Sitting of 21 September 1972

Preamble
The House met at half past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Bath and Wells.

B.E.A. WEST LONDON AIR TERMINAL
BARONESS BURTON OF COVENTRY: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they are in a position to make a statement upon discussions which have take place between trade union and staff representatives concerning the proposed withdrawal of check-in facilities at the British Airways West London Air Terminal and, if not, whether they will make a progress report indicating aspects under discussion.
EARL FERRERS: My Lords, British European Airways are considering proposals emerging from the discussions to which the noble Baroness has referred. B.E.A. have in any case decided not to withdraw check-in facilities at West London Air Terminal in the course of 1973.
BARONESS BURTON OF COVENTRY: My Lords, while welcoming that respite, may I ask whether the noble Earl could be a little more explicit, because his Answer is rather surprising? I should like to ask whether he recalls that on July 28 he told me that no decision affecting the proposed withdrawal of check-in facilities at Gloucester Road would be reached until the discussions at this particular meeting had been fully considered. While, as I say, welcoming the respite, can the noble Earl say why we have been given this additional period before any such suggestions have been fully considered, and whether we might perhaps hope for a further period, extending until the completion of the rail link?
EARL FERRERS: My Lords, the noble Baroness is very hard to satisfy. She will be aware that there are discussions going on with the trade unions, as has been referred to. She will also be aware that there is a study group operating at Heathrow Airport at the moment. I have always told the noble Baroness that British European Airways are constantly concerned to see that the consumers are adequately looked after. This is one example of the way in which the views of consumers have possibly had some effect upon the decisions.
BARONESS BURTON OF COVENTRY: My Lords, the noble Earl and I quite obviously both do our homework; but is he aware that I view his last remarks with a little scepticism? However I will leave that. May I thank him for this additional respite and hope that we shall get a longer one.
EARL FERRERS: My Lords, while I am grateful to the noble Baroness for her remarks, I was disappointed to hear her say that my last remarks she viewed with scepticism. They were supposed to have indicated some degree of compliment somewhere. However, I gather she appreciates what has been done.
LORD SHINWELL: My Lords, in view of the variety of entertaining questions which my noble friend Lady Burton of Coventry asks with unfailing regularity, would the Government perhaps consider appointing her to a Royal Commission or court of inquiry into the whole subject of what is happening at Heathrow?
EARL FERRERS: My Lords, that certainly might make matters a great deal simpler, but I do not think I can give the noble Lord, Lord Shinwell, any guarantee that it will happen.
LORD HANKEY: My Lords, as the point which the noble Baroness is making is essentially for the convenience of the passengers, would the Government consider the extraordinary inconvenience which arises from the tremendous shortage of porters? For instance, is the noble Earl aware that at Gatwick, for which there are no check-in facilities in London, it is very difficult to get luggage up to the place where it has to be checked in because, at any rate in the evenings, there are always no porters? Will the

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Government be able to see that this consideration is borne in mind when the new arrangements are made for connecting the Airport at Heathrow with the new Underground line?
EARL FERRERS: My Lords, the noble Baroness's complaint, of course, has always referred to the West London Air Terminal, coupled vigorously with Heathrow Airport. I think that to extend this complaint to Gatwick would be slightly outside the context of the original Question. The noble Baroness in fact did say the other day—or at least so one gathered —that the effect of her presence at Heathrow was an enormity of trolleys and some porters. I suggest to the noble Lord that when he next goes to Gatwick he should take the noble Baroness with him and see what happens.

SCOTTISH MUSEUMS AND GALLERIES
2.38 p.m.
LORD STRABOLGI: My Lords, I beg leave to ask the first Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will agree to a free day at the Scottish National Museums and Galleries and the Wallace Collection, if charges for admission to those institutions are introduced.
THE PAYMASTER GENERAL (VISCOUNT ECCLES): My Lords, neither the Scottish institutions nor the Wallace Collection have suggested alternative charging schemes whereby the revenue lost on free days could be recovered. If some museums have a free day it should not be at the expense of other museums or reduce the total sum collected below £1 million. I am shortly going to discuss the problem with the Chairman of the Trustees of the Wallace Collection.
LORD STRABOLGI: My Lords, while thanking the noble Viscount for that Answer, may I ask the Government whether they will not seriously consider allowing a free day, at the Trustees' discretion, with no extra charges on other
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days, at least for a trial period? The noble Viscount knows, as does the House, that it would not cost much money.
VISCOUNT ECCLES: My Lords, I have spent a great deal of time defending 10p as the basic charge. This is a very low entrance charge and I do not believe it will deter many people. If we start granting concessions, that 10p charge is in danger.
LORD STRABOLGI: My Lords, would not the Government agree that this would cost only £60,000? Is the noble Viscount aware that his Department has already spent almost a quarter of that sum on erecting the now notorious huts outside two museums?
VISCOUNT ECCLES: My Lords, it is not just a question of what it would cost at one particular gallery; it is what would happen if this became general.
LORD SEGAL: My Lords, is it too late to appeal to the Government to follow the example set by one of their Ministers who agreed to drop his plan for cost-related prescription charges, whatever the justification for them may have been, when he realised that it would antagonise many of the Government's supporters? I should like to appeal to the Government, if they will not abandon their idea of admission charges altogether, at least to postpone their imposition for as long as possible.
VISCOUNT ECCLES: My Lords, we are not imposing charges because we like charges but because we have a great many things to do to bring the museums into that state of efficiency and good amenity which everybody desires.
LORD SEGAL: My Lords, does the Minister realise that one of the great advantages of free entry into our museums is that it enables people to visit them, even for a short spell, to escape from their worries outside? Surely even a small charge is apt to deter them from enjoying this tremendous cultural advantage.
VISCOUNT ECCLES: My Lords, we are catering for those people by offering season tickets for all 18 national galleries for £1 a year.

IMMIGRATION: KENYA ASIANS AND ENTRY PERMIT APPEALS
LORD BROCKWAY: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what conclusions were reached at the discussions between Mr. Anthony McNulty, Secretary of the European Commission of Human Rights, and a Representative of the Foreign and Commonwealth Office regarding the appeals of 30 Kenyan British Asians and others against the refusal of entry permits to the United Kingdom.
THE MINISTER OF STATE, FOREIGN AND COMMONWEALTH OFFICE (BARONESS TWEEDSMUIR OF BELHELVIE): My Lords, discussions between the Commission and the parties in the course of proceedings instituted before the Commission are confidential, in the interests of all concerned.
LORD BROCKWAY: My Lords, while thanking the noble Baroness for her reply, may I ask her whether a new situation has arisen with the recognition of the rights of British passport holders to come to this country? Does not this give an opportunity to reach an agreement on this issue at the European Commission of Human Rights? There are 122 British passport holders scattered in six countries over Europe, of whom I have particulars, and between 60 and 70 people are in detention in this country. Might not this issue be settled with the European Commission of Human Rights?
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, without revealing the confidentiality of the discussions which I have described to the noble Lord, in his Question he refers to 30 Kenyan Asians when in fact there were 31. I am glad to say that they have all been accepted for residence in the United Kingdom and while discussions are going on regarding other people to whom the noble Lord referred we all hope for a friendly settlement.
LORD BROCKWAY: My Lords, I should like to thank the noble Baroness for the correction of my Question. May
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I draw her attention to a particular case? There have been 21 passport holders in Boulogne for a number of weeks. Their position was raised by the Foreign Secretary of France, M. Schumann, when he visited Mr. Heath. When the French Foreign Secretary returned to France he said that the British Government were no longer opposed to the entry of the people who were at Boulogne, and that they would be permitted to enter Britain. Is it not the case that they were, nevertheless, arrested as soon as they arrived at Dover on August 29 and are still in prison?
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, perhaps I may remind the noble Lord that his Question specifically related to 30 Kenyan British Asians, of whom I said there were 31. Therefore I am afraid that I cannot go into any details of any others.
LORD BROCKWAY: My Lords, will the noble Baroness write to me upon this matter? It is urgent and important.
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, if the noble Lord wishes to write to me on the subject of course I will look it up.
LORD BROCKWAY: My Lords, I shall be glad to do so.

SADLER'S WELLS OPERA COMPANY
LORD STRABOLGI: My Lords, I beg leave to ask the second Question which stands in my name on the Order Paper.
The Question was as follows.
To ask Her Majesty's Government why they have rejected a proposal by the Sadler's Wells Opera Company, now based at the Coliseum, to change its name to the National Opera Company.
THE PARLIAMENTARY UNDER-SECRETARY OF STATE, DEPARTMENT OF TRADE AND INDUSTRY: (THE EARL OF LIMERICK): My Lords, the application by Sadler's Wells Trust (Coliseum) Limited for a change of name has not been rejected. However, my right honourable friend the Secretary of State for Trade and Industry has reservations on the desirability of the name currently being sought. The company

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has been invited to discuss the matter with Ministers.
LORD STRABOLGI: My Lords, I thank the noble Earl for that reply. May I ask the Government whether they will therefore consider other suggestions, and whether they consider that there is certainly a strong case for a change of name, in view of the changed circumstances?
THE EARL OF LIMERICK: My Lords, of course we will consider suggestions, and my right honourable friend will consider them, but his power is limited to withholding approval. It is not for him to suggest a name. A meeting has been arranged at which this matter will be discussed.

BUSINESS OF THE HOUSE
2.49 p.m.
THE LORD PRIVY SEAL (EARL JELLICOE)THE LORD PRIVY SEAL (EARL JELLICOE) rose to move, That Standing Order No. 44 (No two stages of a Bill to be taken on one day) be suspended until Parliament is prorogued. The noble Earl said: My Lords I beg to move the Motion standing in my name on the Order Paper. The purpose of this Motion is mainly to allow us to complete all stages of the Horserace Totalisator Betting Levy Boards Bill to-morrow. I would take this opportunity of informing your Lordships that, subject to our being able to complete the Committee stage of the Local Government Bill tomorrow—as I am confident will be the case—the House will adjourn until Monday, October 16, when we shall reassemble to complete the remaining stages of a number of Bills. I am sure your Lordships will appreciate that it is rather difficult at this stage to forecast how many days we shall have to meet during October, certainly until we know how much work remains to be done during the remaining stages of the Local Government Bill, but it is expected that Parliament will be prorogued during the course of the following week—that is, the week beginning Monday, October 23. The State Opening of the new Session will take place on Tuesday, October 31.
Again with the indulgence of your Lordships, I should like just to touch on one administrative matter, and I do so with regret. It had been hoped to have
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our existing Dining Room—the Dining Room with which we are all familiar—back in full operation by the beginning of November. However, because of the six weeks' delay which has resulted from the strike in the construction industry this, I fear, will not be the case. It is now expected that the Dining Room will not be ready for use until after the Christmas Recess. I very much regret this, but it is outside my control. I understand that a fuller explanation of the position will be circulated to noble Lords with the Minute sheet to-morrow.
Moved, That Standing Order No. 44 (No two stages of a Bill to be taken on one day) be suspended until Parliament is prorogued.—(Earl Jellicoe.)
LORD SHACKLETON: My Lords, we are grateful to the noble Earl for telling us about future business. May I ask the Government for an assurance that they will not seek to bring in any major legislation and pass it through all stages in the remaining fortnight, which would be so characteristic of this year's programme—
LORD DAVIES OF LEEK: Without Amendments.
LORD SHACKLETON: —and without Amendments, as my noble friend says. May I also ask that during the last fortnight in October, when no doubt there may be time to spare for an important debate on some subjects such as violence, none the less the Government will agree not to fill it up unless this is necessary, so that the Local Government Bill, which has been debated in the most unfavourable circumstances, may be dealt with? It is a matter of chance, as to the time of day and so on, whether an Amendment to the Local Government Bill is carried. Of course, a large number of Amendments have been postponed, or at least not pressed, because of the difficulties. I make no reflection on the noble Lord, Lord Aberdare. He, like the noble Earl the Leader of the House, has been landed with this situation. My only complaint is, as I have said before, of this Government. Lord Aberdare has been conducting proceedings on this Bill with his usual consideration, but the fact remains that it has been a heavy strain and we are not doing much credit to ourselves in the way we handle it. May I ask for that point to be borne in mind?

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In regard to the Dining Room, I can only say that I regret what has been announced, although I have noticed that most noble Lords seem rather to enjoy having tea in the Cholmondeley Room and find it in some ways rather more congenial. None the less, there are disadvantages and we note the position. These are—I will not say entirely self-inflicted wounds, because the matter has got out of control. I express sympathy to some of our people, such as Black Rod and Miss Wilson, who have had to cope with the situation.
May I finally ask the noble Earl, while naturally agreeing as is traditional, to the suspension of Standing Order No. 44, whether it is not usual at this time of the year also to suspend Standing Order No. 38? I should like to ask him whether the reason for not doing so is the same as that in regard to the giving of the Royal Consent. Is it in fact by design, or inadvertence?
EARL JELLICOE: My Lords, I am not quite certain whether I remember all the points which the noble Lord the Leader of the Opposition has put to me. But I can give him an assurance that it is improbable that new major legislation will be slipped through by the Government. In fact, that is not the Government's intention, and I do not think that either he or anyone else need fear that a European Communities (No. 2) Bill will come before your Lordships' House during that period. No. I give him the assurance for which he has asked.
Secondly, on his point about allowing as much time as possible for the Local Government Bill, I agree. Certainly if we need what I might term as extraneous debates (and there have been suggestions from your Lordships that there are important and rather urgent subjects which we might well debate in the spillover period) I should have thought that the sensible arrangement would be this. If a feeling is expressed in your Lordships' House that one or more of those subjects should be debated (this matter will of course be discussed through the usual channels) a sensible time to do that would be in the second week of the overspill period, allowing the first week, so far as possible, to be devoted to our further examination of the Local Government Bill.
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On the final point which the noble Lord put to me, concerning Standing Order No. 38, I can say that the suspension is not being moved not by inadvertence. It is not being moved, in I think the phraseology of my noble and learned friend who sits on the Woolsack, neither by inadvertence nor by a mixture of design and inadvertence. It is not being moved, in this case, by design.
LORD ROYLE: My Lords, may we get it clear? Is the noble Earl telling us that in no circumstances will his present Motion apply to the Local Government Bill?
EARL JELLICOE: My Lords, it could apply to the Local Government Bill; but if, for example, there was a feeling in your Lordships' House that it would be wrong to telescope the stages of the Local Government Bill (I think there is general agreement that we should do so in the case of the Tote Bill) then of course I should not dream of suggesting that we should do so. The Bill could catch this Motion if this was to the convenience of the House and by the general consent of your Lordships' House. But if the feeling was otherwise, I would not dream of suggesting that we should apply this procedure to the Local Government Bill.
On Question, Motion agreed to.

CRIMINAL JUSTICE BILL
2.58 p.m.
THE MINISTER OF STATE, HOME OFFICE (VISCOUNT COLVILLE OF CULROSS): My Lords, I beg to move that this Report be now received.
Moved, That the Report be now received.—(Viscount Colville of Culross.)
THE LORD CHANCELLOR (LORD HAILSHAM OF SAINT MARYLEBONE): My Lords, the rules of this House regarding formal tributes are rigid and must strictly be adhered to, but before we pass to the Report stage of this Bill, may I, with your Lordships' permission, make use of this Motion, which is debatable, to express my own sense, and I believe that of the House, of the loss which Parliament and the legal world have suffered by the death of the late Lord Parker of Waddington, until so very recently Lord Chief Justice of England.

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It seems only a few days ago that I found myself in court wishing him a long and happy retirement, and it is sad indeed that this wish has not been fulfilled. I myself have known Lord Parker as an opponent at the Bar, as a Judge before whom it was always a pleasure to appear, and as a wise colleague and adviser of successive Lord Chancellors, of whom I was only the last. I will not weary your Lordships by a long recitation of his virtues, his immense contribution to English law, his unflagging industry and gentle and cultivated personality whom we all knew and loved. But just let me endorse the worthy tribute which the Master of the Rolls paid elsewhere in emphasising his qualities as a Judge: quick and concise without rushing his cases or losing patience or courtesy in the process, unfailing in his kindness and humanity without ever being weak, always considerate to the profession and to the public, helpful to the young, open-minded to argument without vacillation, shrewd in his judgment of character without being uncharitable. He was indeed an ornament alike to the profession of the law, and to the country to the service of which he devoted so much of his life.
We all think of his widow at this time. I will not say more. We honour and respect his memory, and many of us have lost a friend.
3.1 p.m.
LORD GARDINER: My Lords, I should be grateful if I might from these Benches echo what the noble and learned Lord the Lord Chancellor has said about the late Lord Parker. Hubert Parker and I were born within 48 hours of one another; we were both called to the Bar and married within 12 months of one another, arid I have known him for the best part of half a century. I well remember his appointment. His predecessor had been a man of quite exceptional gifts but one who could be impulsive and impatient, and I think the Bar longed to see a quieter Chief Justice. We were also a little apprehensive that the Government—this being a Prime Minister's appointment—might revert to an earlier practice of appointing a Law Officer as a reward for political services. It was in those circumstances that the whole Bar were delighted at Hubert Parker's appointment—this modest and unassum
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ing man, an exceptionally good lawyer but applying his law with great common sense. He was, I suppose, essentially a middle of the road man, which was, I think, what we needed. He would not have been described as a radical, but it was because he moved with the times that he was the first Chief Justice in our history who both spoke and voted for the abolition of capital punishment.
I have particular cause to be grateful to Lord Parker. For obvious reasons, it is not easy for any Lord Chancellor to carry through a massive programme for the reform of our law and penal system which affects the judges, if the judges are found to be hostile to his proposal. I naturally always consulted the heads of Divisions—the Chief Justice, the Master of the Rolls, the President of the Probate, Divorce and Admiralty Division (the noble and learned Lord, Lord Simon of Glaisdale) and the Chief Chancery Judge. But I particularly consulted Lord Parker if a High Court Judge was to be appointed or upon any of the reforms I was seeking to introduce. No Lord Chancellor could possibly have had a kinder, more loyal or co-operative Chief Justice, and in nearly six years we never had any serious difference of opinion.
Those on these Benches would also like to extend to Lady Parker, who was so much of his life, our deepest sympathy on his sudden death.
LORD PEARSON: My Lords, having known Lord Parker for a great number of years and having been with him and served under him in the Queen's Bench Division for several years, I should like to add a few words of assent to what has been said. He seemed to me to have all the excellent qualities of a good judge. He was calm, he was objective, he was fair; he listened attentively to argument and he could be quick and decisive in understanding the question and finding the answer to it. When he came to give his judgments, they were always careful, lucid and reasonable. He was extremely hard working. The story was that often when he was at the Bar—and quite frequently when he was on the Bench—he would go to bed early and rise at four o'clock in the morning to prepare for the work of the day. When he was Lord Chief Justice he was faced with some highly controversial problems. On those problems his views could not always gain

