custodial care orders to be made. As we asked earlier in the Bill for criteria to be laid down in criminal cases, I ask now for criteria to be laid down in care cases. I beg to move.
Lord Elwyn-Jones: My Lords, I hope that the noble Lord, Lord Elton, will pay great attention to the admirable speech of the noble Baroness, Lady Faithfull. This is a very important part of the Bill. The noble Baroness is unrelenting in her attitude towards almost all forms of custody. The addition of this provision to the Bill would be of assistance to the courts in preventing them from falling into error unintentionally. Therefore, I hope that the Minister will give his enthusiastic support to this amendment.
Lord Elton: My Lords, during the Committee stage my noble friend embarked upon a successful course of adding guidelines to the powers of the courts in
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sentencing young offenders. I accept that the House has expressed its support for this course and we have followed it by introducing guidelines for the imposition of care orders in criminal proceedings. I wonder, though, whether or not this amendment takes this a little to excess. Clause 23 provides for a charge and control condition to be attached to a care order imposed on a young offender. Following the guidelines which the Bill will now attach to the making of a care order in criminal proceedings, the court must have found that the offence which gave rise to the care order was serious and that the young offender was in need of care or of control. Before Clause 23 comes into play the young offender must re-offend while subject to that care order.
It is highly desirable that, despite the re-offending, the court should hesitate before imposing a custodial sentence, but Clause 1, as now strengthened, secures this. It requires the court to satisfy itself that there is no alternative to custody. Clause 23 increases the options available to the court before it has to resort to custody. Under Clause 23 as it stands, the court must be satified that no alternative to the charge and control condition is appropriate. If the re-offending is a minor one a lesser alternative may well be preferable, but in the context of an offender already in care for offending I do wonder whether guidelines inviting the court to consider whether the offender is unable or unwilling to respond to other non-custodial penalties is either apt or helpful. The Government's own preference would be to leave it to the good sense and discretion of the courts to decide when custody can only be avoided by adding the charge and control condition.
Baroness Faithfull: My Lords, before my noble friend sits down, would he not agree that once one has got on the ladder—in other words, if a child is in care and commits a further offence—it is almost an automatic reaction on the part of magistrates then to say that the care order has failed and that therefore they will make a residential care order?
Lord Elton: My Lords, the noble Baroness may have more experience of this than I, but as I look at the law as it is now written it seems to me that the magistrates are required to see that there is no alternative to custody before they resort to custody. To my innocent eye, therefore, it seems that what this does is superfluous.
Lord Mischon: My Lords, it may be superfluous to the lawyer and it may be superfluous to the ardent student of this important Bill. However, one must remember that although a court has the guidance of a clerk it is very important for the court to know precisely what Parliament intended. The words here are "as appropriate". It is left at that. In other instances we have decided that it is sensible to spell out what we mean by the word "appropriate"; we then go on to say what the court has got to be satisfied about.
I could understand it if the noble Lord the Minister said that this is otiose: that this is repeating something which is in the Bill and therefore we need not have it. I could understand that as a statement of fact. But does it do any harm at all if it repeats what the noble

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Lord the Minister says the court ought to consider in any event? And if it does no harm, is it not about time that the noble Lord the Minister bent just a little bit and said that it does of course underline something which we are all anxious to do and therefore the Government agree with the amendment? I say that especially when an amendment is moved by such a charming person as the noble Baroness, Lady Faithfull.
Lord Mottistone: Really, my Lords, the blandishments of the noble Lord, Lord Mishcon, beggar imagination. I am sorry to say to my noble friend Lady Faithfull that, having had my eyes directed by my noble friend the Minister to Clause 1, it seems to me to be totally comprehensive. If a magistrates' clerk is not going to have full knowledge of what is in this particular Act, when it becomes an Act, he is more likely to look at Clause 1 than at a hidden little part of a subsection in Clause 23. Therefore, it is probably just as well that Clause 1 is so very comprehensive. I should have thought that my noble friend the Minister won his case.
Lord Campbell of Alloway: My Lords, surely your Lordships would not wish to legislate on the basis that it does no harm. Surely the whole concept of legislation is that it should seek to do some positive good. If it is superfluous, with the greatest of respect and even at this hour of night, ought it not to be left out?
Lord Donaldson of Kingsbridge: My Lords, with respect, the noble Lord is more ambitious than the Home Office.
Lord Sandys: My Lords, I believe that the noble Lord, Lord Donaldson of Kingsbridge, has spoken already on this amendment.
Lord Donaldson of Kingsbridge: I have not spoken before, my Lords, and what I had to say was very short, and I have finished.
Baroness Macleod of Borve: My Lords, I would like to support my noble friend. We are making a very long Bill of this. It has to be "put into paperback", if I may say so, for clerks and even magistrates to understand it. To add something that is already in the Bill is, as my noble friend has said, quite unnecessary.
Baroness Faithfull: My Lords, I believe I have made my point. I regret that my noble friend the Minister is not able to meet this point. I quite agree that it is in the Bill and I only hope that everybody reads all the Bill that they can. My knowledge of social workers and magistrates is that they only read the particular bits of a Bill with which they are dealing at any point in time. However, I am not going to press this amendment today, and I beg leave to withdraw it.
Amendment, by leave, withdrawn.
9.23 p.m.
Lord Elton Lord Elton moved Amendment No. 33:
Before Clause 24, insert the following new clause:
("Criminal Justice Act 1967. Criteria for making care orders.
In section 7 of the Children and Young Persons Act 1969—

(a) in subsection (7) (under which a court has power to make a care order where a child is found guilty of homicide or a young person is found guilty of any imprisonable offence) after the word "Subject" there shall be inserted the words "to subsection (7A) of this section and"; and

(b) the following subsection shall be inserted after that subsection—

"(7A) A court shall not make a care order under subsection (7) of this section in respect of a child or young person unless it is of opinion—

(a) that a care order is appropriate because of the seriousness of the offence; and

(b) that the child or young person is in need of care or control which he is unlikely to receive unless the court makes a care order.".").

The noble Lord said: My Lords, this amendment introduces into the Children and Young Persons Act 1969 criteria for the making of care orders on juvenile offenders who are sentenced in criminal proceedings. It is not quite in the same terms as the amendment proposed by the Parliamentary All-Party Penal Affairs Group which was discussed in Committee, but its purpose is the same and I hope that it will commend itself to the House.
Section 7 of the 1969 Act already provides that the juvenile must have been found guilty of an imprison-able offence before a care order be made. Under this amendment a court would not be able to make a care order unless it was of the opinion that such an order was appropriate because of the seriousness of the offence. In addition, it is necessary that the "care or control" test now used in care proceedings should be satisfied—that is, the court must be of the opinion that the child or young person is in need of care and control which he is unlikely to receive unless the court makes a care order. The 1969 Act provides that, in the expression "care or control", "care" includes protection and guidance and "control" includes discipline.
The amendment thus introduces a twofold test in terms which are consonant with the existing provisions of the 1969 Act and which, with its reference to the seriousness of the offence, is in accord with the guidelines for custodial sentences which have been introduced into the Bill. The principle behind our approach is that the care order is a substantial intervention and should be made only in appropriate cases but that, in serious cases, it provides an essential alternative to custody. This principle informs our amendment. I believe it is in sympathy with what has been advanced before, and I commend it to the House.
Lord Donaldson of Kingsbridge: My Lords, this goes a long way to meeting the inter-parliamentary proposals and I am grateful for it.
Baroness Faithfull: My Lords, I cannot forbear from thanking my noble friend the Minister for this amendment.
Baroness David: My Lords, I think it is not an inter-parliamentary but an all-party group and so we are grateful for what we have got.
On Question, amendment agreed to.
Lord Trefgarne Lord Trefgarne moved Amendment No. 34:
Insert the following new clause:
("Restriction on making care orders in respect of persons not legally represented.
The following section shall be inserted after section 7 of the Children and Young Persons Act 1969—
"Legal representation.
(1) A court shall not make a care order under section 7(7) of this Act in respect of a child or young person who is not legally represented in that court unless either—

(a) he applied for legal aid and the application was refused on the ground that it did not appear that his means were such that he required assistance; or

(b) having been informed of his right to apply for legal aid and had the opportunity to do so, he refused or failed to apply.

