Criminal Justice Bill

HL Deb 23 July 1982 vol 433 cc1087-142

11.45 a.m.

Further considered on Report.

Lord Sandys moved Amendment No. 86A: After Clause 54, insert the following new clause:

("Deferment of sentence. 1973 c. 62

. Section 1 of the Powers of Criminal Courts Act 1973 (which gives a court sentencing an offender the power to defer passing sentence on him) shall have effect subject to the following amendments—

1. (a) in subsection (1), for the words from "to have" to "sentence" there shall be substituted the words "or any other court to which it falls to deal with him to have regard, in dealing with him";
2. (b) the words ", subject to subsection (8A) below," shall be inserted after the word "and" in subsection (2);
3. (c) the words "deal with" shall be substituted—
1. (i) for the words "pass sentence on" in subsection (4);
2. (ii) for the words "pass sentence on" in subsection (4A); and
3. (iii) for the word "sentence" in the second place where it occurs in subsection (5); and
4. (d) the following subsections shall be substituted for subsection (8)ߞ

(8) The power of a court under this section to deal with an offender in a case where the passing of sentence has been deferred thereunder—

1. (a) includes power to deal with him in any way in which the court which deferred passing sentence could have dealt with him; and
2. (b) without prejudice to the generality of the foregoing, in the case of a magistrates' court, includes the power conferred by section 37 or 38 of the Magistrates' Courts Act 1980 to commit him to the Crown Court for sentence.

(8A) Where, in a case where the passing of sentence on an offender in respect of one or more offences has been deferred under this section, a magistrates' court deals with him by committing him to the Crown Court under section 37 or 38 of the Act of 1980, the power of the Crown Court to deal with him includes the same power to defer passing sentence on him as if he had just been convicted of the offence or offences on indictment before the court.".")

The noble Lord said: My Lords, this amendment, with which it would be convenient to discuss No. 124ZA, gives effect to an undertaking given by the Government on Report in another place in response to an amendment which had the support of the Parliamentary All-Party Penal Affairs Group. Section 1 of the Powers of Criminal Courts Act 1973 gives the courts the power to defer passing sentence on an offender for up to six months from the date of his conviction. This is a useful power which enables the court to take account of an offender's behaviour after conviction where something points to a material change which might affect its decision about the appropriate sentence, such as the prospect of employment or marriage or where the offender has promised to make voluntary reparation. This may, for instance, lead a court eventually to give a non-custodial sentence where a custodial sentence might normally have been called for.

The effect of the amendment is to remove the present restriction in Section 1(8) of the Act on the power of magistrates to commit an offender to the Crown Court for sentence following a period of deferment. This provision was inserted in the Act by means of Schedule 12 to the Criminal Law Act 1977, following a decision by the Court of Appeal in R. v. Gilby. There has been consistent opposition to that decision, not least from the Magistrates' Association and the Justices' Clerks' Society, and it was argued strongly in another place that the present restriction inhibits magistrates' courts from ordering a period of deferment in cases where the eventual outcome might be a non-custodial sentence but where, if the offender did not respond to deferment, the right course might be to commit to the Crown Court for sentence, thus leading to a potentially unnecessary use of custody.

We agreed to give further consideration to this after consulting with the Lord Chief Justice, who concluded that magistrates should be given power to commit to the Crown Court for sentence in these circumstances, and that Section 1 should be amended accordingly. This new clause is the result. Amendment No. 124ZA simply repeals the now redundant provision in Schedule 12 to the Criminal Law Act 1977. I commend the amendment to the House and I think it will be widely welcomed.

Lord Elystan-Morgan

My Lords, we on these Benches greatly welcome the amendment. It gives magistrates' courts a highly desirable degree of flexibility, and previous to the decision of the Court of Appeal in R. v. Gilby, it was widely assumed that they had in fact enjoyed that power. We feel that the case for it is overwhelming, in that much may have elapsed from the time the court is originally seized of the matter to the end of the period of deferment, and for those reasons we greatly welcome it.

Baroness Trumpington

My Lords, I echo those feelings of gratitude to the Government. I am sure I speak on behalf of the members of the All-Party Penal Reform Group when I say how pleased we are about the amendment being made. If proof were needed of the flexibility of this Government, and in particular of the Home Office, for a sensible suggestion being taken up and implemented, this is it.

On Question, amendment agreed to.

11.50 a.m.

Lord Avebury moved Amendment No. 86B: Page 60, line 9, leave out ("Schedule") and insert ("Schedules 2 and").

The noble Lord said: My Lords, I beg to move this amendment and, with your Lordships' permission, I should like to speak also to Amendment No. 86C, and in doing so to give the noble Lord the Minister another opportunity of demonstrating the great flexibility of the Home Office and of providing a further example of the purpose of the Bill, which he repeated on several occasions under questioning by my noble friend Lord Wigoder the last time that we were dealing with it. He then said that the main objective that your Lordships have to tackle is a reduction in the prison population. In this pair of amendments I am concerned with a reduction in the prison population of persons who find themselves there as a result of the powers in the Immigration Act 1971.

The amendments seek to amend the Immigration Act 1971 so that bail would be provided in all circumstances where a person is liable to be detained, except of course where he is detained prior to examination by an immigration officer at the port of entry, and not just to the cases where the person has a right of appeal to the adjudicator of the tribunal. As the Act stands at present, bail is limited to those circumstances where a person has exercised the right of appeal against a decision by the Secretary of State or an immigration officer. A person detained normally has 14 days after the date of the decision to exercise that right, but in the intervening period of two weeks he has no right to apply for bail.

An immigration officer, or the Secretary of State, has power under the Act to grant temporary admission or release to persons who do not qualify for bail, but as those of your Lordships who have dealt with immigration cases will know, this system has serious disadvantages. The only conditions that can be attached are conditions as to residence and to reporting to the police, and that might be one of the reasons why the power is fairly sparingly exercised. We all frequently have people offering to come forward with sureties and other guarantees that they will comply with conditions, and of course they have to be told that this is not within the powers of the Secretary of State. There are no provisions whatsoever in the Act for a person so released under temporary admission to be subject to any other conditions, or for sureties to be provided. Therefore the amendments strengthen the terms upon which a person detained under the Immigration Act can be released, and add to the confidence of the authorities that it would be safe to do so.

I do not want to weary the House with a long list of examples of cases where a person is not able to apply for bail, but I should like to mention only one case, of which the noble Lord might be aware. It is that of Mr. Abdul Qayum Butt, who has now been in the Ashford Remand Centre for upwards of six weeks, having been detained after refusal of admission as a result of an exclusion order issued by the Secretary of State. Mr. Butt is awaiting attempts by the representative in London of the United Nations High Commissioner for Refugees to find him somewhere else where he can settle. This is an extreme example of the kind of thing that we face. Mr. Butt, who has committed no offence against our laws, and who, on the Home Office's own admission, is a refugee within the meaning of Article 1 of the convention, nevertheless finds himself occupying a place in one of our penal establishments for a virtually indefinite period without the right of habeas corpus, without the right to appeal to a court for bail, or the right to make representations for his release pending a complete solution of his case, other than those that are made unofficially through parliamentary channels to the Secretary of State. That example could be multiplied indefinitely, and I think that your Lordships can see how wrong it is that people should be detained in penal establishments in this manner, without any right of access to the courts, or to a tribunal.

The amendments provide for an adjudicator to consider a bail application unless the matter is one on which the detainee has a right of appeal to, or an appeal pending before, or has had an appeal determined by, the tribunal. In such cases an application can be made to the tribunal for bail; and there is an amendment to paragraph 29(4). Where bail can at present be granted under the Act, applications are considered by the ajudicator or tribunal, depending on the forum to which the detainee has right of appeal, and, your Lordships might think that in those circumstances when we are extending the right to apply for bail it would be proper also to provide that the person should apply to the adjudicator or the tribunal.

As the Act stands, there is no presumption of a right to bail specifically stated. As your Lordships know, the Bail Act 1976 sets out such a presumption in criminal cases, and it seems right that it is of even more importance to provide for such a presumption where a person has not committed any criminal offence. That point has been dealt with in the amendments by inserting the word "shall" instead of the word "may" in paragraph 29 (1) and (2). Paragraph 30(2) sets out circumstances in which bail can be refused; and that has been left unaltered. Indeed, the paragraph has been strengthened by inserting an additional head, (f), which makes it clear that the adjudicator, or the tribunal, as the case may be, can refuse bail if it is concluded that the detainee is likely to fail to answer to his bail.

It might be argued that it is wrong to grant bail to a person who is an illegal entrant, who has, for instance, just been apprehended on a beach, or a person against whom a deportation order has already been signed. I think that the answer to that is that the circumstances which resulted in detention are not in themselves the deciding factor. The real question that has to be determined is whether the person would abscond if granted bail. Clearly it would be a brave adjudicator who would grant bail to an illegal entrant with sand on his shoes. On the other hand, there are a number of cases at the moment where the Secretary of State has given temporary release to persons against whom he has already signed deportation orders, and clearly in such cases the Secretary of State must have satisfied himself that the deportee would not go to ground.

Similarly, an adjudicator ought to be able to grant bail in such circumstances where he can be likewise satisfied. Again, it should be emphasised that the bail system provides for more stringent conditions attached to release, as well as providing for surety. So the kind of conditions that are imposed by magistrates in appropriate cases include curfew, limitations on movement (such as not going into the West End) surrender of passports—and, by the way, under the Immigration Act there is no authority for an immigration officer to retain a passport—and so on.

Paragraph 30(1) has been deleted since it seems to negate the right to bail in deportation cases, because in all deportation cases where there is a right to bail under the Act the Home Secretary has the power to give directions for removal. I believe that it is generally agreed among those who have to deal with these matters that the sub-paragraph is badly drafted and is inconsistent with the other provisions. I beg to move.

Lord Campbell of Alloway

My Lords, I should like to say a few brief words in opposition to the amendment. The noble Lord, Lord Avebury, who has vast experience in these matters, at once recognises the problems of mandatory bail in the circumstances related to the gentleman to whom he referred. If he is allowed free, he tends to be difficult to find, much to the expense and inconvenience of the executive. The noble Lord also very fairly recognised that the effect of the run of the decisions of the courts is that the illegal entrant, in effect, has no rights. In these circumstances, is not the balance about right, and ought not the amendment to be rejected?

Lord Elton

My Lords, these amendments came somewhat late before your Lordships and changed their guise in one respect even later. However, their principal effect to which I shall address myself appears now to be to give to almost any person detained under the Immigration Act a presumptive right to bail. At present the only detainees under the Act who may apply for bail are those who either have an appeal pending or who after seven days are still held for questioning at a port, and except in certain circumstances there is no presumption in favour of it. This position will be a little altered by what was done in this Bill in another place. At the Committee stage the Government moved amendments to deal with a small and specific difficulty in relation to people recommended for deportation by the court. Under the present law such persons are detained unless the court directs their release, and that release cannot be made subject to conditions. We accepted that it was desirable for courts to have the power to impose conditions in these cases, and we did so because that would enable more people to be released, and this, as the noble Lord, Lord Avebury, rightly pointed out, is what the Government amendments are designed to achieve.

The amendments moved by the noble Lord go much further. They relate not only to persons recommended by a court for deportation but to almost all other persons who may be detained under the Act; that is, people at ports who have been refused leave to enter and are to be removed, illegal entrants who are to be removed, even people whom my right honourable friend has personally certified should be detained pending deportation procedures, and people against whom my right honourable friend has made a deportation order already. In all these cases the amendments would give a person a presumptive right to bail. In the Government's view, it would not be right to confer such a right. The Immigration Act already provides means by which such a person may be released where this is appropriate. A person who is refused leave to enter may be temporarily admitted by an immigration officer pending his removal. An illegal entrant may similarly be released. In the Government's view, the present arrangement provides a reasonable framework. There seems no justification for providing a right to apply for bail for a person who does not have a right of appeal. Furthermore, this would be an additional burden on adjudicators and, as my noble friend has rightly pointed out, on administrators and those who have to enforce the law, as well. We have sought to reduce the delays in the immigration appeals systems over the last two years and during that period there has been a very considerable improvement which has been particularly beneficial to dependants abroad applying to join their sponsors here. These amendments would tend to reverse the welcome reduction in waiting times for appeals to be heard.

A second major objection to these amendments is that they create a presumption in favour of bail for any Immigration Act detainee. It will be clear from what I have already said that there are powers under which such persons may be released where appropriate. The Government have taken steps to increase the use of these powers of release. Release should be considered wherever possible, and indeed it is. The fact remains that persons detained under the Immigration Act are in a special position. Their detention flows from the fact that their claim to be in the country is in doubt.

In many cases, there has been a definite decision to remove them. In such circumstances, and particularly bearing in mind the difference in many cases between conditions here and those in their own countries, they have a peculiarly strong incentive to abscond. My noble friend alluded also to this in guarded terms. This does not apply in the same way to any other single group, whether they have sand or snow on their boots. It seems quite wrong in principle, for instance, that where my right honourable friend has signed a deportation order against a person who will very shortly be placed on a ship or aircraft, there should be a presumption in favour of granting that person bail.

Under the Bail Act the presumption in favour of bail is enforced by the creation of a new offence of failure to answer to bail, for which a person may be imprisoned; but it would be anomalous to apply this to Immigration Act detainees. The object of the immigration control is to remove such people as quickly as possible, and it would make no sense for a passenger who was refused entry to be serving a sentence of imprisonment before being removed.

I feel I should say, in conclusion, that we should not exaggerate the scale of the problem. Under the present arrangements the average number of people in detention under the Immigration Act powers on any day last year was only about 145. This figure relates to all those detained for whatever reason, and to those detained at Harmondsworth as well as those in prison department establishments. I know and take well the point of the noble Lord, Lord Avebury, which he made in the debate on the last Report stage day of the Bill, that if even one person is helped then it is worth improving legislation, but this really is a very small number of people whose cases are in many instances really dubious; and, in some cases, the presumption of the right in favour of bail appears ridiculous.

There has been an increase in the use of temporary admission and there are proper powers already in the Act for release on bail. The arrangements for release have been improved by amendments made in Committee in another place. To go further, as these amendments seek to do, in my view could only damage immigration control. In the Government's view, reasonable though the Government and particularly the Home Office have been shown to be, these amendments seem to us unnecessary as well as wrongly conceived, and I hope they will not be received.

Lord Donaldson of Kingsbridge

My Lords, this amendment was really by way of a probing amendment and the noble Lord on the Front Bench has given us a very adequate reply with which I personally am satisfied.

Lord Avebury

My Lords, it was good of the Minister to deal with this matter in such detail, and what he has said has provided us with food for thought. I will say at this stage only that I do not consider it a small matter that 145 persons are detained in our penal establishments when they have committed no criminal offence. We shall certainly have to return to this matter, not perhaps at a later stage of this Bill—because I agree with the noble Lord that the amendments were tabled rather at the eleventh hour—but on some other occasion when we have the opportunity of going into the reform of the Immigration Act in a more comprehensive manner.

I do not think one can necessarily state that all the cases are dubious when the Secretary of State himself grants temporary admission to so many individuals with whom we are concerned on the basis of representations of Members of either House. There may well be merit in allowing somebody who has been refused leave to enter, or is alleged to be an illegal entrant, to be released while further consideration is given to his case. The noble Lord is well aware—it is remarkable—how carefully the Home Office always considers such representations as are made, but that is not the same from the individual's point of view as having a case tested in a court of law or a tribunal, such as the adjudicator.

Lord Elton

My Lords, the noble Lord refers to a point which I did not pick up from his earlier speech when he referred to the particular case of Mr. Butt, which is relevant to what he is saying. He could, of course, always apply for habeas corpus and by that means the basis of his detention could be tested; so there is a form of access to the courts.

Lord Avebury

My Lords, there may be a form of access but it is useless in this particular case because the provisions of Section 13(5) of the Immigration Act give the Secretary of State enormous powers over anybody against whom an exclusion order is signed, as the noble Lord is aware, and the merits of the case would not be tested in a court because where security matters are concerned the Secretary of State would not be obliged to state any other reasons apart from the fact that he had signed the certificate. I am afraid, therefore, that the remedy that the noble Lord proposes in the case of Mr. Butt is not one that would be very useful, and he may find that we have to adopt other means of securing Mr. Butt's liberty in the near future.

