HL Deb 23 April 1991 vol 528 cc162-214

4.36 p.m.

House again in Committee.

Clause 54 agreed to.

Earl Ferrers moved Amendment No. 95B: After Clause 54, insert the following new clause:

Non-appearance of persons aged 16 or 17: plea of guilty

(". In section 12 of the 1980 Act (non-appearance of accused: plea of guilty), after subsection (1) there shall be inserted the following subsection— (1A) The reference in subsection (1) above to the issue of a summons requiring a person to appear before a magistrates' court other than a youth court includes a reference to the issue of a summons requiring a person who has attained the age of 16 at the time when it is issued to appear before a youth court."").

The noble Earl said: I beg to move Amendment No. 95B.

It is the practice at an adult's magistrates' court to deal with offenders who have committed minor offences—usually traffic offences—and who plead guilty to those offences without the offender actually being required to appear at court. This power is conferred by Section 12 of the Magistrates' Courts Act 1980. It saves the courts valuable time and avoids the inconvenience for the offender of having to take time off work or to arrange for children to be looked after so that he or she can appear in court. At present, 17 year-olds can be dealt with in this way by an adult's magistrates' court. However, under the Bill provisions 17 year-olds will in future be dealt with in a youth court. I am sure that the Committee would agree with me that it would be undesirable to clog up the business of the youth courts by requiring 17 year-olds who commit minor traffic offences to appear before the court in every case whether or not they are pleading guilty to the offence.

The proposed amendment therefore extends the powers in Section 12 of the 1980 Act to the new youth courts. The amendment extends the power to cover both 16 and 17 year-olds in line with the general approach promoted in the Bill to treat 16 and 17 year-olds as a distinct group for sentencing purposes.

Baroness Phillips

I should like to ask the Minister what is meant by a minor traffic offence? Does it mean taking and stealing a car?

Earl Ferrers

Minor traffic offences are such offences as exceeding the speed limit or something of that nature, not offences of theft.

Baroness Phillips

In which case, this would not apply.

On Question, amendment agreed to.

Schedule 7 [Amendments for treating persons aged 17 as young persons]:

Earl Ferrers moved Amendments Nos. 95BA, 95BB and 95BC: Page 81, line 34, leave out ("After subsection (8) of section 23 of the 1969 Act") and insert ("Section 29 of the 1969 Act shall be renumbered as subsection (1) of that section and after that provision as so renumbered"). Page 81, line 36, leave out ("and section 29 of this Act"). Page 82, line 17, leave out ("37(1)") and insert ("38").

The noble Earl said: These amendments are linked with Amendment No. 94B. I beg to move.

On Question, amendments agreed to.

Schedule 7, as amended, agreed to.

Clause 55 agreed to.

Lord Elton moved Amendment No. 95C: After Clause 55, insert the following new clause:

("Accomodation of arrested juveniles

.—(1) Section 38 of the Police and Criminal Evidence Act 1984 shall be amended as follows.

(2) For subsection (6) there shall be substituted— (6) Where a custody officer has authorised an arrested juvenile to be kept in police detention under subsection (1) above the custody officer shall

  1. (a) forthwith inform the relevant local authority of his decision and his reasons for refusing to release him with or without bail conditions and request that authority to move the juvenile into local authority accommodation; and
  2. (b) record those reasons and his contact with that authority."

(3) For subsection (6A) there shall be substituted— (6A) Where a relevant local authority receives a request under the provisions of subsection (6) of this section it shall either

  1. (a) make arrangements to receive the juvenile into suitable accommodation; or
  2. (b) refuse it and inform the custody officer that it has decided to do so on one or more of the grounds in subsection (6B) of this section; and
  3. (c) within 24 hours certify that ground or those grounds to the court at which the juvenile is due to appear.
(6AA) The grounds referred to in subsection (6AA) of the section are
  1. (a) that no suitable accommodation was available; and
  2. (b) that it was unable to make suitable arrangements for the conveyance of the juvenile to the accommodation; and
  3. (c) that it was unable to make suitable arrangements for the production of the juvenile to the next sitting of the Youth Court for the area in which the police station at which the juvenile was detained is situated;
and in considering these grounds the authority shall have regard inter alia to the safety and welfare of the juvenile and of other persons and to its duties under sections 22 and 25 of the Children Act 1989. (6AB) When an authority takes a juvenile into care under subsection (6A) (a) of this section the custody officer shall furnish it forthwith with a copy of the record referred to in subsection (6) of this section. (6AC) When a juvenile is in the care of a local authority under the provisions of this section it shall be lawful for any person appointed to act on behalf of that authority to detain him.".

(4) For subsection 7 there shall be substituted— (7) When a juvenile who has been detained in police custody is first produced to a court thereafter the officer or authority producing him shall also produce to the court

  1. (a) in all cases, a copy of the record referred to in subsection (6) of this section; and
  2. (b) in the case of a juvenile who has not been taken into care by the relevant local authority, a copy of the certificate provided by that authority under subsection (6A) (c) of this section.".

(5) At the end there shall be inserted the following new subsection— () The accommodation referred to in subsections (6) and (6A) of this section is accommodation provided by or on behalf of a local authority within the meaning of the Children Act 1989)."").

The noble Lord said: This amendment is no doubt as riddled with error as any other amendment not drawn up by the government draftsman, but I believe that it has a clear intention to which I should like to draw the attention of the Committee and the Government.

The purpose is to insert a new clause which will amend Section 38 of the Police and Criminal Evidence Act 1984. I should remind the Committee that that section specifies that, where a person arrested for an offence otherwise than under a warrant endorsed for bail is charged with an offence, the custody officer shall order his release from police detention, either on bail or without bail except under certain conditions. Where those conditions apply, the section provides for that person to be held in police custody unless he is a juvenile. If he is a juvenile, subsection (6) applies. That states: Where a custody officer authorises an arrested juvenile to be kept in police detention under subsection (1) above, the custody officer shall, unless he certifies that it is impracticable"— that is the important word— to do so, make arrangements for the arrested juvenile to be taken into the care of a local authority and detained by the authority; and it shall be lawful to detain him in pursuance of the arrangements". The intention of your Lordships when you agreed to those words being in the statute was carefully considered and clearly stated. It was agreed in Committee that the intention was to secure that, except under very unusual circumstances, all arrested juveniles who were not released by the police should be passed by them to the local authority. I had charge of the Bill in the Chamber at the time and that is why I particularly draw the Committee's attention to the matter. The consensus on the matter was so complete that I hardly need spend time convincing the Committee again that it is not a good thing for children of 16, or even 13 and 14, to be locked up in police cells, whether on their own or in company of any kind, overnight.

It is not in question that that does happen. Papers received from the Association for Juvenile Justice relate to cases considered in just two London boroughs over a period of six months in 1989. They show that a juvenile of 15 was held in cells by the police overnight on Sunday 15th February and bailed under SSD supervision on Monday. A juvenile of 16 and one of 14 were similarly held on 8th June. They were conditionally bailed on 9th June. A mere child of 13 was held in the same way on 20th June and remanded into care in a local authority open unit on the 21st. On 10th July, a further 16 year-old was similarly held. He was bailed on conditions under SSD supervision.

In each of those cases, the juvenile was detained by the police overnight in the face of strenuous representations form the local authority that he should be released into its care. In every one of them, the court ordered that release the very next day. That is only a selection of the best documented cases in a small pert of London for a short time. It shows that nationally there is a considerable departure from what I believe we are still agreed should happen.

I can best show how real that agreement was when we framed the law, and how specific were both the concerns and intentions of noble Lords, by reminding the Committee of what happened when we returned to the matter on Report. That was on 26th July 1984. I quote from col. 447 of Hansard in which the noble Baroness, Lady Macleod of Borve, said: My Lords, Section 37(7)"— as it then was— is mentioned in this amendment, where the word 'impracticable' is used. My noble friend Lady Faithfull has asked me to ask my noble friend whether or not these words are too wide. Will a juvenile be able to be held in custody instead of being put into the care of the social services—which I know everybody wishes to happen, including the Government—if no place can be found for that juvenile? On behalf of my noble friend, may I ask for elucidation of that word? The important word is "impracticable". I replied: On my noble friend's behalf, may I assure my noble friend … that the intention is simply to provide against rare occurrences. It may happen, for instance, that all the social workers in a particular local authority area are on strike and refusing to accept people—or there may be a blizzard, or something of that nature. It is not a device to slide out of the commitment which we have already given".—[Official Report, 26/7/84; col. 447-8.] That is a clear indication of what was intended when those words were put on the statute book and it remained the Government's intention when they implemented the Act.

It was certainly still the Government's intention in 1988 because in February of that year the DHSS wrote to the Children's Legal Centre saying in part that, although the department could not give a definitive view of the law: we consider that the circumstances that might make it impracticable for a detained juvenile to be transferred to local authority care … might include, for instance, very bad weather, a strike by social workers, or simply the detention of a juvenile very late at night when it might not be possible to make arrangements … We do not think that the lack of secure accommodation would constitute grounds for deciding that it was 'impracticable' to transfer a juvenile to local authority care". The letter goes on to discuss questions of the need for secure accommodation which I think I have already sufficiently addressed.

Both Parliament and government therefore intended that the police should normally hand such juveniles over to the local authority and, as was made clear in DHSS circular LAC (85)18, that it was not for them but for the local authority to judge the fitness or otherwise of the accommodation used for that purpose. That is what happened routinely in some police forces such as Northamptonshire; but elsewhere, as both NACRO and the Association for Juvenile Justice have made clear to me, it did not.

The difference in practice between police forces is odd and appears to result from differences in the legal advice that they have received. I am assured that the West Midlands police force took counsel's opinion and was advised that young people who were arrested and not released from police custody must be transferred to the local authority unless that was impracticable. The expression "impracticability" did not include circumstances in which the local authority refused to lock up the young person in secure accommodation. However, the advice received by Cambridgeshire police appears to have been different. I am advised that the police there always took the view that it was for the custody officer to decide whether it was practicable for the arrested juvenile to be taken into local authority care and that it requested secure accommodation as a matter of routine. I could quote a letter giving the Metropolitan Police Solicitor's Department's opinion, written in May 1989, but it comes to the same conclusion.

Eventually, there was a test case—Regina v. the Chief Constable of Cambridgeshire, ex parte Michel, reported in The Times of 27th April 1990. The judgment in that case supported the view that in such cases: the custody officer becomes responsible for all necessary administrative arrangements". That is contrary both to the intention of the House and of Her Majesty's Government in 1984 and to the view expressed by the Government in 1988. It is also contrary to good practice.

That judgment has given the police licence—almost a duty—to refuse to move juveniles over to local authorities because the police do not think that the accommodation that the local authority proposes to use is suitable. That is the reverse of what we intended when we enacted the Police and Criminal Evidence Bill. Many noble Lords involved in that debate are here now. It is for the courts to interpret what we said, but it is for us to state what we meant. That is what I am doing now.

A change in the law is needed to remedy the situation which would remove the discretion given to the custody officer by the interpretation that I have just quoted and would restore the duty that we originally intended to impose on him. There must be some discretion, as we have always said. It should be exercised explicitly and under the supervision of the courts.

For that purpose I have proposed an amendment which I have told my noble friend does not claim to be perfect but which clearly illustrates a scheme that would have that effect. It would require the custody officer to continue as at present to record his decision to refuse to release the juvenile and the reasons for it. It would also require him, as at present, to inform the local authority of that decision and to include details of that contact on his record. A duty would then lie on the local authority either to receive the juvenile into suitable accommodation—and it is left to the authority to decide what is suitable—or to certify that a custody officer was unable to do so on one or other of the grounds available to him which are listed in subsection (6AA), not (6A), as I regret to see printed on the Marshalled List. I shall return briefly to those grounds in a moment.

The custody officer's records in every case would be produced for the juvenile at his first court appearance. Where he had spent the night in the cells, the local authority certificate would also be produced. The court would therefore be aware of every decision in the process and of the reasons for it and thus be able quickly to obtain an overview of the practice in its area. Some Members of the Committee might be content with that; others might prefer the court to have some means of exerting pressure if the practice did not meet the explicit intention of the legislation.

I promised to refer to the grounds. I shall refer only to one. The first ground under subsection (6AA) (a) is that the local authority has no suitable accommodation available. I suspect that my noble friend will be tempted to say that the amendment is not acceptable because it places on local authorities a duty that they will not be able to discharge for lack of resources in the form of secure accommodation. It does not. It merely requires them in those circumstances to record the fact and inform the police and courts of it.

I should have thought that social security departments would welcome the opportunity to demonstrate where their resources are not adequate to meet the demands properly made upon them. I hope that the Government will acknowledge the wrong that at present is being done to many children and will undertake to remedy it, if not in this way then in some other way. I beg to move.

Baroness Faithfull

I rise to support my noble friend Lord Elton. I was involved in this matter at the last stage. I absolutely agree with everything that he said. However, there is some difficulty. We discussed this matter at an earlier stage when, speaking to another amendment, I said that the Association of Directors of Social Services agreed with him. They do not like children staying in police cells or going to prison, but they do not have the resources to build or provide secure accommodation.

That leads us to the word "impracticable". As my noble friend said, one ground under subsection (6AA) (a) is that no suitable accommodation is available. When a child has to be taken into care or housed in the middle of the night, should there be secure accommodation within, say, five miles, it is practicable to take that child there. On the other hand, if there is suitable accommodation but it is 200 miles away, it is impracticable to want to take the child to that accommodation. One comes back to the question of resources. The Association of Directors of Social Services wishes me to say that local authorities want to deal with these children. They want to keep them out of prison and out of cells but they do not have the resources to do so at the moment.

I am sorry that the Committee did not debate the amendment on the Marshalled List which was tabled by the noble Lord, Lord Henderson. If we were able to caution much more widely, there would not be so much difficulty over this question of where one is to house children because many of them could be cautioned. I should be grateful for further elucidation on the word "impracticable".

Lord Elton

We are in Committee and I trust that I may rise briefly to speak to that point. I hope that my noble friend listened carefully to what I said and will read it again before she corresponds with the association of social work directors. There are two things to bear in mind. Every single case that I quoted and a whole clutch more that I have in my file are cases in which the local authority asked to take the child. One of them threatened to use habeas corpus to get the child and was denied by the police because, contrary to the view of the social work department, the police thought that the child ought to be in secure accommodation.

Secondly, as I have already said, if the social services do not have the facilities, now is the opportunity to record the fact publicly before the courts and substantiate their claim. Maybe it will have something to say to those in command of the resources about the way in which in future they should be spent.

Lord Richard

I rise briefly to support this amendment. I am bound to say that the noble Lord, Lord Elton, made a strong and persuasive case. I was not aware of the precise terms of the debate that took place in this Chamber in 1984 when the Police and Criminal Evidence Act was passed. But that clearly emphasises the intention of Parliament at the time that that legislation was passed.

There is clearly agreement here on a point that needs to be looked at seriously. I am a trifle disappointed that the amendment does not go so far as to try to place an obligation on local authorities to provide the necessary secure accommodation so that young people could be released into it straight away. However, I heard what the noble Lord said. I understand the reasons for what he said and the way in which he has put forward the amendment.