(2) For the purposes of this section a person is to be treated as legally represented in a court if, but only if, he has the assistance of counsel or a solicitor to represent him in the proceedings in that court at some time after he is found guilty and before a care order is made, and in this section "legal aid" means legal aid for the purposes of proceedings in that court, whether the whole proceedings or the proceedings on or in relation to the making of the care order; but in the case of a person committed to the Crown Court for sentence or trial, it is immaterial whether he applied for legal aid in the Crown Court to, or was informed of his right to apply by, that court or the court which committed him.".").
The noble Lord said: My Lords, the Government are glad to be able to bring forward this amendment which is almost identical to that tabled at Committee by my noble friend Lady Faithfull. Indeed the only difference is that this amendment inserts the legal representation provision as a new section in the Children and Young Persons Act 1969, following section 7 to which it relates. I need say no more than that this improves the Bill. It ensures that a care order can generally not be made on a convicted juvenile offender unless he is legally represented at the time of the disposal. I commend the amendment to your Lordships.
Baroness Faithfull: My Lords, I am feeling almost schizophrenic. I must again thank my noble friend the Minister for this amendment. It goes to meet the point we made at the previous stage of the Bill.
Lord Elwyn-Jones: My Lords, this is a very happy interlude. The Government are actually doing what the overwhelming weight of opinion in the House has suggested they should do, which is not a universal practice, and we thank them for it. Obviously the need for legal representation of a child or young person in the circumstances set out in the new clause is of great importance. My noble friend Lord Mishcon had the pleasure of supporting the noble Baroness earlier on this matter, and we are grateful that the light has dawned like a great flash—if the noble Lord the Chief Whip will not interrupt my purple passage, as I am finishing. We thank the noble Lord very much for his acceptance of this amendment.
On Question, amendment agreed to.
Clause 24 [Criteria for accommodation of children in care]:
9.27 p.m.
Baroness David Baroness David moved Amendment No. 35:
Page 27, line 39, at end insert ("and for different periods of time").
The noble Baroness said: My Lords, we now actually arrive at Clause 24, which contains the criteria for the accommodation of children in care. There has been anxiety over the criteria for depriving children, and children as young as ten, of their liberty and putting them in secure accommodation. Our own amendments, Nos. 35 and 36, and the all-party Amendment No. 38, reflect this anxiety. There has also been anxiety about children being deprived of their liberty for more than 72 hours without being able to appear in court and have their restriction of liberty backed by a court order. Anxiety was also expressed about this being in contravention of the European Convention on Human Rights.
After the discussion in Committee I wrote to the Minister, the noble Lord, Lord Trefgarne, and I had a letter from him in which he said that he had now received the Attorney General's advice, and that in the light of that advice
"… we think it better not to run any risk regarding the compatibility of the arrangements currently governing the use of secure accommodation in community homes with the European Convention on Human Rights."
So I take it from that that they are willing to agree that some action should be taken, and that the children who are put into secure accommodation should be brought before a court within a certain amount of time. In our amendments at Committee we said 72 hours.
Lord Trefgarne: My Lords, I apologise for interrupting, but I rather thought that the noble Baroness would have preferred to deploy her arguments on this point, and listen to the fairly long response that I fear I have to make, on the following amendments and not on this one, which deals with a slightly narrower point.
Baroness David: My Lords, I apologise. I should have said that I was speaking to Amendments Nos. 35, 36 and 41 all together. I had it at the top of my paper and forgot to read it out. As we have that amount of give on the part of the Government, I think that we should now really consider what we should do, the Government having agreed that some action has got to be taken and that there would be a contravention of the European Convention. The letter says:
"better not to run any risk regarding the compatability arrangements currently governing the use of secure accommodation and community homes with the European Convention on Human Rights ".
It seems to me that it is going quite a long way, if not the whole way. I, of course, should like them to go the whole way and to take action now in this Bill, which seems to me the perfect place. We are dealing with secure accommodation and we are dealing with the restriction of liberty of children. There is a clause in the Bill which deals with this, and so it seems the perfect place to take action.

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It would appear that the Government would be prepared to allow the present practice to continue unrestricted and in breach of the convention, until such time as suitable legislation can be introduced. The excuse, which is a familiar one, is the need to consult widely, and this is mentioned in the letter which I have received from the noble Lord. However, preventing further breaches of the European Convention on Human Rights is, as the Minister accepted during the Committee stage of the Bill, a matter for immediate action. The Government have already acknowledged that this Bill is an appropriate vehicle for legislation on this matter by themselves putting forward an amendment permitting regulations to be issued on criteria; and, indeed, we have a new amendment—I think that it is Amendment No. 39—to be issued on criteria for admission to secure accommodation. However, the proposals in the clause for criteria are not only weak and ineffectual, but by its silence on the matter of judicial review it effectively condones the breach of the convention. The Government have received a legal opinion from the Attorney-General, as I have said, and there is now ample time to make any technical changes that are necessary and to include in the Bill legislation along the lines of our amendments, and particularly, of course, the new clause—Amendment No. 41.
During previous stages of the Bill the Government suggested that the promised review of the community homes regulations would provide a suitable opportunity for looking at what further safeguards, if any, young people locked up in the care system need. The Government have now acknowledged that further breaches of the European Convention can only be avoided by primary legislation. We accept that further detailed controls on the use and provision of secure accommodation can be dealt with during the review of the regulations—a review which must, of course, be preceded by full consultations. However, this primary legislation is long overdue.
Government figures released belatedly—and only after considerable parliamentary pressure—on 28th June, suggest that as many as 2,000 young people a year (some as young as 10, as I have already said) are being locked up for indefinite periods, in some cases for two and a half years or more, at the discretion of child care staff and local social services departments, and without any judicial review. My noble friend Lord Elystan-Morgan will say a little more about the new clause, Amendment No. 41, on judicial review, and so I think that I might now leave the matter and suggest that the need has really been recognised and that I hope the Government will respond and accept that their own criteria are totally unsatisfactory. I am not altogether happy with the criteria suggested by the all-Party group, although it is a good fallback situation. However, I hope that they will accept that our amendments are more apt for the moment.
Baroness Faithfull: My Lords, with your Lordships' permission, I should like to speak to Amendment No. 39 so that we do not go over the same ground all over again. The noble Baroness, Lady David, inserts "7 days", and Amendment No. 39 is the same amendment but puts in a longer period than that—it puts in three months. It seems to me that seven days is very short and also rather impractical to administer.
Lord Trefgarne: My Lords, I should like to deal briefly, first, with Amendment No. 35 and, before I sit down, deploy, what I fear will be, my rather slightly lengthier thoughts on Amendment No. 36. On Amendment No. 35, I am totally sympathetic to the intentions of the amendment, but I hope that the noble Baroness will not wish to press it because I believe that it is superfluous. The Government are already committted to revising the Community Homes Regulations 1972 and to introducing criteria for admission to and retention in secure accommodation. The existing regulations include a large number of references to periods of time; for example, the permission of the managers of a home that includes secure accommodation must be obtained if a child's placement is to extend beyond 48 hours, and that of his care authority if a placement is to extend beyond 28 days. There is, of course, the requirement for the three monthly reviews.
I can assure the noble Baroness that the revised regulations will also include references to periods of time, although not necessarily the same periods of time, and that our new proposals will be subject to full consultation. We do not need additional powers to achieve this and I hope that the noble Baroness will, therefore, not wish to press that particular amendment—that is, Amendment No. 35.
Turning to Amendment No. 36, and coupling with it Amendments Nos. 39 and 41, there are two aspects to the amendment. The first concerns criteria for the admission of children to secure accommodation. As I said on the earlier amendment, I am sympathetic to the intentions of the amendment; noble Lords will be aware of the amendment that follows this one, tabled in the name of my noble friend Lord Elton, actually covered much of the same ground.
I must say that I am attracted to the noble Baroness's introduction of the phrase:
"that no other method of dealing with him is appropriate",
and I shall certainly wish to bear those words in mind when it comes to revising the Community Homes Regulations in order to give effect to the criteria. The second aspect to this amendment concerns the introduction of a requirement that placements in security be subject to confirmation by a juvenile court after seven days. I was asked during the Committee stage whether present arrangements for the placement of children in secure accommodation are in breach of the European Convention on Human Rights, and I was unable at that time to give a definitive reply since the matter was still then the subject of consideration following preliminary legal advice. I said incidentally, that the matter was before the Law Officers, and I must apologise to the Law Officers since, at that time, it had not quite reached them. We had, however, sought an opinion from the legal advisers to my department.
Noble Lords pressed me about how long we might have to wait for an opinion, and I should like to pay tribute to the exemplary speed with which my right honourable and learned friend has been able to act in this matter. I understand that the case was sent to him on 2nd of July and my right honourable and learned friend, the Attorney-General provided his opinion on 12th July. I am extremely grateful to my right honourable and learned friend and his officials.