I do not wish to be drawn down that avenue because there are many other cases which are equally meritorious and which I believe would benefit from testing before the adjudicator or the tribunal. Although the Minister says that it would be wrong for them to have the benefit of the presumption which applies in the Bail Act, the noble Lord is aware that the courts have to be satisfied that the person who is applying for bail will in fact respond to it; and the same would apply if the immigrant were to go to the adjudicator or the tribunal. They would have to satisfy themselves, as the court does, that the immigrant would be likely to report when the time came; so there would not be the risk that the noble Lord alleges of a large additional number of absconders.

Nor, I believe, is the argument about the occupation of the time of the adjudicators with the number of applications for bail a valid one, because, of course, most of these cases now have to be dealt with by the Secretary of State, and the Minister responsible for these matters, Mr. Timothy Raison, has complained of the burden which he has to bear of 1,200 letters a month flowing through his office on which he occupies himself, he says, for two to three hours every day; and if your Lordships do the arithmetic you will find that he spends something like three minutes on each of the cases. If we could eliminate at least a part of that load by taking these cases to the adjudicator or the tribunal, I believe that Mr. Raison would be very thankful to your Lordships; but I accept that we are not likely to make any progress on those lines at this late stage of the Bill. With thanks to the noble Lord for the explanation he has given us, which will assist us when we come back to the charge, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 86C not moved.]

12.12 p.m.

Lord Elton moved Amendment No. 87: Before Clause 56, insert the following new clause:

("Immigration offenders.

.—(1) The following subsection shall be inserted after subsection (1) of section 24 of the Immigration Act 1971 (illegal entry and similar offences)— (1A) A person commits an offence under subsection (1)(b)(i) above on the day when he first knows that the time limited by his leave has expired and continues to commit it throughout any period during which he is in the United Kingdom thereafter.".

(2) In subsection (3) of that section (the effect of which is that persons who have committed certain offences under subsection (1) may be dealt with outside the normal time limits) the reference to subsection (1)(b)(i) shall be omitted.

(3) The amendments made by subsections (1) and (2) above shall not have effect in relation to a person whose leave expired before the commencement of this section.").

The noble Lord said: My Lords, I gave notice during the Committee stage of the Bill of this new clause, which is concerned with the offence of overstaying under Section 24(1)(b)(i) of the Immigration Act 1971. That section provides that a person commits an offence under the Act if, having only a limited leave to enter or remain in the United Kingdom, he knowingly remains beyond the time limited by the leave.

Before the Divisional Court's decision in 1973 in the case of Gurdev Singh, it was questionable whether the offence was a continuing one. It was arguable that the concept of remaining implied that it was. However, it was firmly decided in that case that overstaying under this section was not a continuing offence. This was in contrast to the position under the Commonwealth Immigrants Act 1962, where it was expressly stated that overstaying was a continuing offence. The court was largely reinforced in its view by the fact that Section 24(3) of the 1971 Act, read in conjunction with Section 28, provides an extended time limit for prosecution of overstayers of up to three years, after which any prosecution would be out of time.

The Divisional Court ruling in Gurdev Singh did not greatly inhibit the police in the successful prosecution of overstayers, provided the prosecution was brought within the three years' extended time limit, although it did increase the administrative burden of effectively enforcing the immigration control. The recent judgment given in your Lordships' House on 22nd April in the case of Grant v. Borg has, however, completely altered the position. It was then ruled that the offence of knowingly overstaying under Section 24(1)(b)(i) can be committed on the day after a person's leave to enter or remain expires, and on only that day. This judgment has seriously reduced the ability of the police to prosecute overstayers, because in many cases it will be difficult, if not impossible, to prove that a person did knowingly overstay on one day and one day only.

A particular difficulty arises where a person has an appeal pending against a decision to refuse him further leave to remain. He is not required to leave the country until his appeal has been determined, by which time his current leave may have long since expired. If he loses his appeal and fails to leave, the police will clearly find it very difficult to prosecute him.

The purpose of the amendment as set out in subsection (1) of the new clause is to ensure that the precise date on which a period of overstaying is commenced is no longer of crucial significance in prosecuting the offence, and it does so by providing, first, that the offence is committed when the person concerned becomes aware that his leave has expired, and, secondly, that thereafter (as in the 1962 Act) the offence is a continuing one. If this amendment is accepted, the Government see no need to retain the extended time limit for the prosecution of overstayers contained in Section 24(3) of the 1971 Act, and subsection (2) of the new clause therefore disapplies the provisions of Section 24(3) so far as overstayers are concerned.

Subsection (3) of the new clause provides that a person whose leave expires prior to the coming into force of the provisions of this amendment shall not be liable to prosecution under the new provisions. The amendment to Schedule 15 is complementary to subsection (2) of the new clause, and serves the same purpose.

I regret bringing this amendment to your Lordships later than I should have liked, but I have to tell your Lordships that the judgment in the case of Grant v. Borg was given only on 22nd April, and it takes a little time to study the implications and effects of such decisions, to consult with those affected by them and to draft and test the possible remedies. I hope, therefore, that the notice of my intentions that I was able to give to your Lordships at the Committee stage, by which time we were confident that we could have amendments ready for use, will have been of some assistance to your Lordships in what I realise is a difficult task. I beg to move.

Lord Elystan-Morgan

My Lords, may I invite your Lordships to consider a matter as a preliminary point before my noble and learned friend Lord Elwyn-Jones comes to deal with the merit of this amendment? I well appreciate what the noble Lord the Minister says as to the sudden change in the law that occurred in the decision of Grant v. Borg some three months ago. While having every sympathy with the Minister in his desire to put the matter upon the basis that was assumed to be the case previous to 22nd April, for my part—and I say this with great humility—I cannot see that such an amendment can fit within the four corners of the Long Title of the Bill.

I am sorry that notice has not been given to the noble Lord the Minister of this matter—it was in fact something which occurred to us on this Bench as the Minister was moving the amendment—but I understand from certain quarters that this is a matter which has been considered by the Minister's department. It does not seem to me that any of the matters described in the Long Title to the Bill can cover this. The first matter described there is: An Act to make further provision as to the powers of courts with regard to the sentencing and treatment of offenders". This amendment is not a matter of power; it is a matter of changing the substantive law.

The only other matter which could conceivably be prayed in aid, presumably, is the very last provision, and for connected purposes". Surely it is well established that where, after a long paragraph of objects that have been declared, such words follow, they are governed by the ejusdem generis rule. In the circumstances, I cannot see that any of the provisions set out there could accommodate the change which the Minister seeks to bring about.

Lord Elton

My Lords, I accept the apology of the noble Lord for not giving me notice of this difficult question, and, of course, his position was difficult because he had only (whatever it is) 10 days' notice that an amendment such as this was coming down, and it was published, I think, only a few days ago. However, the Government are particularly alert to questions of relevance in respect of this Bill, and have taken considerable care over such matters. I am advised that this amendment is relevant to the Bill because it deals with the problem of when proceedings can be brought against a person for the offence of overstaying under Section 24(1)(b)(i) of the Immigration Act 1971. It is, therefore, in essence, a procedural matter, and, so I am advised, it is relevant to the Bill.

Lord Elwyn-Jones

My Lords, perhaps in view of that positive statement from the Minister, I will not take that matter any further at this stage, but we shall have to give further thought to it because this important clause, with important implications, presented at the Report stage creates difficulties, and we shall have to give further thought to that preliminary issue. For the moment I do not wish to add anything further. As far as the merits of Amendment No. 87 are concerned, a three-months period of gestation, in our view, should have produced a better draft and a better situation. I have had communications from the Joint Council for the Welfare of Immigrants expressing their deep concern about this amendment. The matters which I invite the Minister to consider are, first, that the provisions of Clause 87 are unnecessary. There are ample administrative powers in the Immigration Act enabling the Home Secretary or his officials to detain and deport overstayers and there is no need for further criminal provision in regard to a situation which can be dealt with administratively.

If we are going to consider the provisions of criminal justice in regard to immigrants, I should have thought that the very uncertainty of the law relating to immigration would be a more satisfactory field for further investigation and change. There is a great deal of uncertainty about the law and its application, the extent to which the value of habeas corpus has been diminished by administrative actions in this field; and what I fear will be the result of this innovation, this provision, will be exacerbation of the position affecting immigrants and an increase in the unease which, I understand, now prevails.

One of the features of this new provision is that it will create a summary offence with no time limit for the taking of proceedings and, indeed, it goes in its language so far that during the period awaiting trial the alleged offender could be accumulating his offence. This is a preliminary consideration of this matter which, I confess, I have had very little opportunity of examining in depth myself but at this stage I want to raise these matters for the views of the Minister because this is, I fear, undoubtedly a matter which we shall have to consider further at the next stage of the Bill.

12.21 p.m.

Lord Avebury

My Lords, there is an unseemly contrast between the Government's approach to an amendment where our violation of the obligations that we have under the European Convention on Human Rights arose, where it was said that nothing could be done during the course of this Bill because of the extensive consultations which had to be entered into, and this problem where a minor question relating to the way we handle the matter of overstayers is of such urgency that it has to be brought before your Lordships at very short notice and rushed through the House without any consultations whatsoever and particularly with those organisations that represent ethnic minorities in this country. Even in the short time which they have had to scrutinise the amendments, they have already expressed grave alarm, as the noble and learned Lord has said, and, I believe, with good reason, because this is yet another instance of the way that the Tory Government is determined to hound the last over-stayer, illegal entrant and person in breach of any provision of the immigration laws with such high priority that measures to tackle it must be brought immediately before the House the minute any breach is disclosed.

The noble Lord the Minister said that 24(1)(b)(i) makes it an offence for a person having only a limited leave to remain in the United Kingdom knowingly to remain beyond the time limited by this leave. In the case of Grant v. Borg, which the noble Lord mentioned, the court decided that the offence could only be committed on the day after the leave expires. The position was that Mr. Borg, a non-patrial citizen of Malta, entered the United Kingdom on November 8th 1975 and was given leave to remain until the following May 8th. Then before that leave had expired on April 22nd he applied for an extension without restriction on employment. The Home Office took until the following January 17th to turn the application down and on January 31st the applicant called at Lunar House to ask for revocation of conditions on the grounds of his marriage to a woman with the right of abode.

That was refused by letter of the Home Office dated April 18th. On May 26th 1979, information was laid against Mr. Borg that he knowingly overstayed between April 19th and May 24th. To cut a long story short, your Lordships acting in a judicial capacity held that the offence could only be committed on the day after the limited leave to remain expired and if the immigrant remained in ignorance of some fact constituting a necessary element in the offence, his discovery of the fact later on would not make him guilty of the offence on the date of discovery.

It was an unsatisfactory feature of the law before this case that a person started to commit the offence when he knew that his leave to remain had expired. Thus, if he had appealed against refusal of variation of leave—for example, take the case of a student applying for a extension of his stay and having been refused—the adjudicator would send the decision in writing and as soon as the appellant opened the letter he would become liable to prosecution because at that point he was aware that he was committing an offence. At best, he might have had I suppose—I am not quite sure of the state of the law on this matter—until the end of the day on which the letter was received. Thus, if he was out when the post arrived and discovered the adjudicator's letter on his doormat only half an hour before midnight, he would have just 30 minutes to pack up his belongings, to sell his house, to withdraw his children from their schools, to book passages and to leave the country, because, at the stroke of midnight, he would have begun to commit the offence.

As matters stand, in the absence of this amendment, a person who reaches the end of his stay without applying for an extension does commit the 24(1)(b)(i) offence because he knows when he has reached the end of his stay; but the person whose application for extension has been turned down by the adjudicator and notified to him by post only commits the offence if the decision reaches him on the same day. The leave to remain expires on the day of the adjudicator's decision, but, if the immigrant does not know about it until the following day, then he commits no offence.

I should like to propose an alternative solution to this problem. It stems from the existence of two parallel systems of dealing with overstayers. Either the overstayer can be prosecuted under 24(1)(b)(i) —I hope the Minister is listening to me and perhaps he could pay attention instead of talking to the Chief Whip. I am talking about two parallel systems of control of overstayers which exist in our law and I am saying that either the person can be prosecuted under Section 24(1)(b)(i) or he can be removed under Section 3(5)(a). I want to ask why we need to have two systems because the person has no right of appeal on the merits of the case where it is dealt with before the courts. I think this is an important matter which the noble Lord the Minister should take into consideration in his answer.

If a person is found guilty by the courts of overstaying and if he is recommended for deportation, he can of course make representations to the Secretary of State; but, almost without exception, the Secretary of State will uphold the decision. The courts may think that they are leaving it to the Secretary of State to take into account any compassionate factors which there may be, but the Secretary of State obviously considers that these must be of an overwhelming character before he can overturn the recommendations of the court.

If on the other hand a decision is made to remove the person under Section 3(5)(a), then he has a right of appeal to an adjudicator. This enables him to deploy arguments about, for example, his length of residence in the United Kingdom, and the strength of his ties of a family nature or otherwise, and it is surely preferable to have these considerations tested before an impartial public tribunal than in secret before the very functionary whose decision is being questioned.

Therefore, the proper way to approach this matter, following the decision in Grant v. Borg, would have been to repeal Section 24(1)(b)(i) altogether and that would have left a single method of dealing with over-stayers which is manifestly fairer and more commensurate with the abuse of the immigration system which it seeks to remedy. We are not dealing with a bunch of hardened criminals. If I may give an example, take Miss P. To enable the Home Office to identify her the number is 255984. She was a student from Ghana. She asked her High Commission to help her apply for an extension. They slipped up and failed to lodge the application in time so Miss P. became an over-stayer and indeed the police called round twice to inquire after her.

I had to approach the Minister's office to call the police off while he was considering my representations. The Minister was satisfied in the end that Miss P. was a genuine student and he allowed her to remain. Miss P., of course, could have been prosecuted and, if the Government get this amendment, somebody in her position in future would continue to commit the offence throughout the whole of the period during which representations were being made on her behalf.

Take Mr. L. That is No. 146322. He was a long-term overstayer who had lost his home in Cyprus because of the Turkish invasion. He married a British girl in 1981, which was 10 years after he first arrived in this country, and he was allowed to stay on the basis of his marriage.

Then there is the case of Mr. T. That is No. 122366. That was a particularly interesting case because the Minister, Mr. Raison, said to me in a letter: …it is our understanding that an overstayer can only be prosecuted a second time if he has committed a further, and entirely separate, overstaying offence". Mr. T., who was a citizen of Sierra Leone, was convicted of overstaying, at High Wycombe Magistrates' Court on 31st August 1971. Just before that, on 20th July, he married a patrial woman. On 14th December 1978, the Home Office sent Mr. T. a form, IMM157, threatening him with prosecution again. If this amendment is passed, Mr. Raison's statement will have to be modified or rescinded because it would be quite possible in the circumstances that I have described for Mr. T. to have been charged again and to have been convicted and fined up to £200, whereas in fact on my representation Mr. Raison granted him indefinite leave to remain.

Finally, a case that was reported, so I can give the name, that of Mr. and Mrs. H. Uppal, citizens of India, whose little boy, Jatinder, had severe disabilities which were remediable by surgery. Mr. and Mrs. Uppal's case went to the European Commission for Human Rights and was declared admissible. The execution of a deportation order against them was suspended. In the end, they were allowed by the Secretary of State, to stay on the basis of compassionate circumstances.

What these people have in common is that they were overstayers and yet still the Minister, Mr. Timothy Raison, who is very humanitarian and gives very careful consideration to representations, finally decided that their cases were meritorious. All I would ask is that others should have the right to deploy arguments on their own behalf such as in these incidents were deployed by someone else for them before the Minister, as best they can before an impartial tribunal as to why they should be permitted to stay in this country even though they may have been in breach of the Immigration Act. Instead of having to take every single case before the Minister—and I repeat what I said in the last debate, that he has an enormous number of cases to consider—they should be heard before a tribunal which I underline Parliament has constituted for this very purpose.

So I hope that the Minister will not seek to press this amendment but will take it away and give it further thought in the light of the considerations that I have now advanced.

Lord Renton

My Lords, a great deal of what the noble Lord, Lord Avebury, has said with great sincerity Roes far beyond the scope of this amendment. One must bear in mind that the people of this country expect our Government and Parliament to maintain an effective control over illegal entry. This amendment, which is of a somewhat technical kind—although I agree it has practical implications for those concerned—is a way of enabling the people who attempt to enter illegally to be dealt with on the basis of the continuing offence.

This is not an isolated example of continuing offences being dealt with by the courts. There are other examples which will occur to noble Lords, but I do not wish to elaborate upon them at this stage of this short debate. My noble friend Lord Elton has my full support in what he said regarding this amendment.