At least if the amendment is passed there is a clear obligation on the custody officer and indeed the local authority to make it perfectly clear that the juvenile is still in police custody in the cells, first, because the local authority does not have secure accommodation and, secondly, because the custody officer asked the local authority whether there was accommodation and received a negative answer. In effect there are two obligations under this amendment put on, first, the custody officer to request and, secondly, the local authority to consider. There is then a third obligation which is to record.

This amendment seems very sensible to me. if the Minister cannot accept it in this precise form, I hope that he will at least accept the argument and its thrust. I find it difficult to imagine a contrary argument but no doubt the Minister will tell us.

Lord Hutchinson of Lullington

I should like to add that it seems to me quite inconceivable that vulnerable young people should be banged up in adult cells in police stations. It is almost incredible that such a practice still goes on. Also, the present situation gives rise to malpractices. As an example, I know of one case in which the police entered a house and found stolen property. They arrested the mother, father and child believing that it was the child who was bringing in the stolen property. They locked up all three in different cells and kept the child and the parents there overnight. They exerted pressure on the child to make a confession because the child had come to realise that it was through his behaviour that his parents were locked up in cells next door, making a great deal of noise and protest about it. That is malpractice. I have seen such things happen. It is about time that that practice was stopped and that in this year of grace young people were never on any occasion kept in adult cells in police stations.

Baroness Macleod of Borve

As the noble Lord referred to me I should like to add a few words. Different areas in this country have varying facilities. By no means are all the facilities that we believe right and proper able to be provided by every local authority. I hope therefore that, whatever is decided as a result of the noble Lord's amendment, there will be flexibility. I know that there is flexibility now. However, if a child were to commit an offence very late on Sunday night, it would be very difficult to get the local authority to take him into care and look after him. The police might prefer to look after him. That is not the answer, as we all know.

I hope that the t's and i's are not crossed and dotted to such an extent that the police might have to put the child almost out into the street or send him to a home that would be completely unsuitable. I ask the Minister to help us by perhaps not drafting this part of the Bill too rigidly.

5 p.m.

Earl Ferrers

I have a great deal of sympathy with the purpose underlying my noble friend's amendment. It is after all designed to protect the interests of young people who have been arrested by the police. That is a matter about which we are all concerned, not because we do not have confidence in the police to treat young people fairly, properly and with due regard to their health, but simply because the young people themselves will be undergoing a profound and possibly unnerving experience by the mere fact of having been arrested and detained by the police. The noble Lord, Lord Hutchinson, said that it is inconceivable for young people to be banged up—as I think he described it—in adult cells in this year of grace. That is a sentiment with which I believe we can all agree. However, there are circumstances which do not help to meet the aims of that sentiment. I agree with my noble friend Lady Macleod that we have to be careful not to make the rules so rigid that they do not cater for some of the special cases.

It was not clear whether the police had power to hold arrested juveniles if they thought that the local authority's proposed arrangements for accommodation were inadequate. Principally that was in terms of security. My noble friend Lord Elton referred to the judgment which was given in the case of Regina v. Chief Constable of Cambridgeshire ex parte Michel. The judgment is detailed. I do not wish to summarise it. However, in essence it means that the police themselves have power to hold arrested juveniles if they consider that the local authority accommodation is insufficiently secure.

Perhaps I may quote what I regard as a key passage from the judgment. It states: We have no reason to doubt that in practice both local authorities and police officers do their utmost to ensure that this particular object is achieved"— the objective being to enable the juvenile to be accommodated outside the police station. The judgment continues: If, however, the only accommodation apparently available for the detention of the juvenile will be insufficient to avoid the very consequences which led to the original decision to refuse bail, the custody officer is, in our own judgment, entitled to reach the conclusion that proper arrangements for the care and detention of the juvenile by the local authority outside the police station are impracticable". With the greatest respect to the learned judge, I find that a very wise statement. It is wise because it recognises that both the local authorities and the police will do—as they do at present—all they can to look after the interests of the young people. I am sure that is right. Where children are concerned, both these public authorities carry out their functions with sensitivity, compassion and understanding for the young people's needs and wishes. But the judge's wishes were also wise in recognising the overriding factor; that is, the need to have regard to the legitimate call of the public to be protected from offending. There are very difficult decisions to make, especially where young people are concerned. We all look to the police to protect us from crime and to make these decisions on our behalf. They carry the full burden of responsibility if things go wrong. The Government believe that it is right they should have the powers that they need, to be exercised with sensitivity and compassion, in order to make these difficult decisions.

The amendment would in effect shift responsibility for making this decision from the police to the local authority. We believe that it would be wrong to impose on the local authority the heavy responsibility for making these decisions about the need to protect the public before the case has come to court. When it has come to court, the court itself will be able to make the decision. In the interim the responsibility lies, and rightly so, on the police.

It is for that reason that I find difficulty in accepting my noble friend's amendment.

Lord Donaldson of Kingsbridge

Before the noble Lord sits down, does he agree with me that it is not a difficult problem. It is a question of money. My county council in East Sussex has a small and, I think, effective security accommodation in Hailsham which costs it £200 a night to maintain. That is a considerable sum per year. Does the noble Lord know—and if not can he find out and let the Committee know—how many local authorities have places of secure accommodation and the number that each has. I believe that there are a number of local authorities who have none. Such accommodation is, of course, expensive. The issue is one of money and virtually nothing else.

Baroness Faithfull

I am sorry to come back on this issue. If there is to be flexibility, to which my noble friend Lady Macleod referred, and if there is to be a loophole we shall never get children out of penal institutions. At one time I was in great difficulties because our remand home had no accommodation for a child late at night. I was determined that that child should not go into a prison cell. We managed to foster the child with the wife of a police officer.

There are ways of finding other accommodation for children. Until we were able to build new, secure accommodation we found foster homes for the children with the wives of the police. Nothing could have been better. If we do not take a firm line on this matter, such action will not be taken because there will always be the excuse about resources. I strongly support my noble friend Lord Elton on this matter.

Lord Richard

Will the Minister help me with this difficulty? There is a clear division of view as to the situation between what the Court of Appeal said in the case of Michel and what the Department of Health and Social Security said.

In the Court of Appeal, the President, Lord Justice Watkins, said: The essential impact of Section 38 in the case of both adults and juveniles is on the critical decision whether the arrested person is to be kept in police detention. Once that decision has been made the custody officer becomes responsible for all necessary administrative arrangements". In effect, the judgment of the Court of Appeal gives custody officers a licence to refuse to move juveniles to local authority accommodation because in their view it is not what the custody officers consider to be secure accommodation.

The noble Lord, Lord Elton, quoted a letter written by the Department of Health and Social Security in February 1988. It states: Although the department could not give a definitive view of the law —of course it cannot— we consider that the circumstances that might make it impracticable —there is that magic word again— for a detained juvenile to be transferred to local authority care … might include, for instance, very bad weather, a strike by social workers, or simply the detention of a juvenile very late at night —that deals with the point raised by the noble Baroness, Lady Macleod— when it might not be possible to make arrangements to transfer the juvenile". The letter continues: We do not think that the lack of secure accommodation would constitute grounds for deciding that it was 'impracticable' to transfer a juvenile to local authority care". There is a clear division. What are we to make of that? The Court of Appeal may be declaratory of what the law apparently is, that is indeed its clear function. On the other hand, it is clearly not declaratory of what this House intended and what the DHSS clearly understood the law to be. It is a state of confusion. For the Minister to say that on the whole he is satisfied with the present situation I find disappointing and surprising. He really ought to consider the matter again.

Lord Hylton

Before the noble Lord, Lord Elton, makes up his mind what to do about the amendment, perhaps I may say this. The noble Baroness, Lady Faithfull, has quoted examples where the wife of a policeman was thought to be a suitable person to take charge of a juvenile overnight. If that happens, there must surely be plenty of other individual householders in the country—responsible people who probably live near police stations—who could do the job just as well. I therefore believe that local authority resources and secure places are not the overriding considerations but how much trouble we are prepared to take to solve the problem.

Lord Hunt

I apologise to the Committee for being absent from the Chamber when the noble Lord, Lord Elton, moved his amendment. Perhaps the noble Lord answered my question in his introduction. I wish to refer to what was said by my noble friend Lord Donaldson and to remind the Minister of the continuing lack of sufficient secure accommodation throughout the country. That has been the case for about 20 years. One reason why local authorities have been laggardly in supplying such accommodation is the continuing flexibility in allowing the police to lock up juveniles in their cells. So long as that happens, there will continue to be laxity on the part of local authorities in providing secure accommodation. I am not in favour of continuing flexibility.

Lord Knights

I had not intended to speak. However, my memory indicates that for many years police officers have been trained not to put juveniles into police cells. That is not to say that on occasions circumstances may be such that there is no other available accommodation. However, for many years it was the intention that juveniles should not be brought into contact with adult prisoners and should be kept in remand accommodation, secure rooms and the like rather than in police cells.

In general it is not police practice to put juveniles into police cells. It is always the hope that there is alternative accommodation within the police station if bail is refused and if the local authority does not have secure accommodation. We must face the fact that not all local authorities have secure accommodation. Many rural areas may never be able to provide it in sufficient quantity or in proper locations in order to cater for all circumstances. It would be impossible for local authorities covering the rural areas in Lincolnshire, for example, to have available secure accommodation immediately to accommodate any juvenile who had been arrested—

Lord Elton

The amendment specifically allows for that circumstance. It invites a local authority to plead inability on those grounds.

Lord Knights

I accept that point; indeed, I had decided not to speak because the amendment refers to "suitable accommodation". However, the thrust of the debate has gone beyond that and has tried to create a situation in which there is no possibility of a juvenile being kept overnight in police cells or police accommodation. That intention can only cause considerable difficulties. If the provision remains as presented by the noble Lord, Lord Elton, it will cover probably 99 per cent. of cases.

5.15 p.m.

Lord Elton

While my noble friend is reflecting on the points that have been made and the answers that he should give, perhaps I may draw together the threads of the argument. The noble Lord, Lord Richard, referred to the case of Regina v. Chief Constable of Cambridgeshire, ex parte Michel and repeated my statement that it was the court saying what we had said. That is not what we meant to say; that is on the record. At the time I was the Government's spokesman and the case was reiterated in circulars after I left the Government. That being so, the question is whether it should be left to the courts to tell us what we ought to have meant, as my noble friend would urge, or whether we should consider what we ought to have meant. I feel strongly that it is the latter case but this is no time to open a debate on the issue. I hope that my noble friend will be prepared for Members to discuss the matter on Report if necessary.

It might be helpful to the Committee if I outline the effect of the Cambridge judgment showing what happened in London in 1989. I shall not specify the case, the individuals or the police station. It was then believed that matters were as the court has now declared that they are. On 20th June 1989, A, aged 13 years, was arrested by the police for matters relating to criminal damage and burglary. Following discussions between staff of the social work department and police officers a solicitor of the borough spoke by telephone with Superintendent X and informed him that A was 13 years of age and that a writ of habeas corpus would be sought unless the boy was released. Members of the Committee will understand that by then things had got rather hot. It was also made clear that the local authority was of the view that the use of secure accommodation in respect of A was inappropriate. However, Superintendent X was insistent that the boy would be detained in police custody unless a secure care place was made available.

In the event, an application for a writ was not made that night. Following production at the magistrates' court the next morning, the boy was remanded into the care of the local authority and placed in an open regional remand and assessment unit in west London. That was precisely what the authority was arguing was appropriate, and the court agreed.

I am not attacking the police for whom I have the highest regard. I admire the way in which they cope in difficult conditions, in difficult areas and in cramped quarters. However, I wish to remove from the police a judgment that Parliament and the Government have said should be remitted to somebody else. I wish to give those people any reasonable grounds for saying that it would be inappropriate or impractical to make a transfer. I point my noble friends Lord Ferrers and Lady Macleod to subsection (6AA) of my new clause. It does not give an exclusive list of grounds; it is the list that I had in mind when I drafted the amendment late one night. There may be other grounds. I should be happy for the Government to take away the amendment, unscramble it and do something different providing that it achieves for juveniles in police cells exactly what my noble friend sought to do for the same children and young people in his Amendment No. 94B. The issue is the same: in that respect my noble friend is on my side. I ask him to persuade his officials to join him on my side.

Earl Ferrers

My noble friend has made two powerful speeches; he has asked me to take the amendment away and look at it. How can I do anything other than that? Of course I shall do so. However, we must remember that there are two points at issue. The first is the protection of the children. No one wishes to see children locked up in police cells. The second is the protection of the public. One can achieve that by ensuring that the actions of children who in certain cases have misbehaved appallingly will not be visited upon them again. My noble friend spoke of a 13 year-old boy who had caused criminal damage.

I was glad to hear the noble Lord, Lord Knights, with all the authority of an ex-chief constable, say that the police never put children into cells if they can avoid doing so. I once met a chief constable who, as do many people, expressed anxiety about the rate of crime. He said, "What can I do? I take young offenders to local authority accommodation and leave them. They go in through the front door and straight out the back. By the time my officers have returned to the police station the offenders have committed another crime". Therefore such accommodation is not sufficiently secure to detain a person and prevent him committing another crime. That is the problem. The noble Lord, Lord Donaldson, said that it is merely a question of money and the noble Lord, Lord Hylton, said that it is not. There is disagreement. However, if there were limitless money, there would be plenty of secure units but money is not everything.

The noble Lord, Lord Hunt, referred also to the lack of secure accommodation. It is up to a local authority to decide whether or not to build such accommodation. The Government cannot compel local authorities. Under the Bill the Government will be able to require local authorities to provide accommodation for remanded juveniles but they cannot compel local authorities to provide places. If the local authority wishes to do so, then it receives a 100 per cent. grant.

The noble Lord, Lord Donaldson of Kingsbridge, asked about the number of places. I cannot tell him how many places there are in each county. To attempt to answer that question would detain Members of the Committee for about 15 minutes. However, I can say that there are about 300 places nationwide which are available to any local authority.

The noble Lord, Lord Richard, referred to the Department of Health's view. Of course, the officials of the Department of Health are very eminent. But the noble Lord contrasted the view of learned judges. Of course, the view of learned judges is a matter of law which takes precedence. If my noble friend does not press his amendment, I shall take it away to see if we can meet the anxieties which have been expressed.

Lord Harris of Greenwich

I do not wish to prolong the discussion because the noble Earl has agreed to look again at the matter. I am sure that we are pleased about that.

The position is clear. The noble Earl will recall that we debated the matter last night. The debate does not appear in today's Hansard, having taken place late in the evening. I mentioned a Written Answer given last December by the noble Baroness, Lady Hooper. It listed local authorities which provide secure accommodation.

The point I made yesterday—I apologise for repeating it, although I now make it to a larger audience—is that the number of places of secure accommodation has decreased over the past 10 years from about 330 to about 295. A very high proportion of that reduction is explained by the fact that the London borough of Wandsworth cut out 28 secure places. That has given rise to a most unfortunate situation in which, almost inevitably, a number of children have found themselves in police cells rather than secure accommodation.

I take the noble Earl's point that local authorities must make the decisions. However, there must be pressure from the Government to ensure an adequate number of secure places throughout England and Wales. Otherwise, there is always a risk that some children will find themselves in police cells.

