Criminal Justice Bill

HL Deb 28 June 1982 vol 432 cc35-138

4.39 p.m.

House again in Committee.

Clause 21 agreed to.

Baroness Faithfullmoved Amendment No. 44: After Clause 21, insert the following new clause:

("More precise criteria for the making of care orders in criminal proceedings

.A court shall not make a care order in respect of a child or young person under section 7(7) of the Childred and Young Persons Act 1969 unless the court considers—

1. (a) that the child or young person has educational, vocational, medical, emotional or personal needs which can only be met by removing the child or young person from the charge or control of his parent or guardian; or
2. (b) that the removal of the child or young person from the charge or control of his parent or guardian is necessary for the protection of the public or for his own protection.")

The noble Baroness said: I beg to move Amendment No. 44, which has the support of the Parliamentary All-Party Penal Affairs Group and which is down in the names of the noble Lord, Lord Donaldson of Kingsbridge and, the noble Baronesses, Lady Trumpington and Lady David. At Second Reading, I spoke on the whole question of the procedure with regard to care orders and supervision orders. I think I said that, to me, as a retired director of social services, if a care order is made, it means that a child is in care and not at home. A supervision order to me means that a child is at home and under supervision. I think that that should be made very clear. I also made the point that, if we do not make that clear, we confuse the parents, because the parents ask: "If a child is in care and at home and something goes wrong, who is responsible?" For instance, if the child does not come home at night, is it the responsibility of the parents to look for the child or notify the police or is it the responsibility of the parents to ring up the local authority social worker and say that the child is in care and therefore it is for him to look for that child?

So I wish to make a very clear statement of my belief, which is that a child is either in the care of a local authority or at home under a supervision order. This was the policy which was followed by my department. If a child was in care in an establishment and it was felt and thought that the child was ready to return home, we took the case back to court for a supervision order and prepared both the child and the parent for that.

Therefore, on this particular amendment, I will say this: first of all, regarding uniformity, there has been research carried out both at Lancaster University and at the National Children's Bureau showing how different are the courts from one area to another. I have worked in Cornwall and in Birmingham and I can assure your Lordships that from court to court the procedure, attitude and criteria are different. It would help the courts, the probation service and the social workers if there were guidelines—criteria—for the making of care orders in criminal proceedings. It would be helpful also to the parents.

The Magistrates' Association and the Association of Directors of Social Services a year or so ago agreed that care orders when being made should mean being in care and removed from home. This setting down of criteria, both for the country and for the individual services, is in line with the beliefs of both the Magistrates' Association and the Association of Directors of Social Services and is the recommendation of the All-Party Parliamentary Group on Penal Affairs. I beg to move.

Lord Donaldson of Kingsbridge

The Parliamentary All-Party Group on Penal Affairs did go rather further than this amendment and made a recommendation that care orders should no longer be an available option in criminal proceedings at all. We are not moving an amendment to that effect, but that is what most of us in the group would hope to have. We take the view that a care order is something which should be put on a child who needs help and not one who needs punishment. We have fallen back on a number of amendments to safeguard the use of the criminal form of the care order.

There is very little to add to what the noble Baroness said. But I will refer to what Mr. Brian Harris, President of the Justices' Clerks Society, pointed out. He said that, if a child is brought before the court in care proceedings, social workers, teachers and other witnesses will be called to give evidence on oath and what they have to say will be fully disclosed to the child and his parents, who will have the opportunity to cross-examine the applicant's witnesses and call witnesses of their own. By contrast, the determination of sentence in criminal proceedings is a very cursory affair. A child who is made the subject of a criminal charge can be taken away from his home on a care order for his own good without any of the safeguards that Parliament has seen fit to lay down for care proceedings where the child's welfare is the sole consideration.

The noble Baroness quoted the statistics from Lancaster which showed that something like 70 per cent. and 80 per cent. of children who received care orders did not conform to any of the three conditions which the university thought was necessary before the court should make a care order. I think that the situation is very unsatisfactory and I think therefore that we have to be very careful to add safeguards, of which this is the first and perhaps the most important. I beg to support the noble Baroness in her amendment.

Baroness Trumpington

I apologise to my noble friend Lady Faithfull, but pressing private business prevented me from hearing the beginning of her speech. I hope that I shall not repeat what she said. In the discussions on Clause 20 the Minister mentioned with approval that he had sought the approval of the Magistrates' Association. I hope that the Government will take the point that not only the Magistrates' Association but the Justices' Clerks Society and New Approaches to Juvenile Crime have all supported these particular amendments. I hope that the Government will deal with them favourably. Those bodies are about the most professional group from whom one could seek advice. It is anomalous that as the Bill stands it will not be possible to send an unrepresented young offender to a detention centre for a three-week term which, with remission, will be two weeks in practice, whereas a juvenile can be removed from home and sent to an institution under a care order for a year or even longer without being offered legal representation. This new clause would rectify the anomaly and provide an important safeguard for the potential recipients of care orders—

Lord Mishcon

I hesitate to interrupt the noble Baroness. I know that she wants to assist the Committee; she always does. I believe that she will find that she is speaking to the next amendment and not to this one. This amendment does not deal with the question of representation.

Baroness Trumpington

I beg the Committee's pardon. I asked the noble Baroness whether she had been speaking to the two amendments and that is why I was speaking as I did. I am sorry.

Baroness David

I should like to add my support for this amendment. The noble Baroness, Lady Faithfull, made an admirable case and the noble Lord, Lord Donaldson, made further points. The DHSS research has shown that many care orders are made in criminal proceedings on young people convicted of petty property offences with few, if any, previous convictions. Some 40 per cent. of the care orders made in criminal proceedings were imposed on first offenders, and 60 per cent. were imposed on first- or second-time offenders. I do not think that this is a very satisfactory state of affairs. If these criteria were used, I think that it would help uniformity, as the noble Baroness said. If it helps uniformity, helps the courts and helps the social workers and parents, it would be excellent if the Government were to accept this amendment.

Baroness Masham of Ilton

I also should like to apologise to the noble Baroness because, owing to the sumptuousness of your Lordships' carpets, I cannot always move as quickly as I should like. I apologise for not hearing most of her speech. I should like to ask a question the answer to which she may already have given the Committee. When a care order is made —I am not a magistrate so I do not know about this—is it open-ended? For how long is it made? How often is it reviewed? If a child is unfortunate enough to need special attention, as in this amendment, for how long may it have to stay in a community home?

4.50 p.m.

Lord Trefgarne

The Government are of course aware of the concern expressed by the Parliamentary All-Party Penal Affairs Group and others which underlies this amendment. We are firmly of the view that the care order should remain available to courts dealing with juveniles in criminal proceedings. It is necessary in order to help the courts to deal with difficult offenders without having to resort to custody. The courts are already criticised for imposing custodial sentences on young offenders too readily. The care order must be retained as a substantial alternative. That there may well be room for better practice is one thing. It is another to conclude that there should be legislative restraint. And one must not exaggerate. In 1980, the latest year for which we have statistics, fewer than 5,000 juvenile offenders were made subject to a care order—4,700 to be precise. That is really a very small proportion of the total number of juveniles found guilty in the courts in 1980, which was 116,500. Its use has, moreover, declined in recent years while the use of custody has increased. We must beware of further discouraging its use in proper cases.

The care order is a substantial intervention in the life of a young person. It should not be imposed lightly. The Government recognise that there is some evidence that care orders may, in practice, be imposed for offences which are relatively minor. The question which this amendment raises is whether statutory guidelines have a contribution to make. As my noble friend indicated on an earlier amendment, which pro posed statutory guidelines for custodial sentences, the Government are not persuaded that statutory guidelines are an effective way of assisting the courts. We have no doubt that useful, comprehensive and effective guidelines can be devised. But I recognise that the Committee has expressed its view on that question, at least so far as guidelines on the use of custody are concerned.

As to this amendment, the first general point is that it is framed in terms of the offender being removed from the charge or control of his parent. In 1978, the local authority associations and the Magistrates' Association agreed that the making of a care order in criminal proceedings should presuppose that it is necessary for the child to he removed from home for a period. But the local authority retains the discretion to place him at home at the appropriate time. This flexibility to exercise professional discretion remains an essential ingredient in the care order. On the face of it, the terms of the amendment would conflict with the responsibilities of the local authority into whose care the young offender was committed.

I now turn to the criteria set out in the two parts of the amendment. The first restricts the imposition of a care order in criminal proceedings to juveniles who have educational, vocational, medical, emotional or personal needs which can be met only by removing them from the charge or control of the parent or guardian. These are care criteria. It is arguable that cases producing these problems should be dealt with in care proceedings on one of the specific grounds set out in Section 1 of the Children and Young Persons Act 1969. But the criteria proposed in the amendment are much more specific and limited than those set out in that section; for instance, that the juvenile is in need of care or control which he is unlikely to receive unless the court makes a care order.

I accept that there may be a case for requiring a court which is dealing with a young offender in criminal proceedings to satisfy itself that the criteria of Section 1 are satisfied, before it makes a care order on welfare grounds. But is there a case for being more restrictive? If the court is prevented from making a care order just because criminal proceedings are involved, there may be a risk that it will feel obliged to impose a custodial sentence.

This leads me to the second limb of the amendment. If a care order is being made for the young offender's own protection, it is his welfare and not wider considerations which are the justification. As an instrument for protecting the public, the care order is of dubious value. The degree of security afforded by care as such is relatively limited, unless the local authority holds the offender in secure accommodation, and this is quite unnecessary for most young offenders who are subject to care orders. I would suggest that, as a criterion for the care order, protecting the public is too restrictive and makes the care order too much like a custodial sentence. Indeed, it is narrower than the criteria which have now been incorporated into Clause 1 of the Bill for custodial sentences, and, as I have already suggested, we do not want restrictions on care orders to lead the courts to impose custodial sentences where they otherwise need not do so.

I therefore suggest that the criteria advanced in this amendment are unsatisfactory. It seems to the Government that the substantial nature of a care order as an intervention is properly reflected in the context of criminal proceedings by restricting it to offences which are sufficiently serious. Section 7(7) already restricts the imposition of a care order in criminal proceedings to offences for which an adult can be imprisoned. Of course, many instances of offence categories which carry imprisonment are minor—even trivial. Theft is an example of an offence which ranges from the most serious to the trivial. The guidelines now incorporated into Clause 1 adopt the notion of seriousness. If that approach is appropriate for custodial sentences, it would seem appropriate for care orders in criminal proceedings.

The noble Baroness, Lady Masham, asked me about the time for which a care order can run. I understand that care orders are generally of an indeterminate time period, but must be reviewed by the local authority at least every six months. I hope that what I have said has persuaded noble Lords and my noble friend of the shortcomings of these proposals and that the amendment will not be pressed.

Lord Donaldson of Kingsbridge

Before my noble friend speaks, may I clear up a question of words?" Custody "does not in the English language, or in law, so far as I know, mean secure custody. Somebody who goes to an open prison is in custody, and somebody who is in residential care is, I should have thought, in custody in the ordinary sense of the word.

Lord Avebury

I wonder whether the noble Lord the Minister can answer two questions which he may have overlooked in the course of his reply. The noble Baroness, Lady Masham, put to him a question about how long these care orders normally lasted. Would the noble Lord care to confirm that they continue until the child reaches the age of 18 unless they are previously discharged by a court, and that the average length of time for which care orders have lasted in recent times is about three years? Secondly, would the noble Lord care to deal with the question of what happens in the case of a care order when a local authority decides to return a young person to his own home? The question was: what is the relative responsibility of the local authority and the parents in such a case for any conditions that are imposed?

Lord Mishcon

May I say that my noble friends and I find the Minister's answer, although, as always, courteous, extremely unsatisfying and I want to give the following reasons. The noble Baroness, Lady Faithfull, gave some very good and cogent summarised reasons for this amendment. She talked about uniformity and hinted, in the most tactful language, at the miscarriages of justice that very often have occurred in various areas concerning this very serious matter of the care order. If, instead of criticising, as it was quite open to him to do, the language of the grounds and the matters which one though the court ought to consider, the noble Lord the Minister had said that the Government would like to use alternative language, that would have been a very helpful intervention. Indeed, if the noble Lord had gone as far as his right honourable friend in another place when this very matter was being discussed, and had said that he appreciated the importance of considerations like these being known to the court, and had added that, since that date, the Government had considered guidelines and would be giving them to all courts which would be concerned with the making of care orders, the Committee would have been more satisfied.

I make only one other observation so as to bring the weight of this amendment properly before the Committee. I believe that the noble Lord, Lord Donaldson of Kingsbridge, assumed that the noble Baroness, Lady Faithfull, had given the figures which had been procured by way of research at Lancaster University by the Centre of Youth Crime in the Community. The noble Baroness will correct me if I am wrong, but I believe that it was a mere reference to it which the noble Baroness made and that she did not give the figures to the Committee. Only so that the Committee knows the result of that research and the weight of the amendment which is now being considered, may I now give those figures?

What they tried to do was to apply the very criteria, in somewhat different language, embodied in this amendment: is the child a danger to himself or the community? Does he have any special needs—educational, medical, or otherwise—which can be met only in a residential setting? Is he without a home and family in the community which can, with appropriate support, provide an adequate degree of care and control? In Oldham, the researchers found that 90 per cent. of the young offenders in residential care did not satisfy even one of those criteria. In Basildon, the figure was 70 per cent. In Wakefield it was 80 per cent. And the figures from a range of other areas were all similar. Therefore, the Com- mittee is dealing with a vital, urgent and important matter upon which action needs to be taken. If only the noble Lord the Minister would tell the Committee what action he or his right honourable friend is going to take, it might help those who want to know what they ought to do about this very important amendment.

Baroness David

May I add one point to those which my noble friend has just made. When the Minister replied to the amendment he said that the seriousness of the offence should be the criterion. I read out research which had been conducted by his own department which showed that the majority of care orders made in criminal proceedings are made on young people convicted of petty property offences, with few, if any, previous convictions. Therefore, the research carried out in the Minister's own department shows that something needs to be done.

Lord Harris of Greenwich

May I join briefly in the appeal made by the noble Lord, Lord Mishcon. As the Minister recognised in the speech which he made, the point about criteria was discussed at some length at an earlier stage of the Committee proceedings on the Bill, and by a decisive majority it rejected the view of the Government and decided to proceed in the way that it did. It seems to me to follow that the Minister should consider again rather more carefully the argument which the noble Lord, Lord Mishcon, and others have put to him. I do not think that any of us would wish necessarily to defend the precise language of, let us say, paragraph (b) of this amendment. It seems to me, with great respect, that this is just the kind of occasion upon which it is perfectly reasonable for the Minister, without making any final commitment, to indicate that he will consider the matter before the Report stage.

Lord Trefgarne

As always, I come to these occasions with an open mind and a flexible approach. I am impressed by the weight of opinion which I have heard this afternoon in connection with the amendment. There could perhaps be a case for introducing into the Bill some indication of the nature of the circumstances in which orders of this kind should be made. Therefore, I am willing to give an undertaking that both I and my right honourable friends will consider the matter with a view to bringing forward an amendment for that purpose at the next stage of the Bill. In the light of that undertaking, I hope my noble friend will see fit to withdraw her amendment.

Baroness Faithfull

I am most grateful to my noble friend the Minister for saying that he will look again at the matter. We shall await with interest what occurs next. Until the Report stage, therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.5 p.m.

Baroness Faithfullmoved Amendment No. 45: After Clause 21, insert the following new clause:

("Offer of legal representation to be mandatory before a care order is made in criminal proceedings.

—(1) A court shall not make a care order under section 7(7) of the Children and Young Persons Act 1969 in respect of a child or young person who is not legally represented in that court unless either—

1. (a) he applied for legal aid and the application was refused on the grounds that it did not appear that his means were such that he required assistance; or
2. (b) having been informed of his right to apply for legal aid and had the opportunity to do so, he refused or failed to apply.

(2) For the purposes of this section a person is to be treated as legally represented in a court if, but only if, he has the assistance of counsel or a solicitor to represent him in the proceedings in that court at some time after he is found guilty and before a care order is made, and in this section "legal aid" means legal aid for the purposes of proceedings in that court, whether the whole proceedings or the proceedings on or in relation to the making of a care order; but in the case of a person committed to Crown Court for sentence or trial, it is immaterial whether he applied for legal aid in the Crown Court to, or was informed of his right to apply by, that court or the court which committed him.").

The noble Baroness said: This amendment has the support of the All-Party Parliamentary Group on Penal Affairs and is regarded as a most important amendment. I take it that my noble friends on the Front Bench also regard it as a very important amendment, in view of the very welcome presence there of my noble and learned friend the Lord Chancellor. I am slightly daunted at the prospect of having to speak, because I presume that his presence on the Front Bench means that my noble and learned friend will reply. I am glad that he considers it to be such an important amendment—as do we—that he is here to speak to it. Perhaps, though, he will not speak.

It is well known how important we consider this amendment to be. I have heard children and young persons in court for a criminal offence plead guilty and not guilty, and also be quite unable to say anything because they are daunted by the court procedures and by its atmosphere. Perhaps I should say at this point that if at some date in the far distant future we adopted the method used in Scotland, this kind of amendment might not be necessary. Bearing in mind the sort of child who finds himself unable to put his point of view, and also bearing in mind the sort of parents who find themselves unable to put a point of view, it seems that in criminal cases legal representation should be made mandatory before a care order can be made in criminal proceedings.

I shall not say very much more because there is not very much more to say, despite the importance of the amendment. I am not going to attempt to give figures of any kind. All I would say is that I base this amendment on the views of the All-Party Penal Affairs Group and on my own experience in court when helping children and families who do not understand court procedure and who do not therefore know what they can and what they cannot say.

My last point is that it could be said that the social worker and the probation officer should put forward the child's point of view and should reassure and help the parents. Sometimes that puts the social worker and the probation officer in a wrong relationship to the case. Both I and the all-party parliamentary group feel very strongly that there should be legal representation for parents and children in criminal proceeding care cases. I beg to move.

Baroness Trumpington

It is sufficiently daunting to be told by the noble Lord, Lord Mishcon, that one is speaking to the wrong amendment. Imagine how much more daunting it is to do that in front of the noble and learned Lord the Lord Chancellor. However, I wish to repeat what I said before because, as Hansard will show it in the wrong place, I think it had better go into the right place as well. It is clearly anomalous that, as the Bill stands, it will not be possible to send an unrepresented young offender to a detention centre for a three-week term—which, with remission, will in practice be two weeks—whereas a juvenile could be removed from home and sent to an institution under a care order for a year or even longer without being offered legal representation. This new clause would rectify that anomaly and provide a very important safeguard for potential recipients of care orders in criminal proceedings.

Lord Donaldson of Kingsbridge

The noble Baronesses from the All-party Penal Affairs Group have put the case so well that I need not delay the Committee at all beyond saying that the kind of child who has to try to represent himself is either inarticulate or too articulate and has no idea at all of how to make his case. If one regarded a care order as something done for the benefit of the child at his home, then that is one thing; but I maintain that a residential care order of a criminal kind is a form of custody and, in my opinion, no child should be sent into any form of custody without legal representation. I believe this is absolutely basic. I hope very much that the noble Baroness will insist upon this amendment, if she has to do so. The presence of the noble and learned Lord the Lord Chancellor on the Front Bench makes me think that he almost certainly agrees with what I am saying. If I am wrong, I still hope that the noble Baroness will insist.

Lord Elwyn-Jones

I should like to support this amendment, adding to that support which has already been shown. The fact that this amendment has the support of the Magistrates' Association and of the Justices' Clerks' Society indicates that those concerned with the day to day handling of this sad problem see the essential importance of the inequality suffered by the unrepresented child in proceedings which may result in that child's loss of liberty for many months, and that it is very important that an offer of legal representation should be made mandatory before a care order can be made in criminal proceedings.

The noble Baronesses, both of whom have spoken rather movingly, indicated the plight of the unrepresented child in these conditions. As the noble Baroness, Lady Trumpington has said, the Bill rightly makes an offer, in Clause 2, of mandatory legal representation before a custodial sentence can be imposed on a young offender. I agree that one sees the gross inequality between that provision and the failure to provide for the child who is going to be sent away from home to be in custody for about a year. I hope therefore that the presence of the noble and learned Lord the Lord Chancellor should not be a matter for foreboding and anxiety, but is a welcome indication that he has come to support this amendment.

Lord Avebury

I cannot imagine the noble Baroness, Lady Trumpington, being daunted by anyone—not even the Lord Chancellor. She certainly made a powerful case for this amendment, as did the noble Baroness, Lady Faithfull. I want only to reinforce what has been said in one respect—the disparity between the length of time that a young person should be sent to a detention centre, prior to which he would be legally represented, and the length of time during which a care order may persist, prior to which he would not be legally represented. The noble Baroness rightly said that the maximum amount of time for which a young person could be sent to a detention centre is three weeks, which could be reduced to two weeks with remission, and she added that a care order might be effective for upwards of a year. I pointed out—and the noble Lord, Lord Trefgarne, did not correct me—that the average length of care orders, in recent experience, has been three years, up to the time when the young person reaches the age of 18. So the effect of a care order in the future is going to be very much more serious in respect of a young person's life than the imposition of a sentence to a detention centre. I believe that for all the reasons given, and for this reason in particular, the provision of legal aid before such a sentence is imposed is absolutely essential.

Baroness Macleod of Borve

I wish to support this amendment, for the reason that one knows that not only children cannot express themselves, but that sometimes parents are almost illiterate, and this is an important factor. I should like to inquire into one other point. The noble Lord seems to think—perhaps rightly, and maybe I am wrong—that because a child is subject to a care order and is therefore removed from home, it will be automatic that the child will go into some custodial setting. What I have in mind, and I should like the noble Lord to tell me if I am wrong, is that foster parents should be included in this. I personally feel this is far more important than any other kind of non-custodial treatment for a child.

Baroness Masham of Ilton

Before the noble Lord the Minister replies, may I too ask a question? Does this mean that where a family had all done something wrong, an adult member of that family would be legally represented, but that a child of that family, just because he is a child, would not be legally represented? It seems very strange that legal representation should be given to adults but not to children; how much more the children need it than do the adults, because most adults can express themselves.

Lord Trefgarne

If I may first answer my noble friend Lady Macleod of Borve, I understand that foster parents would indeed be covered by the proposal in the amendment. In answer to my noble friend Lady Masham of Ilton, the present position is as she described it; that is, of course, the concern of my noble friend Lady Faithful. But the concern which underlines the amendment is one that the Government share. A care order made in criminal proceedings is undoubtedly a very serious sentence and one that should not be made when any less substantial form of intervention in a juvenile's life would suffice.

Perhaps I should first make the point that legal aid is available to juveniles in both care and criminal proceedings. Under the ordinary provisions the courts can grant criminal legal aid in any case in which it is in the interests of justice to do so. We do not have exact figures to show how many juveniles made subject to care orders in criminal proceedings were legally represented. Some 4,700 care orders were made in 1980, as I said earlier this afternoon, and only 30 per cent. of those who came before the juvenile courts in 1980 applied for legal aid. But we do know that 91 per cent. of the applications for legal aid in the juvenile courts were granted. I realise that that does not meet the purpose of this amendment, but it is worth pointing out that juveniles are not totally bereft of all prospects of legal help.

This amendment would override the general rule that the interests of justice should govern the granting legal aid and make a grant mandatory in all such cases before a care order was made in criminal proceedings. There are two things to be made clear. Firstly the Government recognise that there are categories of cases in which it is right to overrule the general rule in this way. Secondly, the Government themselves have a "shopping list" of categories for which they would like to provide mandatory legal aid. But as I have said already, the hard reality of scarce resources means that we can only proceed rather slowly. The Government have made considerable provision in this Bill. Mandatory legal aid before a custodial sentence on a young offender is provided for in Clause, 2, and before a residential care order in Clause 22. We have also undertaken to make legal aid available for appeals to the Crown Court against the refusal of bail.

Those provisions will make a considerable demand on the legal aid fund, which is under some strain at the present time. These measures also need to be set beside others which, as the Committee will be aware, the Government are making; the most important being, perhaps, legal aid for certain proceedings before a mental health review tribunal. It is not in dispute that the care order is a serious disposal. We are providing for legal aid for custodial sentences and for residential care orders, and the care order itself is undoubtedly now the most serious sentence for which legal aid is not automatically available. Unless my noble and learned friend wishes to intervene at this point to make any further observation on this amendment, I should like to say that, while I recognise the importance of this matter and the strength of the view put to the Committee, if my noble friend will withdraw her amendment on this occasion I will undertake that the matter will be further considered before the next stage of the Bill.

Lord Mishcon

It possibly was with warm-hearted anticipation that I looked at the noble and learned Lord and hoped that he would help us, as he usually does, with his guidance and with his sense of justice which is so pronounced. But I have no doubt it is only because he wishes to consider all the remarks made today and weigh them carefully, as he always does, that he has not risen.

I venture to make one small contribution which I hope the noble and learned Lord will consider when he is looking at these matters. The point has already been made that it is rather extraordinary that before there can be any question of a custodial sentence, any question of a detention order, then quite obviously legal aid is mandatory. I must say if I were weighing, as the noble Lord the Minister did a moment ago, the order of priority for legal aid, I would put the question of a child just about to enter upon life, possibly the last opportunity of correct treatment saving that child for the future, as one of the highest priorities. If I had to adjudicate, if I may say this humbly, between some of the things for which legal aid is available, I think I would put them below the one that your Lordships are considering now.

I make the point, if I may, in this way. In the days of my youth, which is now unfortunately some time ago, I used to be an advocate in the place of my birth in the juvenile court as well as other courts. I can still well remember that the only time when I really thought I was being of use was when I was dealing with parents who were completely non-vocal and from whom I had to extract, in the fairly warm atmosphere of my office as I tried to make it, the salient points about the child's upbringing, what had gone wrong, what could go right if only the child was enabled to return and the parents were able to reprimand him in their own way and then exert some discipline and care and love and affection to see that no trouble ever arose again.

When I was able to be that advocate—and I say this in all humility; and so far as I remember 95 per cent. of my juvenile court work was in an honorary capacity, as it had to be and it was very right that it should be; there was no legal aid in those days—I used to regard myself as having salved my professional conscience when I walked out of the court having made a plea about the child not being detained, not sent to an institution, not sent to foster parents, whatever the situation was. I said to myself, "Yes, your professional career is worthwhile because you have been able to do this today".

It is completely wrong, if I may say so, that the opportunity should not be given as is proposed in this amendment. May I lastly say to my noble friend the Minister that if it is a question of leaving it for the court to decide on an application instead of its being mandatory, I will tell him those parents who will apply. There will he the aggressive parents—not all of them but a substantial percentage. It will be the child who says, "I have heard I have a right to apply. Apply". It will not be the child that we are trying to think of today or the parents that we are trying to think of today; they will not even make the application.

The Earl of Onslow

May I ask my noble friend this one question. I do not think anybody could be more moving than the noble Lord, Lord Mishcon, on the subject of a deprived 10-year-old from an inner city background, from an inarticulate one-parent family, who is being deprived or not having proper legal representation. The noble Lord, Lord Trefgarne, said that it was a question of money. He said quite openly and honestly that he did not quite know how many people had applied for legal aid in this context. I just wonder how much would be involved. I do not think it could involve all that much compared to the legal aid budget. Surely, as the noble Lord, Lord Mishcon, has said, there are people who could happily be deprived of legal aid rather than those of whom we are all thinking in this case.

Baroness Faithfull

I am very greatful to my noble friend the Minister for what he has said. May I ask him this, to get this quite clear. Do I understand that legal aid is available in the cases we are talking about but that it is not mandatory?

The Lord Chancellor

May I perhaps clear up this point. I am only here because I was alerted this morning to the fact that this amendment was on the Marshalled List and I thought I would want to listen to what was being said without preconceptions either way. There have, I think, been one or two misunderstandings as to the position concerning the availability of legal aid. I hope I have got it right myself. I see the noble and learned Lord opposite and I am sure he will keep me right. As I understand the position it is that in all criminal proceedings—and we are talking only about criminal proceedings—legal aid is available whether for adults or juveniles. That covers this case in two possible ways to which I will come.

Adults are not ordinarily automatically entitled to legal aid. I think my noble friend Lady Masham was under some misapprehension about that. The general rule—and it is a general rule which on the whole I would prefer to stick to—is that the court has discretion in criminal cases whether to give legal aid or not. It is enjoined to do so by the statutes governing legal aid where the interests of justice so require. In deciding whether the interests of justice so require the court applies what are known compendiously as the "Widgery criteria named after our late friend the then Lord Chief Justice. One of the criteria, in fact the most important criterion which is normally applied, is the question whether liberty or reputation are seriously in jeopardy in the proceedings. I attach a good deal of importance to the courts having a free discretion in applying that criterion and the other Widgery criteria.

There have been implanted, one might say, upon the discretion of the court, a few cases—and we are concerned only with juveniles—where the court is enjoined willy-nilly to give legal aid. I am anxious to keep those exceptions, because they are exceptions to a general rule, as few as possible. In this particular field of cases, before a residential care order can be made by the court legal aid is mandatory and not discretionary. I forget where that comes from, but I am tolerably sure that that is the correct position. This particular amendment will deal with the situation after conviction and not before conviction. It is limited, as I understand it, to that. It follows, therefore, that if the child is charged with an offence which could carry a custodial sentence the court can give legal aid, when the charge is made or before the charge is made, on application.

This, I imagine, would be so in a case where there is a danger, for instance, of a residential care order—which is by far the commonest case—so that the question of guilt or innocence, or the question of a plea of guilty or not guilty, would already be covered by legal aid and by the presence of a solicitor or counsel—I should hope, in most cases, a solicitor. Therefore, legal aid would in that sense automatically be available in such a case before a care order was made, because the child would already be represented in the earlier phase of the case, before conviction, by a solicitor and the legal aid order would cover the disposal order after conviction.