Lord Avebury My Lords, before the noble Lord sits down, will he think again about what he has just said because his whole speech was misconceived? This amendment is not about illegal entrants but overstayers.

Lord Renton

My Lords, with great respect to the noble Lord, it applies equally to those people who have entered illegally and find some reason for remaining here. Then it is pointed out to them that they have no right to be here and then they overstay. If I have misconceived the matter, then of course I apologise. But it seems to me that a great deal of what the noble Lord said was beyond the scope of this amendment and that the comment which I made was a perfectly valid one.

Lord Avebury

My Lords, if the noble Lord will look at Section 24(1)(b)(i) he will see that it is about persons who have only a limited leave to enter or remain in the United Kingdom. Therefore, they were legally in the United Kingdom prior to the commission of this offence. They were not illegal entrants, as he said.

Lord Mishcon

My Lords, I wonder whether it would not be the view of the House, and hopefully of the Minister, that by virtue of the fact that there are strong feelings first about the whole relevance of this amendment to this present Bill, and secondly about the merits of this clause, which obviosuly ought to be debated in an entirely different atmosphere from this Bill, it would be appropriate to withdraw this amendment.

Lord Denham

My Lords, if I may come in here, I think that it is very important that the relevance of this matter should be settled beyond any doubt of anybody in this House. Under those circumstances, perhaps the suggestion of the noble Lord, Lord Mishcon, is the right one. The only proviso I would put in is that this is already Report stage. If this important—and I think rather controversial—amendment was introduced at Third Reading, it would then be fairly late in the proceedings. If the House were prepared to accept that course as being the lesser of two evils, I would certainly advise my noble friend to withdraw the amendment at this stage, settle the problem of relevance, and come back to the merits at Third Reading.

Lord Elwyn-Jones

My Lords, I think that is a sensible course. We face this question—if I may speak for myself—with inadequate preparation. The course that is proposed by the Chief Whip would certainly not create a proper ground of any Motion to seek to withdraw at the Third Reading stage. I will endeavour to see that we behave responsibly and of course honourably in regard to that situation. I think that that is the best practical solution at this stage.

Lord Elton

My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 11 [Provision of premises for young offenders etc.]

12.40 p.m.

Lord Elton moved Amendment No. 87A: Page 94, line 38, leave out from ("2") to end of line 42 and insert ("(3) of that Act (probation orders) for the words "and 4" there shall be substituted the words ",4A and 4B".").

The noble Lord said: My Lords, I beg to move this amendment, and it would perhaps be for your Lord-ships' convenience if I also speak to Amendment No. 121A. These amendments simplify the drafting of Section 2(6) of the Powers of Criminal Courts Act 1973, which requires courts, when making probation orders, to explain to the probationer the effect of the order and any requirements attached to it. These are purely drafting amendments; they do not affect the important principle that courts should explain to the probationer the obligations which he will be undertaking. I beg to move.

On Question, amendment agreed to.

Lord Mishcon: moved Amendment No. 88: Page 95, line I, leave out ("sections") and insert ("section").

The noble Lord said: My Lords, with the permission of the House, may I deal in one speech with Nos. 88, 89 and 90? At Committee stage, Schedule 11 was introduced into this Bill and various thoughts have been expressed by probation officers and others in regard to that measure. Really, the purpose of these amendments is to give expression to certain thoughts rather than to take the view of the House at this stage on the provisions in Schedule 11, as it is now in the Bill. We thought it more convenient to re-draw a clause rather than to move a series of amendments and make separate speeches on them; so I wonder, therefore, whether your Lordships would agree with me that the convenient way of dealing with the matter from my point of view is to go through the various subparagraphs of this amendment—very briefly, I promise your Lordships—in order to make the point that I believe each subparagraph has got.

If your Lordships will turn to Section 4B(1) of the amendment—this has relevance also to subsections (5), (6) and (7)—may I remind your Lordships that there are at present some 80 day centres which are run by the probation service, but only a few of those deal with conditions of attendance. The main business of these centres is to deal with those who go there perfectly voluntarily and not by virtue of any condition. These day centres have a very useful function in the preventive approach which all of us are anxious to strengthen in regard to crime. They operate best through this voluntary idea, and the anxiety has been expressed that this change in the law in Schedule 7 should not in any way prejudice the continuance of the usefulness of those centres. Indeed, they are part of a wider tradition of day centre provision in the personal social services.

Here I am referring obviously to the mentally ill, the handicapped, the elderly and the disabled, and for those the term "day centre" is the appropriate description. Centres involving conditions of attendance have had a distinct title "day training centres"; and the thought expressed in subsection (1) is that this is a little confusing, to say the least, and that where you have conditions operating our suggestion would be that the title "probation centre" should be there in order to distinguish between the two types of facility.

I turn now to Section 4B (2)(a). The day training centres were established in 1972 to 1973 by way of an experimental alternative to custody. It is considered, certainly so I understand, by probation officers, that these centres have established a very acceptable standard of practice and have largely succeeded in taking people who would otherwise have gone to prison. The concern that has been expressed to us over the Government's proposal is that this feature may be lost in the arrangements now suggested and that conditions of day centre attendance may be imposed on those who would otherwise simply have been placed on probation. That is why we have introduced into this amendment, (2)(a), which makes it very clear that the courts will be postitively encouraged to use this measure as an alternative to custody.

Turning now to (2)(b), the main purpose is to make sure—1 am not sure myself whether this is so—that day centre attendance is recognised sometimes to be appropriate in combination with out-patient treatment as distinct from in-patient treatment. Therefore (2)(b) makes it clear that this would be limited to those who are receiving in-patient treatment. That is the purpose of that subsection.

Turning now to (3)(a), as your Lordships will see, we suggest here a shorter period of compulsory attendance than 60 days. The 240 hours proposed would permit 8 weeks' attendance as a maximum, and it is thought that within that period one could very clearly see whether the whole idea of day centre attendance for the person concerned was proving useful and constructive. Obviously, where a longer period of attendance could be found to be useful it could be used as a second phase, on a mutually agreed basis. To explain why this is better expressed in hours then in days, may I point out that it allows greater flexibility in making arrangements, particularly for those who are in work. The further limits of six hours a day and five days a week are safeguards also against an unreasonable and excessive intrusion into normal life.

Your Lordships will remember that the nobl Minister indicated to the House that this new measure should not introduce a custodial element. Obviously, we are all concerned—certainly the probation officers are concerned—that these conditions should be consistent with the principles outlined in the judgment we have heard so much of; that is, Cullen v. Rogers, which dealt with custodial elements. There has been an example of a centre which develops an emphasis on containment and control which amounted to a semi-custodial environment, and it is felt that the limits suggested in this paragraph would help to maintain a proper emphasis on constructive purpose rather than containment.

Perhaps I may now turn to subsection (6), and again this is relevant to the Cullen v, Rogers judgment, and apart from that, is in line with the good practice established by the day training centres. It is thought that there must be a very serious measure of care taken over the establishment of these centres. Where a court orders someone to attend a facility, it is obviously important that the place has a suitable standard, and the Government propose extending conditions to centres which will not be run by the probation service. We think that attendance at such places should be arranged on a voluntary basis, and that conditions should affect only centres administered by the probation service. But to maintain a degree of uniformity and a collective definition of standards, the approval of the Secretary of State should surely be maintained, as it was for day training centres. In case the question of expense comes into this, one would have thought that all that was necessary was a laying down of basic conditions which, if met, led to approval. Therefore, this need not be an expensive or excessively intrusive measure.

Lastly, I turn to subsection (7), and it is thought that this addition to the Government's provision is of crucial importance. Again, it gives effect to the judgment in Cullen v. Rogers and, indeed, to the noble Lord's statements about the Government's intentions, to which I referred a moment ago. Without any doubt at all, it would help to clarify in the mind of anybody the aims of probation centres, and it is our belief that these should be essentially similar to the aims of probation, with an emphasis on constructive activity and training. This would be a safeguard against a tendency to use the probation order as a vehicle for imposing a semi-custodial sentence.

I hope that I have given fairly clearly the reasons for each one of these subsections. I repeat that we were faced at Committee stage with Schedule 11. We obviously want to know whether we have added constructively to the Government's thinking on this matter and, from that point of view, I regard this as a probing amendment. If there are factors that we have advanced which commend themselves to the House, I am sure that the Minister will feel that the moving of this amendment will not have been in vain. My Lords, I beg to move.

12.53 p.m.

Lord Elton

My Lords, as your Lordships will have learned from the, as always, lucid explanation of the noble Lord, Lord Mishcon, the effect would be to delete the new Section 4A of the Powers of Criminal Courts Act 1973, which is inserted by Schedule 11 with which the noble Lord was wrestling at the Committee stage. This new section deals with the powers of courts to include requirements in probation orders. It was among the provisions which I introduced as an amendment during the Committee stage, and these innovations were made in response to the judgment of this House, in its judicial capacity, in the case of Cullen v. Rogers, to which the noble Lord has alluded.

The House will recall that the judgment concentrated on requirements to attend day centres. However, it also put into doubt the validity of several other types of requirements which the courts had been accustomed to make. The new Section 4A of the 1973 Act is designed to give courts the power to make these requirements which it was previously assumed they did have. The section is couched in general terms, and it may help the House if I explain what exactly the clause enables the courts to do, in the same way as the noble Lord has admirably elucidated the case for his amendment.

First, it empowers courts to require probationers to attend a place specified in the order for up to 60 days. What we have in mind here are not day centres geared specifically to the needs of offenders; those are covered in the new Section 4B. Section 4A is concerned with other places which can also be very helpful to probationers if they go to them. The sort of thing we have in mind is centres for alcoholics and drug addicts or, indeed, colleges providing courses in basic numeracy or literacy. Such places can be very beneficial to some of the more socially inadequate offenders who come before the courts.

Probationers may, of course, be encouraged by their probation officers to attend voluntarily, but it is widely thought that a short initial period of required attendance will often be helpful. I know that the National Association of Probation Officers suggest that attendance at these places should always be entirely voluntary, and I wonder whether we could, therefore, consider for a moment the context in which the requirement will operate.

The sort of people we are talking about will very often be thoroughly at odds with the whole of society and deeply suspicious of almost any form of institution; they will expect the worst of it. It requires considerable persuasion to get them even to consider making use of one briefly. That suspicion can be reduced if they can be persuaded at least to sample the wares, and the persuasion which is very necessary to the welfare of the person concerned is best given while the terms of the order are being agreed with him and the parties to it. The presence of the requirement in the order, which, I repeat, he has himself agreed, will stiffen his resolve to make the experiment and thereafter, if all goes well, having had his resolve stiffened by the requirement in the order to make an experiment, he will continue his attendance without even the need for the requirement itself to continue. This provision, therefore, is intended to give the probation service the scope to work in the community with the type of inadequate offender who sometimes ends up in a custodial institution for want of a more appropriate disposal.

Secondly, the new section enables courts to require probationers to participate for up to 60 days in activities specified in the order. This provision is aimed at the schemes of group activities which are now being developed in some probation areas. These schemes can best be described as the adult equivalent of intermediate treatment. They are dealt with separately, because they do not always take place in one location. The nature of the activities is very varied; some involve training in social skills and group counselling, while others include physical activitity. These schemes are usually aimed at offenders in the 17- to 21-year old age group, with long and serious criminal histories. The aim is to provide a constructive but demanding programme for probationers who would otherwise have been at serious risk of a custodial penalty.

Probationers have rights, and we recognise these. These powers are, therefore, balanced by safeguards to protect them. In accordance with the fundamental principle of the probation order, a court will not be able to make any of the requirements that I have described without the consent of the probationer. There is a genuine element of voluntariness running throughout the whole of the order. These new provisions, therefore, preserve intact the traditional contractual basis of the probation order—not only that; before making any of these requirements the court will also be obliged to consult a probation officer.

In practice, courts will usually fulfil this requirement by considering a social inquiry report. In this, the probation officer will have suggested a package of requirements geared to the offender's particular needs. The officer will already have carefully explained the nature of the proposed requirements to the offender. The offender will, therefore, have agreed to the requirements in full knowledge of the obligations which they entail. Finally, the consent of any third party involved must also be obtained.

The new section also gives courts express powers to make negative requirements; that is, requirements to refrain from participating in specific activities. They have nothing whatever to do with a night restriction order. They are aimed at particular activities: drinking in a certain pub, going to specific football matches and so on. There is nothing new in such requirements. The courts have been making them for the last 75 years or so. They have been making them under provisions which, until 10 weeks ago, were seen to be perfectly adequate for the purpose. The case of Cullen v. Rogers put them in doubt. Although they have been used on a decreasing scale of late, nonetheless we think that this is very well established practice—75 years is a long time—and that it should not stand at risk now as a result of that judgment.

The aim of the probation order is to prevent the probationer from re-offending. This involves offering counselling and support to help him overcome his problems, but in exceptional cases it can also mean trying to prevent him from putting himself into situations where he is at special risk of committing an offence. In those circumstances, a court might feel that it can help towards this end by making an appropriate negative requirement—as many of your Lordships have done, no doubt, within the family. In a difficult case, the possibility of making such a requirement might be the only factor which persuades the court not to pass a custodial sentence. That is worth bearing in mind.

Courts will only be able to make negative requirements with the consent of the probationer and after consulting a probation officer. These are important safeguards which should prevent the imposition of unenforceable or impractical requirements. We should also remember that if it subsequently turns out that a court has made a requirement which, for some good reason, the probationer cannot fulfil, then application may be made either by the probation officer or by the probationer for the requirement to be cancelled. Of course, the probation officer cannot personally ensure that the probationer observes every requirement. It is not his job to police his client's every movement. His responsibility is to explain to the probationer what the requirement means, why the court thought it necessary to make it and why it is important that it should be obeyed. If, however, it is discovered that the probationer has not observed the requirement, there is no question but that he can be brought back before the court.

The purpose of the new Section 4A—I am drawing to a conclusion, but the noble Lord asked me to think constructively and I am trying to put before your Lordships the thinking behind this clause—is to put the interesting and important developments which are being made with the probation order on an indisputable statutory basis and to put existing practices on an unquestioned footing. These developments are firmly rooted in the best traditions of probation. Their aim is to eliminate or to reduce the chances of the probationer re-offending by tackling at the root the problems which led him into criminal activity. The only difference is that the probation service is now using new methods for supervising inadequate and difficult offenders for whom it used to be thought that custody was the only answer.

This is important work. I can well understand that not all probation officers will wish to recommend requirements of this kind to the courts. They have professional views which incline them to work with offenders in other ways and they are well entitled to them. But new Section 4A does not compel anyone. It only permits certain developments. One of the great attractions of the probation service is the flexible way in which it can respond to the needs of clients. I am sure that in the future there will be probation officers who prefer to relate to offenders in ways quite different from those set down in this part of the Bill, but there are others who will wish to take advantage of the provision in the new section so as to expand their method of work. Sentencers will doubtless react in similar ways, and that is all to the good. What we are seeking to achieve is to open up new possibilities, to encourage greater flexibility. We have that opportunity in this Bill. I hope your Lordships will not miss the opportunity of leaving it in the Bill, when considering the noble Lord's amendment, which he has been kind enough to say is in search of a statement of the Government's views. I hope I have given it at sufficient length to satisfy him.

Lord Renton

My Lords, I listened with great interest to the noble Lord, Lord Mishcon. He is so persuasive that he tempts one to agree with him, sometimes against one's experience and better judgment. In the now fairly distant past I had quite a lot of minor judicial experience as a recorder relief judge at the Old Bailey which, as the noble and learned Lord, Lord Gardiner, will remember, was a rather doubtful proposition and had to be brought to an end. In those days I took many chances by making probation orders rather than giving custodial sentences, and for the most part the experiments worked extremely well. There was always the opportunity of a custodial sentence if the probation order did not work. However, one was deeply conscious that if the probation order was to work there should be complete personal confidence between the probation officer and the person in his care, and that "Swords of Damocles" were to be avoided, if possible. Also, one realised, as my noble friend Lord Elton said, that one had to permit the greatest flexibility. Although one had power to attach various conditions to probation orders, those powers were used with some hesitation. A great deal of experience has been gained in recent years and alternatives to custodial sentences are now the thing, thanks to the previous Conservative Government and the Bill of, I think, 1972.