719
In the light of my right honourable and learned friend's advice, we think it better not to run any risk that our present arrangements are not compatible with the European Convention on Human Rights. During the Committee stage I told your Lordships that if legislative changes were thought to be necessary, we should seek the earliest feasible opportunity to introduce them. That remains the Government's position. We believe that legislation will be required, and we intend to introduce it as soon as possible. But we think the matter much too important to be rushed. May I explain to your Lordships how we intend to proceed.
Proposals have been drawn up which represent my department's first thoughts on arrangements to govern the use of secure accomodation. These proposals are intended to meet the criticisms that have been made and also the special needs of our residential child care system.
I should now like to describe, very briefly, the tentative scheme that we have devised. A local authority might be allowed discretion to place a child in security for up to seven days, provided that the criteria that will stem from Clause 24 are met. Any extension of the placement beyond seven days would require an application and a hearing before a juvenile court. The court may authorise the local authority to continue the placement. If, however, the court is not satisfied that the placement should continue, they may order that the child is transferred to open accommodation. The child and his parents or guardian would be encouraged to attend the hearing and they may be legally represented, and we are looking into the possibility of the court being able to sit in the community home involved.
The normal local authority three-monthly professional reviews of all children in secure accomodation would continue. After each review, the local authority would be obliged to inform the child and his parent or guardian of their decision and the reasons for it, and the parties concerned would be able to appeal to the juvenile court against any decision to continue the placement. It is thought that a suitable appellate body would be the Crown court, probably in cases like these consisting of a circuit judge and two lay juvenile magistrates.
Our intention is to consult widely on this tentative scheme. We intend to start the consultation process immediately. We think it very important that the local authority, the Magistrates' Association and the various professional bodies have the opportunity of giving careful consideration to what we are proposing. We shall wish to pay the closest attention to their views and to those expressed in this House and another place before bringing proposals to Parliament.
The arrangements to be introduced must be acceptable and workable. I hope the process can be concluded speedily. However, as you Lordships will readily appreciate, the process cannot possibly be completed in time for the legislation to be incorporated in this Bill. We would envisage similar but special arrangements governing the placement of youngsters subject to interim care orders and place of safety orders. In the case of those remanded to care we would envisage the review authority as being the juvenile court that makes the remand.
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I would like to say something, if I may, about the children who would be affected by the arrangements we shall eventually introduce. Secure accommodation is available for all children in care whose behaviour is so disruptive that they represent a danger to themselves or to other people, or who might place themselves at serious risk if they absconded. Placement in security is not a punishment and it is not confined to children who have offended. Secure accomodation in an environment for care and treatment for any child in care whose needs might best be met in those conditions.
At any given time, about 44 per cent. of the children in care are those who have been received voluntarily into care because their parents are unable to look after them, either for a short period or in the longer term. These children are unlikely ever to have appeared before a juvenile court. A further 6 per cent. are in care under matrimonial legislation and are there because special arrangements are necessary for looking after them because of divorce or other marital problems of their parents. The remaining 50 per cent. would be in care under the various provisions of the Children and Young Persons Act 1969, the largest category being those who are neglected or ill-treated by their parents. Only 15 per cent. of the total number of children in care are in care because they have offended, and a further group of a little less than 1 per cent. have been remanded to care because they have been charged with an offence.
The information available to us in fact suggests that the majority of children placed in security have either been charged with, or convicted of, an offence, but a sizeable proportion have not. In particular, children who have been neglected or ill-treated have often failed to develop the necessary social skills, or they exhibit violent responses, and there are children from unsatisfactory home backgrounds who have such a low self-image that they are prone to self-mutilation and may even present a serious risk of suicide. These are the frightened and unhappy children for whom a period in security may offer the best opportunity for developing the skills necessary for controlling their behaviour and learning to become successful adults. The DHSS working party report published in 1981 suggested that secure accommodation should be reserved for those children whose behaviour has demonstrated that the risks to themselves and/or society are too great for alternative forms of care to be appropriate.
The report said it should be a facility of last resort, to cope with persistent and serious offenders and children who repeatedly attempted self-destruction or serious mutilation, particlarly where those symptoms were associated with persistent absconding For such children it is suggested that a period in security may improve their social skills and basic education attainments, as well as providing the public with the protection it deserves and for the child with the opportunity for treatment. I do not think I could seriously disagree with that.
Those, in bare outline, are the proposals on which we shall shortly be consulting, and I now come to the amendment. As I said, the Government are sympathetic with the amendment's intentions, and the proposals I have just outlined have much in common