Therefore, the amendment deals with the situation only where legal aid has not, in fact, been given before conviction, before a care order is made. It deals only with the period between conviction and disposal. The amendment would in effect, therefore, require a second consideration of the question of legal aid after conviction and before disposal. I think that it is important to realise this. If I may say so, as I listened to the noble Lord, Lord Mishcon—to whom I listened, as always, with great attention because his experience in this field of work is very much more extensive than mine—I was rather struck by what may be a false criticism, but I shall still make it to see whether I am right or wrong. I think that when a child does not ask for legal aid or it is not applied for on his behalf, subsection (1)(b) of the amendment would not protect him because, as I understand the amendment—which I have only had a short time to consider—if he is informed of his right to have legal aid and then does not apply, he is not protected under the amendment.

Lord Mishcon

The noble and learned Lord is always courteous and I am most grateful to him for allowing me to intervene. The point that I was trying to make was that a child of the kind that we are thinking of when asked—or even if the parent is asked—" Do you wish to apply for legal aid?" will really not be in a position, in many, many cases, to answer in his own interests. I was, therefore, putting the point that it is the aggressive child or the aggressive parent who will say, yes. If, on the other hand, it is mandatory, that question will not arise.

The Lord Chancellor

As I understand it, this indicates to me that we may have to think about the matter a little more. Subsection (1)(b) of the amendment says: having been informed of his right to apply for legal aid and had the opportunity to do so, he refused or failed to apply". Therefore, the very child whom the noble Lord, Lord Mishcon, is seeking to protect is expressly excluded from protection by the terms of the amendment which is put forward. I still think that that is possibly a valid criticism of what the noble Lord was saying.

There is another matter which I think the Committee should bear in mind. If a care order, other than a residential care order, is made—which is the situation we are considering, because legal aid is mandatory in any event if a residential care order is to be made and before it can be made—as I understand it the position is that the local authority then decides what is to happen in regard to the actual physical location where the child is to be disposed. It may be that he is left at his home. It may be that he is put in foster care. But he can be sent—and of course I do not wish to cover up or conceal the situation—by the local authority (although he has not been sent by the court) to a residential establishment in just the same way as he would have been if the court had made a residential care order. That may be the commonest case.

What occured to me when I read the amendment was that in that set of circumstances, which is possibly the set of circumstances which noble Lords in support of the amendment are trying to get at, legal aid and legal representation in the court will be of least value, because in the end the loss of liberty will not be due to the order of the court itself, but to the discretion of the local authority imposing it upon the child, not as a punishment but as a way of disposing of the child in his own interests. Therefore, I have a certain scepticism about the effectiveness of this amendment which has not, I think, been fully reflected in the discussion. However, having heard my noble friend Lord Trefgarne, I am wondering whether perhaps we ought not to think about this a little more and try and get it straight on Report.

I would not oppose this amendment on the grounds of expense. I do not know how much the expense would be. I am very anxious not to add to the expense of criminal legal aid for reasons I have explained in other contexts, but I do not think that it will cost a very great deal because to begin with in a great number of cases where the child's liberty is in jeopardy, legal aid will already have been granted. If there is the possibility of a residential care order, it becomes mandatory. We are, therefore, dealing only with a very small minority of cases where the residential care order is not in contemplation, a custodial sentence is not in contemplation, and where the court may nonetheless be contemplating imposing a care order without its being a residential care order. I do not think that we need be unduly impressed by the resources point. However, I should like to think the matter over again because this is not a field in which I claim very great expertise. I have taken very careful note of what everybody has said and not least the importance which is attached to it by the various bodies which have been mentioned. I should like, if I may, to think on the matter a little more deeply.

Baroness Faithfull

I can hardly rise to my feet when the noble and learned Lord said that we are not really concerned with the resources aspect in this matter. I think that we are in some state of confusion here, and the noble and learned Lord has put the confusion very clearly. The most vulnerable are the least likely to ask for help—a point made by the noble Lord, Lord Mishcon. It was for that reason that the All-Party Parliamentary Group considered this to be such an important amendment to safeguard those who, quite frankly, could not help themselves. I find it very strange when one considers that we do not have the numbers of those who have asked for legal aid. From my experience in the juvenile court, I only once remember a young person and a family asking for legal aid. Indeed, they did so because I recommended and took them along to a solicitor to get legal aid against myself, then the director of social services.

Therefore, it is not generally known and it is not generally understood that legal aid is available. However, I do see the points that the noble and learned Lord has made as regards the very real difficulties. As he has given an undertaking that he will, with his Ministers, look at the matter again, I shall at this stage beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.39 p.m.

Baroness Faithfullmoved Amendment No. 46: After Clause 21, insert the following new clause:

(" Care orders made in criminal proceedings to be renewable annually by the juvenile court.

.—(1) In section 7 of the Children and Young Persons Act 1969, after subsection (7) there shall be inserted the following subsection— (7A) Where a court make a care order under subsection (7)(a) above the order shall cease to have effect after one year unless it is renewed by a juvenile court. (2) In section 20(3) of the Children and Young Persons Act 1969, after the word "section" the words "and of section 7(7A) above" shall be inserted.").

The noble Baroness said: I beg to move Amendment No. 46 which stands in the name of the All-Party Parliamentary Group. Many of us have been extremely worried and deeply concerned at the number of children who remain in care for years and years. It is perfectly true that there are regulations which provide that the position of children should be reviewed within the departments. On behalf of local authorities, various voluntary organisations run community homes that provide education, and so on.

Based on my experience as the vice-chairman of Barnardo's, it has come to my notice in visiting some of our community homes with education that cases are not reviewed by the local authority. I am not blaming the social services; I am not blaming the local authorities. The heavy burden that they have had over the years has been intolerable and they have had to build up their service. Therefore, it is perhaps with understanding that I, personally, speak of the difficulties of reviewing cases.

Amendment No. 46 recommends that cases should be reviewed in the juvenile courts. The asset of this would be to bring the juvenile courts nearer to the social services, and there would perhaps be partnership in these reviews; very real consideration would be given to the individual child if the local authority social services department had to submit a report annually to the juvenile court on the well-being of a child. It would be an automatic review and it would require a report to be submitted to the juvenile court. I am well aware that there would be difficulties. I am also well aware that the Association of Directors of Social Services is not happy about this amendment. But at this point in time I move the amendment in order that we can debate the subject. I beg to move.

Lord Donaldson of Kingsbridge

Having had a very helpful discussion with the noble and learned Lord, I shall say only that I support the amendment and l am quite certain that some review should exist. I should have thought that a review by the juvenile courts was as good a way as any other.

Baroness Birk

I should also like to support this amendment. I see that the amendment which follows it is for a review by a body, by a committee. I very much prefer the amendment now before us to the fallback position, which I consider the following amendment to be. As the noble Baroness has pointed out, this amendment would make an annual review mandatory. It means that a young child who commits a minor offence and who could be taken away from his parents for, say, the next eight years if he is 10, without any subsequent independent review of his situation, is in a very unfair position, although we are aware that local authorities can have an internal review every six months.

It is also strange that this child is put in a very anomalous position compared, for example, with a psychiatric patient who is detained against his will, where a periodic appeal is possible to the Mental Health Review Board. So a child who does not have any psychiatric problems is in a worse position as regards having an annual review than a child who has some form of mental sickness.

In Scotland the position is very much better from the child's point of view, because a supervision order with a residential requirement—which is about the nearest eqivalent to the care order—lapses after a year unless it is renewed by a children's panel. What is suggested in this amendment is that the panel should, in fact, be the juvenile bench, which seems to make the most sense and the most consistency. This was embodied in the proposals of the report of the Parliamentary All-Party Penal Affairs Group on young offenders. It is something which, in a Bill of this sort, where a great deal of concentration is being put on the position of the young offender, should have the support certainly of the Committee, and I hope of the Government.

The Earl of Onslow

Children change so much between the ages of 10 and 18, which is the span of time about which vie are talking, that it would seem to me to be only natural justice that this review should be mandatory. For the sake of argument let us assume that people say they always no it—there is nothing that concentrates the mind more than being told you have to do it once a year rather than saying, "Yes, we ought to do it, but we do not have the time". I know that one is talking of the extreme case, but the thought of a child of 10 being sent away under a care order for some minor criminal offence and not coming out until he is 18 is a very much longer time in custody than is normally handed out to anyone but the most serious adult criminals.

I would hope that my noble friend will look at this proposal very sympathetically. I do not think that it will cost very much; I am sure that that argument will have been considered. I know that many of us are always asking for care to be taken in Government expenditure and for it to be cut back as much as possible. But I do not think that this would cost very much and I think it is natural justice, and natural justice only.

Baroness Masham of Ilton

I should like to add that so often when we have been discussing children's legislation in this House it has been quoted that time is so much longer to a child than it is to an adult.

Lord Trefgarne

I want to say right away, of course, that I understand the anxiety which underlies this amendment. I think that it is part of the wider debate which is developing about the philosophy of the Children and Young Persons Act 1969 and its approach to children in trouble. The amendment goes to the heart of the framework of that Act. That is something which the Government have sought to avoid doing. As recently as 1978 the Magistrates' Associa- tion and the local authority associations agreed that the 1969 Act provided an appropriate framework for dealing with the majority of children who offend. We should therefore be anxious not to weaken its structure until we are confident that we have something better to put in its place.

The 1969 Act makes the care order generally available to the courts as a way of dealing with juveniles who are in trouble, which includes juveniles who have committed a criminal offence. A care order, whether it is made in care proceedings or in criminal proceedings, usually lasts until the juvenile reaches the age of 18. That enables the care authority, in the most serious cases, to plan for the juvenile's long-term care, and it enables them in all cases to keep an eye on the juvenile's welfare and to help him with his changing needs.

In parenthesis, at this point perhaps I could respond to a matter raised by the noble Lord, Lord Avebury, earlier in connection with another amendment. I think that the average duration of a care order tends to approach three years for a boy, as I think the noble Lord said, but it is, in general, rather less for a girl. At any point during the currency of the care order the local authority, the juvenile himself or his parent or guardian can apply to the court to have the order discharged. That is in addition, of course, to the right of appeal against the order when it is first made. This amendment seeks to provide that a care order made in criminal proceedings should automatically lapse after a year. That would introduce a very major distinction between orders made in care pro-ceedings and orders made in criminal proceedings. We would still have offenders and non-offenders dealt with within the same system, but they would be there under radically different terms. I hope that that observation, and indeed what I had to say before, will persuade my noble friend of the shortcomings of what she proposes and that she will see fit not to press her amendment.

Baroness Faithfull

I understand the position of my noble friend the Minister over this. I cannot understand why it can be done in Scotland and not here, but we have not got quite the same legal system here. At this point I will beg leave to withdraw the amendment in order to give one an opportunity to discuss Amendment No. 47, with the understanding that it will be possible to bring it back at Report stage.

Amendment, by leave, withdrawn.

5.51 p.m.

Baroness Faithfull moved Amendment No. 47: After Clause 21, insert the following new clause:

("Position of young offender subject to a care order to be regularly reviewed by a body including one or more members of the juvenile bench.

The Secretary of State shall make regulations requiring reviews of the case of each child who is in the care of a local authority under a care order made under section 7(7) of the Children and Young Persons Act 1969 and providing for such a review to be conducted in a manner approved by the Secretary of State by a committee of persons including at least one person representing the local authority in question and at least one justice of the peace.").

The noble Baroness said: This is a fall-back amendment, as the noble Baroness, Lady Birk, said, when she said that she preferred Amendment No. 46 to Amendment No. 47. I have safeguarded the position by withdrawing Amendment No. 46 with a view to coming back on Report. Perhaps we could now discuss Amendment No. 47. It is a question of good practice. In Amendment No. 47 I would wish to slightly alter the wording at a later stage. I believe profoundly that there must be a regulation, or law, laid down for a review. These children—and we have had experience of it—and young persons can remain in custody in care without a review over the years. This is bad practice, I realise this, and I realise that most good local authorities have reviews. But when the pressure of work is on you this is the kind of thing that gets left behind.

I move Amendment No. 47, but I would again like to say that there would be two ways of doing this. There would have to be an independent committee to review all cases, or alternatively it would be possible to have a sub-committee of the social services committee with magistrates co-opted on to that committee or other independent people, perhaps teachers. I would want to hear the views of your Lordships' Committee on not only the recommendations in Amendment No. 47 but, if the Minister was unable to accept that, a sub-committee of the local authorities' social services department with co-opted members from the Magistrates' Association and others. I beg to move.

Lord Donaldson of Kingsbridge

Like the noble Baroness, I prefer Amendment No. 46. I want to refer to something that the noble Lord said in defence against Amendment No. 46. He said that if you review the custody under a residential care order of a criminal sentence, and you do not do the same under a civil arrangement, you are putting the two people in different categories. This is the argument against the criminal care order. It is clear that it is wrong that this should happen. But it is still clearer that somebody who is under a sentence should not fail to have his sentence reviewed because somebody who is put in a similar position for his own good and convenience, because there is nowhere else to send him, has no arrangements of this kind. The reply is absolutely unsatisfactory, and I hope that at the end of these two amendments we can get a better reply out of the noble Lord because that is not an answer that one could accept for one moment. If somebody is sentenced to however simple a custodial sentence, which a residential care order is, there must be some system of reviewing how long he stays there which does not apply to somebody who is under a civil care order, which is entirely different. Perhaps we can hear some more about this later.

Baroness Trumpington

Speaking personally, I prefer Amendment No. 47 to 46. I hope that the Government will feel that they can look at this again. I have always felt that the more co-operation that could take place between education authorities, the probation service, the social service and the Bench, the better. This seems an excellent way of bringing them all in. Maybe it does not apply quite so much to Greater London, but outside London it would he valuable if people who knew the background of the child involved were enabled to look into the case on a yearly basis.

Lord Hylton

I have listened carefully to the arguments on this amendment and the previous one They establish beyond any doubt the principle that there should be a review at fairly frequent intervals by a body composed of people other than statutory social workers. I hope that the Government will pay great attention to the point made previously by the noble Baroness, Lady Birk, comparing a situation with that which will exist, or already exists, with the mental health tribunals. It is wrong that juveniles should be in a worse position than psychiatric patients.

Lord Trefgarne

I find myself happily in sympathy with the intention behind this amendment. Indeed, we would go further. The Government consider that the cases of all children in care, not only those in care as a result of criminal proceedings under Section 7(7) of the 1969 Act, should be subject to review—and, indeed, Section 90(3) of the Child Care Act 1980 already requires local authorities to review the case of each child in their care at intervals of not more than six months. This clause is concerned with imposing a duty on the Secretary of State to make regulations. Section 20(2) of the 1980 Act already enables the Secretary of State to make regulations regarding the procedure of reviews. This clause would therefore, to a large extent, duplicate existing provision.

As your Lordships may be aware, the power to make review regulations, in common with a number of the provisions originally enacted in the Children Act 1975, awaits implementation. The introduction of review regulations, like other unimplemented provisions, would I fear have significant resource implications. The cost has been estimated at some £7.2 millions a year. It will regrettably not be possible to introduce regulations until resources become available. Membership of the reviewcommittee—a mattercovered in the terms of the proposed new clause—will be considered at that time. The making of regulations would of course be preceded by consultation with all interested bodies. In the meantime, as I have already said, there is a clear statutory requirement on local authorities to carry out reviews of children in their care at least every six months. I hope that this will allay the fears of my noble friend and indeed of other noble Lords who have spoken, and that my noble friend will not wish to press this amendment.

Lord Elystan-Morgan

While welcoming what the noble Lord the Minister says about his sympathy for the underlying principle for this amendment, may I say on behalf of those of us on these Benches that we consider that this amendment is in any event a very poor substitute for what is enshrined in Amendment No. 46. I hope I am not out of order in encouraging the Minister to consider very, very carefully whether or not a judicial review hearing should not after all be the answer in these cases. The matter has been put very clearly by the Magistrates' Association in their publication of 1980:Observations on the Children and Young Persons Act 1969. They say: In the case of, for example, psychiatric patients detained against their will, periodic appeal is possible to the Mental Health Review Tribunal, but the sane child enjoys no such privilege". That point was made by the noble Lord, Lord Hylton. They go on to say: Reviews are admittedly undertaken by the local authority every six months but they appear to be of a very cursory nature. We do not know of any local authority which holds a formal review where a child is legally represented or where his views are expressed". In my submission, the review body clearly should be the juvenile court, a body that has the independence and the benefit of all the reports prepared by social workers. Clearly it is a body which has the status to arrive at an independent judgment that would be accepted both by society and, one hopes, by the child himself.

The situation in Scotland has been referred to where orders lapse after 12 months. Indeed, I had hoped very much that the noble and learned Lord, Lord Mackay of Clashfern, would be here to explain how it is that the superior wisdom of Scotland has managed to achieve something denied to those of us who live south of the Tweed.

I feel that the case is an extremely strong one, when we remind ourselves of just how long a care order can last. A care order can be made for a child aged, let us say, 10 years and one month. It may be made for something very trivial, indeed for something for which normally one would not consider a custodial sentence as being within the pale of possibility at all. It is made not on account of the gravity of his offence but on account of the poverty of his home. That child could remain in a custodial setting until he achieves the age of 18—I appreciate this would be an extreme case, but it is a possibility and certainly I could produce statistics to show that some people do go through this experience. That is a very long period and a huge slice of his life for a trivial offence, and in circumstances that cry out for a judicial review.

I am sorry I have spoken so much in relation to Amendment No. 46, which has now been withdrawn, but it is only by holding up Amendment No. 47 to the light of Amendment No. 46 that we can really consider the issue. Therefore, I end by repeating the plea that in relation to Amendment No. 46 (disposed of though it has been) and Amendment No. 47, the Government should urgently reconsider the situation.

The Earl of Onslow

May I intervene? I should like to put this to your Lordships, in spite of the glances of the Chief Whip. Let us assume, for the sake of argument, that some money could actually be saved by a judicial review: in other words, children would be released from care orders. Has that sort of sum been done against the resource argument? Of course, I agree that we have got to be very careful with resources, but the point is that if a child of 10 can stay inside for eight years for nicking an apple, that is an indictment of a civilised country. Of course, that is something which will not happen very frequently, but it has only to happen once and we should then all hang our heads in shame.

Lord Trefgarne

May I make just one observation which I hope will assist my noble friend Lord Onslow? A care order is not a custodial sentence. A child who is in care and who happens to be placed in a residential home, for example, or who is in foster care or even in his own home, is not under a legal constraint. Of course, if a child of a later age is sent to a borstal home that is something different. He is then in some form of legal custody—

Lord Harris of Greenwich

I wonder whether the noble Lord would he good enough to allow me to ask a question. I am trying to understand the distinction he is drawing—and, of course, there is a distinction—between a care order where a young person finds himself in some form of residential accommodation and a normal custodial sentence. I recognise that there is a distinction, but what happens when the young person absconds from that establishment? What then happens to him?

Lord Trefgarne

Of course, that would be a breach of the terms of the care order and suitable disciplinary procedures would then no doubt be applied. But a care order is different from a custodial sentence. A care order can be terminated at any time more or less during its course by application to the court which originally made the order. Indeed, care orders are reviewed, as I have said, on a regular basis. Your Lordships were saying in the context of Amendment No. 46 that you thought the review should be carried out by the juvenile court. That was something that I thought it necessary to resist, but I am much less resistant to the proposals in this amendment, which in principle we have accepted. Indeed, in practice the concerns expressed in connection with the amendment are already met by what happens in the reviews by local authorities to which I have referred already. The sort of anxieties expressed by my noble friend Lord Onslow went very wide of what happens in practice. If my noble friend was right in saying that children were being locked up from the age of 10 to the age of 18 without any review, that would be a different matter; but that is far from being the position in practice.

Lord Elystan-Morgan

Would not the Minister agree that whether or not it is called "custody"—and I would suggest there is no profit whatsoever in dissecting legal hairs of that sort—whatever it is called, it is a constraint upon physical liberty? It is the order of an authoritative body backed by sanctions that that person shall live in a certain place. In that respect it has everything in common with a custodial order.

Lord Trefgarne

No, with respect, I do not think I would agree with that. The order is for the child to live under the care of the local authority, and that is a very different matter. The local authorities have wide discretion as to where that child should live—whether in a residential home, with foster parents or indeed in the child's own home. I think that is a very different thing from a custodial sentence. A care order is most certainly not a custodial sentence and I hope your Lordships will not be misled into thinking that it is.

Baroness Birk

I am sorry to prolong this discussion, but it worries me that the Minister will keep on putting together the terms "community home", "residential care", "foster parents", and then "the child's own home". It is very important to differentiate between these things. With great respect, I think it is quite absurd to pretend that if there is a care order for the child who is residing in its own home with its own family, this is on all fours with a child being away in residential accommodation. If this is not grasped, I do not think we are going to get very far with this.

Lord Trefgarne

I wanted to indicate the wide range of possibilities that are available to the local authority in respect of their responsibilities under a care order, which we are considering. Indeed, I imagine it is the case that a particular child for whom a care order is made might spend time in all three of the various situations that I have referred to. I believe that we are considering something very different from a custodial sentence and I also think that the judicial review, which is effectively what is proposed by the earlier amendment, is not appropriate. I agree that some less formal review is desirable. That is why we have accepted the principle of this amendment and why indeed, in practice, as I have said, reviews of one sort or another take place on a regular basis.

The Government are aware that criticism has been made of the review practice of some local authorities. Indeed, the Department of Health has discussed this matter with social service directors—I was myself present at an important meeting of that kind— recently whose attention has been drawn to the need to improve their review practice where shortcomings exist. The Government are not unmindful of the need for keeping the matter under careful scrutiny, and I hope I have been able to allay most of the fears of the Committee.

Baroness Faithfull

I thank the Minister for his reply. We are in difficulty because a care order is very wide and has several arms. If a care order is made, it is open to the local authority social services department to place the child in a children's home—a small one with only 10 children, if you like—or to place the child in a foster home, or (I do not agree with this, as I have let the Committee know) to place the child back at home. We must therefore realise, as the Minister said, how flexible a care order is. Having said that, it is true that, under the children's homes regulations, there is provision for the child to be reviewed. But difficulty comes when, for instance, a child is moved into a community home for education which is not in the area of the local authority, and often those children do not get reviewed because they are, as it were, at a distance. It is essential that every child in care—be it in a community home for education, in a children's home or at home on trial—should be reviewed.

In the light of what the Minister said, I hope that my noble friends on the All-Party Penal Affairs Group will agree that, inasmuch as there is confused thinking over this issue, we should consider it afresh. In the light of what the Minister said, I suggest that we withdraw the amendment and raise the matter again on report. Accordingly, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 22 [Charge and control of offenders]:

On Question, Whether Clause 22 shall stand part of the Bill?

6.13 p.m.

Lord Mishcon

I can paraphrase the clause by saying that it enables courts to require a local authority to remove from home for up to six months any young person convicted or found guilty of an offence punishable with imprisonment in the case of a person over 21 who commits that offence while already subject to a care order. If I were the only person pleading on behalf of my noble friends for removal of the clause from the Bill, your Lordships might not have been considerably affected, so I hope the Committee will forgive me if I read the list of those so much concerned with all aspects of juvenile offenders that they regard Clause 22 as objectionable.

The list includes: the Conference of Chief Probation Officers, the National Association of Probation Officers, the Association of Directors of Social Services, the Association of County Councils, the Association of Metropolitan Authorities, the British Association of Social Workers, NACRO, New Approaches to Juvenile Crime, the Association of Community Homes, the Residential Care Association, the National Intermediate Treatment Federation, the National Council of Voluntary Child Care Organisations, the National Council of Voluntary Organisations and the National Youth Bureau. The Committee may think that, if the Minister rises to support the clause, he will stand in lonely isolation, certainly in relation to those who are knowledgeable about juvenile offenders, as I know the Minister is, in spite of the very short acquaintance he has had with the responsibilities he now so elegantly bears. One knows—this was brought home to us clearly by the noble and learned Lord the Lord Chancellor—that before any child can have a residential care order made against him, he has the opportunity of legal representation. That I realise. I equally realise, as was borne in on us in the discussion of the previous amendment, that a care order has many facets and—the phrase was used—many arms; foster parents or possibly sending the youngster back home—as the noble Baroness, Lady Faithfull, said, a completely wrong use of a care order.

I am talking about the child who, under this provision, could and would be sent to a residential establishment. That is wrong because, first of all, the Government estimate that between 500 and 900 young offenders may come within this provision and that the cost may be about £6 million. What an extraordinary contrast that is with the cost to the Government of £2 million under Clause 20, which deals with intermediate care, and, the Committee may think, what a wrong order of preference in regard to the handing out of money which is so scarce in the Government's resources.

What happens to youngsters who are sent to residential care? Is there any question of there being a real hope that, as a result of their having committed another offence, their stay in the residential establishment will turn a rather unhealthy young citizen into a very healthy one? Up-to-date statistics are not available, but we remember the statistices we were given previously about borstal and similar institutions. The number of those returning to crime is unfortunately all too high. One therefore pleads again for all the resources available in intermediate care and not for a power of this kind.

But the real evil of the clause is the effect it has on residential homes themselves. The Association of Community Homes, commenting on the White Paper, Young Offenders, published in October 1980, said that the treatment of children subject both to determinate and to indeterminate sentences in the one home. cannot be viable in the same establishment without each treatment plan seriously undermining the other". When you have in that home subject to a care order children who have committed no offence at all staying there for an indeterminate period, what is their idea of justice when they see that offenders—presumably offenders on the second occasion—go there for a determinate sentence and come out before they have they have a chance of coming out? Judging from what is said by those who run the homes, those who are knowlegeable about youthful offenders, and those who want every penny that we possess to be spent on the one hope that we have in regard to the young people—intermediate care—it appears that this would be £6 million or more absolutely wasted. The proposal stands the chance of greatly spoiling the residential homes and institutions that we have. This is a bad clause; it should not be in the Bill.

Baroness Faithfull

As chairman of the Committee on New Approaches to Juvenile Crime, I support the proposal that the clause be left out. I shall not make a speech, since the case has been so well put by the noble Lord, Lord Mischon. I rise to say merely that I support it.

Lord Elwyn-Jones

When my noble friend Lord Mishcon read out the formidable list of bodies totally preoccupied with the problems that are raised by the consideration of the clause, one wondered what consultations the Home Office had had. With whom did they discuss the matter? Was it only the Tory Party conference? No, I must not suggest anything so party political as that. But I seriously ask, were there consultations with interested bodies? We have heard of the whole range of interested bodies. On the probation side there is both the Conference of Chief Probation Officers, and the national association thereof. Then there are all those concerned with social service work, so far as I can see, as well as the National Council for Voluntary Organisations. It is a most formidable array.

I confess that I myself cannot speak with any expertise in this field, but I am connected not remotely with someone in my family who can. I draw attention to the contrast that is involved. What is now proposed, in provisions which are almost universally resisted by all concerned who work in the field, is now to be preferred to the undoubted success of intermediate treatment, and there is also the fact that intermediate treatment costs £2 million as against the £6 million that is proposed. The possibility of financial saving appeals to any Government, but in particular to a Government who are faced with problems of making both ends meet, as of course, all Governments are, though perhaps not to quite the same extent as the present Government, for reasons which I should not be so party political as to enter into it. I draw attention to the analysis of what the bodies concerned have said and to the notable point made by my noble friend Lord Mishcon in his powerful speech—that what is proposed would be gravely damaging to residential establishments, for the reasons that he has stated.

So I hope that there will be a fundamental rethink on the matter, and I shall be very curious to know the answer to my primary question: Whom did the Government consult? From where did the Home Office get the inspiration?—if it can properly and reasonably be described as inspiration. I notice that the noble Baroness, Lady Faithfull, is eager to intervene, and I willingly give way to her.

Baroness Faithfull

Before the noble and learned Lord sits down, I should like to ask him whether he agrees that the difficulty was that the magistrates wanted the clause, for a very good reason. They wanted it because there was bad practice in respect of the care order—and we come back to the same question again and again. I would suggest that my noble friend consulted an enormous number of people. I think that the consultations were very full and that much time was given to them. However, I think I am right in saying—perhaps this will be agreed—that it was the Magistrates' Association that was involved. I wonder whether it is agreed that one should have sympathy with the Magistrates' Association because there was bad practice on the part of the social services, perhaps understandably, bearing in mind difficulties over time and one thing and another.

Lord Elwyn-Jones

The noble Baroness has rightly drawn my attention to the discussions with the Magistrates' Association. The joint working party reported in 1978 and at that time agreed on guidelines designed to ensure that local authorities met the expectation of the courts that in certain circumstances a juvenile offender would be removed from home. As I understand it, for the past three or four years the guidelines have been operating successfully throughout the country. Even if the Government have evidence of any areas where the guidelines are not operating successfully—and the organisations that have been communicating with us indicate that they have no such evidence—that would be an argument for improving the operation of the guidelines in any such exceptional area and not for the introduction of this retrograde proposal. I think that that is the answer to the query that the noble Baroness has raised.

Lord Avebury

I should like to ask the noble Lord the Minister, why on this occasion he does not like the idea of guidelines? Whenever we have tried to insert proposals in the Bill in the form of a statutory provision, it has been said by he or his colleagues that guidelines are far better. Now we have some guidelines, and no doubt the Minister can tell us in what respect they are not working satisfactorily, if that is the case. Then, as the noble and learned Lord suggests, we can consider whether it would not be better to try to improve them, rather than to write into the statute a provision that has been so universally condemned.

I think that the question that the noble and learned Lord has put should be extended, so that when the Minister replies he should say not only who has been consulted, but which of the organisations have given a favourable answer to the suggestion that the clause should be incorporated, and which of them have spoken against it. If the overwhelming weight of expert opinion is that the clause should not be inserted, one must then ask, what is the reason for its insertion? Is it because a rather similar proposal was included in the Tory Party manifesto, and that although the proposed clause does not go quite as far as that, the Government feel that there is an obligation to the party to insert a provision which they know to be fundamentally wrong and bad?