I find a danger in getting probation orders too much mixed up with the work of day centres or their equivalent. When the noble Lord, Lord Mishcon, so attractively made his case, he dealt mainly with his Amendment No. 90 which would give an alternative— and a very imaginative and useful alternative, although not varying greatly from what the Government have set out on page 96 in their new Clause 4B—probation orders requiring attendance at day centre. Having listened to my noble friend Lord Elton, I do not think that there is very much difference between him and the noble Lord, Lord Mishcon, on that part of the case. However, in addressing your Lordships, the noble Lord, Lord Mishcon, scarcely developed his theme that we should leave out lines 3 to 46 on page 95. If we were to leave out the new Clause 4A, we should be missing great opportunities which have been elaborated by my noble friend Lord Elton.

Therefore, regarding the two amendments of the noble Lord as a package, which they obviously are, and although I was very tempted by him, I feel, having heard my noble friend Lord Elton, that we must retain the flexibility of the practices of probation officers while at the same time making cautious use of the new opportunities which have developed in recent years with regard to day centres, but that we should not try to tie probation too closely to the day centre concept. Therefore I support the Government.

Lord Mishcon

My Lords, I wonder whether the House would permit me for one minute to address it a second time. I am most grateful to the noble Lord, Lord Renton, for his gracious remarks, which I do not deserve. Nobody is able to change Lord Renton's mind unless he wants to change it. He has very much a mind of his own and we all appreciate it. I rise only to point out to the noble Lord the Minister that, with his usual courtesy, he addressed himself to the clause in general but on this occasion did not answer the particular points—for example, hours as against days, which one would have thought was useful, the mental health matter which I mentioned and whether or not one should have the ability to require a person to be an out-patient as against an in-patient, and the nomenclature which I suggested of probation centres. It may be that the noble Lord thought it inappropriate to deal with these matters on this occasion. I want only to remind him that he did not deal with them and that, as I said, this is a probing amendment.

Lord Elton

My Lords, I do not want to trespass on the patience of your Lordships, which has not been tested by the noble Lord, Lord Mishcon, because he has every right to speak twice when he is moving his own amendment, but I fear that I fell into the trap of forgetting that the noble Lord was telescoping what he had to say to cover both amendments.

I feel that I might be testing the patience of the House if I was allowed to make the second, not terribly short, speech that I have in hand for the second amendment. If the noble Lord would be satisfied with a letter embodying in perhaps a more grammatical frame what it is that I have in my folder, and if that would not tantalise the rest of your Lordships too much, I should be happy to deal with it in that way.

Lord Mishcon

My Lords, may I say at once that, obviously, that is a sensible course to adopt. I am sure that the House will not impatient with me or my noble friends if by virtue of something in that letter we felt it necessary to raise a further amendment at a later stage

Amendment, by leave, withdrawn.

[Amendments Nos. 89 and 90 not moved.]

1.11 p.m.

Lord Elton moved Amendment No. 91: Page 96, leave out lines 14 to 17.

The noble Lord said: My Lords, in Committee we were asked by the noble Baroness, Lady Birk, why the Government amendment, which enables courts to require a probationer to attend a day centre precluded such a requirement being made in respect of probationers required to undergo treatment for a mental condition. We have since reconsidered our policy and we accept that there will be cases in which it would be reasonable to require a probationer to attend a day centre whilst undergoing, as an outpatient, treatment for a mental condition. We were persuaded to this view because a court, before making a requirement to undergo treatment for a mental condition under Section 3 of the Powers of the Criminal Courts Act 1973, is required to consult a duly qualified medical practitioner who would be expected to advise the court of any incompatibility, in a particular case, between treatment and attending a day centre. There is also the further safeguard that if a probationer receiving treatment did prove to be disruptive when attending a day centre, the supervising probation officer could apply to the court for the requirement to attend to be cancelled. I hope that this change in direction which the noble Baroness, Lady Birk, wanted will be welcomed. I beg to move.

On Question amednment agreed to.

Lord Elwyn-Jones moved Amendment No. 92: Page 98, line 4, at end insert ("provided that sufficient extra resources are made available.").

The noble and learned Lord said: My Lords, the purpose of this amendment is to stress the importance which we attach to an increase in the resources of the probation service. The Bill lays very many extra duties on the probation service—for instance, it empowers the service to set up intermediate treatment schemes; introduces community service orders for 16 year-olds; and makes social inquiry reports mandatory before a custodial sentence is imposed on a young offender or someone who has not received a previous custodial sentence. These extra duties are on top of the sharp increase over the past two years in the use of probation orders and community service orders.

The noble Lord the Minister may be a little impatient with me for stressing this point as some of the amendments which we have unsuccessfully put down during the course of this Bill would undoubtedly have added to the burdens of the probation service. Indeed, I believe this was one of the grounds on which there was some concern on the Government side. While making no apology for having potentially added to the problem which worries us, there is already a serious situation with the problem of the provision of resources.

The anxiety which concerns us is that the Government's provision for the growth of probation service resources this year is 3 per cent. in real terms but only 1 per cent. next year. I am advised that many drobation areas will not even get that increase because it is dependent upon their local authority contributing 20 per cent. of the increase to match the 80 per cent. contribution from central Government. At a time of cutbacks, some local authorities are either unwilling or unable to do this. Some probation areas—I understand that this is particularly true of the West Midlands Probation Service—are having no growth at all this year. Therefore we think it is vital to urge upon the Government the need for substantial growth in probation service resources in order to meet the requirements of the Bill.

This is a necessity that runs parallel to the urgent importance of reducing the size of the prison population. On all sides of the House, the high expense of prison detention compared with the modest economy of expenditure in the probation service is certainly something that commends itself to us. I hope therefore that we may have some reassuring reaction from the noble Lord the Minister to this amendment. I beg to move.

Lord Renton

My Lords, I can well understand the noble and learned Lord, Lord Elwyn-Jones, wishing to press the Government to provide extra resources for this very necessary service, which we wish to see expand. But I am astonished that the noble and learned Lord should move this amendment in order to try to achieve his object. So far as I know, it is quite without precedent. It would be quite without legal effect, With deep respect to the noble and learned Lord—he has so much more experience of legislation than even I have—I would say to him that this is not the way to legislate.

Lord Elwyn-Jones

My Lords, I hope that the noble Lord, Lord Renton, did not seriously think that I would seek to pass this as an amendment through the House. Clearly, it is a useful occasion on which to obtain, I hope, a promise and a commitment from the Government's Front Bench.

Lord Donaldson of Kingsbridge

My Lords, if I may support the amendment without interfering with the legislative argument, I would only like to say that so much of the good intentions of every Government has fallen down, through lack of enough money for the private and voluntary sector which the probation service administer, that I would like to be associated with every word that the noble and learned Lord, Lord Elwyn-Jones, has said.

Lord Elton

My Lords, I am much obliged to my noble friend Lord Renton for his robust emphasis on a point which I would have put with much greater circumspection and much less effect. Certainly, I would not have provoked two speeches from the noble Lord the former Lord Chancellor at Report stage, I am sure, by my tantalising remarks.

The first point to be made is that the Government are proposing an enabling power. We are not actually laying a duty on a probation committee. That is more than a debating point, because it takes us to the intention behind the provision. At present a probation committee has to look elsewhere—usually to the local authority—for funds to set up an intermediate treatment project. This is not because it lacks its own funds but because, as the law stands, it lacks the necessary statutory authority to spend funds for this purpose. For example, the probation service might wish to set up a motor project; that is, a project where youngsters are taught to rebuild and maintain wrecked cars. At present, if the project were aimed solely at juveniles the probation service would have to rely on outside funding or a generous gift to obtain an "old banger" for the youngsters to work on. Clearly, this would not always be satisfactory. It would be far better if the probation service were able to buy an old car from a scrap-yard themselves. The enabling power is therefore intended to give probation committees more flexibility in setting up intermediate treatment projects.

The second point I should like to make also arises from the example I quoted a moment ago. What is involved here is comparatively modest sums of money. The most important element in supervising juveniles is the supervisor himself, and that is already being supplied by the probation service. We do not therefore envisage probation committees setting up expensive intermediate treatment projects. That would not be appropriate. The major provision and co-ordination of such facilities should continue to fall to the local authorities which have wider responsibilities in this area. The probation service will of course continue to play an essential part in supervising juveniles; indeed, the enabling power we are discussing recognises and endorses their contribution. But it is equally important for all the facilities of the local community to be employed by the widest co-operation of all those involved. And that means seeking to use all the means now available rather than setting up new projects. The contribution of the probation service will, therefore, be part of a larger provision in which the local authority will draw together the statutory and the voluntary bodies in a co-ordinated response to the needs of the area. This is in fact already afoot.

It is, therefore, a mistake to concentrate, as the amendment does, on resource questions. That is to miss the point about the enabling power. And in any case the amendment is not necessary, because a probation committee is responsible for ordering its priorities within an agreed level of expenditure and will only use this power in accordance with its current or planned resources.

As the noble and learned Lord made clear, and as I only suspected when I penned these words, the real purpose of the noble and learned Lord is to probe the Government about extra resources for the probation service. I must say that, in comparison with very many other groups where public expenditure is involved, the service has been fortunate in the resources provided for its work. I know the noble and learned Lord says that in the current year there has been only a 3 per cent. increase over the level of 1981–82 and a further increase of only 1 per cent. is planned for next year. I can confirm those figures, but I cannot confirm the "only" when I look at the restraints which the economic position of this country forces us to place upon other services. I do realise that the service will have to take on extra tasks because of various measures in this Bill, though not as many as the noble and learned Lord might have hoped. But I am confident that, with the additional resources being made available and with good local management, these tasks, that I do see being used already in the probation service field, will be achieved. I should like in passing to commend those who work in this field. The essence of their work is practicality. I am always admiring of the way they make the most of what is available. Like the noble and learned Lord, I should like it to be more, but it is already more than many other services can look for, so I am afraid I cannot give him a succulent plum when he takes his finger out of the pie.

Lord Elwyn-Jones

My Lords, I like the metaphor with which the noble Lord concluded. I am tempted to respond more vigorously to the noble and learned Lord, Lord Renton, but his intervention has not damaged our long-standing friendship. In view of what the noble Lord the Minister has said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

1.32 p.m.

Lord Mishcon moved Amendment No. 93: After Clause 57, insert the following new clause:

("Maximum period of probation.

. In section 2(1) of the Powers of Criminal Courts Act 1973, the words "three years" shall be omitted and the words "two years" shall be substituted.").

The noble Lord said: My Lords, Bills of this kind come but rarely before the House, and therefore the opportunity ought to be taken by legislators, your Lordships may think, to put experience of recent years into the words of the statute. And the experience of recent years has been that shorter probation sentences—if that be the appropriate term—are the most efficacious. That principle, as your Lordships may remember, was indeed acknowledged by the right honourable gentlemen the Minister in another place at Committee stage of this Bill. In dealing with a similar amendment, he said that a trend was apparent and that, if it continued, "there would be a case for bringing the law into line with sentencing practice".

I am not going to weary your Lordships with anything other than three short points. The first is that without any doubt at all those who are administering this service feel that two years should be the maximum and that that should be shown to the courts to be the maximum and that the courts should not be tempted to make it any more.

The second point is that, without any doubt at all, the effect of a long order upon the probationer—the person who is subject to a probation order—is very often disastrous and does not lead to that co-operation at the very commencement of the probation term that everyone would wish to see.

The third and last point is that, if you have a maximum period of three years, there is an inconsistency between the position of somebody who has a suspended sentence and somebody who is subject to a probation order because the maximum period under a suspended sentence order is two years. That means that, if another offence, he is at risk only for two years of somebody who has got a suspended sentence commits having to come back and be sentenced again for the offence for which he was given the suspended sentence. So far as the person subject to the probation order is concerned, if there be a maximum of three years, he is at a longer term risk in regard to precisely the same matter. It does seem to be an obvious inconsistency and an unjust one. Those are the three reasons which I advance, and I do hope that the noble Lord the Minister, having reflected upon the debate which took place at Committee stage both here and in another place and having heard my short but nevertheless humble submission, will agree on further consideration that this amendment should be agreed to. I beg to move.

Lord Renton

My Lords, I am afraid on this occasion the noble Lord, Lord Mishcon, has not persuade nor even tempted me. I disagree with him, I am afraid, fundamentally this time. When fixing the maximum period of probation, one should not confuse one's mind with what has become the usual period, the maximum period of probation by analogy with the maximum period of sentence, which I agree is quite a different thing, should be to cover the unusual cases, the most difficult and, sometimes, the worst cases. I do agree that it is very rare for a probation order to be made for as long as three years, but there are rare cases in which it becomes desirable. I give just one example. The Court of Appeal many years ago said that with recidivists, provided the crimes they corn-mined were not too serious, and when custodial sentences had been tried time and again, it was worth giving them a chance with probation. When that happens, it needs to be a fairly long probation order. So that is just one example of why we need to have sometimes more than two years.

The effect on the probationer is a matter for argument. If a long period is needed in order to get the probationer to co-operate fully and to think again about his life of crime, one should not say that anything in excess of two years would necessarily be wrong; it might he right in rare cases. But I think another fundamental objection to the case put by the noble Lord is this. He says that there is an inconsistency in having a maximum of two years for the suspended sentence and a longer period for probation. But of course suspended sentences are quite different. In the case of a suspended sentence there is a Sword of Damocles, and there is no personal relationship, whereas with probation the situation is quite different. So, for those reasons, I would hope that my noble friend would resist this amendment.

Lord Sandys

My Lords, we have had an interesting debate, and I have listened to what the noble Lord, Lord Mishcon, has said, and also to the points that my noble friend Lord Renton has made. We have also taken note of the argument which took place when we discussed this at Committee stage, and the pressure which was given to this particular matter. I am bound to say, however, that, while the Government do not regard this issue as entirely closed, neither have we been persuaded by the case that has so far been made out for a reduction in the statutory maximum length of probation orders to two years.

Perhaps I should first set out the points where I agree with the noble Lord, Lord Mishcon. We both agree that probation orders should run for no longer than is necessary for the probationer to derive any benefit which supervision by a probation officer is likely to yield. I think that that is common ground. If supervision continues beyond this point, I fully accept that it may not only be ineffective but may actually set back the probationer's progress. It is for this reason that the Home Office since 1974 has encouraged probation officers, when offering advice to courts on the suitability of an offender for probation, to suggest the term of the order. Probation officers have also been encouraged, for the same reason, to review the progress of probation orders regularly, and to apply for the discharge of any orders which appear to have outlived their useful life. So there is no disagreement upon that point.

Where I take issue with the noble Lord, Lord Mishcon, is over his belief that a three year probation order is never of any benefit to the probationer; and that the third year of supervision in these cases is always a pointless exercise. I think that this is the centre of his argument. As the noble Lord will know, this belief is not shared by the courts. My noble friend Lord Renton referred to a very interesting case in this regard. Recently, about 2,000 persons a year have been given orders for periods of longer than two years. In each of these cases the courts had before them the option of making an order for two years or less, but instead decided, for whatever reason, to make a longer order. Our whole approach in the Bill has been to give the courts more flexible sentencing powers, especially with respect to non-custodial disposals. It would be contrary to this general aim to deprive courts of an option which they still find useful. That again is a matter of general agreement.

I should also emphasise the point made by my honourable and learned friend the Minister of State in another place, and also by me at Committee stage, that it is hard to predict how courts would deal with offenders who are currently given orders for longer than two years if the maximum were reduced. Let me make it quite clear that I am not saying that I believe that all these offenders would be given a custodial sentence instead; and this is an important point. My point is that there is no good reason to assume—as I think perhaps the noble Lord, Lord Mishcon, may assume—that they would in each and every case be given a shorter probation order.

It is also worth examining briefly what happens to three year orders once they have been made. As I explained during the Committee stage, it is open to the probation officer, or indeed the probationer, to apply to the court to have the order discharged early or replaced by a conditional discharge if it appears that the order is no longer serving any useful purpose. It is therefore interesting to note that of the three year orders which terminated in 1980, 49 per cent. had run their full course, and in only 21 per cent. of cases had the order either been discharged early for good progress or been replaced by a conditional discharge. The remaining 30 per cent, were terminated early for another conviction or failure to comply with requirements. In nearly half the cases, therefore, it had apparently been judged that the order was serving some good purpose right up until the limit of its currency.