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universal acceptance but they were respected and carried much weight, and in most cases they were in the end accepted and they prevailed. As a man he had modesty and he had charm. He was liked as well as admired by all members of the Bench and Bar. His death is a great loss to our profession. We were proud to have him as our Chief Justice and I am sure we all should wish to extend our sympathy to Lady Parker.
LORD ROYLE: My Lords, I wonder whether a layman might just add a few sentences. For a dozen years or so I was Deputy Chairman of the Magistrates' Association under the chairmanship of my noble friend Lord Merthyr, and I am sure that if he were here to-day he would want to say what I am trying to say. The friendship which Lord Parker showed to that Association gave us a great deal of joy. Whenever we had our annual conference in London, after court rose he made a point of coming to the opening session of the Conference to show his friendship towards his lay colleagues. No branch of the Magistrates' Association ever appealed to him in vain to go to address one of their meetings in any part of the kingdom.
I regret his passing very much, because of the friendship he showed and the service he rendered to lay magistrates who, much lower down the scale, were trying to carry out justice in this country. One of the great prides I had as a layman and a lay justice was when one day in your Lordships' House Lord Parker referred to me as his "noble friend". I felt that was just part of his kindness. I wanted to say just those few words.
LORD SIMON OF GLAISDALE: My Lords, may I add one or two words to the tributes which have been so finely and justly paid by my noble and learned friends and by the noble Lord, Lord Royle, from the point of view of a Judge who was the head of a Division in the High Court during the time that Lord Parker was Chief Justice? Lord Parker was one of a generation of very great appellate Judges, but in one respect he was transcendent. I think his judgments will always repay study, but that quality to which I refer will not be immediately apparent: it was his amazing ability to give an extempore judgment in the most complicated case at the end of the
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evidence and argument, picking up every point of fact, every proposition of law, framed with superb lucidity and force, and every argument, however subtle and intricate. All were worked into a perfect form and pattern of judgment: everything in its place and a place for everything.
The other matter I should like to mention is from the point of view of the other Divisions of the High Court, and particularly the Probate, Divorce and Admiralty Division. Because of course the Queen's Bench Division was Lord Parker's primary and direct responsibility, and it was under exceptional pressure during his period of office owing to the increase in crime. But Lord Parker was always able to look at the judicial system—indeed, the legal system generally—as a whole, in the most generous, far-sighted and statesmanlike way; and as the noble and learned Lord, Lord Gardiner, said, his co-operation during a time of great change was of inestimable value to this country.
I venture to join in the expression of sympathy for Lady Parker, who played so great a part in sustaining Lord Parker in his prodigious labours.
LORD STOW HILL: My Lords, may I be permitted as a non-judicial Member of your Lordships' House to add my word of tribute to the memory of the very great colleague whom we have lost? He was a great friend and a splendid colleague at the Bar, and it was a privilege of inestimable value to be able to meet and talk to him at the Bar, at private gatherings and, later, on official occasions. Time and again, first before he was a judge and when I was a Law Officer, and then when he was Chief Justice and I was at the Home Office, his help was unstinting, his patience endless and his pudgment unerring: as the noble and learned Lord on the Woolsack rightly reminded us, always suffused with great humanity; he saw human beings as they are and not as they are sometimes described in the rule book. He brought to the unique office which he held in the most ample manner all those qualities of character, understanding and intellect which it requires. He was deserving in the fullest possible sense of all that confidence which his fellow citizens over the years reposed in him as the holder of that unique office. We have all lost a great friend, a great colleague and a great

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public servant. I venture to offer my sympathy to Lady Parker in the personal loss which she has sustained.
LORD ROWALLAN: My Lords, I wish to associate myself with these tributes. I was privileged to be Governor of Tasmania at the time of Lord Parker's visit to the Australian sub-continent. He was welcomed not only for the great office he held but also for his personal charm and abilities. I assure your Lordships that few visitors to that great subcontinent have had such an effect on its inhabitants.
On Question, Motion agreed to.
Clause 1 [Compensation orders against convicted persons]
3.13 p.m.
VISCOUNT COLVILLE OF CULROSS VISCOUNT COLVILLE OF CULROSS moved Amendment No. 1:
Page 1, line 10, leave out from beginning to ("make") and insert ("in addition to dealing with him in any other way may, on application or otherwise,")
The noble Viscount said: My Lords, when we were discussing this Bill in Committee my noble friend Lord Mansfield drew attention to the position of the victim of crime who wanted to claim compensation under the initial provisions of the Bill. It remains the firm view of the Government that it is time that the courts as a matter of course thought in terms of compensation, and we intend to do everything we can to encourage them in that respect. One must remember that there are limits to the extent to which the courts can go into the complications of claims of loss, which might be very complicated and be much better dealt with by the civil courts. My noble friend pointed out that, unlike in some previous provisions, nothing was said in the Bill about the position of someone who wanted to apply for compensation. I said at the time—I am advised that this is quite correct—that there was nothing to prevent someone from applying although it was true that the Bill did not say that he could. I have sought further advice. We have looked at the drafting, and this Amendment—with it goes Amendment No. 2 to Clause 6 because it is on the same point—provides explicitly for someone who suffered loss to apply to seek compensation from the court. I hope that
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the Amendment has been drafted in such a way as not in any way to detract from the primary duty of the court; we believe it is for them to think in every case in terms of compensation, but I hope that it goes to meet the point made by my noble friend.
On the general subject, there were other instances in this area about which my noble friend was worried. One was the position of someone who had received compensation in the first place, if the matter went to appeal. He thought there should be provision whereby the victim who had received compensation should also be involved in the appeal. I have consulted with my noble friend since then and I think that on reflection he will not wish to pursue that very hard, and I confess that I think that would be unnecessary. I have looked into the matter and have talked with those who know about the Crown Court and the Court of Appeal. It appears to me that there is no doubt at all that the Court of Appeal will have the necessary information to judge whether or not the compensation should be maintained. For what it is worth, the past instances of this sort have never gone to the question of the quantum of compensation but to the question of guilt on which compensation depends in the first place. We have the machinery and practice in the appellate courts which will preserve the rights of the person granted compensation and we do not think that an Amendment is necessary in this respect.
The third point about which my noble friend was worried concerned the question of the review of a compensation order, which is dealt with in Clause 3. Again, I do not think an Amendment is necessary, and therefore none is down. I am able to tell my noble friend and the House, however, that we propose to make rules under the Magistrates' Courts Rules to deal with this matter and think they will cover the point my noble friend wished to make. Some guidance will also be given in the circular which will accompany this Bill, but the rules will be the important thing.
In general, the probability is that we will provide that when dealing with an application for review under Clause 3 magistrates should do so only after considering representations by the victim

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and that they should have before them, if it is a case where the civil court has adjudicated, the order of the court on the basis of which the application to review or alter the compensation order is made. Again, therefore, I can assure the House that the position of the victim who has been given compensation has not been overlooked and is in fact adequately protected. Those are subsidiary points to the main point in Amendments Nos. 1 and 2, in which we are specifically providing that he shall be in a position to apply for compensation in the first place, and we are amending the Theft Act as well to make that clear. I beg to move.
3.20 p.m.
THE EARL OF MANSFIELD: My Lords, I begin by thanking my noble friend for taking a sympathetic view of the first matters which I ever raised in your Lordships' House after my maiden speech. If I greet the news with two rather than three cheers it is not through any ungenerosity on my part; it stems from a real worry as to what these new provisions which deal with compensation are expected by the Government to achieve. My Lords, there is no doubt that the public at large, and certainly that part of the public which deals with consumer interests, expects a very great deal from this Part of the Bill. I am worried that they will be considerably disappointed. One phrase which my noble friend used at an earlier stage was that the courts would be encouraged "to think compensation". I would be much obliged if he could tell us by what means the courts are going to be encouraged to think compensation because there is nothing in this Bill nor in this clause which is going to encourage anybody. What worries me is that the attitude of the courts will be precisely the same as it was under the old Criminal Justice Act and the 1870 Act which went before it.
Those of your Lordships who read the magazine Which? and read the editorial comment, will have noticed that in the last two issues mention has been made of the Criminal Justice Bill. In the September issue the editorial said:
"A gap in the Trade Descriptions Act has been that it has not provided for the customer misled by a misleading advertisement to get compensation for any loss he has suffered.
"So CA's legal officer worked hard to get an amendment to the Criminal Justice Bill which
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would bridge this gap. The Criminal Justice Act now incorporates this amendment and the misled consumer can get compensation and this is a real advance in consumer protection."
I suppose there are two lessons to be learned from that. The first is that, as we all know that the Second World War was really won by the Americans without any help, those who have laboured to amend this Bill know that it has really been amended by CA's legal adviser. More important, so far as the Consumers' Association is concerned, they imagine that people who have had a spoiled holiday in Spain will be compensated by a magistrates' court when a tour operator is prosecuted under the Trade Descriptions Act. That might be quite a complicated sum to work out. Is this the sort of matter which my noble friend is saying ought to be transferred to the county court or left where it is in the magistrates' court? My submission would be that there is no better place for it to be dealt with than the magistrates' court where the magistrates are seized of all the facts and can properly make a judgment, but I very much doubt whether this is in the Government's mind.
So far as Clauses 2 and 3 are concerned, again let us suppose that a family has had a very uncongenial holiday in Spain and the tour operator has been summoned in a magistrates' court. The tour operator, who may well be well advised, runs for cover and pleads guilty. The prosecution are represented by a local solicitor. I have nothing against local solicitors, but very often in this sort of case the local solicitor may considerably over-state the case. The magistrates feel indignant and in this sort of case they impose a small fine and they may make a large compensation order. When the matter reaches the Crown Court, my noble friend will realise that there is nothing on the record at all except the fact of the conviction, the amount of the fine and the amount of the compensation order. I ask, how is the matter then to be adjusted in the Crown Court when the only people with the right of audience will be whoever puts the facts for the prosecution and counsel—one hopes it is counsel—for the appellant, who will try with all his might to get the compensation order reduced? It is on this practical sort of question that my worries have been based and I am bound to say that so far they have not yet

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been answered. With that—and I hope I have not taken up too much of your Lordships' time—I thank my noble friend at least for making Clause 1 more apparent to the general public than it was before.
3.24 p.m.
VISCOUNT COLVILLE OF CULROSS: My Lords, what I should like to do, without reading it all, although it is quite short, is to remind my noble friend Lord Mansfield. of Chapter 10 of the Report of the Advisory Council on the Penal System, Reparation by the offender. The way in which the Government think that we can deal with this matter is the way which is set out in that Report and it is the way that was finally recommended to us by the Committee under the chairmanship of the noble and learned Lord the Lord Chief Justice. I think what he recommended is fairly explicit and so far as I have ever heard we have no reason as a Government to dissent from what he said. To lay down in this House, or indeed for Government to lay down anywhere. the exact circumstances when a court might deal with a spoiled holiday by way of compensation order rather than to say it is too difficult seems entirely inappropriate, but I would remind the House that the Committee to which I have just referred said that it did not wish to exclude absolutely an order of compensation where the assessment of loss is a difficult one. I have little doubt that courts, both the magistrates' and the Crown Court, will experiment with this to see how far they can sensibly go.
As to appeal, the primary appeal no doubt will be from the magistrates' court to the Crown Court; that is, by way of a re-hearing. Certainly in my experience when I used to go to quarter sessions —and I do not think the Crown Court is very different—one had to go over the whole of the evidence again. The facts are all there. The prosecution starts and the prosecution is fully seized of the facts. They are all argued out and if it is an appeal on conviction as well as sentence, from there on it is discussed again, as it were, from the beginning. I cannot see why that court should be in a worse position than the magistrates' court in terms of the information which is before it.
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If it goes on appeal through the Court of Appeal, Criminal Division—the Lord Chief Justice will tell me if I am wrong —I believe that the court would wish to have all the facts stated to it by one side or the other, or probably both, before coming to a conclusion on the matter. If the court was in any doubt about it it might ask for further information to be brought to the court, but it does not seem that the Court of Appeal, Criminal Division, is likely to make rash and unguarded variations of orders on appeal from the Court below on the basis that it has not enough information. I should have thought, particularly since it was the noble and learned Lord himself who considered this, that he would make perfectly certain that the Court of Appeal did not do any such thing. I therefore hope that my noble friend will take account of the fact that we have looked at this matter quite carefully, not only on our own but by reference to the enormous amount of work that has been done to prepare this Report. I hope that he will perhaps add another half cheer when he reconsiders this to-morrow.
LORD WIDGERY: My Lords, I have no doubt that when a compensation order is appealed, whether it comes from the magistrates' court or originally from the Crown Court, the appellate court will be fully seized of the facts before it considers the propriety of the compensation order.
On Question, Amendment agreed to.
Clause 6 [Restitution Orders]:
VISCOUNT COLVILLE OF CULROSS: I beg to move Amendment No. 2:
Amendment moved—
Page 4, line 30, at end insert ("or on the application of any person appearing to the court to be interested in the property concerned.")—[Viscount Colville of Culross.]
On Question, Amendment agreed to.
Clause 7 [Criminal bankruptcy orders against convicted persons]:
3.28 p.m.
VISCOUNT COLVILLE OF CULROSS VISCOUNT COLVILLE OF CULROSS moved Amendment No. 3:
Page 5, line 41, leave out ("and").
The noble Viscount said: My Lords, with this Amendment I think it would be

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for the convenience of the House to consider Amendments Nos. 4, 5, 6, 30, 31, 32 and 33. When we come to those other Amendments I shall simply move them formally. This has all to do with the question of unravelling a criminal bankruptcy; that is to say, the machinery whereby one can see that a criminal who has managed to get away with the loot does not so dispose of it before he is brought to trial and a criminal bankruptcy order is made against him and the loot is not able to be recovered by the machinery of the criminal bankruptcy order. This is a complicated matter. We are indebted to the interest of the Department of Trade and Industry in the matter of bankruptcy.
I told the noble Lord, Lord Jacques, who from time to time was the speaker from the Opposition Front Bench on this Bill, that we were making progress here. Here is the fruit of our deliberations with the Department of Trade and Industry. In essence, what we are doing is to allow the High Court on an application of the Official Receiver who will be the trustee in bankruptcy to look at dispositions of property right back to the time when the offence was committed. This goes further than the Bill as it now stands. There will, therefore, be power to get at property which has been stolen or otherwise misappropriated so that it can be brought into the bankruptcy and thereby restored to those from whom it was taken. But at the same time, we are providing for protection for people who have after that time dealt in good faith with the property so that if they bought it for value they are not subsequently deprived of it under the criminal bankruptcy.
There are other subsidiary and minor powers which the High Court can operate in these circumstances, all of which are designed in accordance with the recommendations of the Report chaired by the noble and learned Lord the Lord Chief Justice, to see that this particular machinery is effective in order to prevent criminals being able to store away their booty and return to enjoy it later when they come out of prison. I can explain all these but they have been very carefully worked out in conjunction with those who are expert in the law of bankruptcy. I recommend them to the House as a substantial improvement. The pur
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pose of them is as I have described. I beg to move.
On Question, Amendment agreed to.
VISCOUNT COLVILLE OF CULROSS: I beg to move Amendment No. 4.
Amendment moved—
Page 6, line 3, at end insert—
("and
(d) the date which is to be the operative date for the purposes of section (Recovery of assets for criminal bankrupt's estate) below, being the date appearing to the court making the order to be the earliest date on which the offence or, if more than one, the earliest of the offences, was committed.")—(Viscount Colville of Culross.)
On Question, Amendment agreed to.
VISCOUNT COLVILLE OF CULROSS: I beg to move Amendment No. 5.
Amendment moved—
Page 6, line 17, at end insert—
("(7) In this Act "criminal bankruptcy proceedings" means proceedings pursuant to a criminal bankruptcy petition or a petition under section 130 of the Bankruptcy Act 1914 presented by virtue of Shedule 1 to this Act.")—(Viscount Colville of Culross.)
On Question, Amendment agreed to.
VISCOUNT COLVILLE OF CULROSS: I beg to move Amendment No. 6. This is of course the substantive provision which gives effect to what I have just been saying.
Amendment moved—
After Clause 9 insert the following new clause:
Recovery of assets for criminal bankrupt's estate
".—(1) Where a person is adjudged bankrupt in criminal bankruptcy proceedings, the official receiver (and not a person appointed under section 19 of the Bankruptcy Act 1914) shall in the bankruptcy be trustee of the property of the bankrupt; and the following provisions of this section shall apply with respect to dispositions of property or any interest in property, made by the bankrupt, on or after the operative date, either by way of gift or for an under-value.
(2) On the application of the official receiver (in his capacity as trustee) the High Court may make orders requiring—

(a) the disponee under any such disposition, or

(b) subject to the following subsection, any other person who by virtue of any subsequent disposition acquired (whether or not from the original disponee) the whole or any part of the property or any interest therein,

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to transfer the whole or any part of the property, or such interest as the order may specify, to the trustee, or to make such payments to the trustee as the court thinks just with a view to making available to the creditors the full value of the property or interest disposed of by the bankrupt (including any increase in its value since the disposition was made).

(3) No order shall be made by virtue of subsection (2)(b) above against a person appearing to the court to have given full value for anything taken by him under a relevant disposition or to claim (directly or indirectly) through a person who gave full value.
(4) An order of the High Court under this section requiring a person to transfer any property or interest may include such consequential directions for giving effect to the order, and be made on such terms (including in particular terms allowing the person to retain or recover consideration given by him for any relevant disposition) as the court thinks just in all the circumstances.
(5) In this section "disposition" includes any conveyance or assurance of property of any description and "disponee" shall be construed accordingly.
(6) Nothing in this section is to be taken to prejudice any provision of the Bankruptcy Act 1914."—(Viscount Colville of Culross.)
On Question, Amendment agreed to.
Clause 10 [Suspended sentences]:
3.34 p.m.
LORD GARDINER LORD GARDINER moved Amendment No. 7:
Page 8, line 12, leave out ("shall cease to have effect") and insert—
("(a) shall, as from the date of the passing of this Act, have effect subject to the following proviso:
That the Court need not make an order under section 39(i) of the Criminal Justice Act 1967 where the offender has at any time before the commission of the offence been sentenced to any custodial sentence or has three or more previous convictions for an indictable offence.
(b) shall, as from the 31st December, 1974, or such later date as the Secretary of State may appoint by order made by statutory instrument, cease to have effect.")
The noble and learned Lord said: My Lords, I beg to move this Amendment and to speak at the same time to Amendment No. 27 which is consequential. I express the hope that it will be accepted as readily as we have accepted the first six Amendments. May I begin with a question—because I know it is more convenient for Ministers if questions are asked early in case they do not happen to have the answer in their head. I have here a document which I obtained from the Printed Paper Office and which is headed: "Criminal Justice Bill (As
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amended in Committee)" and at the bottom is the number "(178)". On the back it says, "Brought from the Commons", and so on, "Ordered to be printed 2nd August 1972". This morning I found in the Printed Paper Office a document which is headed "Criminal Justice Bill (As amended in Committee)"; the number is "(178)" and on the back it. says, "Ordered to be printed 2nd August, 1972". The only difference in the front and back between the first document and the second is that the second document, in large letters, underlined, says on top, "In substitution for Bill (178) previously circulated". My Lords, the clause numbers are the same. I do not know whether one is expected at very short notice to read through the whole of both Bills to see where they differ. The question I would respectfully like to ask is, what is the difference between the two?
My Lords, we have 42 Amendments on the Order Paper. Those which proceed from my friends and me number nine, including one or more which are consequential. I hope this will not be thought to be an excessive number. We are not here to fight old battles over again. One or two of these Amendments have been put in the same form because they were Amendments which the noble Viscount said he would like to think about, others are intended as compromises. I hope, therefore, that this stage is not going to take a long time. But as this is the first of our Amendments, may I say a word about our general underlying view about the Bill? Three years ago the Home Office estimated that by 1975 our prison population would have reached the appalling total of 40,000. I am not a good enough historian to know how far back in our history we should have to go to reach such a total. In fact, by 1971—we did not have to wait until 1975—it had already reached the figure which the Home Office estimated we should reach by 1975. There has since been a welcome small reduction to 38,000, but there is, the degree of appalling overcrowding.
May I refer to two authorities in the matter? The first is Mr. Maudling, who moving the Second Reading of this Bill said:
"The conditions in our prisons—and this is certainly not the fault of the Government