While I am on my feet I should like to ask just one question; namely, why the Home Office has never followed up the Research Study No. 32—Residential Treatment and its Effects on Delinquency? It was published in 1975, and it showed conclusively that in the majority of cases residential treatment is followed by reconviction within a very short period. If residential treatment is still as ineffective as it was shown to be in the Home Office research study of 1975, ought we not to have some more up-to-date figures which would enable us to evaluate the advantages of Clause 22?

Lord Donaldson of Kingsbridge

I should like to follow the example of the noble Baroness and say simply that I support the Opposition Front Bench and the admirable speech made by the noble Lord, Lord Mishcon.

Baroness Birk

I, too, should like to support what my noble friend and other noble Lords have said, and emphasise the point made just now by the noble Lord, Lord Avebury: that the reconviction rate in these cases is so high that that alone should make one wonder about the situation. Even as recently as 1979, two researchers at Lancaster University found that two-thirds of the total number of young offenders from Rochdale who were placed in custodial homes re-offended. That is the latest information that we seem to have had since 1975.

The views of the many organisations that are involved in providing residential care should also be borne in mind. In the strongest possible terms they have warned that the proposal contained in Clause 22 would have a highly damaging effect on residential care itself, because residential establishments would be expected to house in the same establishment young people who are subject to ordinary care orders, whose length of stay is indefinite and depends upon their assessed need for residential care, and also those who are subject to the new, determinate residential care orders. In its comments on the White Paper Young Offenders of October 1980, which put forward this proposal, the Association of Community Homes emphasised that the treatment of children subject to both determinate and indeterminate sentences— cannot be viable in the same establishment without each treatment plan seriously undermining the other". So I would only say that on three very important counts—the whole question of resources, the question of the reconviction rate and also the point about the harm that will be done to those establishments dealing with residential care at the moment—we have the strongest evidence, in the views of the organisations concerned with them, against what has been proposed and what is still in the Bill in the form of Clause 22. There would appear to he, as yet, no argument put up that would overturn the very strong views put forward by my noble friend and other noble Lords (and, I venture to say, the one or two points that I myself have put forward) which would give any support for Clause 22 remaining in the Bill.

6.31 p.m.

Lord Elton

That was a formidable deployment, was it not, of combined opinions? I wonder whether the phalanx of opposition to this measure which noble Lords have quoted—including, I noticed, the Association of County Councils, which I think is a newish recruit and which I was not aware of—does not repose to some extent upon a misconception. I am advised that in fact the Association of County Councils at best regards it as a curate's egg, so I withdraw that point. I was saying that I was withdrawing one of the facts I was deploying against the noble Lord. He need not trouble himself with which; he can just be content that my case is fractionally weakened by what I have said.

I just wonder, among the snowstorm of extra information I have been given, whether in fact we should not look at the central matter and ask ourselves whether we are looking at this aright. There is support —significant support—for this proposal from the people who are between the upper and the nether millstones, and they are the magistrates in their courts. If there was no support I do not think this measure would have manifested itself in the manifesto on which this Government were elected.

Noble Lords opposite, and some on this side of the Committee, seem to regard what we propose as some sort of brutal, blunt instrument for the courts to use to snatch innocent children from caring parents. A court which at present puts a child in care leaves itself no stronger measure in reserve, at present, short of a custodial sentence. The children we are speaking of are already in the care of the local authority, and my noble friend Lady Faithfull would say that some of them should not therefore be with their parents. However, the breakdown shows that of the offenders in care on 1st March 1979, about 37 per cent. were placed at home and about 40 per cent. in local authority residential establishments; but, of course, these proportions will vary from time to time.

We are therefore looking at some 40 per cent. of the children in this group. Those children will already have offended; they will already have shown that that combination of care is insufficient or ineffective in preventing re-offending; and, as things now stand, the intervention of the court on the child's reappearance must at present be either draconian or derisory, either custody or simply further care; and the only effective impact the court can secure is by custody.

What is now proposed is to leave the child in the care of the local authority but to take from that authority the power they so far have had to place the child with any parent, guardian, relative or friend. Even as it stands, that limited removal of discretion need not be wholly exercised. Under the new Section 20A(1)(b), the court can use this power to say to the local authority, "You cannot leave this child with just any relative you choose; he or she can stay only with his mother, or with a particular uncle or aunt". The exclusion of all relatives is the final step. It means that the child must be put in a home, but it does not mean custody. In other words, the effect of this clause is simply to prevent the child being sent back home with a flea in his ear or, as the only alternative being sent to custody, destitute of his liberty.

The noble Lord, Lord Avebury, noted the link between this clause and the proposals in the parliamentary All-Party Penal Affairs Group guideline amendment, No. 44, I think it was; and those criteria are in fact in line with each other. Both the criteria in the amendment presuppose explicitly that a care order should be imposed on a juvenile offender only if it is necessary to remove him from the charge or control of his parent or guardian. Of course, this is precisely what Clause 22 enables the court to do, with the added safeguard that it is only after re-offending that it can do it.

Your Lordships raised a large number of other matters, most of which I think were peripheral to my main theme; but I cannot I think accept the idea that the differential effects of different forms of residential treatment make invalid altogether the care order system. As to the re-conviction rates—and as the noble Lord has asked about research—we shall be examining the working of this clause when it comes into effect, but there is a considerable division of opinion as to what are in fact the predisposing criteria for re-offending. In a recent piece of research by Cawson there is a firm conclusion that the most significant predictor of re-offending is the extent of the juvenile's previous offending. Compared with that, other characteristics of the offender, or of his placement, are unimportant.

So we are not looking at a picture in which all is black or all is white. I believe that what we propose is to be recommended because it is better than custody. As I said at Second Reading, this is not a way of snatching children into residential care and out of their homes as a first resort: it stands between the child and imprisonment when the only means by which the court could at present give notice to the child and those responsible for him of the seriousness of what he has done is to put him into custody. I think that this is better than custody. Noble Lords who seek to take this power from the courts and from this Bill will in fact be condemning more children to custody, and I think that would be a retrograde and a heartless step.

Lord Mishcon

Not quite as heartless, if I may say so, as going against the whole experience as recorded, and as I ventured to summarise before the Committee, of all those who have to do with residential homes, the ameliorating effect that those homes can have, the order, discipline and fairness within them—a point which I noticed the noble Lord the Minister, while covering most of the rest of the debate, ignored. His one justification was that the magistrates would like to have this power and that one was saving the child from (dare I say it?) drifting between the Scylla and Charybdis of a residential home or imprisonment, detention.

Lord Elton

In order not to be stranded on either Scylla or Charybdis it is necessary to have a positive course to steer. That is what Clause 22 provides. If you drift, you finish up on Scylla or Charybdis, wrecked.

Lord Mishcon

The quickness of mind of the noble Lord the Minister is something that many of us have noticed and admired before. If he wishes me to carry on with a naval metaphor, then I shall do so and say that sometimes it is very sensible, having sailed a straight course between Scylla and Charybdis, if you want to make another journey between them to adopt the same straight course. It may well be that the magistrates will decide, after a reprimand, to send the child back under the self-same care order; but give the magistrates the opportunity under this section, contrary to the advice of probation officers and everyone else, and they will not. They will avail themselves of this power thinking that Parliament decided that it wanted the magistrates to do so. What they will do is to take the child away from the parents or from wherever it may be and put it in one of the residential establishments which those who run them —and the magistrates do not—do not want.

It is in those circumstances, with a degree of confidence, supported as I have said by all those so experienced in administering the difficult task of rescuing juvenile offenders, and in the hope that £6 million or more will not be wasted on this provision, that I ask your Lordships to decide that the clause should not form part of the Bill. As the Minister has not answered, as I think, the most telling points in the debate, I have no alternative but to ask the Committee to divide on this matter.

6.43 p.m.

On Question, Whether Clause 22 shall stand part of the Bill?

Their Lordships divided: Contents, 75; Not-Contents, 59.

DIVISION NO. 1
CONTENTS
Airey of Abingdon, B.	Ellenborough, L.
Auckland, L.	Elton, L.
Avon, E.	Fortescue, E.
Bellwin, L.	Fraser of Kilmorack, L.
Beloff, L.	Gardner of Parkes, B.
Belstead, L.	Glenarthur, L.
Boardman, L.	Greenway, L.
Brougham and Vaux, L.	Grimston of Westbury, L.
Cathcart, E.	Harmar-Nicholls, L.
Chelwood, L.	Hornsby-Smith, B.
Cockfield, L.	Hylton-Foster, B.
Coleraine, L.	Lane-Fox, B.
Cork and Orrery, E.	Long, V.
Craigavon, V.	Lyell, L.
Crathorne, L.	McFadzean, L.
Cullen of Ashbourne, L.	Mackay of Clashfern, L.
Davidson, V.	Macleod of Borve, B.
De Freyne, L.	Marley, L.
Denham, L. [Teller.]	Merrivale, L.
Digby, L.	Mersey, V.
Ebbisham, L.	Monk Bretton, L.
Eccles, V.	Morris, L.

Mottistone, L.	Skelmersdale, L.
Murton of Lindisfarne, L.	Soames, L.
Napier and Ettrick, L.	Spens, L.
Newall, L.	Stanley of Alderley, L.
Northchurch, B.	Sudeley, L.
O'Hagan, L.	Swinfen, L.
Onslow, E.	Swinton, E.
Orkney, E.	Terrington, L.
Penrhyn, L.	Thomas of Swynnerton, L.
Piatt of Writtle, B.	Trefgarne, L.
Portland, D.	Trumpington, B.
Rankeillour, L.	Vaux of Harrowden, L.
Renton, L.	Vivian, L.
St. Davids, V.	Windlesham, L.
Sandys, L. [Teller.]	Young, B.
Sharples, B.

NOT-CONTENTS
Airedale, L.	Irving of Dartford, L.
Avebury, L.	John-Mackie, L.
Aylestone, L.	Kagan, L.
Bernstein, L.	Kilmarnock, L.
Birk,B.	Kinloss, Ly.
Bishopston, L. Teller.]	Kirkhill, L.
Blyton, L.	Longford, E.
Boston of Faversham, L.	Mashamof Ilton, B.
Brockway, L.	Mishcon, L.
Brooks of Tremorfa, L.	Northfield, L.
Burton of Coventry, B.	Ogmore, L.
Chitnis, L.	Oram, L.
Cledwyn of Penrhos, L.	Peart, L.
Collison, L.	Redcliffe-Maud, L.
David, B. [Teller.]	Seear, B.
Davies of Leek, L.	Stamp, L.
Davies of Penrhys, L.	Stedman, B.
Donaldson of Kingsbridge, L.	Stewart of Alvechurch, B.
EIwyn-Jones, L.	Stewart of Fulham, L.
Elystan-Morgan, L.	Stone, L.
Faithfull, B.	Strabolgi, L.
Gardiner, L.	Taylor of Mansfield, L.
Gladwyn, L.	Underhill, L.
Glenamara, L.	Wells-Pestell, L.
Gosford, E.	White, B.
Halsbury, E.	Wigoder, L.
Harris of Greenwich, L.	Winstanley, L.
Houghton of Sowerby, L.	Wootton of Abinger, B.
Hunt, L.	Wynne-Jones, L.
Hutchinson of Lullington, L.

Resolved in the affirmative and Clause 22 agreed to accordingly.

6.50 p.m.

Baroness Faithfull moved Amendment No. 48: After Clause 22, insert the following new clause:

("Remanding of juveniles to adult prisons to cease.

(1) Subsection (5) of section 22 of the Children and Young Persons Act 1969 is hereby repealed.

(2) In section 23(1) of the Children and Young Persons Act 1969, the words "subject to the following provisions of this section" shall be omitted.

(3) Subsections (2) and (3) of section 23 of the Children and Young Persons Act 1969 are hereby repealed.").

The noble Baroness said: Again, I speak on behalf of the Parliamentary All-Party Penal Affairs Group. I speak with the support of the noble Lord, Lord Hunt, the noble and learned Lord, Lord Gardiner, and the noble Lord, Lord Avebury. This amendment is recommending that juveniles on remand should not be sent to adult prisons. I realise that there are certain difficulties over this—legal difficulties—regarding remand centres, and so on. At any one time there are not more than 50 or 60 juveniles remanded to prisons. But I cannot speak too strongly against young people being remanded to prison. This is the first step on the criminal ladder. Even a short time in prison— and I know this to be true from what children have told me—means that they start to learn from the older men many things that they would not otherwise know. Sometimes they form alliances with the older men in prison so that when both come out they meet up afterwards.

This of course is a question of resources and making alternative arrangements. I would suggest, as I have said in the House before, using empty mental hospitals in this country and I believe that with a will it would be possible to make arrangements for the accommodation of those 50 or 60 young people remanded to prison in some other way than in prison. I would even be happy if the Minister was able to say that the Government had a time-table for phasing out the accommodation of young people on remand in prison. The prison warders do not like this situation. They find it extremely difficult to do well by the young people as well as by the older ones. Therefore, I beg to move.

Lord Hunt

I rise to support the noble Baroness in moving this amendment. In a Written Answer to the noble Baroness, as I understand it, the noble Lord, Lord Trefgarne—and I am glad to see that he is in his place —told her, regarding the provision of secure accommodation appropriate for holding 15 to 16 year olds, juveniles, on remand that locally there is and will be for some time some under-provision of the appropriate secure accommodation. I am not quoting him but that I think was the gist of what he said.

Arising out of that, I should like to put to the Minister three pertinent questions. First of all, how long will that situation endure? How many is the shortfall of places? How local does a boy on remand have to be when remanded in custody? We know how temporary remands tend to be. In a number of cases they go on for a matter of months. It is not too strong an expression to say that it is a scandal that this situation should be continuing and that its effects should be prolonged. It is a choice between undesirables: between the inconvenience of travelling for the purpose of visits and so on to and from an appropriate secure place where a young person is on remand, and the totally unacceptable retention of juveniles in a local prison, strictly locally. Is it not a choice in that case of expediency or putting expediency before human rights?

When the all-party penal affairs group wrote the report on the young offender and strategy for the future we made this specific recommendation which the noble Baroness mentioned, and that was that there should be a specific time-table to be announced for the ending of the remand for 15 to 16 year olds to prison department establishments, and rapid progress should be made towards this objective.

In the Committee stage of this Bill in another place on 18th March Mr. Sam Silkin suggested that an amendment on these lines should be put into the Bill at this stage and it could be made operative as soon as the secure accommodation, where the juveniles ought to be kept, is available. Clause 60 of this Bill makes provision for the commencement date of all provisions in the Bill. That at least would ensure that the minimum time would elapse before the amendment because operative. I do not have a great deal of confidence that without the insertion of this amend- ment there will be any sense of urgency, any more than I am satisfied that there has been a proper sense of urgency hitherto.

Baroness Birk

In the Committee stage last week I had the privilege of moving the first amendment which was to stop young offenders from being put into adult prisons on remand in custody. I also had the chastening experience of when unfortunately the replies that we received from the Government were so unsatisfactory that, although we had not intended to divide the Committee, we did so and therefore at the moment this is still left in the Bill. I am referring to Clause 1.

We are now talking about an amendment that was moved by the noble Baroness, Lady Faithfull, which is trying to do something which one would have thought would really be accepted almost without a word, and that is to prevent juveniles, much younger people, from being remanded in adult prisons. In 1980, 3,372 juveniles were remanded or committed to prison department custody. Of those, over 830 were subsequently acquitted or received non-custodial sentences. I am not arguing that those who received custodial sentences afterwards should ever have been sent to adult prisons; but to think that over 830 youngsters spent some time remanded in an adult prison with all the influences that there are in places like that, and in places totally unsuitable for young prople—to be in even for a day—and then when they came out they did not receive any form of custodial sentence at all. It makes one wonder how, in 1982, in a society which we like to consider civilised, we can still perpetuate this horrendous and repulsive system.

In 1975, the House of Commons Expenditure Committee, in its report on the Children and Young Persons Act, said: We condemn in the strongest possible terms the use of certificates of unruliness as a means of achieving secure accommodation. We recommend that the practice of remanding young persons to adult prisons should cease forthwith. Alternative arrangements must be made. That was seven years ago and not only has that not yet happened—and I accept that it is not the responsibility of only one Government—but the practice will still remain in a new Criminal Justice Bill, which we were all hoping would bring more radical light and more libertarian views into our criminal justice system.

When the noble Lord, Lord Hunt, spoke to this amendment, he quoted the reply which the noble Lord, Lord Trefgarne, had given to a Question put down by the noble Baroness, Lady Faithfull. He said that, when the secure places now under construction became available, the total number of secure places in community homes would be about adequate for the number of juveniles in need of security. If the number of secure places is very nearly sufficient to enable us to end this iniquitous practice, then we want to know. The Government must by now have a very clear idea of when the presumably, few secure places will become available. The noble Lord will know, because, in his answer, he referred to places that are now under construction.

Therefore, we want to know from the Government exactly what their timetable is. We want to know that this is a priority, and if the timetable is one which we consider reasonable in the circumstances, then the Government will, at least, have produced an answer and we shall know that there is a specific programme. We are all concerned with penal reform and it would be quite wrong for us to let a situation continue where young juveniles—not just young offenders—can still be remanded in custody in adult prisons. As the House of Commons Expenditure Committee said, this practice should be ended forthwith.

7.3 p.m.

Baroness Masham of Ilton

I am attached to an open borstal, and very many of the boys whom I have seen have been remanded in large local prisons, such as Durham, Armley, Liverpool and so on. After that, they go on to another large prison, which is Strangeways in Manchester. Every single boy from the North goes there for allocation and sometimes stays there for two or three weeks and may be locked up for 23 hours a day. I have been to some of these prisons, and I know the feeling that one gets. The first time I went to one I heard a large door clang behind me and then I went through yet another door. But, after one has been there at least twice, the feeling is never quite the same. Is it right that we are shutting up our boys and giving them this experience, which we might keep until later when they have done something worse?

I suggest to the noble Baroness, Lady Faithfull, that these youngsters should not be placed in old mental hospitals which are horrible and depressive places. I would place them in some of the teacher training colleges, which the noble Lord, Lord Elton, knows only too well have been closed down. If the Government wanted to do so, they could easily put a fence around these places; and the more attractive they are the better will be the behaviour of young people. Therefore, I should like to support this amendment.

Lord Avebury

I understand that the Minister may not look too favourably on the idea of using these former teacher training colleges as secure accommodation, because of the cost of modifying them as compared with erecting new, special purpose-built accommodation. But there is no dispute in principle on this, as I understand it, because the Government have said that they intend to phase out these remands as soon as resources allow. The question before the Committee is whether or not the Government have a definite plan, and will come forward now and tell us precisely on what date the resources will allow for secure accommodation to be provided in every region, instead of there being certain shortages only in particular areas of the country, as there are now.

I may say, in reply to the remarks of the noble Baroness, Lady Masham, about Liverpool, that that is one of the prisons in which there is already severe overcrowding. Her remarks highlight the fact that these young people are to be sent to local prisons, where the degree of overcrowding is almost horrendous and where, as one governor has expressed it, "We are dealing with penal dustbins". These are the places to which young people are sent, where the staff and the governors themselves are already telling us that they cannot cope with the adults, let alone the juveniles.

So I hope that the Government will pay serious attention to this amendment, because I believe that, unless we have something like this on the statute book in this Bill, we shall be fobbed off with pious hopes on the part of the Government that, "We shall provide secure accommodation as soon as resources allow, but the economic situation is very difficult", and so on. I should like to see the Government undertaking research on the reconviction rates of young people who are sent to these establishments, because I agree wholeheartedly with what is said about the enormous risk which is run by sending a young person, at a very impressionable stage of his life, to an establishment where hardened criminals are found. I cannot envisage anything more foolish, nor anything more likely to impose serious burdens on the resources of future generations when they have to look after these young people who have become hardened criminals themselves, as a result of the influences on them at the age of 15 and 16.

Lord Trefgarne

This new clause seeks to do something which the Government are already committed to trying to achieve. We are therefore wholly in sympathy with the intention behind it, which is to bring to an end the remand to prison of juveniles who are certified as being so unruly that they cannot safely be committed to the care of a local authority. This is a somewhat emotive subject. It was given a full debate on an identical amendment in another place, and your Lordships here have spoken eloquently about it this evening. But I am afraid that the Government cannot accept this new clause. My right honourable friend the Home Secretary already has power, under Section 34 of the Children and Young Persons Act 1969, to make orders amending the remand provisions. The power was last exercised last March, when 14-year-old boys were excluded from this provision. It now applies only to boys aged 15 and 16. We are already looking to see what can be done about that age group. This new clause would make an abrupt change in an area where we need to move very carefully, and to try to carry with us the confidence both of the courts and of the local authorities. I should therefore like to try, briefly, to explain the difficulties.

Juveniles have the same general right to bail as do adults. The 15- and 16-year-old boys upon whom this debate focuses have been refused bail because the courts have substantial grounds for believing that they will fail to surrender to custody, or will commit an offence while on bail or interfere with witnesses. In such cases, the provision in Section 23 of the Children and Young Persons Act 1969 is that they should he remanded to the care of the local authority. But the boys we are talking about have been through yet another filter. The courts have certified that they are of so unruly a character that they cannot safely be committed to the care of a local authority.

Since 1977, the issue of certificates of unruliness has been the subject of very strict conditions. The boy must be charged with an offence punishable, in the case of an adult, with imprisonment for 14 years or more, or with an offence of violence, or have a history of offences of violence. In addition, the court must be satisfied on the basis of a written report from the local authority that no suitable accommodation is available for him in a community home where he could be accommodated without substantial risk to himself or others. These are, therefore, boys charged with very serious offences for whom both the court and the local authority agree that a remand in care is not suitable. I say that to make it clear that the Government have a duty to proceed realistically in this matter. We have given it a great deal of thought, and we are on the point of opening consultations with the local authorities, the magistracy and others involved. The purpose of these consultations will be to establish exactly what degree of progress is or is not practicable in present circumstances.

It has been said that there is now enough secure accommodation to cope with all juveniles who are now remanded in custody. If that were the whole of the answer, we should be only too delighted, but I am afraid it is not. The number of secure places in community homes for accommodating remanded juveniles has increased over the last few months as new units have been opened and it now seems that the total stock is just about sufficient. However, there is still under-provision in one or two parts of the country and there may also be some difficulties in securing that a proper staffing complement is recruited and trained.

During our consultations we shall need to satisfy ourselves that the community home system will be able to accommodate satisfactorily all those boys who are now remanded to prison department establishments. We cannot solve the problem of dealing with these juveniles by simply depriving the courts of their powers to remand in custody, which is what this amendment would do. They and the local authorities each have a duty to ensure that the public is, where necessary, given some degree of protection and that the juvenile attends court for trial or sentence. We must work towards a solution which makes allowance for these duties.

The Government have made clear their view that there will always be a minority of juveniles for whom a custodial sentence is inevitable. In spite of that, we remain committed to a policy of trying to make sure that unconvicted or unsentenced juveniles are not held in custody. That commitment brings with it a responsibility to proceed realistically, and that is what we shall do. We took one cautious step last March and ended the remand in custody of 14-year-old boys. We are now going to consult with a view to taking a further step. The Government would be wrong, I think, to act hastily, and I hope that the new clause will not be pressed.

May I end by saying that it has been argued that remands in custody cannot be justified because many juveniles are eventually found not guilty or receive non-custodial sentences. That is easy enough to say after the event. The simple point is that the court can only make bail or remand decisions on the basis of the facts that it has before it. In the case of a juvenile, these facts must be pretty serious and persuasive. It is also worth pointing out that a decision on bail is different in kind from a decision on guilt or sentencing. It is essentially a predictive decision about whether the offender will turn up for trial or sentence or will get up to further mischief while on bail. The courts must base their decisions on substantial grounds, but they are not clairvoyant. They must do the best they can on the facts available to them at the time. It is of no help to that process to point out that in the event things sometimes turn out otherwise. I hope I have been able to point to some of the real difficulties with which we are faced in this amendment and that it will not be pressed.

Baroness Faithfull

Before the noble Lord sits down, am I to understand that it is the Government's policy in the long run to have enough accommodation, so that juveniles on remand for criminal offences are not sent to prison?

Lord Trefgarne

Yes, most certainly.

Baroness Macleod of Borve

May I instance one type of case with which we are dealing; namely, juvenile arsonists. For juvenile arsonists you simply must have secure accommodation. If you do not have it in the region you must have it in a local prison. These might well have, and in many cases they do have, a boys' section It is very important that magistrates should be able to remand in custody cases of that kind.

Baroness Birk

In answer to the noble Baroness's question—"in the long run?"—the Minister said, "Yes, in the long run Could he be a little more specific, particularly in view of the answer he gave to the noble Baroness, Lady Faithfull? It was a point which I also raised when I spoke. There should be something more specific than this. "In the long run" sounds to me rather more depressing than we had expected from the answer to the question.

Lord Trefgarne

The words "in the long run "were the words of my noble friend. They were not my words.

Baroness Birk

I know.

Lord Trefgarne

I should have been willing to go further if my noble friend had asked me.

Lord Gardiner

Is it impossible for the noble Lord to give us any dates? If this can be done for 14-yearolds, why is it impossible to do it for 15-year-olds? The noble Lord intimated for some time in correspondence with the noble Baroness, Lady Faithfull, and others that the day was approaching when accommodation would be available. Now he gives no date at all. He sets no limit to it. We have to remember what the conditions in our prisons, with their overpopulation, are like for remand prisoners. It is possible to take the view that preferably no remand prisoners should be made to endure the conditions which exist in our prisons, but we could at least start with those aged 15 and 16.

Lord Trefgarne

I cannot, I am afraid, give a specific date as to when this happy state of affairs will arrive. Certainly I agree that it is a most desirable objective. In recent months we have made significant progress. Indeed, since the Written Answer which I provided to my noble friend Lady Faithfull, we have been able to open some new accomodation, and the position is slighty better now than it was on the occasion when I answered my noble friend. I cannot give your Lordships a precise date on which we shall be able to accept this as a formal commitment, but it cannot be far off. It is now only 15-and 16-year-olds who are subject to the possibility of the unhappy situation where they would be remanded to prison. When they are committed to prison for this purpose they are, in any event, kept carefully separated from the other prisoners, which was a point made by one noble Lord. However, I agree that we want to move as fast as we can. We are going to have consultations with the magistrates and others to see whether we can move forward, perhaps one step further, in the very near future. I cannot give a precise date to your Lordships, but I can say that as a matter of principle we shall do that just as quickly as we can.

Baroness Faithfull

I thank the Minister for his reply. It is quite obvious that it would be extremely embarrassing and very difficult for the Government, at the drop of a hat, to provide secure accommodation for these young people. Having said that, I agree with the noble Baroness, Lady Birk, that to send them to prison is quite monstrous. But the Government are facing in the right direction, they are aware that this is a very great problem, and to my certain knowledge more secure places outside have been provided.

May I say to the noble Baroness, Lady Macleod of Borve, that I have dealt with many arson cases. Those involved have not been sent to prison. I do not believe that arsonists necessarily need treatment and necessarily have to go to prison; they can be dealt with in secure accommodation outside the prison setting. My noble friend the Minister has said that consultations are taking place about this, that he is aware of the problem and that it is the policy of his department to move in the right direction. We hope that they will move fast. No good purpose would be served by pressing the amendment. Therefore, I beg leave to withdraw it.

Amendment, by leave withdrawn.

Lord Denham

This is probably an appropriate moment for the dinner adjournment. May I also say to your Lordships that although I realise that this is a very important part of the Bill and that feelings quite rightly run very highly upon it, a little faster progress after the dinner adjournment would mean not asking your Lordships to sit too late, or later than I would otherwise have wished to ask your Lordships to sit; and it would probably be better for the Committee as a whole if we could make a little more progress. I beg to move that the Committee stage should be adjourned until five minutes past eight o'clock.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 7.20 until 8.5 p.m.]

Clause 23 [Criteria for accommodation of children in care]:

Baroness David moved Amendment No. 49: Page 27, line 8, after ("accommodation") insert ("and for different periods of time").

The noble Baroness said: We now move on to Clause 23, which is a new clause introduced by the Government at report stage in another place, owing to the requests and amendments which sought to get the criteria for detaining children in secure accommodation made more stringent. There are a number of amendments down to this clause. I should like to speak to Amendment No. 49 but also to Nos. 50 and 55. Amendments Nos. 51, 52 and 53 will be referred to in the course of what I have to say and these amendments are perhaps another way of covering the same difficulty.

The present widespread practice of restricting the liberty of children in care for indefinite periods without any form of court hearing places Britain in breach of the European Convention on Human Rights. The lack of strict criteria for admission of children for what is euphemistically described as "secure accommodation" in the care system has lead to a rapid growth in its use, criticised by both Government sponsored research and official reports. There have been two major research studies on secure units within the child care system; the Dartington Social Research Unit Study, Locking Up Children, in 1978, and the DHSS research report, Children Referred to Closed Units, in 1979. Both these studies show that secure units are currently being used for younger and less delinquent children than was the case several years ago and that their reconviction rates are high.

I was today handed some figures which I believe the noble Lord, Lord Trefgarne, handed to my honourable friend Robert Kilroy-Silk. These figures came into my possession only this afternoon so I have not been able to study them carefully. However, I understand these figures were available to those who were taking part in the Committee stage of this Bill. I hope that I am right in thinking that.

Lord Trefgarne

I am sorry to interrupt the noble Baroness, Lady David, but it would be helpful if she will give me more of a clue as to the figures she is talking about.

Baroness David

Whether I should read out the letter that introduces these figures I do not know, but it comes from the DHSS. The letter is signed "Tony Newton".

Lord Trefgarne

Which, unhappily, is not me.