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with what is contained in it. I hope that in the light of such consultations we now propose to undertake, and the firm commitment I have given to seek subsequently an early legislative opportunity to introduce fully-considered proposals, the noble Baroness will withdraw the amendment.
Lord Donaldson of Kingsbridge: My Lords, I shall not start a long argument on this subject because it is a very difficult one. The philosophical background to what has been said is one of total confusion and the disaster emerges from having a criminal and a non-criminal care order. We in the All-party Penal Reform Group have always said we were against the criminal care order. But to suggest that if you say to a child, "You are in trouble. Your mother is unsound and is apt to beat you. We will take you to somewhere where you can be looked after and be kept safely", is in any way equivalent to saying to a child, "You are a very naughty child, a danger to the public, and we are going to put you somewhere where you cannot get out" seems so crude as to be almost unbelievable. It is like so many of the arguments we have had; they are not thought out at all. I shall not go any further now, except to say that I am totally dissatisfied with the philosophical background to the argument.
Lord Avebury: My Lords, nobody disputes the fact that secure accommodation is necessary for some children of kind the Minister described, although it was alarming to read of the nature of some of these units in a recent Guardian article in which it was stated that a great deal of money, I think £14 million, had been spent on units which had not in fact been used for the accommodation of children because when they came to be examined it was thought that the public outcry against the use of such accommodation would be so tremendous that no one could face it.
The important point the Minister brought out was that the advice that had been given by the law officers was that we might possibly run the risk of being in contravention of the European Convention on Human Rights if we did not provide for some access to the courts in the cases of children placed in such accommodation. The question really before your Lordships is whether we can do something in the course of these proceedings or whether, as the Minister said, it has to await substantive social security legislation at some future opportunity—and that, from the sound of it, would not be in the next Parliamentary Session because the noble Lord said that some extensive consultations would be necessary.
I accept that one could not proceed to an important and substantial new legislative commitment of this kind without taking into consultation all those who would be concerned with its implementation. There is, however, a contrast between this issue and what the Government have done in the case of night restriction orders—or curfews—where, so far as I am aware, the idea had never been ventilated until it arose in Committee in another place. There were then consultations which were rapidly rushed through so that the proposals could be incorproated in the Bill. Here, however, although the warning was given to the Government that they might be in contravention of the European Convention, only at the beginning of July
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were the Government in a position to take the advice of the law officers. I accept that they responded with remarkable alacrity. I congratulate the Government on obtaining a reply from the Law Officers within a space of two weeks. In my experience that would be totally unprecedented. Certainly if one writes to the Law Officers, one does not receive an answer within a month or two, and even then only if one is lucky.
I believe that the situation shows the sensitivity of the Government to the warnings which were given that we might be in contravention of the European Convention. I am not at all happy that we cannot do anything whatsoever at this stage, though I accept entirely what the noble Lord said about the consultations. I really dread to think that we shall be subject to yet more proceedings in the European Commission. I think that we have lost more cases there than has any other country in Europe, and this may well be because the Government are so reluctant to listen to advice which is given, often on the Floor of the House. I cannot refrain from pointing out to the noble Lord the Minister that on the question of husbands and fiancés I have twice warned the Government that in accordance with advice that had been given by Mr. Lester and the noble and learned Lord, Lord Scarman, they were in contravention of the European Convention on Human Rights, they are about to be found guilty, and they will have to alter the immigration rules.
Now we are going to do the same thing again. We know, and even the Government accept, that the advice is that we might possibly be in breach of the European Convention—the noble Lord himself admits it—and yet we have to start on rounds of consultation, and it might be 18 months before legislation can be introduced. I say that because I am fairly sure the noble Lord will have to tell us that the legislative programme for the Session 1982–1983 is already fully committed. So there is a risk that in the meanwhile proceedings will be started in respect of some of the children taken into the accommodation, and we find ourselves yet again in the dock in Strasbourg.
Therefore I wish that there had been an opportunity of including interim proposals in the Bill, even though one accepts that they might need to be altered later. I would ask the noble Lord whether, even at this late stage, it is not possible to think of some way of getting us in the clear on the convention and making arrangements, even within the scope of the present Bill, for coming back to Parliament later and securing alteration in the interim proposals, if the consultations that he has outlined would seem to demand it.
Lord Trefgarne: My Lords, with the leave of the House, I should like to respond to the point raised by the noble Lord, Lord Avebury. I have said that we would wish to bring forward legislation at the earliest possible moment. It is not possible for me to foreshadow precisely when that would be, but I can say that I should be very surprised if it proves to be as long a period as the noble Lord appears to fear. With regard to the Guardian article to which the noble Lord referred, I wonder whether he saw the letter from my honourable friend the Joint Parliamentary Under-Secretary at the Department of Health and Social Security, Mr. Newton. He wrote to the Guardian pointing out the number of inaccuracies that there were in the article.
9.54 p.m.
Lord Elystan-Morgan: My Lords, I should like to join the noble Lord, Lord Trefgarne, in congratulating the Law Officers on having so expeditiously delivered a joint opinion on this most important matter. It would come as no surprise to any Member of the House that it is now beyond any doubt that the United Kingdom is in breach of the European Convention. Indeed, anyone who looked carefully at Article 5, paragraph 4 of the convention would say that there is no way in which the present provisions could ever have come near the four corners of that most important paragraph. As the House will remember, the paragraph stresses two matters. It states:
"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful".
While we are now grateful for the fact that the matter has been definitively settled by the Law Officers, nevertheless there is a feeling of disquiet that it was only in June or July of this year that instructions were given to them to deliver their opinions on it. The whole issue had been canvassed in very great detail in another place at Committee stage in March and, later, at Report stage in May. Some very firm decisions were taken. Indeed, it was on the basis, no doubt, of some very specific legal advice that Clause 24 as it now appears in the Bill was drafted. Was that legal advice of the same nature as that now tendered by the Law Officers, or was it different? If it was of the same nature, how possibly could the Government have taken the decision they did in May in relation to Clause 24? If in fact no legal advice was obtained, was it surely not the most imprudent course conceivable to draft Clause 24 without having that fundamental matter settled once and for all?
My Lords, the undertaken given by the noble Lord, Lord Trefgarne, both on 28th June and today, is one that I am sure every Member of the House will find totally acceptable, but it may well be that the Minister is misconceiving the situation if he thinks that any cosmetic or even fundamental changes in the regulations can make an difference at all. The regulations simply cannot cure the situation. They do not set up a procedure that allows the person concerned to have recourse to a court—and it has not of necessity to be a court of law, but it has to be an independently constituted tribunal.
The regulations are made under a permissive piece of legislation that allows the Secretary of State the discretion whether or not to make regulations. The decision is not the decision of a court; it is not made by a court; it is not reviewable by a court, and therefore the regulations simply cannot accommodate the situation. There has to be primary legislation that brings about the very rights, and enshrines the very rights, that are referred to in Article 5.
I am sure that I speak for many in all parts of the House when I say that I personally am extremely disappointed when the Minister says that it will not be possible to incorporate legislation in this Bill. It may be much longer than the 18 months referred to by the noble Lord, Lord Avebury, before such legislation is introduced. Miscellaneous provisions Bills so
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far as criminal law reform is concerned tend to be rationed to one per Parliament, more or less; and, indeed, comprehensive legislation of the nature referred to from the DHSS again is something which comes only once every few years.
There is the grave danger that in the meantime the United Kingdom will be held up to the ridicule of other countries by being found guilty again and again in the European Court. We have indeed an embarrassing and shameful chapter of error and of failure in that connection; and I join completely with the noble Lord, Lord Trefgarne, in what he said on a previous occasion, that everything must be done as speedily as possible to remove this error in so far as the European Convention is concerned. But the noble Lord, with all his natural blandishments, comes to the House and says there will have to be consultations on this matter, and that, indeed, appears to be sweetly reasonable. But were there no consultations in relation to Clause 24? That was a radical review of the situation.
If the Government are now saying that there were no consultations before drafting that provision, then it seems that there is a strong case for saying that the eminently reasonable suggestions made by the Minister could now well be embarked upon without consultation. If, on the other hand, as I suspect to be the case, there were consultations embarked upon previously to drafting Clause 24, then those consultations must indeed be generally relevant as a background to this very issue. Therefore, we say that, although there is a case for consultations, the issue of consultations should never be used as an alibi for delay and inaction in regard to this most crucial matter.
I appreciate that the article in the Guardian of 6th July has been answered by the noble Lord's ministerial colleagues. Nevertheless, many questions still remain unanswered. Obviously, there has been embarked upon a substantial plan of very expensive capital expenditure in relation to the provision of further secure places. When was that decision made? Was that decision made in the light of the stricter criteria which already had been incorporated in the Bill; or was it made previously? If that decision was made previous to that, how realistic is it? We are talking of a very considerable amount of money, £14 million. The cost of placement of a child in any one of these places, we are told, is between £20,000 and £45,000 per annum.
My Lords, I have spoken for longer than I intended, but there is one point which should be made additional to what has been said. Being in breach of the European Convention on Human Rights is a very grave and important matter. What is even more important is that the House should recognise that there exists in our community a system that is utterly unacceptable and intolerable, a system whereunder as many as 2,000 children per annum are detained in conditions of secure custody without there being any decision of a court to sanction such and without such a situation being reviewed judicially. What is more disturbing is that over the years there is a clear pattern that the age level of those detained is falling all the time; so that now we have reached a situation when almost two-thirds of those detained are under 14½ years of age.
The Earl of Onslow: My Lords, I rise for a moment to support my noble friend on the Front Bench. He has surely acknowledged that there was something which we were all very worried about at Committee stage. I remember drawing a slightly exaggerated possibility of what could happen to a 10-year old locked up for ever. If my noble friend has said, as he has said, that he recognises that we are probably or possibly (call it what you will) in breach of the European Convention on Human Rights, and has promised that he will bring in legislation as early as possible—and I would suggest that it would be appropriate legislation to be brought into this House first because there will be nothing controversial in it—we should give him all the support we can to let him produce that legislation and resist this series of amendments.
Lord Trefgarne: My Lords, with permission, I should like to make two points arising from the remarks of the noble Lord, Lord Elystan-Morgan. Clause 24, about which he asked me closely, is a permissive power. It allows regulations to be made, and we shall be consulting about the regulations themselves. On the decision to embark upon the building of adequate secure accommodation, that, I understand, was made by the Labour administration of 1974–1979 mainly in order to provide adequate secure facilities to enable the practice of remanding juveniles to prison department establishments to be ended. That is a policy with which everyone agrees.
Incidentally, the number of children who were admitted to secure accommodation for periods of more than 48 hours during 1980 was just under 1,000 and not
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2,000; and the average age was around 15. I have undertaken that we should bring legislation in at the earliest moment to rectify this possible difficulty with the European Convention on Human Rights. I hope that that will be of satisfaction to your Lordships.
Baroness David: My Lords, of course we are very glad there has been an advance from the Committee stage at the Report stage and a good many things that we said then have been accepted by the Government. What we are not prepared to accept is that it is still impossible to do something in this Bill. I imagine that we are not going to have Third Reading until after the Summer Recess—that means October—and that gives several months. I am doubtful about the need for all the consultations which have been mentioned. There must have been consultations about this Bill and if we are likely to be in breach, we are in breach and action ought to be taken now. This seems to be the ideal opportunity. Talk of what goes on in the regulations is nothing to do with that matter but they cannot cope with that situation.
I think that there is a good deal of support for action being taken now. What I should like to do is withdraw these amendments now. There is not much doubt that we shall come forward at Third Reading with proposals—having read very carefully what has been said by the Minister today—and these will cover the situation at Third Reading, if the Government does not come forward with them. I hope that they will. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 36 not moved.]
10.7 p.m.
Lord Trefgarne Lord Trefgarne moved Amendment No. 37:
Page 28, leave out lines 3 to 6 and insert ("it appears—

(a) that he has a history of absconding and is likely to abscond from any other description of accommodation; or

(b) that if he is kept in any other description of accommodation he is likely—

(i) to injure himself or other persons; or

(ii) to damage or take other person's property.".").