Lord Elton

Before I ask leave to withdraw the amendment, I believe that my noble friend has moved his defensive position to a position of re-interpreting what Parliament should have intended in 1984. He is saying that we ought to have meant what we said although what we said appears not to have been what we meant. Parliament has not debated that. I believe it should do so unless my noble friend can find a way out of the difficulty between now and Report stage.

My amendment brings the disparity between resources and demand into the clear and has it recorded before the courts. I am grateful to my noble friend not merely for offering to examine the matter but for the care and attention which I know he will devote to it between now and Report stage. I hope that the happy result may be that he brings forward an amendment which I am able to support. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Faithfull moved Amendment No. 95CA: After Clause 55, insert the following new clause:

("Transfer between youth courts and family proceedings courts

.—(1) Where, in any proceedings before the Youth Court the court is satisfied that the behaviour which constituted the offence was due, to a significant extent, to the circumstances in which the child was living and that it may be appropriate for a local authority to take action under Parts III and IV of the Children Act 1989 the court may ask the family proceedings court to direct the appropriate authority to undertake an investigation of the child's circumstances.

(2) Where the court gives a direction under this section the local authority concerned shall, when undertaking the investigation, consider whether they should—

  1. (a) apply for a care order or for a supervision order with respect to the child;
  2. (b) provide services or assistance for the child or his family; or
  3. (c) take any other action with respect to the child.

(3) Where a local authority undertake an investigation under this section, and decide not to apply for a care order or supervision order with respect to the child concerned, they shall inform the court of—

  1. (a) their reason for so deciding;
  2. (b) any service or assistance which they have provided, or intend to provide, for the child and his family; and
  3. (c) any other action which they have taken, or propose to take, with respect to the child.

(4) Where a local authority undertakes an investigation it shall make a recommendation regarding an appropriate outcome and inform the family proceedings court which shall refer the case to the youth court for sentence.

(5) The information shall be given to the court before the end of the period of eight weeks beginning with the date of the direction, unless the court otherwise directs.

(6) 'File local authority named in a direction under subsection (1) must be—

  1. (a) the authority in whose area the child is ordinarily resident; or
  2. (b) where the child does not reside in the area of a local authority, the authority within whose area any circumstances arose in consequence of which the direction is being given.

(7) If, on the conclusion of any investigation of review under this section, the authority decide not to apply for a care order or supervision order with respect to the child—

  1. (a) they shall consider whether it would be appropriate to review the case at a later date; and
  2. (b) if they decide that it would be, they shall determine the date on which that review is to begin.").

The noble Baroness said: In moving this amendment, I shall speak also to Amendment No. 95CB. Building on the Children Act 1989, the aim of the Family Courts Consortium, of which I am chairman, is to work towards a family court system. As is well known, the Children Act 1989 moved in that direction, creating family proceedings courts within the magistrates' system dealing with civil matters concerning children and young persons.

Juvenile delinquency was left to the juvenile courts. This Bill substitutes youth courts for juvenile courts. The complexion of the magistrates' family proceedings courts will inevitably be concerned with the wellbeing of children and young persons. The renamed youth court, however, dealing with juvenile delinquents, is inevitably likely to be concerned with punishment and the use of penal institutions.

It is acknowledged that the child or young person must be held responsible for his or her actions. To excuse them would be to diminish them. Having said that, two considerations emerge. First, a proportion of juvenile delinquents have unhappy and difficult backgrounds. They may even have been abused. Secondly, the thread running through the Bill is to keep individuals out of penal institutions, out of custody, and, wherever possible, to provide for them to be rehabilitated. Over the past 10 years that has successfully been done by intermediate treatment centres with young persons living at home and attending the centres. I believe that that has diminished the number of young people in custody by 50 per cent.

The two amendments seek to make it possible for the youth courts to have knowledge of the background of delinquents and to employ community methods of dealing with them. Indeed, one would hope that a social report would be available to the youth court so that there was no long period of remand in custody, bearing in mind that there are insufficient secure places in this country. Indeed, perhaps the wording of Amendment No. 95CA should have included the words "after consideration of a social report".

I submit that there must be a welfare element in the youth courts if we are to keep delinquents out of the penal system. When debating Amendment No. 95AA the Minister said that custody should be the last resort. However, if magistrates in the youth courts do not know the background of the child—the delinquent —with whom they are dealing, it is likely that they will commit the child to a penal institution. If they know the social background of the child, then they have a choice as to whether there is a possibility of rehabilitating the child or young person or whether they must send the child to a penal institution.

Unless we deal with that situation and unless there is a crossover between the youth courts and the family proceedings courts, I believe that a number of children who could be dealt with much better in another way will be sent to penal institutions. I beg to move.

Lord Henderson of Brompton

I support what the noble Baroness, Lady Faithful], has said. To a certain extent she has tied this amendment with the amendment dealing with police cautioning which I moved and withdrew. However, this amendment deals with children who have gone beyond police cautioning and who are to be dealt with by the courts.

At this point I refer back to my amendment which sought to introduce some kind of central and local government system of committees that would be able to sort out this kind of problem. I reinforce my argument to the Government and ask them to think about that kind of committee system in the light of Amendment No. 95CA.

The family proceedings court should bear in mind that criminal behaviour is not innate; it sometimes has its origin in poor conditions. That is something that the new youth court certainly should take into account if the Bill is to have the effect of excluding young people from prison custody. The more the provisions of the kind suggested by the noble Lord, Lord Elton, are available to the courts the better. An informal getting together of people who are happy to look after a child provided he attends what is offered is crucial to the passing of non-custodial sentences. Unless the youth courts are able to take into account the circumstances in which the child is living, they will not be free to order that kind of sentence.

Subject to what the noble Earl says in regard to the two new clauses, I hope that the Government will take on board the import of them even if they are not prepared to accept them at this time.

5.30 p.m.

Earl Ferrers

The main purpose of these amendments is to ensure that the welfare of children involved in criminal proceedings is properly safeguarded. It is an important aim and one which both I and the Government share. I know that Amendment No. 95CA is modelled on Section 37 of the Children Act 1989, but I believe that the circumstances involved in criminal proceedings are different and that this provision is not needed in criminal cases.

I am sure that Members of the Committee will agree that it is most important to ensure that juvenile offenders whose welfare is at risk and who should properly be dealt with in the care jurisdiction rather than by the courts, are identified at an early stage. Mechanisms already exist which allow that to happen. Much relevant information should become available when a juvenile offender's suitability for a caution is being considered. In many areas representatives of all the relevant agencies, including the social services, get together to discuss cases before a decision is taken. There are often home visits. That provides the opportunity to ensure that the welfare rather than the criminal justice path is taken if that is appropriate.

If criminal proceedings are initiated a further safeguard exists. The Crown Prosecution Service must have regard to the public interest in deciding whether or not to prosecute; and the code for Crown Prosecutors specifically requires the welfare of the juvenile to be considered. Again, those cases which would be better dealt with in the welfare system can be filtered out and drawn to the attention of the relevant authority.

For those reasons there should be comparatively few children with unidentified welfare needs in the criminal courts. Most juvenile offenders with overriding welfare needs will have been filtered out at an earlier stage. In other cases the decision will have to be taken to deal with them in the criminal court either because of the seriousness of the offence or for some other reason. The relevant authorities should be aware of their welfare needs.

I am not sure that there is a great deal, if anything, to be gained by introducing the procedure proposed in the amendments in dealing with what is likely to be the small residual category. Courts have a statutory duty under Section 44 of the Children and Young Persons Act 1933 to have regard to the welfare of the children who appear before them. Under the Bill that duty will continue to apply to the youth court. Where important needs are identified the courts will be able to alert the local authority. It will then be for the local authority to decide what action to take. In those cases the welfare need is likely to come to light as a result of investigations made by the local authority or the probation service in preparing the pre-sentence report. There is no need for the local authority to be required to conduct a further investigation, which would be the effect of the amendments.

When the Bill comes into force later this year Section 12AA of the Children and Young Persons Act 1969—added to by the Children Act 1989—will make specific provision for dealing with children whose offending is linked to home circumstances. Provided certain criteria are met it allows them to be required to live in local authority accommodation for up to six months as a condition of a supervision order. The effect of that is to apply to such children the local authority's duties under Part III of the 1989 Act towards children whom they are looking after. During the period of residence the local authority will be able to reach a considered decision on what further action may be needed to meet the child's welfare needs. That may be, for example, an application for a care order or a supervision order under Part IV of the Act, or any of the other forms of action mentioned in the amendments.

Amendment No. 95CB makes a similar and alternative provision to Amendment No. 95CA. It proposes a much less elaborate structure for local authority investigations; but it leaves rather more questions unanswered.

For the reasons I have given I do not believe that what is proposed by my noble friend is necessary. However, I understand and sympathise with the anxieties which lay behind it and which prompted her to table the amendment in the first place.

Baroness Faithfull

I thank my noble friend the Minister for that full explanation. I make one comment. The liaison committees, if they exist, know the background and history of the children coming before the courts. Sadly, not every authority in the country has a liaison committee.

I shall read what my noble friend said. If I feel it necessary I shall bring back the matter at the next stage of the Bill. In the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 95CB not moved.]

Clause 56 agreed to.

Schedule 8 agreed to.

Clauses 57 and 58 agreed to.

Earl Ferrers moved Amendment No. 95CC: After Clause 58, insert the following new clause:

Default power where probation committee fails to discharge statutory duty

(".—(1) The Secretary of State may make an order under this section if he is of the opinion that, without reasonable excuse, a probation committee—

  1. (a) is failing properly to discharge any duty imposed on it by or under any enactment; or
  2. (b) has so failed and is likely to do so again.

(2) An order under this section shall—

  1. (a) state that the Secretary of State is of the said opinion; and
  2. (b) make such provision as he considers requisite for the purpose of securing that the duty is properly discharged by the committee.

(3) Where an order is made under this section, it shall be the duty of the committee to comply with the provision made by the order.").

The noble Earl said: It is widely recognised that the provisions in the Bill for dealing with more offenders in the community make it more important than ever to have a probation service which is efficient and effective and accountable to the Secretary of State.

In the Green Paper Supervision and Punishment in the Community we sought views on how the service might be strengthened in order to be better able to meet these new demands. In the light of responses to the Green Paper, on 11th April we published a decision document Organising Supervision and Punishment in the Community which sets out our conclusions on the way ahead. Copies of that document have been placed in the Libraries of both Houses. It includes the proposals to introduce a default power over committees which this amendment seeks to do.

We decided that the probation service should continue to operate as a local service. At the same time, we need to be able to rely on a service which is equally effective and consistent across the country; one which commands the confidence of sentencers. Already a great deal of progress has been made; for example, in setting national objectives and promoting national standards for community service. We are consulting the service on national standards for the other main aspects of its work. But at the end of the day we must be able to ensure that the duties prescribed in the Powers of Criminal Courts Act 1973, as amended, and in rules made under that statute are carried out properly.

The amendment we are proposing here is intended to do that by enabling the Secretary of State to intervene if it ever happened that a probation committee seriously or persistently neglected its statutory duties. This would, I am quite certain, be a very rare event. Similar powers already exist in other spheres; for example, over local authorities in relation to their social services functions. Without this clause probation committees could not ultimately be held to account by the Secretary of State for the proper performance of their duties. The majority of respondents to the Green Paper were in favour of a default power, provided there were reasonable safeguards for committees.

What is proposed is very much a power of last resort. Various procedures would need to be gone through before the Secretary of State reached the point of making an order. To start with there would need to be some evidence indicating cause for concern; for example, arising from complaints or from an inspection by Her Majesty's Inspectorate of Probation. Should such evidence come to light the Home Secretary would need to seek a report from the probation committee itself. The clause provides that an order may be made only if a committee has no reasonable excuse for not discharging a duty properly. Should that report be unsatisfactory Her Majesty's Inspectorate of Probation would be asked to undertake an inspection with a view to advising on the need for a default order. Only when he had received the inspector's report would the Secretary of State be in a position to decide whether a default order was the right way to proceed. At all stages of the proceedings the committee would be kept fully aware of the risk of an order being made and would be given reasonable time to remedy the situation before an order was made. Clearly it would be much better if the committee was prompted to act quickly itself rather than by the Secretary of State having to intervene.

Given all these safeguards, we would expect the power to be invoked very rarely. We do however think that having such a power clearly set out in statute is very important to the success of the Bill's sentencing provisions. The very existence of such a power should itself ensure adherence to national standards. The power would make clear that accountability for the performance of the probation service rests finally with the Home Secretary. Sentencers would be left in no doubt that the service could be depended upon to produce demanding community sentences. I beg to move.

Lord Harris of Greenwich

Having had some responsibility for the probation service for five years, I have always found the service and probation committees extremely helpful. I can remember very few rows. On one occasion only was it necessary for the Home Office to invite in members of a committee to have a discussion about the candidates for the position of chief probation officer. With that exception, over a period of five years I can remember no particular difficulties. It would be unreasonable to oppose this provision. As the noble Earl said, rarely will it be invoked. I hope that it will never be invoked. One wants to proceed by means of agreement. In my experience it has always been relatively easy to secure that. Nevertheless, with the additional responsibilities which are being placed on the probation service it is reasonable to have this power. That being so, we agree with the noble Earl.

Lord Richard

We on these Benches accept the argument put forward by the noble Earl. We accept this amendment.

On Question, amendment agreed to.

Clause 59 [The inner London probation area]:

Earl Ferrers moved Amendment No. 95CD:

Page 39, line 11, at end insert:

("(3A) In paragraph 2(3), for paragraph (b) there shall be substituted the following paragraph— (b) of such number as may be so specified of justices of the peace for the petty sessions areas of the inner London probation area who are not metropolitan stipendiary magistrates, chosen in such manner as may be so specified by the justices for those areas who are not such magistrates;".").

The noble Earl said: In moving this amendment I speak also to Amendment No. 95CE. These are minor technical amendments to the drafting of Clause 59 which do not change its intended effect. I beg to move.

On Question, amendment agreed to.

Earl Ferrers moved Amendment No. 95CE: Page 39, line 27, leave out ("of") and insert ("for").

On Question, amendment agreed to.

Clause 59, as amended, agreed to.

Clause 60 [Provision of court security officers]:

5.45 p.m.

Lord Richard moved Amendment No. 95CF: Page 40, line 15, leave out paragraph (b).

The noble Lord said: The purpose of this clause is to try to deal with the situation where a magistrates' committee has decided to contract out for the provision of court security. The precise provisions of Clause 60 seem to establish a regime in which the committee in any petty sessions area shall determine, (a) whether court security officers should be provided" and, (b) if so, how many such officers should be provided, and whether they should be provided by the committee or by the responsible authority". Subsection (2) of the clause states: As soon as practicable after the making of a determination under subsection (1) (b) above, the committee or, as the case may be, the responsible authority shall provide the required number of court security officers, on such terms and conditions as they may determine—

  1. (a) by employing persons to act as court security officers; or
  2. (b) by entering into a contract with another person for the employment by him of persons to act as such officers".

My amendment seeks to delete paragraph (b). If the rest of the clause is accepted the committee of any petty sessions area could employ persons to act as court security officers, but they would be directly employed. The purpose of my amendment is very simple. It is to urge the advantages of a directly employed labour force by the local committee in order to provide court security rather than that it should be contracted out to the private sector.