Baroness David

Perhaps the noble Lord the Minister knows as little as I do about these figures. I was going to say I was sorry that I did not have the figures for the 1980 survey, which the DHSS seemed unwilling to make available to us. Now they are available, but at such a late moment that it has been impossible to digest them. There is no doubt that there has been a growth in the use of secure accommodation for children in care, under the law and regulations relating to its use, and present practice by social service departments. A detailed commentary on this, together with detailed proposals for reform, are made in the Children's Legal Centre report, Locked Up in Care, published last month.

The Government accepted the need for admission criteria to limit the use of secure accommodation by creating Clause 23. But Clause 23, inserted into the Bill during Report stage, merely adds to the list of matters on which the Secretary of State may issue regulations. Clause 23 proposes that if such regulations are issued they may include provisions to ensure that a child is not placed in secure accommodation unless he appears likely otherwise (a) to abscond, (b) to injure himself or other persons, or (c) damage or take other persons' property. Clause 23 would not, in our view, significantly alter present practice or the continuing growth in the use of secure places. Over 500 are approved; I gather 522 in fact from the document I have mentioned. Its inclusion in the Bill would in fact sanction existing practice without introducing any safeguards.

Our proposed amendment to Clause 23 and the consequential new clause, which is Amendment No. 55, would tighten up admission criteria in line with official research findings and provide for a court hearing to test the decision to restrict any child's liberty for more than 72 hours, and this would remove the breach of the European Convention. The Government have said—this was Mr. Finsberg answering a Written Question, Hansard 24th May, col. 236—that recommendations to ensure that decisions to restrict children's liberty should be subject to judicial review would be taken into account when the Community Homes Regulations are reviewed following the passage of the Criminal Justice Bill. It seems clear from the Report stage—Mr. Mayhew's speech, Hansard, 2nd May, cols. 787 to 790—that the Government are likely to continue to argue that the promised revision of the Community Homes Regulations 1972 will provide sufficient safeguards.

We emphasis that it cannot be satisfactory to leave control of the restriction of the liberty of children in care to the discretionary power of the Secretary of State to issue appropriate regulations. The regulations could not in any case be used alone as a sufficient legal mechanism to provide for the changes required to ensure that places in secure accommodation are subject to judicial review and thus do not constitute a breach of the European Convention. The European Commission and Court of Human Rights has in recent years found Britain to be in breach of several articles to which it is signatory. Most recently, the European Court has given judgment concerning the rights of mentally ill people, and this has been influential in deciding the character of the Mental Health (Amendment) Bill. Many of the Government's proposals stemmed from the court's decisions and were designed to bring the law into conformity with the convention.

During the Special Standing Committee session on the Bill, Mr. Mayhew said that successive Governments have become fed up with being taken to the European Court and being told that they are in breach of the convention. This Bill provides an immediate opportunity to prevent a further clear breach being taken to the Commission and Court. During the Committee stage of the Bill, Mr. Mayhew said—2nd March, col. 337: Decisions to admit a child to security or extend his placement in security should, in the view of the Government, be a matter of professional judgment". The Children's Legal Centre, which has produced the document Locked Up In Care, bases its contention that Britain is in violation of the European Convention by allowing restriction of children's liberty on the basis of professional rather than judicial decision. It bases it on Article 5, paragraph 4, which states: Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful". The present requirement in the Community Homes Regulations 1972 for three-monthly reviews by the care authority or voluntary organisation of any placement in secure accommodation in no way satisfies the principle of judicial review set out in the convention.

The amendments and the new clause would ensure that any proposal to keep a child or young person in secure accommodation for more than 72 hours must be tested by a court hearing, with proper safeguards for the young person, including the right to be present and to legal representation. Before making an order allowing the local authority or voluntary organisation having care of the young person to keep him in secure accommodation, the court would have to agree that the admission criteria are satisfied. A care authority or voluntary organisation wishing further to extend the placement beyond three months would have to return to the court for a further hearing.

The criteria for admission to secure accommodation proposed by the Government in Clause 23 include absconding, which was specifically rejected by the DHSS's own internal working party report on legal and professional aspects of the use of secure accommodation for children in care. That was in February 1981. What they said was: Absconding or other extremes of behaviour may well be due to anxiety about domestic circumstances or unhappiness in current placement. It is not sufficient for youngsters to be placed in security and deprived of their liberty simply because they abscond or because a more suitable environment with high staff ratio and specialist advice is not available elsewhere". The clause also includes likelihood to damage or to take other persons' property. This would give community home heads and other authorities the right to restrict the liberty of young people on suspicion that they might be going to commit a minor offence, taking a milk bottle, for instance, or something like that, hardly an adequate reason for locking someone up, or one which would commend itself to the European Convention Court. The report of the Children's Legal Centre, which was the one set up by the International Year of the Child, Locked Up In Care, refers in detail to research findings on absconding, troublesome behaviour and the likelihood of those placed in security to commit offences, and to comments by the DHSS internal working party and by the All-Party Penal Affairs Group.

I think there is enough anxiety expressed by the various amendments we have put forward to ask for some positive response by the Government to all this. There is a good deal of evidence, figures, and so on, which I have not given but could give if necessary, and might give if necessary.

Lord Trefgarne

I am sympathetic, I must say, to the underlying intentions of this amendment. The position of children in care who are admitted to secure accommodation is at present the subject of statutory safeguards provided in the Community Home Regulations 1972, to which the noble Baroness referred. Regulation 11 at present includes a number of safeguards that relate to the period of time a child has spent in secure accommodation. Most obviously, the permission to the care authority is required if the placement is to be extended beyond 28 days and the requirement for three monthly reviews. It is our intention to revise these regulations when this Bill has completed its passage through Parliament, and the periods of time included in Regulation 11 will be subject to review. Section 39 of the Child Care Act 1980 already confers upon my right honourable friend the Secretary of State sufficient powers to enable this to be done.

I recognise that this does not meet some of the points made by the noble Baroness. In particular she referred to the possible difficulty with the European Convention on Human Rights. I am aware that the Children's Legal Centre's report raised the matter of whether our existing arrangements arc in breach of the European Convention. I am grateful to the centre for drawing this important matter to our attention. We are at present looking into it very carefully. It is possible that if we are in breach the matter can be rectified by means of the revision of the Community Homes Regulations to which I have referred. if primary legislation is required, and that is by no means clear yet, this would be a matter for subsequent social security legislation, and not I think for this particular measure. This is not something that can be rushed into now. The position of our arrangements vis-à-vis the European Convention on Human Rights is not yet clear, but we do take on board and are looking at the point, and we will certainly put it right if the legal advice shows that there is a problem.

I hope that the noble Baroness will be happy with that undertaking which goes further than the one that was made in the other place in connection with the narrower point of the Community Homes Regulations. I further hope. therefore, that she will not feel it necessary to press the amendment.

Baroness David

I should like to raise one point before anyone else speaks. I hope that perhaps the noble Baroness, Lady Faithfull, will make some comments on this matter. The reviews which are supposed to take place—a matter to which the noble Baroness referred earlier—do not always take place. I should like to be told the answer to the following question. The reviews are supposed to be undertaken regularly, but do the reviews actually happen? There may be regulations, but are they observed?

Lord Trefgarne

I am not aware of any review failing to take place which should take place. If the noble Baroness or my noble friend Lady Faithfull know of a specific instance where a review required under the regulations or under some other provision should have taken place but did not take place, I would most certainly want to know about it, and I would certainly be anxious to look into it and find out what did or did not happen. However, I think that the genreal position—leaving aside the question of the European Convention on Human Rights which, as I have said, is something we really need to look into— will be covered by the review that we have undertaken to carry out in connection with the Community Homes Regulation 1972 after the passage of this measure. I hope that that will allay the fears of the noble Baroness.

Baroness Faithfull

I agree with the noble Baroness, Lady David, that the reviews do not always take place; but let me add that they should take place. There has been some bad practice, as I suppose there is in every sphere of life. I am informed—and I have seen it for myself in travelling around—that the situation is improving and that people are beginning to be aware that these reviews must take place.

Lord Avebury

I should like to pursue the European Convention point for a few moments before we draw this debate to a conclusion. I am very glad to hear that the noble Lord the Minister will take advice on whether or not the procedures that are laid down under the Community Homes Regulations 1972 satisfy the obligations that we have under the convention. Certainly the report to which the noble Baroness, Lady David, has referred, is quite categorical in saying that the procedures do not comply with the convention. I should have thought that at this stage the noble Lord the Minister might have been able to express a preliminary opinion on his reading of that report.

It says that the procedures laid down in these regulations do not operate within the kind of judicial framework which the European Convention envisages, and it gives a number of examples of the aspects of the procedure which fail to comply with the guidance that has been given by the European Court. They say, for instance, that there is no established procedure for decision-making. There is not even any guarantee that the young person concerned will be present, let alone heard or be represented. In another chapter of the report they describe a survey in which the current practice is thoroughly examined. They go on to say that there is no way of ensuring that decisions have not been influenced by extraneous and irrelevant evidence and so on. I shall not read out the whole of that section of the report which I am sure the noble Lord the Minister must have studied with care. Indeed, I should have thought that by now some kind of preliminary opinion would have been reached in his department as to the compatibility of the procedures with the European Convention.

If at this stage we find that the noble Baroness, Lady David, is correct, then the remedy is not quite so simple as the noble Lord the Minister was suggesting. We cannot proceed by way of amending the regulations, which could be done at any time after the passage of the Act. We have to proceed by way of legislation. I am rather afraid that if we let the opportunity of the Bill slip by, it may be many years before we can bring ourselves into conformity with the European Convention, if it is not a simple matter of doing it by means of regulations.

Therefore, I hope that the Minister can tell us not just that compatibility with the convention is being examined, but that he will come forward by Report with an opinion on this matter, so that at least we can see whether it is necessary to try to amend the Bill before it leaves this House, or whether we can safely leave the matter in the hands of Ministers to make regulations.

8.26 p.m.

Lord Elystan-Morgan

The question of whether or not Britain is in breach of the European Convention is one of the most paramount importance, as I am sure every member of the Committee accepts. Before I come to that matter, I should like, in support of the amendments, to mention one or two other matters. I hope that the House will forgive my indulging in a shattering manifestation of the obvious, but these amendments are really wholly in line with the basic philosophy of Part I of the Bill. I suppose that if one wanted to summarise that in one sentence one would say that the main object of Part I of the Bill is to substitute determinate sentences for areas where before there were sentences of interdeterminate length.

Perhaps one of the most historic features of the Bill is the abolition of the indeterminate borstal sentence. What these amendments seek to achieve in large measure. therefore, is to substitute a determinate term in so far as a care order is concerned for what now is an indeterminate order which can be of very, very considerable duration indeed, as the Committee will remember from the examples that were given in relation to earlier amendments.

The impression has been given by noble Lords on the Government Front Bench that a care order will only be made under Section 7(7) of the Children and Young Persons Act 1968 where there has been a very serious transgression. It would be right for the Committee to reflect upon that matter for a moment or two. The noble Lord, Lord Elton, suggested that very often a care order would only he made where the alternative was a case of sending the young person to prison. That most certainly is not the case, and the facts bear out that contention. Indeed, 40 per cent. of care orders under Section 7(7) that were made in 1981, were made for first offenders and 60 per cent. were in relation to first or second offenders.

Lord Elton

I should merely like to say that the noble Lord is quoting me a little out of context. I was referring to residential care orders and I take it that the noble Lord is not doing so in that reference?

Lord Elystan-Morgan

I am most grateful to the noble Lord. I misunderstood him, and I am sure that the Committee is grateful for that further elucidation. Of course it is always open—and this is the very heart of the matter as far as these amendments are concerned —to the local authority to say that the person concerned must spend a substantial part or the whole part of his time under that order in a residence designated by themselves. I would not argue as to whether that was custody or not—most clearly it is a deprivation of liberty and no noble Lord opposite would seek to argue to the contrary.

There is also the fact mentioned by my noble friend Lady David that the residential orders now seem to be made in respect of younger age groups than hitherto. The latest study that I have seen is in respect of 1975: it was found then that only 38 per cent. of the persons subject to these orders were over the age of 14,½, which means, therefore, that 62 per cent. must have been under that age. A study by the Department of Health and Social Security came to a similar conclusion.

There is no evidence that a residential order has more beneficial effects than a non-residential order. What research has been done suggests that the reconviction rate is appallingly high. I have figures here in relation to studies that were carried out under the auspices of the DHSS. They suggest indeed that the average is very probably of the order of 70 per cent; in other words, not very far from that figure of 76 per cent. which the Committee has heard in relation to the detention centres.

I want to turn very quickly to the question of the European Convention. There would appear to be—and I do not in any way hold myself out as any sort of authority in this field—a clear breach of Article 5, paragraph 4 of the European Convention on Human Rights. That article reads: Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. Article 6 of the same convention states: In the determination of his civil rights and obligations, or of any criminal charge against him, everyone is entitled to a fair and public hearing within reasonable time by an independent and impartial tribunal established by law. The scope of those two provisions has been highlighted in the judgment that was given in November of last year in the mental health case of X v. The United Kingdom. The judgment in that case contains this passage: By virtue of Article 5, para. 4 a person of unsound mind compulsorily confined in a psychiatric institution for an indefinite or lengthy period is in principle entitled, at any rate where there is no automatic periodic review of a judicial character, to take proceedings at reasonable intervals before a court to put in issue the 'lawfulness', within the meaning of the Convention, of his detention, whether that detention was ordered by a civil or a criminal court or some other authority. In my submission, no regulations made, either permissively or mandatorily, by a Secretary of State can possibly change that situation. It may well be that the judicial review need not be by a court of law as such, but most assuredly, in my submission, it has to be by a body that is totally independent from the social workers who would otherwise be administratively concerned with the case.

I find it rather surprising that no comprehensive legal opinion has yet been given to Her Majeaty's Government in this matter. There were identical amendments before another place in Committee in March of this year. The matter was further considered in very great detail and a substantial concession made in relation to powers given to the Secretary of State in May of this year. I find it surprising that decisions upon those matters were made by a Minister of State in another place without having sought and obtained legal advice. Is the Minister saying—and I should be very grateful if he would state categorically one way or another—that, in fact, those decisions were arrived at without a legal opinion being sought?

If a legal opinion was sought, what was the legal opinion at the time? Is it now thought that that legal opinion was erroneous and the Government are reconsidering the matter? This is an issue of basic liberty. It is one that should be resolved in accordance with our solemn treaty obligations under the European Convention. I am sure that no Minister opposite would seek to argue for a moment that, if there is a breach, we would wish to allow that breach to go unrepaired. Therefore, these questions—and I am sorry to have put them in such a categorical way to the Minister—are, in my submission, questions to which the Committee would want specific answers as speedily as possible.

Lord Trefgarne

It seems to me that there are two separate issues on which I need to satisfy your Lordships this evening in connection with this amendment. The first is the general question of the regulations at present in force—as to their suitability and as to their merit. The second is the narrower point of whether or not the present arrangements enable us to comply with our obligations under the European Convention on Human Rights.

On the first point—the general merit or otherwise of these regulations—I have to say that the Government are not entirely satisfied on the general merit of the regulations. That is why we shall conduct a detailed review as soon as this legislation passes into law—if it does as I hope it will—and, if shortcomings are brought to light as a result of that review, we shall certainly seek to put them right by changing the regulations. It is, of course, the case that my right honourable friends already have the necessary powers to do that under the primary legislation.

I now turn to the narrower point of the European Convention on Human Rights. A view has been expressed in the Children's Legal Centre Report that the present arrangements do not fully enable us to comply with our obligations under that convention. That is a view which the Children's Legal Centre is entitled to hold. It may even be a correct view, but the Government are not yet in a position to say whether that is so.

As the noble Lord, Lord Elystan-Morgan, will know and as I am sure the noble Lord, Lord Mischon, who I see beside him, will also know, it is not a simple thing to arrive at a considered legal opinion on these matters. As your Lordships will know, these matters are considered by the Law Officers who advise the Government. Consideration of a matter like this is likely to take them some time. In any event, they have much else to deal with and doubtless are not immediately able to give their full attention to it. But I am certain they will just as soon as possible, and will advise the Government accordingly.

Lord Elystan-Morgan

I am most grateful to the Minister for giving way. With the greatest respect to the Minister, he must be more specific than that. The mental health case had its judgment delivered on 5th November last year—it was the case of X v. The United Kingdom. The matters that we are now discussing were before another place in Committee in March where very specific points of view were expressed on behalf of Her Majesty's Government by Mr. Mayhew, the Minister of State. The matter was again raised in May of this year. What I think every member of this Committee wants to know and is entitled to know is: was there a legal opinion that was given to the Home Office prior to March and prior to May and the discussions which occurred, or is it the case that such a decision was made without any legal opinion at all?

Lord Trefgarne

I think that we are dealing with two different matters here. The noble Lord referred to the mental health case. It is the case that legislation currently before Parliament—in fact, the Mental Health (Amendment) Bill, which I believe started in your Lordships' House and which in any event is now in the other place—makes certain provision with respect to appeals to mental health tribunals, which is, of course, a separate matter. That, of course, relates to detentions under the Mental Health Acts which is not specifically—

Lord Elystan-Morgan

It highlights, with great respect, the same principle. That is why I mentioned it as the starting point of what should have been the detailed consideration of the Government in this matter.

Lord Trefgarne

I accept that the principles are very likely similar, but they may well not be identical, and are certainly arrived at under different statutory provisions. In any event, this matter, which comes under this particular legislation, is I understand currently before the Law Officers, and doubtless they will be letting us have the benefit of their advice in the very near future.

I give this undertaking, that if the advice is that we are in breach of the European Convention on Human Rights by virtue of the arrangements that are presently incorporated in the regulations, then we shall certainly seek to change the regulations as soon as may be, and if it is necessary to introduce primary legislation, we shall certainly want to do that as soon as we can as well. We certainly would not wish any situation which kept us in breach of the European Convention to be allowed to subsist for a moment longer than is necessary.

I have now dealt, I hope, with the two separate points. One is the specific point about the European Convention, and the other is the more general point about the merit or otherwise of the present arrangements. I hope I have been able to satisfy your Lordships on both counts and that the noble Baroness will not wish to press her amendment.

Baroness David

I shall not press the amendment tonight because clearly a great deal more work has to be done. I am surprised that the Government have not taken more steps to find out exactly where they stand in relation to the European Convention between whatever it was, March, and June. I must tell the Minister—I do not know whether he can communicate with me before Report stage—that we shall certainly want to put down more amendments before Report if we do not have some sort of satisfactory answer.

It seems odd in relation to the depriving of liberty that this should not be reviewed. An adult before the 72 hours elapsed would have to be before a magistrates' court, but for a child put into secure accommodation there is no review at all at the moment. There is quite a lot more to be said by the Government on this point, but I will withdraw the amendment for the moment.

Lord Avebury

Before the noble Baroness withdraws her amendment—

Baroness David

Well, I will agree to let the noble Lord, Lord Avebury, intervene.

Lord Avebury

Does not the noble Baroness think that the Government should give slightly higher priority to this matter, and that it was not good enough for the Minister to say that the Law Officers were not able to give their immediate attention to it? If there is a threat of our being brought before the European Commission yet again for a breach which has been drawn to their attention in another place, and now again in this House—

Lord Trefgarne

I wonder whether the noble Lord will give way? May I amplify what I said about the Law Officers. The matter is now before the Law Officers, whatever may have been the delays previously, and I hope therefore that their advice will be available very shortly.

Lord Avebury

That was an intervention on an intervention, which is wholly irregular. First of all, the Minister said that the Law Officers are not able to give this matter their immediate attention. After that, when pressed, he said that it was currently before the Law Officers, which means that in common with many other issues it is lying on their desk waiting to be looked at, but not at the top of the heap. Should not the Law Officers now be asked to come forward with their advice before your Lordships reach the Report stage on this Bill?

Lord Campbell of Alloway

I hope this is not an irregular intervention—

Several noble Lords

Order!

Baroness David

What I thought I said was that if we did not get some sort of satisfactory answer before Report stage we should bring this forward again and take more positive action. We are withdrawing at this moment only because we hope perhaps to have some correspondence and some satisfactory statement before the time to put amendments down for Report stage of the Bill. That is my position, which I should like to make clear. On those terms, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Earl Cathcart)

Amendment No. 50. In calling Amendment No. 50, I should say that if this amendment is agreed I cannot call Amendments 51 and 52.

Baroness David

I have spoken to Amendment No. 50. It will not be moved.

[Amendment No. 50 not moved.]

8.44 p.m.

Lord Donaldson of Kingsbridge moved Amendment No. 51: Page 27, line 18, after ("abscond") insert ("as evidenced by previous persistent absconding").

The noble Lord said: This amendment applies to Clause 23(b) which says something which I think we all agree with in general: Without prejudice to the generality of this section, regulations under this section may contain provisions to ensure that a child may not be placed, and, if placed, may not be kept, in accommodation provided for the purpose of restricting liberty unless"— and then it gives two reasons why not. All through today's discussion we have been urging safeguards against sending children to various kinds of restricted liberty, or custody as I prefer to call it.

I suggest that where the Bill says: he appears likely otherwise— (a) to abscond"— we should amend it to read: (a) to abscond as evidenced by previous persistent absconding".

Where it says: (b) to injure himself or other persons here should be no change; and the provision: (c) to damage or take other persons' property we want to change to, commit a serious offence involving damage to or taking other persons' property". I am trying to make the conditions which restrict the power of sending children to secure accommodation slightly stronger. I have detailed arguments in support of this, but I would much rather not use them because it seems so obvious that what I am saying should appeal to the Government that I shall first ask the Minister whether he can agree with what I am saying, and if he says he cannot then I will give the arguments. I am trying to help the Committee get on.

Baroness Trumpington

I hope that the Government will support this because it seems to me almost a matter of drafting. It is ludicrous simply to put that he might abscond. He might have learnt to ride a bicycle, or he might do anything. On the second part of the amendment, in places where arson is quite a normal sort of event, simply to put something in the way it is written in the Bill— to damage or take other person's property"— is laughable. I hope that the Government will agree to this amendment, which seems innocuous and merely sense.

Baroness Masham of Ilton

It has often been said by foreign countries that Britain looks after its animals far better than its children. I hope that we will look after both well. If a residential care order is not putting children into custody, which the noble Lord, Lord Trefgarne, has stated this evening, then I hope that the Government will accept these amendments without hesitation. How many children sometimes run away from boarding school? At open borstals young offenders are nearly always given a second or even third chance if they abscond, as long as they do not commit crimes while at large. How easy is it to damage something? Windows get broken by playing with balls. All of us who have children have to accept a few of these things. We do not lock our children up if they have a few accidents. I cannot see a reason why the Government should say that they cannot accept these modest amendments.

Lord Trefgarne

I am not sure whether the noble Lord, Lord Donaldson, has anything further to say.

Lord Donaldson of Kingsbridge

A great deal.

Lord Trefgarne

I will deploy my arguments now in full, if I may, and the noble Lord can then intervene again if he thinks fit.

The Government share the concern which has been expressed about the use which can be made of secure accommodation. We want to ensure that children are placed in secure accommodation only when it is strictly necessary; that is why we are introducing statutory criteria. Section 39(2) of the Child Care Act 1980, which Clause 23 amends, lists those matters which may be the subject of regulations made by the Secretary of State. This means that Clause 23, if enacted, could have no practical effect on the placement of children in secure accommodation until new regulations had been made. An undertaking has been given in another place that a revision of the Community Homes Regulations 1972, which include the current statutory safeguard on the use of secure accommodation, will be set in hand when this Bill has completed its passage through Parliament, and I have already repeated that assurance tonight.

Lord Donaldson of Kingsbridge

I am not quite understanding what the noble Lord is saying. I have proposed adding some words to the conditions. I want to know whether the Government agree with that or not. I am really not interested in the rest of it.

Lord Trefgarne

If the noble Lord will contain himself for a moment, I will come to the points he is making. The intention is that new regulations will be laid before Parliament during the next Session. Clause 23 in its present form includes general criteria, but we accept that these criteria will need to be refined particularly in relation to absconding. On the one hand, we do not wish the words "likely to abscond" to become a catch-all phrase which is capable of application to almost any child. On the other hand, we do not wish children whose placement in security is genuinely indicated—for example, those who are remanded to care—to be excluded. The wording of the revised regulations will be looked at very carefully and I can assure your Lordships that what has been said tonight will be taken into account; but we see the refinement as being a matter for consideration during the course of the preparation of the revised regulations rather than as a matter for primary legislation. The noble Lord has raised a proper and important point, but I hope that on reflection he will think that the adjustment of the regulations I have referred to is the better way of meeting his anxiety. I therefore hope that he will not press his amendment.

Lord Avebury

Before the noble Lord, Lord Donaldson, deploys his panoply of arguments which he has warned us he has up his sleeve, the Minister said again just now that the regulations would be looked at as soon as this Bill is on the statute book, but, on the last occasion when he made that remark, he also went on to say as an aside that of course his right honourable friend already had the power to conduct a review of the regulations under primary legislation. Therefore, I would have hoped that the noble Lord could have told the Committee that the review of the regulations had already started within the department and it would make a difference to the length of time that would have to elapse before regulations were laid before Parliament. The noble Lord has just told us it will be during the next Session, and the question is whether it will be at the beginning or the end of the next Session.

There is one other thing that I should like to take up, and that is the interesting remark the noble Lord made about the need to restrict the use of the "absconding" criterion which is here, so that it is not applied as a catch-all. I am sure everyone would agree with that and that is precisely what the noble Lord, Lord Donaldson, was trying to secure. If the noble Lord is saying that the Secretary of State, in making the regulations, does not have to go as wide as the provisions laid down in Clause 23, I think he ought to develop that argument a little further. What he is saying is that the regulations could be drafted more narrowly than is laid down by the statute and if that were so, they could indeed be brought into conformity with the suggestions put forward by the noble Lord, Lord Donaldson.

Lord Donaldson of Kingsbridge

I am grateful for that support. What I cannot understand is why, if it is right to say "to abscond" or "to injure" or "to damage or take" some other person's property in the Bill, it should not be right to extend those very slightly in the Bill. Why have we to wait for regulations? It seems to be a total non sequitur.

However, I think I had better deploy my arguments, as I do not seem to be getting any satisfaction. The truth is that things are getting worse and worse in this field. There have been two major research studies on secure units within the child care system—the Dartington Social Research Unit's study, to which the noble Baroness referred, and the DHSS research report which is called Children Referred to Closed Units. Both studies show that the children being referred to closed units are younger now than they were seven or eight years ago. There is an increase in sending younger children of 14½ or under to reserved units over what was done 7 or 8 years ago. The Dartington Unit—I will not give the figures—found that for the majority of boys the secure units provided: a brief sojourn in an expensive ante-room to the penal system. The DHSS study, which was concerned, among other places, with my old approved school, Kingswood, of which I was for many years a director long ago, found that the children referred were younger than those who were referred before 1971, and that they had less serious histories of offending. Of a sample of 40 children whose subsequent progress was followed up by the researchers, 78 per cent. re-offended and 40 per cent. of them committed six or more offences. It is the usual thing. It is getting worse and is doing absolutely no good to anybody. So the least the Government could do would be to accept that very, very small restriction upon the category of people who can be sent. I am saying not just that they are likely to abscond but that they are likely to abscond, as evidenced by previous persistent absconding". Following that up, it is well known that absconding varies to some extent in accordance with the institutions absconded from: in other words, it is not the fault of the child but the fault of the institution. This is common ground to everybody who has ever worked in this field. We all know it is true and so I shall not press it, and, if the Government do not agree with it, they are simply wrong.

In our report, Young Offenders, the All-Party Penal Affairs Group recommended that the criteria for secure accommodation should be incorporated in statutory regulations. That is all right; that is what the noble Lord is talking about. But I want in this Bill to make sure that they are incorporated in statutory regulations because, without this, the statutory regulations may come up after the whole thing is finished and be quite different. I shall not proceed with the absconding argument, though I have more evidence, because it is commonly known that absconding is a curious psychological factor in young boys, and girls, for that matter. It depends on a very large number of things which are not fully understood but one is their pleasure in or dislike of the place they are in, though that is not universal.

On the second point, it seems to me absolutely clear that, if somebody is detained simply because he is likely to commit a property offence, one must say that it is a serious one. Would you detain him if he stole an apple or somebody's fountain pen?—though that is much more serious. I think we must make this a bit wider. I am very much upset that this obviously sensible amendment, which is absolutely harmless and which only very slightly widens the situation, should be treated in this way. I do not know whether I should divide on this: it is hardly worth it because there is nobody here. But I hope the noble Lord will at any rate say a little more than he did last time.

Lord Trefgarne

As I said earlier, I always come to the proceedings of this Chamber with an open mind and not shackled to the pieces of paper I have in front of me. As far as this particular amendment is concerned, I realise that the noble Lord, Lord Donaldson, feels very strongly indeed about it. I must say that I remain convinced that the arguments which I sought to deploy to your Lordships carried considerable force. I am prepared to take the matter away and think about it again—without commitment, I must say, because I see some difficulties which I have already deployed to your Lordships—and, if the noble Lord will withdraw the amendment, I undertake that the matter will be considered carefully between now and the next stage, and we can perhaps return to it on that occasion.

Lord Donaldson of Kingsbridge

I am grateful and, with that assurance, am happy to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 52 not moved.]

9.1 p.m.

Baroness Faithfull moved Amendment No. 53:

Page 27, line 20, at end insert ("; and may contain provision for any decision to keep a child in such accommodation for a period exceeding three months to be reviewed by a juvenile court.".").

The noble Baroness said: I will not here detain the Committee because the amendment was covered fully in the debate on the amendment moved by the noble Baroness, Lady David. There are, however, a few points I wish to make. First, the amendment recommends three months for a review by a juvenile court, not 72 hours. I agree in principle with the noble Baroness, but it would be totally impracticable to be taking cases back to court within 72 hours; it is a question of practicalities. We say in the amendment, "a period exceeding three months", but a number of local authorities and voluntary organisations will have removed their children long before three months, and I think only a small proportion would come before the juvenile court.