We now come to the question raised in Committee as regards resource implications. In the debate on this question during the Committee stage the noble Baroness, Lady Birk, and the noble Lord, Lord Harris, both mentioned the resource implications for the probation service of a reduction in the maximum duration of probation orders. We have looked carefully, at this point again, and I am bound to say that any savings which resulted from a reduction in the maximum would be slight. Although exact figures are not available, the indications are that the number of three year orders in their third year at any one time constitutes between one half and 1 per cent. of the total caseload of the service, and an even smaller proportion of its total workload. Therefore, the fact is that a reduction in the maximum period would not free a signficant amount of probation resources for other work—even if one makes the doubtful assumption that all those probationers currently given orders for periods of longer than two years would be given shorter orders instead. I hope that this argument is not tedious, but as the noble Lord, Lord Mishcon, has pressed this matter and we discussed it earlier, I am sure that it would certainly be worthy of recording the Government's view on it.

I have explained why we would not be persuaded by the case that has been advanced so far. But I also said that we do not regard this issue as altogether closed. Since the case for a reduction has been pressed so strongly by the House, I have decided that it would be appropriate to seek the views of the judiciary, the magistrates and the probation organisations. These consultations have already been set in motion. In the light of their outcome, we will give further careful consideration to the possibility of reducing the maximum period. This could be done by exercise of the order-making power conferred on my right honourable friend the Home Secretary by Section 2(9) of the Powers of Criminal Courts Act 1973, and would be subject to affirmative resolution. I hope that, in the light of the consultations that I have announced and the undertaking that I have just given, perhaps the noble Lord, Lord Mishcon, will feel able to withdraw his amendment.

Lord Mishcon

My Lords, your Lordships will have noticed that I tried to avoid the use of the word "probationer" only out of my respect for the nursing service. I carefully avoided that phrase, but the noble Minister did not follow my example. In view of the terms of the noble Minister's reply and especially the undertakings both for review and for consultation that he gave, and his advice to the House about the ability to alter this by order, I beg leave to withdraw the amendment and I express my gratitude to the noble Lord.

Amendment, by leave, withdrawn.

Lord Elwyn-Jones moved Amendment No. 94: After Clause 57, insert the following new clause:

("Hostels, etc.

.—(1) The Secretary of State shall make regulations stipulating that probation and after-care committees shall establish and maintain a specified number of places, in proportion to the population in the area, of—

1. (a) probation hostels;
2. (b) bail hostels; and
3. (c) other hostels for specified classes of offender.

(2) The Secretary of State shall make grants to probation and after-care committees for the purpose of establishing and maintaining hostels under subsection (1) above").

The noble and learned Lord said: My Lords, I beg to move Amendment No. 94. This is a probing amendment to draw attention to a matter of considerable importance—namely, the need for increased provision of hostel accommodation in many parts of the country. This has been urged for a number of years by bodies and committees of authority. In 1978 the House of Commons Expenditure Committee in its report, The Reduction of Pressure on the Prison System—about which we are all concerned in the course of consideration of this Bill—recommended that more initiatives should be taken in the provision of housing and hostels for ex-offenders. Then in 1980 the Parliamentary All-Party Penal Affairs Group recommended that there should be a greatly increased provision of housing and of hostels. The potential value of hostels as an alternative to custody for petty, persistent offenders, has been stressed both in Home Office papers and from other sources and it has also, I believe, the support of the Magistrates' Association. What has been urged is the need for provision of hostels and sheltered accommodation, voluntary and statutory, large and small, some with a warden and some on a less formal bed-sit basis. The opinion has been expressed that it is only by the provision of the widest possible variety of accommodation that there can be any hope of meeting some of the needs of the men and women.

I hope that the tabling of this amendment will produce a positive response from the Government and that at any rate we shall be given some indication of the present programme of hostel provision and, I hope, the promise, and expression of intention, that there should be at an appropriate time a substantial increase in the number of the facilities that I have been mentioning.

Lord Donaldson of Kingsbridge

My Lords, we do not want to use the same argument twice at this late stage. I would only say that as honourary secretary of the All-Party Penal Reform Group, to which the noble and learned Lord referred—I am very grateful to him—and as someone who has been pressing for more hostels for over 25 years, I fully support everything that the noble and learned Lord said.

Lord Mottistone

My Lords, I, too, should like to support the principle of this amendment. I spoke to it at Second Reading, and would particularly like to press upon the Government the need for more accommodation of this sort for girls, in particular young girls.

Lord Sandys

My Lords, I think that the House is indebted to the noble and learned Lord, Lord Elwyn-Jones, for mentioning this particular subject because it gives me the opportunity of mentioning the progress that has taken place, and I think it would be valuable to record it. If the intention behind this amendment is to ensure that the Home Office has sufficient powers—which is apparent—to enable probation and bail hostels to be provided, my reaction is to say that we already have adequate powers to fulfil this task. My right honourable friend the Home Secretary, under paragraph 11 of Schedule 3 and Section 51 of the Powers of the Criminal Courts Act 1973, is able to authorise probation committees to provide probation and bail hostels and to meet most of the cost. It is by using those powers that the Home Office has during the past 10 years increased the number of hostels from S7 to 96 and the number of places from 543 to 1,650. 2o that all the major urban areas now have a hostel. There are no powers by which we can require a probation committee to provide a hostel but this has not so far, proved a hindrance. The Home Office is in close touch with the probation service who, with the Probation Inspectorate, is able to advise us whenever there is a need for additional places or a new hostel. Where a need has been perceived there has been no difficulty in persuading the local probation committee to provide a hostel. A modest programme to provide additional places is continuing.

Later this year two new hostels are due to open and two more hostels are planned. Additional places are also being provided in existing hostels—this year there will be 25 such places. I can assure the House that if we are satisfied that in any particular area a new hostel is needed, we have adequate powers and would obtain the funds to make whatever provision was considered necessary. I should emphasise that it is rare for probation and bail hostels to be full. But if that happens, the probation service can usually find a vacancy in a hostel in a neighbouring area. For probation hostels catchment areas usually extend to adjoining probation areas.

I should also make it clear that hostels, while not catering for any specific class of offender, do receive offenders who have committed a wide range of offences. They will include persons with drug and drink problems and minor mental conditions, but they cannot provide treatment for such problems. The provision of medical treatment for alcohol and drug addiction and mental illness is a matter which the Department of Health and Social Security handles.

We consider that probation hostels play an important part in providing to courts an alternative means to custody when dealing with offenders and thereby help to reduce the prison population. The continuing programme of new hostels and new places in them is, we believe, meeting the need for places. But, if the noble and learned Lord is aware of any difficulty in a particular area, I would like to know of it. In view of my assurances about the adequacy of our powers, I hope that the noble and learned Lord can be persuaded to withdraw his amendment.

Lord Elwyn-Jones

My Lords, I am grateful for the support that this amendment has received from all parts of the House, and also to the Minister for his sympathetic response to it. So far, so good, but a great deal more needs to be done. I note the kind invitation that the Home Office would be glad to know of any particularly deprived area in the sense of hostel accommodation, and would take up that invitation. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

1.45 p.m.

Lord Donaldson of Kingsbridge moved Amendment No. 95: After Clause 57, insert the following new clause:

((Probation services during deferment of sentence.

. In section 1 of the Powers of Criminal Courts Act 1973 after subsection (3) there shall be inserted the following sub-section— (3A) During any period of deferment the offender may consent voluntarily to use the services of a probation officer or any other organisation".").

The noble Lord said: My Lords, although in the form of a new clause, this is a probing amendment which I hope the noble Lord will have no difficulty either in agreeing to or in explaining why it is not necessary. It is clear to me that any offender given a deferred sentence should be free at any time to ask for the help of the probation service. The new clause, under subsection (3A), says exactly that. The Central Council on Probation and Aftercare wanted this confirmed. As a result of Section 1 of the Powers of the Criminal Courts Act 1973 and some comments made on it recently, they are not clear that this is within the power of an offender sentenced to a deferred sentence.

I am inclined to think, and hope, that the noble Lords answer will be that it is entirely within their power and nothing that has been said in the courts or anywhere else has altered that. But if he cannot say that, I think that this amendment should be included in the Bill. I beg to move.

Lord Sandys

My Lords, I can say that the Government have every sympathy with the intention that lies behind this amendment. By way of a start, I can also give the noble Lord the assurance which he seeks in regard to the Central Council on Probation.

I think it is fair to say that there would be wide acceptance of the need to draw a clear distinction between the use of a probation order—which is a sentence of the court—and the use of the power of deferment—which is a postponement of the sentencing decision and not a sentence in its own right. That principle, and a concern about the pressure on the probation at the time of the introduction of the community service order which coincided with the introduction of the deferment power, led to a cautious approach to any association between the work of probation service and deferment in the initial stages. Indeed, this caution was reflected in official guidance given to the courts, and the noble Lord, Lord Donaldson, will possibly be aware of that fact. Attitudes—and certainly the Government's attitude—have changed since then. We believe that without prejudicing the distinction between the probation order and deferment that I have drawn, it must be recognised that it may be of positive value for an offender to receive supervision on a voluntary basis during a period of deferment. Indeed, a large percentage of offenders who are given a period of deferment are already receiving statutory supervision in one form or another. Deferment can be used as a means of diverting offenders from custody; and if supervision during a period of deferment can assist in that process, there is no reason why it should not be recommended to an offender of a voluntary basis.

There is nothing to prevent what this amendment seeks to achieve from being carried out under the basis of the present statute. We have told chief probation officers that this is our view; that voluntary supervision can be appropriate for an offender during a period of deferment; and that it can count as part of a probation officer's workload. However, I am aware of concern in the probation service that some courts do not take this view and refuse to recommend to an offender that he might seek supervision by the probation service in cases where this might be helpful. Indeed, in view of the reservations that were expressed at the time of the introduction it is perhaps not surprising if some courts still take that view.

However, we believe that this situation is best dealt with by clear guidance to the courts. Guidance to the courts on the use of the deferment power will in any event have to be issued as a result of this Bill. Indeed, we had such action under consideration until this was overtaken by the decision to take the opportunity of the Bill to reverse the decision in R. v. Gilbey. Of course, we have referred to this already in our discussion this morning on Amendment 86. I will give a firm undertaking that we will reflect in that guidance the view of the Government—and I take it of Parliament—that there can be no objection, resources permitting, to the supervision of an offender by the probation service or any similar organisation during a period of deferment ordered by the court, to a recommendation on these lines being made by the court itself; and indeed there may be circumstances in which such action would be positively helpful in assisting an offender to benefit fully from a period of deferment. I hope, given that undertaking, that the noble Lord, Lord Donaldson, will agree to withdraw his amendment.

Lord Donaldson of Kingsbridge

My Lords, I am most grateful for that reply. I am sure that the Central Council of Probation and Aftercare Committees will read the noble Lord's reply with satisfaction. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Schedule 12 [Community service orders]:

Lord Sandys moved Amendment No. 96: Page 100, line 16, after ("officer") insert ("or by a social worker of a local authority social services department")

The noble Lord said: My Lords, with Amendment No. 96 I should like to speak to Amendment No. 97. These amendments, the purpose of which is to involve social workers more closely in the assessment of the suitability of offenders for community service, reflect the amendment moved by the noble Lord, Lord Mishcon, during the Committee stage. We have considered carefully what the noble Lord said, and have concluded that it would be right to amend the Bill on the lines that he proposed. Under Section 14(2) of the Powers of Criminal Courts Act 1973 courts are obliged, before making a community service order, to consider a probation officer's report and also, if they think it necessary, to hear a probation officer. These amendments will permit courts to meet this requirement by considering a report prepared by a social worker and, if necessary, hearing a social worker in evidence.

The main need for this change in the law arises from the extension of community service to 16-year-olds, which is provided for by Schedule 12 to the Bill. Consequently, there will be 16-year-old offenders who might be considered suitable for community service orders and who will at some time have been under the supervision of a local authority social worker. If a social worker knows the youngster and his background then it is obviously sensible that he, rather than a probation officer, should prepare the report for the court.

However, the probation service will have to be involved whenever a social worker makes a recommendation for community service in a social inquiry report. Assessing the ability of an offender to fulfil the demands of a community service order is a specialised task; and one in which community service staff—who are all employed by the probation service—have unrivalled experience. In addition, it is only community service organisers, who have the day to day responsibility for running schemes, who will know if there is suitable work available for a particular offender. Therefore, as the Association of Directors of Social Services have quite rightly said, it will be essential for social workers to consult the probation service before recommending to a court that they should consider making a community service order. No doubt a court considering a report by a social worker in these circumstances will wish to make sure that the probation service has been consulted. We propose to bring this point to the attention of all those concerned by means of official guidance. We are grateful to the noble Lord for having raised this matter at the Committee stage. The change that he has proposed in the Bill is useful; and I commend these amendments to the House.

Lord Mishcon

My Lords, I in turn am most grateful to the Minister.

On Question, amendment agreed to.

Lord Sandys moved Amendment No. 97: Page 100, line 17, at end insert ("or a social worker of a local authority social services department").

On Question, amendment agreed to.

Clause 60 [Maximum periods of imprisonment for defaulting on fines etc.]:

Lord Sandys moved Amendments Nos. 97A, 97B, 97C and 97D:

Page 62, leave out lines 24 to 29 and insert— (" (a) the following subsections shall be substituted for subsections (2) to (4)— (2) Subject to the provisions of this section, if the Crown Court imposes a fine on any person or forfeits his recognizance, the court shall make an order fixing a term of imprisonment or of detention under section 9 of the Criminal Justice Act 1982 (detention of persons age 17 to 20 for default) which he is to undergo if any sum which he is liable to pay is not duly paid or recovered. (3) No person shall on the occasion when a fine is imposed on him or his recognizance is forfeited by the Crown Court be committed to prison or detained in pursuance of an order under subsection (2) above unless—

1. (a) in the case of an offence punishable with imprisonment, he appears to the court to have sufficient means to pay the sum forthwith;
2. (b) it appears to the court that he is unlikely to remain long enough at a place of abode in the United 1121 Kingdom to enable payment of the sum to be enforced by other methods; or
3. (c) on the occasion when the order is made the court sentences him to immediate imprisonment, custody for life, youth custody or detention in a detention centre for that or another offence, or sentences him as aforesaid for an offence in additon to forfeiting his recognizance, or he is already serving a sentence of custody for life or a term—
1. (i) of imprisonment;
2. (ii) of youth custody;
3. (iii) of detention in a detention centre; or
4. (iv) of detention under section 9 of the Criminal Justice Act 1982.

(3A) Subject to subsections (3B) and (3C) below, the periods set out in the second column of the following Table shall be the maximum periods of imprisonment or detention under subsection (2) above applicable respectively to the amounts set out opposite thereto, being amounts due at the time the imprisonment or detention is imposed.

TABLE").

Page 63, line 1, after ("imprisonment") insert ("or detention").

Page 63 line 2, leave out ("sum adjudged to be paid") and insert ("fine or forfeited recognizance").

Page 63 line 12, at end insert— ("(4) Where any person liable for the payment of a fine or a sum due under a recognizance to which this section applies is sentenced by the court to, or is serving or otherwise liable to serve, a term of imprisonment or youth custody or a term of detention under section 4 or 9 of the Criminal Justice Act 1982, the court may order that any term of imprisonment or detention fixed under subsection (2) above shall not begin to run until after the end of the first-mentioned term."; and (b) the following subsections shall be substituted for subsections (7) and (8)— (7) Any term fixed under subsection (2) above as respects a fine imposed in pursuance of such an enactment, that is to say a fine which the magistrates' court could have imposed, shall not exceed the period applicable to that fine (if imposed by the magistrates' court) under section 149(1) of the Customs and Excise Management Act 1979. (8) This section shall not apply to a fine imposed by the Crown Court on appeal against a decision of a magistrates' court, but subsections (2) to (3C) above shall apply in relation to a fine imposed or recognizance forfeited by the criminal division of the Court of Appeal, or by the House of Lords on appeal from that division, as they apply in relation to a fine imposed or recognizance forfeited by the Crown Court, and the 'references to the Crown Court in subsections (2) and (3) above shall be construed accordingly.".").

The noble Lord said: My Lords, with the permission of the House I should like to take Amendments Nos. 97A, B, C, D, and also link them with 110A. These amendments are all consequential upon our acceptance in another place of the provision in Clause 60 which restricts the power of the Crown Court in the imposition of a custodial term in default of payment of a fine or a forfeited recognisance.