The advantages are two-fold. First, the magistrates' committee can have clear control in relation to the recruitment and training of court security officers. Secondly, the court security officers would be accountable to employers and managers who are expert in the requirements and operations of magistrates' courts. By contracting out to the private sector for the provision of court security officers the danger is that standards of court security and order will decline.

I say that for two reasons: first, private security firms perhaps do not have the most appealing record in terms of recruiting and retaining staff of the appropriate calibre. That may be due to the low pay which they receive. Their record on training is not of the greatest. There is an extremely high turnover of staff. There are practically no career prospects in these firms. Secondly, the disadvantage of going out into the private sector, as this clause will permit if it is unamended, is that the general public do not invest the same amount of authority in a security guard as they do in a policeman or prison officer.

In the recent past there have been some very serious incidents at magistrates' courts. For example, there was a shooting at Camberwell magistrates' court and a dangerous assault at Horseferry Road magistrates' court. The security requirements at magistrates' courts are clearly increasing, not diminishing. The Magistrates' Clerks' Society has noted recently an increasingly volatile and unpredictable type of defendant. That refers to some of our earlier amendments. In particular, a larger proportion of defendants are, or appear to be, psychiatrically ill. A pilot scheme to replace the police by private security in magistrates' courts took place in Hull last year. I am told that the clerk to the justices reported great concern about the private firm which undertook the experiment. He said that the recruits were poorly vetted before taking the job. Indeed, one security officer had a conviction for robbery. He also concluded that they were slower to react to potentially violent situations.

The conclusion that I come to, which is why I have put down the amendment, is that if police are to be replaced by civilian workers in magistrates' courts—I hope it is clear that it is not something of which we would approve—then those workers must be directly employed by and be responsible to a magistrates' court committee or to a local authority. A magistrates' court committee or a local authority is best placed to manage and train security officers in accordance with the requirements of magistrates' courts' security. Private security firms with a low-paid, ever-changing and poorly trained staff are not in a position to maintain the existing security standards of magistrates' courts let alone implement the higher standards which are, in our view, demanded. I beg to move.

Earl Ferrers

I hope that the Committee will not agree to the amendment of the noble Lord, Lord Richard. The amendment would prevent a magistrates' court committee or a local authority from contracting out the provision of court security officers to a private security firm should it wish to do so. If the court decided that it needed court security officers, it would, under the amendment of the noble Lord, Lord Richard, have to provide them itself. The Committee may be aware that, following the inception of the Crown Prosecution Service, police presence at magistrates' courts has been much reduced. That would commend itself to the noble Lord, Lord Richard, because it has enabled police to get out on the street, a matter about which he has been deeply concerned at Question Time on the past two or three days.

Last year we issued a Home Office Circular 8/90, which doubtless the noble Lord, Lord Richard, will also have read. Just in case he has not, I will tell him that it suggested that the police should be present where there is judged to be a real risk of harm to court staff. Therefore there is a provision for police there. The circular continued that the magistrates' courts' committees should themselves be responsible for routine low-level security. This includes such matters as checking baggage and controlling the movement of people within the court building.

In the wake of this division of responsibilities, some committees have chosen to employ court security officers either directly or under contract. I understand that security duties are being carried out by private sector staff at the Essex court house, at Newham and at York. There may well be others. As far as I know, the system is working well.

In Clause 60 and the following clauses, we have tried to build on the existing arrangements. Magistrates' courts' committees will be able to choose, as at present, between employing their own security officers directly and contracting out the service. Removing the option of contracting out would reduce choice. It would be harder for the committee to achieve what it might consider to be value for money in the provision of security staff.

The noble Lord, Lord Richard, referred to the fact that the private security firm may provide badly paid, ill-trained and unsuitable security officers in its eagerness to gain the contract, to reduce costs and thereby to make a quick profit. Indeed, he referred to one or two people who had unsavoury records. One can always find people with unsavoury records in the most erudite and excellent places. There will always be occasions when mistakes are made.

It is well understood that court security officers will have to be up to the job. The required standard and the services to be provided would have to be clearly specified in the contract. Magistrates' courts' committees are well aware that cheapness is not the same as effectiveness. Court security officers will be properly monitored because they will be supervised and managed by the clerk to the justices under the aegis of the magistrates' courts' committee. All these safeguards will operate within the clear statutory framework laid down in Clauses 60 to 63.

This path has been trodden by some magistrates' courts. It gives the courts an option and the encouragement to do so. It would be a great pity to remove that option.

Lord Harris of Greenwich

On the substance of the matter I agree with the noble Earl. Magistrates' courts' committees should have the power to decide this matter. However, one problem troubles me. It was referred to by the noble Lord, Lord Richard, and I have raised it in the House on one or two previous occasions. It is not a question of one or two people who may have unsavoury records. A report by the Association of Chief Police Officers indicated that we are not talking about one or two people; we are talking about substantial numbers of people in the private, security industry who have criminal records. The ACPO report went further. It said that some of the people involved in the management of these firms have criminal records.

I am not saying that as a result of that I am opposed to allowing the magistrates' courts' committees to make a choice in the matter. I believe that they should do so. The central question is: what are the vetting procedures to be? Are the employees of private security firms or other people who may be involved—people directly employed by magistrates' courts' committees—to be vetted? If they are, who will pay for it? This is an important matter. The noble Earl will be aware that there is increasing concern in the police service about the number of people on whom it is having to carry out checks for previous criminal convictions. I should be grateful if he could help me in this matter.

Earl Ferrers

The noble Lord, Lord Harris, raises a pertinent point. I know the report of the Association of Chief Police Officers to which he refers. It is very disturbing. We have always taken the view that the private security industry ought to conduct itself and regulate itself. There are those who say that the industry should be regulated by statute. At present we believe that it is right that the security industry ought to control its own organisation.

We are presently examining a range of options for regulating the industry. These include both statutory control and improving the arrangements for self-regulation. My right honourable friend the Home Secretary has not yet made up his mind. The noble Lord, Lord Harris, asks who is to vet all these people. He will know the problem that arises over people who are anxious to have vetted taxi-drivers and people who deal with old people, young people, and children. The problem is that it takes a great deal of time and is extremely expensive. I cannot give the noble Lord the kind of crisp, neat answer that he would like. It is up to the magistrates' courts' committees before they enter into a contract to satisfy themselves that the people to whom they are giving the contract are reasonable, reputable and as reliable as they can be.

Lord Richard

I am sorry that the noble Earl has not treated this amendment with the seriousness with which it was put forward. It is a perfectly serious point. Home Office circulars are not exactly my constant companions; but I shall take note.

Earl Ferrers

In order to meet that point, I thought that I had better explain to the noble Lord exactly what was in the circular. I was not being frivolous.

Lord Richard

I am obliged that the noble Earl is helping me so much. Perhaps he will help me a little more and accept one of my amendments. With great respect, there are some fundamental points here.

In the absence of any kind of licensing system for private security firms, prima facie it is wrong to use them to provide security officers in what is an extremely sensitive establishment; namely, a court. While I accept that it is for the magistrates to decide—option is left with the magistrates—unless and until we can be satisfied as to the operation of private security firms I do not think that it is a sensible option. The magistrates' courts' committees are bound to look at costs. If a private firm comes along and produces what on the face of it may seem to be an attractive security package at a lower cost than the court could provide itself there would be a tendency and a temptation to go for the cheaper option. Before I conclude, I cannot help making this observation. I do not think that any of the security operatives and guards at the Palace of Westminster belong to a private security firm. The Palace authorities responsible have been very careful to ensure that staff are employed directly by the Palace. That is what my amendment seeks to do. I am sorry that the noble Earl cannot accept it. I shall take the opinion of the Committee.

5.59 p.m.

On Question, Whether the said amendment (No. 95CF) shall be agreed to?

Their Lordships divided: Contents, 57; Not-Contents, 112.

Division No. 1
CONTENTS
Acton, L. Jay, L.
Airedale, L. Jeger, B.
Ardwick, L. Jenkins of Putney, L.
Aylestone, L. John-Mackie, L.
Birk, B. Kennet, L.
Blease, L. Kilbracken, L.
Boston of Faversham, L. Lockwood, B.
Broadbridge, L. Longford, E.
Brooks of Tremorfa, L. Mais, L.
Carmichael of Kelvingrove, L. Mar, C.
Carter, L. Masham of Ilton, B.
Clinton-Davis, L. Mason of Barnsley, L.
Cocks of Hartcliffe, L. Mayhew, L.
Dean of Beswick, L. Morris of Castle Morris, L.
Dormand of Easington, L. Nicol, B.
Ewart-Biggs, B. Northfield, L.
Fisher of Rednal, B. Ogmore, L.
Gallacher, L. [Teller.] Oram, L.
Galpern, L. Parry, L.
Gladwyns, L. Peston, L.
Glenamara, L. Pitt of Hampstead, L.
Graham of Edmonton, L. [Teller.] Prys-Davies, L.
Richard, L.
Gregson, L. Serota, B.
Hatch of Lusby, L. Stedman, B.
Hollis of Heigham, B. Stoddart of Swindon, L.
Turner of Camden, B. Wedderburn of Charlton, L.
Underhill, L. Whaddon, L.
Wallace of Coslany, L. White, B.
NOT-CONTENTS
Abinger, L. Hooper, B.
Aldington, L. Howe, E.
Arran, E. Hunter of Newington, L.
Astor, V. Hylton-Foster, B.
Belhaven and Stenton, L. Jellicoe, E.
Beloff, L. Jenkin of Roding, L.
Bessborough, E. Johnston of Rockport, L.
Blatch, B. Joseph, L.
Blyth, L. Kitchener, E.
Boardman, L. Knights, L.
Borthwick, L. Lauderdale, E.
Boyd-Carpenter, L. Lawrence, L.
Bridgeman, V. Long, V.
Brigstocke, B. Lucas of Chilworth, L.
Brookes, L. Mackay of Clashfern, L.
Brougham and Vauxi, L. Mancroft, L.
Butterworth, L. Merrivale, L.
Caithness, E. Mersey, V.
Caldecote, V Monson, L.
Campbell of Alloway, L. Monteagle of Brandon, L.
Cavendish of Furness, L. Mottistone, L.
Clanwilliam, E. Mountevansi, L.
Colnbrook, L. Mountgarret, V.
Colwyn, L. Munster, E.
Constantine of Stanmore, L. Murton of Lindisfarne, L.
Cork and Orrery, E. Nelson, E.
Craigavon, V. Norrie, L.
Craigmyle, L. Nugent of Guildford, L.
Cullen of Ashbourne, L. Orr-Ewing, L.
Cumberlege, B. Palmer, L.
Dacre of Glanton, L. Park of Monmouth, B.
Davidson, V. [Teller.] Pearson of Rannoch, L.
Denham, L. [Teller.] Pender, L.
Derwent, L. Platt of Writtle, B.
Dilhorne, V. Rankeillour, L.
Dunrossil, V. Reay, L.
Eccles of Moulton, B. Russell of Liverpool, L.
Elles, B. Selborne, E.
Elton, L. Sharples, B.
Faithfull, B. Shaughnessy, L.
Ferrers, E. Skelmersdale, L.
Fortescue, E. Soulsby of Swaffham Prior, L.
Fraser of Carmyllie, L. Strange, B.
Fraser of Kilmorack, L. Strathcarron, L.
Gisborough, L. Strathmore and Kinghorne, E.
Glenarthur, L. Sudeley, L.
Gray of Contin, L Thomas of Gwydir, L.
Greenway, L. Trumpington, B.
Hardinge of Penshurst, L. Ullswater, V.
Harmar-Nicholls, L. Vaux of Harrowdeni, L.
Harmsworth, L. Vinson, L.
Harris of Greenwich, L. Waddington, L.
Harvington, L. Wade of Chorlton, L.
Haslam, L. Wise, L.
Henderson of Brompton, L. Wyatt of Weeford, L.
Henley, L. Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.

6.8 p.m.

Clause 60 agreed to.

Clause 61 [Powers and duties of court security officers]:

Earl Ferrers moved Amendment No. 95CG: Page 41, line 33, leave out from ("authority" ") to end of line 2 on page 42 and insert (", in relation to any court-house, means—

  1. (a) a justice of the peace, chief clerk or justices' clerk who is exercising any functions in the court-house; and
  2. (b) any officer or staff employed to assist such a clerk and authorised by him for the purpose.").

The noble Earl said: This amendment is essentially a technical one. Clause 61(5) already defines a "person in authority" under whose instructions a court security officer may act as a justice of the peace, a justices' clerk or an authorised justices' clerk's assistant who acts for the area in which the courthouse concerned is situated. However, there are occasions when justices and justices' clerks, perfectly properly, must carry out their functions in a courthouse which is located outside the petty sessions area for which they were appointed. The amendment will ensure that, where the courthouse happens to be located outside the area for which they were appointed, they can still act as a "person in authority" in giving instructions to court security officers. Thus a proper line of responsibility will remain in place. I beg to move.

On Question, amendment agreed to.

Clause 61, as amended, agreed to.

Clauses 62 and 63 agreed to.

Lord Richard moved Amendment No. 95CH: After Clause 63, insert the following new clause:

("The Crown Prisoner Custody Service

.—(1) Arrangements for the escorting of prisoners of the Crown shall be the responsibility of the Crown Prisoner Custody Service within the Home Office;

(2) The recruitment, training and conditions of service of Crown Prison Custody Officers shall be the responsibility of the Crown Prisoner Custody Service;

(3) Such arrangements include and provide for the functions and responsibilities outlined in sections 64 to 67 above;

(4) The Crown Prisoner Custody Service shall be a permanent part of H.M. Prison Service;

(5) The power to make rules under this section shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.").

The noble Lord said: The new clause has three purposes: to give the escort service a more coherent shape; to make its performance more efficient; and, finally, to establish a separate service with the aim of ending the disruption to prison life and settled regimes which for too long has been the main feature of the existing arrangements. It aims to achieve those purposes by doing a number of things.

First, the main thrust of the new clause is to create a separate Crown prison custody service within the Home Office. It would be part of the Crown prison system. The new custody service would be responsible for recruitment and training and for laying down conditions of service for the new Crown prison custody officers.

I shall consider the background of this matter. The creation of a separate escort service is strongly recommended in the Woolf report. It had been considered sympathetically in 1979 by the May Committee, but on that occasion no firm conclusion was reached. In the Woolf report however the recommendation is emphatic: We think that the balance on the merits of having a separate service has changed since the May Committee reported. We propose the setting up of such a service". In England and Wales at the moment prison officers escort prisoners to magistrates' courts except in London where that is the responsibility of the police. Prison officers are responsible for the escorting of prisoners to Crown Courts without exception. They have performed those duties over the years efficiently and with dedication and professionalism. In Crown Courts the officers also perform dock duties.

The advantages of a separate escort service are, first, that it would avoid the constant disruption to prison life and regimes which arise from the current system. Secondly, a separate service would mean a considerable improvement in the managerial performance in prisons, with the saving in costs and in frustration that that would mean. Thirdly, it would enable the escort service itself to benefit from more regular planning and cost-effective management. As I say, the main thrust of the amendment is to establish a separate service as recommended in the Woolf report. I beg to move.