Secondly, I agree that the period should be reviewed by the juvenile court. What matters is not so much that there is a review but that the quality of the review should be right: and the quality is twofold. One is that if you must take a case before the juvenile court, you must write a report, and there is nothing that concentrates the mind so much as having to submit a written report. The second is that it provides an independent judgment, independent of social workers. Having been a social worker, I know that when a child is really giving trouble you can lose a sense of proportion, and that is no denigration of either the residential or field social workers; and therefore it is right to take it to the juvenile court.

The third point I wish to make is that we should work towards having much more of a partnership between the juvenile court magistrates and social workers, with more understanding, and the amendment would help towards it. However, I do not agree with the noble Lord, Lord Avebury, when he says that he does not place great faith in regulations. As one who has had to administer this sort of legislation on the ground, I assure him that one looks very much at the regulations and adheres to them. I consider—and I know that all the members of the All-Party Penal Affairs Group believe—that Amendment No. 53 is very important. However, as the Minister said that the regulations were being looked at and would be revised, I suggest that we do not press the amendment at this point.

Baroness David

I am prepared to accept that 72 hours is rather too short a time. If one thinks of adults having to be brought before a court if they have been in custody overnight, perhaps it can be justified in that way. Section 29(5) of the Children and Young Persons Act 1969 requires young people detained to be brought before the court within 72 hours. That was probably another reason why 72 hours was the period chosen: a safeguard to ensure that such placement in secure accommodation could not last for more than 72 hours. The noble Baroness would no doubt say that that is a different matter. I accept that, and, as I say, I accept that it is too short a time. J. agree it would be wise to withdraw the amendment now and hear what is to be done about the whole business of judicial review. This is a very important matter indeed, and if we do not receive satisfactory assurances before Report no doubt the noble Baroness and I would be prepared to table another amendment for that stage.

Lord Avebury

I was not aware of having said that I had no faith in the regulations. The noble Baroness, Lady Faithfull, quoted me as having said that, when I simply said that I hoped the regulations would give effect to the suggestions that had been made in the previous amendment, so that we could enshrine in the Bill some provision to ensure that we were in conformity with our obligations under the European Convention on Human Rights. Although I agree that the amendment should be taken into consideration by the Minister, I am not clear that that would satisfy our obligations under that convention, because the article which was quoted allows the person deprived of his liberty to initiate proceedings before a court or some other judicial tribunal, whereas the noble Baroness's suggestion is that after three months the regulations would provide for a review of his detention. I am not sure—and I should be interested to hear any legal advice the Minister may have on the point—that we would honour our obligations in that way.

Baroness Faithfull

I apologise to the noble Lord, Lord Avebury, if I misrepresented him. I do not feel I am able to pursue the legal position; we are waiting to hear what that position is, and until that happens we can go on talking until we are blue in the face. I would rather go on hard facts and wait for the information which the Minister is to give. I would remind the noble Baroness, Lady David, that the secure accommodation provided for adults is very different from that provided for children and young persons, and there is a very caring attitude for many of our youngsters placed in secure accommodation. That does not do away with the fact that they have lost their liberty, though, as I told your Lordships during Second Reading, one girl said to me that she longed to be in secure accommodation, just to be alone. Since my noble friend the Minister has said that the regulations are to be reviewed, perhaps we should wait until the Report stage to consider the matter further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 23 agreed to.

9.9 p.m.

Baroness Masham of Ilton moved Amendment No. 54: After Clause 23, insert the following new clause:

(" Boards of visitors for community homes.

. In section 39(2) of the Child Care Act 1980, after paragraph (h), there shall be inserted the following paragraph— (i) require the appointment for every community home of a board of visitors of whom not less than two shall be justices of the peace.".").

The noble Baroness said: Members of boards of visitors are people attached to penal institutions and who have been approved by the Home Office and appointed by the Secretary of State. They give their time voluntarily. An inmate, if he feels that he has been unjustly treated, has the right to see a member of the board of visitors. Members of boards of visitors carry out their duties in different ways, according to the establishment to which they are attached, but they are there to see that the inmates are fairly treated, and, if needs be, they have direct access to the Home Office.

They help as ambassadors between the establishments and the community when things go wrong and they try to help the governor with good relations with the community. They are a useful link with the outside world. There is no doubt that many members of the public look at any penal institution or community home with great suspicion and expect the worst when one is built in any district. Members of boards of visitors also try to help encourage good standards within the institutions and give the staff support if they need new equipment or better facilities.

One of the important roles of the members of the board of visitors is to adjudicate when there has been an offence, involving perhaps a fight or an assault on a member of staff, or when there has been a fire or other disturbance by inmates. Board members are called in when the governor or his deputy thinks that it is necessary. When adjudicating, board members have a clear guide to follow—a green book entitled, Procedure for the Conduct of an Adjudication, issued by the prison department of the Home Office.

I raised the matter at Second Reading when thought that it would be a useful exercise to have a body of interested, committed, and responsible people attached to each individual community home. I do not think that the name of such a body is important. "Board of visitors may not be the best name. The matter has often been debated in relation to the borstal system, but nobody has yet come up with a better suggestion. Schools have governing bodies; such a name might be better, but I do not think that it really matters.

What I think is important is to have independent people who can take an interest in the homes, help support the staff, and can be seen to safeguard the interests of the children or young people who reside within the establishments. Many homes are understaffed, not always with the highest calibre of people. This situation may well get worse with the increasing pressures and demands on social service departments. Some of the young people are just as disturbed, if not more disturbed, and difficult as those in penal establishments.

The Minister wrote to me in answer to my Second Reading question on this matter. The Minister the noble Lord, Lord Elton, stated: The community homes regulations oblige the authority to appoint members or nominees who will make occasional visits and thereby assure themselves that all is well. Boards of visitors meet at least every month and members also interview their young people individually as well". I should like to ask the Minister about the community homes regulations. How often is an occasional visit? Is it once a year, once a month, or once every five years? It seems very vague to me. I think that after discussion today it might be every six months.

If courts are sending young people away from their homes, into the care of the local authority, there should be a visiting body which meets at least once a month, which consists of both men and women, and includes at least two magistrates. Having served on the Community Health Council, I know only too well that very often local authority members were the ones who did not turn up at meetings. Often they had other meetings, and were too busy.

It is so sad that in this country we have so many young people in care. I know some excellent social workers, but I also know some very mixed up, ineffectual ones. With young prisoners being merged with the borstal population, resulting in the make-up of the youth custodial centres, it is possible that more young people with criminal records will be sent to community homes if the courts do not want to put them into a prison-like situation. May I ask the Minister: who does the adjudication at the moment when there are offences within the community homes? There have been problems of homosexual offences with children and staff within the homes, have there not?

I hope your Lordships will give this amendment your consideration. Young children and adolescents, if taken away from their own homes and placed in residential care, surely have the right to tell someone from outside the institution how they are progressing. It must be right for society to see there are safeguards. It must also be helpful for members of the staff to have support in their difficult task of caring for unfortunate young people. I beg to move.

Baroness Trumpington

I have the greatest respect and admiration for the noble Baroness, Lady Masham, and there were many of her words with which I agreed and would have liked to support until she got to the word "adjudication". I have been on a board of visitors for the last 6½ years, and I simply cannot think of anything worse than a group of adults—outsiders who cannot possible build up any strong relationship with the young people in these community homes—coming in like monsters to lay down the law. If it bears any relation to the form of adjudication which goes on in our local prisons, then quite frankly, I am appalled at the very suggestion.

I believe that as in ordinary institutions—not penal ones; I refer to schools—any kind of telling off or punishment should be on a domestic basis. If there is a board of visitors which is like a board of governors, I cannot see anything wrong in that, and I think it is perfectly okay for children to be able to approach them and talk to them. But there are two sides to every problem. I think it would be very wrong if there was any suggestion of this coming in, and I could not possibly support the amendment if that is what it has in mind.

Lord Avebury

I warmly agree with the noble Baroness, Lady Trumpington, because I think there is a world of difference in, as she says, a board of governors who look after a school carrying out many of the functions about which the noble Baroness, Lady Masham, who moved the amendment, was talking, such as the interface with the outside world. It is a very desirable objective in the case of a school or community home that those members of the board of governors (or, in this case, the members or nominees of the local authority) who make occasional visits should spare the time to act as PR agents, if you like, for the community home, going out and explaining to the general public what it is aiming to do and trying to enlist their support for the objectives, and so on. But not, for heaven's sake!, to go hack into the homes and carry out disciplinary functions, which in my opinion are incompatible with the functions of a board of governors. In fact, no school would expect a hoard of governors to be involved in internal disciplinary procedures.

In the case of prisons, the noble Earl, Lord Jellicoe, in fact recommended (though unfortunately neither the previous Government nor this one paid any attention to his very sensible report) that the adjudicatory functions of boards of visitors in prisons should be separated from the other parts of their role. I think that was a very sensible suggestion, and I hope we shall not import this confusion of roles into the management of community homes.

Lord Donaldson of Kingsbridge

I was an early member of the Jellicoe Committee, and, of course, we were unanimous in our condemnation of adjudication; but it seems to me that this might be an admirable opportunity to set up boards of visitors which did not have the power of adjudication: because the important things which boards of visitors do are, first, to represent the people in the institution to the governor, and, secondly, to represent the governor and his staff to the Home Office or whoever the boss is—in this case it would be the local authority. These are very useful and very important functions, and I strongly support the amendment with the reservations which have been made by both Lady Trumpington and Lord Avebury.

The Earl of Swinton

It gives me great pleasure, for I think the second time in one day in your Lordships' Committee, to rise and support my noble kinswoman. Again, I do not support her completely, I think. I was going to query the wording of this amendment. I do not mind whether it is called a board of visitors, managers, governors or whatever it is. I was going to take the example of the ordinary school. I am delighted to see my noble friend Lord Elton on the Front Bench, and I think of the Education Act 1980, introduced by the present Government, and the amount of work that went into that to make sure that every school in the country should have a board of governors. It seems to me extraordinary that you can have boarding schools (which is what community homes, or some of them, come down to) without any member of the public represented.

I was chairman of the board of governors of an approved school and after the Education Act and the Children and Young Persons Act 1969 we ceased to exist. I telephoned the recently retired headmaster the other day to have a chat. He said, "I wish we could have our board of governors back. The advice they gave to the staff and to the young people was invaluable". This was in a small market town and the boys were apt to abscond, pinch cars and break into houses and we tried to teach them like foxes not to misbehave on their own doorsteps but they did so on occasion and it was remarkable that people who lived in the town knew people whose cars had been pinched or friends of friends or cousins and they could have a quiet word and what would have been a great row was smoothed over.

The approved school, as it was then, had support in the town. Since the Act was changed and there have been no local people, the attitude towards that establishment has changed. But that is a minor thing. I am not certain whether I go along with my noble kinswoman about adjudication. I think there might be a role over the question of review. We used to review the progress of the boys, and contrary to what my noble friend Lady Trumpington has said, one got to know them extremely well. We saw them every month. The institution was divided into houses.

Baroness Trumpington

If my noble friend saw these people once a month does he consider he knew them very well?

The Earl of Swinton

Yes. Officially, one saw them once a month and we often went to the school—I call it a school—two or three times a month and chatted to them. You had detailed papers put before you about their progress and so on and it was a useful thing. Somebody must carry out the review. If you had the board of visitors, or managers or governors—call it what you will—on a fairly widely based representation, you could have people capable of doing that. The juvenile magistrates could be involved and it would save calling perhaps a special meeting of the juvenile magistrates.

I hope the Government will receive this sympathetically. I hope that a Government so much in favour of the appointment of governors for every school in the country under the Education Act 1980 might well consider there was a strong case that community homes and particularly those dealing with children in residential care should be well served by the community.

Lord Trefgarne

This amendment would enable my right honourable friend to include in regulations governing the conduct of community homes a requirement to establish boards of visitors. The intention underlying this amendment, which is to ensure that community homes are properly monitored, is one which the Government strongly support. I am confident, however, that adequate provisions already exist to ensure the effective monitoring of community homes. Section 39 of the Child Care Act 1980 enables the Secretary of State for Social Services to make regulations governing the conduct of community homes which specify requirements for securing the welfare of children in community homes. The current regulations are the Community Homes Regulations 1972. These regulations are now being revised and it is our intention to lay fresh regulations in the next parliamentary session. In addition, Section 74 of the Child Care Act 1980 makes provision for the inspection of community homes. Inspections are carried out by the social work services of the Department of Health and Social Security.

Existing arrangements do not include any provision for magistrates to be involved in inspecting community homes, although they are of course included on boards of visitors for prisons. This is because of the very different nature of community homes and prison departments establishments. We need to have magistrates on the boards of visitors for prisons because of the adjudicatory role of these boards when dealing for example with offences against prison discipline. Such a role is clearly not required with respect to community homes.

Children are placed in community homes for a variety of reasons. Only about a fifth of those in such homes are there because they have committed an offence. It would clearly he inappropriate to model provisions for monitoring community homes on existing arrangements for monitoring prisons. As I have said, we shall be revising the community homes regulations shortly and I can assure the Committee that the points which have been raised this evening will be taken into account when we finally produce our revised regulations. I hope in the light of that assurance the noble Baroness will not wish to press her amendment.

Baroness David

May I ask the Minister a question before he sits down? Is it a case that every community home with education has a board of governors? I am a governor of one such establishment and the noble Baroness, Lady Trumpington, also was a governor of the same establishment. I assumed that this was the case everywhere. Maybe it was just that we belonged to an enlightened authority which had governors of community homes with education. On the board of governors were several members of the local community. This was extremely important. They could react and come in constantly. I am sorry to be ignorant on this but I should like an answer.

Lord Trefgarne

I understand every community home has a board of governors. There are of course different types of community homes. There are maintained homes, controlled homes and assisted homes, in all of which the local authority plays a greater or lesser role. The answer to the first question of the noble Baroness is, yes.

The Earl of Swinton

I know of two community homes neither of which has a board of governors. These are two in my own authority. On the first one members of the social services committee were appointed. I was reliably informed that in due course they were told by some of the social services staff that they interfered and they have not been near the place for years. In another again various members from the social services committee were appointed. After a year they thought that they were doing so little and they became so frustrated that they have not been near the place since.

Again, if T may draw a parallel with the Education Act 1980, time and time again we were told that we must legislate for the worst authorities. I can give examples of good authorities, and I was told that that was fine but when legislation came down it must be for the worst authorities. Surely, we should do the same here. May I point out that there are goodness knows how many school children in schools in this country who have not been in any trouble of any sort but they have governors to look after their schools.

Lord Trefgarne

I am advised that every community home has a hoard of governors of one sort or another. I hear what my noble friend says about certain homes within his own purview. I would not wish to offer a specific view on the particular homes to which he refers. It may be that the board of governors are less active in certain cases than they are in others.

Lord Harris of Greenwich

I propose to speak briefly. The reply of the Minister does not answer the question which is at the heart of the amendment. With great respect, it is not enough for him to say that they all have boards of governors of one sort or another. The noble Earl has told us that in his own experience those with which he is associated do not have the type of body that the noble Baroness is attempting to obtain by this amendment. I do not want to get involved in the argument about adjudication. I agree with the noble Baroness, Lady Trumpington. I do not think it is appropriate for bodies which are responsible for the prison department establishments to be created in community homes.

Nevertheless, as I know the Government Chief Whip is probably anxious to make some degree of progress, all that a number of us would like to be reassured about by the noble Lord is that before the next stage of the Bill he will try to clarify some of these issues which have been raised this evening, so that we can discuss the matter on the next occasion with greater information than is available to us at the moment.

9.29 p.m.

Baroness Masham of Ilion

I thank all noble Lords who have spoken. This is the whole point of a Committee stage, to sort out problems. Over this matter I think that there are problems. It was the noble Baroness, Lady Trumpington, and not I who said that magistrates were ogre-like creatures. I certainly do not think that the boys who come up against our adjudicating body in borstal are particularly frightened. It would be far more frightening for some of them—and we are dealing with 15 and 16 year olds there as well—if they went to a magistrates' court and were faced with somebody like the noble Baroness, Lady Trumpington.

Baroness Trumpington

I really have to take issue. If Hansard is looked at tomorrow morning, your Lordships will see that I did not refer to magistrates; I referred to boards of visitors. They used to be known as visiting magistrates. In fact, the prisoners still go on referring to them as magistrates. But, to children, people are strangers even if they see them once a month, and to a child who is in trouble even his parents are ogres. I rather resent what was said, and I hope that the noble Baroness, Lady Masham, will take back her last remark.

Baroness Masham of Ilton

I know that the noble Baroness, Lady Trumpington, appreciates that I said it in great friendship. But this is a problem and it will become more of a problem because, with the young prisoners coming into the borstal system, what are we going to do? We are going to take a step down and the younger boys will probably be placed in community homes. Some of these younger boys commit offences of a difficult character and somebody has to sort them out and try to adjudicate. Are they going to be sent out to the courts, or will somebody deal with them inside? If it is somebody inside, it may have to be the warden, the headmaster or somebody else. That is putting him in a difficult position, because he needs support to do it.

Anyway, I shall look at the report of what everybody has said. I am sure that my noble kinsman will do some more research on it. I am also sure that the All-Party Penal Reform Group, which supported this amendment, will give us some more advice and that we will come back at Report stage, much to the horror of the noble Lord the Chief Whip. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.32 p.m.

Lord Elystan-Morgan moved Amendment No. 55: After Clause 23, insert the following new clause:

("Judicial review of the placing and keeping of a child in secure accommodation.

. The following section shall be inserted after section 21 of the Child Care Act 1980—

21A.—(1) Where a child is for the time being in the care of a local authority or voluntary organisation (whether by virtue of a care order or a warrant under section 23(1) of the Children and Young Persons Act 1969 or under the provisions of this Act) or is so deemed to be and the authority or organisation consider that he ought to be placed in accommodation provided for the purpose of restricting liberty, the child shall not be placed in such accommodation for a period in excess of 72 hours unless within that period the authority or organisation has brought him before a juvenile court.

(2) If the court before which a child is brought in pursuance of this section is of the opinion that either of the following conditions is satisfied with respect to him, that is to say that it appears that his behaviour constitutes an imminent danger to himself or to other persons, and that the court is satisfied that no other method of dealing with the child is appropriate, the court may make an order permitting the placing or keeping of him in such accommodation although the court may not specify the duration of any such period.

(3) An order made under subsection (2) shall cease to have effect at the end of 3 months beginning with the date of the making of the order.

(4) In the event of the court failing to be satisfied as to those matters under subsection (2), the court must order that the child be removed from such accommodation forthwith.

(5) For the purpose of determining whether any other method of dealing with him is appropriate in accordance with subsection (2) the court shall obtain and consider information about the circumstances, including alternative accommodation.

(6) A child to whom this section relates may not be kept in such accommodation for any period in excess of 3 months at any one time from the date of an order made under subsection (2) unless before the expiry of the period of 3 months the local authority or voluntary organisation in whose care he is has brought him before the juvenile court and the court has made an order under subsection (2) permitting the child to be kept in such accommodation.

(7) A juvenile court shall not exercise its powers under this section—

1. (a) if the child to whom this section relates is not before the court, unless the court is satisfied that by reason of illness or accident he cannot be present; and
2. (b) if the child is not legally represented in that court, unless either—
1. (i) he applied for legal aid and the application was refused on the ground that it did not appear his means were such that he required assistance; or
2. (ii) having been informed of his right to apply for legal aid and had the opportunity do to so, he refused or failed to apply.

(8) An appeal shall lie to the High Court on a point of law in respect of an order made by the court under this section.".").

The noble Lord said: I move this amendment very briefly, because the matters that I would have sought to invite the attention of the Committee to have already been rigorously harrowed over in relation to other amendments. The purpose of the amendment is twofold: first, to impose the strictest criteria upon those who seek to place children in secure conditions and, secondly, to make it certain that there is no transgression of Britain's obligations under the European Convention. If I may say just one word with regard to that latter matter, the noble Lord, Lord Trefgarne has very clearly spelled out his undertaking to the Committee that, if the Law Officers opine that there is a breach at the present moment, the House will be appraised of that and the matter will be put right as soon as possible.

May I press the noble Lord very briefly, first, to urge the learned Law Officers to present their opinion at as reasonably early a date as is possible, and before Report stage; and, secondly, to give an undertaking that he will communicate the purport of that opinion to this House, so that there will be a possibility of putting down relevant amendments at Report stage. I appreciate what he said in relation to fresh legislation but, for the world of me, I cannot myself see that that would be necessary. After all, we are dealing with a major Criminal Justice Bill, one that has the widest possible scope for miscellaneous provisions, and clearly it would be a very great opportunity wasted if we did not avail ourselves of the chance of amending the Bill before it leaves this House. I beg to move.

Lord Trefgarne

I have already spoken at some length on this point and I gave quite clear undertakings. I cannot go further than the undertakings which I gave then. If the noble Lord will study tomorrow morning in Hansard what I said, I think he will be satisfied.

Lord Elystan-Morgan

I may or may not be satisfied, but I appreciate how far the Minister has come. With the leave, therefore, of the Committee, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 24 [Payment of fines by parents and guardians]:

9.36 p.m.

Lord Elwyn-Jones moved Amendment No. 56:

Page 27, line 45, at end insert— ("() In taking the decisions required by subsection (1) above, the court shall have regard to such of the following considerations as appear to it to be relevant, that is to say—

1. (a) whether the parents have neglected to exercise due care and control of the child or young person,
2. (b) whether it is desirable that the child or young person himself should assume responsibility for payment of the fine, compensation or costs,
3. (c) the relationship of the child or young person with his parents and the likely effect on that relationship of ordering the fine, compensation or costs to be paid by the parent or guardian, as well as to any others which appear to be relevant.").

The noble and learned Lord said: This amendment relates to the proposal to require parents to pay the fines imposed upon their children. Clearly there are cases where that is a wholly desirable practice, but there are cases where it would create nothing but damage to the relationship within the family and to the child and where the prospects of recovery of the fines would be very remote indeed.

At present a court may—and, if the offender is under 14, must—order the parents to pay a fine imposed on a juvenile, unless it is satisfied that the parents have not conduced to the commission of the offence by neglecting, to exercise due care and control of the child or young person". For that very unclear language this clause substitutes that it shall be the duty of the court to order that the fine be paid by the parent, et cetera, unless the court is satisfied that it would be unreasonable to make an order for payment, having regard to the circumstances of the case. What circumstances would be deemed to be relevant or effective are not specified. In my view, that is a very adverse substitution for the present language, that there must be some evidence in the case to enable the court to be satisfied that the parents have not conduced to the commission of the offence by neglecting to exercise due care and control of the child or young person.

In my submission, the language proposed would give rise in practice to serious inconsistencies and injustice, because of a total lack of definition. As I indicated a few moments ago, while there are some types of case in which it could arguably be appropriate to oblige a parent to pay fines in the kinds of circumstances envisaged by the present language of the statute, there are other cases in which the course of requiring the parents to do so could be harmful. In some cases where the young offender is at odds with his parents the resentment which could result from the imposition of a fine on the parents could damage the family relationship for ever and perhaps put the young person more at risk than ever. And there are some cases where to require the child or young offender to pay the fine himself rather than to require his parents to pay would be the appropriate solution.

Therefore the view which is embodied in the amendment reflects the recommendation of the All-Party Penal Affairs Group: that a fine should not be imposed on the parents of a juvenile offender unless there is clear evidence that parental responsibilities have been neglected. That is a proposition of which I strongly approve. It recommended that legislation concerning the imposition of fines upon the parents of juvenile offenders should specify the factors which courts should take into account when deciding whether that course would be unreasonable in the particular case. They suggest that these might include whether the parents have neglected to exercise due care and control of the child; whether it is desirable that the child himself should assume responsibility for payment; the child's relationship with his parents; and the likely effect on family relationships of requiring the parents to pay.

The amendment which I move embodies those suggestions. The court may, of course, consider any other factors it may deem to be relevant to its decision. But at any rate, the use of this language would require the court to consider the key factors which should determine the decision of the court. In our submission, language of this kind would assist the court in deciding a sensitive and difficult matter instead of the totally unhelpful language of considering all the circumstances of the case. I beg to move.

Lord Hunt

I rise briefly to support this amendment, which is supported by the All-Party Penal Affairs Group. In the notes on clauses, it is made clear that the idea is to encourage courts to make more use of Section 55 of the Children and Young Persons Act 1933 on the simple test of reasonableness, and the wording "unless it is unreasonable" appears in the Bill as it is presently drafted.

The noble and learned Lord, Lord Elwyn-Jones, has said it all, but I must say once again that this is not the first time during the passage of this Bill when it has been the view of the all-party group that there is a strong case for writing criteria into the statute in order to induce a greater degree of consistency between courts up and down the land; to ensure a greater degree of equity for parents and guardians upon whom it is proposed to impose fines; and, last but not least, in view of the need to produce the effect that is desired and not to produce an effect which could be counterproductive.

Baroness Macleod of Borve

I personally do not think that this amendment is necessary. It seems to me that in this Bill we are trying to dot every "i" and cross every "t". We are not giving any powers, even to magistrates, to use their imagination in facing cases as they come before their courts. I have always maintained—and indeed I have operated it—that one should have the ability to make the parents pay any fine or compensation. It has always seemed to me that the problem with this Bill is that we are legislating for children up to the age of 21. I have always thought that any child who reaches adulthood in law, at the age of 18, should after that age be responsible for his own fines. With respect to the noble and learned Lord, Lord Elwyn-Jones, I believe that this amendment crosses too many "i" s and dots too many "t"s—or vice versa.

Another point that has worried me for many years is that, having made parents pay—and they have paid in my court—the fines or compensation, it has never been the practice (although I understand that it is the practice in some parts of the country) that, where a young person is in the care of a local authority and commits offences, the local authority must pay a fine or compensation. When you have before you two boys brought up by their parents and two boys brought up by the local authority, all four going to the same school, all four going out burgling, all four doing a great deal of damage, it is very difficult, in fact impossible I submit, to make the parents pay compensation or fines for their children and the local authorities not pay. I think this is a bad anomaly. I am afraid I do not like this particular amendment either.

Baroness Birk

If I understood the noble Baroness correctly, she appeared to be under the impression that it was the amendment that made the parents pay. In fact it is quite the reverse. It is in the Bill itself that the duty is put on the parents, and it is the Bill itself that dots the i's and crosses the t's which the noble Baroness does not like. The amendment makes the whole thing very much more flexible, and sets out a series of criteria within which the parents should pay. I think my noble and learned friend is absolutely right, that there are many cases where it would exacerbate tremendously the relationships within the family, particularly if they are not very good relationships; if this burden is laid legislatively on the parents it can cause great damage. The amendment widens it very much more, it spells out the circumstances in which the parents should pay and otherwise leaves it open.

I cannot believe that the noble Baroness would not agree that there are many instances where—I am sure as a magistrate she must have done the same as I have—one feels that in everybody's interests, particularly the young offenders, the burden should be put on the offender himself or herself. It is for that reason that this all-party amendment has been moved. I would have thought that the noble Baroness and other members of the Committee would agree that it improves this particular clause enormously.

Lord Trefgarne

This is one of the most complex and sensitive provisions of the Bill. Our aim is to clarify and simplify the existing law which provides, in Section 55 of the Children and Young Persons Act 1933, that the courts must in the case of a child, and may in the case of a young person, order that any fines, costs or compensation awarded against him be paid by the parents unless they cannot be found or the court is satisfied that they have not conduced to the commission of the offence by failure to exercise due care and control. We replaced this caveat with the concept of reasonableness and rely upon magistrates' good sense and experience in deciding what is or is not unreasonable in the circumstances of each case.

I doubt whether "reasonableness" can be improved upon. No list of guidelines as to what "reasonableness" might be can cover every eventuality. Even this amendment includes a catch-all phrase referring to, "any other factors which appear to be relevant". We do not want to make Section 55 any more complicated than it is at present. The Government have considered this provision very carefully in the light of the long debate upon it in the other place.

Let me first restate the principles upon which Clause 24 is founded. The family is the first and foremost influence for good or ill on a child's development. It is of the highest importance that parents exercise their influence for good. They must be supported in this by the law. The responsibility which parents have is one of the weightiest of the citizen. Parents cannot disown this responsibility. Let us recognise that some parents may not be very competent; but they cannot wash their hands of what their children do. Clause 24 is intended to reinforce this when children become delinquent. We start with the presumption that parents should be expected to accept responsibility for what their children do, not just up to 14, as in Section 55 of the 1933 Act now, but up to 17. This is the basis of our approach in strengthening Section 55, and it is in this light that the Government have looked at the tests proposed in this amendment and in the similar amendments which were tabled in the other place.

I entirely accept that one cannot take the parents' responsibility for the child's wrongdoing to the ultimate. Many young offenders come from broken homes. I accept that a single mother may often do her utmost, in most difficult circumstances, to bring her children up to be responsible law-abiding citizens, but may not succeed. There will certainly be occasions when it would be wrong to make a parent pay the fine imposed on a child. That is already provided for in Clause 24. But, as I have said, we regard that as the exception. I think that the courts should be entitled to presume that a parent must accept a responsibility for a young offender's wrongdoings. To that extent one might almost say that the fact that a youngster had offended gave rise to a presumption that the parent had failed in his responsibilities.

This amendment seems almost to reverse the approach we have adopted by inviting the courts to seek out some positive signs of failure on the parent's part before requiring the parent to accept responsibility for the fine. Nor am I by any means sure that it will help the courts to direct their attention to the effect on the relationship between parents and child of making the parent accept responsibility for the fine.

The Government have, after long and careful consideration, concluded that the test of reasonableness used in Clause 24 is right. We must rely on the good sense of the courts, as we do in so many other situations, to decide what is or is not reasonable in all the circumstances of each individual case. I hope, therefore, that the noble and learned Lord will not press his amendment.