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—are very serious. We must pay particular attention to this problem of overcrowding, which in itself is bad, but is also important in that it makes the job of the prison service much more difficult, and the possibility of rehabilitation and redemption far less likely than it would otherwise be."
Similarly, last week saw the publication of the Annual Report of the Howard League and they said the same. They said that it
"…leaves us with one of the highest rates of imprisonment in Western Europe;…
"Clearly there is more than ever a vital need to reduce overcrowding in prisons. The conventional humane reason for this is to reduce unnecessary suffering for prisoners, and to enable hard-pressed governors and staff to forget the strain upon tempers, space, facilities for work and recreation, and even the capacity of the drains, so that they can concentrate on rehabilitation.…In the south-eastern region…there are plans to create 7,000 new places by 1979. One argument which deserves respect is that even if the prison population remained static several thousand extra places would be needed, merely to end the multi-occupation of single cells."
I do not think there is anybody connected with this problem who is not equally concerned about the position on overcrowding. Our general approach to this Bill, therefore, has been that we very much welcome those provisions which, in implementing the recommendations of the Committee—which I am not allowed to call the Wootton Committee—made for alternative methods of treatment, and we greatly welcome them. But, of course, it is useless to pretend that this will affect more than a handful of people, at all events for a considerable time. These things, like community service orders and day-training centres, have naturally, and perhaps properly, got to be started in a small and rather experimental way. We have already had the example before us of how about a quarter of a century ago a lot of people thought it would be a good idea for young people kicking over the traces to be made to give up their Saturday afternoons to go to an attendance centre, instead of being sent to prison. These things depend partly on the Home Office—and it is not fair just to blame the Home Office: partly on the resources which the Chancellor of the Exchequer gives to the Home Office; and partly on the courts. The melancholy fact, if I have got the facts right, is that after 25 years, when one looks all over the country to see where these attendance centres are one finds that there is one in Greenwich and one in Manchester, and there is none
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anywhere else at all. And the two that there are, are not filled by the courts.
VISCOUNT COLVILLE OR CULROSS: Those are senior attendance centres.
LORD GARDINER: Senior attendance centres, yes. This Amendment is crucial to this underlying view, because what greatly distresses a great many people familiar with these problems outside the House is that while this Bill at least does something to provide alternatives to prison, it also contains provisions, of which this clause is the first and biggest, which are going to increase the overcrowding in our prisons. It is, I should have thought, for a civilised country, something of a disgrace, bearing in mind that, as prison rule No. 1 says, and as we have always agreed, people are sent to prison as a punishment and not for punishment, that 12,000 of them should have to live three in a cell made for one, performing at night all their natural functions in front of one another. And it is not surprising that even since we considered this Bill last there have been increasing disorders in the prisons and increasing evidence of the great difficulties of our prison staffs.
This Amendment has been put down because the existing provision in the Bill abandoning mandatory suspended sentences is estimated by the Home Office to be likely itself to increase the prison population by anything up to 3,500. That is a maximum, of course, but that is their view of the possible effect of abolishing mandatory suspended sentences. On the Committee stage there were two views put forward. We all agree that some very recent evidence, in the shape of surveys made by the Home Office, showed that there were two cases in which making suspended sentences mandatory had been failures. They were, first, where the person concerned had already received a custodial sentence and, secondly, where the persons concerned had already three or more previous convictions. This shows the value of research work, which naturally takes time. I made no complaint about the fact that the product of this research work was available in the other place only on the Report stage of the Bill. But there was no evidence, we submitted, that mandatory suspended sentences had otherwise gone wrong, except that there

1303
were cases in which sentences had been suspended when they should not have been.
It took a little time before the Court of Appeal, in O'Keefe's case, got round to this. Both the High Court (it is fashionable always to blame the magistrates' court) and the magistrates' courts were found not to be applying suspended sentences as intended, and the Court of Appeal had to tell them, "You should never consider a suspended sentence (it is not a soft option) until you have decided that the case is one which could not be dealt with either by a fine or probation order, and it is only when you are satisfied that the case can only be properly dealt with by a prison sentence that you should then for the first time ask yourself whether this sentence should be immediate or suspended." But I believe that this lesson has now been learned, and those difficulties have been corrected.
At the Committee stage of the Bill there was a conflict of opinion between two groups, one of whom thought that there was no real evidence, apart from the two cases have mentioned, to justify abandoning mandatory suspended sentences when they had run for such a comparatively short time. The Government view, on the other hand, was that they had been a failure so far as they were mandatory and that the mandatory side should be removed. And on a test being taken of the strength of these two opinions there were 50 supporters of the first view and 77 of the second.
In these circumstances, of course, we have not put down the same Amendment again. What we have thought would be right would be to put down a compromise, having regard to the fairly close division of opinion as to whether to-day we should or should not abandon mandatory suspended sentences altogether. The effect of accepting this Amendment and No. 27 would be that in the two cases in which it has been shown that mandatory suspended sentences are not a success—that is to say, where there had been previous custodial sentence or three or more convictions—we should get rid of this provision making suspension mandatory. Secondly, it would mean that in the Bill the Home Secretary was
1304
given power by Statutory Instrument to abolish the mandatory side of suspended sentences altogether, but not before the end of 1974.
There are two thoughts behind this. This takes into account that the decision as to whether or not we should do it at all was fairly evenly balanced on Committee. It takes into account the argument, which might be advanced if someone said, "Let us leave it over for some time till the Government have more information", that we do not get a Criminal Justice Bill every year and this might hold up the change for years; it gives the Home Secretary power by Statutory Instrument to do it at any time after 1974. This will have two advantages. First, more time will have elapsed, so that more research work can be done, and instead of, as many of us have said for some time, conducting our changes in criminal law on "hunch" we ought really to do it on evidence and on the result of such research work as has been done. Secondly, one hopes that by the end of 1974 there will be additional prison places in which people can be further accommodated. Indeed, the two concluding questions that I should respectfully like to ask the Minister are: if the most pessimistic view of the Home Office turns out to be right, and this means a fairly rapid increase of 3,500 in the prison population, does this mean that we shall have another 3,500 sleeping three to a cell, or will they be able to go into single cells? And, secondly, how many additional prison places do the Government estimate will be available by the end of 1974? I hope that, in view of the valid division of opinion on the Committee stage of the Bill, and since this Amendment is intended as a real compromise, it may commend itself to your Lordships. I beg to move.
3.48 p.m.
BARONESS WOOTTON OR ABINGER: My Lords, I would say just one word in support of my noble and learned friend, and that is to draw the attention of the House to the conclusion which was reached in the research memorandum produced by the Home Office. At the top of page 16 this paper arrived at the conclusion that
"Assuming that prison sentences for fresh offences would have been served in any case, the prison population is no bigger now"—

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this was May, 1972—
"than it would have been if suspended sentences had not been introduced. And the most up-to-date estimates suggest that the new provisions"—
which include the mandatory element—
"have probably resulted in a saving of between 850 and 1,900 in the prison population."
These are, of course, contingent conclusions.
I think it is common ground that this is an extremely complex matter and it has been necessary to base the conclusion upon a number of hypotheses. But this is, I think, the best provisional conclusion we can get: that the suspended sentence provisions, including the mandatory element have in fact resulted not in an increase but in a saving in prison population. Therefore, I support my noble and learned friend in his submission that to abolish the mandatory element in this would be a dangerous step at the moment and likely to increase the prison population.
LORD DONALDSON OF KINGS-BRIDGE: My Lords, one brief word of support. The figures and arguments have been fully gone into, and I shall not go into them again except to say that they have never in fact been answered. The right honourable Edmund Dell in another place, and figures quoted by various speakers here, made it perfectly clear—and this was never refuted—that the mandatory element did keep people out of prison. The Home Office statement has made it perfectly clear that it expects that the abolition of mandatory suspension to mean that more people will go to prison. The argument has been confused from the first by the fact that the suspended sentence itself is suspect and has been wrongly used, though we think that this may be put right. From my point of view it is an unsatisfactory thing anyway, because I believe that the only good reason for sending people to prison is that they are not safe out. If they are not safe out, of course there is no case for suspending their sentence. But this is an individual view which is not shared by many benches, though no doubt they will come round in due course to this point of view.
This Bill, which is based on two major and very important Reports and I think, in general, to the satisfaction of all of us—is a very good Bill; but it has one
1306
terrible blemish, and that is the point we are just discussing now. It seems to me to throw away the small "goods" that we are trying to do by inventing alternatives to prison, and slowly working them up as a means of keeping people out of prison. At the same time, and on evidence which has so far proved quite undemonstrable, it condemns the mandatory system, which many of us think is working well. This is an act of extreme folly, and is a very serious blemish in what is otherwise a Bill that we all welcome. I very much hope that this extremely limited compromise, which takes into consideration the latest research figures, which are very specific, and also gives the Government the power to do in three years time what they want to do now, is one that should be accepted. Otherwise, I think that the virtues of the Bill are going to be very much marred.
3.53 p.m.
VISCOUNT COLVILLE OF CULROSS: My Lords, I am very much in favour of compromise, and some of the Amendments that I have put down to this Bill represent just that. Whether they will find favour with noble Lords opposite we shall wait with interest to see. I appreciate the changes that the noble and learned Lord, Lord Gardiner, and his colleagues have made in their approach to this Bill, and I have not overlooked the degree to which they have attempted to reach a compromise on this point. I should also say that, so far as I am concerned, this is not simply a re-statement of the speech that I made on the last occasion; nor indeed is it a re-statement of speeches made in another place because when the Government say, "We will look at these matters again", we do. Indeed, we have had the added advantage that my right honourable friend the present Home Secretary has had a chance to look at it himself. He has been in correspondence with the right honourable gentleman the Member for Birkenhead on this very matter, but I am afraid that I cannot advise the House that even this compromise is one that should be accepted. I will try to explain why.
May I preface my explanation by saying that although this is not the occasion for a major debate on penal policy, I am grateful to the noble and learned Lord, Lord Gardiner, for putting this matter in its context and speaking about the

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penal system, the overcrowding, and to other noble Lords who have mentioned the other parts of this Bill to which this is plainly related. We must see it in its context, and I do not seek to avoid that at all. Certainly from my point of view, overcrowding in prisons is not a thing that I wish to encourage or to see proliferated in any way. If I were to deal with the matter solely on the basis of trying to avoid overcrowding in prisons, then possibly one would welcome almost any measure which will keep people out of prison. Unfortunately, you cannot just look at it that way. We do not have prisons just because we like shutting people up, or for the sake of producing statistics.
I think that the noble Lord, Lord Donaldson of Kingsbridge, is probably right in saying that people should go to prison because they are not safe out of it. If they are not safe out of it, the fact of the matter remains that they will have to go into prison. This is the other side of the picture, and it is one which I do not believe that any responsible Government can possibly seek to burke. It is very difficult to go into the minds of courts, whether they be magistrates' courts, quarter sessions (now the Crown courts), or indeed the assizes in the old days, to see why they passed the sentences that they did. But the fact remains that if one looks with, I hope, not a partial but nevertheless a discerning eye at the statistics which have appeared since the passing of the Criminal Justice Act, 1967, which introduced the suspended sentence and the mandatory suspension in certain cases, there has been a distinct fall in the proportion of probation orders made and the occasions on which fines were imposed, and these appear to have been replaced by sentences of imprisonment suspended. In some cases, of course, those sentences had to be suspended because they came into the category which, under that Act, required the courts so to act; in other cases it may be that they did so in their discretion.
What also appears to have happened to some extent is that, in order to avoid the mandatory suspension of a sentence which the court thought ought to be imposed upon the person before them, if they were a magistrates' court they com-
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mitted for sentence to the higher court, who were enabled to impose a sentence of more than six months and thereby avoid the mandatory suspension; in other cases, for the same reason, they simply imposed a sentence longer than six months. If that was happening, that must be wrong, because in the last sort of category that I was talking about it means that a court is saying, "We must send this man to prison. We must send him now. We are being artificially limited in our powers by the Statute of 1967. In order to get him into prison, we have got to sentence him to a longer period of imprisonment than he really deserves". That is not a healthy situation, and it redounds to the credit of nobody; yet I am afraid that it has probably been happening, and simply because of this mandatory requirement to suspend sentences. That of course is one matter that emerges from talks about the prison population, because for every extra period of time a person has to serve in prison, a place is being taken up by him which need not be taken up, and indeed, on this hypothesis, never ought to have been taken up by him.
While it is quite right to say that the statistics were published in the course of last year, I think in fact that the noble and learned Lord. Lord Gardiner, is not quite right in what he says. In a rough form they were available at the Committee stage in another place, though the document that we now all have was not printed until the Report stage. At any rate, they were available a little earlier. One may draw what conclusions one likes from them. I looked at them, and I of course noted the two categories that have been drawn to the attention of the House in this particular Amendment, and pinpointed by the noble and learned Lord, Lord Gardiner. Whether of course, when we are dealing with people with previous custodial sentences and people with three or more previous convictions on indictment, they are different people is open for question. I would think they are probably not the same in every case, and therefore there is an element of double counting in the matter. The converse argument concerns the case of the people who, if this Amendment were passed, would still have to have their prison sentences suspended, they being

1309
those with less than that number of previous offences. The statistics show that in the case of even those few people about one in three have committed a further crime.
What we have to ask is this. Is it right to say to the courts throughout the land, "First of all, you must consider the judgment in O'Keefe. You must not give a suspended sentence and the man must go to prison. Nothing else will do. Probation will not do. Fines will not do. It has to be a prison sentence. Secondly, you are required to suspend a sentence, notwithstanding a one-in-three risk that the man will offend again. It is no use your trying to exercise your judgment on this. We are not going to allow you to use any of your experience or judicial training. We are not going to allow you to use any of the other factors which may be available to you. You simply are not to send that man or woman to prison." That is the converse of the argument on the statistics; and what we have concluded is that this fetter on the power of the courts is wrong. As a principle, it is always fairly dubious to fetter the power of the courts on sentencing, and in this case we have statistics which show the results of it.
LORD DONALDSON OF KINGS-BRIDGE: My Lords, would not the noble Viscount agree that to be right twice out of three times is an extremely high and satisfactory performance, in very difficult judgments of this sort? I think the noble Viscount gave the impression that 66⅔ per cent. is a low success rate. It seems to me extremely high.
VISCOUNT COLVILLE OF CULROSS: As usual, my Lords, when you start arguing about statistics you get involved in figures which get further and further away from reality. The whole basis of this argument has been that when you had mandatory suspension there was a success rate of 50-odd per cent.—this is putting it the other way around—and when there was discretion and the courts did not have to suspend the success rate was 30-odd per cent. These arguments become very difficult to envisage in terms of large numbers. I agree with the noble Lord, it may be that this is quite a good success rate. But are we to say to the courts that in not one single case, how-
1310
ever bad the prognostication, are they ever to send a man to immediate imprisonment, simply because he falls into the sort of category which is covered an the 1967 Act or in this Amendment? I am afraid I just do not think that that is the way to set the courts upon their task of putting people in prison when, and only when, they must be put there for the security of the public. This is the fundamental point which underlies the Government's view on this Amendment.
We then come to the question of figures. The noble and learned Lord has reverted yet again to the figure of 3,500. What I must remind the House is that when a very senior and experienced member of the Civil Service, from my Department, was in front of a Select Committee of another place, he was asked this question and he said that the effect of this Bill could be an increase in the prison population of anything between nothing and 3,500. He was quite unable, and so am I, to say where in between those two figures we shall come out, for the kind of reasons that will already be apparent to those who have listened to the first part of my speech. One just cannot predict. But I should have thought it was unlikely that the ceiling would be reached, just as I should think it very unlikely that the increase would be nil. I should have thought the figure would be somwhere in between.
The answer to the noble and learned Lord about the extra prison places by 1974 is that we hope we shall have completed—and I think this is reasonably certain—2,500 new places by that time. This is a result of a very large building programme which has been begun almost entirely under this Government. I think that in 1969 only 80 new places were started. The credit for that increase must, it is perfectly true, be given to the previous Government. Last year, 2,400 new places were started and in the present financial year 3,000 new places have started, and that is the rate which we shall go on with. So, at any rate on this side, our record is extremely good. We have the planning clearances to go ahead at that rate and we have the plans ready. So it is not a question of dragging our feet on the provision of new places or on the refurbishing of existing prisons on a temporary basis.

1311
Nor need the House think that all prisoners are sleeping three in a cell designed for one, which I think, by a slip of the tongue, the noble and learned Lord indicated. Some of them, it is true, are, but far more are sleeping two to that sort of cell. I do not say that that is satisfactory, but it is right that it should go on the record. We are therefore in a position where it looks as though the prisons will be able to cope with the sort of range of population which will result from this Bill, because one must remember that there are other areas in the Bill where there is to be a reduction in the prison population. I have attempted to put the other side of these arguments, although I do not suppose either side is conclusive. I have attempted to put the counter-arguments to those used by the noble and learned Lord and by others who have spoken. I am afraid that the Government are not converted to this compromise, even looking at the Amendment with all the sympathy we can. Therefore, I afraid that I must advise the House not to accept this Amendment.
4.6 p.m.
LORD GARDINER: My Lords, this is very disappointing. With regard to the Home Office figure, I cannot agree that this was something unexpectedly dug out by an ignorant official. Mr. Cox is the Director General of the Prison Service and he was giving evidence to the Select Committee on Public Expenditure. The Home Office have always been extremely hesitant about mentioning any figure at all, but when asked about the calculation made of the increase in the prison population which was likely to follow the end of the mandatory suspended sentence, he said:
"We can calculate the top and bottom figures. The bottom figure is obviously nil.
The top figure we believe to be somewhere around 3,500, but it might be anywhere between those two extremes."
Mr. Roper said:
"I was not sure whether 3,500 was receptions or population",
to which Mr. Cox replied:
"3,500 is the population figure"
It is an appalling thought that in a Bill at this time, with all the difficulties of staffing and so on, we should quite deliberately be doing something which might lead to an increase of 3,500, particularly when there is no evidence on which to go. The evidence in the cases which I mentioned, about three or more previous convictions or a custodial sentence, showed that in the majority of cases it had been a mistake to suspend the sentence. But for the rest; which we are now dealing with, the contrary was shown: that two out of three times this method of treatment was a success. The noble Viscount seems to think that that is a very poor show, but I should have thought that in the criminal field, if a man goes straight on a particular method of treatment twice out of three times it is a very considerable advantage.
I do not want to pursue the matter indefinitely. I do not anticipate that we shall have many Divisions on the Amendments which we have put down, but as this Amendment is a perfectly fair compromise, and in view of the nature of the Division at Committee stage which showed those who were altogether opposed to the provision to be made, I would ask the House to come to a conclusion upon this Amendment.
4.10 p.m.
On Question, Whether the said Amendment (No. 7) shall be agreed to?
Their Lordships divided: Contents, 29; Not-Contents, 80.

CONTENTS

Ardwick, L.

Hale, L.

St. Davids, V.

Buckinghamshire, E.

Henderson, L.

Shackleton, L.

Champion, L.

Hoy, L.

Shinwell, L.

Citrine, L.

Jacques, L. [Teller.]

Slater, L.

Davies of Leek, L.

Listowel, E.

Stow Hill, L.

Donaldson of Kingsbridge, L.

Llewelyn-Davies of Hastoe, B.

Summerskill, B.

Gaitskell, B.

Maelor, L.

Wells-Pestell, L.

Gardiner, L.

Moyle, L.

Wootton of Abinger, B.

Garnsworthy, L. [Teller.]

Platt, L.

Wynne-Jones, L.

Greenwood of Rossendale, L.

Sainsbury, L.

NOT-CONTENTS

Aberdare, L.

Elgin and Kincardine, E.

Lyell, L.

Albemarle, E.

Elles, B.

Mancroft, L.

Alport, L.

Elliot of Harwood, B.

Mansfield, E.

Auckland, L.

Emmet of Amberley, B.

Mar, E.

Balerno, L.

Ferrers, E.

Milverton, L.

Balfour, E.

Garner, L.

Monck, V.

Balfour of Inchrye, L.

Gisborough, L.

Morrison, L.

Berkeley, B.

Goschen, V.

Mowbray and Stourton, L.[Teller.]

Bolton, L.

Gowrie, E.

Boyd of Merton, V.

Grenfell, L.

Napier and Ettrick, L.

Brecon, L.

Gridley, L.

Nugent of Guildford, L.

Brentford, V.

Grimston of Westbury, L.

Rankeillour, L.

Brooke of Cumnor, L.

Hailsham of Saint Marylebone, L. (L. Chancellor.)

Rathcavan, L.

Brooke of Ystradfellte, B.

Reigate, L.

Brougham and Vaux, L.

Hewlett, L.

Rowallan, L.

Chorley, L.

Hylton-Foster, B.

St. Just, L.

Colville of Culross, V.

Ironside, L.

Savile, L.

Courtown, E.

Jellicoe, E. (L. Privy Seal)

Somers, L.

Craigavon, V.

Jessel, L.

Strang, L.

Cranbrook, E.

Killearn, L.

Strathclyde, L.