The amendments do two main things. First, they alter Section 31 of the Powers of Criminal Courts Act 1973 to bring it into consistency with the provision whereby, instead of having a general limit of 12 months, the Crown Court will be required to fix a term in default by reference to a maximum period applicable to the sum concerned. Secondly, they make it more convenient for users of the Powers of Criminal Courts Act by putting all the amendments to Section 31 into Clause 60. These include the changes to the terminology arising from Part I which were originally catered for by paragraph 29 of Schedule 13. The consequential repeals inserted in Schedule 15 remove redundant references. I beg to move.

On Question, amendments agreed to.

1.57 p.m.

Lord Avebury moved Amendment No. 98: After Clause 62, insert the following new clause:

(" Transfers between English and Scottish prisons.

. In section 26(1) of the Criminal Justice Act 1961—

1. (a) for the word "may" there shall be substituted the word "shall"; and
2. (b) at the end there shall be inserted the words "unless there are special circumstances which make such a transfer inappropriate".").

The noble Lord said: My Lords, may I first try to clear up a slight misunderstanding that I might have caused when I tried to explain, no doubt imperfectly, what were the provisions of the draft Council of Europe Convention on the transfer of sentenced prisoners which provides for transfers between the various signatory countries, and on which I relied for my argument on transfers within the United Kindgom. The sentenced person under the Convention can be transferred only if he has exhausted his right of appeal; if the sentence is indeterminate; or, if it is determinate, it has still six months to run; if the sentenced person consents to the transfer, and if the acts or omissions would constitute a criminal offence if they were done on the territory of the prisoner's home state.

It is clear that the sentencing state is not bound to accede to a request by a prisoner for a transfer back to his home country if these conditions are not met. Equally, it was slightly misleading to say, as the noble Lord, Lord Elton did last time that each application would be considered individually, because I think the spirit of the Convention is that if the conditions are satisfied the sentencing state would normally agree to a transfer.

There may be exceptions to that rule in the Government's own mind. For instance, there might be, as I think the noble Lord hinted on the previous occasion, special reasons for excluding terrorist offenders from the arrangements. But there is nothing in the wording of the treaty to indicate that that was the intention of the parties, and it would need to be satisfied by an amendment of the draft if that is how the noble Lord and the Government intend to carry it out.

The noble Lord did not address himself to the main point of my argument. This was that it would be illogical for us to agree to more liberal arrangements for transfer between the prison systems of the Council of Europe parties than we are prepared to operate between the systems within the boundaries of the United Kingdom. Mr. Malcolm Rifkind more or less conceded this point in a letter to me which I quoted on the last occasion. I should like the Minister now to confirm that he too agrees with what I have just said. It is that the principle should be that we operate the same basic framework of rules for transfers within the United Kingdom as we are prepared to agree to with our partners in the Council of Europe for transfers between states.

If that point is conceded, then the discretion given to the Secretary of State in Section 26(1) of the Criminal Justice Act 1961 is not being applied in that sense, and I quote from a letter I received from Mr. Rifkind dated 29th March: Transfer will normally be arranged if he "— that is, the prisoner— is ordinarily resident in another part of Great Britain and only temporarily in the country in which his offence was committed and there are very strong compassionate grounds for a transfer. Those conditions are not to be found in the Council of Europe draft convention, and therefore it would be harder, say, for a Scottish prisoner convicted in England to be returned to his own country to serve his sentence than it would be a for a Frenchmen or German in our prisons to be repatriated to his own country.

The Minister will be aware that it was a Scottish prisoner whose case first drew this matter to my notice, because the Scottish Office and Home Office between them decided that he could not be transferred back to a Scottish prison to serve his sentence, in spite of the fact that his mother lived in Scotland and it was virtually impossible for her to make the journey all the way to visit him in an English prison. They said that prior to his offence he was ordinarily resident in England and had not come here temporarily from his home in Scotland at the time when he committed the offence.

But if he had been a Frenchman who had come here under the provisions of the Treaty of Rome to seek employment, and he had been here for several years prior to the date of the offence and conviction, as I understand it, under the Council of Europe draft convention, the Government would not say that because the man had taken up ordinary residence in the United Kingdom he should not be entitled to make an application, which would normally be favourably entertained by the Government, for repatriation back to France to serve his sentence.

The noble Lord, Lord Elton, said on the previous occasion that the Government would certainly not propose to treat foreigners more favourably than prisoners from other parts of the United Kingdom, but I have shown that unless this amendment is made, that will be the position. The Council of Europe moves even more slowly than the Home Office, but this is probably the last opportunity Parliament will have of aligning our domestic law with the draft convention before it comes into effect. I hope we shall take it.

Baroness Faithfull

My Lords, I appreciate that there are some prisoners who cannot be transferred. I intervene briefly simply to say that from the point of view of prison staff and social workers dealing with prisoners, it is far easier to deal with them in the prisoners' home areas. Also, from the point of view of family visits, it is much easier than having to bring a family, as I had to do, from Scotland to see somebody in Oxford; it would have been simpler if the prisoner could have been transferred from Oxford to Scotland, which was his habitual home. Therefore, with reservations over certain cases, I support the amendment.

Lord Elton

My Lords, the noble Lord, Lord Avebury, raised this matter in Committee, when I said that we entirely shared his desire that prisoners should in general be able to serve their sentences in establishments as near their homes as possible. I am afraid that we cannot, nevertheless, accept the amendment. As I said before, the Council of Europe draft convention is being negotiated as part of arrangements which would enable Governments to repatriate prisoners of foreign nationality. That is the distinction, because a Scotsman would be deeply offended if he were regarded in this country as a resident of foreign nationality. But it is the legal distinction on which that convention is putatively based; that it is the transfer of people of different nationality from the country in which they are imprisoned.

The convention, in any case—I think the noble Lord acknowledged this—will not place any obligation on Governments or give any prisoner an entitlement to be repatriated simply because he holds nationality other than that of the country in which he is serving his sentence. If repatriation arrangements come into force, each application for transfer would be considered individually on its merits. I was not clear why the noble Lord thought it necessary to test that statement, but I repeat it. As he will appreciate, it is as yet too early to decide what the administrative arrangements will be, but we shall draw up guidelines within which each application will be considered when the draft convention achieves reality.

We are therefore working towards a system for the repatriation of foreign prisoners which would be very similar to the present system of transfers between the different jurisdictions within the United Kingdom, and that is the second point I wish to make. Here, the section of the Criminal Justice Act 1961 which the noble Lord is seeking to amend is an enabling power and gives complete discretion to transfer a prisoner on request. The applications are, however, decided in the light of bilateral administrative agreements between the various jurisdictions. As I said earlier, there is some difficulty in dealing with transfers within the United Kingdom because we have a common nationality which does not provide a basis for distinguishing, for example, a Scotsman or a Welshman from an Englishman. The basic criterion on which we decide whether it would be appropriate to transfer a prisoner to another jurisdiction is if he was domiciled in that jurisdiction at the time of his offence.

The noble Lord referred to one case. As I understand it, the person in question had been resident in England for many years before he was convicted, and that of course puts him without the definition my noble friend Lady Faithfull had, because his home was here, and the difficulty we are looking at is the location not of his home but of his family and those who wish to visit him.

Lord Avebury

My Lords, may I ask the Minister to address himself to the Frenchman who has been resident here for seven years, working in the United Kingdom under the provisions of the Treaty of Rome, but whose mother is in France. Would not the Council of Europe draft convention provide that ordinarily, unless there were some other considerations, he would be repatriated to France to serve his sentence, no matter how long he had been working in the United Kingdom?

Lord Elton

The point I am anxious to make, my Lords, is that that would be based on nationality and the assumption is, and experience shows, that usually people return eventually to the country of their birth; not always because there are expatriate communities which become absorbed into the visited country. But the Frenchman to whom the noble Lord refers could be expected to have his home in France, though his furniture, (as it were) was in Fulham. This might sound legalistic, but when one is drafting this kind of legislation there must be a touchstone. Therefore, to compare the Frenchman with the Scotsman does not seem to me to be a workable analogy for the basis of legislation.

I concede that one does not want to give to citizens of the United Kingdom privileges that are lesser than one would give to citizens of other countries. But the point that I am making is that the law that the draft convention will eventually apply will achieve the transference of a national from a foreign country to the country of his nationality. But the Scotsman is already in the country of his nationality. Of course, the noble Lord might have strong views on devolution and so on, and one must take note of those, but the fact is that the Scotsman is in the country of his nationality, and we are not keeping him abroad.

To take the noble Lord's amendment into the Bill, on the ground that one is keeping a Scotsman abroad by keeping him in Brixton is, I am afraid, a false ground, and it would also lead to considerable administrative difficulties. I know that there are cases in regard to which the noble Lord is not satisfied that we do as much as we can, but on the whole the system tries to get people nearer to their homes and even to their families for visiting reasons. Where that cannot be done on a permanent basis, prisoners are transferred for accumulated visits at intervals, so that they can be brought into contact with their families. I am sorry that I cannot concede more. I hope that what I have said has done something towards illustrating my view that I am not in breach of the principle to which the noble Lord has appealed.

Lord Drumalbyn

My Lords, I should like to ask my noble friend a question. He referred to a Scotsman being transferred back to Scotland, and I understood him to say that that was at the convicted person's request. In other words, a person could not be transferred back to his country of origin, except at his own request. Does the same apply under the draft convention? It seems to me a very important point.

Lord Elton

My Lords, I am tempted to ask the noble Lord, Lord Avebury, to prompt me regarding this question; but of course the convention is not yet set in concrete. The convention would require not the application of the prisoner, but his consent that he be returned. That is quite a different matter. One can imagine that there are certain countries to which nobody would wish to be returned, and the convention would not require a prisoner to be returned to such a country against his will. If the noble Lord wishes us to say that there are certain Scotsmen who would wish not to be returned to Scotland, I think it unlikely that we would do that, except under circumstances of considerable constraint—

Lord Avebury

My Lords, the draft convention states that the sentenced person can be transferred only if he consents to the transfer, but he can also initiate the process, because under Article 4(2) of the draft convention he may express an interest in being transferred. Then the process is triggered off by the sentencing state informing the contracting state of which the person is a national of his wish to be transferred. That then leads to the process of consideration which the noble Lord, Lord Elton, mentioned. It is still a discretionary process; I agree with him on that. But the implication of the convention is that if there are no overwhelming reasons to the contrary, the transfer would be made.

I must say that I cannot understand why the noble Lord should think it necessary to have Section 26(1) at all. If he says that a Scotsman in Brixton is serving a sentence in his own country, then why not leave him in Brixton? But the Government do not go that far; they say that if there are overwhelming compassionate reasons, and if his domicile is normally in Scotland, under those circumstances he may apply to serve his sentence in Scotland.

Lord Elton

My Lords, I should like to say that of course the position is the same if he comes from Cornwall. What I am trying to say is that the concept of nationality is different from the concept of where one's home is.

Lord Avebury

My Lords, I would not disagree with that point. All I was saying—I think that the noble Lord agrees with me; we are on all fours in this respect, at least—is that the person from Scotland, or from Wales, for that matter, should not he treated in an inferior way compared with the person from France or Germany who benefits from the provisions of the draft convention. That was all that I was seeking to achieve—that when the draft convention comes into effect, and a prisoner may apply for a transfer, or may be offered a transfer, between the contracting states, similarly a person from Scotland or Wales could have the right to apply for a transfer back to Scotland or Wales to serve the sentence that has been imposed on him by an English court.

Of course, it would work the same way if it were the other way round, as well. If a person sentenced in Scotland wished to have visits from relatives in England he would come south of the Border, and I really cannot understand why the noble Lord, Lord Elton, makes such difficulty about this, because, even though there is provision in our system for a transfer for accumulated visits, this is not the same as being in the neighbourhood of one's relatives and being able to have visits at fairly short notice from father, mother, sisters or brothers from whom someone may have been separated—as in the case of the gentleman about whom we have been corresponding—for a number of years. He does not have any relatives in England and, so far as I know, there is nobody to visit him. I simply cannot understand the resistance of the Minister to such a simple proposal.

As I obviously have not got the argument across in two attempts, I shall have to think further about this matter to see where I have slipped up in the presentation. Hoping that I shall be able to convince the noble Lord the Minister of the justice of this case on some future occasion, if not at present, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 63 [Abolition of right of accused to make unsworn statement]:

2.15 p.m.

Lord Elton moved Amendment No. 99: Page 64, line 13, at beginning insert ("Subject to subsections (2 and (3) below.").

The noble Lord said: It may be for your Lordships' convenience if we discuss also at this time Amendments Nos. 100, 114, 115 and 130. When the noble Lord, Lord Wigoder, moved in Committee the new clause which became Clause 63, I welcomed it heartily on behalf of the Government. The view that the right of a defendant to make an unsworn statement is anachronistic, and that it is being abused increasingly frequently, is one which I know is widely held. In proposing these amendments to your Lordships, I am not seeking to weaken the clause in any way. They are designed to ensure that it does the job that it was intended to do without interfering with the regular procedures of the court. There are certain types of statement which a defendant makes without being sworn which do not in any way represent the abuse at which the noble and learned Lord's amendment was aimed and which we would not wish to prevent a defendant from making. These include the initial plea of guilty or not guilty, which a defendant is required by law to make personally, and any statement by way of mitigation between verdict and sentence.

The new subsection (2) will ensure that the right to make statements of that kind is not affected by the clause. The other amendments deal with consequential points. Subsection (3) merely provides that the right to make an unsworn statement will subsist at committal proceedings and trials which begin before the section comes into effect. I also propose the repeal of two enactments which assume the continued existence of the right; and finally, an addition to the Bill's Long Title referring to the abolition of the right is proposed. I beg to move.

Lord Wigoder

My Lords, I am grateful, as always to the noble Lord, the Minister.

Lord Mishcon

My Lords, before the noble and learned Lord, Lord Wigoder, finishes his expression of gratitude, may I just ask one question purely in order to see that we have not unconsciously slipped up.

Lord Elton

My Lords, there is a slight contretemps which should not have come to the notice of the noble Lord at all.

Lord Mishcon

My Lords, I am most inquisitive as to the subject matter and should love to join in if I may. I was merely wanting to make sure that nobody had slipped up. I am quite sure that I am wrong and that nobody has, but perhaps I may just mention the point. The noble and learned Lord, Lord Wigoder, was very careful to point out that the statement that would be permitted in mitigation was after verdict and before sentence. Would he kindly note that the words "after the verdict" do not appear in his amendment, and that it therefore seems to me that an argument could be made that, if somebody wants to make an unsworn statement in mitigation of what is being said against him, he can do it at any time before he is sentenced? As the noble Lord the Minister was so careful to use the words "after verdict and before sentence", would it not be proper that those words should be in the amendment?

Lord Elton

My Lords, I believe the most speedy thing for me to do is to say that, if indeed there is a point of substance in what the noble Lord has said, I have his point on board and, if it is necessary to do anything as a result, it will be done. I understand that it is not likely that anything should be done.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 100:

Page 64, line 20, at end insert— ("(2) Nothing in subsection (1) above shall prevent the accused making a statement without being sworn—

1. (a) if it is one which he is required by law to make personally; or
2. (b) if he makes it by way of mitigation before the court passes sentence upon him.

(3) Nothing in this section applies—

1. (a) to a trial; or
2. (b) to proceedings before a magistrates' court acting as examining justices,

which began before the commencement of this section.").

On Question, amendment agreed to.

Lord Sandys moved Amendment No. 101: After Clause 63, insert the following new clause:

("Recall of witnesses

.—(1) After section 148 of the Criminal Procedure (Scotland) Act 1975 there shall be inserted the following new section— Recall of witnesses. 148A. In any trial, on the motion of either party, the presiding judge may permit a witness who has been examined to be recalled.".

(2) After section 349 of the said Act of 1975 there shall be inserted the following new section— Recall of witnesses. 349A. In any trial, on the motion of either party, the presiding judge may permit a witness who has been examined to be recalled.".").

The noble Lord said: My Lords, this short procedural amendment, which applies only in Scotland, is intended to correct an error which arose in the Criminal Justice (Scotland) Act, 1980, which inadvertently removed from the Criminal Procedure (Scotland) Act 1975, the provisions which are being re-enacted.

On Question, amendment agreed to.

Lord Beaumont of Whitley had given notice of his intention to move Amendment No. 102: After Clause 63, insert the following new clause:

("Cultivation of cannabis.