The noble Lord said: My Lords, this amendment has been brought forward to give effect to an amendment which the noble Lord, Lord Donaldson, moved in Committee. The argument was, if I may paraphrase, that it was not good enough simply to say that a child could be held in secure accommodation if he was likely to abscond. That left the matter completely to a subjective judgment. The likelihood of absconding should instead be measured against a history of absconding. This amendment rearranges part of Clause 24, to provide that the child must have a history of absconding as well as being judged likely to abscond at the time when he is placed or kept in secure accommodation. I hope that this amendment will meet the noble Lords' purpose. I beg to move.
Lord Donaldson of Kingsbridge: My Lords, I do not off-hand accept paragraph (b). I accept paragraph (a) with gratitude. That is what we asked for and the noble Lord has given it to us. I want to say something about paragraph (b); and, having done so, I expect I shall be able to withdraw Amendment No. 38. In any case, if this amendment is agreed to I cannot move Amendment No. 38.
The subsection with which we are concerned reads:
"Without prejudice to the generality of this section, regulations under this section may contain provisions to ensure that a child may not be placed, and, if placed, may not be kept, in accommodation provided for the purpose of restricting liberty unless …"
The first proviso is the one which the noble Lord has just granted me. Instead of saying "to abscond" he says:
"it appears—that he has a history of absconding and is likely to abscond from any other description of accommodation …".
That seems perfectly reasonable and a good reason for putting such a child in conditions of restricted liberty.
The second paragraph covers
"to injure himself or other persons; or to damage or take other persons' property."
That remains the same in the noble Lord's amendment. We have suggested that instead of saying: "to damage or take other person's property" we should say:
"commit a serious offence involving damage to or taking of other persons' property".
What we are trying to do is obvious. We are trying to see that if a boy tries to steal an apple—which every boy does—it is not a good enough reason for any magistrate—and there are some bad as well as many good ones—to send him to secure accommodation without the slightest justification. As it stands, he would be within the terms of this Bill if he did so. This is what we want to get right. In his argument against it, the noble Lord has had to fall back on the drafting officers, who say that "a serious offence" is impossible to define. That may or may not be so,
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but the noble Lord or his colleague was perfectly prepared to use it in Amendment No. 33, which says that a care order is appropriate because of the seriousness of the offence.
What on earth is the difference? This is a trivial argument. The noble Lord is not being serious. The difference between the seriousness of an offence and "a serious offence" can only be trivial, so I do not regard this as serious, but I am not going to divide the House because the noble Lord has written me a very civil letter, in which he acknowledges his inability to deal with the drafting officers—and we have all had experience of this. I am reading from his letter now because I should like it on the record and I want the noble Lord to confirm what he means and what the Government mean. I quote:
"We certainly do not intend that a child could be placed in secure accommodation because he had committed a trivial offence of some sort and I can assure you that this intention will be made clear in the revised regulations which we intend to lay before Parliament in the next Session. We will be consulting widely about the revision of the Community Homes Regulations, and I am hopeful that a satisfactory way will be found of expressing in regulations the principle that the criterion of 'to take or damage other persons' property' does not apply to minor offences."
That is exactly what I am asking for. I would much have preferred to have it in the Act but, if the noble Lord will confirm that he has said that to me and also that it will go into regulations, I shall not press the matter further.
Lord Trefgarne: My Lords, again with your Lordships' permission, I happily confirm that the noble Lord accurately read a passage from the letter which I wrote to him and also that it is our intention to bring it forward with the regulations incorporating this point during the next Session.
Lord Donaldson of Kingsbridge: My Lords, I am grateful to the noble Lord.
On Question, amendment agreed to.
[Amendment No. 38 not moved.]
Baroness Faithfull Baroness Faithfull had given notice of her intention to move Amendment No. 39:
After Clause 24, insert the following new clause:
("Children not to be detained in secure accommodation for more than three months without the approval of the juvenile court.
.—(1) Where a child is for the time being in the care of a local authority, he shall not be kept in accommodation provided for the purpose of restricting liberty for a period exceeding three months unless within that period the authority has brought him before a juvenile court.
(2) A court before which a child is brought in pursuance of this section may, if it is of the opinion that no other method of dealing with him is appropriate, make an order permitting the placing or keeping of him in accommodation provided for the purpose of restricting liberty.
(3) An order made under subsection (2) above shall cease to have effect at the end of three months beginning with the date of the making of the order unless before the expiry of the order the local authority has brought the child before the juvenile court and the court has made a further order under subsection (2) above.
(4) A juvenile court shall not make an order under subsection (2) above in respect of a child who is not legally represented in that court unless either—

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(a) he applied for legal aid and the application was refused on the grounds that it did not appear that his means were such that he required assistance; or

(b) having been informed of his right to apply for legal aid and had the opportunity to do so, he refused or failed to apply.").

The noble Baroness said: My Lords, I hope that the other signatories to this amendment will agree with me that we have had a very full debate on it already when we were discussing Amendments Nos. 35, 36 and 41: and I do not propose to move this amendment.
Baroness Faithfull Baroness Faithfull moved Amendment No. 40:
After Clause 24, insert the following new clause:
("Review committees.
.—(1) Sections 20 and 90(3) of the Child Care Act 1980 shall have effect subject to subsections (2) and (3) below.
(2) Each local authority shall appoint a committee for the purpose of reviewing in pursuance of section 20 of the Child Care Act 1980 the cases of children in their care under care orders made under section 7(7) of the Children and Young Persons Act 1969.
(3) A committee appointed under subsection (2) above shall have among its members at least one justice of the peace.").
The noble Baroness said: My Lords, I beg to move this amendment, and I should like to make two points on it. The first is the point that I appreciate that there are regulations for reviewing children in care. When a care order is made, that order is made until the child is 18 years of age. Where there is good practice among social workers in the social services departments, reviews are taking place regularly and many children return home, or perhaps alternative arrangements are made for them. But, sadly and unfortunately, a number of children are either reviewed and perhaps the arrangements are that the children shall remain where they are in custody, or alternatively the organisation of a department is such or there are such pressures upon it that there are no reviews.
The second point is that I think we all hope that there will be much more relationship between magistrates and social workers. If there was much more interchange of information, work, ideas and views, there would be more understanding between the Bench and social workers. My social services department used to consult with the magistrate every six months, about every child that had been committed to care in the previous six months, and other departments do the same. This amendment recommends that there should be regular reviews, but that on the review committee of the social services department there should be an independent person of the local authority, who should be a magistrate. My Lords, I beg to move.
Lord Elwyn-Jones: My Lords, I hope that the noble Lord will find this a helpful suggestion, to involve the magistracy in this important stage of proceedings. It is a modest proposal. It means the involvement of at least one magistrate in six-monthly review committees, reviewing young offenders who are subject to care orders. There has been a good deal of concern about the position of young offenders who are subject to these orders, and I accept the importance of not letting the magistracy think that it is remote from what happens to the children after they have left juvenile courts. This is the kind of suggestion which I should have
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thought would be most helpful not only for the protection of children who are subject to care orders, but, as I said, for the increasing of confidence in the magistracy, because it is not wholly satisfactory if the determination of these matters passes out of their hands the moment that the child has left the court.
Lord Trefgarne: My Lords, may I first stress that I sympathise very much with the intention behind my noble friend's amendment. It reflects the widespread concern, which of course I share, about the need for careful and regular reviews of the case of every child in care. There is already a firm statutory requirement for authorities to carry out such reviews at not less than six-monthly intervals. There is also on the statute book a provision, originally enacted in the Children Act 1975 and now consolidated in the Child Care Act 1980, enabling the Secretary of State to make regulations which would govern the way in which such reviews are carried out. We are anxious that there should be such regulations and very much regret that we have been unable to bring them in for want of the very considerable resources—estimated at some £7·2 million a year—which would be needed. But when we are able to do so, we shall certainly be consulting widely with all interested bodies on the content of the regulations. There will be an opportunity for comprehensive consideration of the way in which cases should be reviewed. And that will be the right time, to my mind, to consider the very important ideas which underlie this amendment. In the meantime, I do not think it would be right or helpful to institute a procedure for one group of children in advance of this wider consideration, and in isolation from children in care generally for whom reviews are equally important. But I thank my noble friend and, indeed, the noble and learned Lord opposite for their views on this matter. I happily give the House an assurance that we shall bear these views most carefully in mind when we come to consider the specific matter of reviews. With that assurance, I hope that my noble friend will feel able to withdraw her amendment.
Lord Donaldson of Kingsbridge: My Lords, did I understand the noble Lord to say that it would cost £7 million a year to have these reviews? I understood from our discussion last time that we already had these reviews. All we are asking is that magistrates should be added to them. Who is going round the bend—am I, or is it the noble Lord? It cannot cost a penny, except the magistrate's fare, to add that to what is done now.
Lord Trefgarne: My Lords, with the leave of the House, as I understand it the existing reviews are conducted within the local authority, and thus the additional resources would be related to the magistracy, as the noble and learned Lord said. This costs money and that is the figure which I am advised it would cost.
Baroness Faithfull: My Lords, before the noble Lord sits down, may I query this figure of £7 million? I do not understand it, either. I am used to consulting