Crathorne, L.

Kilmarnock, L.

Swansea, L.

Croft, L.

Latymer, L.

Swaythling, L.

de Clifford, L.

Lauderdale, E.

Todd, L.

Denham, L. [Teller]

Leicester, E.

Tweedsmuir, L.

Drumalbyn, L.

Lothian, M.

Widgery, L.

Ebbisham, L.

Loudoun, C.

Wolverton, L.

Eccles, V.

Lucas of Chilworth, L.

Young, B.

Effingham, E.

On Question, Amendment agreed to.

Clause 13 [Restriction on imprisonment of persons who have not previously served prison sentences]:
4.18 p.m.
VISCOUNT COLVILLE OF CULROSS VISCOUNT COLVILLE OF CULROSS moved Amendment No. 8:
Page 11, line 32, after ("1967") insert ("or under section 19 of the Treatment of Offenders Act (Northern Ireland) 1968").
The noble Viscount said: My Lords, notwithstanding the rather welcome (from my point of view) increase in the disparity between those who agree with me and those who agree with the noble and learned Lord opposite, as I am talking about Clause 13, and although I am just moving a formal Amendment, may I remind the House of the enormous importance that the Government place on this clause. I hope everybody appreciates that, when it comes to trying to keep people out of prison, I will not say that this is the pivot but it is a very important part of the machinery in this Bill; and the absolutely solid injunction to the courts that is contained in Clause 13 is a very important provision indeed. We have discovered that there is a technical defect in the clause, in that it does not cover the case of people who have been sentenced in Northern Ireland. It is
1314
simply in order to cope with that defect that I have put down this Amendment. I beg to move.
Clause 14 [Community service orders in respect of convicted persons]:
LORD DONALDSON OF KINGS-BRIDGE LORD DONALDSON OF KINGS-BRIDGE moved Amendment No. 9:
Page 12, line 9, leave out ("less than forty nor more than two hundred and forty") and insert ("more than one hundred and twenty.").
The noble Lord said: My Lords, I shall not make very heavy weather of this Amendment, but we were encouraged to put it down again because of some kind words which the noble Viscount, perhaps absentmindedly, let slip in our discussion. He said, among other things:
"There is no particular reason why we consider it"—
that is, the figure of 120 hours, which was the figure recommended in the Report of the Committee headed by the noble Baroness, Lady Wootton of Abinger—
"to be inadequate. There is no particular reason why we should pick on 240 hours as being adequate…".—[OFFICIAL REPORT, 17/7/72, col. 643.]
It is rather on those grounds that I wish to challenge the Government's decision to double the recommendation of the Wootton Committee and to insert a

1315
minimum. In our previous discussion, I admitted that this was a question of judgment. It clearly is so. There is a very important factor behind this and it applies more to the maximum than to the minimum. The community service order can turn out either way: it can turn out as a punitive affair or as a rehabilitative affair. It must to some extent be both; but the balance is very important. Taking a Saturday as a five-hour working period—I do not think that there will be many eight-hour Saturdays—120 hours is equal to 24 Saturdays. That is quite a long time. If you are offering a young "tear-away" an alternative of 240 hours (which is 48 Saturdays) this will extend over nine months; and I think it likely either that he will refuse it or that he will break down under it. If that is the kind of sentence to be imposed, it will fail through breakdown.
As the noble Viscount has admitted, in a sense this is a pure guess. It is a guess on anybody's part. Would it not be more prudent to accept the guess of the very balanced and sane Committee who invented the idea rather than to double it? Is it not evident from the point of view of outsiders that if you double it then you are stressing the punitive and taking stress off the rehabilitative side? I believe this to be much more important than the words make it sound. If in these circumstances you sentence a young man to something that he can bear, then I think you may change him in a short time. He will be influenced by the various people who are running the thing. I think it may be a valuable experience and do something for him. If you sentence him to something that he cannot bear at all—even though he thinks that he may be able to do so at the outset—I think you will regret it. I would ask the noble Viscount to think very carefully about this matter. He is taking no great risk: it is very easy later on to alter the minimum, to increase it; but I believe that it would be a much wiser way to start.
May I say a word about the minimum? As I made clear in our previous discussions, I do not mind limiting the power of magistrates. I think that in many cases it requires further limitation. So far as the clause that we have recently discussed is concerned, I think the mandatory
1316
limitation is a thoroughly healthy thing and I am sorry that we are going to lose it. But here you are introducing, so far as I can see, an entirely unnecessary limitation to the magistrates' powers. You are saying: "We cannot let you impose a punishment of this kind without seeing that at least you make it fairly severe; for you might make it foolishly lenient." If I were a magistrate, which I am not, I should resent that. I see no reason to stipulate a minimum. I think that the chances are that the magistrates would be very unlikely to award a sentence of two Saturdays or of three Saturdays. I should have thought that a month of Saturdays —I mean four Saturdays—would be the absolute minimum. I see no advantage in stipulating a minimum.
So it seems to me that it would be much wiser of the Government to accept the original figure until there is some reason to alter it. The only reason suggested is, in the noble Viscount's words, "to satisfy the public." But if you are going to satisfy the public, you are going to tend to use the maximum the whole time; and this, again, will detract from the value of the C.S.O. We shall not divide on this, but I believe the Government would be wise to put their mind to it. It would cost them nothing. They are taking no risk of any kind and they are making a gesture to what I may call the leniency side of the penal field, a side which gets very little gestures of that kind at the moment.
4.27 p.m.
VISCOUNT COLVILLE OF CULROSS: My Lords, there are, it is perfectly true, two sides in the penal world: there is the leniency side and there is the, I suppose, severe, harsh and perhaps slightly repressive side. It must surely be the job of Government to try to hold a proper balance between the two. Very obviously, too, with the greatest good faith one is pressed from both sides. What I should like to do about this is to seek to put it into context. First, a word on the origin of this matter. The Report of the Committee chaired by the noble Baroness, Lady Wootton, dealt with this matter in paragraph 58. It is with no disrespect to the noble Baroness and to her Committee that I would suggest to the House that I think her recommendation, too, was probably a guess; the reason

1317
underlying it was certainly not spelt out at great length in that paragraph. I do not resile from my confession before that we, too, have altered this by virtue of a guess.
Let us just remember what is the purpose of this exercise. We are seeking to provide an alternative penalty for people who at the present time, for lack of anything else to do with them, go to prison. We do not want them to go to prison; we do not think that prison is the right place for them. It does not do them any good, or the prisons any good, or anybody any good; whereas the C.S.O. ought to do all three of those categories of people good—including those who, we hope, will benefit from the community service done by those who are thus free from the threat of prison.
It is no use supposing that one can introduce a radical and welcome alternative to what is, at the present moment, imprisonment, without taking into account that a very large number of people in the population do not understand as fully as they might everything that those inclined to leniency in the penal world hold most dear. I do not think that it would always be considered to be adequate—and I am dealing at the present moment with the "minimum" point—for a court to be given in this legislation a power (specifically as an alternative to sending somebody to prison) which involved no minimum at all and which could be something in the region of an attendance on one or two Saturday afternoons. That, I believe, would be considered by everybody concerned to be, as I have said before, a "soft option" and not one which sought to get to the root of the problem—which is to stop sending unsuitable people to prison. If a young man is capable of being dealt with by going on community service, what good is there in his doing it on just two Saturday afternoons? If that is all that this means, then we are not dealing with people who would otherwise have been sent to prison. I must say to the noble Lord, Lord Donaldson, that I think that this argument is irrefutable. If this is the penalty—one should not call it a penalty, it is a sentence—we are not taking people out of the prison system at all. We are merely providing yet another variety of probation order or something of that sort and that is not the purpose of this provision at all.
LORD DONALDSON OF KINGSBRIDGE: My Lords, I must say one more word. Surely this assumes that only those people are sent to prison who ought to be sent to prison. That, in my view, is not the case at all.
VISCOUNT COLVILLE OF CULROSS: My Lords, that was one of the noble Lord's more obscure remarks.
LORD DONALDSON OF KINGSBRIDGE: My Lords, if it is entirely inadequate to punish someone by taking up two Saturdays of his free time, this Bill suggests that sending him to prison would be more adequate. In my opinion probably a third of the people who are in prison to-day ought not to be there and would be much better off by being made to give up two Saturdays.
VISCOUNT COLVILLE OF CULROSS: My Lords, I am not sure. I do not know that courts at the moment send people to prison for whom the alternative would be two Saturdays deprivation of leisure. I would rather have eight Saturdays, which is the minimum provision in this Bill, and that is what we concluded, after exercising such judgment as we were able to exercise. I must ask the House to endorse that view, and I am glad that the noble Lord, Lord Donaldson of Kingsbridge, is not going to press for a vote on the Amendment.
As for the maximum, it is true that 240 hours could involve a long period of work of this sort. I take the noble Lord's point; and I think that the courts will understand that to overdo this sentence so that, as it were, it breaks the camel's back, would be an error. But, as is always the case in criminal legislation, we are providing a maximum. Some noble Lords, certainly my noble friend Lord Swansea, would complain that the courts, when presented with maxima, do not use them. We suggest that this sentence is provided as a maximum for the courts in the same way as most other penalties in our criminal legislation are provided as maxima. I doubt whether there will be many cases where the courts will go as far as this; nevertheless, there may be an occasion when the court will say, "Here is a defendant for whom this would be an adequate sentence. It is a case where the concept of deprivation I of leisure is the right way to deal with

1319
it, but it is a case where he had better put in a substantial amount of time and energy." There are, of course, as the noble Lord knows, provisions for reviewing the sentence as it is going on. The noble Lord will remember the provisions in the Bill. I must suggest to the House that if this matter is to be taken seriously —and I know every person who has taken part in these provisions wishes it to be taken seriously—it must be presented as a realistic alternative to imprisonment. That is the reason which underlines our choice of the top and bottom figure.
Finally, there is this point. If, alas!, the noble Lord, Lord Donaldson of Kingsbridge, is right, and large numbers of unsuccessful maxima are applied and it appears that this is bringing the whole scheme into disrepute, there is power in the Bill to reduce the maximum. Whether one would be so happily placed by having power in the Bill to increase the maximum from a lower initial stage is another matter. I think that Parliamentary approval is comparatively easily gained for reducing maximum sentences, but one might run into a rather more difficult situation if one attempted to increase them. It might be that people would say, "This is a substantive matter which needs legislation and discussion; and anyway, you are only guessing, and we want now to assess the statistics to see whether you have got it right." A Statutory Instrument is, of course, not susceptible to amendment. So I draw attention to the power to reduce the maximum and I draw attention to the difficulty of proceeding in the opposite direction as is suggested by the noble Lord, Lord Donaldson of Kingsbridge. I hope that now we may leave this matter as it is on the argument which I have sought to present, very much in the hope that it will provide a successful and an acceptable alternative to imprisonment.
LORD DONALDSON OF KINGSBRIDGE: My Lords, I am sorry that we have not succeeded in persuading the Government. I would make only one comment on what was said by the noble Viscount, Lord Colville of Culross: the procedure which the Government are going to adopt is to wait until the thing breaks down and then scrap it. I suggest that I t would be better to go the other way, and if the thing works so well that
1320
it is felt that this method might be extended to more serious offences than it has been, that would be the moment to increase the number of hours. I will say no more after the discussion we have had, and I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 19 [Probation orders requiring attendance at day training centre]:
VISCOUNT COLVILLE OF CULROSS: My Lords, this mysterious Amendment is a drafting one. In fact it is only part of the story, because the second part of Amendment No. 39 restores precisely the same subject matter but puts it where we think it would be better put, in Schedule 5. I beg to move Amendment No. 10.
Amendment moved—
Page 18, line 10, leave out subsection (5)—(Viscount Colville of Culross.)
Clause 21 [Mental treatment for offenders subject to probation order]:
VISCOUNT COLVILLE OF CULROSS VISCOUNT COLVILLE OF CULROSS moved Amendment No. 11
Leave out Clause 21.
The noble Viscount said: My Lords, my noble friend Lord Mansfield said he read this Amendment with tears in his eyes, because he thought that all his hard-won victory on Committee stage in getting a new clause inserted had gone completely for nothing. But I can assure the House that if one reads this Amendment with Amendments Nos. 39A and 41—and incidentally Amendment No. 38 —it will be discovered that we are doing the whole thing by a different method. I did warn my noble friend that we would have to do so because the drafting was wrong. But the substance of what he achieved on Committee is all there. We have picked up all the consequentials and the Amendment covers exactly the same things. I beg to move Amendment No. 11.
4.38 p.m.
LORD STOW HILL LORD STOW HILL moved Amendment No. 12
After Clause 22 insert the following new clause
Suspended Execution Orders
".—(1) Without prejudice to the power of any court to suspend the execution of any

1321
sentence upon service of a notice of appeal, any court which has passed a custodial sentence may at or after the passing of sentence make an order (in this section referred to as a "suspended execution order") suspending the execution of the sentence for a period or for successive periods not exceeding in all three months and any such court may at any time vary or terminate a suspended execution order.
(2) In any calculation for any purpose relating to the length of any sentence no account shall be taken of any period during which a suspended execution order is effective."
The noble and learned Lord said: My Lords, I beg to move this Amendment which your Lordships will notice follows very closely, though not entirely, the Amendment put down and discussed on Committee stage. The House will remember the very moving speech which was addressed to your Lordships by my noble friend Lady Birk. Unhappily, the noble Baroness is a little indisposed but she will be back with us soon. I have to say on her behalf that she is extremely sorry that she is not able to be present to-day to return to the charge.
I will not rehearse all the arguments addressed to the House by the noble Baroness during the Committee stage nor those arguments supplementing her arguments. Shortly, the point of this proposal is as follows: it would empower a court to suspend a custodial sentence, in a case where the court is convinced that the custodial sentence is necessary, for a period not exceeding three months. The object is to enable the person upon whom the custodial sentence is imposed to put his or her affairs in order before the sentence of imprisonment takes effect. I said that this Amendment follows almost, if not entirely, the version put down at the Committee stage. The difference is that the Committee stage version was defective in that it was worded to apply to punishment of any sort and was not limited to custodial sentences. The first change that has been made is that the punishment in question is limited to sentences of imprisonment.
The second change is a very small one. It was pointed out by the noble Viscount, Lord Colville of Culross, that there was a defect in the drafting, in that it was not made clear whether the successive periods could each be for three months or whether, in the aggregate, they must not exceed three months. We have sought to make clear that they cannot in the aggregate exceed three months. In its
1322
changed form the Amendment would empower a court, when it has passed a sentence of imprisonment upon an accused person, to direct that that person should not begin to serve the sentence of imprisonment for a period not in excess of three months from the imposition of the sentence.
The object, as I say—I hope I do not repeat myself unnecessarily—is that there are a great many persons who are convicted of offences and in whose case it would be an absolute blessing if, in order to keep their family affairs together, or their business together—or perhaps to make provision for sickness in the family or something of that sort—they could have a month, two months, or at a maximum three months, to put their affairs in order before they disappeared from the family circle to serve the sentence of imprisonment.
Your Lordships may wonder whether it is really helpful to introduce an Amendment that is practically identical in terms to one which was discussed on the Committee stage, but I and those associated with me in putting forward this Amendment do so for the following reasons. The noble Viscount, Lord Colville (and I think we all have sympathy for him, because of the enormous burden of work on his shoulders), in effect said: "You confront me almost at the last stage with a new proposal. I have not really had an opportunity of having consultation about it and giving it the full consideration that it requires. I can give you my off-hand reactions, but I should like to think about it further." Since the Committee stage, he has written a full letter to my noble friend Lady Birk. We have considered most carefully the arguments that the noble Viscount uses in that letter. May I say, in a word—and I hope he will not mind my saying this—that I do not find them very convincing.
The noble Viscount says towards the end of his letter, after rehearsing the various arguments, that my noble friend Lady Birk might think this the sort of point that might be raised in a Private Member's Bill. Perhaps I may read the relevant part of his letter on that point. He says:
"While recognising your desire to take the opportunity of the Bill to bring forward a proposal which you believe to be desirable, I do urge upon you the view that a good deal

1323
more preparing of the ground ought to be done first. I know that it is always said that legislative opportunities occur only rarely. Even if that is true of Government legislation—and I believe there may well be further opportunities before too long—this seems to me the kind of proposal which having been properly worked up could be launched in Private Member legislation."
May I say at once that if the noble Viscount is able to give me, and those associated with me, encouragement that the Government would facilitate and welcome a Private Member's Bill on this matter, I think we should probably feel that it was not desirable to trouble the House further with it. But simply to say, "You might like to bring in a Private Member's Bill", is very different from saying that "If you do, we will afford you time and see that it receives early consideration in this House and in another place."
I also, in passing, note the expression in that passage of the noble Viscount's letter relating to the possibility that indeed there may be other Government legislation within the foreseeable future (his expression was "before too long") in which a proposal of this sort might be embodied. If the noble Viscount is able to tell me that there is a probability that there will be further Government legislation, and that a matter of this sort, if thought appropriate—that is to say, if on its merits it seems desirable—could be included in that Government legislation, equally I should not myself think it necessary to trouble the House with the matter further at this stage. I do not invite the noble Viscount, unless he feels that he should, to intervene and give me an affirmative answer: and as he is still in his place, perhaps it would not be inappropriate if I made some observations on the arguments that he has used in his letter.
The noble Viscount starts by saying that he can envisage a few cases—he says, "I would say a very few cases",
"where it should be beneficial to the individual offender if a court, having passed a prison sentence, were able to postpone its coming into effect for a short time."
So we are not dealing with a vast mass of defendants. It is not as if this is a tremendously complex revolutionary proposal, which must be examined fundamentally and passed through a long stage of consultation with many interested
1324
bodies before it can be accepted as suitable. This is a proposal limited in scope. As my noble friend Lady Birk explained, the sort of situation she had in mind was of a person, perhaps married, who possibly has built up over a period of years a business of his own which he runs with assistance, or even without assistance, and by which he supports his family, and who is faced with virtual financial ruin if at least he cannot do something to try to see that his business is kept in being while he is in prison for three, six, nine or twelve months, or some period of that sort. So it is a limited proposal. It is not only that sort of situation; as I have said, there may be cases in which there is a bedridden member of the family who is an invalid, or something of that sort, for whom provision ought to be made. He may wish to call in his relatives or friends to try to keep his family together.
I hope that I do not trespass on your Lordships' time if I again insist, as was insisted upon before, on the enormous importance, when a person goes to prison, of trying to keep together a family to which he can come out when he has served his sentence. If one of the purposes of our penal arrangements is to try to bring back into society persons who go to prison, and to restore them as useful members of society, then it is crucially important—and I have had some experience of this—to try to see that his family does not disintegrate; that he has a wife who will wait for him: that his children are not too violently disillusioned in him; that he can come back and carry on, so far as possible, where he left off when he was sent to prison. So, I repeat, it is a limited proposal.
I do not think it requires a great deal of imagination to picture the kind of case in which a court, in the exercise of its discretion, would be likely to make use of this power if it were incorporated in the Bill. We are not talking of the legendary business tycoon who is an undischarged bankrupt and has just been convicted of defrauding a group of shareholders of £2 million, and who spends his time in a large villa or travelling between the South of France and Switzerland, where he has a number of bank accounts. I should have thought that if a person of that sort said he would like three months before he went to