Earl Ferrers

Court escort work is a considerable drain on the resources of the prison service. When it is all added up it comes to the equivalent of about 1,000 officers. A lot of police time is also taken up—the equivalent of something like 1,400 officers, making a total of about 2,400. Ensuring that prisoners are delivered to court on time is, rightly, a high priority for prison governors, but it is one which is sometimes unpredictable and which makes it more difficult for them to plan their use of manpower within the prison to best effect from the point of view of ensuring that the internal regime is a constructive one.

The amendment tries to get around that problem by proposing that court escort work should become a separate function in the prison service. That was one of the options we considered during the development of our proposals. However we came to the conclusion that we should have the power to contract out the work.

There is no doubt that the contracting out of all sorts of central and local government services over the past 12 years has led to tremendous improvements in the economy and efficiency with which the services have been provided, from which taxpayers have benefited. The detailed studies which we have carried out over the last three years have clearly demonstrated that there would be comparable benefits from contracting out the court escort work. The Committee may recall that a major element of those studies was an independent consultancy study by the management consultants Deloitte, Haskins and Sells. It reported that there were a number of private sector organisations which had the necessary expertise and financial backing to carry out that work and that there was a reasonable prospect of improvements in cost-effectiveness which would make the exercise worth while.

Let us look at an example of the way in which we might expect contractors to be able to provide a more cost-effective service. A major part of the operation consists of working out routeings between police stations, prisons and courts and managing a vehicle fleet effectively to ensure that the prisoners are delivered on time to where they have to be. That is a complex exercise but one which contractors with existing transport and distribution operations are well equipped to carry out in a way which makes the best use of vehicle usage and therefore eliminates unnecessary operating costs. Experience shows that operating in a competitive environment keeps managers on their toes and ensures that the service is provided in the most cost-effective way.

Of course there must be safeguards. The prisoner custody officers engaged in the work will be approved by the Secretary of State under Clause 73 and Schedule 9. The contract will lay down detailed standards which have to be met, and, as explained in the discussion document Courts Escorts, Custody and Security, there will for each contract be a liaison group of prison, police and court representatives to ensure that the required standard of service is delivered. There will be a government appointed monitor under Clause 65 who will keep matters under review and investigate any complaints from prisoners about how they have been treated. There will also be a panel of lay observers who will have a monitoring function similar to that of prison boards of visitors or lay visitors to police stations. The contracts will be let by the Home Secretary, and Ministers will remain accountable to Parliament for the way prisoners are treated and the quality of service which is given to the courts.

I know that the noble Lord, Lord Richard, is concerned that the escorting of prisoners may fall to fly-by-night operators with badly trained and unvetted staff, but there is no question of contracts being issued to such operators. There will be proper vetting and training to ensure that the rigorous standards to be specified in the contracts will be met. In my view, only the larger and well-established firms will have the capacity to undertake such work. I am confident that the policy of contracting this work out is the right one, and I invite your Lordships to accept it.

6.15 p.m.

Lord Hutchinson of Lullington

With respect to the Minister, he has not dealt with the point made by the noble Lord, Lord Richard, in relation to subsection (4). What is the objection? Everyone who knows anything about the matter will agree that escorting must be done by someone other than the trained professional prison officer who has jobs to do in the prison and who at the moment is not doing them. He is profiting from long periods of escort work and court attendance for which he is paid and during which he enjoys himself doing nothing. That is obviously a grave error. Someone else should do the escort work.

The Minister has not faced up to the issue of why there should not be a Crown prison custody service as part of the prison service. One would have a group of professional people within the service, which would avoid irritation and trouble between the prison officers and the new service because they would all form part of the one service. In due course, no doubt, members of the custody service could be promoted into the prison officer service. We should then have one service dealing with the same people. We should not have the problem of having a professional service on one side and what it would regard as an amateur service on the other dealing with the same people. I should have thought that was a recipe for trouble.

The Prison Officers' Association will never go along with the idea of having private people to deal with what may be extremely difficult prisoners. They are people with whom prison officers are familiar and with whom their long experience and expertise has taught them how to deal. There is also a grave possibility of corruption with an amateur service of private security officers. If a van is ambushed and prisoners are released, it is difficult to establish that it did not happen with the co-operation of the person driving the van. It can easily occur and it is extremely difficult to prove that it happened. It is not likely to happen with a professional but very likely to happen with an amateur service.

Lord Harris of Greenwich

The noble Earl will be relieved to know that on this occasion, unhappily, I find myself in disagreement with my noble friend. The Government are wholly right with this proposal. If enacted, the inevitable consequence—for understandable reasons the noble Earl has not yet put the point—is that it will involve members of the same organisation, the Prison Officers' Association. As the Committee is aware, industrial relations in the prisons are the worst of any sector of activity in the country. That is not wholly the result of the ill-disposed national executive of the POA or a series of its wicked branches. We must recognise that one reason why police cells have been filled, as they have been, is because of industrial action of this character.

The amendment would have the effect of maintaining the monopoly bargaining position of the POA which would be a great pity. We must examine means of trying to establish an infinitely more sensible arrangement in terms of our prisoners. We must recognise that as a result of serious misconduct, many prisoners have been put in conditions which are intolerable. Some were described in the report of Lord Justice Woolf to which we shall come in a moment. I have absolutely no doubt that the Government are right on the matter. They have the responsibility of ensuring that there are proper vetting procedures for these people.

When my noble friend refers to corruption, if the Committee will forgive me saying so, it is not wholly unknown in the public sector for corruption to exist. I do not believe that there is any greater risk with private contractors if the Home Office takes its responsibilities seriously, as I hope it will, and ensures that there are proper standards of training and proper vetting procedures. I can see no reason why anyone should be able to argue that private contractors would be any more amateur than the people who would be employed if the amendment of the noble Lord, Lord Richard, were passed. It seems to me that the standards would be remarkably similar.

Earl Ferrers

Needless to say, I am grateful to the noble Lord, Lord Harris, for his speech. He made it clear that he is in favour of what the Government propose. He answered a number of points put by his noble friend Lord Hutchinson far more eloquently than I could. He referred to an amateur service but I do not see that as being so. Quite the reverse. This is a professional service operated by professionals skilled in the work who will become more skilled provided, as the noble Lord, Lord Harris, said, that they have proper standards, proper training and proper vetting. I entirely agree.

I also agree with the noble Lord, Lord Harris, that the purpose of the proposal is to keep the activity separate from the Prison Officers' Association and the police forces, both of which are involved. The whole idea is to allow the prison officers to do the work which they ought to carry out and the police the work which they ought to carry out and for this service to be run by others. For those reasons I hope that the Committee will come to the conclusion that the noble Lord, Lord Harris, reached, quite rightly, that it is correct for this service to be contracted out.

Lord Richard

For the life of me, I do not understand why the Government have almost a spasm reaction at the idea of creating anything public. If there is to be a prison escort service or a prison custody service, it seems eminently sensible that it should be organised within the Home Office rather than by someone outside. The Home Office is responsible for the prisoners at either end: when they leave the prison and when they reach the court. I do not see why it should not be responsible for the period in between.

Recruitment, training and conditions of service will be better safeguarded within the Home Office. The idea that because something is new it must be contracted out rather than carried on by a government department—the logical place for it—is not an attitude that I understand. There is a long Marshalled List and in all the circumstances I do not wish to divide the Committee. I therefore ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 64 [Arrangements for the provision of prisoner escorts]:

Earl Ferrers moved Amendments Nos. 95CJ and 95CK: Page 43, line 2, leave out ("as respects any area"). Page 43, line 12, after ("performed") insert ("in such cases as may be determined by or under the arrangements").

The noble Earl said: The intention is that the prisoner escort arrangements which are provided under Clause 64 should operate on an area by area basis. It may be that there will be one contract, for example, covering the London area, another for the West Midlands, another for East Anglia and so on. The prisoner custody arrangements for each area would serve all the courts in that area. It may be that a prisoner will need to be brought to a court in one area from a prison in another area. These amendments make it clear that escort arrangements for a given area can include taking prisoners to and from places in another area. I beg to move.

On Question, amendments agreed to.

Clause 64, as amended, agreed to.

Clause 65 [Monitoring etc. of prisoner escort arrangements]:

Earl Ferrers moved Amendment No. 95CL: Page 43, line 25, leave out ("made as respects any area").

On Question, amendment agreed to.

Clause 65, as amended, agreed to.

Clause 66 [Powers and duties of prisoner custody officers acting in pursuance of arrangements]:

Earl Ferrers moved Amendment No. 95D: Page 44, line 22, at end insert: ("and the Secretary of State may make rules with respect to the performance by prisoner custody officers of their duty under paragraph (d) above.").

The noble Lord said: The amendment responds to an undertaking given by my right honourable friend Mrs. Rumbold when the clause was considered in another place. Clause 66(3) (d) places prisoner custody officers under a duty to attend to the wellbeing of prisoners who are under escort. The Opposition in another place sought to expand this duty so as to create an explicit obligation to protect prisoners from public scrutiny and insult and to provide adequate light, ventilation and standards of physical comfort in the vans used to transport them.

This would be consistent with a similar duty on prison officers under the prison rules at present. We agree that the duty to attend to the wellbeing of prisoners under escort should include these points. The amendment provides my right honourable friend the Home Secretary with the power to make rules specifically concerned with the way in which prisoner custody officers discharge this duty.

We intend to make rules which will ensure that prisoner custody officers are under no less an obligation than prison officers under the prison rules with regard to the escort of prisoners. The amendment is phrased in general terms for the simple reason that there may be matters other than those affecting the welfare of prisoners which need to be taken into account. I commend the amendment to the Committee; I beg to move.

On Question, amendment agreed to.

Clause 66, as amended, agreed to.

6.30 p.m.

Lord Richard moved Amendment No. 96: After Clause 66, insert the following new clause:

("Limit on powers of detention of prisoner custody officers

.—(1) Subject to subsection (2) below, where a person is in the custody of a prisoner custody officer whose duty it is to take him to a prison, remand centre or young offender institution in which his detention is authorised by law, the person may not instead be lawfully detained in a police station or on court premises for a period exceeding four days.

(2) The Secretary of State may by order made by statutory instrument provide that subsection (1) above shall not have effect in an area specified in the order for a period not exceeding six months.

(3) No order under subsection (2) above shall be made unless a draft has been laid before Parliament and approved by resolution of each House of Parliament.").

The noble Lord said: This amendment would place a four-day maximum limit on the length of time during which a remanded or sentenced prisoner can be held in a police or court cell. This was a recommendation of Lord Justice Woolf in his report which stated: Police cells should not be used as an expedient to prevent over-crowding. There should be a limit placed at the first opportunity upon the time a prisoner, whether on remand or under sentence, can be kept in police cells on behalf of the Prison Service. The maximum period might be four days". This is probably the first opportunity that we have had of putting a limit on the length of time for which a prisoner can be kept in a police cell. I hope that the new clause will commend itself to the Committee. The proposal is modified by allowing the Home Secretary, in an emergency, to obtain approval from Parliament to disapply—to coin a horrible word—the provision in a specified geographical area and for a period not exceeding six months. Over the past decade the holding in police and court cells of prisoners who have been sentenced or remanded to penal establishments has been a cause of' continuing concern to the police, the prison and probation services, the magistracy, justices' clerks and to the legal profession as a whole.

On Friday 12th April no fewer than 503 prisoners were held in such cells. The majority of those concerned are remand prisoners who have not yet been found guilty of an offence by the courts. This is an expensive practice. Lord Justice Woolf pointed out that for the six months ending 31st August 1990 the estimated cost of holding prisoners in police cells was more than £25 million. The human cost is even more important. Such prisoners are held in cells designed to hold people for only a few hours. The facilities for exercise, washing, bathing and visits are frequently entirely inadequate. Although the police make impressive efforts to make conditions tolerable in difficult circumstances—I pay tribute to them for that—it is quite wrong that they should be asked to act as prison officers, holding prisoners in premises which are quite unsuitable for the purpose.

The Woolf Committee described conditions in police cells in Manchester as follows: The Inquiry visited the police cells at Manchester (the Central Detention Centre). While police officers appeared to be doing their best to make the prisoners' conditions tolerable, the conditions were in fact wholly unacceptable. The night before the Inquiry's visit, 101 prisoners had been held in 73 police cells. The cells had no natural light, they were small; they had an objectionable smell, they were overheated and without sanitation. The amount of exercise which the prisoners could have each day was limited to 20 minutes. The exercise area was a cage of modest size on a flat roof patrolled from above by a doghandler. The prisoners spent the major part of the day locked in their cells. They were not allowed radios. When the Inquiry visited, some remand prisoners had been in the cells for over two weeks".

The cells below Camberwell court in London have been described by Mr. Cavadino, the clerk to the parliamentary all-party Penal Affairs Group. He stated: The conditions in the cells underneath Camberwell Court are by far the worst in which I have ever seen prisoners held in this country. Two prisoners are held in a cell which seemed to me little more than half the size of a Victorian-built prison cell. One sleeps on a mattress placed on a bench along one wall while the other sleeps on a mattress on the floor. They are kept in these tiny cells for over 23 hours out of every 24, being allowed out in groups for half an hour's association in a room along the corridor if police manpower allows. There is no daylight anywhere on this floor, and all the light is artificial".

A Mrs. Stanley had occasion to visit the magistrates' court at Camberwell Green when she discovered that her son had been moved there from Wormwood Scrubs. She wrote a letter which was published in the Independent on 23rd March 1987 which stated: With no fresh air or daylight—and no provision for any exercise at all—the cell was about six feet by six feet and furnished with a bunk somewhat shorter than he is. Also, because it was not a proper prison, he only had the clothes he stood up in; no uniforms were available. I could only speak to him through a grille, which was mid-chest height, for 15 minutes, with an officer standing beside me. The stench of the cell wafted out through the grille … He didn't know where he was or the time of day—as far as he was concerned he was in a box with a five inch by four inch slit in it".

While doing one's best to make allowances for past history, overcrowding and old buildings, one must conclude that this situation really will not do. I believe that one way of making sure that these conditions do not survive for much longer is to do what Lord Justice Woolf urged and put a strict time limit—four days is more than sufficient in our opinion—upon how long a prisoner can be held in a police cell. We should never forget that the vast majority of people who are kept in these conditions are remand prisoners. By definition they have not been convicted of an offence and they have not yet even been tried for an offence. In some cases they have only recently been charged. This position is a blot upon our civilisation. I hope that the Committee will accept the amendment. I beg to move.

Lord Harris of Greenwich

We are discussing a truly shameful situation which has persisted for nearly 11 years. Until the period when the noble Viscount, Lord Whitelaw, was Home Secretary, there was uncertainty as to whether the police had any lawful reason to detain Home Office remand prisoners. However, the law was then changed. I believe it was changed as the result of an industrial relations dispute. For a whole variety of reasons, such as overcrowding and industrial relations disputes, hundreds of people have been detained in these degrading circumstances. The conditions in which they are detained have been described not only by people connected with penal reform organisations but also by many chief officers of police who have told me of the deep resentment they feel that they are obliged to hold prisoners in such conditions.