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the magistracy over care orders. As the noble Lord, Lord Donaldson, said, it costs not a penny. The magistrates meet in court. Therefore there is no rent. The only cost is their fares, which they probably do not claim. Could we have more information about this figure of £7 million?
Lord Harris of Greenwich: My Lords, it seems to me to be a very substantial sum. It may well be that the matter has been carefully thought through by the noble Lord's department, but could we be told how the figure of £7·2 million is reached? Would the noble Lord be helpful to the House and tell it precisely what are the constituent elements which go towards making up this total?
Lord Trefgarne: My Lords, I am not in a position to give to your Lordships a detailed breakdown of the sum to which I have referred, but surely it stands to reason that an additional load upon magistrates' courts or upon magistrates costs money. The magistrates' courts system is already a quite expensive system—not so much because of the salaries, because magistrates do not draw salaries, but they do draw expenses. And the premises in which they work are not constructed "for free". Where there is a total increase in the burden, additional facilities, like additional accommodation, have therefore to be provided. It is not necessarily the case, as my noble friend appears to think, that the existing courts can accommodate the extra load which will be imposed upon them by these new arrangements.
Lord Harris of Greenwich: My Lords, I apologise for pressing the noble Lord, but he will realise that the whole basis of his argument rests upon his statement that this will cost £7·2 million. It seems to me that if that figure is correct it is not at all unreasonable for us to ask the noble Lord how it is made up. Bluntly, it does not seem to me—and I suspect it does not seem to others—that that figure can deal with the question of magistrates' expenses. Magistrates' expenses are not quite on the scale which the noble Lord seems to suggest.
Lord Trefgarne: My Lords, the cost of introducing the regulations, for which statutory backing already exists, was assessed, I understand, by a working party of my department. It includes the cost of assisting parents and children who may wish to appear before magistrates. I wish to stand by the figure which I have given to your Lordships. I regret that I am not in a position to give a more detailed breakdown, but I have referred to some of the elements which go towards making up the cost. I accept that by themselves magistrates' expenses will not make up the £7·2 million, but there are the costs of the parents and the children appearing before the magistrates, the costs of the premises, to which I have already referred, and other, similar matters.
Baroness Faithfull: My Lords, before the noble Lord sits down may I ask this question—I am very sorry to press him but, as the regulations stand at the moment,
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there must be reviews. These reviews are held at the moment. I was used to having a computer in the department. It turned up every six months when the children had to be reviewed. The reviews took place in the children's section of the social services department, in a room which was not even hired because it was part of the office. It was heated because it was part of the office. Reviews automatically take place now. The only thing which this amendment asks for is that on those reviews which take place—because there are regulations for them to take place now—there should be one magistrate. One magistrate added to a committee which is already sitting could not cost £7 million.
Lord Mishcon: My Lords, would the noble Lord the Minister agree between now and the next occasion upon which we meet to review the review expenditure which he has just spoken about and let us have details, either by letter or otherwise, so that we can consider a figure which at the moment seems quite absurd?
Lord Trefgarne: My Lords, again with the leave of your Lordships, I have explained some of the elements which go towards the costs to which I have referred. However, I shall be happy to write to my noble friend and to the noble Lord, Lord Mishcon, with a whole page of information if that would be helpful to them.
I do want to explain to your Lordships that there is nothing between us on the principle of this matter. We certainly agree that these reviews ought to be brought in as soon as possible. I should not be inventing a difficulty, because I assure your Lordships that we like the idea advanced by my noble friend and supported by the noble Lord opposite, that magistrates should be involved in these arrangements. If there were no costs attached to this new arrangement I would certainly be accepting my noble friend's amendment. Unhappily, there are costs, and thus I am precluded from agreeing that we should introduce these arrangements forthwith. I want to introduce these arrangements just as soon as possible and as soon as we have the resources to meet the costs I have described.
Lord Mishcon: My Lords, I hope the House will forgive me for speaking twice; my intervention was short last time and will be just as short this time. If the noble Lord the Minister is saying that he agrees in principle and indeed wants to put this proposal into effect, and that the only thing standing between him and that very desirable result is the question of expense, does not the question of expense and its analysis by the noble Lord the Minister become imperative? Many of us feel that the figure he has put forward cannot be the correct one. If he finds indeed that it is a minimal figure, would he not agree that he could then carry out his promise and make this effective?
Lord Trefgarne: My Lords, again with the leave of your Lordships—and I am stretching procedure more than somewhat, I understand—certainly if I find myself to be seriously mistaken in the figure I have offered to your Lordships (which I do not think will happen) I will hasten to come and explain that to your Lordships.
Baroness David: My Lords, I hope that the noble Lord the Minister will question his department as we have questioned him, because this seems to be a totally unreal situation. As a member of a social services committee and as a magistrate, I find the whole situation totally unreal.
Lord Campbell of Alloway: My Lords, I hesitate to intervene but I feel that my noble friend on the Front Bench may truly have been misled by his department. It is a most important matter—this review of young people—and I do not know how one can get to £7·2 million, from what I understand of it. I believe that a mistake has ensued, and if a mistake has been made it would be wrong to allow this matter to stand. If a mistake has not been made, and instead I am mistaken, then I will withdraw my remarks.
Baroness Faithfull: My Lords, I am in very real difficulty. I am absolutely stunned at the figure of £7 million when £6 million is going to be apportioned to residential care orders and only £2 million elsewhere. I would rather the money went on intermediate treatment and residential care orders. I, like my noble friend Lord Campbell of Alloway, can only think that a mistake has been made. We all make mistakes and this is rather a stupendous mistake. Nevertheless, everyone is very busy and perhaps very tired bearing in mind the travelling of last week, et cetera. My noble friend the Minister has said he will look into this matter and that he will write to noble Lords who have spoken.
Lord Sandys: Order! My Lords, I believe that my noble friend Lady Faithfull is under some misapprehension. My noble friend did not say that he was going to write to all those noble Lords who have taken part. I believe that my noble friend should take this opportunity, if I may so commend it to her. Since my noble friend Lord Trefgarne has made a very reasonable suggestion for examining the situation, perhaps she will withdraw her amendment.
Lord Harris of Greenwich: With great respect, my Lords, this is a most important issue and that does not deal with the issue at all. The issue which has been raised on the Floor of the House is the accuracy of the figures. All we are asking for is a letter to those of us who have spoken in the debate, so that we may consider the matter before the Third Reading of the Bill to see whether we should come back to the matter and table further amendments.
Lord Avebury: My Lords—
Lord Sandys: Order!
Lord Avebury: My Lords, I have not spoken before.
Lord Trefgarne: May I say that I am certainly willing to write to my noble friend Lady Faithfull, and I will be happy to see that a copy of that letter goes to Lord Elwyn-Jones and perhaps to Lord Harris of Greenwich. I think Lord Mishcon would like a copy as well.
Lord Avebury: My Lords, it is no good the noble Lord, Lord Sandys, shouting "Order!" when I have not spoken on this amendment. I am determined to have my say. It would not be good enough, if the noble Lord has made a mistake on such a substantial issue, to write to noble Lords who have spoken. He must come to the Floor of the House and correct the no doubt unintentional misinformation given to the whole House. This is such a substantial error and it makes such a big difference to the way in which this amendment has been treated that it would be wholly inadequate for the noble Lord to limit himself to writing to those who have taken part in the debate.
Baroness Faithfull: My Lords, my noble friend Lord Trefgarne has said that he will look carefully at this matter, and I am sure he will; he is the last person to want to spend money that need not be spent. In the light of his assurance, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn
[Amendment No. 41 not moved.]
Baroness Masham of Ilton Baroness Masham of Ilton moved Amendment No. 42:
After Clause 24, insert the following new clause:
("Governors for community homes.
.—(1) Where a local authority provides, manages, equips and maintains one or more community homes under section 34 of the Child Care Act 1980, it shall be the duty of the local authority concerned to appoint for each community home a committee of governors which shall have among its members at least two persons independent of the authority.
(2) A local authority may make an arrangement for the appointment of a single committee of governors for any two or more homes provided by the authority.
(3) Any arrangement under subsection (2) above shall require the approval of the Secretary of State.
(4) A committee of governors appointed under subsection (1) above shall arrange for one or more of their number to visit the home at least once in every month and to report in writing to them on the conduct of the home.").
The noble Baroness said: My Lords, at Committee I moved an amendment so that community homes had boards of visitors as borstals have. All noble Lords and Baronesses who spoke were in agreement with having governing bodies or visitors, but some did not agree when I spoke of adjudication duties. The noble Lords, Lord Donaldson of Kingsbridge and Lord Harris of Greenwich, like myself, know what a help this can be, with the experience of borstal. I took the point of those who were not happy about this and now bring before your Lordships an amendment that ensures that all community homes have active governors who will visit these homes. Some community homes already have good systems of visiting governors, but others, such as the one my noble kinsman knows, are not so well equipped. It is important that we legislate for homes that need bringing up to a good standard of practice.
Community homes have a mixture of children; some are sent by the courts, and others need care and protection. Children are in the care of the local authority. Some of the children are very disturbed; some can cause a great number of problems. I am sure your Lordships will agree that not only can the governors become the friends and advisers of some of the children, who often have inadequate parents or parents who are in prison or hospital, but they can give support to