. In the Misuse of Drugs Act 1971—

1. (a) in section 6, at the end of subsection (1) there shall be inserted the words "with intent to supply to another in contravention of section 4(1) of this Act any controlled drug derived from such plant."
2. (b) in section 37, in the definition of "produce", for the words "Cultivation or any other method" there shall be substituted the words "extraction, compounding or synthesis"; and
1129
3. (c) in Schedule 4, in the entry relating to section 6(2) (cultivation of cannabis plant) there shall be substituted for the words in column 7 the words "3 months or £500, or both. 5 years or a line, or both." ").

The noble Lord said: My Lords, here we reach the problem of relevance again. At this moment I was going to beg your Lordships' pardon for not having in fact sorted these out and produced more suitable amendments at this particular stage, since this matter was raised in its major form only on Wednesday. But since it seems that more than one Front-Bencher has been taken unawares by this particular problem, I do riot think that probably two poor Back-Benchers like Lord Melchett and myself need carry too much blame.

There is a question as to whether Amendment No.102 is deficient because of relevance. Our notice was drawn to this, but there is a case, I think, for saying that it is entirely relevant. Under this amendment cultivation for sale would remain an offence subject to existing penalties. Cultivation for personal use would also remain illegal under the law prohibiting personal possession of cannabis. Our Amendment No. 102, therefore, reduces the penalty for the cultivation of cannibis only if the cannabis being cultivated is for personal use. So in not moving Amendment No. 102 we shall either come back at Third Reading with a different amendment or we should like the opportunity to argue this with the authorities, to see whether in fact this could be considered a relevant amendment, in which case we would reintroduce it at the next stage.

At the same time, in order to save time perhaps I may mention Amendment No. 103. Here we certainly accept the point that as at present drafted this amendment is irrelevant, but we hope to produce a new amendment at Third Reading simply reducing the penalty for this offence. With those words of explanation, which I hope your Lordships will accept, I should like not to move Amendments Nos. 102 and 103.

[Amendment No. 102 not moved.]

[Amendment No. 103 not moved.]

Lord Avebury moved Amendment No. 104: After Clause 63 insert the following new clause:

("Possession of cannabis for personal use non-imprisonable on summary conviction

. In paragraph 1 (1)(c)(i) of Schedule 5 to the Criminal Law Act 1977, the words "3 months or £500, or both" shall be omitted and the words "£500 where the drug concerned is cannabis or cannabis resin, and 3 months or £500, or both, if the drug concerned is not cannabis or cannabis resin" shall he inserted.").

The noble Lord said: My Lords, I know that the noble Lord, Lord Melchett, has been unavoidably prevented from attending this afternoon, and as my name appears on this amendment I was asked whether I would move it on his behalf and say that he very much regrets, as I think we all do, that a matter of such importance should be taken for the second time late on a Friday afternoon, when so many of your Lordships have other pressing engagements and when the subject cannot be discussed at the length or in the depth that it demands.

I am certainly not going to try to detain your Lordships for long at this late hour, but I want to point out that according to some figures that were given by the noble Lord, Lord Elton, in a letter to the noble Earl, Lord Listowel, the number of custodial sentences being imposed for the possessionof cannabis is on the increase. The figures that were given by the noble Lord show that, in 1980, 626 persons were sentenced to immediate custody, and that this number went up to 724 in 1981. So we are not dealing with an insignificant number of custodial sentences when we are talking about the simple possession of cannabis.

I must emphasise that these were all persons who had previous convictions—we are not talking about first offenders here—or who were at the same time convicted of other offences which were unrelated to drugs; and one wonders whether the courts, in imposing custodial sentences for the simple possession of cannabis, do so to add something on (as it were) to the person's sentence for other offences, whereas they would not have done so if that person had come before them solely for the drugs offence.

I think it has been pointed out on a number of occasions that something like 3 million of the citizens of the United Kingdom have taken cannabis at one time or another, so that the existence of custodial sentences is obviously not a deterrent. There is a lack of conclusive evidence of harm, which has most recently been emphasised by the Advisory Council on the Misuse of Drugs, but the offence nevertheless takes up an enormous amount of the time of the police and the courts and results in an increase in the numbers in prison which is totally avoidable. I hope that even at this late stage the Government will see the force of the arguments which have been presented over many years now: that we should decriminalise the simple possession of cannabis, leaving the matter to be dealt with simply by the imposition of fines. I beg to move.

Lord Donaldson of Kingsbridge

My Lords, I moved this amendment at Committee stage and arranged with the noble Lord, Lord Melchett, that if he dropped his and put his name on this I would withdraw mine—which was why I was surprised when I found that he had asked Lord Avebury to move it. However, the noble Lord has said all that has to be said, and perhaps rather more because I think there is no point whatever in this amendment if we do not take it to a Division. We know the arguments on both sides and I think we shall have to bring it back at Third Reading, like a number of other things, when we shall hope to be able to test the feeling of the House in a way which we have been unable to do on two occasions because of the way this Bill has been run in this House. I feel sure that the noble Lord will withdraw the amendment. I hope that he will, and that he will come back to it on Third Reading.

Lord Elton

My Lords, what I have to say is not lengthy and I will try to curtail it in the circumstances. As I have said before, we do not think it right to deprive the lower courts entirely of the option of the short custodial penalty, which is what this amendment seeks to do. There may be cases in which a short sentence of imprisonment would be appropriate; for example, when the offender has had previous convictions. Those who want to amend the penalties for possession of cannabis have pointed out (and the noble Lord, Lord Avebury, has referred to) the number of persons sent to prison as a result of current legislation; but I should add that in 1980, while there were about 10,000 persons found guilty or cautioned whose sole offence under the Misuse of Drugs Act was possession of cannabis, only 150 were given immediate custodial sentences by the lower court. But each one of those 150 was either convicted at the same time for another non-drug offence or had previous convictions.

Had this new clause been in force at that time some of them, at least, would still have been imprisoned in any case because of those other offences, and I should add that those others who had previous convictions might have been committed to a higher court simply because the lower court was, because of the amendment, unable to award a custodial sentence. This does not suggest that the sentencing practice adopted by the courts is so inappropriate as to require parliamentary intervention.

The House is aware that under the Misuse of Drugs Act, the Advisory Council on the Misuse of Drugs advises the Government on all aspects of drug abuse. I said at Committee stage—and the noble Lord, Lord Donaldson, will recall and those of your Lordships who forgot will be able to look into Hansard to see the point which I will not now elaborate—that the state of inquiry into the eventual effects of smoking cannabis, particularly over a long period, is entirely inadequate to make a decision as to whether or not it is a basically harmful activity.

I think it would he entirely wrong in present social conditions by nibbling at the rules (which I am sure we shall be told is all that this amendment does) to signal some change of heart. I said, and shall doubtless repeat at Third Reading if the amendment reappears, that I recall the difference in the view of tobacco as it was when I was a young man and started to smoke and as it was when, over 40 years of age, I gave up smoking over 40 cigarette a day. It is purely coincidental, but pretty appropriate, that I should be wearing the Cancer Research Campaign tie as I ask your Lordships not to accept this amendment, either now or at Third Reading.

Lord Avebury

My Lords, the noble Lord, Lord Donaldson, is right. We cannot pursue this now and we shall have to refer to it on a future occasion. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

2.30 p.m.

Lord Wigoder had given notice of his intention to move Amendment No. 105: After Clause 63, insert the following new clause:

("Disqualification for jury service

. In Part II of Schedule I to the Juries Act 1974 (persons disqualified) there shall be inserted after the words "borstal institution" the words— ; or (iii) been convicted on two or more separate occasions of an offence triable, in the case of an adult, on indictment.".").

The noble Lord said: My Lords, the noble Lord, Lord Harris of Greenwich, and I wish to reserve our position on this amendment until Third Reading, which is now in October. We shall be much influenced at that stage in deciding what to do by any indication that there may be from the Government of their own determination to legislate to deal with this very important matter. In those circumstances, at this stage the amendment is not moved.

[Amendment No. 105 not moved.]

Schedule 13 [Minor and consequential amendments]:

Lord Sandys moved Amendment No. 105A: Page 116, line 29, after ("custody" ") insert (", and after the word "centre" where first occurring there shall be inserted the words or a young offenders institution" ").

The noble Lord said: My Lords, the purpose of this amendment is to provide that a person unlawfully at large from a young offenders' institution in Scotland may be arrested by a constable without warrant in England and Wales. Section 49(1) of the Prison Act 1952, which extends throughout the United Kingdom, makes provision for the arrest of persons unlawfully at large from sentences of imprisonment or detention in a detention centre imposed in Scotland. The provision has, however, never been amended to include persons unlawfully at large from sentences of detention in a young offenders' institution and this amendment seeks to make good that omission. I beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 106: Page 116, line 45, leave out paragraphs 10 and 11.

The noble Lord said: My Lords, this is one of the armed forces amendments to which I spoke with Amendment No. 58. In the absence of the noble and learned Lord, Lord Elwyn-Jones, I will not dilate upon how the information that is changed is carried through to the military courts. It removes from Schedule 13 provisions which are now contained in the new Schedule SA. I beg to move.

Lord Mishcon

My Lords, in the absence of my noble and learned friend, I express the appreciation of the House to the Minister. My noble friend's absence has led, obviously, to a very short speech instead of a long one.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 107:

Page 117, line 14, leave out paragraph 13 and insert— ("13. The following subsections shall be substituted for subsections (4) to (7) of section 26 of that Act (transfer to serve sentence)— ("(4) Subject to the following provisions of this section, a person transferred under this section to any part of the United Kingdom or to any of the Channel Islands or the Isle of Man there to serve his sentence or the remainder of his sentence shall be treated for purposes of detention, release, supervision, recall and otherwise as if that sentence (and any other sentence to which he may be subject) had been an equivalent sentence passed by a court in the place to which he is transferred. (4A) A person who has been sentenced to a sentence of a length which could not have been passed on an offender of his age in the place to which he has been transferred, shall be treated for the purposes mentioned in subsection (4) of this section as the Secretary of State may direct. 13A. The words "youth custody centre" shall be substituted for the words "Borstal institution" in section 29(1) (removal of prisoners etc. for judicial purpose) and section 30(3) (prisoners unlawfully at large) of that Act. 13B. In subsection (2) of section 32 of that Act (supervision and recall)—

1. (a) in paragraph (i) for the word "section" there shall be substituted the words "sections 206,";
2. (b) at the end there shall be added the following paragraphs—

(.) section 16 of the Criminal Justice Act 1982; (k) section 73(4), (5) and (6) of the Children and Young Persons Act (Northern Ireland) 1968.". 13C. The words "or of any authorised officer" shall be added at the end of section 33 of that Act (orders relating to transfers of prisoners and others to be under hand of the Secretary of State or of an Under-Secretary or Assistant Under-Secretary of State).").

The noble Lord said: My Lords, this set of amendments to Schedule 13, and the amendments to Schedule 15 which were tabled with them—and I am referring to Amendments Nos. 107, 108, 109, 11 8, 119, 120, 122, 124, 125 and 126—made changes relating to the transfer of young offenders between the various jurisdictions. Under Part III of the Criminal Justice Act 1961—to which most of these amendments relate—offenders in custody can be transferred from one jurisdiction to another either to serve their sentences or for temporary purposes, such as to receive visits or to appear in court.

England and Wales, Scotland, Northern Ireland, the Isle of Man and the Channel Islands each have slightly different systems of custodial sentences for young offenders. The transfer provisions have been much amended since 1961 as changes have been made within those systems. In making these further amendments, we have taken the opportunity to simplify the existing provisions.

The underlying idea has always been to ensure that no substantial advantage or disadvantage accrues to an offender by reason only of being transferred. Briefly, the amendments provide that an offender who is transferred should be treated for all purposes by the receiving jurisdiction as if his sentence had been an equivalent sentence passed by a court in the place to which he is transferred. This covers also the treatment of those transferred for temporary purposes. The Secretary of State is given power by order to designate equivalent sentences. A measure of this kind has been used without difficulty in the Children and Young Persons Act 1969. I hope what I have said gives sufficient indication of what the amendments achieve. They have been prepared in close consultation with the other jurisdiction. I beg to move.

Lord Avebury

My Lords, may I ask just one question? Regarding these transfers between jurisdictions, which is still a discretionary process, do there have to be strong compassionate grounds for that discretion to be exercised in favour of the transfer?

Lord Elton

The amendments actually deal with the treatment of the offender in the different jurisdiction. It does not alter the provisions of Section 26(1) of the 1961 Act which govern the circumstances in which a transfer can be made. They only affect how the offender is to be treated in the receiving jurisdiction. The intention is to see that there shall be neither benefit nor disbenefit as a result of the change of location in the application of the sentence. I hope that that has reassured the noble Lord.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 108: Page 117, line 17, leave out from ("section") to end of line 19 and insert ("38 of that Act (construction of references to imprisonment, detention, etc.)—

1. (a) in paragraph (a) of subsection (3)—
1. (i) after the word "imprisonment", in the second place where it occurs, there shall be inserted the words "custody for life, youth custody,"; and
2. (ii) for the words "or detention in a detention centre or young offenders institution" there shall be substituted the words "detention in a detention centre or young offenders institution or detention under an equivalent sentence passed by a court in the Channel Islands or the Isle of Man";
2. (b) the following subsection shall be inserted after subsection (5)—

(6) The Secretary of State may by order designate as equivalent sentences for the purposes of this Act and of any enactment referred to in Part III of this Act a description of sentence which a court with jurisdiction in one part of the United Kingdom or in the Channel Islands or the Isle of Man may pass and a description of sentence which a court elsewhere in the United Kingdom or in those Islands may pass;".").

On Question, amendment agreed to.

Lord Elton moved Amendment No. 109: Page 117, line 20, leave out from ("section") to end of line 24 and insert ("39 of that Act (interpretation)— (a) in subsection (1), the following definition shall be substituted for the definition of "appropriate institution"— appropriate institution", in relation to any person, means, subject to subsection (1A) of this section, any institution which would be appropriate for the detention of an offender of the same age serving an equivalent sentence passed by a court in the place to which he has been transferred; and (b) the following subsections shall be inserted after that subsection— (1A) Subsection (1) of this section shall have effect in relation to a person serving a sentence of a length which could not have been passed on an offender of his age by a court in the place to which he has been transferred as if it defined "appropriate institution" as meaning such place as the Secretary of State may direct. (1B) Any reference in this Act to a sentence being equivalent to another sentence is to be construed as a reference to its having been so designated under section 38(6) of this Act."). 15A. In section 42(1) of that Act (application to Scotland). after the word "thirty-five;" there shall be inserted the words "section thirty-six;".")

On Question, amendment agreed to.

Lord Elton moved Amendment No. 110:

Page 119, line 38, at end insert— ("21A. The following words shall be added at the end of section 15(1) of the Children and Young Persons Act 1969 (variation and discharge of supervision orders)— or power to insert in the supervision order a requirement in pursuance of section 12(3C)(aa) of this Act in respect of any day which falls outside the period of 3 months beginning with the date when the order was originally made.".").

The noble Lord said: My Lords, this amendment is consequential upon the night restriction amendments to which the House agreed on Clause 21. It amends Section 15 of the Children and Young Persons Act 1969; that is the provision under which the courts may on the application of the supervisor or the supervised person, discharge or vary a supervision order. Clause 21, as amended, empowers the courts to attach a night restriction requirement during the first three months of supervision. This amendment provides that a night restriction requirement may not be added after that initial three months have elapsed. I beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 110ZA: Page 120, line 20, leave out ("that Act") and insert ("the Fire Precautions Act 1971").

The noble Lord said: My Lords, this amendment is purely a drafting amendment, and I beg to move.

On Question, amendment agreed to.

Lord Sandys moved Amendment No. 110A: Page 121, line 1, leave out paragraph 29.

The noble Lord said: My Lords, this amendment is consequential on Amendments Nos. 97A to 97D. I beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendments Nos. 110AB and 110AC:

Page 122, line 30, leave out ("subsection (4)(a) of").

Page 122, line 31, after ("offenders)") insert—

1. ("(a) in subsection (2) for the words "the statutory restrictions upon the imprisonment of young offenders" there shall be substituted the words "section 1 of the Criminal Justice Act 1982"; and
2. (b) in subsection (4)(a)").

The noble Lord said: My Lords, with your Lordships' permission, I will deal with Amendments Nos. 110AB and 110AC together. These are drafting amendments which affect Section 36 of the Criminal Law Act 1977 which deals with the enforcement of fines against young offenders. Section 36 refers to the statutory restrictions upon the imprisonment of young offenders. Those restrictions are themselves being repealed and are replaced by the restrictions in Clause 1 of the Bill. These amendments substitute a reference to Clause 1 for a reference to the present restrictions. I beg to move.