Quite apart from the degrading conditions that pertain at present, the cost of holding people in those conditions is truly remarkable. Let us look for a moment at the position in the Metropolitan police district. The cost of holding a remand prisoner for a single night is well over £300; in other words, it is 50 per cent. more than the cost of a double room at the Ritz Hotel. How can we use such phrases as "value for money" in the context of such a situation? The position is quite extraordinary.

I am well aware that the Minister is likely to tell the Committee that the Government will commission a White Paper or a Green Paper, or some form of paper, on the report of Lord Justice Woolf. We are discussing one of his recommendations. But how can we allow the situation to continue? Are we really prepared to wait another year or two years or more before returning to this issue? We cannot allow prisoners to continue to be held in such conditions. In the overwhelming majority of cases these prisoners have not been convicted of a criminal offence. They are experiencing conditions which are infinitely worse than those of convicted prisoners. I hope the Committee will not accede to any suggestion that the amendment should be withdrawn while we wait for the Government's response to the report of Lord Justice Woolf. This matter is urgent and it is now time for the Committee to insist that this disgraceful situation should no longer be perpetuated.

Lord Henderson of Brompton

I wish briefly to support the amendment. We have heard two powerful speeches. This is a modest amendment. If it were accepted, it would allow the order of the Bill to be disapplied—I believe that is the correct word—in cases of emergency. The amendment provides a simple solution to the dreadful problem of sending people to police cells.

There are two categories of Woolf recommendations. There are those which clearly will require time for consideration on the Government's part. One such case was the subject of an earlier amendment of mine. The Woolf recommendation for a central committee and local committees will require time for consideration on the Government's part, and time to produce proposals in a White Paper.

On that ground I was prepared to withdraw my amendment. However, the proposition we are discussing could easily be accepted. It does not require thought on the Government's part. I should have thought they would jump at this proposal as they surely cannot wish to have this large number of people on their hands. By any standards, whether financial standards or standards of humanity, the Government should not allow such people to remain in police or court cells for more than one day. This amendment provides for a maximum of four days. That seems to me to be the limits of generosity. I strongly support the amendment and hope that the Minister will agree to it.

Lord Knights

I too have considerable sympathy with the comments which have been made. If my memory does not fail me, the practice of lodging prisoners in police cells came about in late 1980 when there was a period of some three months of industrial dispute within the prison service. During that period there were rarely fewer than 3,000, and on many occasions 4,000, prisoners held in police cells. It was with considerable reluctance that chief officers of police agreed to take on that task at that time, particularly in the light of the demands it would obviously make on their manpower.

As the noble Lord, Lord Harris of Greenwich, has already indicated, I was one of the chief officers of police who was considerably concerned as to whether we had any legal authority to keep prisoners in that sort of way. Once the original reservations were overcome, as they were on that occasion, it became easier to accept them later on whenever the call was made. The practice has continued to some extent ever since, if not entirely, not necessarily as a result of industrial disputes in the prison service as a whole but often because of local difficulties in a particular prison in terms of accommodation. Occasionally it has led to the police having to look after a specific prisoner whom prison officers are not prepared to accept into the prison for their own particular reasons.

That practice should be stopped as quickly as possible. Police cells are not suitable for long-term detention of prisoners. It is impossible to arrange for visits by relatives, for solicitors to interview their clients or for medical officers to treat their patient. The exercise of the prisoner is almost impossible. It amounts to walking up and down a passage for perhaps 10 minutes a day. Arrangements for bathing often do not exist. Meals often have to be brought in from outside. Police officers are in no way trained to deal with some of the difficult prisoners such as those who are mentally disabled.

As Members of the Committee will know, accused persons can be remanded to police cells by a magistrates' court for a maximum of three days. Unless the Government can give some undertaking that that practice will cease by a reasonable date, I believe a statutory limit should be placed on the length of tine during which prisoners can be subjected to what are often intolerable conditions of confinement. If nothing else, such a provision would force the prison department to look for alternative remedies. It would concentrate minds in a way which does not exist at the present time and create a situation in which longer periods of detention could not be introduced without first having to be justified by Parliament.

Lord Hutchinson of Lullington

I support the amendment if for no other reason than to show that the Liberal Democrat train is now back on the rails. There was a slight moment when part of it went off on a by-line.

Earl Ferrers

Which part was that?

Lord Hutchinson of Lullington

I shall not go into that.

We have investigated this year after year, and I say to the noble Earl that there is something called political will. It seems inconceivable that a Home Secretary faced with this problem is unable to bring it to an end. It is a scandal. There are many scandals, such as juveniles being left in prison, juveniles in cells and slopping out. This is another scandal which political will could remove tomorrow. When Mr. Brittan was Home Secretary I remember that he gave an undertaking that this would be stopped, and it was stopped. Forty-eight hours later, back came the remand. prisoners who in law are innocent, as has been emphasised.

Lawyers do not know where their clients are. Families do not know where their children or other members of the family are. The defendants themselves very often do not know where they are. They are put into a black maria and deposited somewhere. That is an unbelievable situation, and it requires only political will to deal with it. Perhaps the noble Earl will say why there is no supply of political will in the Home Office.

6.45 p.m.

Baroness Faithfull

I was not in the Chamber when the noble Lord, Lord Richard, was making his speech but I should like to ask one question. Why is this done? The noble Lord, Lord Hutchinson, said that it needed political will, but there must be some reason why this happens. I should be grateful to know why it happens.

Lord Richard

If the noble Baroness is asking me, all I can do is deflect the question back across the Dispatch Box. I do not know why it is done. It is for the noble Earl to tell us why and to justify the practice. I cannot think of any good reason for it.

Earl Ferrers

That is always a good way of answering a question, to pass it over to somebody else to answer, particularly when it is a difficult one. I do not blame the noble Lord, Lord Richard. In fact, not being a chameleon I do not have eyes in the back of my head, so in fact I had assumed the question of my noble friend was being addressed to me. She has a habit of putting awkward questions to me and I assumed that this was a continuation of that.

I am bound to say that nothing concentrates your Lordships in a more united way than prisoners in police cells. It is rather like iron filings round a magnet; all of your Lordships gang up together and put the unfortunate Minister of the day in the dock. (Did the noble Lord, Lord Donaldson, say anything? It was sotto voce and I did not hear it.) I do not like remand prisoners in police cells or any prisoners in police cells. We all entirely agree that that is not the right place for them.

The noble Lord, Lord Knights, made a very powerful intervention. He said that when he served in the police force he had hated the practice and most of his colleagues also disliked it. The noble Lord, Lord Harris, said we should not wait for Woolf but should put the amendment in the Bill. The noble Lord, Lord Henderson, said that the amendment could easily be agreed to. If it were as simple as that we would all quite happily sit down and agree to it, but I am bound to point out that there are difficulties.

No one, least of all the Government, would argue that keeping prisoners in police cells is right. Of course it is not, not only for the reason which the noble Lord, Lord Harris, gave, that it is an extremely expensive way of providing accommodation, which in most cases is unsuitable for the purpose, but also that it means that the police, who should be out on the streets protecting the public—a matter about which the noble Lord, Lord Richard, was concerned—are in fact stuck in police stations and lock-ups acting as gaolers for people who should be in prison. That cannot be right. In an ideal world we would not have prisoners in police cells, but unfortunately we do not live in an ideal world.

The noble Lord, Lord Hutchinson, momentarily lost the charming manner which he uses when he deals with children, and he became quite worked up. He pointed his finger at me and asked why there was no political will in the Government in order to put that right. There is a political will in the Government to put it right. That is why we have spent over £1,000 million on trying to produce more prison places in the past decade. But we do not live in an ideal world and when things go wrong, as they sometimes do, the only available option available is to keep prisoners in police cells. The Strangeways disturbance led to the loss of a large number of prison places which could not instantly be replaced. Regrettably, it sometimes happens that prisoners are locked out of prison because of industrial disputes. When my noble friend Lady Faithfull asks why that is done, those are the reasons.

When such things happen, the prisoners must be accommodated somewhere. That inevitably means in police cells. The amendment would restrict that stay to only four days—but what happens then? It would be unlawful, as well as highly irresponsible, for the police or prison authorities just to let loose prisoners for whom no prison place can be found straightaway when the courts had determined that the prisoner needed to be kept in custody. Of course they could not do that.

At present there are just under 500 prisoners in police cells who should and would normally be held in prison service establishments. Of those, about 400 are the direct result of the loss of over 1,600 places at Manchester Prison last year. The rest result, either directly or indirectly, from a series of industrial disputes in the South and North East. Every effort is made by prison service management to keep the number of people in police cells to a minimum. I am glad to say that the numbers have already been reduced from a high of over 1,100 last September and over 800 at the beginning of April to some 500 now.

When one listens to the pertinent and powerful speeches by noble Lords, one would think sometimes that the Prison Department of the Home Office was not concerned about the matter and did not mind whether prisoners were kept in police cells. Of course the department is concerned. It makes every effort to ensure that it does not happen. Over the next two years, 10 new local prisons and remand centres will open as part of a major building programme initiated by the Government—part of the will to which the noble Lord, Lord Hutchinson, referred with such power. That is what is being done. However, in spite of that, no one can guarantee that at times of emergency such as we have seen over the past year it may not be necessary, and at very short notice, to resort to the use of police cells.

It may well be that some kind of statutory time limit such as Lord Justice Woolf recommended or as the amendment of the noble Lord, Lord Richard, proposes would help to concentrate everyone's minds on avoiding the use of police cells. We shall consider that matter in regard to Lord Justice Woolf's proposals, but it is not quite as easy as saying, "Let's abolish the practice". Under the new clause proposed by the noble Lord, Lord Richard, I am not sure what would happen at the end of the four-day period for holding a prisoner in police cells if no prison place had been found. What would happen to the prisoner? His continued detention by the police would be unlawful, but it would also be unlawful to release him. We would put the police in an intolerable position.

Noble Lords might say, "Well, that is up to the prison service. It should jolly well find a place for prisoners in order to relieve the police of that difficulty". However, in an emergency caused frequently by disturbances or industrial action outside people's control, that simply might not be possible. The amendment provides a safety valve in the ability of the Secretary of State to lay an order under subsection (2) to suspend the effects of the new clause in an area for up to six months. No such order could have effect unless it was approved by resolution of both Houses of Parliament. However, that is a pretty cumbersome procedure, particularly if it is to be at a period of operational emergency which gives rise to the need to use it. I am not sure what would happen if an emergency arose during a Recess.

This is a matter of great concern to the Government. We are doing our best. None of us wants to see prisoners in police cells, but the noble Lord's amendment would not help and would make the problem more difficult.

Lord Harris of Greenwich

I find that a deeply disappointing reply. Nothing is more certain than that, if we allow the Bill to go through unamended—it is a matter of debate whether this amendment is the precise way to deal with the problem—we shall have a similar debate in 12 months' time, two years' time, three years' time and four years' time. Whoever represents the Home Office in this House will make a speech remarkably similar to that just delivered by the noble Earl, Lord Ferrers.

I do not doubt that Ministers would prefer not to have this state of affairs. Of course they do not want it. However, as the noble Lord, Lord Knights, said, when the matter was first raised with the police—I speak with direct knowledge of the matter—the reason given was to deal with a difficult, limited problem of industrial relations.

When I was a Minister in the Home Office dealing with that question and it looked as though there would be an industrial relations problem of considerable severity, we had no power to put people into police cells. We had a meeting with the Ministry of Defence to tell its officials that they would have to open up camps on Salisbury Plain in order to deal with the situation. That seems to me to be an infinitely better way of dealing with the matter. However, without wishing to point the accusing finger at the Ministry of Defence, I must tell the Committee that the enthusiasm for becoming involved in that project was extremely limited. There was some suggestion that its officials did not want to come to the meeting. It took us a great deal of time to persuade them to do so.

The conditions in police cells, as described by Lord Justice Woolf, are wholly unacceptable in a civilised society. If we do not insist on an amendment of this character, we shall, as I indicated, have further debates on the matter. There are 500 prisoners in police cells at the moment. When there is another dispute of some kind, the figure will go up to 800, 900 or 1,000. At one time, relatively recently, it went up to 2,000, with a special unit at Scotland Yard having to make arrangements for sending prisoners to all parts of England and Wales, and every police force in England and Wales, with the exception of Dyfed-Powys in Wales, was holding Home Office prisoners.

If the noble Earl, Lord Ferrers, were to say—I am not trying to put words in his mouth or to trap him—that he would look at the matter again and that the Government would prefer a negative procedure, I am sure that the noble Lord, Lord Richard, and I would not be difficult about that. The matter could be dealt with in many ways. The clause could be accepted and the Government could say that they will implement the proposal as soon as the 10 new prisons are open. If the Committee does not insist on an amendment of this character, those intolerable conditions will continue.

Lord Donaldson of Kingsbridge

We must insist on the amendment, but I should like to make one small comment. For 15 to 20 years now I have urged a solution with which most people are too nervous to agree; namely, that we should adopt the one in, one out system. In other words, you cannot send a man to prison if there is no room for him without letting somebody out by Executive release. It is the easiest possible thing to do. It makes no difference to a man with a six-month sentence if he comes out one day early. I know that certain Members will not agree with that; I can see one who clearly does not. I put forward the idea as something to be considered.

Lord Richard

One in, one out is not part of our amendment. I do not wish to jettison the noble Lord, Lord Donaldson, but we have chosen to fight the issue on fairly narrow ground.

I too was disappointed with what the noble Earl said. He says, "What about an emergency?". The emergency has lasted 11 years. I find it difficult to work out precisely why, apart from seven days during those 11 years—

Lord Harris of Greenwich

It was 48 hours.

Lord Richard

—the noble Lord, Lord Harris, says that it was 48 hours—when Sir Leon Brittan was Home Secretary, no prisoners were held in police cells. If that is true it is an extraordinary emergency that seems to have gone on for such a great length of time. I understand why the noble Earl does not want to admit it—one knows about the blandishments that come from the Box and so on—but the truth of the matter is that it is convenient. It is convenient to have a system in which one can pop people into custody in police cells, even if it is only for a limited period of time. If that system did not exist and if the convenience were not available—it will not be available if our amendment is passed—I am perfectly certain that alternative arrangements would be made.

It is extraordinary that the Minister justifies the continuation of this practice at a time when the prison population is falling. Indeed the Government take great credit for building and having built new prisons. I go as far as the noble Lord, Lord Harris of Greenwich, and say that, if the Minister wants a negative procedure, then, very well, he shall have it. But on the substance of the amendment I believe that there is no alternative but to take the opinion of the Committee.

7 p.m.

Earl Ferrers

Before the noble Lord takes the opinion of the Committee—he is perfectly entitled to do so if he wishes—perhaps I may say a few words.

The noble Lord, Lord Harris, as usual made a very powerful speech. He said that this practice had been going on for ages and that if we did not press this matter now we should all be back here in two or three years' time. He said that when he was a Minister he had no power. Both he and the noble Lord, Lord Richard, rather pooh-poohed what the Government have done. In fact during the period when the noble Lord was a distinguished Minister there was a freeze on all prison building. The noble Lord wishes to say something. I know that it is discomfiting to him—

Lord Harris of Greenwich

With great respect, that is totally untrue.