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the staff who often have to overcome many problems themselves inside and outside the homes. Governors can be a very important link with the community, who may not feel comfortable having a community home in their district. This amendment ensures what is already good practice in some community homes. I would have liked to have more safeguards written in when I think of the difficulties and problems some community homes must have, especially those with secure units. But it is a compromise. I hope the Government will accept it. If not, I hope your Lordships will, because this amendment brings local authority homes into line with the requirements laid upon the voluntary community homes. I beg to move.
Lord Donaldson of Kingsbridge: My Lords, I am happy to support this amendment. I must point out that it will cost money, though I doubt if it will cost £7 million. It does not mean one magistrate's bus fare; it means a number of governors coming from various places. The second point which is important is that, at our discussion in Committee, the feeling was that these governing bodies should not have adjudication powers. I do not think that this is implicit in this amendment and I think that it ought to be added.
Lord Trefgarne: My Lords, I have listened carefully to the remarks of the noble Baroness, supported by the noble Lord, Lord Donaldson. It may be helpful if, before addressing the particular issue raised by this amendment, I very briefly outline the different arrangements for management of community homes.
As your Lordships may be aware, community homes are either maintained, controlled or assisted. Maintained homes are provided, managed, equipped and maintained by the local authority. The Community Homes Regulations 1972 require the local authority to arrange for each maintained home to be visited at least once a month and for a report on the home to be made to them in writing by such persons as they consider appropriate. Controlled homes are provided by voluntary organisations but managed, equipped and maintained by the local authority. The local authority provides two-thirds of the managers and the voluntary organisation, one-third. Assisted homes are provided by voluntary organisations and are managed, equipped and maintained by the voluntary organisations, who provide two-thirds of the managers, with the local authority providing the remaining one-third. The Community Homes Regulations require the managers of both controlled and assisted homes to arrange for one or more of their number to visit the homes at least once a month and to report in writing to them on the conduct of the home. In all community homes, therefore, the local authority has some responsibility as to the proper conduct of the homes.
The amendment of the noble Baroness seeks to require local authorities to appoint a committee of governors which would include at least two independent persons. Members of the committee would visit local authority maintained homes and would report on their conduct. As I have explained, however, local authorities are already required to visit homes at least once a month and to receive a written report. This amendment, therefore, would duplicate existing provisions, with
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the exception that there would be a requirement to appoint independent persons. The local authority would thus be required to carry out the same duty twice, and I confess that I cannot see a great advantage in that.
While I cannot accept the amendment, I do not wish to dismiss it without further comment on the proposal to involve independent persons. During the Committee stage, the noble Baroness said that she considered it important to have independent people who can take an interest in the homes. I find the idea of involving independent people in visiting the homes an interesting one and one which we should like to consider further, but it would be illogical to introduce such an arrangement with respect to maintained homes only, excluding assisted and controlled homes. The most appropriate context for further consideration of this proposal will be the revision of the Community Homes Regulations which I have already referred to approximately 25,000 times during the passage of this Bill! I have already stated that we shall be revising these regulations shortly, and I can assure the House that the points which have been raised will be taken into account. I hope that the noble Baroness will be satisfied with that assurance and will feel able to withdraw her amendment.
The Earl of Swinton: My Lords, I am delighted to hear that reply, and even more delighted to see sitting on the Front Bench my noble friend the Leader of the House. I recollect the Education Act 1980 going through, and the stress that was laid upon bringing governing bodies into line and making sure that the best practices were established. I can absolutely assure my noble friend the Minister, because I have checked on this since Committee, that in two community homes in my area there has not been a member of the social services committee near the places for at least six years. They establish as their governing body the social services committee, and not one elected member has been near either of the two community homes in my area for six years. So I do not know who is preparing the written report—I suspect that it is probably one of the social services workers and maybe they can get away with it.
But having said that, I am absolutely delighted that my noble friend is going to look into the matter, and I hope that I might get some sympathy from my noble friend the Leader of the House. I am sure that it is something that must be dear to my own party when I think of all the hard work we have put into making sure that governors of every single school in the country were right and how much surely we need them for these children in these particular homes.
Baroness David: My Lords, may I suggest—and I think that I may have mentioned this in Committee—that, when the independent people are being considered for governors, people in the locality of the home should be borne in mind and not just magistrates? It is a very good thing to have local people on the governing body because they can strengthen relations between the children in the home and the community, and perhaps make the community more sympathetic to the purposes of the home and the children within it.
Baroness Masham of Ilton: My Lords, as this amendment is supported and actually drafted by the All-Party Penal Reform Group and it is meant to bring all community homes into line with each other, I hope that the Government will look at this very seriously and perhaps themselves come up with something at Third Reading. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
l0.42 p.m.
Baroness Masham of Ilton Baroness Masham of Ilton moved Amendment No. 43:
After Clause 24, insert the following new clause:
("Education in community homes.
. In Schedule 1 to the Local Authority Social Services Act 1970, at the end of column 1 of the entry relating to the Child Care Act 1980, there shall be inserted—
"Provided that the education of children in a community home with education on the premises shall be the responsibility of the local authority in their capacity of a local education authority.".).
The noble Baroness said: My Lords, it is because I believe that there is an anomaly that I move this amendment today. There are 2,165 community homes in England and Wales. That is the latest figure available. Out of those 2,165, 111 provide education on the premises. It is the 111 community homes with education with which this amendment is concerned.
Children at community homes which are not community homes with education are educated at ordinary schools, and their education is, thus, the formal responsibility of the local education authority, as is the education which is supplied to children in borstals and hospitals. But at the 111 community homes with education, for some reason which is far from clear, the education is the responsibility of the social service departments. I agree that if children have to be in a community home, that place of residence for the time he or she is there is home. But equally important is his or her education. Education for these children is vital and the standard of teaching—be it remedial or examination level—should be taught by motivated, experienced and first-class teachers.
At the moment the teachers in these 111 community homes are seconded by the local education authorities to the social services. This seems to be a second-hand situation. Why, if education in borstals is provided first-hand by the local education authority, is it not provided likewise in a CHE—a community home with education? At one of the most progressive boarding schools, Millfield, children live in houses with house parents. Their education is separate, coordinated by a tutor. Their care and home life is divided from their education. Is this not natural, like a child in a community home without education who goes out to the normal school to get his or her education?
These children would not be in community homes with education unless they had serious problems. This amendment seeks to raise their standard of education so that the education authorities take direct interest and responsibility. In the borstal to which I am attached we have an excellent education unit run by Leeds education authority. The teachers have a very good relationship with the other staff and find the work rewarding, and their pupils keen to learn.
I remember so well when I said goodbye to a gypsy who was being discharged. He proudly told me that he could now read a newspaper. When he came into borstal he could not read, write or tell the time. If children have to be kept in secure community homes costing the country a tremendous amount of money, I feel that school education is the best investment for the future we can give them. In 1978 a survey of educational provision in 21 CHEs on the premises was undertaken by some members of Her Majesty's Inspectorate of Schools. I quote from a passage of the discussion paper:
"Because CHE is not part of the normal education system, it provides an education isolated front general educational practice as well as from educational support services in the locality. Not surprisingly, under these conditions the education provided in CHEs is frequently at fairly low overall standards in spite of the commitment of many of the teachers. A radical reappraisal of assessment procedures of methods and of the curriculum as a whole is required."
I do not think I need say more. I hope that your Lordships will agree that there is a need to remove this unnecessary anomaly. I beg to move.
Lord Trefgarne: My Lords, I am grateful to the noble Baroness, Lady Masham, for having tabled this amendment because of the opportunity that it has given for consideration of the provision of education in CHEs. All but a very few children who are accommodated in CHEs are of school age, and it is of the utmost importance that the education they receive is or high standards and is relevant to their needs. Education in this context may also make a significant contribution not only to their adolescent development generally, but also to the alleviating of those difficulties that have led to their placement in a CHE.
My Lords, CHEs are multidisciplinary institutions. The majority of the staff are residential care workers. Teachers usually form the second largest group. And in addition there will usually be health staff, psychiatrists and nurses, and also psychologists, either employed or associated with the home on a sessional basis. The activities of these different professional staff need to be co-ordinated, and the head of the home, who has the day-to-day responsibility for such coordination, is usually a residential care worker. The management of CHEs is the responsibility of social services departments in the case of maintained and controlled community homes, and by the voluntary organisation in the case of assisted community homes, and it is these bodies that are responsible for the provision of education as well as care.
In some cases the teachers are employed by social services or by the voluntary organisation, and in some cases they are employed by the education authority and seconded. The noble Baroness has put forward the view that these arrangements weaken the ties between the education authority and the teachers to the detriment of the quality of education. Perhaps I may return to this in a moment. But I would like to point out that if the noble Baroness's suggestions were to be implemented, there would be a risk that co-ordination arrangements might be undermined, so that the children might receive care from one group of people, and education from another, and play one group off against the other. The quality of education is important, but co-ordination of provision is important too.

739
My Lords, under our existing arrangements, the proper support of teaching staff in CHEs is of the highest importance and we are broadly satisfied that their links with education authority advisers are adequate. Her Majesty's Inspectorate of Education inspected the education provided in 21 CHEs during 1978 and their report was circulated to all local authorities. As might be expected, they found much that was to be admired, and much that was capable of improvement, and matters like the need for in-service training for the teachers were highlighted. Signifiantly, although they made critical comments about the need for improved liaison with education departments, they did not recommend that responsibility be transferred.
The Warnock Report in 1980 did recommend the transfer of responsibility, and this recommendation was then the subject of discussion between my department and the Department of Education and Science. A series of regional conferences were held to ensure that the debate took place at local as well as at national level. The need for improvements was accepted, but there was no general conclusion that transfer of responsibilities would greatly assist in this. I am sympathetic to the intentions of the noble Baroness, but I hope she will withdraw her amendment. The quality of the provision of education in CHEs must be maintained, but her suggestions are not necessarily a panacea. They could create as many difficulties as they solved. I hope therefore that she will withdraw the amendment.
The Earl of Swinton: My Lords, for the second time this evening—it must be a record—I am actually supporting something proposed by my noble kinswoman, and that gives me pleasure. I am fairly satisfied with my noble friend's answer, but there are two small points I would mention. First, I think that there should be a close liaison. Obviously these children are coming from school when they go into CHEs and they will probably go back into school when they go out, so there needs to be a strong link between the schools they have come from and the schools they are going back to. Secondly, some form of career for the teachers would be welcome to ensure that they did not go into this form of teaching as a dead-end alley, as it were. There should be some way in which they could get back into the service, perhaps with promotion prospects, having done their spells. I hope my noble kinswoman does not press the amendment because I am glad the Government are aware of the problem and are keeping it under review.
Baroness Masham of Ilton: My Lords, I thank the Minister for his full reply. I tabled the amendment because I thought it odd that CHEs should be "one-outs", as it were, in that they are different from any other establishment which has education. Having read the review, which I recommend to your Lordships because it contains many interesting facts, I think there are some worrying things in it. Some of the education provided at CHEs is good and some not so good; it is patchy, whereas what we should all like is an overall good standard. Because I think the Minister will continue to look at the matter and because I hope the
740
Warnock Report will be examined again, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 25 [Payment of fines by parents and guardians]:
10.52 p.m.
Lord Mishcon Lord Mishcon moved Amendment No. 44:
Page 28, line 31, at end insert—
("( ) In taking the decisions required by subsection (1) above, the court shall have regard to such of the following considerations as appear to it to be relevant, that is to say—

(a) whether the parents have neglected to exercise due care and control of the child or young person,

(b) whether it is desirable that the child or young person himself should assume responsibility for payment of the fine, compensation or costs,

(c) the relationship of the child or young person with his parents and the likely effect on that relationship of ordering the fine, compensation or costs to be paid by the parent or guardian, as well as to any others which appear to be relevant.").