1325
prison, the noble Viscount might well be justified in saying that it a case of that sort one should proceed to go on to sentence, because such a person might use the time to decamp or to salt away the property that he had fraudulently obtained, or something of that sort. I should be very surprised if that type of man got the three months' respite. One must credit the courts with the exercise of a reasonable discretion in these matters. That is what I would say on the first part of the argument used by the noble Viscount in his letter.
He then says to my noble friend Lady Birk:
"Your whole proposal is defective. You give no sort of guidance in your draft as to the kind of situation in which this power might be used."
As he has said that, may I draw his attention to the provision in his own Bill about deferment of sentence? It appears in Clause 22. The courts are there given a power to defer sentences, but if you ask what guidance the court is given in that clause, the noble Viscount's own clause, you will find that it is extremely little. It is contained in the words in Clause 22(1):
"…for the purpose of enabling the court to have regard, in determining his sentence, to his conduct after conviction (including, where appropriate, the making by him of reparation for his offence) or to any change in his circumstances."
My Lords, that is as wide and imprecise as it could conceivably be, but the noble Viscount obviously relies on the common sense of judges not to misuse a power of that sort. That is what I am asking him to do when I put forward this particular proposal. If it were necessary, one could put in some general phrase similar to the phrasing used here, such as "for the purpose of safeguarding his interests or the interests of his family", or something of that sort. It would be easy to do so. We were admonished by the noble and learned Lord the Lord Chancellor, very rightly I thought, in a number of contexts, among them that it is very dangerous to "fossilise", I believe the phrase was, principles in the terms of the Bill. You must leave the court some reasonable discretion, and I should have thought one was not really running very much risk if one said to the judges, "Use your common sense." Of course one would
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speak to them with greater respect, but that would be the substance of the matter and I am sure there would not be any difficulty at all in their isolating the kinds of cases in which a power of this sort could very usefully be used.
I hope I treat the letter fairly, but I think really and truly that is the substance of the argument which is contained in it. There are one or two arguments that I do not quite follow. One is that the effect of a power like that might be to tempt courts to impose prison senences, whereas they otherwise would not do so. I find that extremely difficult to follow. I do not see why they should be so unwise as to give in to a temptation of that sort because they have this added power. I pass that by. I will not deal with the remaining arguments because I really do not think they take the matter any further.
The noble Viscount says there should be more consultation. Well, nearly a month has gone by since Committee. Cannot one think out a small proposal of this kind in that time? It is not so difficult as all that, and I suspect that the Government are making rather heavy weather of this. However, as I said at the outset, if the noble Viscount can give me some encouragement to think that there will be an opportunity of fresh Government legislation reasonably soon to incorporate a proposal of this sort after the Government have had further time to consider it, I shall be quite content. If they can give me some encouragement with regard to a Private Member's Bill, equally I shall be content. But this must be solid encouragement—rather precise in terms, if I may say so.
I would simply add that the House will have noticed that we on this side of the House have reverted to the question of bail. What occurs to me to suggest to the noble Viscount, if your Lordships approve, would be this: if a fresh Government measure really is on the way, if it is recognised that there are other things to be tidied up so that one could deal not only with this particular proposal on suspended sentences but could perhaps include it with proposals with regard to bail which might be formulated after the Working Party has produced its report, that I should have thought would be convenient. It would make a worthwhile measure, and the noble Viscount might be

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able to say that he agrees. Those are the arguments I would deploy. If the noble Viscount feels that he cannot give us any encouragement and that he still wants to think about this further and to have more consultation, and if he uses the same sort of arguments as are in his letter, I am bound to say that I personally would think this is a matter on which we ought to ask the opinion of the House.
4.55 p.m.
VISCOUNT COLVILLE OF CULROSS: My Lords, the noble and learned Lord, Lord Stow Hill, was for a substantial time a very distinguished member of the Government and he knows as well as I do that I am not likely to be able to give the sort of guarantee of legislation or of support to a Private Member's Bill that he has outlined as being the only one that would satisfy him. I am sorry. The noble and learned Lord knows the facts of life, and he knows that without a specific measure before a Government an advance commitment of that sort is never given. Therefore I am afraid that I cannot take that easy way out and I must face up to the noble Lord's other points.
I am sorry that the noble Lord found some obscurities in the letter. I did my best to set out the problems. May I start off with this? The noble Lord concedes, and so did the noble Baroness, Lady Birk—and I am sure we are all very sorry to hear that she is not well: I hope she will soon be back with us again—that there would not be very many cases in which a suspended execution order would be proper. The implications of what the noble Lord, Lord Stow Hill, then went on to say were these: because you do not use it very often, there is not much point in taking very much trouble about seeing whether it is a good weapon to put into the armoury of the courts at all; that is to say, it is going to be used so seldom that we do not really need to bother much about consultations or to take very seriously the process of deciding whether or not this is a good thing to have, because of course the courts are hardly ever going to use it.
My Lords, the Government do not approach the arming of courts with new powers to deal with offenders in that cavalier way, and I would suspect that most Members of your Lordships' House would consider it gravely reprehensible
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if we did. I do not know what the experience of other noble Lords may be, but it occurs to me that there are better and more auspicious times of the year to get good and full consultations with the judiciary, the police, the magistrates, the probation service and others who are skilled in these matters than the month of August and the first half of September. It is our common experience that people tend to be on holiday and the courts are not sitting; and if the noble and learned Lord twits me for not having carried out proper consultation, I am sorry; but it is a fact that people are not here at the moment—or were not here at the time and in the numbers that we should like. I am not going to commit this Government to half-baked consultation leading to precipitate legislation on a matter which really does run into some fairly substantial philosophical difficulties.
Having said that, I recognise and accept the humanitarian case that the noble Lord has put forward for this sort of thing. I am sure it is right that there are some people for whom this would be a correct measure. But just let us look at it for a moment: the time immediately after sentence of imprisonment is a time of very great strain for anybody. Let us face it: it must be. The temptation at that juncture to abscond must be, I should have thought, at its greatest and there is no parallel whatsoever with the situation of being on bail before you are sentenced, because if you are on bail at that earlier stage you have every incentive in the book to behave yourself and to turn up at the court on the day in the hope that you will be leniently treated after all. In this case there must be every danger that the person will react in exactly the contrary way. Therefore we have to consider very carefully the kind of case where one might be able to use this power, and I am afraid I do not think that the noble Lord's analogy with the gentleman flitting between the South of France and his banks in Geneva was entirely apt to deal with the full difficulty of this case.
I do not know whether one ought to deal with criteria in an Act of Parliament. I am rather inclined to think not, and that when it comes to the Amendment on legal aid I am going to tell the noble and learned Lord, Lord

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Gardiner, that I do not want the criteria in the Bill. What I believe is that criteria must be worked out for the benefit of the courts; and really and truly all those who have argued for this new clause have never really gone into the question, or told us upon what criteria the courts think that these powers should be exercised. We have heard all the sad cases where I accept it might be suitable; but where are the safeguards and what is the court to do about deciding in which case it would be safe to do it? Not the case where it would be humanitarian, but the case where it is safe to do it. On that we have had no guidance at all.
There is—and it may be the noble Lord has found my arguments obscure in the letter—a difficult philosophical point on this. The sentencing practice of the courts is being directed all the time, and in this Bill we are in the same process, towards the idea that you send people to prison only if they must be in there for the safety of the community. That is the very point made by the noble Lord, Lord Donaldson. This is the direction in which we are going all the time, and this Bill goes further and further along the path. We have the community service order, and we have the deferred sentence in this Bill. Of course there are many things that have happened before; we have had conditional discharge and probation orders, all sorts of things, to give encouragement not to send people to prison.
Now we are confronted with a very strange animal in the world of sentencing powers. We say, "Here is a man whom you have decided"—and bear in mind Clause 13, my Lords—" can only properly be dealt with by imprisonment. But we give you a new power. He is so bad that prison alone will do; the safety of the community demands it. But there is no reason why you should not let him out for three or four weeks or two or three months before he starts his term of imprisonment so that he can wind up his affairs." But without a certain amount of further and profound thought on the criteria which ought to actuate a court and guide it in this field, there could well be some substantial confusion and, I am afraid to say, some mistakes made on the part of the court. The whole of the doctrine that underlines this Amendment goes in completely the
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opposite direction of everything else we are telling them. If we are going to do this I should like to be able to guide the courts much more in the way that they should apply this.
If the House wants to vote on this Amendment I have to say that there are still defects. I know that the noble Lord has corrected them, but I must warn the House of the defects. There is no power in this clause to recall people if they misbehave themselves during the period when they have been let loose prior to their sentence. There is no power to vary the time or the circumstances when the order of suspension has been granted. These are matters which would be essential because, inevitably, with the best judgment in the world, magistrates are going to make mistakes. People will commit further offences and would have to be recalled in some circumstances. Yet the law as drafted provides no power at all. If the court says, "Three months" the convicted person can commit a burglary every day and there is nothing you can do about it, although I suppose he can be arrested for something else. This is a severe defect in the drafting of the clause.
Let me see whether I can round this off by the constructive side. It is true that I cannot offer the noble Lord the positive help of a firm offer of Government legislation or backing that he would like. What I should like to do is take the opportunity of getting some further thought given to this proposal by those who are so very capable of giving it. I should like the advisory committee to consider it. It is a great pity that this proposal was not put as one of the suggestions that the Committee chaired by the noble Baroness had before them. I believe that this is the way in which one properly considers these new ideas, and this is the way in which I should like to consider it. Then I believe we shall get the matter properly considered and worked out, and all the snags and advantages weighed up to see whether it is a good idea or not.
BARONESS WOOTTON OF ABINGERMy Lords, the Council would be most glad to consider it if the noble Viscount likes to call the matter to their attention.
VISCOUNT COLVILLE OF CULROSS: My Lords, I am grateful to the noble Baroness. There are other commitments, but it is one of the ways in which this could be done, and I think it is the proper way in which it should be done. That means to say that we must have a little lapse of time before anything is likely to come of it. The initial consultations that we have had have not been, by any means, all favourable, I am sorry to say. There have been some quite severe criticisms from judges and from the police on this matter.
I beg your pardon, my Lords, I have misled the House. There is a power to vary or terminate the order. I am sorry; what I meant to say was that there was nothing to guide the court about the occasions in which it should be used. We do not know whether it is because the person breaks the conditions, or whether it is because he has committed another offence. This will have to be cleared up in proper drafting. I withdraw what I said about there being no power to vary or terminate the order. We must have rather more in the way of spreading out the occasions on which it should be used.
To go back to the constructive side, one must remember that at the moment we are not in a limbo. If a person is sent to prison it has occurred to those who have to deal with prisoners, and deal with them in an enlightened way, that it causes chaos in their families. As some noble Lords will be aware, there is a number of fairly sophisticated agencies who look after these matters. There are volunteers—and I am glad that we are able to use volunteers—who exist just for the very purpose of taking the immediate action that the noble Lord wishes to be taken. It is never so good as action by the person who has been imprisoned. One might say in the case of a man with a business that it would have been better if he had not committed the crime at all in the first place. But if he has committed the crime and is sentenced to prison, there are people who will go and help the family, or his partners, to sort out his affairs. There is the Prison Aftercare Service which looks very carefully into the family conditions of the prisoner. This is one of the subjects that come into the ordinary course of preparing a social inquiry report for the courts before sentence is passed.
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Therefore the information providing the basis on which to act is available for these services. I do not want to spell this out—I have made a very long speech on this Amendment—but if we are going to eliminate this fault, let us do it properly and recognise that there is no immediate rush about it on the basis that nothing now can be done or is done for people who are sent to prison. There are measures to help them which are in operation now. They give us time to give proper consideration to this new clause—the consideration it deserves.
5.8 p.m.
LORD GARDINER: My Lords, I have some sympathy with the view that the noble Viscount has expressed about the need for further inquiry. If the matter is to be considered by the Advisory Committee, or other body, will comparative law be taken into account, as is the custom of the Law Commission? The reason I ask that is because I do not know whether the noble Viscount has seen an article in The New Law Journal under the heading "Suspended Execution of Sentence". On absconding, they say:
"Used cautiously and sensibly, there is no reason to suppose that absconding will be a problem. People so released will be those with family roots or businesses, precisely those who will take advantage of the time to put their affairs in order and then get their sentences over and done with."
I should have thought the best evidence about this matter is what happens in other countries? Human nature is much the same.
We have all read of the appalling fraud in America in relation to the Howard Hughes "biography" where both the husband and wife were very properly sentenced. Some of us I expect were a little surprised that first of all Mrs. Irving was given some days to see to the affairs of the children, and so on. Then it was ordered that the husband's sentence should not start until the wife had finished serving her sentence. This was precisely for the purpose of preserving the family life. When one realises that this is part of the law of France; that it is part of the law of Sweden and is also part of the law of Denmark, there must be considerable practical experience as to the sort of cases in which this works properly, and to that extent absconding is a problem.
VISCOUNT COLVILLE OF CULROSS: My Lords, with leave, may I just deal with that point? It is not only in Britain that people are on holiday in August; it also applies in America and in many countries on the Continent of Europe. Therefore we have not been able to have the extensive consultations that we should like for these purposes, either. The Advisory Council is well used to doing this and would, I am sure, be quite able to do so. What I do not know at the moment, and cannot advise the House on, is in what circumstances those foreign countries allow this kind of thing to happen. I may be right in saying that it applies in some cases to motoring offences for which people in this country would never be sent to prison at all. That is the kind of thing one would like to look at before necessarily concluding that foreign experience is a proper parallel.
LORD DONALDSON OF KINGSBRIDGE: My Lords, the noble Viscount began his speech by defending himself with rather more spirit than my noble and learned friend's mild chaffs justified. But he made up for it by showing a fair appreciation of the point towards the end of his remarks. As somebody who believes very much in this new clause, I believe it would provide a very important addition to the powers of our courts. I do not think it would be difficult to put upon it the necessary limitations. But I personally would be satisfied, and I hope my noble friend would be satisfied, if we had an undertaking that it will be put to some body, such as the Advisory Council, for deep and serious consideration.
LORD STOW HILL: My Lords, I entirely agree. May I in my own defence put it to the noble Viscount that I did not suggest, to use his words, cavalier treatment. All I said was that it is not as if this were a revolutionary proposal. It is not as if it would affect a large number of people. It would affect, I should have thought, a comparatively limited number—the type of person I sought to describe. All I was seeking to put to the noble Viscount was that, if this was a major change, I quite agree the fullest possible consultation must be had and experience very drastically sifted both in this country and
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other countries. All I was saying to him was that I did not think that consultation as full as that was necessary in the case of such a limited proposal as this.
When I suggested a Private Member's Bill what I had in mind was this. It is well known that Governments frequently make available to Private Members the services of Parliamentary Counsel and will enter into consultation with Private Members who wish to introduce a Bill, and indeed will make time available in another place. That is the kind of consideration I had in mind. In regard to Government legislation, I had in mind the noble Viscount's own phrase in the letter referred to. However, I will not take further time on that. What I am pleased to hear him say is that he recognises that the proposal is one which should be further investigated. I should be grateful if he would refer it to the Advisory Committee so that it can be carefully looked at and the experience of other countries analysed.
I feel myself next to certain—perhaps it is presumptuous to say that, but I feel very strongly indeed—that this is a power which could bring great good in a large number of cases. I do not want to speak of my own experience more than is absolutely necessary; but prisoner after prisoner with whom I have sat in a cell and discussed his kind of situation, and case after case in which I as a Member of another place have received letters from wives and their families anxious to be reunited and anxious to restart something like a normal, stable life, make me quite convinced that this is a proposal of great importance. The noble Viscount, I thought so rightly, said that a prison sentence has been imposed in a particular case and the person on whom it has been imposed is frequently in a state of the greatest shock. In most cases it is a dreadful calamity. It is at that stage when things can go to pieces. The prisoner loses his will, loses hope, and so on. Particularly in the limited class of case where a man has made some position for himself—he has built up a business, has his connections, has his neighbourhood to hope to go back to—I should have thought a power of this kind could be extremely beneficial. I hope the House does not think I am overpainting the position when I use phrases of that kind.

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I feel very strongly on this matter, but the noble Viscount has given me the indication which I hoped to obtain—I should have liked him to go further but I see the difficulties involved. Therefore, he having said., as understand him, that he would be disposed to refer this matter to the Advisory Committee, or at any rate take it further into consideration in whatever form he thinks is appropriate, perhaps without binding himself in advance, I am content speaking for myself, and in these circumstances I ask for the permission of the House to withdraw the Amendment.
Amendment, by leave, withdrawn.
5.16 p.m.
LORD STOW HILL LORD STOW HILL moved Amendment No. 13:
After Clause 24, insert the following new clause:
Bail: principles to be followed
".—(1) The following provisions of this section shall have effect in place of the provisions of section 18 of the Criminal Justice Act 1967.
(2) For the purpose of this section a "bail question" means a question whether any person who has attained the age of seventeen (in this section referred to as such person') and who is the subject of proceedings in any court having criminal jurisdiction (in this section referred to as the court') shall or shall not be granted bail.
(3) A bail question may arise at any time between the time when such person first appears before the court and the time when he commences to serve any sentence involving the loss of his liberty, or, if he gives notice of appeal, the time when this appeal is determined or abandoned.
(4) A bail question shall be deemed to arise whenever such person is remanded or committed by the court or the proceedings of the court are adjourned.
(5) Whenever a bail question arises and such person is not represented by counsel or a solicitor, the court shall either grant him bail or, unless the court is satisfied that such person is aware that he is entitled to apply for bail, inform him that he is entitled to apply for bail and ask him whether he wishes to apply and the court may, if it considers it expedient so to do, make a legal aid order to enable an application for bail to be made.
(6) Whenever a bail question arises there shall be a presumption in favour of the grant of bail, in the case of any person who has been in custody for a period of not less than one week, and such presumption shall prevail unless good cause is shown to the contrary.
(7) For the purposes of this section 'the grant of bail' includes the grant thereof upon terms, that is to say, upon such conditions as appear to be reasonable or upon such person's
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own recognisance in a sum which, regard being had to his means, appears to be reasonable, or upon the provision of sufficient and satisfactory sureties in such sums as, regard being had to their means appear to be reasonable and 'the refusal of bail' includes the grant of bail upon terms which such person states to be unacceptable to him.
(8) Whenever a bail question arises and an application for bail is refused, the court shall, if such person is not represented by counsel or a solicitor or, if he is so represented and his counsel or solicitor so requests, give him a written notice stating the court's reason for refusing him bail and informing him of his right to apply for bail to such court or judge as may be appropriate.
(9) Where in any such case as is referred to in subsection (8) above the court is informed that such person intends to apply to another court or to a judge, as the case may be, for bail, the court may make a legal aid order to enable such application to be made and any court to which or judge to whom any application for bail is made may make a legal aid order to enable such application to be pursued.
(10) The provision of Part IV of the Criminal Justice Act 1967 shall apply to a legal aid order made for the purposes of this section, so however that any such legal aid order may be limited to the purpose for which it is made."
The noble and learned Lord said: My Lords, I have in a sense argued this Amendment when dealing with the previous one. Again this is a harking back to the discussion we had in Committee. Your Lordships may again think, the matter having been exhaustively dealt with there: is the House really served by reverting to it now? May I seek to answer in advance that question which may be put? First, we are all in agreement as to the fundamental importance of the question of bail—and I will not go over the arguments accepted on both sides of the Committee to establish that proposition. Secondly, I think we are all in agreement that it does not work altogether satisfactorily now. The figures then cited show that; and again I do not rehearse them. Thirdly, a major feature in the situation that emerged when we were discussing this matter in Committee was that the Working Party which was set up something like a year ago must have advanced fairly far in its labours in considering the question of bail. It was suggested then, and accepted by noble Lords on both sdes of the Committee, that it would be unwise to jump in ahead of the recommendations of the Working Party and to try to formulate a complete version of the law relating to bail without knowing what