On Question, amendments agreed to.

Lord Elton moved Amendment No. 110B:

Page 125, line 10, at end insert— ("44A. In section 77(2) of that Act (power to fix a term of imprisonment and postpone issue of warrant of distress) after the word "imprisonment" there shall be inserted the words "or detention under section 9 of the Criminal Justice Act 1982 (detention of persons aged 17 to 20 for default)".").

The noble Lord said: My Lords, these are minor and consequential amendments to the Magistrates' Courts Act 1980 and provide that young adults now in prison for default will in future be committed to be detained under Clause 9. All references to "imprisonment for default" therefore need to be changed to references to "imprisonment or detention". Most of these are taken care of by the general provision made in paragraph 48 of Schedule 13, but these two amendments—if your Lordships will allow me, I should have said that the second amendment is No.111ZA—deal with three further separate references to imprisomnent which also need to be changed. It is a question of wording, and I beg to move.

On Question, amendment agreed to.

2.40 p.m.

Lord Elton moved Amendment No. 111:

Page 125, line 44, at end insert— ("48A. The words "or the Crown Court" shall be added at the end of section 119(3) of that Act (postponement of taking recognizance)").

The noble Lord said: My Lords, I spoke to this amendment with Amendment No. 85. I beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 111ZA:

Page 126, line 14, at end insert— ("52. In Schedule 4 to that Act (imprisonment for default) the words "or detention" shall be inserted after the word "imprisonment" in paragraphs 1 and 2(1).").

The noble Lord said: My Lords, this amendment is also consequential. I beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 111A: Page 126, line 14, at end insert—

("Contempt of Court Act 1981 (c. 49).

The following subsection shall be inserted after subsection (2) of section 14 of the Contempt of Court Act 1981 (which relates to penalties for contempt and kindred offences in proceedings in England and Wales). (2A) In the exercise of jurisdiction to commit for contempt of court or any kindred offence the court shall not deal with the offender by making an order under section 18 of the Criminal Justice Act 1982 (an attendance centre order) if it appears to the court, after considering any available evidence, that he is under 17 years of age.".").

The noble Lord said: My Lords, the Contempt of Court Act 1981 provides that a magistrates' court shall not make an attendance sentence order on a juvenile who is in contempt. Now that Clause 18 allows the Crown Court to make attendance centre orders, that prohibition needs to be applied also to the Crown Court. That is what this amendment and Amendment No. 126A achieve. I beg to move.

On Question, amendment agreed tio.

[Amendment No. 112 not moved.]

Schedule 14 [Minor and consequential amendments—Scotland]:

Lord Sandys moved Amendment No. 112ZA: Page 126, line 17, at end insert—

("Trespass (Scotland) Act) 1865 (c. 56).

. In section 4 of the Trespass (Scotland) Act 1865 (apprehension and punishment of offenders) for the words from, "and on being convicted" onwards, substitute the words "; and every person committing an offence against the provisions of this Act shall be liable, on summary conviction, to a fine not exceeding level 1 on the standard scale.".").

The noble Lord said: My Lords, this amendment derives from an undertaking given by my honourable friend the Minister for Home Affairs and the Environment at the Scottish Office during the Committee stage in another place of the Civic Government (Scotland) Bill. The amendment removes the penalty of imprisonment for offences under the Trespass (Scotland) Act 1865, replaces the existing maximum fine of £10 with a new maximum fine of £25 and deletes the provision which allows a person to be convicted on uncorroborated evidence. I beg to move.

On Question, amendment agreed to.

Lord Sandys moved Amendment No. 112A:

Page 126, leave out lines 31 to 36 and insert— ("(b) at end of that section insert the following subsection— (4) Subsection (2) above shall extend to Scotland, but save as aforesaid this section shall not extend to Scotland.". 3. At the beginning of section 702 of that Act (offences punishable as misdemeanors) insert the words "Subject to section 703 of this Act,". 4. For paragraph (a) of section 703 of that Act (summary proceedings in Scotland) substitute the following paragraphs— (a) subject to section 43(2) of the Merchant Shipping Act 1979 (which among other things makes certain offences triable either summarily or on indictment), any offence under this Act which was triable only summarily immediately before 1st January 1980 (the date of commencement of the said section 43) shall continue to be so triable and shall be deemed to have been so triable at all times since that date; (aa) subject to any special provisions of this Act—

1. (i) an offence under this Act described as a misdemeanor shall be triable either summarily or on indictment and, subject to any other penalty prescribed in respect of any particular offence, shall be punishable on summary conviction with a fine not exceeding the statutory maximum or imprisonment for a term not exceeding 6 months or both, and on conviction on indictment with a fine or imprisonment for a term not exceeding 2 years or both;
2. (ii) subject to sub-paragraph (i) above, an offence under this Act made punishable with imprisonment for any term not exceeding 6 months or with a fine or a maximum fine which does not exceed level 5 on the standard scale shall be triable only summarily;
3. (iii) an offence under this Act not falling within paragraph (a) above or the preceding provisions of this paragraph shall be triable either summarily or on indictment:

Provided that in relation to the period before the commencement of section 50 of the Criminal Justice Act 1982 sub-paragraph (ii) above shall have effect as if for "level 5 on the standard scale" there were substituted "£1,000";".").

The noble Lord said: My Lords, this amendment is designed to bring the mode of trial in Scotland for offences under the Merchant Shipping Act 1894 into line with that in England and Wales, and in so doing to avoid the anomalies which might otherwise arise in penalty levels for such offences in the different jurisdictions, as a result of the provisions in this Bill. I beg to move.

On Question amendment agreed to.

[Amendment No. 113 not moved.]

Schedule 15 [Repeals]:

Lord Elton moved Amendment No. 114:

Page 133, line 9, at end insert—

("61 & 62 Criminal Vict. c. 36. 1898.

Evidence Act

In section 1, paragraph (h) of the proviso.").

The noble Lord said: My Lords, Amendment No. 114 is consequential on Amendment No. 99. I beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 115: Page 133, line 17, at end insert—

("15 & 16 Geo. 5 c. 86

Criminal Justice Act 1925.

Section 12, so far as un-repealed.").

The noble Lord said: My Lords, this amendment is consequential. I beg to move.

On Question, amendment agreed to.

Lord Sandys moved Amendment No. 116:

Page 133, line 24, column 3, at end insert—

("In section 55(3), the words "Subsection (2) of section twenty-two, and".").

The noble Lord said: My Lords, this amendment disapplies Section 22(2) of the Prison Act 1952 to Scotland. This provision is not required to extend to Scotland, because the Secretary of State for Scotland has a power similar to that conferred by Section 22(2) under Section 10(2)(b) of the Prisons (Scotland) Act 1952. I beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 117:

Page 133, line 24, at end insert—

(" 3 & 4 Eliz. 2. c. 18.	Army Act 1955.	Section 71A(2).
3 & 4 Eliz. 2. c. 19.	Air Force Act 1955.	Section 71A(2).
5 & 6 Eliz. 2. c. 53.	Naval Discipline Act 1957.	Section 43A(2).").

The noble Lord said: My Lords, these minor repeals are consequential on the armed forces amendments which were debated on Amendment No. 58. I beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendments Nos. 118, 119 and 120:

Page 133, line 26, column 3, leave out from beginning to ("7") in line 28 and insert—

("Sections 3 to").

Page 133, line 29, column 3, at end insert—

("Section 32(2)(a), (c) and (e).").

Page 133, line 30, column 3, at end insert—

("Section 38(5). In section 39(1), the definition of "the statutory restriction on the imprisonment of young offenders".").

The noble Lord said: My Lords, Amendments Nos. 118, 119, and 120 are all consequential on Amendment No. 107. I beg to move.

On Question, amendments agreed to.

[Amendment No. 121 not moved.]

Lord Elton moved Amendment No. 121A:

Page 134, line 11, column 3, leave out ("Section 2" and insert—

("In section 2, in subsection (6), the words from "under", in the first place where it occurs, to "Act" and subsection").

On Question, amendment agreed to.

Lord Elton moved Amendment No. 122:

Page 134, line 20, column 3, at end insert—

("Section 29(6).").

The noble Lord said: My Lords, this is consequential on Amendment No. 107. I beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 122A:

Page 134, line 20, column 3, at end insert—

("In section 32(2), the words "Schedule 4 to that Act or".").

The noble Lord said: My Lords, this is consequential on Amendment No. 97A. I beg to move.

On Question, amendment agreed to.

Lord Sandys moved Amendment No. 123: Page 135, line 9, leave out ("Section 31") and insert ("In section 31, subsection (4)(c) and the word "and" immediately preceding it and subsection").

The noble Lord said: My Lords, this has been taken with Amendment No. 56. I beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 123A:

Page 135, leave out line 10 and insert—

("In section 36, subsection (1) and in subsection (9) the definition of "the statutory restrictions upon the imprisonment of young offenders".").

The noble Lord said: My Lords, this amendment repeals the definition of "the statutory restrictions upon the imprisonment of young offenders". Those statutory restrictions are themselves all repealed and replaced by Clause 1 of the Bill. I beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 124: Page 135, line 19, after ("1") insert ("and paragraph 2(3) and (4)").

The noble Lord said: My Lords, this amendment is consequential. I beg to move.

On Question, amendment agreed to.

Lord Sandys moved Amendment No. 124ZA: Page 135, line 29, column 3, after ("1973") insert ("paragraph 1(6) and").

The noble Lord said: My Lords, this amendment is consequential. I beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendments Nos. 124A and 124B:

Page 135, line 47, column 3, at end insert—

("In Schedule 4, in the entry relating to the powers of Criminal Courts Act 1973, the words "31(7) and".").

Page 136, line 9, at end insert ("and in paragraph 120(a), the words from "and for" to the end of the paragraph.".").

The noble Lord said: My Lords, these amendments are both consequential on Amendment No. 97A. I beg to move.

On Question, amendments agreed to.

Lord Elton moved Amendments Nos. 125 and 126:

Page 136, line 24, leave out ("paragraph") and insert ("paragraphs 7, 12 and").

Page 136, line 24, at end insert—

(" S.I. 1980/1088.

Criminal Justice and Armed Forces (Northern Ireland) Consequential Amendments Order 1980.

In Article 2, paragraph (1)(a)(ii) and (iii) and(e.").

The noble Lord said: My Lords, Amendments Nos. 125 and 126 are consequential on Amendment No. 107. I beg to move.

On Question, amendments agreed to.

Lord Elton moved Amendment No. 126A:

Page 136, line 29, column 3, at beginning insert—

("Section 12(3).").

The noble Lord said: My Lords, this amendment is consequential on Amendment No. 111A. I beg to move.

On Question, amendment agreed to.

Schedule 16 [Transitional provisions]:

Lord Elton moved Amendment No. 127:

Page 138, line 5, at end insert— ("4A.—(1) An offender in respect of whom—

1. (a) a custodial order under section 71AA of the Army Act 1955 or section 71AA of the Air Force Act 1955 or section 43AA of the Naval Discipline Act 1957; or
2. (b) a custodial order under paragraph 10 of Schedule 5A to the Army Act 1955 or Schedule 5A to the Air Force Act 1955 or Schedule 4A to the Naval Discipline Act 1957,

has been made specifying a maximum period of more than 4 months which has not expired at the commencement of sections 1 to 15 above, shall be treated for all purposes of detention, release and supervision as if he had been sentenced to youth custody for that period. (2) An offender in respect of whom such an order has been made specifying a maximum period of 4 months or less which has not expired at the commencement of sections 1 to 15 above, shall be treated for all purposes of detention, release and supervision as if he had been sentenced to detention under section 3 above for that period. (3) Nothing in sub-paragraph (2) above shall require the Secretary of State to remove an offender who is subject to detention under a custodial order for a term of more than 4 months to a youth custody centre,").

The noble Lord said: My Lords, this amendment is consequential on the armed forces amendments which were debated on Amendment No. 58. It makes transitional provisions to deal with service offenders who are, on the commencement date of the legislation, serving sentences passed under the existing provisions. That is that amendment. I should have warned your Lordships when we were dealing with Amendment No. 113—but we got out of it before I was fully aware—that there will be a need for a further minor amendment to that schedule, which will need to be inserted at the later stage. I hope that your Lordships are content with my doing it at this stage—because if your Lordships would prefer me to do it at end of Report stage, on free standing, I am quite happy to do so.

If your Lordships are content, may I just tell you that the existing schedule of the Criminal Appeal Act 1968 will apply to new young offender sentences, but a small change is needed to ensure that it will apply to them in exactly the same way as it applies to imprisonment. It has only just been discovered that, unless that change is made, there will be a slight narrowing down of the circumstances in which a young offender has such a right of appeal against sentence. It is also necessary to give the young offender similar rights to appeal if he is being committed to the Crown Court to be sentenced for breach of an attendance order. I thought your Lordships would want notice of this. Although it is not a controversial issue, it increases the rights of prisoners to appeal. There will be one or two minor tidying up points as well.

May I now return your Lordships—having been slightly jolted by the experience of returning to Schedule 13—to the amendment in hand; it is consequential and I beg to move.

On Question, amendment agreed to.

Lord Sandy's moved Amendment No. 128: Page 141, line 40, at end insert—

("Fines.

17. Any provision of Schedule 14 to this Act which alters the penalty for any offence shall not affect the penalty for an offence committed before that provision comes into force.").

The noble Lord said: My Lords, this amendment provides that Schedule 14 shall not affect the penalty which may be imposed in respect of an offence before it comes into force. I beg to move.

On Question, amendment agreed to.

In the Title:

Lord Elton moved Amendment No. 128A: Line 1, leave out ("the powers of courts with regard to").

The noble Lord said: My Lords, this amendment reflects the amendment to make provision for the appointment of a chief inspector of prisons, to which your Lordships gave agreement on Wednesday. During our debate the noble Lord, Lord Wigoder, raised the question of whether the Long Title was adequate to cover this provision. Parts I and II of the Bill make various amendments to the Prisons Act 1952 and the Secretary of State's powers in relation to offenders. The chief inspector provision is related to these matters. But the draftsman has considered the point and advises that the matter would be made clearer if the first purpose set out in the Long Title is changed in the way proposed in this amendment. I beg to move.

On Question, amendment agreed to.

Lord Sandys moved Amendment No. 129: Line 10, after ("offences") insert ("and the recall of witnesses").

The noble Lord said: My Lords, this is a technical amendment which is consequential on Amendment No. 101. I beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 130: Line 12, after ("persons") insert ("to abolish the right of a person accused in criminal proceedings under the law of England and Wales to make an unsworn statement;").

The noble Lord said: My Lords, this amendment is consequential upon Amendment No. 99. I beg to move.

Lord Renton

My Lords, I merely wanted to say that it did not seem to he entirely accurate to use the word "abolish" here. I would have thought that the word "vary" was more appropriate.

Lord Mishcon

My Lords, mine is a far less good reason, from one point of view, for rising. I have an idea that the next amendment is not going to be moved and I wanted to take this opportunity, on behalf of all those who sit on my Benches, to say that, bearing in mind the heavy responsibility and obligations of the noble Lord the Minister, and indeed his anxieties over the past few weeks, we want to express our thanks and commendation for the way in which he has handled the complicated Report stage of a very complex Bill over very lengthy hours in this House.

Lord Donaldson of Kingsbridge

My Lords, I must associate myself with those remarks. We have been opposite one another on a number of Bills and yet we have never seriously quarrelled. I believe that the noble Lord has dealt with our vagaries most admirably.

Lord Renton

My Lords, if I may have the leave of the House to speak again, I should like to endorse what has just been said about the excellent way in which my noble friend Lord Elton has conducted these proceedings for us.

Lord Elton

My Lords, it is very pleasant to sit, as it were, in the carriage receiving these bouquets. I can only say that everything that noble Lords who are my friends on all sides of the House have said is reciprocated from this side. These have been very trying times and your Lordships have been patient when on a number of occasions I got into certain difficulties with my brief or my memory. Your Lordships have been most kind and I am most grateful for the help we have had.

On Question, amendment agreed to.

Lord Wigoder had given notice of his intention to move Amendment No. 131: Line 12, after ("persons;") insert ("to amend the Juries Act 1974;").

The noble Lord said: My Lords, I think it is a gross breach of all the proprieties that various of your Lordships have said on Amendment No. 130 what I proposed to say on Amendment No. 131! I echo what has been said. The amendment is not moved.

[Amendment No. 131 not moved.]