Lord Elwyn-Jones

I still maintain that the change in the law is a change for the worse. I think that magistrates in practice will not be assisted by having merely to rely upon the circumstances of the case. But having given that Cassandra-like warning that it will make things worse, I do not propose to press the matter to a Division and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 24 agreed to.

Clauses 25 and 26 agreed to.

Clause 27 [Prison sentence partly served and partly suspended]:

9.53 p.m.

Lord Elwyn-Jones moved Amendment No. 57: Leave out Clause 27 and insert the following new clause:

(" Partly suspended sentences.

27. Section 47 of the Criminal Law Act 1977 is hereby repealed.").

The noble and learned Lord said: I am sorry that the Committee has to hear me so quickly after the last contribution. This amendment deals with a very important part of the case upon which we had a good deal of debate at the Second Reading stage of the Bill. It is a matter into which I entered in some detail, perhaps excessively so, at Second Reading and therefore I do not wish to traverse the whole field again. I see the worried look on the Chief Whip's face. I shall try to bring some cheer into that worried expression by taking about half the time that in normal circumstances I would have taken. So cheer up!

The whole issue on this particular matter is as follows. The main thrust of the Bill ought to be to reduce the prison population. Unless the Bill achieves that, it will be a failure. We have critically examined many of the provisions of the Bill because it fails to do that. We have had many discussions of this, and this is the acid test that we should apply. There are various proposals which we shall come to—some of which we have dealt with already—which would have the certain result of reducing the prison population. We shall come to that matter through various amendments that will be moved from different parts of the Committee.

What we complain about as regards Clause 20 is that so far from being certain to reduce the prison population, it may well increase it. The reason for doing that is that it will provide a compromise option to the courts which, without the availability of this provision, would otherwise have dealt with the matter with either a suspended sentence or by taking the step of a partly suspended sentence. The Home Office's review of parole in England and Wales in 1981 said of Section 47 of the Criminal Law Act: That section has not been activated because of fears that the new sentence would be used to give a taste of imprisonment in cases where at present the courts would impose a fully suspended sentence or non-custodial sentence. Inevitably, too, in a proportion of cases the suspended part of the sentence would be subsequently activated. Thus there can be no certainty that implementing Section 47 would achieve any reduction in numbers in custody and would not confer any advantage in the treatment of individual offenders".

There has been a range of estimates on the possible effect of the partly suspended sentence on the prison population. The Government quote a figure, based on the most favourable assumption, that the measure could reduce the prison population by up to 4,000. There are unfavourable estimates, just as well-founded if not better in forecasts and statistical forecasts, that it would increase the prison population by up to 8,000.

The measure that is proposed is a gamble and, as it has been put, it is akin to playing Russian roulette with four of the gun's six chambers loaded—an extremely unattractive exercise. Therefore, in the view of many of us in the Committee, at a time of increasing prison numbers and the crisis of overcrowding in the prison system, which I have mentioned, we need measures which are certain to reduce the prison population, such as the supervised release scheme, which we are about to discuss; whereas a measure of this kind, which is proposed by the Government—I have no doubt in hope and in faith—in my submission has no justifiable basis for optimism or confidence. I beg to move.

Baroness Macleod of Borve

I shall be very brief. As the noble and learned Lord said, we have at last reached a part of the Bill which might be of some help on the matter of the prison population. The first part was obviously of no help, as we decided that no young person under the age of 21 should go to prison.

As everyone will know, the power that we are putting in this Bill has already been in force since 29th March, when part of the original Act was activated. Therefore, it is very difficult for us to say that it will increase the prison population, because I believe that it is not yet possible to know whether it has or it has not.

There has been a very great deal of controversy at all levels in another place and outside Parliament about this particular part of the Bill. My right honourable friend the Home Secretary has taken note of what many people have said and I think that we must give him the benefit of the doubt. What else can we do? We are trying to find a way of reducing the prison population without bringing the judiciary into contempt.

I am well aware that there are people who think that some members of some benches might possibly use this as a method of sending someone to prison just because they believe it would do him good to be inside for a month. That certainly has to be proved, and I doubt very much whether it ever will be. We should give this the benefit of supporting what the Home Secretary has, in his wisdom, brought into this Bill as a result of the powers that were given him before. I personally warmly support this part of the Bill.

Lord Hunt

I rise to ask one simple question of the Minister who will shortly reply. Mr. Leon Brittan, when occupying the position of Minister in the Home Office in December 1979, in a speech in Sheffield said, and I use his words: There is reason to believe"— speaking of the partly suspended sentence— that it would increase the number of prisoners detained for short periods. What has happened since for civil servants, for the Home Office, to proffer contrary advice to Ministers now? It is against a great many forecasts in exactly that sense that that advice no doubt was given to Mr. Leon Brittan. It goes back a long way. Mr. Brynmor John, when he was at the Home Office in 1977, received a letter from the secretary of the Magistrates' Association giving a forecast in exactly that sense. I hope the Minister will be able to enlighten us on what change has taken place to bring about this contrary advice now.

Lord Campbell of Alloway

With due deference to the noble and learned Lord, Lord Elwyn-Jones, may I briefly at this hour put one or two points for your Lordships' consideration. I do not propose to string them together; there is no time. If they do not make sense, well, they do not make sense. First, guidance has been laid down by the Court of Appeal quite recently as to the use of partially suspended sentences. Secondly, it has been recently pointed out that this section of the Act came into effect only on 29th March 1982, three months ago, and your Lordships may think that it is a little premature to repeal it in its infancy at this stage.

Furthermore, the merits of its introduction depend on the use to which it is put, and it is a little early to strangle this concept, so to speak, at birth. I quite agree that we have to reduce the prison population, but the question is really whether it is right, or fair, to regard sentencing policy, as has been done on many occasions in your Lordships' House, as the only means by which to reduce it. I have spoken on this subject before. I promise your Lordships I shall not speak on it again tonight. In my submission, it is too early to judge whether there is a possible misuse of power; the concept is consistent with shorter sentences and is clearly related to Amendment No. 59 which follows later. To avoid repetition and waste of time, with your Lordships' leave, I shall say no more.

The Earl of Onslow

The suspended sentence has, on occasion, added to the increase in the number of people in prison. I strongly suspect—and I think we are all talking from a hunch here, because the evidence points both ways—that with a partially suspended sentence it is possible that a man, or woman, who goes to prison for a very short time, will really know that he does not want to go back. Whereas with a totally suspended sentence he may not quite have the conception of what it is like, may commit another misdemeanour, and then have to serve the sentence which has been suspended and the sentence which is then passed on him.

I suspect that everybody to some extent is talking from a hunch, but I have an instinctive feeling that the partially suspended sentence for people going to prison for a very short time may, or should, have a deterrent effect. If that happens, then that in itself should reduce the numbers of those going to prison for a longer term. I hope that my noble friend on the Front Bench will resist this amendment.

Lord Monson

May I, as a layman, intervene just to put this point to the noble and learned Lord, Lord Elwyn-Jones? Recently a young man—a first offender, I believe—was sentenced to nine months' imprisonment for a hoax bomb scare by means of a telephone call made in a moment of bravado, and no doubt after having had one drink too many. Would not the noble and learned Lord agree that a wholly suspended sentence would have been quite inappropriate for a crime involving the police and public in so much worry, time and trouble? On the other hand, would he not also agree that it would have been quite unnecessary, from the point of view of deterrence, for the young man to have spent a full period of six months in prison? Surely 28 days, which would have been spent under the suspended sentence procedure, would be more than adequate to deter him from repeating his crime?

Lord Elwyn-Jones

If I may just answer that specific question, I would not for a moment do anything other than require that young man to serve his full sentence, subject to the usual remission. A bomb scare offence is a very serious matter.

10.6 p.m.

Lord Harris of Greenwich

I think it is right to say just one or two things on this issue, as I was a Home Office Minister at the time the Criminal Law Act was put on to the statute book and I believe the noble and learned Lord, Lord Elwyn-Jones, introduced the Second Reading of that Bill in this Chamber, where the Bill actually began its parliamentary passage. I should like to look at the background of this for the following reasons. First, this amendment was a Back-Bench amendment tabled in another place by the present Minister of State at the Home Office, Mr. Mayhew. It was accepted by the Government after discussion in Standing Committee.

I have to tell the House that it is very rare for there to be failures of communication within the Home Office but, on this occasion, there was such a failure, for which Ministers must accept responsibility. I certainly accept my measure of responsibility; but, once we were apprised of what we had got ourselves into, we decided to extricate ourselves from it with the maximum speed, because, although I do not like and I do not think it appropriate to give details of official advice which was received nor to attempt to use the advice which was tendered to one particular Administration in a debate such as this, I must make it absolutely clear that the view we took was not taken in the teeth of determined opposition from our officials. The view we took—and it was taken on the best information available—was that the introduction of the partially suspended prison sentence would increase the prison population. I am reinforced in my belief that that view was correct by what my noble friend Lord Hunt said a few moments ago, when he drew attention to what the last Minister of State (the present Chief Secretary to the Treasury) said when he indicated quite clearly that it was his view that the activation of this particular section of the Criminal Law Act 1977 would in fact increase the size of the prison population.

The way we dealt with the problem was simply not to make the commencement order. The present Government have made that order. I do not know what the noble Lord the Parliamentary Under-Secretary is going to say in answer to this debate. No doubt he will say that it is too early to judge what the effect of this may be. He may indicate that guidelines have been laid down as to how this particular sentence should be applied. Indeed, that is true, and I would not myself go into the lobby tonight in favour of this amendment because I do not think it is possible to chop and change with such a high degree of reg- ularity on this issue. But I must make it absolutely clear that I think we are taking the most appalling risks in introducing this provision. All the available evidence at this moment points to the fact that there is a risk—I would say there is no certainty and there cannot be certainty—and there is a real risk that this could lead to an increase in the size of the prison population.

I must make it clear—I suppose I should have declared an interest, as chairman of the Parole Board, and the Minister will be even more aware of this than I am—that we are nearing the breakdown situation in our prisons. The position in a number of local prisons is quite menacing. We are discussing a Bill in which for the first time, we are being asked to give the Executive authority to release large numbers of prisoners if we reach that breakdown situation. About that I would only say that the Government have taken a tremendous risk in introducing this provision. I shall be gratified indeed if, in two or three years' time when we are discussing these matters, any Member of the Government is able to say that our prophecies have proved to be wide of the mark. I am bound to say that the Government are taking a risk and Ministers must realise that, if they proceed, as they have decided to proceed, in this way, they are assuming full personal responsibility for the consequences.

Lord Melchett

To respond to some remarks of the noble Earl, Lord Onslow, and the noble Lord, Lord Monson, in criticising the amendment, their remarks seemed to imply that there was some deterrent effect of imprisonment; that imprisonment for a short time, because part of the sentence was suspended, would reduce the likelihood of somebody re-offending. It is worth reminding both noble Lords that there is no evidence for that proposition. Imprisonment is not a deterrent to future re-offending. In fact, the opposite is the case. All evidence shows that people who are sent to prison are much more likely to re-offend than people who are not, and that is one of the major arguments against the partially suspended sentence. As my noble and learned friend Lord Elwyn-Jones rightly said, it is likely to increase the use of imprisonment made by the courts and, because more people are sent to prison, more are likely to be reconvicted after their release and end up in prison yet again, and therefore it has a doubly negative effect on the appalling problems we face in the prisons.

Lord Monson

Would the noble Lord agree that, if people are sent to prison for four weeks or so, they are not likely to get into bad habits and that, furthermore, they are likely to be able to go back to their jobs—that is the important point; they are unlikely to be sacked by their employers—and therefore they are not likely to be unemployed and on the streets when they come out of prison?

Lord Melchett

If the noble Lord is aware of the number of employers who are likely to keep jobs open for somebody sent to prison for four weeks, particularly given current problems of unemployment caused by the present Government, he is a luckier man than most people who end up in prison.

Lord Elton

I think I can say that few powers to pass a particular type of sentence have attracted as much attention in all parts of the Committee and inside and outside Parliament as the power to order that a sentence of imprisonment may be partly served and partly suspended. The odd thing, and an aspect your Lordships should note about the argument of those who oppose it, is that they do not actually say that it is penologically wrong; on the contrary, they say the courts may abuse it. On the penological merits of the sentence, I refer your Lordships to the report of the Advisory Council on the Penal System entitled Sentences of Imprisonment, published in 1978, and particularly to paragraphs 268 to 282 of that report, which strongly supported the introduction in the Criminal Law Act 1977 of the power to impose partly suspended sentences of imprisonment. I have copious quotations from those paragraphs. I shall have to ask your Lordships to take them on trust, unless I am asked to revert to them. They are compelling reading.

If this power is used in accordance with the principles advanced by the advisory committee, its effect would be to shorten effective custodial terms in a good many instances, and reduce the pressure on the prisons.

If, on the other hand, they were used in some measure in place of full suspension or in place of wholly non-custodial sentences, it would serve to increase that pressure. I entirely accept the warnings which the noble Lord, Lord Harris, has given.

Section 47 of the Criminal Law Act 1977 was not brought into force until 29th March this year because, first, there was concern in the previous Administration—to which the noble Lord, Lord Harris of Greenwich, has borne eloquent testimony—and, secondly, when the present Government came to office we shared that concern, in particular on behalf of the local prisons which take the greatest strain. But we have been consistently in favour of the principles of the partly-suspended sentence, and the possibility of implementing Section 47 was kept under regular review. We put it into effect on the 29th March because the wind had changed.

What has happened since some years ago—my right honourable friend made a speech (to which the noble Lord, Lord Hunt, gave close attention), and since the noble Lord, Lord Harris of Greenwich, found that he was not flying in the teeth of advice of officials in not implementing the provision—is that the climate of opinion in the courts has changed. I do not mean the climate of opinion only, but the actual practice of sentencing itself. As my noble friend Lord Campbell of Alloway has said very succinctly, a very considerable lead has been given in both the Court of Appeal and this House, and the latest figures show that as a result sentences in the Crown Court last year were on average about two months shorter than those in 1979 and sentences in magistrates' courts, which cannot be more than six months on a single offence, have gone down by one to two weeks over the same period. Where the will of Parliament and the guidance of the Court of Appeal coincide and are seen to be effective, I scarcely think that the Crown Courts will suddenly decide to run counter.

There is evidence that when the wholly-suspended sentence was introduced it was misused, but we need not have the same fears now about partly-suspended sentences. Let me direct the attention of those noble and doubting Lordships among you to the case of Regina v. Clarke, on the use of the partly-suspended sentence. The conclusion of that recent judgment echoed the words of the Advisory Council on the Penal System. Again I shall subsume that your Lordships are familiar with those words, and so I shall not recite them now, since the noble and learned Lord, Lord Elwyn-Jones, exercised a similar self-denying ordinance. The wind has changed and it is a pity that the noble and learned Lord, Lord Elwyn-Jones, and all the noble and unlearned friends of his in that boat have not yet set their sails to meet it.

There is some concern among the courts and other commentators on the criminal system that the structure of Section 47 gives the courts neither the full potential to reduce effective sentence lengths, nor sufficient guidance as to the use of the sentence vis-à-vis fully suspended and ordinary sentences of imprisonment. Clause 27 deals specifically with those matters.

We have given greater flexibility to the courts by changing the thresholds. I do not pretend that we can be absolutely certain that we have the thresholds exactly right. No one can be certain of the operation of untried law, and I am happy not to have either to pretend to noble Lords opposite that we are, or to have to face an unknown future with no ability to adjust to circumstances. Subsections (8) to (10) of Clause 27 provide the Secretary of State with the means of varying the thresholds, but that variation would itself be subject to your Lordships' approval.

The noble and learned Lord, Lord Elwyn-Jones, has sought to persuade your Lordships' Committee both to repeal Section 47 of the 1977 Act and to remove from the Bill our rider upon it. I hope that I have persuaded the Committee, somewhat briefly, that while I have every respect for his wisdom, on this occasion he is nonetheless mistaken. He has not been watching the sails; we should not follow his shaky course.

Lord Elwyn-Jones

I have watched the sails and I hope that my sails will need a fair wind and have a fair wind for the proposals that we are making in the course of the discussions during the Committee stage. I of course respect the opinion of the Advisory Council on the Penal System, but I can quote, I fear, the pessimistic conclusions of the Howard League, NACRO, the National Association of Probation Officers, and the Justices' Clerks Society, which in its recently-published observation on the Criminal Justice Bill, stated: The society is opposed to the implementation of Section 47 of the Criminal Law Act 1977 as we believe that it will go the same way as the suspended sentence and result in more not fewer, offenders being in prison". I am happy to say that, during my term in office, I went round the country urging the need for less prison sentences, so I have done my personal bit, at any rate. But I fear that the noble Lord's optimism may he unjustified. If he is right and I am wrong, we shall all be very happy.

Amendment, by leave, withdrawn.

Clause 27 agreed to.

[Amendment No. 58 not moved].

10.21 p.m.

Lord Ponsonby of Shulbrede

Before the next amendment is called, it is now twenty past ten, and I wonder whether the Chief Whip can give your Lordships some indication as to how long he intends to keep your Lordships here this evening.

Lord Denham

I have made an appeal to the Committee before now, and I must say that, important though this Bill is and strongly though your Lordships in all parts of the Committee may feel on certain parts of it, we have made comparatively slow progress, bearing in mind that we must get it through in a limited number of days. Although I should have liked to go very much further than that tonight, I think that, if we can get to the end of Part II tonight. we could just be said to have achieved the target. That is at the end of Amendment No. 67A, in the name of the noble Lord, Lord Melchett.

Lord Donaldson of Kingsbridge

This really means going till about 12 o'clock, 1 think. What is coming on now is really the only important amendment to the whole Bill. It really is. It is the fundamental one, which my noble friend Lord Hunt is going to move; and it is followed by another fundamental one by the noble Lord, Lord Wigoder. This is what the whole thing is about. We think the Bill is a nonsense without these things that we are trying to insert. I think it is dreadful that we should start this at half past ten in the evening of a day on which there is a rail strike; but, if we arc going to, let us go on with it at least until we get to the end of these matters, which will take a very long time.

There is no way of doing this quickly, and let the Chief Whip not think there is. He has been running about like a rabbit most of the evening improving nothing, but he will not shorten this because these are the things which are important and about which we feel very deeply.

Lord Harris of Greenwich

May I say a few words to assist the noble Lord?—because I am sure he wants to address the Committee on only a limited number of occasions this evening. We understand his concern on this matter, but I must just put to him the point that my noble friend Lord Donaldson has just made. This is an entirely non-partisan measure. The speeches that have been made have been very nearly equal in number—and very appropriately so—from both sides of the Committee. Indeed, I think that, if the amount of time taken up by Members on both sides were compared, it would be seen that they were pretty nearly equal, and, I repeat, that is right.

There is not the remotest prospect of us reaching Amendment No. 67A by midnight—not the remotest chance—and I must put it to the Government Chief Whip, who is responsible for business in your Lordships' House, that the Government did not in fact choose to sit, for instance, last Friday. Your Lordships did not meet last Friday. I make no complaint about that; but your Lordships are entitled, when discussing a major matter concerning the criminal law of this country—an opportunity which arises very rarely—to have adequate time for discussion.

All I would say is to repeat the point made by my noble friend Lord Donaldson. The issues we are about to embark upon are matters of great significance in terms of the prison population, and, if I may say so, speaking only in terms of the parole scheme, are vital to the whole future of parole in this country. The idea that we can embark upon these and conclude the discussion in a period of an hour and a half is, I think, wholly mistaken. If the noble Lord believes that possibility he is going to be gravely disappointed.

Lord Denham

I did not mention one and a half hours. I have asked the Committee, if they could, to be a little more concise on this matter. I did not choose for this particular amendment to come on at 10.30 at night. Every Government have to get their business through in a limited amount of time. It is no use saying that if we reach a certain amendment we must carry this forward to the next day; because what happens? Supposing we start at 3.30 on Thursday with this amendment, when will we rise on Thursday? This House must on occasion, if it wishes as a Committee to debate the Committee stage of a Bill for a long time, be prepared to sit late to do so. I am afraid that this is a fact of life. I have asked the Committee to be as brief as they can. I am sure they have obeyed me. I cannot ask the Committee to rise at 10.30 p.m. when we have got through only a comparatively small number of amendments.

Lord Avebury

If I may say so, the noble Lord the Chief Whip has indicated to Members on his own side that they have been speaking too long, and they have been on their feet for only a couple of minutes. It is unfair to say that everybody should be more concise when nobody has been fillibustering in the speeches I have heard. In deference to the injunctions of the noble Lord the Chief Whip, I have not made any speech in the last one and a half hours. The speeches have all been extremely concise. I do not think that the arguments to which we have listened could have been compressed into the space of a fewer number of minutes than they have taken. To suggest that the Committee has been delaying matters or prolonging proceedings on the Bill is unfair.

As to the noble Lord's suggestion that in order to get through an important Hill of this kind we must sit as late as midnight or later—because as the noble Lord, Lord Harris of Greenwich, has said, one and a half hours may be inadequate—then not just the next amendment that the Chief Whip referred to, but the one after that in the name of my noble friend Lord Wigoder, on remission of sentence is equally important. There are two major issues that the noble Lord has suggested we dispose of (apart from a number of minor ones which come after that) if we are to reach Amendment 67A by this evening.

The noble Lord might like to consider that we go on to Friday. Nobody cares about that. Everybody likes to meet during the daytime when they are fresh and ready intellectually to cope with major problems of our penal system. If the noble Lord the Chief Whip does not succeed in completing the Committee stage on Friday, then I dare say noble Lords will be prepared to come on Monday or the next Friday as well. It is not impossible to get the Bill through in a reasonable number of days without going on until all hours of the day and night.

Lord Denham

I think noble Lords have very short memories if they do not remember sitting (sometimes in the time of my Government and sometimes in the time of the Government of noble Lords opposite) until 2 o'clock or 3 o'clock in the morning, and sometimes until breakfast time. This Government have not asked the House to go on sitting late. This will be the first time for a very long time we have asked the Committee of the House to sit beyond 10.30 or 10.45.

Baroness David

We had an all-night sitting on the Education Bill 1980.

Lord Denham

That is right. There have been all-night sittings before now. The position is that if we rise now we will not finish the Bill on Thursday or even on Friday. It really is not unreasonable, on a Bill which they all find very important, to ask the Committee to sit a little later than usual.

Lord Melchett

I am anxious to reach tonight Amendment No. 67A, which I think is important. It is in my name. If the Government accept Amendments Nos. 59 and 61 I am sure that we would get there.

10.29 p.m.

Lord Hunt moved Amendment No. 59: After Clause 27, insert the following new clause:

(" Supervised release.

.—(1) Subject to subsection (2) below, a person who after the commencement of this Act is sentenced to a term of imprisonment of less than 3 years shall be released on a supervised release licence when he has served one-third of his sentence or one month, whichever is the longer; or such later date as may be necessary to take account of any forfeiture of remission.

(2) Where a court considers that it is necessary for the protection of the public, it may order that an offender who is sentenced to a term of imprisonment of less than three years shall not be released on a supervised release licence under subsection (1) above without the agreement of the Secretary of State.

(3) A person subject to a supervised release licence:

1. (a) shall be under the supervision of a probation officer, and
2. (b) shall comply with such requirements, if any, as the Secretary of State may specify in this licence.

(4) For the purposes of this section consecutive and concurrent terms of imprisonment shall be treated as a single term.

(5) A person whose sentence is reduced by the operation of section 67 of the Criminal Justice Act 1967 (reduction of sentence of imprisonment by reference to periods spent in custody on remand) shall for the purposes of this section be treated as if any period taken into account under that section were included in his sentence.

(6) A person shall remain subject to a supervised release licence until he has served two-thirds of his sentence, with the addition of any period for which he may have forfeited remission unless the licence is revoked under subsection (7) below.

(7) A person subject to a supervised release licence who fails without reasonable excuse to comply with a requirement imposed under subsection (3)(b) above shall be guilty of an offence and liable on summary conviction to—

1. (a) a fine not exceeding £200;
2. (b) a sentence of imprisonment not exceeding 30 days.

(8) Where a person subject to a supervised release licence commits an offence punishable with imprisonment, a court may order his return to custody for a period not exceeding—

1. (a) the outstanding period for which the supervised release licence would otherwise be in force; or
2. (b) 30 days,

whichever is the longer.").

The noble Lord said: I am glad to be allowed to get on with the job of proposing Amendment No. 59. I have noted what the Government Chief Whip had to say about the need to be concise and as brief as possible. 1 have to tell the noble Lord that while I regard this amendment as so important that I will be concise, of course, I intend to do it full justice in this Criminal Justice Bill. This amendment purports to extend considerably the benefits of parole so as to include prisoners who at the moment are below the threshold of eligibility for parole and also to simplify greatly the parole procedures for all prisoners sentenced to less than three years. Subject to exceptions—and I shall use that word several times during my brief explanation—all prisoners with sentences from three months to less than three years will, under this amendment, serve the middle part of their sentences noncustodially in the community. The last third of the sentence is normally remitted.

The exception to this general sentencing practice of a two stage part-custodial, part non-custodial sentence would he those cases where the courts had directed that a review should be made by the Home Secretary and that those cases should only be released before the normal date if and at whatever point in time the Home Secretary is satisfied that this will he in the public interest. The underlying purposes of the amendment are two-fold: first, without detriment to the public safety, to reduce the present prison population to be within more manageable and morally acceptable limits; secondly, to make it possible that many more prisoners serving short sentences—by British standards—will have the benefit of post-custodial supervision and support than is the case at present. I insist that this is also in the public interest.

May I explain what the proposal is not. It is not a shortening of nor exemption from a sentence imposed by a court of law. Nor is it a suspension of a sentence save in the sense that an offender can be recalled to prison for offending again during the non-custodial part of the sentence. Unlike a partly suspended sentence, this second part would be a positive rehabilitative period on licence, and the licence can include a requirement to that end. Thirdly, it is not automatic parole.

It is so important that this proposal should get a fair hearing that I propose to give the Committee the briefest possible background. It is not new; I claim no personal credit for it. It was proposed on lines very close to this amendment in the Home Office review of parole in England and Wales which was published halfway through last year.

The Home Secretary and the Lord Chief Justice both gave early public support to the proposal in that original form, as did a substantial number of the Parole Board's 50 members. It was later dubbed or called automatic parole by those who made no reference to the discretion, whether by the Home Secretary or the courts, to vary or cancel the transition from a stage of custody to that of supervised non-custody.

In that form it was recommended by the House of Commons Home Affairs Committee in their Fourth Report in 1981. It was acclaimed by the Association of Chief Probation Officers and by various penal reform bodies. The notion of automatic parole was not proceeded with by the Home Office, as the Minister will testify, because of objections by the judiciary that this would unduly interfere with the discretion and intention of the courts. In their reply to the House of Commons Home Affairs Committee published last December the Government objected to the scheme.

In his maiden speech in the House on 24th March the noble and learned Lord the Lord Chief Justice made the position of the judiciary clear when he spoke of the necessity to give judges some opportunity in certain cases to, as he put it, non-apply the transition from the custodial to the non-custodial part of the sentence. However, speaking a month later on 28th April in this House the Lord Chief Justice responded very positively when I adumbrated the concept to two stages for all determinate sentences in which the courts would be empowered to make exceptions to a normal process in cases where, in their opinion, it was necessary for the protection of the public. That is what is now embodied in subsection (2) of the amendment before this Committee.

I suggest that the proposal has a number of merits. First, it would imply an important saving yin the lengthy, laborious, costly and—and I speak with some knowledge in saying this—not strictly necessary parole procedures of assessment, in regard to prisoners serving under three years and more than 18 months; and there are some 3,500 in that bracket. It would remove the prolonged anxiety suffered by those prisoners as to whether or not they are going to get parole. It is that indeterminate element in the determinate sentence which is one of the least satisfactory features of the parole scheme as it stands.

Save for those for whom the courts require a review of the case by the Home Secretary, they will all know exactly where they stand from the time that they are sentenced. It will enable the Parole Board and the local review committees to concentrate on the more difficult cases of prisoners serving three years and more; and I would be the first to admit that for those cases full documentation and a very thorough assessment is essential. For prisoners serving 18 months and less, down to three months, there will be the benefit of contact with the probation officer—albeit, perhaps, at the bottom end of the scale and for only one month—to help in the matter of rehabilitation into the community. This is another large group, and they lack this opportunity at present, as a matter of equity, between those above and those below the threshold of parole, and yet among them there are many recidivists who most need this kind of support.

But the effect on our grossly overcrowded local prisons is the most important single feature of this amendment. I need not expatiate on the gravity of that situation, because it was very fully aired during the Second Reading of this Bill. It is difficult to obtain a reliable figure of the potential saving in prison places, or the saving of people in prison at any one time. In its review of parole, the Home Office gave an optimum figure of 7,000, but that was based on a minimum threshold of six months. My amendment is proposing three months, which would very considerably increase the Home Office figure; in fact, it would increase it by an estimated 1,000 prisoners. What is certain is that the potential saving will be very substantial.

We would have to take into account the numbers for whom the courts will require a review by the Home Secretary before stage two of the sentence. But on this point it is important to bear in mind four facts. First, we are not talking about notorious criminals, nor about outrageous crimes, nor, for the most part, about people who have committed any violence against the person. Of the 3,500 prisoners who, within the present ambit of parole, would come within the terms of this amendment, only one-third were guilty of any form of violence, according to parole statistics in the last two annual reports, and I have no doubt that quite a number of those were one-off, once only affairs.

Secondly, only short periods would be available for the non-custodial stage of the sentence. The top end of the scale would be of the order of 10 months, but for the great majority it would be of the order of two months or less, down to one month. Thirdly, the failure rates for all parole-eligible prisoners while on parole has been consistently low throughout the scheme's 14-year history. About 5 per cent. only, and I think rather less, have been actually recalled to prison for offences committed while on parole.