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its recommendations would be. I entirely accept that, and it was because that argument was used that I asked leave in Committee to withdraw the Amendment.
All we have done in this case is to try to put some thoughts on paper. I will just explain—I hope I am not taking time unnecessarily in doing so. I think we were all impressed by the speech which the noble and learned Lord the Lord Chief Justice made when he pointed to the difficulties which have in fact emerged. He referred to the case of the lorry driver who was charged with rape and who was remanded in custody for a week. The Lord Chief Justice, having investigated the matter, felt that the justices had no alternative but to do that, because in a week a court just cannot know about the man. He may be perfectly reliable in a general sense, but within a week one often has no evidence either way. We have tried to meet that situation by providing in our subsection (6) that there is to be
"a presumption in favour of the grant of bail, in the case of any person who has been in custody for a period of not less than one week".
In other words, what we seek to provide—and, as I say, we simply put this on paper in order to indicate our thinking on this matter—is that there is to be a presumption in favour of bail, except that when there is before the court a person who has been in custody for a period not in excess of one week that presumption cannot be made because normally nothing will be known about him. Some days must go by while inquiries are made. At the end of that time, if the inquiries are made with reasonable expedition enough ought to be known about him to decide one way or the other whether he should have bail. What we say in this redraft of the Amendment is that as from that time there should be a presumption in favour of the grant of bail. That is the way in which we would seek to meet the point made by the noble and learned Lord the Lord Chief Justice.
This is home made. It is a proposal which we have put on paper. I dare say criticisms could be advanced about it, but it is for consideration. What I put to the House when I was moving the Amendment on the last occasion had a rather serious flaw—the noble and
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learned Lord the Lord Chancellor thought a fatal flaw and I would probably go nearly all the way with him in saying that. It was that the presumption was to operate in favour of the grant of bail unless the court was satisfied on reasonable evidence that one of the circumstances set out in the sub-paragraphs of the last draft operated. I think that was a serious flaw in the last draft. We have tried to cure it by substituting for the words contained in the last draft the words:
"Such presumption shall prevail unless good cause is shown to the contrary ".
I should have thought that that would cover the case in which a responsible police officer was able to tell the magistrates' court on inquiry by them that he had reason to believe, for example, that the accused person might, if he were at liberty, tamper with Crown witnesses, or something of that sort.
But we do not put this Amendment on paper in order to invite the opinion of the House upon it. It is really in order to put before the House, and perhaps before the Working Party, some suggestion as to how the difficulties which emerged in the course of our last debate might be met. I hope the House may think that the appropriate course now is to give me leave to withdraw the Amendment, if those associated with me are in agreement with that course.
VISCOUNT COLVILLE OF CULROSS: My Lords, I wanted to make one comment. I am glad of the line taken by the noble Lord but I have something constructive to say as well.
LORD STOW HILL: My Lords, may I therefore, technically, at the moment withdraw my application for leave to withdraw the Amendment?
THE LORD CHANCELLOR: My Lords, it might be better if the noble Lord were to propose his Amendment, otherwise there is nothing before the House.
LORD STOW HILL: Then, my Lords, to put myself technically in order may I move this Amendment? I am most anxious to hear the comments that the noble Viscount may make upon it and at a later stage I may revert to the proceeding which I unsuccessfully sought to

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initiate earlier in my speech. I beg to move.
5.23 p.m.
VISCOUNT COLVILLE OF CULROSS: My Lords, I must confess that I have never in the course of this Bill sought to criticise—at least I think there was the point about the appeal to the High Court on evidence which arose on the last version of this Amendment—but my approach to Amendments from noble Lords opposite has not been to say that they were impossible from the drafting point of view. Therefore I have not gone through this line by line to see whether it is a satisfactory legislative measure. I think probably it is not altogether satisfactory but I do not want to go into the reasons why, because of the way in which the noble and learned Lord, Lord Stow Hill, has so helpfully moved it. If I may say so, I think it is the most constructive way in which this could have been done. I should have had to advise the House that it would be mad for us to go on legislative record at this juncture, when we are just getting this job done by the Working Party, which might contradict anything that they said by legislative provision and which might turn out to be wholly misguided.
My colleagues and I have been discussing it and what occurred to me was this—it may not sound very much but I think it may have some practical application. The noble and learned Lord, Lord Gardiner (I think it was), and others who discussed this matter before were not really concerned with the prisoner or the person on remand who applied for bail and did not get it; they were concerned with the chap who did not know that he could apply for bail; who was so unversed in the way of police stations, courts and prisons and who for some reason did not manage to read or to be told about this, or who was frightened when he went on a lightning appearance before the magistrates on remand. This was the person that some noble Lords opposite wanted to reach.
I have looked at the law in this connection and I do not think that it is really too bad. I do not think the machinery for getting bail is all that bad, or even the provisions for getting legal aid. There may be some gaps in
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it but it is not nearly so scanty as I suspected when I first looked. What I think are wrong are the cell cards and the information available to people in police stations. I have had a look at the cell cards that have been put round the prisons and also at the piece of paper which the Metropolitan Police use for this purpose. Of course different police forces have different pieces of paper but I have the one that the Metropolitan Police use for this purpose. I am hound to say that although their authors may love them dearly as pieces of English and they may think that they convey with great clarity all the information that is necessary, I am afraid I do not agree. I think they need radically re-drafting; I think they should be put into short, clear sentences, using simple words; they should be broken up. They should say things like, "If you want bail, the way you should go about it is this", instead of using very long sentences which consist almost entirely of words invented by bureaucrats.
I propose to have this redrafted in the case of the prison service, which comes under my direct control, and in the case of the police I propose to suggest that they should look at it very carefully (and we might even be able to give them a model) and that they should go a great deal further than they do at the moment, at any rate in the case of the Metropolitan Police, including telling people that they are entitled to open their mouths when they go back to the magistrates' court on remand. They are not bound to remain silent. They can say to the magistrate, "Please sir, will you give me bail?", and things of that sort. At the moment this is not made clear. While this Working Party is still sitting, and when it has reported, the law will be the same. What we want to do is to get at the people in the prisons and in the police stations. I believe this is a practical thing to do and I should like to get on with it.
BARONESS WOOTTON OF ABINGER: My Lords, I apologise for the fact that I did not hear the opening observations made by my noble and learned friend Lord Stow Hill, but surely the noble Viscount will have in mind that there must be some people who have not been in a cell at all; who have been brought to the magistrates' court and then

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remanded. They then find themselves whacked off to prison pending trial, without having previously been in a cell at all. For instance, there may be persons who are taken up on a charge of driving with more than the permitted maximum of alcohol in their blood. They will not have seen any cell card. I should have thought that a number of the people whom I have seen in court would not have seen cell cards and would not yet have been in prison. Surely there are some people who have to be informed of their rights before they are ever detained at all?
VISCOUNT COLVILLE OF CULROSS: My Lords, with the leave of the House I should like to speak again. I think practically everybody who gets into that situation has been to the police station, and that was why I suggested that we should deal with the form that the police have if there is any question of the man going before the court at all. There were two limbs to my argument: I referred to the cell cards—that is the prison cards—and there are also the pieces of paper "dished out" by the police, which I think are just as important.
BARONESS WOOTTON OF ABINGER: My Lords, I have in mind that there are people at the police station who are not actually put into cells, and I think that was not entirely clear from the way in which the noble Viscount put it.
LORD STOW HILL: My Lords, I am grateful to the noble Viscount for what he has said and for what he has indicated as being his intention in regard to clarifying the guidance which is given to persons who might wish to apply for bail. I sought previously to pre-empt, as it were, your Lordships by seeking to withdraw the Amendment. Having regard to what has been said, I now ask leave to withdraw it so that we may see what the Working Party reports.
Amendment, by leave, withdrawn.
Clause 28 [Increase of maximum punishment for firearms offences]:
5.31 p.m.
LORD SWANSEA LORD SWANSEA moved Amendment No. 14:
Page 25, line 16, leave out ("£100") and insert ("£125").
The noble Lord said: My Lords, I will not detain your Lordships for long on this point and I suggest that it would be convenient to consider with it Amendments Nos. 15 and 16, because they all hang together. I hesitate, as a layman, to intrude on what is really a lawyer's Bill, but there are some points I wish to make. My remarks may have been more appropriately made in Committee on the Question, That the clause stand part of the Bill, but I was unfortunately unable to attend your Lordships' House on that day, so perhaps I should apologise for intervening at this stage.
Subsection (5)(a) reveals that the penalty of £20 which is laid down in the 1968 Act is to be increased to £50, an increase of two-and-a-half times. In paragraphs (b), (c) and (d), however, the penalties are to be only doubled. I do not know the reason for this discrepancy and it seems that they should all be increased in the same proportion, which is what my Amendments seek to do. I draw your Lordships' attention to the fact that in most cases the courts are not making anything like the fullest use of their existing powers under the 1968 Act. This point was mentioned on Second Reading by the noble and learned Lord, Lord Gardiner, who said that the average sentence for firearms offences was only about 4½ per cent. of the maximum permitted. Figures, and average figures in particular, are often misleading. Nevertheless, that figure quoted by the noble and learned Lord leads one to conclude that the courts are not taking full advantage of their powers to award exemplary punishment when it is called for. This therefore raises the question whether it is worth while raising the maximum penalties in this Bill when the existing maxima are hardly, if ever, used. It would be interesting to hear whether my noble friend has any details of the number of instances when maximum penalties have been imposed.
The statistics published by the Home Office in recent years on the use of firearms in crime do not give a sufficiently detailed breakdown of convictions and penalties as between different classes of weapons and different ranges of penalties. It would be of great interest and assistance to Parliament if, in future returns, fuller details were given. Successive Governments of both Parties have

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agreed that the right way to control firearms lies in more stringent enforcement and exemplary punishment rather than in more restrictive legislation, which only hampers the legitimate user still further while hardly affecting the ease with which the evildoer is able to lay his hands on firearms. Offences under the Firearms Act vary from the trivial to the grave, and within each category of offence there are of course gradations of seriousness according to the circumstances of each case. Nevertheless, the maximum penalty must be taken as a measure of the seriousness with which Parliament views such offences. Thus, what can be done to ensure that the courts carry out the intentions of Parliament? The noble and learned Lord the Lord Chancellor from time to time issues directives to magistrates when he deems it necessary. I hope that he will feel moved to exercise those powers in this direction.
Many people feel that the present wave of violent crime and of crime involving the use of firearms would not have occurred or would have been materially reduced if the courts had nipped this wave in the bud—I hope your Lordships will forgive this mixing of metaphors—and had used their powers to impose deterrent sentences at the first sign of an increase in violent crime. It is of little use putting teeth into the law if the courts leave those teeth on the bathroom shelf and only lick round the edges of the problem. I beg to move.
VISCOUNT COLVILLE OF CULROSS: My Lords, I fear that my powers of metaphor are nowhere near as copious and diverse as those of my noble friend, so I come straight away to the specific points he raised. The first is the reason why these penalties are in the Bill. There is—and I believe it is for the good of accuracy in sentencing—a sort of tariff; in modern legislation there are various steps in regard to penalties which we try to stick to, and that is what has been done in this case. Perhaps the most important of all is the maximum fine that can be imposed by a magistrates' court, which is £400. It would be very unusual to have a maximum of £500 as my noble friend suggests. We are simply trying to keep in step with maximum penalties for other offences which we consider to be of similar gravity. There is nothing
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more sinister in it and one does not multiply by 2·5 in every case. I hope that my noble friend may think it helps the courts to be familiar with their powers if there is not too great a variety and spread in the maximum sentences that they are allowed to impose.
As for the maxima not being used, I am afraid I cannot give my noble friend any statistics about the number of times that they have been imposed. However, he is probably right to say that on the whole penalties have been quite low. One of the ways in which Parliament can encourage the courts to appreciate public concern about the gravity of a type of offence is by a measure such as this increasing the maximum penalty and by noble Lords making a lot of speeches about it in the process. One of the things Parliament cannot do is to suggest to my noble and learned friend the Lord Chancellor that he should direct magistrates on how to use the maximum powers given to them. What it can do is to suggest to him that he should take the opportunity, as he goes around the country and makes speeches, with his wisdom and experience to remind magistrates meeting together in county associations of the gravity with which Parliament views these firearms offences. It sometimes happens that they draw certain conclusions from what he says and this does not seem an unsuccessful method of getting Parliamentary opinion over to them. I shall make certain that my noble and learned friend is aware of what my noble friend Lord Swansea said about this subject.
Finally, as to the statistics, my Lords, there are some breakdowns for 1968 and 1969 which were put in a Home Office report called Firearms in Crime and the 1970 figures were in Social Trends. These were breakdowns of indictable offences known to the police in which firearms were involved, and it was a special return. Otherwise I agree with my noble friend Lord Swansea that the full recommendations of the Committee which was presided over by Judge Perks have not so far been implemented, but we are trying our best—it is a fairly complicated matter—to get the matter into the order which my noble friend suggests. Meanwhile, if my noble friend would like these two reports I will certainly see that he has them. If that is the substance of his case I hope he will

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accept my explanation and will not think that he ought to press these Amendments.
LORD SWANSEA: My Lords, I am grateful to my noble friend Lord Colville of Culross for his reply. Of course, as a layman intruding in a debate like this I knew that should put my foot in it somewhere. I was not aware of the £400 maximum fine which a magistrates' court may impose. I am also grateful to my noble friend for his concluding remarks about the returns on violent crime and crime involving the use of firearms. I am extremely glad to hear that the form of these statistics is being revised, and I shall look forward with great interest to seeing the next returns when they appear. In the meantime, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
VISCOUNT COLVILLE OF CULROSS VISCOUNT COLVILLE OF CULROSS moved Amendment No. 17:
Page 25, line 23, leave out subsection (7).
The noble Viscount said: My Lords, this is a drafting Amendment. The substance of subsection (7) is being moved into Clause 63 by Amendment No. 28.
LORD STOW HILL LORD STOW HILL had given notice of an Amendment (No. 18):
After Clause 30 insert the following new clause:
" . In sections 16(6), 22(4), 27(1), 45(5) and 73(3) of the Housing Act 1957 (which deals with penalties for offences in respect of unfit premises, premises subject to a demolition order, closing order and clearance order) there shall be substituted for the words 'twenty pounds' the words 'two hundred pounds' and for the words 'five pounds 'the words 'fifty pounds'."
The noble and learned Lord said: My Lords, Amendment No. 20, in the name of the noble Viscount Lord Colville of Culross, covers precisely the same point as this Amendment, and I am sure that in due course the noble Viscount will move it. Upon that assumption I do not move Amendment No. 18.
LORD STOW HILL LORD STOW HILL moved Amendment No. 19:
After Clause 30 insert the following new clause:
" . In section 15 subsection 1 of the Civic Amenities Act 1967 (which provides penalties
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for offences in relation to tree preservation orders) for the words 'two hundred and fifty pounds' there shall be substituted the words 'five hundred pounds'."
The noble and learned Lord said: My Lords, I formally move this Amendment simply to ask the noble Viscount if he will be so kind as to indicate what is his further thinking on this subject. As he will remember, a similar Amendment was considered in Committee. He has been able to come nearly all the way with me in regard to Amendment No. 18, and I should be grateful if he would be so kind as to say why he is not able to do so in the case of Amendment No. 19.
VISCOUNT COLVILLE OF CULROSS: My Lords, as in the case of the Housing Act, I discussed this matter with my honourable and right honourable friends and my noble friend Lord Sandford in the Department of the Environment, and we got into touch with the Secretary of the Aboriculture Association, whose name was given to me by the noble Lord. They could not provide instances in which the existing provisions did not seem good enough. We have not heard anything from the local authority association which suggests that they are inadequate. The Department of the Environment and the Ministers have therefore concluded that there is not really a case to single out this particular part of the fairly large field of amenity and the reinforcement provisions for being dealt with in this Bill.
This is not a matter that is entirely dead; there is a continuing discussion going on between the Department of the Environment, local planning authorities and others interested in this matter. I think the best thing to do is to leave those negotiations to go over the whole amenity field, of which the preservation of trees is only a part, and not try to interfere in a somewhat haphazard way in this Bill. I took up this matter and that is the answer I received.
LORD STOW HILL: My Lords, I am most grateful to the noble Viscount for what he has told us and for the obvious care he has taken since Committee stage to go into this matter. I ask leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
VISCOUNT COLVILLE OF CULROSS VISCOUNT COLVILLE OF CULROSS: moved Amendment No. 20:
After Clause 31 insert the following new clause:
Increase of maximum punishment under section 27(1) of the Housing Act 1957
" . In section 27(1) of the Housing Act 1957 which prescribes the maximum punishment for the use of premises in breach of a closing order) for the words "twenty pounds" there shall be substituted the words "£100"; and for the words "five pounds" there shall in relation to any day after the coming into force of this section be substituted the words "£20'."
The noble Viscount said: My Lords, on second thoughts we were convinced that in this case there was something which needed to be done. In his speech the noble Lord, Lord Stow Hill, gave practical examples on this one section alone of the Housing Act. I think for the rest the local authorities have powers to pull the houses down, but in this case there seems to be a difficulty and the Government agree that this would be the time to make an improvement and to increase the penalties. That is what the Amendment does. I beg to move.
LORD STOW HILL: My Lords, again I am extremely grateful to the noble Viscount. I quite see the distinction which he draws between this particular section of the Housing Act with which the Amendment deals and the others where there is a power to pull down the houses concerned. I am very much indebted to him and I am delighted to ask the House to approve his Amendment.
Clause 35 [Reference to Court of Appeal of point of law following acquittal on indictment]:
5.48 p.m.
LORD STOW HILL LORD STOW HILL moved Amendment No. 21:
Leave out Clause 35 and insert the following new clause:
Case for the opinion of the Court
"35.—(1) If in the opinion of the Attorney-General it is desirable for the purpose of the due administration of the criminal law to obtain as a matter of urgency the opinion of the Court of Appeal upon a question of criminal law upon which in his opinion there is uncertainty, he may, if he considers that it is in all the circumstances proper so to do in the public interest and that by so doing it
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is not likely that he will cause injustice, distress or hardship to any living person who has appeared or is appearing or about to appear as a defendant before any court exercising criminal jurisdiction, formulate a case for the opinion of the Court of Appeal, in such a form as shall seem to him best calculated to enable the Court of Appeal to pronounce an opinion on such question.
(2) The Court of Appeal may, on motion being made by the Attorney-General in that behalf, take the said case into consideration, and after hearing the Attorney-General and such counsel as he may appoint to assist the Court and counsel instructed on behalf of any party who in the opinion of the Court ought to be heard give their opinion on the matters raised in the said case.
(3) Where the Court of Appeal have given their opinion on any matters referred to them under this section, the Court may of their own motion, or in pursuance of an application in that behalf, refer such matters to the House of Lords, if it appears to the Court that such matters ought to be considered by that House.
(4) If any such matters are referred to the House of Lords under subsection (3) of this section, the House shall consider such matters and after hearing the Attorney-General and such counsel as he may appoint to assist the House and counsel instructed on behalf of any party who in the opinion of the House ought to be heard, give their opinion on such matters accordingly.
(5) Subject to rules of court made under section 1(5) of the Criminal Appeal Act 1966 (power by rules to distribute business of the Court of Appeal between its civil and criminal divisions) the jurisdiction of the Court of Appeal under this section shall be exercised by the Criminal division of the Court, and references in this section to the Court of Appeal shall be construed accordingly as references to that division of the Court; and section 35(1) of the Criminal Appeal Act 1968 (composition of House for appeals) shall apply also in relation to any proceedings of the House under this section.
(6) The Attorney-General shall pay the costs of any proceedings under this section including the costs of any other party heard by the Court of Appeal or the House of Lords."
The noble and learned Lord said: My Lords, this Amendment is an endeavour to put on paper a proposal to meet the object which the Government sought to achieve by their Clause 35, in a way which would avoid the undesirable consequences which I and those associated with me submitted to the Committee would result if Clause 35 were left in its existing form and used by the Government. I do not wish to go into detail again about the objections which were urged. Shortly, they were that if in a given case the Attorney General wanted the opinion of the Court of Appeal or the House of Lords on a