The noble Lord said: My Lords, at this time of night I think it would be sensible if I briefly outlined the points I wanted to make on this amendment and then did not attempt to divide the House; it would be an unfortunate and unaffectionate thing to do at this hour. I will therefore make those points now and give notice of them to the Government, so that we may deal adequately with them on Third Reading. Although there was a discussion of this clause—which deals with the imposition of fines made on young people, which under the Bill are payable by parents—I do not think it was picked up in Committee that this is a mandatory provision. One is slightly misled by the note beside the clause, in that it talks in terms of power of the court to make parents pay the fines of young people. The House will see that after paragraphs (a) and (b) in the new Clause 55 which is to be inserted in the Children and Young Persons Act 1933, the words follow:
"it shall be the duty of the court to order that the fine, compensation or costs awarded be paid by the parent or guardian of the child or young person".
Two conditions have to be fulfilled, but it is still the duty of the court to do so unless those conditions are fulfilled.
Secondly, I do not think the point was picked up in Committee that the provision in the Act gives no power at all to apportion between parent and child the fine, costs or compensation; it is an all-or-nothing provision. What we have sought to do in the amendment—though we have not picked up the question of apportionment, which we shall try to do by way of an amendment at Third Reading—is to see what considerations the court should have in mind before making such an order against the parent or guardian.
Having outlined the points that I wanted to make, what I feel I ought to do—I believe that it would meet the wish of the House—is formally to move the amendment, and then take it for granted that I shall have my contest on the matter at Third Reading. My Lords, I beg to move.
Lord Donaldson of Kingsbridge: My Lords, may I wait to Third Reading to make my comments?
Lord Trefgarne: My Lords, I am constrained not to wait to Third Reading but to give your Lordships a short recital of the Government's position on the amendment. As I made clear when we debated an identical amendment in Committee, the Government's aim is to clarify and simplify the existing law. Section 55 of the Children and Young Persons Act 1933 provides that the courts must, in the case of a child, and may in the case of a young person, order that any fines, costs or compensation awarded against him be paid by the parent or guardian, unless they cannot be found, or the courts are satisfied that they have not conduced to the commission of the offence by neglecting to exercise due care and control. We have simplified that by relying on the concept of reasonableness, trusting to the good sense and experience of the courts in deciding what is, or is not, unreasonable in the circumstances of each case.
We doubt whether "reasonableness" can be improved upon. No list of guidelines as to what "reasonableness" might be can cover every eventuality. After listing the three main factors which the All-Party Penal Affairs Group recommended should govern the decision whether parents should be ordered to pay their children's fines, the amendment has to end, rather weakly, with a catch-all reference to "any other" factors "which appear to be relevant". Why, when we have at bottom to rely upon magistrates' good sense—even in this amendment—can we not be honest and practical about it and return to the concept of sheer reasonableness which is already present in Clause 25? The amendment has only the dubious value of making Section 55 appear much more complicated than it really is. The Government have not come to that view without a good deal of thought. We have reconsidered Clause 25 carefully in the light of the long debate on it in another place, and the attention paid to it by the noble and learned Lord and his friends, and other noble Lords, during Committee. I should like to set out again the principles upon which Clause 25 is founded—
Lord Mishcon: My Lords, before the noble Lord does that, I should like to say that I hoped that he was not going to give a detailed reply, because I very fairly said what had not been considered last time. The noble Lord the Minister is repeating, with glorious paraphrase, the very arguments that he advanced last time; they are the same arguments. If the Minister will look at the Bill, he will see that it is not correct to say that the section provides that it is mandatory in the case of a child and only permissive in the case of a young person. I do not want to continue the argument now, but perhaps the noble Lord will follow the wording with me, and correct me if I am wrong. We are looking at Clause 25 which states:
"The following section shall be substituted for"
the section referred to in the Children and Young Persons Act. If the Minister will follow me, as I earlier asked him to do, he will see that the provision states
"it shall be the duty of the court"—
that means, that it must—
"to order that the fine, compensation or costs awarded be paid by the parent or guardian of the child or young person…"
The noble Lord the Minister was seeking to tell the
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House that the Bill at present states that it is permissive in the case of a young person and mandatory in the case of a child. With great respect, his brief is wrong—unless he wishes to correct me; in which case I shall apologise.
Lord Trefgarne: My Lords, again with the leave of the House—I think that the noble Lord intervened—I would say that I was referring to the present law which distinguishes between children and young persons. I accept that Clause 25 of the present Bill does not distinguish—
Lord Mishcon: Of course not.
Lord Trefgarne: My Lords, I was describing the principles upon which Clause 25 is founded. The family is the first and foremost influence for good or ill on a child's development. It is of the highest importance that parents exercise their influence for the good, and in this they most certainly must be supported by the law. The responsibility which parents have is one of the weightiest of the citizen, Parents cannot disown this responsibility. Parents may have difficulty; they may not be very good at exercising their responsibility; but they cannot disclaim responsibility for their children. Clause 25 is intended to reinforce this when children become delinquent. We start with the presumption that parents should be expected to accept responsibility for what their children do, not just up to 14, as in Section 55 of the 1933 Act, but up to 17. This is the basis of our approach in strengthening Section 55, and it is in this light that the Government looked at the tests proposed in this amendment and in the similar amendments which were tabled in another place.
I entirely accept that one cannot make the parents' responsibility for a child's wrongdoing absolute. Many young offenders come from broken homes. A single parent may well have done all possible, in most difficult circumstances, to bring a child up to be a responsible law-abiding citizen, but may not succeed. There will certainly be occasions when it would be wrong to make a parent pay the fine imposed on a child. That is already provided for in Clause 25. All that Clause 25 says is that the courts should be entitled to presume that a parent must accept a responsibility for a young offender's wrongdoings. To that extent one might almost say that the fact that a youngster had offended gave rise to a presumption that the parent had failed in his responsibilities.
This amendment seems almost to reverse the approach we have adopted by inviting the courts to seek out some positive signs of failure on the parent's part before requiring the parent to accept responsibility for the fine. I for one would have the strongest objection to the intricacies of the parent-child relationship being examined, criticised and argued over in this type of proceeding. And let us not forget that the fine is quite low on the sentencing tariff. If courts are considering the imposition of a fine, it is one indication that the juvenile offence is not likely to have been very serious. Yet this amendment might well encourage courts to direct the child-family relationship in damaging and embarrassing detail. Such an approach would be far more appropriate to care proceedings.

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The Government have, after long and careful consideration, concluded that the test of reasonableness used in Clause 25 is right. We must rely on the good sense of the courts to decide what is or is not reasonable in all the circumstances of each individual case. I therefore hope that the noble Lord will not press his amendment.
Lord Mishcon: My Lords, at this time a dream has been turned into a nightmare. I indicated to the House that I felt it was quite wrong to deal with a matter of this kind, especially when the noble Lord the Minister and I were at issue about what the clause actually means. It is not fair to the House and it is not fair to the public. Therefore, what I propose to do is to ask leave to withdraw this amendment at this stage and to come forward again at Third Reading, when we can have a proper debate on it.
Amendment, by leave, withdrawn.
Lord Denham: My Lords, I think we have probably reached the right stage, the end of Part I, at which we should interrupt the proceedings on this particular Bill. I beg to move that further consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.

West Yorkshire (Parking and Transport) Bill
Petition against the Bill from the British Railways Board withdrawn: order made on 19th April last discharged, and Bill committed to an Unopposed Bill Committee.
Epsom and Walton Downs Regulation Bill [H.L.]
Petition for additional provision of the Epsom and Ewell Borough Council, together with the proposed clauses and amendments annexed thereto, read and referred to the Examiners.
Severn-Trent Water Authority Bill
Brought from the Commons, read a first time and referred to the Examiners.