Earl Ferrers

The noble Lord says that it is untrue. We shall not go into whether or not it is true.

Noble Lords

Oh, oh!

Earl Ferrers

Well, perhaps we had better go into whether it is true or not. According to my records it is true that during that period there was a freeze on all new prison buildings. Be that as it may, we have spent this sum of £1,000 million. We are building and intend to build new prisons. The noble Lord, Lord Richard, says that that is not good enough. Let me ask him one question. If noble Lords in Committee accept the amendment of the noble Lords, Lord Richard and Lord Harris, what happens after prisoners have been in police custody for four days in an emergency? What happens to them? Where do they go?

Lord Richard

With great respect that is a non-question. If the time limit is four days I cannot believe that any policeman or anyone from the Home Office will be so silly as to wait until the 24th hour of the fourth day before they try to make alternative arrangements. The answer is that, if they are faced with a deadline and know that after a certain period of time on a certain day the axe will fall and they will no longer be legally entitled to keep the accused in a police cell, the arrangements will have been made long before.

In any case, I put it to the Minister that at the end of the four days there may be a number of alternatives, even if those concerned are so supine as to have done nothing in the four-day period. They can take the accused before a court or allow him bail. All sorts of possibilities occur to me. I put those two in front of the Minister now. However the most important question is this. Is he telling us that they will do absolutely nothing during the four-day period? I find that very hard to believe.

Finally, the noble Earl says that there was a freeze on prison building when the noble Lord, Lord Harris, was at the Home Office. I say to the noble Earl only that there were not prisoners in police cells when the noble Lord was at the Home Office. I believe that this is an issue on which we should test the opinion of the Committee.

Lord Harris of Greenwich

Perhaps I may just pop up after the noble Lord, Lord Richard. I know that we want to get on with the debate but I want to say just a few words. I shall take the noble Earl's apology in advance. The statement that he made to the effect that there was a total freeze on prison building is untrue. I think he knows me well enough to know that if I make that statement it is probably accurate. I can assure him that the briefing that he received from officials cannot include such a statement because before officials put submissions to Ministers they check the accuracy of the statement.

Even at this stage will the noble Earl agree to look again at this matter? I accept that the Government may find that the present language of the amendment is not acceptable to them. However, given the fact that we have indicated that we are perfectly prepared for the Government to reconsider the language of the amendment and take into account what Lord Justice Woolf said, as well as the fact that within a measurable period, as indicated by the noble Earl, there will be these new prison places, can there be a clause of this kind in the Bill which the Government would agree to bring into effect when the new prisons are opened? That seems to me a very reasonable suggestion, I hope that the noble Earl will accept it.

Earl Ferrers

The noble Lord, Lord Harris, invites me to consider the matter. I am as concerned as he is and of course I shall consider what the Committee has said. But what I cannot do—I really mean it—is to give, by saying that I will consider the matter, an indication to the noble Lord that I shall be able to meet his point of view.

I know that he finds it hard to believe but we are at one upon this matter. We do not like to have prisoners in police cells. We do not put them in there for fun. The noble Lord, Lord Richard, seems to consider that we put them in police cells when in fact they could quite easily be put into prisons. The noble Lord did not say it but that is the implication of his words. He said that if we accept this amendment we shall be able to get the prisoners out of the police cells. Where will they go? The noble Lord says that they will go into the prisons. If that is so, the inference is that if we put them in police cells they are put there when it is in fact unnecessary.

I cannot give the guarantee that I can bring anything back on Report but of course I shall consider the points that have been made.

Lord Richard

I am sorry but I do not think that we are any further forward than the last time that I spoke on this matter. I think it right that we should take the opinion of the Committee.

7.7 p.m.

On Question, Whether the said amendment (No.96) shall be agreed to?

Their Lordships divided: Contents, 61; Not-Contents, 79.

DIVISION No.2
CONTENTS
Addington, L. Knights, L.
Airedale, L. Lawrence, L.
Ardwick, L. Lockwood, B.
Attlee, E. Longford, E.
Birk, B. Mayhew, L.
Bonham-Carter, L. Molloy, L.
Boston of Faversham, L. Monkswell, L.
Carmichael of Kelvingrove, L. Morris of Castle Morris, L.
Carter, L. Napier and Ettrick, L.
Clinton-Davis, L. Nicol, B.
Dean of Beswick, L. Ogmore, L.
Donaldson of Kingsbridge, L. Oram, L.
Dormand of Easington, L. Palmer, L.
Falkland, V. Parry, L.
Gallacher, L. Pitt of Hampstead, L.
Galpern, L. Prys-Davies, L.
Gladwyn, L. Raglan, L.
Graham of Edmonton, L. [Teller.] Richard, L.
Robson of Kiddington, B.
Halsbury, E. Rochester, L.
Hampton, L. Russell, E. [Teller.]
Harris of Greenwich, L. Seear, B.
Henderson of Brompton, L. Sefton of Garston, L.
Hollis of Heigham, B. Serota, B.
Houghton of Sowerby, L. Tordoff, L.
Hutchinson of Lullington, L. Turner of Camden, B.
Jeger, B. Underhill, L.
John-Mackie, L. Whaddon, L.
Kennets, L. White, B.
Kinloss, Ly. Winstanley, L.
Kirkwood, L. Wyatt of Weeford, L.
NON-CONTENTS
Abinger, L. Lauderdale, E.
Acton, L. Lindsey and Abingdon, E.
Ailesbury, M. Long, V.
Allenbys of Megiddo, V. Lucas of Chilworth, L.
Arran, E. Lyell, L.
Astor, V. Macleod of Borvesa, B.
Beloff, L. Mancroft, L.
Blatch, B. Margadale, L.
Blyth, L. Mersey, V.
Boardman, L. Monteagle of Brandon, L.
Borthwick, L. Mottistone, L.
Boyd-Carpenter, L. Mountevans, L.
Brookeborough, V. Munster, E.
Butterworth, L. Murton of Lindisfarne, L.
Caithness, E. Nelson, E.
Cavendish of Furness, L. Norrie, L.
Clanwilliam, E. Nugent of Guildford, L.
Colnbrook, L. Onslow, E.
Colwyn, L. Orkney, E.
Cork and Orrery, E. Park of Monmouth, B.
Craigavon, V. Pearson of Rannoch, L.
Craigmyle, L. Pender, L.
Davidson, V. [Teller.] Platt of Writtle, B.
Eccles of Moulton, B. Rankeillour, L.
Elles, B. Reay, L.
Ferrers, E. Sharples, B.
Flather, B. Skelmersdale, L.
Fortescue, E. Stodart of Leaston, L.
Fraser of Carmyllie, L. Strange, B.
Gisborough, L. Strathcarron, L.
Greenway, L. Strathmore and Kinghorne, E.
Grimston of Westbury, L. Thomas of Gwydir, L.
Hardinge of Penshurst, L. Trumpington, B.
Harmsworth, L Ullswater, V.
Harvington, L. Vaux of Harrowden, L.
Haslam, L. Waddington, L.
Henley, L. Wade of Chorlton, L.
Hooper, B. Wynford, L.
Howe, E. Young, B.
Johnston of Rockport, L.

Resolved in the negative, and amendment disagreed to accordingly

7.15 p m.

Clause 67 agreed to.

Clause 68 [Contracting out of certain remand prisons]:

The Deputy Chairman of Committees (Lord Murton of Lindisfarne)

If Amendment No. 96AZA is agreed to I shall not be able to call Amendment No. 96ZA through pre-emption.

Lord Richard moved Amendment No. 96AZA: Page 45, line 17, leave out subsection (3).

The noble Lord said: The amendment is designed to deal with the position that has arisen as a result of an amendment to the Bill by the Government at a very late stage. The issue relates to privatisation of prisons—not prison escort services or magistrates' court clerks or security officers in magistrates' courts. Originally the clause was confined to remand prisons. However, by an amendment which is now subsection (3) of Clause 68—which I am bound to say is remarkable in its almost Proustian complexity—the Government give themselves the power to privatise any prison, either remand or non-remand, by a resolution of each House of Parliament. The amendment is somewhat breathtaking, first, in its scope, and, secondly, in the way in which that has been achieved.

We are totally opposed to the proposals. We are opposed to the proposals to privatise remand prisons. We are even more opposed to the provision that gives the Government the power to privatise Wormwood Scrubs, Wandsworth, Parkhurst or any of the major prisons for adults.

The case against privatisation was put very eloquently in another place in July 1987: I do not think that there is a case. I do not believe that the House would accept that there is a case for auctioning or privatising the prisons or handing over the business of keeping prisoners safe to anyone other than government servants".

Those words were used by Mr. Hurd, the current Foreign Secretary, when he was Home Secretary. I know not what dramatic change has taken place between July 1987 and today to alter that approach, which on the whole I can accept. I do not know what dramatic change has taken place to alter the approach as to w tether prisons should be run by the state or some private organisation.

I am conscious of the time and although one could continue at length, I believe that what Mr. Hurd said encapsulates the argument. It is quite simply wrong in principle, in our view, that prisons should be run by anyone other than government servants. After all, we as a society put people in prison. We deprive them of their liberty. It is right that the organisation of how they are deprived of liberty and where they go when they are deprived of it should be in public hands. I beg to move.

Baroness Faithfull

Perhaps I may clarify a point before I comment. Is the noble Lord referring to prisons or remand prisons?

Lord Richard

I am referring to prisons. Subsection (3) gives the Government the right by statutory instrument to privatise Wormwood Scrubs. As a piece of legal drafting it is extraordinarily complex. However, if the provision remains in Clause 68 the Government, by resolution of each House of Parliament, could privatise Wormwood Scrubs, Wandsworth, or other prisons.

Lord Harris of Greenwich

That is a quite extraordinary proposition. When Mr. Hurd indicated that he was considering having one or two private sector remand establishments, I took the view then, as I take now, that that was a sensible proposal. However, between the Committee and Report stages of the Bill in the House of Commons this extraordinary amendment was passed.

The noble Baroness asked a reasonable question. This extraordinary proposition is described in the Bill. As the noble Lord, Lord Richard, said, by an affirmative resolution procedure in the House of Commons—with a debate of an hour and a half—every prison in England and Wales can be turned into a private sector establishment.

Perhaps I may ask a few questions. First, what about the compensation arrangements for the staff who presumably will be fired? I speak with knowledge in saying that there will be little enthusiasm to offer terms of employment to those who already work in the prisons. The language in which the proposal is put to Parliament is in the following terms—and I am sure that if the Minister put away his brief for one moment he would be able to explain to the Committee precisely what it means. Clause 68(3) states: The Secretary of State may by order made by statutory instrument provide that this section shall have effect as if there were omitted from subsection (1) above either—

  1. (a) paragraph (a) and the word 'and' immediately following that paragraph; or
  2. (b) paragraph (b) and the said word 'and'; or
  3. (c) the words from 'which', in the first place where it occurs, to the end of paragraph (b)".
That is the clear language in which the Government have put the proposal before us. If acted upon it could lead to every prison in England and Wales being transferred to private ownership. No country in the world hands over all its prisons to private contractors. One has only to consider the full implications of the proposal to realise what utter nonsense it is.

One may ask, "If it it nonsense, why have the Government come forward with the proposal?". It may be in passing some ideological enthusiasm, but I suspect that there is a different reason. It is a way of putting pressure on the Prison Officers' Association. If that is the idea, as one with some direct knowledge of that admirable organisation, perhaps I may tell the Minister that if the Government believe that it will work they will have an unpleasant surprise. If the proposal were ever seriously put forward by any government there would be appalling consequences to industrial relations throughout the whole prison estate. For those reasons, I am wholly in favour of the amendment moved by the noble Lord, Lord Richard, and I hope that the Committee will agree to it.

Lord Henderson of Brompton

The noble Lord, Lord Richard, said that he knew not—using the quaint language of lawyers—what had induced the Government to put this clause into the Bill. The noble Lord, Lord Harris, speculated upon one reason and said that he expects dire results to follow. My speculation is equally as near the bone. It is that the people who will run the private prisons have suggested to the Government in strong terms that it will not be worth their while to run one or two remand prisons and want a big slice of the cake before it is profitable. That has been a powerful argument to which the Government have acceded, perhaps mixed with that suggested by the noble Lord, Lord Harris.

For either reason the provision is highly undesirable. After some persuading I agreed that it would be possible to carry out an experiment with a private prison but in respect of a remand prison only. Normally the Government are cautious in breaking new ground. They put a toe into the water and test the temperature before going out to bathe. However, in respect of this important new ground the Government are attempting to swim before discovering the temperature. It is probable that they will invite trouble by doing so. I regret that the proposal has been put forward and I hope that the subsection will be deleted from the Bill. I am not very hopeful, but I hope that the Government will listen to what has been said.

Baroness Faithfull

I am afraid that some Members on these Benches do not understand the clause. It is headed "Remand prisons" and has the side heading "Contracting out of certain remand prisons". If the provision includes prisons overall I am unable to agree to it. However, I believe that it would be a good idea to have remand prisons in the private sector because remand prisoners have not been found guilty.

I have a cousin in America who is a federal judge. During the summer I spend time there and mingle with members of the legal profession whose company, I say to the noble Lord, Lord Hutchinson, I enjoy. I have visited some remand centres in America. The effect on the men of good, well run remand centres is surprising. Many return immediately from remand into the community. Some Members of the Committee saw a film with an American commentary and were most impressed by it. I hope that it will be possible to have remand centres in the private sector.

Lord Richard

Before the Minister replies perhaps I may point out to the noble Baroness, Lady Faithfull, the effect of the amendment on Clause 68(1). Clause 68(3) states: The Secretary of State may by order made by statutory instrument provide that this section"— and that applies to the whole of Clause 68— shall have the effect as if there were omitted from subsection (1) above either— (a) paragraph (a) and the word 'and' immediately following that paragraph". Clause 68(1) states: The Secretary of State may enter into a contract with another person for the running by him of any prison which"— and one then takes out paragraph (a) and the word "and" so that the subsection continues: is for the confinement of remand prisoners". That is the first alternative. The second alternative is to take out paragraph (b) so that the subsection reads: The Secretary of State may enter into a contract with another person for the running by him of any prison which … is established after the commencement of this section". There again the provision is not confined to remand prisoners. The third alternative is to omit: the words from 'which', in the first place where it occurs, to the end of paragraph (b)". The subsection will then read: The Secretary of State may enter into a contract with another person for the running by him of any prison". The rest of the subsection is then deleted. The provision is not confined to remand prisons.

Baroness Faithfull

At this time of night my IQ is low. I am grateful to the noble Lord for explaining the provision to me. Perhaps Members of the Committee can be excused for not understanding it because the clause is headed "Remand prisons". The situation is muddling and confusing and I am most confused.

I strongly support the case for remand centres. In debating Amendment No. 96 we spoke of men in police cells. At present we cannot build new centres because we do not have the money, but if we are to get men out of police cells we must have remand centres in the private sector. I strongly support that proposal. If that is a success, one does not know what might happen to the prisons. I understand from the explanation given by the noble Lord, Lord Richard, that this is a most muddled clause.

Lord Hutchinson of Lullington

Is the noble Baroness making a distinction of principle between the private sector being allowed to run institutions for people who are in law innocent and have not been proved guilty of anything and institutions for convicted persons?