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point of law which had been decided in favour of an accused person in that given case, the result might well be that that person would be subjected to very grave hardship. He would be subjected to hardship because everybody would know —so I submitted—that he was the person involved in the case. It would constantly be said of him, and sometimes in his presence, that he was extremely lucky to have avoided conviction and punishment and that he only did so because the learned judge who tried him got the law wrong and spelled out the law in his favour, whereas the Court of Appeal or the House of Lords as the case may be, declared that in effect the judge should have laid down the law in a sense which would have resulted in his conviction.
The House may have noticed if they have looked at the debate on Committee that I cited an actual case of which I had some knowledge, in which a man had been convicted of murdering his wife. He tried to plead that the offence did not amount to murder but amounted to manslaughter. The jury held that it amounted to murder and he was in due course executed. What I asked the House to assume was that had the jury come to a different conclusion and convicted him of manslaughter, acquitting him of murder, his life might have been very different in succeeding years if it had been thought of him by the neighbours, by his friends, by his workmates, and by everybody with whom he came into contact, that but for the fact that he was lucky enough to have the law declared by the judge who tried him in a sense too favourable to him he would have been convicted of murder and hanged. That was the case I instanced purely as an example.
Now, my Lords, in order to avoid the hardship which might result in a case of that sort what I and those associated with me have sought to do is to put upon the Marshalled List a draft clause which would provide—if I may direct the attention of the House to the critical words in the draft—in subsection (1) that the Attorney-General:
"…may, if he considers that it is in all the circumstances proper so to do in the public interest and that by so doing it is not likely that he will cause injustice, distress or hardship to any living person who has appeared or is appearing or about to appear as a defendant
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before any court exercising criminal jurisdiction, formulate a case for the opinion of the Court of Appeal, in such a form as shall seem to him best calculated to enable the Court of Appeal to pronounce an opinion on such question."
May I say at the outset that this is not in principle in any real sense a new departure in our law. There is already power in an Act of 1833 to invite the Privy Council to express an opinion on a matter of law. We are really in this draft clause following that precedent. What we seek to do is to provide power in the Attorney-General, subject to the safeguards which I have just read out, to draft an abstract case not related to any known case at all at any time that he thinks fit, if he wishes the opinion of the Court of Appeal on a point of uncertainty, and submit that case to the Court of Appeal, and in due course in case of need, to the House of Lords.
That approach, in my submission, has this advantage: the Attorney-General does not submit any actual case. It was suggested by the noble Viscount—and I think he had in that matter consulted the noble and learned Lord the Lord Chief Justice— that really the position of the type of individual whom I instanced in the case which I cited could be adequately safeguarded by rules of court. Rules of court might lay down that the case submitted should, as it were, disguise the implication of that individual in that case. I doubt very much whether that is possible. You take a case which has excited some press notoriety. It will be known in the man's neighbourhood; it will be known by everybody who knows of him, at his place of work or wherever he goes that he was implicated in that case. However you disguise the case, by suppressing his name or by taking other precautions to prevent attention being directed to him, it is virtually certain that over and over again a guess will be made that he was the person involved and he will be subjected to the type of distress I sought to describe earlier in my speech. I do not believe it is possible to safeguard with real certainty that in case after case if this power is used somebody, he and his family and his friends will not be subjected to great distress: it will be known that he was the person involved although his name is not used.
Therefore, our approach is to say that the Attorney-General can ask this

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question without relation to any case. Supposing there emerges in the course of experience an uncertainty with regard to some aspect of criminal law. If the draft which we have put upon the Marshalled List is accepted the Attorney-General has not got to wait for any particular case; we can just draft an abstract case as you can for the Privy Council. I should say that with some qualification because it is not quite like that in the case of the Privy Council but it is not very far from it. After all it is part of the jurisprudence of the International Court and other foreign courts and it is not really so revolutionary as all that. He can draft a purely imaginary case, one not related to any given situation; he can draft it in such a form as to enable the Court of Appeal to pronounce precisely on the point he wants to know. He can do it whenever in the public interest he thinks it necessary to do so. He has not to wait for years for the right case to emerge. Even if he has to wait for the right case to emerge and he does under the existing Clause 35 draft it upon the basis of that case, that case may not have all the ideal features present in order to obtain the opinion of the Court of Appeal. In the facts of that case there may be some aspect lacking, so that the Court of Appeal may not be able by reference to that case adequately and completely to answer the question as to which there is an uncertainty which the Attorney-General wants resolved. He can draft his case if he does it without relation to any given case: in the first place, whenever it is necessary, whenever there really is a case with regard to which it is urgent that the Court of Appeal or House of Lords should authoritatively lay down the law once and for all. He can do it whenever that is necessary. Secondly in order to obtain the completest, fullest opinion of the Court of Appeal or House of Lords he can so formulate his case as precisely to raise in the best and most direct form possible the actual case on which he wishes the opinion of the Court of Appeal or the House of Lords.
Therefore, the submission I make to the House is, that in the first place no individual is going to be subejcted to
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distress nor his wife, nor his children, nor his relations or her relations. There will be little risk of that. In the second place, it can be done whenever in the public interest the Attorney-General thinks there is a real uncertainty. In the third place, the Attorney-General can so formulate the case as to make it precisely apposite to elicit the complete expression of opinion on the point of law on which he considers there is an uncertainty. Has the language we have chosen achieved that objective? What we seek to do is to leave it to the Attorney-General to ask himself: "If I draft a case now in order to obtain the opinion that I require, is it likely that by so doing I will cause injustice, distress or hardship to any living person who has appeared or is appearing, or is about to appear as a defendant before any court exercising criminal jurisdiction?" It is left to the discretion of the Attorney-General.
I hope that the House will think that the Attorney-General is an officer of Government who can be relied upon to exercise a discretion of that sort appropriately and that he will effectively avoid the risk of causing distress. All human institutions are imperfect. He may make a mistake. It may be that there is somebody of whom he is unaware who in fact will be distressed. That should be a rare case if he and his Department make inquiries to see that there is nobody actually involved in criminal proceedings or about to be so involved or a person who has been so involved whose case is so close to that which he formulates as to be likely to be identified with it. As I say, mistakes may be made, but the Attorney-General has after all a great deal of information at his disposal; and if as I am quite certain all Attorney-Generals would do, he exercises his discretion conscientiously and with care, there should be little risk of the sort of distress which I have tried to describe being caused. That is the endeavour which is embodied in this draft. It is again a home-made draft; it has not been subjected to Parliamentary Counsel's criticism and analysis. I hope that the noble Viscount may think that at any rate it is on the right lines, and he may think it appropriate between now and the Third Reading of this Bill to take back his own Clause 35 and recast it along the general

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principles set out in the draft we have put forward. I beg to move.
6.0 p.m.
VISCOUNT COLVILLE OF CULROSS: My Lords, again I am grateful to the noble Lord, Lord Stow Hill. It is very good of him and his noble friends, if I may say so with all sincerity, to take so much trouble to try to work out these provisions and to do it to assist us. If I cannot go very far along the road with him on this particular occasion—and I am afraid I do not think I can—I do not want him to feel that he has been snubbed; we genuinely appreciate the efforts that he has made.
There are in fact rather serious difficulties about the drafting of this, difficulties which I strongly suspect would be inherent in almost any form of wording which attempted to do this sort of hypothetical exercise. I will mention one or two which I think would almost certainly go across the board whichever way you sought to do it. First of all, the noble Lord suggested that subsection (1) of the new clause would be a case where you could leave it to my right honourable friend the Attorney General to choose cases where nobody is in a similar situation. Any conscientious Attorney General would, I am sure, act in precisely the way the noble Lord, Lord Stow Hill, said he would. He would take a great deal of trouble to make sure that this act of conscience, this duty laid upon him, was not infringed. But I doubt very much whether there is information available to my right honourable friend, or anywhere, about all the facts of all the cases that are tried in all the magistrates' courts all over England and Wales and in Scotland too, so that he could really be sure that he was in a position not to tread on the toes of some recent or immediately forthcoming case.
Conversely, we get the situation where an actual case has produced the precise problem which the Government wish in this piece of the legislation to cure, where we have a divergence of views between two judges (I will not go over all the background), where there has obviously arisen a difference which needs to be resolved. The way in which this is put at the moment, in order to avoid inflicting hardship and distress on the individual, means that that would be
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the one case when the Attorney General could not act because he would be precluded by exactly the provision which is intended to protect the individual. I do not see how you can get round this; yet that is exactly the sort of case, the only sort of case, in which this power is sought to be used and in which it is sought to be granted by the Bill, to clear up these things as they actually arise.
We come on to what is, I think, perhaps an even more, I would not say sinister but undesirable case where this might occur, and where we are almost getting to the stage of putting the courts in the position of the Legislature. I do not think that any responsible Attorney General would often do this, and perhaps it is an absurd thing to suggest, but supposing that there is doubt about the ambit of a criminal offence and the prosecuting authorities are not very sure what Parliament means but they are determined that they are going to get the people who are committing this sort of offence. We have in the noble Lord's hypothetical methods here a remedy for this sort of doubt, because you could put up three of four hypothetical prosecutions to the Court of Appeal and see in which one of them, formulated in which way, they will in fact say that a conviction can be upheld. We would, therefore, I think, be in the position where you could, as it were, seek your way through the preliminary difficulties of the criminal law and make sure you charge the man in the way that you know would be upheld as a matter of law in the court. I must say that I am not sure I find this something that I would altogether welcome. If Parliament is going to legislate for criminal offences it should do it properly and clearly; and if it does not do it properly and clearly then it is not, I suspect, for the prosecuting authorities and the courts to say in advance how it ought to have been done so that people can then be prosecuted in the correct way. I may not have put that quite correctly, but I hope the noble Lord sees the potential danger in what I am saying. I do not think it is desirable.
There are other difficulties, but I need not go into them, because the noble Lord is not insisting on every word of this draft. T have taken to heart what noble Lords in various parts of the House said on Committee stage about the desirability of

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protecting the individual. What I am not quite sure about is why it is that noble Lords do not believe the noble and learned Lord the Lord Chief Justice. After all, he is a person whom one would expect to know how the Court of Appeal Criminal Division would work, and he is a noble and learned Lord who is not unfamiliar with the rules of court. He described to the Committee at the last stage of the Bill in quite some detail how he thought this could be done so that really in practice there would not be the danger of the identity of the person being divulged, at any rate by mistake, and indeed there would be a good deal of protection all round.
It is perfectly true that if the legal journals take the matter up—and I think in order to have any usefulness the legal journals and the law reports would have to report these cases—and somebody chose to do a good deal of research, it probably would be possible to correlate the decision of the Court of Appeal under the procedure we have in the Bill with some case that actually happened. But my noble and learned friend the Lord Chief Justice said that there was machinery—and he described it—which would prevent anybody being jeopardised to a very large extent. I am afraid that when it comes to things of this sort I must listen to what the noble and learned Lord says, and I would seriously suggest to the House that they would be wise to do so as well. I have done this because in a later Amendment, which applies not only to England and Wales but also to Northern Ireland, the second half of Amendment No. 28, I have provided that this provision shall not come into effect until rules of court are made for precisely the purpose and in exactly the sort of way that the noble and learned Lord the Lord Chief Justice suggested. That is the safeguard that I offer to the House on this matter. There cannot be any case brought under this clause until those rules of court have been made.
The machinery for making rules of court is not altogether unsophisticated. There are some very skilful people involved, and occasionally, I believe, it gives rise to a good deal of argument. All the practical side of it is worked out, and this would be the opportunty to go into the full details. I would hope that
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the House would think this was an adequate safeguard whereby we could make sure that people were not distressed, and that this was really better than embarking on a very difficult course such as that contained in the noble Lord's new clause. I hope that he will look at my Amendment No. 28, if he has not done so already, and consider this matter, and I think he will probably not press this particular Amendment to a Division. I would conclude by saying that I am grateful to him and his noble friends for applying their minds to it again.
6.10 p.m.
LORD GARDINER: My Lords, I must leave it to my noble and learned friend to decide what course to take. It would not seem to me that the proposed rules of court really answer the matter. All they are going to do is to make this provision for restricting the disclosure of the identity of the acquitted person: the court will not have to prevent his identity being disclosed; it may merely restrict it. What good will that do him? I do not know what course I should take if I was in my noble and learned friend's place. I ventured to describe this clause as it is now, and a little ameliorated by Amendment No. 28. as a monstrous clause. I still believe it to be a monstrous clause which ought not to be part of our law. If it becomes part of our law, I will do everything I can to get it repealed as soon as possible.
A man who has been acquitted of murder is extremely unlikely to have had bail, so he will have been in prison for some months and then has to go through a public trial as well. This, of course, is a grave traumatic experience. Then, if he wants a holiday and says, "Now it is all over I am going away" the solicitor will say, "You have to remember that, under a new section of an Act which has just been passed, the Attorney General is entitled at any time—he may do it next week, or you may have this hanging over your head for two years because, quite exceptionally in our legal procedure, there is no time limit on the Attorney General's producing your case to an appellate court—to say that you ought to have been convicted ". This is absolutely monstrous.
The Government realise how prejudicial this is to the individual concerned because the Bill goes out of its way to

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give him the right to argue in the Court of Appeal that he was rightly acquitted, and provides that he can have legal aid for it. If he is not going to be adversely prejudiced, why have they done that? It is perfectly obvious, is it not? If an actual case is going to be taken, the person who has been acquitted is going, in the eyes of any sensible person, to be adversely affected, because it will be said, "Well, the Appeal Court has said that if only the judge had known the law, you would have been convicted ".
I listened very carefully to everything which the noble and learned Lord the Lord Chief Justice said, but I could not understand at all how this kind of tragedy could be averted. The noble and learned Lord said at one point:
" I have confidence that if care is given to this problem it will be possible to make the argument in the Court of Appeal so flat and uninteresting to the general public that the apprehension of damage to the accused's reputation will be unfounded."—[OFFICAL REPORT, 2/8/72; col. 294.]
I must say that no counsel I know has had any training or experience in making his arguments exceptionally flat and uninteresting. If it has been a sensational murder case and in all the papers, how you make your argument so flat and uninteresting that no paper bothers to report it, I do not know. I do not see how it can be done.
As my noble and learned friend Lord Stow Hill has said, the whole thing is quite unnecessary. This does not come from the report of the Advisory Council, or the advisory committee, or anything of that sort. This, as we have been frankly told, is simply an idea of the Director of Public Prosecutions, who says that sometimes there is a point of law which hangs about in the lower courts, and that it would be convenient for him to get a higher court to decide it. I have the highest regard for the present Director of Public Prosecutions, and I quite understand his wanting to do this. But why is it necessary to take a particular case? If he wants to get a point of law decided—and I accept that is what it is that he wants—show me the point of law that cannot be expressed in words! If it is a point of law, why does he not write down on a piece of paper the point of law he wants deciding? Why on earth does it have to be attached to all the facts of a particular case?
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I really do not think that this matter has been thought out. I still think that it is a monstrous suggestion to make, which I hope will never become our law. However, I give no advice to my noble and learned friend Lord Stow Hill, because at the Committee stage of the Bill we were 153 and the Government only saved this clause by 9 votes. A great many, including I think one noble and learned Lord, voted against the continuation of this clause. Those voting against included a number of Cross-Benchers and of course some noble Lords opposite: this in a House as thin—and nobody is to blame after the gruelling fortnight we have had —as it is at the moment. I do not know that very much more can be done at this stage of the Bill.
I would beg the Government to think about this again, because it simply does not make sense. It really makes nonsense both ways: first, because it is cruelly unjust that somebody who has been acquitted should have, maybe immediately or maybe two years after, to go to a court for the court to say that he ought to have been convicted; and secondly, because it is quite unnecessary to achieve the object which the Director of Public Prosecutions, perfectly properly, wants. Where there is a point of doubt that is kept hanging about in lower courts and never goes to appeal, and one judge decides it one way and another judge the other, quite naturally he wants the appellate court to decide it so that all the judges will be doing the same thing. But I cannot conceive of a point of law which cannot be expressed in words. The formula which my noble and learned friend Lord Stow Hill uses is taken from the Privy Council Act, under which a point of law can be put to the Privy Council. I really cannot see any difficulty as to why this cannot be put without tying it to any individual case. Having said that, I do not know what course to advise my noble and learned friend to take.
6.16 p.m.
LORD FOOT: My Lords, we are in a very unfortunate position on this particular Amendment because, as the noble and learned Lord, Lord Gardiner, has reminded us, when this matter was debated in Committee before a full House the Government had a majority

1359
of only nine, and very grave apprehensions about this clause were expressed, if I remember rightly, from all parts. If to-night the noble Viscount is going to stand firm and call in his automatic majority in order to reject the Amendment, which seems to me to have great merits, I feel that it will not have been given a fair run. I would plead with the noble Viscount to consider the requests that he should undertake to look again at this Amendment before the next stage. While it is perfectly easy to pick holes in the Amendment as he has done, on the other hand, the objections to the clause as it stands seem to me so overwhelming that we really have to start again, and try to see whether we can find some other formula that will meet the difficulties about which the noble Viscount is talking. I beg of him that he does not, in this thin House, carry through a very radical reform of our legal procedures, and the whole administration of criminal law, in an atmosphere and in conditions of this kind towards the end of this very hard Session.
LORD STOW HILL: My Lords, I do not think I will take up the time of the House debating with the noble Viscount the arguments lie has advanced against the proposals that we make from this side of the House. This is not because there is no answer to those arguments—in fact I thought that all three of them were completely unfounded. What has emerged from this debate, as emerged in the debate at the Committee stage, is that there is a radical difference of view here. I should not be overstating the matter if I said that noble Lords on this side of the House cordially dislike Clause 35. If the noble Viscount felt able to say that he is sensitive to that; that he understands the profound feelings we have about the clause and the real extent of our dislike, and would agree to take the clause back and think about it, with the objective of trying to have something put on the Order Paper before the Third Reading stage of this Bill, then I would ask leave to withdraw this Amendment in order to give him a chance to do so. But unless he is able to say that, I am bound to say that I think that the clash of view here. and the clash of feeling in terms of broad general
1360
justice, is so acute that I ought to ask the opinion of the House.
VISCOUNT COLVILLE OF CULROSS:My Lords, it might be helpful if I said one word, by leave, because I do not want to fail to respond to what has been asked of me. I have not picked holes in the Amendment just to be beastly. I have done it to show that the whole hypothetical approach when one is dealing with day-to-day domestic criminal law is a very difficult matter. I am not at all sure that the analogy with the Privy Council is right. The sort of matters which the Privy Council deal with are not ones which involve the interpretation of Statutes about drugs or evidence, and they are not matters which affect the members of the public in this country in front of our criminal courts day-by-day. The Privy Council does not deal with matters of that sort, as I understand the 1833 Act. If I thought that the hypothetical approach offered any form of success I should certainly take this Amendment away, but I am afraid that I do not. The Committee has already once expressed a view on this subject. It may very well be that noble Lords opposite are sorry that the majority did not go their way, but a majority is a majority. The Committee has voted on the principle of Clause 35. I think the debate was on the Question, Whether Clause 35 shall stand part of the Bill?, if I remember correctly.
What I am saying is that I will look at the Amendment again. I will do so in the almost certain expectation of finding that a hypothetical approach will not do. Therefore, I must make it clear that I hold out little hope of being able to reverse completely the whole approach that we have made. But if noble Lords would like me to look at it again, I will do so. I have already done it once. I have already considered at great length the question of rules of the court, and I put down an Amendment because I hoped that it would go some way to assure noble Lords that this provision is not so outrageous. And I must remind the House that the clash is between the noble and learned Lord, Lord Gardiner, and those who support him, and the noble

1361
and learned Lord, the Lord Chief Justice, who says that it can be done without causing hardship to individuals. That is surely the issue before the House.
LORD STOW HILL: My Lords, in view of the very qualified reply which the noble Viscount has just given, I
6.31 p.m.
VISCOUNT COLVILLE OF CULROSS VISCOUNT COLVILLE OF CULROSS moved Amendment No. 22:
After Clause 35, insert the following new clause:

CRIMINAL JUSTICE BILL

  RESTRICTIONS ON IMPRISONMENT ETC. OF PERSONS NOT LEGALLY REPRESENTED
  ".—(1) A magistrates' court on summary conviction of the Crown Court on committal for sentence or on conviction on indictment shall not sentence to imprisonment, to Borstal training or detention in a detention centre a person who is not legally represented in that court and has not been previously sentenced to that punishment, unless either—

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

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

  (2) For purposes of this section a person is to be treated as legally represented in a court
  think I ought to ask the opinion of the House.
  6.24 p.m.
  On Question, Whether the said Amendment (No. 21) shall be agreed to?
  Their Lordships divided: Contents, 30: Not-Contents, 46.

  CONTENTS

  Arwyn, L.

  Jacques, L.

  Shinwell, L.

  BIyton, L.

  Llewelyn-Davies of Hastoe, B.

  Slater, L.

  Champion, L.

  Lloyd of Hampstead, L.