Lastly, I ask your Lordships to bear in mind that all these offenders within the ambit of this amendment will be returning from prison to the community in any event, without any strings attached, within a matter of months—released a little earlier, and the risk to the public is likely to be less. Parole research points unmistakably in that direction. I think a reasonable guess—and the Government were guessing about partially suspended sentences—is that the courts would not require a review for more than 25 per cent. We are talking of a saving of about 6,000 prison places.

This amendment may well be seen as a radical measure. My contention is that nothing less will do. Perhaps I may be permitted to draw ananalogywith the history of the parole scheme, having listened to the debates in your Lordships' House in 1967 and having been personally closely connected with the scheme during its first seven formative years. Parole, 15 years ago, was perceived as a radical new measure. It was not an established feature of our criminal justice system. It was the subject of long and earnest debate in both Houses of Parliament. Outside, reservations were expressed about it by the judges, by the police, by the public and by the probation service whose representative body, the National Association of Probation Officers, are now expressing doubts about this proposal.

Well, parole has long since been established as a feature of our criminal justice system, with minimum failures and with benefit both to the public and to prisoners. There is no good reason why the ideas contained in this amendment should not succeed as parole succeeded. That is, judges will come to accept and intend that, as a matter of normal procedure, a sentence of under three years and not less than three months will mean, unless they decide otherwise, that it will be served in two stages: the first part in prison—that is the punitive part; and the second part in the community—that is the rehabilitative part.

I do not believe for one moment, as some have averred, that the courts would increase sentences if this amendment were approved. I accept that perhaps it may mean an increase in the establishment of the probation service. The Home Secretary has already authorised an increase of 150. I would not be at all sure that it is necessary, but if it is, so be it. It means a saving of prison places and the cost of keeping people inside. The nettle of prison overcrowding, due to too many and too long prison sentences as well as to the increase in crime, has got to be grasped in a bold and imaginative way. There is nothing in the Bill at present which takes that courageous step, as did the Government and Parliament in 1967. Now is the time to do so again.

I hope I have given a fair, in both meanings of that adjective, wind to this amendment. I regret very much having had to do so at this late hour. Before moving the amendment, may I draw your Lordships' attention to Amendment No. 61, which has already been mentioned and which stands in the name of my noble friend Lord Wigoder. In so far as its perspective effect on the all-important matter of reducing the prison population is concerned, the All-Party Penal Affairs Group would be equally content if his amendment were adopted rather than mine. Meanwhile, I beg to move Amendment No. 59.

Lord Campbell of Alloway

I defer, of course, to the vast experience of the noble Lord, Lord Hunt, on all matters appertaining to penology and particularly parole. But I am a little worried and puzzled, because I always understood that it was the function of the courts and judges to decide how each individual offender should be dealt with, that it was their responsibility, and that parole was based on selection, whereas supervised release, although the noble Lord said that it was not automatic, looks, according to his subsection (1), as though it is automatic, because of the mandatory "shall". I concede the point that under the three years of subsection (2) there is an element of permissive administration, with the agreement of the Secretary of State, but, as I read subsection (1)—and I do invite correction if I am wrong—it does read as mandatory and automatic.

Lastly—and I will be brief, as before—I understood that the partly suspended sentence which Her Majesty's Government opted for was a more flexible, less expensive and less complicated way of reducing the period in custody than that proposed under the supervised release scheme. I again seek clarification because it is an important problem.

As to whether the concept of the noble Lord, Lord Hunt, is that, even if starred Amendment No. 57 is not accepted, and it has not been accepted, Amendment No. 59—this amendment—should nonetheless obtain, as I understood the position, it was really only after Amendment No. 59 that the new starred Amendment No. 57 was introduced to give effect to it. I confess that it is late at night but I have not simulated a muddle and have not wilfully tried to be obstructive or ignorant—but I am a little confused.

10.47 p.m.

Lord Avebury

For a start the noble Lord, Lord Campbell of Alloway, is working from an old Marshalled List—because Amendment No. 57 is not starred in the Marshalled List issued today. If I may venture to offer the noble Lord some advice, the partly suspended sentence which we discussed earlier this evening was subject to very considerable speculation when it came to estimating the number of prisoners who would thereby be released and, on the other hand, the increase in the number of prisoners which might result from use of the partly suspended sentence as an alternative to non-custodial treatment by the courts. There was no agreement whatsoever between the various parts of the Committee on what would be the effect of the partly suspended sentence, whereas the proposal now before the Committee is susceptible of calculation as to what number of prisoners would thereby be released. I thought that the noble Lord, Lord Hunt, explained that fairly clearly.

Even if one took into account the possibility that as many as 25 per cent. of the cases would be subject to the provisions of subsection (2), the reduction in the prison population, as I understood the noble Lord, Lord Hunt, would be as many as 6,000 prisoners. That is a most substantial figure, which would succeed in bringing the prison population down below the critical figure of 40,000. Some time ago, the former Secretary of State, Mr. Roy Jenkins, said 40,000 was the critical level, above which the prison system would be unable to cope with the load. The prison population at the moment is something like 44,000, although the noble Lord, Lord Elton, will correct me if I am wrong. So we do need a reduction of the order of magnitude proposed by the noble Lord, Lord Hunt. If we cannot get it this way, then we need somehow to get rid of that number of prisoners from the system if we are to be safe; if the prison system is to be immune from an outbreak of riots; if the morale of the staff is to be safeguarded. I will not go into the many risks there are in having a prison population so much larger than the maximum that can be tolerated, but I believe that the noble Lord, Lord Elton, is perfectly well aware of them—as indeed is the whole Committee, because they were discussed on Second Reading and earlier, in the debate initiated by the noble Earl, Lord Longford.

I wonder whether I may ask the noble Lord, Lord Hunt, whether he does not consider that in the absence of the provisions of subsection (2) the courts who believe it is necessary for the protection of the public that a person should serve a longer sentence would actually impose a longer sentence. This is really an alternative. Unless they are already somewhere near the maxima this power would be unnecessary.

On occasions the Front Bench are very keen on the Advisory Council on the Penal System, when it supports their case for a partly suspended sentence. But when it came to a reduction in the maximum sentences that could be imposed noble Lords have said that this was unnecessary because the courts were already not using anything like the full powers they were allowed by the law. This ignores the fact that the Advisory Council on the Penal System recommended reductions in the maximum, in some cases down to something like 30 or 40 per cent. of those which are provided at the moment. If the powers of the courts to impose sentences are so much larger than they are actually using, I would suggest the provisions of subsection (2) were really unnecessary. This is a complication of the scheme which might render it liable to criticism.

If as many as 25 per cent. of the cases would have to be referred to the Secretary of State this would impose an additional load on the Home Office of something like 1,500 cases a year, and this in turn would demand a large increase in staff to look at those cases, apart from the increase in the number of probation officers needed to cope with those supervised during the middle third of their sentences. So while I am in general in support of the principle of Lord Hunt's amendment, the Home Office might not think the scheme he has put forward could be subject to the modification that the references to the Secretary of State in so many of the cases would prove to be unnecessary.

Baroness Birk

We on these Benches support wholeheartedly the amendment moved by the noble Lord, Lord Hunt. I think Lord Avebury had a point in what he was picking up and the problems that might arise. What we are concerned with tonight is really the principle of the whole thing we are discussing, the principle of the supervised release scheme and how this should be brought about. Lord Hunt gave us the history of it. The noble Lord, Lord Campbell, said he thought it was the function of the court and judges to decide. With great respect, I think he is overlooking the fact that, as with many things, you get attitudes within a society which get built into the society and this is how we get consistency. It is also the case that the Secretary of State was prepared to bring in the supervised release scheme, but as was pointed out by my right honourable friend at Second Reading in another place, this was destroyed not by the judges but by the Conservative Party conference. The Labour Party has remained constant in its support for the scheme.

Lord Campbell of Alloway

Was it not—I may be wrong about this—an option, a choice between partially suspended sentences, on the one side, and supervised release, on the other?

Baroness Birk

No, it was not at that time; it was definitely the supervised release scheme. There was then the problem of how the judges saw it; and, as Lord Hunt explained, the Lord Chief Justice explained his reservations in his maiden speech in the House. Those reservations dealt with the more severe crimes and the problems of dealing with violent and difficult criminals, and these have been taken into account and incorporated in Lord Hunt's amendment.

What this amendment does, over and above everything else, is involve an entirely new type of sentence. As the noble Lord, Lord Hunt, has said, and as so many of us feel, it brings something into the Bill that is radical, new and creative and that will cause a shakeup in the whole of the penal system. So many of the other matters that we have been discussing have been really tinkering around on the surface of the penal system. They have not gone to any fundamental change in the way in which this amendment does. If we do not produce something of this sort we shall be left with overcrowded prisons and with the high rate of reconviction that we are just putting up with in this country, which is awful.

Let me briefly say that, first, the overwhelming weight of evidence from research indicates that longer sentences do not produce greater benefits; in fact we see the contrary—the entire institutionalization of prisoners. So that has more or less gone by the board. Secondly, there is now clear evidence, as again was shown by the noble Lord, Lord Hunt, that release on parole licence, which combines supervision by a probation officer with the deterrent effect of the threat of recall to prison for misbehaviour, will act—and I believe this both as a penal reformer and also as a magistrate—as much more of a deterrent than sending a person to prison for a long sentence, who when he comes out is, within a very short time, sent back to prison again. Thirdly, as the review of parole in England and Wales commented, a supervised release scheme also should be seen as strengthening the remainder of the parole system which would then be able to concentrate on the longer and more serious cases which cause them a great deal of difficulty and which call for closer scrutiny and decision on individual merits. Fourthly, and certainly not least important, the amendment would help to relieve the conditions of prison overcrowding.

By doing this we are not only relieving and improving the conditions in prison, which in themselves lead to a further cycle of crime and more crime, but we are also dealing with something which we all have talked about and have tried to do something about, and that is the rehabilitation of the individual person, the offender himself. With the combination of what has been going on in the system up to now, we are able to do very little about it at all. Anything we do is strictly marginal and a great many of the results are completely negative. Unfortunately, all the evidence points to that.

However, we now have an opportunity to bring something new, radical and quite different into the Bill. I think it would be—and I use the word advisedly —a crime in itself if we let a Bill go through at this time and of this type, without trying to inject this type of provision into it. It may be that on the edges there is a need for some change in the drafting—I am not concerned with that and I do not think that we have to concern ourselves with that at this moment. The important thing is that the principle should be accepted, and accepted in this particular form, and then the details can be worked out. But without that the Bill will be very tame and will not do very much to help the prison population, the individual prisoner, or the state of crime in this country.

The Earl of Onslow

I rise very briefly to support the amendment because it seems that there are two factors which we ought to bear in mind. First, in a slight form, this provision already exists in Northern Iceland. I presume that what is good for the Northern Irish is good enough for the English. Sometimes we have doubts on this—

Lord Donaldson of Kingsbridge

May I intervene? The next amendment deals with a matter which exists in Northern Ireland, not this one. The noble Earl is referring to Lord Wigoder's amendment.

The Earl of Onslow

I accept that it is a "half sentence" in Northern Ireland, but we are in fact, more or less, talking about the same principle. Ministers have said that this has not produced any increase in sentences by the Northern Irish courts.

There is one other factor about which we ought to think very seriously. It is, what is the point of punishment? Surely punishment by the courts contains three, possibly four, factors. I am trying to remember the book of the noble and learned Lord, Lord Gardiner, on capital punishment, which I read as a young man about 20 years ago and which had a great influence on me. He said that punishment contained three or four points. There was retribution, which is now slightly out of fashion, deterrence, rehabilitation, and protection of the public, which is presumably the same as deterrence.

If this happens by letting people out under supervised release, I suspect that the effect of reducing the prison population will make more effective the rehabilitation part, both inside and outside prison. If that happens, I suspect that crime and the recidivist element will fall slightly. If we just have a slightly falling crime rate as opposed to a rising crime rate—and it will be cheaper to do this—it would seem to me that this is a very good reason to do it. If a certain amount of money is saved in the prison service, if there is less squalor in the prisons and if it is done correctly, it produces less crime because there is the deterrent effect of going back to prison and the carrot effect of the reform element. I think that this is an experiment which ought to be tried. If it does not work—and the present system is not working either—then, of course, we can change it.

Baroness Trumpington

There has been a great deal of talk today about the All-Party Penal Affairs Group, of which I am very proud to be a member. We have talked about this amendment at length. I know that the noble Lord, Lord Hunt, and others are fully convinced that they are representing the views expressed by the noble and learned Lord the Lord Chief Justice here in this House.

There are two things that worry me. First, I want to be absolutly certain that it is, indeed, the case that this amendment represents the views of the noble and learned Lord the Lord Chief Justice. The other point that is worrying me, which was brought to my notice a long time ago, is the very point that the noble Lord, Lord Avebury, raised—the question arising of longer sentences. This I think is a real worry. It was certainly brought to may notice in quite different circumstances, but it arose out of the attitude of those who work in prisons, who are worried that longer sentences will be imposed.

I propose to listen extremely carefully to what the Minister has to say at the end of this debate, because I know that the All-Party Penal Affairs Group regard this is a very important amendment. I wish to be absolutely certain in my mind—if the noble Lord intends to divide the Committee—that everyone has heard both sides of the argument before he or she makes up his or her mind.

Lord Harris of Greenwich

I agree with a point made by the noble Lord, Lord Campbell of Alloway, who has just left us, no doubt for a moment or two. I agree with him that this form of supervised release is not parole. Parole is, by definition, a selective process. What we are discussing here is some degree of automaticity, subject to the provisions of subsection (2).

Subsection (2)—which was commented upon by the noble Lord, Lord Avebury—as I understand it, provides that the court is empowered to deny a person in this category the right, as it were, to automaticity, and to say that he cannot be released without a favourable recommendation by the Parole Board, accepted by the Secretary of State in the normal manner. That is to some degree an improvement on the original proposal set out in the Home Office review of parole.

The problem about this issue—and this was touched on by the noble Baroness who has just sat down—is that it is possible to produce an overwhelmingly cogent argument against any scheme for the early release of inmates in prisons. I shall be endeavouring to persuade the Committee that the next proposal we are discussing falls into that category, because I am not in favour of the proposal of the noble Lord, Lord Wigoder, which is an alternative to this proposal, and in my view a far less attractive alternative, where he is suggesting that we should move to 50 per cent. remission, as is the case, as the noble Earl, Lord Onslow, pointed out, in Northern Ireland. I do not like that idea. I resisted it when I was a Minister and I have seen nothing since then which has made me change my mind. That particular proposal would lead to an increase in sentences. We can all argue whether that is right or wrong, but that is my view.

There are problems about this amendment, and arguments can be set out and a fairly formidable case can be made against it, and no doubt the noble Lord, Lord Elton, will be doing just that in a moment or two. There is going to be some form of early release from prison. There is no doubt about that. Anyone, including my noble friend Lord Hunt and others who know the situation in prisons, knows perfectly well that there is going to be some form of early release. The question we have to address ourselves to is what form of early release are we going to have. Is it going to be some form of sensible system, as is set out in this amendment, or is it going to be the emergency system which is part of this Bill, executive release, which I do not like, nor, I suspect, will public opinion like? That is the choice, and there is no point in the Committee persuading itself that there is some easy way out of this.

At the moment we have a prison population of rather less than 44,000. The CNA of prisons said that normal accommodation is somewhere in the region of 37,000. Anyone who goes around the prisons knows that we are dealing with a potentially explosive position. Two or three weeks ago I went to one of our large local prisons, Winson Green in Birmingham. They had just had a substantial demonstration by a large number of inmates protesting about conditions in that prison. I do not in any way justify action of the kind taken by the inmates of Winson Green, but, when you see the appalling conditions there faced by many people who are not in fact convicted of any offence whatever, you realise the degree of pressure and tension which is being created within our prison system.

We cannot talk our way easily out of this by speeches in this House or in the country. If we do not have this system, we shall at some stage have executive release. We shall have to simply open the doors and let out people who are serving the last six months of their sentences. I believe that the proposal of my noble friend Lord Hunt is the right way to approach this problem. It in fact protects the public interest by requiring some degree of supervision in the community. The alternatives are far less attractive. I realise the sort of reasons the noble Lord the Parliamentary Under-Secretary no doubt has in front of him, but I hope that the Government will reconsider their position before it is too late.

Baroness Trumpington

Before the noble Lord sits down, may I ask him a question? With his infinite experience, would he not agree that, I think it is, Section 47 of the Criminal Law Act 1977, which has been implemented this year on the question of suspended sentences, gives us partly suspended sentences? Does not that do exactly what this present amendment wishes to do, but in a different way? Does it not fit the bill? Have we not already got that?

Lord Harris of Greenwich

No, we have not, in my view. We could all argue about it, as indeed we have been arguing for some time; but the problem with that section of the Criminal Law Act is that there is a good deal of argument about the effect of its implementation. As I tried to say a little time ago, many people believe that it will lead to an increase in the prison population. I am not saying that is a certainty, but it is a gamble, as my noble friend says.

What is laid down in this amendment will undoubtedly lead to a substantial reduction of several thousands in the prison population. I cannot forecast what the effect will be. When the Home Office said there would be 7,000 on parole as a consequence of the proposal they were envisaging then, I suspect the figure was on the high side. However, the implementation of a provision of this kind would possibly lead to a substantial reduction in the prison population, in my view. The partially suspended sentence may in fact increase the prison population.

11.12 p.m.

Lord Elton

I am grateful to the noble Lord, Lord Hunt, for the courteous manner in which, without delaying the procedures of this Chamber, he has addressed himself to the basic and important principles of his amendment. Amendment 57 was an attack on one means of reducing the pressure on our prisons by introducing a new kind of sentence—the partially suspended sentence. We are all agreed that the pressure on our prisons has to be relieved. I can confirm to the noble Lord, Lord Avebury, that the population of the prisons has hovered around 44,000 since the end of February this year. One cannot say that the majority of those serving short to medium-term sentences are non-violent offenders. Over 11,000, it is true, over 30 per cent. of sentenced prisoners, are serving sentences for burglary—a matter of great concern to the public—and, what is more, the majority of those have three or more previous convictions. Over 25,000 or over 70 per cent. are known to have more than three convictions and some are petty, persistent offences, it is true; but only about 2,000 of them. So reducing the prison population significantly does mean reducing sentences on quite serious offenders. There is no easy way. I do not say we do not have to do it but I think we must know what we are doing.

Amendment 59 is a second means of seeking the same end. The same factors of uncertainty apply to this amendment as did to what we have in the Bill, perhaps to a greater extent than noble Lords are prepared to admit. In both cases the courts would have discretion. If the discretion is a real factor and likely to be exercised, then it is just as much an unknown quantity in this amendment as it is in what stands in the Bill. On the other hand, if it is purely a "last gasp" alternative, then what we have is in fact automatic parole, which is something I do not believe the noble Lord, Lord Harris, would wish to support.

There must be an element of selectivity and the extent to which this amendment meets that requirement is the extent to which its results become imponderable. In both cases there is also the risk that what is now offered would be used in place of non-custodial or wholly suspended sentences. Many commentators on the proposal in the review of parole pointed to this risk in the case of supervised release. I would go so far as to say that to have both systems running—supervised release and partially suspended sentences—at the same time would add a considerable element of confusion to a sentencing structure that is already pretty complicated. It would produce many anomalies.

The sequence of alternative disposals which the court had to consider would be inordinately long. They would have to ask themselves, first, can custody be avoided altogether? That means a scan of the full range of non-custodial disposals available. Secondly, what is the shortest custodial sentence appropriate? Thirdly, can the whole sentence be suspended? And fourthly, can some lesser proportion of the sentence be suspended, and if so how much? Thus far, on the face of the Bill as it stands, everything is clear.

But if the noble Lord, Lord Hunt, has his way, they will have to interleave somewhere among the third and fourth stages consideration of whether earlier release under supervision would be preferable or whether, alternatively, they should direct that it should not be applied except by the decision not of a judge but of the Home Secretary. That would be intolerably complicated and I think your Lordships would agree that those two schemes—partially suspended sentences and supervised release—are not bedfellows but arc rivals. A choice has to be made between them, and that choice has been made; it has been made by the Government. It has been made after long and careful consideration in the light of wide consultation. The choice is in favour of partially suspended sentences, and that is what we have in the Bill.

It may be that the very conscientiousness of the Government in openly considering both proposals and in actually floating the idea of supervised release for consideration, as they did, in the review of parole, has made things more difficult for us tonight. That, suppose. is the price of open Government and decision-making in the light of public debate. But we certainly did not lead anyone to suppose that we were considering that idea to the exclusion of all others. And by the time that my right honourable friend spoke to the National Association for the Care and Resettlement of Offenders on 10th November of last year, he was able to say we were coming to the conclusion that the partially suspended sentence was the better solution.

It had of course the attractive advantage that it was already certainly available and securely enshrined on the statute book in Section 47 of the Criminal Law Act 1977, to which my noble friend referred, the advantage which a bird in the hand will always have over a bird in the bush. But the greater advantages lay, first of all, in the change in the wind, to which 1 referred earlier —the gradually appearing change to shorter sentences by the courts; and that was the signal that partial suspension was a runner, and a good one.

Then again, there was the advantage of judicial discretion, because at that stage supervised release was a mandatory proposal. Now, of course, the edge of that distinction has been blurred somewhat by the introduction not of judicial discretion but of my right honourable friend the Home Secretary; the odd interposition of executive discretion in the midst of a judicial process that I would expect would not be welcome to a great many people. It would of course be possible to replace this with a fully judicial discretion. We considered that very carefully ourselves. Such a scheme would have many similarities with our own, but it would lack what we regard as one highly desirable feature. Under this scheme, even with the element of discretion proposed, the decision is simply one of whether the prisoner shall be released early, after serving one-third of his sentence, or not. There is no adjustment of dates to meet circumstances. In our scheme, on the other hand, the proportion of the sentence that may be held over is infinitely variable from one-quarter to threee-quarters. That is what we mean by flexibility, and it will be very welcome to the courts.

Supervision cannot be had for free, and although we cannot tell how often the courts would cast upon the Home Secretary the burden of deciding whether or not release should be granted, the assumption must be that the cost would be considerable. Even in less straitened times, when one would question the value of that cost less closely, there would still be considerable doubt as to whether it would be worthwhile. Our doubts about the usefulness, the value, of shortened periods under compulsory supervision which this scheme would, for the most part, throw up, were underlined and sharpened by the comments we received on the proposal, not least from the probation service itself. Even in the prison service, where almost any scheme to reduce the population, other than actual escape, must have some attractions, the complicated calculations and administrative requirements of such a scheme represent a considerable disincentive.

Lord Donaldson of Kingsbridge

In discussing subsection (2), I think the noble Lord misled the Committee slightly. The subsection states that: Where a court considers that it is necessary for the protection of the public, it may order that an offender who is sentenced to a term of imprisonment of less than three years shall not be released on a supervised release licence. It is not the Home Secretary who makes that decision. The Home Secretary makes the later decision as to whether the man should or should not be released. It is the court which withholds it, which is the whole point of the Lord Chief Justice's intervention.

Lord Elton

I take the noble Lord's point. In other words, the prisoner is not referred direct to the Home Secretary; he is returned to goal to await review.

If I may recapitulate, partly suspended sentences and supervised release are rivals, not partners. Partly suspended sentences depend upon a statute that is in force and a section that has been implemented. They are subject to existing guidance from the Court of Appeal. They give discretion to the courts. They do not incur the costs of supervision. That is the Government's choice, made after full and open discussion, and embodied in public and considered statements. Against that noble Lords set up a scheme that poses an unquantifiable burden to the probation service, from which the benefits, if any, will be highly uncertain in everything, including their cost. What we have in the Bill now is, I submit, right, and what is proposed on the Marshalled List is, I contend, wrong. I suggest that we would do well to leave things as they are, and I ask your Lordships' Committee not to support the noble Lord, Lord Hunt, in his proposal.

Baroness Masham of Ilton

Before the noble Lord sits down I should like, very quickly, to ask him whether partially suspended sentences are supervised.

Lord Elton

No. Parole is supervised. Supervised release is supervised. Supervised release carries an unquantifiable burden, the results of which are far from certain and not altogether welcome from the probation service. I know that the probation service has been quoted or prayed in aid of what is being put forward, but in its comments it had considerable reservations, not least about the resources needed, as well as the difficulty of mandatory supervision of offenders with mixtures of offences and mixtures of difficulties, which might well prove to be counterproductive.

11.22 p.m.

Lord Hunt

I am sure that the Committee will agree that this has been a most valuable debate, all the more so because of the late hour at which we have conducted it. I should like to thank everyone who has taken part in discussing the merits, and demerits, as some would see them, of the amendment that I have put to the Committee. I should like to say to the noble Lord, Lord Elton, in the most friendly way, that he ended with a flourish in putting the worst possible complexion on the amendment that I have put to the Committee. I am not going to try to defend it again, nor am I going to say anything derogatory at this stage about the part of the Bill that is passed—the partly suspended sentence. I agree with the noble Lord totally; there has to be a choice. It has to be a choice involving the partly suspended sentence, the amendment that I have put to the Committee, and indeed the amendment which will be moved very soon by either my noble friend Lord Wigoder or my noble friend on my right.

I do not think that members of your Lordships' Committee would wish me to take up individually points that have been raised. I shall refer to only three points, since otherwise the answers would remain in the air. The noble Lord, Lord Campbell of Alloway, asked whether what is proposed was not actually automatic parole, despite the fact that I had emphasised that it was not. I maintain that it is not automatic parole because there is the total discretion in the hands of the courts to disallow, to non-apply, the normal process. I do not think that one can call anything automatic when the courts have that total discretion. I would agree with the noble Lord, Lord Elton, that of course it is imponderable as to how the courts would use the discretion. I referred to three or four facts which lead me to make what I believe to be a very reasonable assumption that in a large percentage of cases the courts will not disallow, non-apply, the normal process. I gave what I think was a fairly large margin of 25 per cent. as my guess. I admit that it is no more than that. I draw attention to the short nature of the sentences, the character of the crimes that fall within those short sentences, and—this is the point which the noble Baroness, Lady Birk, stressed, and to which I attach so much importance—the positive, constructive, rehabilitative value of the proposal that the Committee has heard.

The noble Lord, Lord Avebury, expressed some doubt as to whether this would not impose a greater burden on the Parole Board than they bear at the moment. Mental arithmetic was never a very strong point of mine, but the noble Lord said that this would add a further 1,500 cases if the courts referred that number of cases to the Home Secretary. Against that, there are 3,500 prisoners within the ambit of parole at present who will relieve the Parole Board of any assessment at all. My calculation is that that produces a net saving of 2,000.

The noble Baroness, Lady Trumpington, asked whether I was really telling the truth in what I said about what the Lord Chief Justice had said. I know the Lord Chief Justice too well to take any risks in misquoting him; in fact, I did not quote him, but in misinterpreting what he said—

Baroness Trumpington

If the noble Lord will forgive my interrupting him, I hope the noble Lord did not take it in that spirit because I certainly did not mean it in the way in which he has just interpreted what I said, or appears to have interpreted it.

Lord Hunt

The noble Baroness is in danger of taking me seriously when I did not intend to be so. I would refer her to the record in Hansard on, I think it was, 24th March and 28th April for two of the things that the Lord Chief Justice said. His first reaction about that time is on record, and I have no doubt I could turn it up by looking back in the files of The Times.

I would finish by saying that the most impressive contribution to the discussion on this proposed amendment was in my submission that made by my noble friend Lord Harris of Greenwich. We are facing a situation of utmost gravity, and the choice has to be made on fairly radical lines and with the least possible degree of imponderability, doubt and uncertainty. I would only say that the partly suspended sentence has come under a good deal of fire on those very grounds, and, when we come to discuss it further at Report stage—it has been challenged already, and I have no doubt that that part of the Bill will be challenged again—I hope all these three alternatives (as they must be) will be given a second airing in the light of the very useful discussion we have had. It is much too late for me to impose on the Committee by dividing at this stage, and, with the full intention of coming back to the matter—reculer pour mieux sauter —I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 28 [Early release of prisoners]:

[Amendment No.60 not moved.]

On Question, Whether Clause 28 shall stand part of the Bill?

Lord Donaldson of Kingsbridge

I am very sorry, but I must say a word on Clause 28, because this is the last chance we have of doing anything constructive in this Bill. I will not take very long, but it is important that we should realise that Clause 28 gives us the opportunity of using executive release to deal with our problems. The Government are refusing to use these powers. I put up a proposition some time ago, and I had a courteous letter from Lord Elton. What he said against it was: As I have already implied, our view remains that the use of executive powers such as those in Clause 28 of the Bill should be confined to dealing with an emergency in the prison system What does he think he has got now? I am speaking absolutely seriously. The prison report, the chief inspector's report—every report one has—shows that we have an emergency of the greatest gravity. It is very sad that at this late hour we have made no progress at all towards solving it.

Lord Elton

I do not wish to detain the Committee. I wish to place on record that the Government are fully aware of the pressure on the present system and what a difficult and dangerous task we have before us. We believe we have modelled a tool with which to improve that position; but whatever your Lordships put into the Bill at whatever stage of the proceedings here or in another place, it will still be necessary to have a safety valve in case it does not work. Therefore, there is nothing wrong in having an executive release for that degree of emergency. If the noble Lord likes to regard this as semantics, I think he is wrong. I think there is a greater degree of emergency in view than we now have, and that he would not think there should be executive release at this stage to meet this degree of pressure.

Clause 28 agreed to.

11.32 p.m.

Lord Hutchinson of Lullington moved Amendment No. 61: After Clause 28, insert the following new clause:

(" Remission of sentence S.I. 1964/388.

.—(1) In Rule 5 of the Prison Rules 1964, for the words "one-third", wherever they occur, there shall be substituted the words "one-half"

(2) This section shall not apply to any person serving a sentence of imprisonment to which section 28(1)(b) above applies.").