Baroness Faithfull

At present I am referring to the private sector running remand centres for people who have not been tried and who are at that point in time not guilty.

7.30 p.m.

Earl Russell

I shall not detain the Committee long on this point but I must add to the voices which say that this is wrong in principle. That a private citizen not acting as a servant of the Crown should have control over the liberty over another seems to me to be out of order. Also this is not the way to legislate. However, I shall not elaborate on that point.

I mention only the dual control system laid out in Clause 68 between the director and the controller. In any normal circumstances the Chamber would wish to scrutinise very carefully indeed how that is to be done. However, the resolution procedure does not allow that. In any privatisation the central point is that there should be a legitimate profit to be made. I have never understood how in the case of prisoners a legitimate profit can be made.

There are two ways in which that could be achieved. One is by giving a fixed sum of money on which the director is to run the prison and keeping any savings within that figure—what used to be known as the farming system. That would create an incentive to keep the prisoners in the cheapest conditions possible. Prisoners are not a free market. In the literal sense of the word, they are a captive market.

Baroness Faithfull

Is the noble Earl talking about prisoners or remand prisoners: prisoners are those who have been found guilty and remand prisoners those who have not yet been found guilty?

Earl Russell

I understand that this clause is capable of applying to both. It seems to me also that the arguments which I am putting forward are also capable of applying to both. I cannot see that a legitimate profit can be made in either case. A system of relying on a fixed contract sum creates an incentive to skinflint.

This has been done before. It used to be done by charging prisoners. A few moments ago in the Library I was looking at the examination in another place of the Warden of the Fleet in 1621. He used duress to obtain money from prisoners. He used to charge them 2s. 4d. per week to live 10 in a cell. If he did not obtain the payment, he fetched them out of their beds at midnight and put them in the dungeon without any clothes. I shall not continue with the cruelties committed by the Warden of the Fleet, but they were considerable.

I believe that the Government are underrating the power of the profit motive. No doubt they will tell us that there is regulation. However, it seems unwise to give people an incentive to do something and then set up a regulatory system to ensure that they do not do it. I cannot see either in the case of remand or convicted prisoners how a lawful profit can be made from this except by the infliction of unnecessary hardship on prisoners. I am astonished that the clause is in the Bill.

Baroness Faithfull

In the United States the remand prisoners in privately run prisons are much better off than prisoners in state prisons. I know that the noble Earl has great principles, but when I think of the state of our prisons in this country I believe that realism must enter into life. It is unrealistic that remand prisoners—those who have not yet been convicted of a crime—should be kept in cells in prison. I understand the argument of the noble Earl, Lord Russell, but I believe that prisoners will be better off under the proposed system than they are at present.

Earl Russell

There may be cases where the system works properly, and I listened to what the noble Baroness said about the United States. However, the case I quoted about the Warden of the Fleet is far from unique. I know of a great many cases in which profit motives have led to gross abuses in the management of prisons. The number I know about is so great that I believe it is likely to happen again.

Earl Ferrers

That may well be so, but the noble Earl, Lord Russell, will realise that one of the features of our debate has always been the criticism of prison conditions and how they should be better. The noble Earl's experience may be that in some privatised prisons conditions are worse. However, as a general principle, if a success is made of privatisation that is not necessarily at the expense of the person who is being looked after.

The noble Earl said that this would be possible only by inflicting unnecessary hardship on the prisoners. If any form of privatisation were to come about, the way in which the prison would operate—whether it be for remand or convicted prisoners—would be under a very tight contract. That tight contract would ensure that prisoners were properly looked after. Contractors would receive payment from the Home Office for looking after the prisoners for a fee set out in the contract after competitive tendering. If the contractors operated efficiently and could budget properly, they would make a fair profit. That profit does not have to be made at the expense of the prisoners.

When this clause was discussed in Committee in another place the view was then put forward that we should go further than the Bill originally allowed and permit a much greater degree of private sector involvement in the prison system from the word go. It was argued that there should be an enabling power not limited to the new remand centres so that we could take advantage of opportunities which may arise in the future to employ the private sector in other parts of the prison system.

We did not believe that it would be advisable to extend the contracting out initiative to prisons holding sentenced prisoners before we had gained experience of contracting out for prisons in the remand sector. Hence the reason that my noble friend Lady Faithfull is confused. Originally this part of the Bill referred to remand centres and an addition was made in another place. My noble friend finds confusing the notes in the margin. However, they are not part of the parliamentary drafting, although it is up to the parliamentary draftsmen to correct them. They do not form a substantive part of the Bill.

Subsection (3) enables us to take a step-by-step approach to contracting out in the prison system. The remand sector is a distinct part of that system and, as my noble friend recognises, some of the considerations relating to remand prisoners are different from those relating to convicted prisoners. That is one reason why, when we were developing proposals for a trial of contracting out, we concentrated on the remand sector. That is still right. Contracting out should, at least at the start, be confined to the remand sector.

The noble Lord, Lord Harris, said that he finds the wording of the clause difficult, as did my noble friend Lady Faithfull. I agree with them. I too find it difficult. I put a proverbial wet towel around my head and considered it for quarter of an hour just in case a Member of the Committee such as the noble Lord, Lord Harris, said that it is so difficult that it could not be understood. I shall explain the matter in simple terms. The complicated wording of Clause 68(3)(a) enables the contracting out of all existing remand prisons. Subsection (3)(b) refers to all new establishments, whether they are for remand or sentenced prisoners. Subsection (3)(c) allows the contracting out of all existing and new establishments, whether they are for remand or sentenced prisoners.

Clause 68(3) would enable the contracting-out power to be extended to allow the contracting out of established prisons for convicted prisoners but only—and this is important—if my right honourable friend the Home Secretary came back specifically for parliamentary approval under an order subject to affirmative resolution procedure. That is the right way to proceed.

The noble Lords, Lord Richard and Lord Harris of Greenwich, made a great meal of the matter. They said that every prison would contract out, from Wormwood Scrubs to Pentonville. In theory that is a possibility. However, in the beginning it is right to sound a cautionary note. At the moment only one prison, the new Wolds Remand Centre in Humberside, is a candidate for competitive tendering. If a suitable tender is received that prison may be contracted out. No new remand centres are being built or planned. Therefore, in regard to contracted-out remand centres, that will be the only one for the foreseeable future. At present there are no plans to contract out prisons for convicted prisoners or for existing establishments. If we decided to go down that road we should first wish to see how well the contracting out at Wolds had gone, and whether there were any lessons to be learned from that. There would also be a need for full and proper consultation about any proposal to invoke the power conferred by Clause 68(3).

We must remember that interested parties have been asked to comment on the basis that only remand prisons would be affected. It would be wrong to deny them the chance to comment further if there were to be any substantial change in the scope of the exercise. If any question were to arise on the contracting out of existing establishments we should need to give careful and sensitive consideration to the position of the existing staff; a fact to which the noble Lord, Lord Harris, referred.

The noble Lord, Lord Richard, and others made a fundamental point regarding the fact that the state takes away the liberty of the subject and only servants of the state should be employed to run prisons. The decision whether or not to deprive somebody of his liberty is a matter for the state through the courts. But there is no reason why the task of caring for those prisoners should be carried out only by servants of the state. Contractors would be employed and would work on behalf of and under the control of the Secretary of State.

I hope that from what I have said Members of the Committee will not expect the direction of the contracting-out initiative to change overnight as a result of Clause 68(3). However, it gives the Government the ability, which would be helpful not least in the light of the proposals recommended by Lord Justice Woolf, to look at the future of the prison system. If the benefits of contracting out are demonstrated by the experience of the Wolds Remand Centre—as I hope they will be—it would be a pity not to be in a position to extend those benefits to other parts of the prison system subject to parliamentary approval. That is what subsection (3) seeks to do and I suggest it is appropriate to keep it.

Lord Harris of Greenwich

The noble Earl tells us that it is wrong to suggest that Wormwood Scrubs, Brixton and so forth are to be privatised in some way; yet this clause gives the Secretary of State the power to do just that. That is the first consideration. It is not as though we are experiencing some nightmare vision. It is the Government's clause which gives the Secretary of State the power to do precisely that.

The noble Earl says that we shall conduct an experiment. As I indicated, I am not against the experiment; I thought it was rather a good idea. The noble Earl says that it would be a pity if, supposing the experiment were successful, the Government found that they could not extend similar arrangements to a whole swathe of other prisons. Yet a few moments ago we were asking the noble Earl to agree to a provision in regard to police cells, which would not have to be activated for two or three years, on a problem which he acknowledged was a matter of grave concern to him and to his ministerial colleagues. That gives an extraordinarily interesting indication of the priorities of the noble Earl and some of his colleagues.

The provision is one of the most remarkable I have seen in any piece of legislation, conferring powers on Ministers that I do not believe would be replicated in any other democracy in Western Europe. It is wholly objectionable in principle and we shall vote against it.

Lord Tordoff

Before the noble Earl responds, I should like to say something on the general principle of using affirmative orders for this purpose. As the Minister knows, this House does not vote against affirmative orders; nor has it the power to amend such orders. The Minister says that the provision can be given full parliamentary scrutiny after experiments have been carried out, but in practice that is not the case.

The convention in your Lordships' House—and it is only a convention—is that we do not, for good and sufficient reasons in relation to another place, vote against affirmative orders. If the Government persist in bringing forward legislation of this severity and importance on affirmative resolution, they will find that this Chamber will start to vote against affirmative orders.

Earl Ferrers

Perhaps I may respond briefly to that point. The noble Lord, Lord Tordoff, is not unreasonable in what he says. However, perhaps I may remind him that there have been occasions when that happened in the past or when the threat of it has arisen. I have had experience of that but, if I may say so, that may have been before the noble Lord, Lord Tordoff, became a distinguished Member of this House. On the Stanstead Order an order was made in both Houses of Parliament and the public outcry was such that the likelihood was that it would be voted against in this Chamber. The Government withdrew the order on account of that fact. Although a vote was not taken, the pressure was there.

Lord Richard

I am grateful to the noble Earl for confirming the point about which the noble Baroness, Lady Faithfull, was concerned. There is no doubt that subsection (3) gives the Government the right to privatise any prison—Wormwood Scrubs, Parkhurst or Holloway. Whichever prison one chooses the Government will have the power to do it; all they must do is put a resolution through the House.

The noble Baroness says that she wishes to preserve the right to privatise remand prisons. If subsection (3) is taken out of Clause 68, the power to privatise remand prisons is contained in subsection (1). If subsection (3) is removed the Government will still have the power—indeed that was the original purpose of the clause before this extraordinary addition was made by means of subsection (3)—under subsection (1) to, enter into a contract with another person for the running by him of any prison which (a) is established after the commencement of this section". That is the first point, that it must be established after the commencement of the section. It continues, and [not or] is for the confinement of remand prisoners". Therefore that power exists independent of subsection (3).

They Minister says that all the Government are concerned with is to have an experiment in relation to one remand prison; that they will look at it and come back, and there may perhaps be one or two other remand prisons that could be included. They already have the power under subsection (1) to do that. They do not need the power that they have taken to themselves in subsection (3).

Subsection (3) opens the door to such an extent that I marvel at the fact that it is in the same clause and indeed, in the same Bill. It would be totally wrong to give the Government, when they come here and ask for the right to enter into an experiment in relation to one remand prison, on an extraordinarily convoluted amendment moved at Report stage in another place, the power to move to the privatisation of the major penal establishments in England and Wales. There is a major difference in character between a remand establishment and a full penal establishment. If they want:o move into the privatisation of full penal establishments, then they should return to this Chamber to ask for that to be done and not ask to do it in this extraordinary way by an affirmative resolution of both Houses. I understand that by convention this Chamber would not throw it out. In all the circumstances it is right to take the opinion of the Committee.

7.50 p.m.

On Question, Whether the said amendment (No.96AZA) shall be agreed to?

Their Lordships divided: Contents, 52; Not-Contents, 72.

Division No. 3
CONTENTS
Acton, L. Galpern, L.
Addington, L. Graham of Edmonton, L. [Teller.]
Airedale, L.
Attlee, E. Hampton, L.
Birk, B. Harris of Greenwich, L.
Bonham-Carter, L. Henderson of Brompton, L.
Boston of Faversham, L. Hollis of Heigham, B.
Brooks of Tremorfa, L. Houghton of Sowerby, L.
Carmichael of Kelvingrove, L. Hutchinson of Lullington, L.
Carter, L. Kinloss, Ly.
Clinton-Davis, L. Lockwood, B.
Craigavon, V. Longford, E.
Dean of Beswick, L. Masham of Ilton, B.
Dorman of Easington, L. Mayhew, L.
Faithfull, B. Monkswell, L.
Falkland, V. Nicol, B.
Ogmore, L. Seear, B.
Palmer, L. Sefton of Garston, L.
Park of Monmouth, B. Serota, B.
Parry, L. Thomson of Monifieth, L.
Pitt of Hampstead, L. Tordoff, L. [Teller.]
Prys-Davies, L. Turner of Camden, B.
Rea, L. Underhill, L.
Richard, L. Vaux of Harrowden, L.
Robson of Kiddington, B. White, B.
Rochester, L. Winstanley, L.
Russell, E.
NOT-CONTENTS
Abinger, L. Jenkin of Roding, L.
Arran, E. Johnston of Rockport, L.
Astor, V. Lindsay, E.
Beloff, L. Lindsey and Abingdon, E.
Blyth, L. Long, V. [Teller.]
Boardman, L. Lucas of Chilworth, L.
Borthwick, L. Lyell, L.
Boyd-Carpenter, L. Macleod of Borve, B.
Butterworth, L. Mancroft, L.
Caithness, E. Margadale, L.
Carnock, L. Mersey, V.
Cavendish of Furness, L. Monteagle of Brandon, L.
Clanwilliam, E. Mottistone, L.
Colwyn, L. Mountevans, L.
Cork and Orrery, E. Murton of Lindisfarne, L.
Craigmyle, L. Napier and Ettrick, L.
Cross, V. Norrie, L.
Cumberlege, B. Nugent of Guildford, L.
Davidson, V. [Teller.] Onslow, E.
Eccles of Moulton, B. Orkney, E.
Elles, B. Pearson of Rannoch, L.
Elliot of Harwood, B. Rankeillour, L.
Ferrers, E. Reay, L.
Flather, B. Skelmersdale, L.
Fortescue, E. Stodart of Leaston, L.
Fraser of Carmyllie, L. Strange, B.
Gardner of Parkes, B. Strathcarron, L.
Gisborough, L. Strathmore and Kinghorne, E.
Grimston of Westbury, L. Thomas of Gwydir, L.
Hardinge of Penshurst, L. Trumpington, B.
Harmsworth, L. Ullswater, V.
Harvington, L. Waddington, L.
Haslam, L. Wade of Chorlton, L.
Henley, L. Westbury, L.
Hooper, B. Wyatt of Weeford, L.
Howe, E. Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.

Earl Ferrers

It may be for the convenience of the Committee if we break at this moment. I beg to move that the House do now resume.

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

House resumed.

Lord Reay

My Lords, I suggest that we do not return to the Committee stage of the Bill before nine o'clock.