The noble Lord said: In the absence of my noble friend Lord Wigoder, I have been asked to move this amendment and I shall do so very shortly. I do it with a great deal of reluctance, having to go in to bat at this time of night with the light as bad as it is. I will move this amendment shortly because it is a very simple amendment and it is not, I suggest, for the noble Lord the Minister an intolerably complicated situation. Nonetheless, it is part of what my noble friend Lord Donaldson of Kingsbridge has described as the fundamental part of this Bill, an alternative proposal to the one moved by my noble friend Lord Hunt, and no doubt will be considered by the Committee in the context of that amendment.

The amendment simply proposes that remission should be one-half rather than one-third, as it now is, on all sentences of imprisonment. This change, as already pointed out by the noble Earl, Lord Onslow, has occurred in Northern Ireland and, so far as I know, in Northern Ireland it works perfectly well. The aim of the amendment is the reduction of the prison population—not giving power to deal with the emergency, if and when it arises, but a proposal to prevent the crisis and to prevent the emergency arising which I am sure will appeal to noble Lords as a far more constructive clause in a Bill such as this.

The amendment, in comparison with Amendment 59, applies to all sentences and not only those under three years. What does it really amount to? With the greatest respect, I think that the noble Lord, Lord Campbell (who is not in his place at the moment), misconceived the import of both these amendments in saying that he had always understood that it was for the judge to impose the sentence and not for the executive to interfere; but both these amendments only deal with the question of when the sentenced offender is to be released. He will be released inevitably and, at the moment, he is released after two-thirds of the sentence which the judge imposed. That may be considered by some to be an interference with the judge's sentence. In that sense, the noble Lord, Lord Campbell, was right; but the only difference between making remission one-half rather than one-third is really quite marginal, although it may have quite a substantial effect on the number of persons in prison at any one time. For instance, now, with good conduct, on a sentence of two years, that person will be released after 16 months. Under this amendment, he will be released after 12 months. Under my noble friend's amendment, he will be released after 8 months. Equally, on a sentence of under three years, the figures would be two years, 1½ years or one year.

In spite of all this suggestion that it is an interference with the sentence imposed by the judge and interference with the judicial process, what it does is simply decide at what stage in the sentence the individual should be released. This amendment involves no supervision complications at all, so the problems referred to by the Minister would not arise under this proposal. It is simply a question of release. The exception here—there were exceptions in the other amendment—is in the hands of the judge to say that the release should not apply to that particular case.

The exception here, as suggested in the amendment, is to exclude offences of violence as defined in the Bill in Clause 28(1)(6), the excluded offences. So quite a simple exclusion would meet what has hitherto always been raised as an objection to the halfway remission—that it would affect offences of serious violence, and so on. As offences of violence have, as far as I know, been defined for the first time in statute in this particular Bill in Clause 28(1)(b), this amendment affords an exception based on that clause. It would bring about less work for the Parole Board, because it would mean that a far larger number of people would be released at an earlier stage and the Parole Board would then be able to get on and spend more time and more effort on the more difficult cases and the longer sentences.

I do not know whether my noble friend Lord Harris can help on this, but one wonders how many offenders are released in the end before they have served half their sentences by the time the whole of the procedures have been gone through and they are eventually released on parole. One wonders whether a great many of them are released before they have served half their sentence.

Having regard to the lateness of the hour, I do not think that there is any more that I wish to add, although there are a number of other points which can be made to support this amendment. It is a very, very simple amendment. It avoids the complications of the other amendment and may in those circumstances commend itself to the Committee. The only point that I should like to make is that my noble friend Lord Harris said that he was against this proposal in the past because he felt that it would lead inevitably to the increase of sentences. When one comes to think of the marginal effect of the figures which I have given on the two-year or three-year sentence, I wonder—and perhaps he will think again—why any judge would wish to increase a sentence if he knew that the remission was going to be one-half rather than one-third. Judges know perfectly well that, when they sentence persons to terms of imprisonment, they are not, in any circumstances, to consider the question of remission one way or the other. That is their training. It would be no more difficult not to consider one-half remission than it would be not to consider one-third. I beg to move.

Lord Avebury

I should like to support this amendment, which has the merit of simplicity in comparison with Amendment No. 59, and enables us to calculate with a fair degree of certainty by how many thousand prisoners we would reduce the population of prisons in England and Wales. This calculation has been done by the noble Lord, Lord Elton, and he gave the results to the House on a previous occasion.

If I may just revert to the previous amendment for one second, not to delay the House but simply to accept the correction that the noble Lord, Lord Hunt, made, he pointed out that subsection (2) was counterbalanced by the number of cases which the Parole Board would no longer have to consider. But there is an additional complication in it, in that the Parole Board does not look at all at sentences which are less than two years or 18 months. So it is not possible to do a comparison as exactly as the noble Lord, Lord Hunt, indicated, because you would have to separate out all the sentences of less than three years into those which at present go before the Parole Board and those which do not.

Coming back to this amendment, one must agree with the noble Lord, Lord Hutchinson, that the courts would not take into consideration the increase in the remission from one-third to one-half any more than they did in Northern Ireland, as was pointed out earlier by the noble Earl, Lord Onslow. But if there was any danger that they might do so, then we should revert to the recommendations of the Advisory Council on the Penal System, which the noble Lord, Lord Elton, overlooks, though he prays that report in aid when it suits him to support the case for the partly suspended sentence.

When we persuaded the noble Lord to discuss this matter on a previous occasion, he said that the courts were already passing sentences that were so far short of the maximum that a reduction, such as was recommended by the ACPS, would have no effect. I beg the noble Lord to have a look again at the report of the ACPS and at the enormous reductions in the sentences which were proposed for certain classes of offence. As I say, in some cases it was down to 30 or 40 per cent. of the maximum provided at the moment, and I believe that this would have a good psychological effect on the courts, if they were disposed to increase the length of sentences as a result of the introduction of this proposal.

This proposal would create no additional burden whatsoever for the probation service and it would still allow for parole to be applied to one-sixth of the sentences, instead of one-third as at present. Within the prison system, from the correspondence that I have with people who are eligible for parole and who apply for it, I get the impression that the arbitrary and uncertain nature of the process is a source of enormous distress, both to prisoners and to their relatives. It should be said at this stage that parole has not been the outstanding success, when looked at from the applicants' point of view, that some criminologists and experts on the penal system may think it to be from the outside. People go through an enormous amount of mental agony in both formulating their applications for parole, and then, afterwards, in wondering why they have been unsuccessful. Of course, they never get at the factors which have caused them to be turned down, because in the very nature of the process they have to remain secret. This matter has been reviewed extensively both by the Home Office and by the Parole Board, and they came to the conclusion that it was not possible to give reasons why an application had been turned down, because as soon as you did that you would make the whole process subject to judicial review, and that was a can of worms which neither the Home Office nor the Parole Board wanted to open up.

Lord Elton

May I ask the noble Lord whether he is addressing himself to Amendment No. 61?—because the reasons for parole, which is what he is discussing at the moment, occur in a later amendment.

Lord Avebury

It is only relevant to this amendment because, as I said a moment ago—perhaps the noble Lord missed it—by passing this amendment we would reduce from the present one-third to one-sixth the proportion of the sentence which was susceptible to parole. I was indicating that from the point of view of the prisoners this might be a very important advantage, because so many of them who were unsuccessful in their applications for parole and could not see why this was so, would sooner that that affected a smaller proportion of the time they spent in prison. I think that this is a beneficial aspect of the proposals contained in this amendment.

I can tell the noble Lord, Lord Elton, if he needs reminding, though I am sure he does not, that many people emerge from the prison system with a bitter sense of grievance because they have been denied parole, over successive applications, three, four or five times and have not the faintest idea, at the end of it all, what has led to that refusal. Therefore, I see this as a major advantage of the proposal which is simple, which creates no additional public spending and which immediately successfully releases many thousands of people from the prison system which, as the noble Lord, Lord Harris, has pointed out, is in a desperate state of overcrowding. Despite the fact that the noble Lord, Lord Elton, was not receptive to this proposal when it was advanced on a previous occasion, he will have seen by now its enormous merits and will, I hope, feel able to accept the amendment.

Lord Monson

I am all in favour of harmonising Northern Irish practices with English, Scottish and Welsh practices in the matter of the remission of prison sentences, as in everything else. Any other course tends inexorably to lead to the weakening of the Union. But in this instance I suggest that it would be far better for Northern Ireland to move towards the position prevailing in Great Britain rather than the other way round.

The noble Lord who introduced the amendment said that he believed that the 50 per cent. remission system had worked perfectly well in Northern Ireland. It may have worked perfectly well in a technical sense, but it must be common knowledge that most people in Northern Ireland feel very strongly that to remit 50 per cent. of a sentence for a serious crime, particularly if it is a crime of violence, is quite unjustifiable and even, on occasion, outrageous, in that it tends to trivialise the crime and devalue the often appalling suffering of the victim. I believe that people in Great Britain would feel exactly the same way if a 50 per cent. remission policy were introduced here, certainly where cases of violence are concerned. Public opinion is important, I believe—not for party political reasons, but because it is important to foster the greatest possible respect for the law among the public at large.

Having said that, I take the point made by a number of noble Lords on the other side of the Committee about prison overcrowding. Should the noble Lord intend to withdraw his amendment—I do not know what he intends to do—I wonder whether he or his noble friend Lord Wigoder would consider that a compromise amendment at the next stage of the Bill might be more generally acceptable. The kind of compromise I have in mind would be the replacement of the words "one-half" by the words "two-fifths". Such a modest increase in remission from 33⅓ per cent. to 40 per cent. would be unlikely significantly to weaken the deterrent aspect of a custodial sentence, nor would it unduly offend public opinion. At the same time, it would allow a certain amount of steam to escape from the pressure cooker of prison overcrowding.

Lord Donaldson of Kingsbridge

I was the Minister in charge of penal affairs in Northern Ireland when this change was introduced. I can only tell the noble Lord, Lord Monson, that there was no outcry whatever from anybody. The Lord Chief Justice was a very strong character and a very brave man, and he thought that this was the right way to deal with the highest prison population per thousand in Europe. The matter had to be dealt with; it was dealt with and it has been entirely successful. Nothing else in Northern Ireland has been successful, I agree, but this particular move was entirely successful. Do not let it be belittled. The noble Lord may now reply.

Lord Monson

I wonder whether the noble Lord has read Northern Ireland newspapers recently, after people have been sentenced to a determinate sentence for a serious crime of violence? If he had, I believe he would get rather a different impression.

Lord Elton

There is one other thing that is successful in Northern Ireland, and that is the very elegant tree which was planted by the noble Lord, Lord Donaldson of Kingsbridge, in the gardens of Hillsborough, which caused me great jealousy because it grew unchecked, and I was never invited to plant one. I was about to launch into more serious matters but I believe that the noble Lords, Lord Melchett and Lord Harris of Greenwich, both want to say something, which I should perhaps hear before I launch into my own remarks.

11.51 p.m.

Lord Melchett

I first want to support what was said by the noble Lord, Lord Donaldson of Kings-bridge, about the practice in Northern Ireland. I was a Minister there for two and a half years after him and I never heard any serious complaints, in the local press or elsewhere, about the introduction of 50 per cent. remission in Northern Ireland, nor about its operation.

I would urge the Government to consider this seriously. In the context of the partially suspended sentence, they used the argument that here was something already enacted, and that a bird in the hand was worth two in the bush. I believe that was the metaphor which the noble Lord, Lord Elton, used on that occasion. Here is something that is not only in the hand but which has been well tried and tested in the United Kingdom, found to be successful and to have met a problem which, although very serious in Northern Ireland when it was introduced is, frankly, now operating in a prison system which does not face anything like the problems facing the prison system in this country. If the noble Lord is going to deploy arguments in one case, he must face up to them when they are against him in other cases.

A number of noble Lords have said at different times during this debate, and on Second Reading when we were discussing the problem of overcrowding in prisons, that we must be careful about interfering with the judiciary, or that we did not want to upset the judiciary. I said at Second Reading, and say again now, that I have no such inhibitions at all. It seems to me that the problems of overcrowding in prisons have been caused very largely by the sentences passed by judges in court.

The noble Lord, Lord Elton, gave us some interesting statistics about the reduction in the length of prison sentences in 1981; an average reduction of two weeks from magistrates' courts and a slightly larger reduction for Crown Courts. What he omitted to mention, and what I hope he will mention before we are finished this evening, are two further facts which one needs to have before one can make a judgment about the significance of the statistics he gave for the reduction in the average length of sentences.

First, there is the total number of people being sentenced to imprisonment or incarceration in one form of penal establishment or another. It is no good having the average length of sentence without knowing the numbers being sentenced. Secondly, there is the proportion of offenders being sentenced to imprisonment. As I said on Second Reading, although the noble Lord did not reply to it then (and I am afraid he has not taken it on board because he would not have given what seems to me to be a highly misleading and partial statistic without taking note of this point), the fact of the matter is that the courts are sentencing a higher proportion of offenders to prison now than they have been doing in recent years. That is the scandal of the behaviour of the courts, it seems to me, in contributing to the problem that we have of overcrowding.

The noble Lord might take a specific case. If the courts are using imprisonment as a penalty for less and less serious offences, as seems to be the case, then it is not surprising that the average length of prison sentences has gone down slightly. The fact that the average length of prison sentences has gone down slightly is an indication of a deplorable state of affairs and not of a good state of affairs, as the noble Lord tried to imply.

I very much agree with what the noble Lord, Lord Avebury, said. If there is any indication that a 50 per cent. remission is likely simply to lead to the courts imposing longer sentences, one needs to look very seriously at a reduction in the maximum available to the courts for a whole range of sentences. The fact of the matter is that we in this country imprison a higher proportion of people than do most European countries, indeed higher than most other countries in the world; we rank somewhere alongside South Africa in this particular league table, which is something of which all of us ought to be thoroughly ashamed. We also sentence people to much longer sentences than most other European countries. Again, that is something of which we ought to be thoroughly ashamed.

It seems to me that this amendment is one of the most effective we have had the opportunity of discussing during Committee stage in an effort to give an opportunity to put these matters right. As has been said, it has operated in Northern Ireland. If introduced on the present prison population, it is possible to work out how many people would be affected. I am sure that Lord Elton will say its effect is uncertain so far as sentencing practice in future is concerned, but, unless the Government are prepared to grasp that nettle and reduce the maximum penalties available for a whole range of sentences, I do not believe they ought to put it forward as a serious argument. Let us try this. It has worked elsewhere in the UK and, if it does not, we still have available the option of reducing maximum sentences. I very much hope that the Government will reconsider their previous attitude to this proposal and agree to its incorporation in the Bill.

Lord Harris of Greenwich

Having spoken in favour of the amendment moved by the noble Lord, Lord Hunt, I indicated that I was not prepared to agree to this particular amendment, and I want briefly to explain why. I have been in the position, when a Home Office Minister, of considering this with my right honourable friend on more than one occasion. We did what no doubt the present Government did in terms of the supervised early release scheme—consulted a large number of interested parties, magistrates, the judiciary and so on. We came to the conclusion that to introduce 50 per cent. remission in England and Wales would have the consequence of leading to an increase in periods of imprisonment. Clearly one cannot demonstrate that one is right or wrong, but nevertheless it was our judgment.

I would point out in addition that we are talking here not about a Northern Ireland system. What the amendment is doing in subsection (2) is specifically excluding certain types of case. We have to look at the first schedule to see a general description of offences which are excluded by Clause 28 of the Bill. They cover manslaughter, rape, kidnapping, all of which are self-evidently grave offences, riot and affray, which I think come into the same category, assault (of any description); I am not sure I agree with that as an exclusion. Here I am differing with the Government; I do not think it is sensible to make exclusions at all. It would be far better, if one is talking about emergency provisions to be introduced on the occasion of an imminent breakdown or an actual breakdown of the prison system, to make this provision apply to all offences in the last six months of the sentence.

I must put to the noble Lord, Lord Elton, and my noble friend Lord Hutchinson one of the problems which arises when one starts picking and choosing between offences. All assaults? Assaulting a police officer while he is on duty can sometimes be a significant thing, sometimes a heavy shove and no more. However, what is excluded from this is, for instance, involving oneself in trafficking in heroin. I find that a very unusual provision. What would be the position if this amendment were to be carried is that in certain cases which were not excluded your remission would be 50 per cent.; in all other cases you would continue to get only 33 per cent. remission.

I find it extremely difficult to see how one could justify a situation where we had as an excluded offence any offence of violence, but in fact we did not have as excluded offences some of the very serious conspiracies involving trafficking in heroin, cocaine and so on. I must say to the noble Lord the Parliamentary Under-Secretary, that this is a matter of substance. I hope that he will look at this particular matter with his right honourable friend. I am speaking for a number of my colleagues who have been involved in the consideration of matters of this kind in the past few years. If we are to have exclusions in any event, and I have already indicated that I am doubtful about the desirability of exclusions, I think it is necessary to look at this matter rather more carefully than I fear has been done on this occasion.

The problem, as I tried to indicate on the last amendment, is that we have to make up our minds which particular avenue we want to choose. Speaking for myself, I do not like the executive release scheme. I would far prefer to have the scheme of the kind proposed by my noble friend Lord Hunt. I have also indicated that I am not very attracted by this particular amendment. But I repeat the point that I made on the last occasion. I believe that something has got to be done. My own choice would be for the amendment of my noble friend Lord Hunt with one modification or another. I am not in favour of this because I fear that it would not have the effects intended and in any event I am extremely uncertain about the desirability of having 50 per cent. remission for certain categories of offences and 33 per cent. for others.

The noble Lord, Lord Avebury—with whom I have had, if I may say so, a long and agreeable series of correspondence over the last three years as Chairman of the Parole Board—pointed out the degree of uncertainty which is undoubtedly experienced by many offenders when they are coming up for parole review. He is entirely right; it is the price you pay for a parole system. I am bound to tell him that if we are to have within prison department establishments totally different levels of remission, I can think of nothing that is more likely to cause serious anxiety and anger among inmates, particularly when they come to the conclusion that the distinctions which are set out in Schedule 1 to the Bill are, in their view, arbitrary and capricious.

12.4 a.m

Lord Elystan-Morgan

Despite the lucidity and force with which the amendment was moved by the noble and learned Lord, Lord Hutchinson, we on these Benches would say that we regard this particular amendment as being unsatisfactory. Indeed, without going into the detail of our reasons, we accept broadly the reasons eloquently put forward by the noble Lord, Lord Harris of Greenwich, whose views I am sure the Committee greatly welcomes, particularly as Chairman of the Parole Board, although strictly speaking it may well be that he should not, in fact, be regarded as eligible to take part in these debates for another two days. I am sure—de minimis non curat lex—that his imminent retirement will be anticipated as far as the technicality of that situation is concerned.

The amendment is unsatisfactory not so much because it interferes with judicial discretion, but because it creates a system which inevitably would lack credibility. Wherever the discount comes to such a point as to leave the actual sentence served only a fraction of the totality, then the public will say that that sentence by no way means what it seems to mean. It is that lack of credibility, in my submission, which goes to the very root of its merits. It is, in my submission, far less satisfactory than the scheme under Amendment No. 29, which was a fairly comprehensive scheme of supervised release within a framework, albeit a limited framework, of judicial discretion. In my submission, it is, again, far less satisfactory than the scheme proposed under Amendment No. 65, which is to lower the threshold of parole so as to accommodate persons at as low a level as six months actually served in prison.

This is a running amnesty and I am afraid it has all the defects of such a system without the corresponding merits of the other systems. But, having said all that, if it be the case that partially suspended sentences under Section 47 of the Criminal Law Act 1977 do not succeed, then it will be necessary for the Government to consider this, too, as one of their options. Indeed, I think I put the matter in a neutral way if I say that it may well be that in a year or two's time the Government will come to the conclusion that the worst forebodings of those who see the possibility of the prison population being increased by many thousands by the implementation of Section 47 will not he borne out and that, on the other hand, the most optimistic hopes of those who would see the prison population diminished by many thousands, again, would not be borne out.

The situation then will be that the problem still remains with us—massive and menacing. All that will be necessary for chaos to reign within a few years' time will be for the Government of the day to do nothing. If the Government do not take the option under Clause 25 of reducing the threshold of parole, and if the Government do not reconsider the more comprehensive proposal under Clause 59, then less than satisfactory though this be, in my submission it is still one of the options that must be considered.

Lord Elton

Although I would not share all their grounds, I think that the noble Lord, Lord Harris, and the noble Lord, Lord Elystan-Morgan, have done a good deal of my work for me in analysing this amendment. However, perhaps I may start in Northern Ireland. I agree that one cannot accept arguments when they suit one and reject them when they do not. But to the noble Lord, Lord Melchett, 1 would say that one cannot transfer arguments of systems from one theatre or environment and expect them to operate equally in others. As he knows as well as I do, the situation in Northern Ireland is entirely different from that in this country and in particular the selection of individual prisoners for parole and the subsequent supervision of them is a matter of very much greater difficulty in Northern Ireland, or would be, than it is here. That is why there is a different system, and the early release there is, in fact, a part of that system and would not sit well with the one that we have here.

The noble Lord asked me the latest figures for the numbers of sentences and the proportion of offenders sentenced. The latest figures available are for 1980. Forty-three thousand offenders were sent to prison for indictable offences in 1980 compared with 39,300 in 1979. But the courts dealt with 10 per cent. more offenders in 1980 compared with 1979. So, as the noble Lord will readily see, the proportionate rate of imprisonment actually went down—only slightly it is true—from 9.5 per cent. to 9.4 per cent., but nevertheless down and not up, as he seemed to think was the case.

I should now like to turn to the principle embodied in the amendment. The noble Lord, Lord Hutchinson, knows that I regard our own choice as preferable to others, and he will not expect me to spend too long encouraging him to think that I would accept that rather than partly suspended sentences. The noble Lord, Lord Elystan-Morgan, thought that we might have them running together and held that as a threat over my head were we not to fall in with his views on parole. But that is another debate.

The proposal that the noble Lord, Lord Hutchinson of Lullington, has brought before us has, I suppose, the charm of simplicity but has also its weaknesses. To say that everybody—that is to say, everybody except those who have committed manslaughter, rape, kidnapping, assault of any description, riot or affray—should be released early is a sweeping change which must throw the doubt of the public upon the reality of sentencing as opposed to its appearance, and must tempt the judiciary and the magistracy to increase sentences so that they shall yield what they feel ought to be appropriate.

Noble Lords have mentioned the question of reducing maxima overall. I do not think that this is the appropriate moment to reply to that. We shall be dealing with the questions of giving reasons for parole—and I accept what the noble Lord, Lord Avebury, said about its relevance to this debate—at a later stage, and I think it is enough that I have shown to your Lordships why the Government regard this as having perhaps not the attractions but the weaknesses of simplicity—a description which I fear might often be applied to myself.

Lord Hutchinson of Lullington

So far as this debate has been concerned, the only thing which has not surprised me is that all those who have spoken from Northern Ireland have spoken in different voices, and the only voice we have not heard is that of the noble Earl, Lord Longford, who might have resolved all the differences.

Lord Melchett

The noble Lord says that those who have had experience in Northern Ireland spoke with different voices. I do not think that is entirely fair. Those ex-Ministers from Northern Ireland who have spoken, have spoken with one voice.

Lord Elton

I cannot accept that. The noble Lord should look at Dod's.

Lord Hutchinson of Lullington

One has always the same view put forward when it is suggested that this country might take some notice of what happens in other countries. One is always told that this country is unique, is exceptional, we can pass longer sentences here, we can send more people to prison here, and it is no good looking elsewhere to see what other people do. In fact, the 50 per cent. remission has applied in Northern Ireland, and I must say still to the end that I feel completely unrepentant about the suggestion that judges would in fact increase their sentences. Judges take no notice of remission. They are trained not to take any notice of remission. In fact the difference between 50 per cent. and 331 per cent. is simply marginal. To suggest that people, or judges, would consider it outrageous that only 50 per cent, of a sentence imposed would be served is using emotional language, because they could do exactly the same over only two-thirds being served.

Nevertheless, this amendment is clearly an option in circumstances of grave crisis. When faced with circumstances of grave crisis, it is incumbent, is it not? upon all of us in this Committee to see whether we can improve a Bill which deals with criminal justice and does not, on the face of it, have any clause within it which directly attack the only serious element of real, severe crisis affecting the criminal law, and that is the situation of over-crowding in the prisons. This was an option. No doubt this option is open to a good deal of criticism, but, in the same spirit that my noble friend Lord Hunt withdrew his amendment, I shall do the same in regard to my amendment, but certainly with the warning that at a later stage we shall come back to this matter, and no doubt will be able to take into account many of the views and arguments put forward on this amendment as well as on the last. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Denham

I wonder whether, with your Lordships' leave I may just ask the advice of your Lordships at this moment. I am in a slight difficulty in that the Government have to get their business through. In this Chamber we have no closure and no selection of amendments but we do always pay, and have traditionally always paid, a price for this, which is to exercise a self-denying ordinance and not to take too long over what we have got to do or to fit what we have to do in the time that there is to do it in. If I were to suggest that your Lordships should rise now—which I cannot help feeling would be the general feeling in the Chamber—

Several noble Lords

Hear, hear!

Lord Denham

I must say that we have only Thursday and Friday left in order to get the Committee stage of this Bill completed. The difficulty is this: if we sit too late on a Thursday, the Friday sitting becomes technically impossible from the point of view of the running of the House. Therefore, if we were to rise now we shall be faced on Thursday with the position that at a certain stage—let us say 9.30—we shall have to take a view as to whether we sit on until we finish or whether we can in fact finish on the Friday. So it is strictly limited. This is really the last open-ended Committee stage. I do not know what other noble Lords may think. Perhaps the House might rise now, but if so, we would virtually be giving a commitment to getting the Bill through on Thursday or, if necessary, on Friday.

Lord Harris of Greenwich

I very much hope that your Lordships will accept the Motion—as I assume it is—that the House be resumed. If the noble Lord is hesitant about it, I will gladly move it. I think it is in fact wholly unreasonable for the House to he asked to sit any longer tonight. The noble Lord, Lord Denham, points out that the Government must get their business through. Indeed they must, but the noble Lord decided that the House would not sit last Friday. When he could perfectly easily have brought the House here he did not do so. In my view, it is quite inappropriate for him to come here now and speak in the terms he has just done. Of course, it is right that the House should exercise restraint, given the fact that we do not use the closure process, as does another place. But I must say I have never heard such a discussion in this Chamber on a Criminal Justice Bill or any similar measure.

No doubt the last Administration made many grievous errors, but certainly measures of this kind were discussed in the same non-partisan manner as has been present in our councils today; and for the Government Chief Whip to imply that a number of people who have serious points to make on major changes in the criminal law of this country should remain silent is, in my view, pushing his argument to the very extreme.

It seems to me perfectly reasonable for your Lordships to rise now. I must point out to him that I can think of no recent occasion when on the first day of a national railway dispute, when there is no form of public transport in Greater London of any kind, this House has sat until this hour without any reasonable notice having been given in advance that this would happen. Therefore, in the absence of the noble Lord moving a Motion, I should like to move that this House do now resume.

Moved, That the House do now resume.—(Lord Harris of Greenwich.)

Lord Mottistone

I do not agree at all with the noble Lord, I am afraid. First, he attaches great importance to this Bill and we know his great experience in this line. I, too, when debating other measures—

Lord Melchett

If I may interrupt the noble Lord—

Lord Mottistone

No, I do not want to be interrupted.

Lord Melchett

The Motion has not been put.

Lord Mottistone

1 hope not.

The Deputy Chairman of Committees (Earl Cathcart)

The Question is, That the House be now resumed.

Lord Mottistone

I had hoped that we had not reached that stage. I do not agree to that Motion. This is an important Bill for the noble Lord, Lord Harris. I, too, have had the experience of having to sit late or at inconvenient times in order to debate what I have considered to be an important amendment. It happens to us all, and it is bad luck when it happens that way. I suggest that, no doubt naturally, noble Lords have been speaking for much longer than they need have done on many of the amendments today in order to put their various points. I would have said that the whole point on each of them has been quite obvious, and therefore the debates on each of the amendments have been much too long. We are in a difficult position. It is unfortunate we have got into that position, but I should have thought it was most unpalatable for us to feel that we may have to sit relatively late on Friday as a consequence, so I suggest we grit out teeth and continue. Accordingly, I hope your Lordships will not agree to the Motion.

The Earl of Longford

I think the Government Chief Whip, in making the recommendation he has, is trying to act in the interests of the Committee. It would certainly be in my interests, for what they are worth. The thought of making my maiden speech in the Committee at 12.20 is not an exhilarating prospect for me, so from a selfish point of view I hope we may reach a decision.

Baroness Birk

I wish we could make up our minds on what we are doing. We have spent a lot of time considering that matter. We could either have been discussing the amendments on parole or be going home. If we are just going to have a debate on the debate, we might as well pack up.

Lord Denham

It may seem unreasonable to ask the Committee to discuss these matters at 12.20, but would it not be that much more unreasonable if the debate goes on for the same length of time on Thursday, going on very much later? However, there is probably not a lot of use in considering this much further, and therefore I accept the suggestion of the noble Lord, Lord Melchett.

Lord Melchett

It was not my suggestion.

Lord Denham

Was it not?

Lord Melchett

The noble Lord, Lord Harris, moved the Motion.

Lord Denham

I think, if I may say so, that it is rather unusual—unless the noble Lord, Lord Harris, speaks for his party—for this to happen. But if the Committee feels that now is the time that we should usefully finish the discussion, then perhaps that is right. Does the acting Opposition Chief Whip have anything to say on the subject?

Lord Ponsonby of Shulbrede

I think noble Lords are seized of the need for us to complete the Bill either on Thursday, or on Thursday and Friday. I think noble Lords present accept that point of view put forward by the Chief Whip, and in the circumstances it would be right that the House should now be resumed.

On Question, Motion agreed to.

House resumed.