  Stow Hill, L.

  Crook, L.

  Maelor, L.

  Strabolgi, L.

  Donaldson of Kingsbridge, L.

  Norwich, V.

  Strange, L.

  Foot, L.

  Peddie, L.

  Taylor of Mansfield, L.

  Gardiner, L.

  Phillips, B. [Teller.]

  Wade, L.

  Greenwood of Rossendale, L.

  St. Davids, V.

  White, B.

  Henderson, L.

  St. Just, L.

  Wootton of Abinger, B.

  Hoy, L. [Teller.]

  Sempill, Ly.

  Wynne-Jones, L.

  NOT-CONTENTS

  Aberdare, L.

  de Clifford, L.

  Kilmarnock, L.

  Balerno, L.

  Denham, L. [Teller.]

  Limerick, E.

  Balfour, E.

  Drumalbyn, L.

  Lothian, M.

  Belhaven and Stenton, L.

  Eccles, V.

  Lyell, L.

  Belstead, L.

  Elles, B.

  Mansfield, E.

  Berkeley, B.

  Emmet of Amberley, B.

  Monck, V.

  Birdwood, L.

  Ferrers, E.

  Mowbray and Stourton, L. [Teller.]

  Brooke of Cumnor, L.

  Gainford, L.

  Brooke of Ystradfellte, B.

  Goschen, V.

  Rankeillour, L.

  Brougham and Vaux, L.

  Gowrie, E.

  Saint Oswald, L.

  Colville of Culross, V.

  Grimston of Westbury, L.

  Sandford, L.

  Colwyn, L.

  Hailsham of Saint Marylebone,

  Selsdon, L. (L. Chancellor.)

  Courtown, E.

  Somers, L.

  Craigavon, V.

  Hylton-Foster, B.

  Strathclyde, L.

  Craigmyle, L.

  Jessel, L.

  Swansea, L.

  Cullen of Ashbourne, L.

  Killearn, L.

  Young, B.

  Resolved in the negative, and Amendment disagreed to accordingly.

  if, but only if, he has the assistance of counsel or a solicitor to represent him in the proceedings in that court at some time after he is found guilty and before he is sentenced, and in subsection (1)(a) and (b) above "legal aid" means legal aid for the purposes of proceedings in that court, whether the whole proceedings or the proceedings on or in relation to sentence; but in the case of a person committed to the Crown Court for sentence or trial, it is immaterial whether he applied for legal aid to, or was informed of his right to apply by, that court or the court which committed him.
  (3) In this section "previously sentenced" means previously sentenced by a court in any part of the United Kingdom, but for the purposes of this section a person shall not be treated as having been previously sentenced to imprisonment by reason only of a sentence of imprisonment which has been suspended and which has not taken effect under section 40 of the Criminal Justice Act 1967 or section 19 of the Treatment of Offenders Act (Northern Ireland) 1968; and "detention centre" means in relation to Northern Ireland young offenders centre."
  The noble Viscount said: My Lords, here I come back to the very substantial debates that we had at the Committee

  1363
  stage about legal aid. Noble Lords opposite then attempted—and there is on the Order Paper a repetition, though a redrafted repetition, of this attempt—to incorporate in the legislation what, if I may be forgiven for doing so, I call the Widgery criteria for granting legal aid. We had tremendous debates about this; and we were also reminded by noble Lords opposite, and I think particularly by the noble and learned Lord, Lord Gardiner, that it was not altogether satisfactory to talk terms of the percentage of people who applied for legal aid and then got it, so much as the people who might have applied for legal aid but did not know that they could. We are therefore on a very similar point to the one in regard to bail. I thought about this subject at great length, and I discussed it again with my colleagues. I also discussed it with the draftsman, because it is not altogether a very easy subject. It seemed to us that, out of the Widgery criteria, there was at least one point, and a very important one, which was susceptible of being expressed in the Statute, and that was the one which relates to custodial sentencing. Not only was it possible to express it in the Statute, but it ties very closely in with the philosophy of for instance, Clause 13 of the Bill, and indeed of Clause 10(3), which is the O'Keefe principle, that one should see whether there is any method that one can devise to help people stay out of prison, or anything else that looks like prison.
  What we have done in this Amendment is to provide that nobody shall go to prison, to borstal or to a detention centre without at least having been offered or having been considered for legal aid, unless of course he refuses to apply. Some people will not be entitled to legal aid because they have money of their own; some people will not get it; and for other reasons some people will not apply for it. But at least we can ensure that in suitable cases the courts must offer legal aid to everybody before they send him to prison; and, if necessary, this may mean that they will have to remand the case so that they may be addressed by way of mitigation. As a matter of fact, those who have advised me on this matter think it will take a very much different form, and that the probability is that in most cases legal aid will be granted a good deal earlier, in which event it will also affect
  1364
  the question of bail, because it will be apt to cover the applications for bail at an earlier stage. Therefore it is a fairly major Amendment to the Bill, and it is one which I hope noble Lords opposite will welcome.
  I know (because he told me so last night) that the noble and learned Lord, Lord Gardiner, does not understand the last limb of subsection (2). I do not think it is really as difficult as all that. The point is that, in the case of a committal from the magistrates' court to the Crown Court, the offer of legal aid can have been made either in the magistrates' court or in the Crown Court in order to qualify as having been an offer that fulfils this particular provision in the Bill. What we want to make sure—and this is of some importance, too, for the purposes of getting the legal aid offered as early as possible—is that when the Crown Court decides on a case, either after trial or after the committal for sentence, and thinks it is going to send somebody to prison, it will, if there has been no previous offer of legal aid, have to offer it. But what we should also wish to ensure is that a person can, for these purposes, be offered legal aid by the magistrates' court on the committal proceedings, or indeed at the trial at the end of which he is committed to the Crown Court for sentence; and it is in order to cover that situation that we have put in these lines. I do not think they are really very difficase. Having said that, I do not know what course to advise my noble and learned Lord some problem.
  When one looks at the next Amendment to be moved by noble Lords opposite, one sees that it goes a great deal further. I do not particularly want to discuss these Amendments together, as I think the noble and learned Lord may want to move his Amendment separately. It spells out these criteria. I have picked one which I think is clearly identifiable. It is entirely in line with the philosophy of the Bill. I believe that it needs to be experimented with a little to see how, in practice, it works out. I think that to go further would be so expensive to the Legal Aid Fund that it would be better to take the thing in stages—and this is by far the most important stage, the question of imprisonment. I hope that, even if noble Lords opposite do not think that this is the complete answer, they will

  1365
  accept that it is quite a substantial concession on the part of the Government to the point of view that they were putting forward—and one, I may say, which I am glad they made, because in this respect I think they are right and that it is correct that we should put this in the Bill. I therefore commend it to the House, and I hope it will not altogether be damned with faint praise by noble Lords opposite because it does not go all the way they wanted. I beg to move.
  LORD GARDINER: My Lords, we on these Benches welcome this new clause. It has gone a considerable way to meet what we were desiring to obtain, and we gratefully acknowledge that. It is a real step. I shall defer what further I have to say until we come to the next Amendment. I do not want to be thought at all critical of the drafting: it is simply that when we considered the last four lines of subsection (2), being, after all, a group of Peers who are used to considering draft legislation, some of us lawyers and some of us magistrates, we simply could not agree among ourselves what it meant. All I will do is to suggest that if a group of lawyers and magistrates cannot understand something, it is possible that it could be drafted rather more clearly.
  I have listened most carefully to what the noble Viscount has said, and even now I am not quite sure. It says, "for legal aid". In the magistrates' courts, of course, there are two entirely different things: there is legal aid for the proceedings in the magistrates' court and legal aid for the proceedings before the Crown Court. The magistrates can grant either or both. They use an entirely different form, which they have to sign, for whether it is legal aid in the magistrates' court or legal aid in the Crown Court. If I understood rightly what the noble Viscount said, a person can still be sent to prison in the Crown Court, for the first time, unrepresented, if at any stage in the magistrates' court he had declined legal aid, whether legal aid in the magistrates' court or in the Crown Court. This, in my respectful submission, would be wrong. It is quite usual for a man, thinking his case is going to be dealt with summarily—and so do the Bench, for that matter to decline legal aid. Then, when they come to the end, they either say, "Although both prosecution and the defence have agreed, we just do not
  1366
  think that this is a case which ought to be dealt with summarily; we are going to send it for trial"; or they may convict and send it for sentence to a higher court. Then, in such experience as I have, knowing what has happened about legal aid before, they invariably say, "We consider this case so serious that we do not think that six months in prison would be enough, so we are going to send you to a Crown Court for sentence. Do you want legal aid in the Crown Court?"—and the man who said, "No" before now says, "Yes".
  It should not be right, but it is impossible to tell so from the wording, that because the man. may think, "If you are dealing with this summarily I will do it myself", it should be possible to send him to prison for the first time, unrepresented, simply because that has happened. The existing wording is, if he has applied "for legal aid"—it does not say whether it means legal aid for the purposes of the magistrates' court or whether he has applied to the magistrates for legal aid in the Crown Court. As the wording stands at the moment, I think it would apply in the case which I have ventured to put and I gather from the noble Viscount that he did not himself think that that would be right. I do not ask him to come to any conclusion about it to-day. As I have said, we welcome this Amendment and the proposals in it, but perhaps he will be good enough to think about the matter before the Third Reading.
  On Question, Amendment agreed to.
  6.42 p.m.
  LORD GARDINER LORD GARDINER moved Amendment No. 23:
  After Clause 35 insert the following new clause:
  Amendments to section 75 of Criminal Justice Act, 1967
  ". In section 75 of the Criminal Justice Act 1967 (Circumstances in which legal aid may be given) there shall at the end of subsection (5) be added five new subsections as follows:
  "(6) In the circumstances described in the next following subsections it shall be the duty of a court having power to make a legal aid order to ascertain, in the case of any person brought before it who is not represented by counsel or a solicitor, whether such person desires to be so represented and, if such person states that he so desires, to consider whether legal aid ought to be granted to him, and if such court decides not to make

  1367
  a legal aid order in his favour, to state its reasons for such decision.
  (7) In the Crown Court the circumstances referred to in subsection (6) above are:

  (a) all committals, whether for trial or for sentence;

  (b) appeals from a magistrates' court in the cases referred to in subsection (8)(b) below.

  (8) In a magistrates' court the circumstances referred to in subsection (6) above are:

  (a) all preliminary hearings in respect of offences triable only on indictment;

  (b) all other cases where it appears to the court—

  (i) that the charge is a grave one in the sense that the accused is in real jeopardy of losing his liberty or livelihood or suffering serious damage to his reputation; or

  (ii) that the charge raises a substantial question of law; or

  (iii) that the accused is unable to follow the proceedings and state his own case because of his inadequate knowledge of English, mental illness or other mental or physical disability; or

  (iv) that the nature of the defence involves the tracing and interviewing of witnesses or expert cross-examination of a witness for the prosecution; or

  (v) that legal representation is desirable in the interest of someone other than the accused as, for example, in the case of sexual offences against young children when it is undesirable that the accused should cross-examine the witness in person.

  (9) In the Crown Court, in a Magistrates' Court and in the Queens Bench Division of the High Court the circumstances referred to in subsection (6) above are whenever a person who has attained the age of seventeen and who is a defendant on a criminal charge in any such Court is remanded or committed by the Court or the proceedings of the Court are adjourned and the Court on any such occasion is not prepared to grant bail to that person.
  (10) Where a court revokes a legal aid order it shall do so only after having taken into account the matters contained in subsections (6), (7), (8) and (9) above, so far as applicable to the circumstances of the case, and it shall state the reasons for such revocation." "
  The noble and learned Lord said: Subject to the views of my noble friends, in view of the last Amendment and the degree to which the Government have met us, we ought not to press for this tonight. I would only say this. I think that most of us have thoughout felt two things: First, that we really must do the
  1368
  best we can to reduce the appalling overcrowding in the prisons; secondly, that the most hopeful field is to reduce the numbers of those sent to prison although they are innocent or have not been convicted. We know that from 2,000 to 3,000 people a year who are completely innocent are sent to prison because they are refused bail. We know that between 20,000 and 30,000 a year are sent to prison unconvicted and before trial, although it is found at their trial that although they have done something wrong theirs not a case which merits their being sent sent to prison. Here, in a sense, are people sent to prison quite unnecessarily.
  I would not put the matter any differently from the way in which the noble and learned Lord the Lord Chancellor put it in a public speech to the Gloucestershire branch of the Magistrates' Association as reported in The Magistrate of February, 1972. He said:
  "Bail is important, and it is difficult. It is important because it affects the liberty of the subject. In point of fact it is the only example in peacetime, where a man can be kept in confinement for an appreciable period of time without a proper sentence following on conviction after a proper trial. It is therefore the solitary exception to Magna Carta."
  He went on:
  "The bench has to balance the rights of the public against the rights of the individual. It may (or may not be) that the rights of the public are more important. But the wrong to the individual, namely the deprivation of his right to liberty, is more certain, and, where he is innocent, can be more serious"
  He continued:
  "…prior to conviction, prima facie defendant is entitled to bail, especially before trial, unless there is some reason to believe that he may run away, get at the witnesses, or commit further offences."
  Then he deprecated something which he said is quite contrary to the philosophy of Magna Carta and English law, the practice if it exists of some benches or justices sending young people to prison to give them a taste of the medicine. He went on:
  "To deprive a man of liberty pending trial, or even pending sentence is to deprive a certain number of persons of liberty who are going to be acquitted, or upon whom no custodial sentence is going to be passed in the event, and to do so is to deprive them of something to which they are as it were in the sight of God, who foresceth all things, absolutely entitled."

  1369
  He himself felt that this was the field in which we ought to be trying to reduce the prison population. He said:
  "…the number of male unscntenced prisoners held in custody has actually risen from 2,891 in 1968 to 4,400 in 1970 at any one time. This, of course, corresponds to a considerable prison population in the course of a year."
  it corresponds to the 20,000 to 30,000 that I have referred to in the course of a year—
  "Of those remanded in custody only about half are eventually given a custodial sentence, although it is fair to point out that another 14 per cent. are given a suspended sentence. Between 4 per cent. and 5 per cent. are eventually acquitted."
  Later he said:
  "Where I think progress can be made is in reducing the much larger number of cases of prisoners remanded in custody pending trial, sentence or appeal (getting on for 20,000 in 1969) who in the event are not in fact given a custodial sentence although convicted."
  Finally he said:
  "…the figures are sufficiently large to make me believe that there is among them a proportion of instances where bail might have been granted. To do so would not have interfered with justice. and would certainly have made a modest, but worthwhile, contribution to the overcrowding in our prisons."
  For this reason we have felt that the most important single thing is to get legal aid for bail. Two-thirds of those who are sent to prison without bail are unrepresented. Where they are represented there is a double chance of getting bail than where they are not. Twice as many (where men are represented) get bail than in cases where they do not.
  The ordinary person, particularly if he is a first offender, when he is arrested is brought to court the next morning and may never have been in a court of law in his life. Some of them do not even know what bail is. A number of them overhear exchanges between the bench and somebody from the police and do not realise that what is being discussed is whether they are to be sent straight off to prison. If they know about hail they do not know what are the considerations which lead the court to grant hail, so they do not know what to say for themselves.
  While bail and legal aid, as it were, intertwine—while one wants people to get bail and one wants them to get legal aid —the one thing more than anything else that we ought to try to do is to get legal
  1370
  aid for bail. The Government have been very generous in the last Amendment which they moved. I do not propose to pursue this to-night. But I would leave the matter with this thought. Look at the funny position we are now in! The Amendment which the Government have themselves just moved (and which we warmly applaud) says that it is wrong that criminals—and they are criminals, serious criminals, because they have been convicted and found guilty and are liable to be sent to prison—should be sent to prison for the first time, unrepresented. Yet, in answer to this clause they are saying that it is quite all right for innocent people and for people who, although they may have done something minor, are not going to be sent to prison, to be sent to prison before they have been convicted, and for the first time.
  Surely this is most extraordinary. If we want to cut down on the numbers of people sent to prison because, although they ought to be represented, they have not been represented, the first class of people to benefit from this ought, I should have thought, to be the 2,000 to 3,000 innocent people a year who are sent straight off to prison before conviction or trial and the 20,000 who, although they are going to be convicted, are not to be found to have done something which necessitates a prison sentence. For these reasons, having given way to this extent—as I suppose sometimes happens where one gives way on one thing—it seems illogical that the Government should say that it cannot be right to let this state of affairs continue that criminals should be sent to prison for the first time without anyone being able to say something for them—while they go on to say that it is all right for innocent people and people who are not convicted of anything to be sent to prison straight away.
  This is the great defect I think. Overcrowding in prisons to-day is caused by the increasing number—increasing all the time—of people who are sent to prison straight away because they are not given bail; and so many of them are not given bail either because they do not ask for it or do not know enough to ask, or because they are unrepresented. Having said that, my Lords, I think I should give the noble Viscount an opportunity to say anything that he wants to say and

  1371
  then ask leave to withdraw the Amendment.
  VISCOUNT COLVILLE OF CULROSS: My Lords, I am again grateful to the noble and learned Lord, Lord Gardiner, and particularly for the fact that he has reminded the House, which I did not, that the previous Amendment applied to first time in prison. I am afraid that in trying to shorten my speech I failed to make that point; but it is the fact. I entirely understand what the noble and learned Lord is saying, but when we go back to the question of bail it does not necessarily follow that the full apparatus of legal aid is necessary to answer all the way through. I can conceive that the Working Party on bail might discover other means than the Legal Aid Scheme in its present form whereby the type of person to whom the noble and learned Lord was referring could be helped in his application for bail, be it by duty solicitors in Bristol or some other means which the Working Party may suggest. So I do not think that I am being inconsistent. I can legitimately, in connection with this Bill, recommend to the House that where we have someone who has been convicted, or who is liable to be convicted and, if so, liable to be sent to prison for the first time, he should be legally represented. But this is something which is not at the moment under active consideration by the Working Party.
  On the other hand, no more is the rest of the legal aid situation, and the criteria which the noble and learned Lord himself has put into this Amendment, the rest of the Widgery criteria, will also be commended to courts as part of the advice given to them about how this Bill works. We shall have to say something now about the new clause and how it reinforces the Widgery criteria, and this again will be brought to the attention of the courts. This is a further opportunity for them to consider, under these criteria, matters which are not specifically spelt out in the Bill. But when we are on the question of hail I maintain the same position—and I think that the noble and learned Lord, Lord Stow Hill, was on the same point—that we ought not to try to legislate on it in advance. It may appear superficially inconsistent, hut I think I should be inconsistent if I now gave
  1372
  way on bail matters when I did not give way on the full-blown clause on bail. That is the explanation for noble Lords opposite who want it, and I think it makes some sense.
  LORD GARDINER: My Lords, I beg leave to withdraw the Amendment.
  Amendment, by leave, withdrawn.
  6.54 p.m.
  VISCOUNT COLVILLE OF CULROSS VISCOUNT COLVILLE OF CULROSS moved Amendment No. 24
  After Clause 39, insert the following new clause:
  Remand in custody by magistrates' courts
  ".—(1) Subject to the provisions of this section, where a person is charged before a magistrates' court with an indictable offence then except in a case where it is also a summary offence and he has pleaded to the charge, the period for which he may be remanded by the court in custody shall be any period up to three weeks (instead of a maximum period of eight clear days as provided, with certain exceptions, by section 105(4) of the Magistrates' Courts Act 1952); and in this section "summary offence" and "indictable offence" have the meanings given to those expressions by section 125 of that Act.
  (2) Nothing in this section prejudices any power of remand exercisable under the proviso to section 105(4) of the said Act of 1952; but where the proviso does not permit a remand for a period longer than eight clear days, the power under subsection (1) of this section to remand for any such period shall be exercisable only if the person charged is represented by counsel or a solicitor and he consents to be so remanded or if the court considers, having regard to his physical or mental condition, that his consent ought to be dispensed with."
  The noble Viscount said: My Lords, here I walk into a great deal of trouble, because on the Committee stage the noble Lord, Lord Foot, moved an Amendment which, in effect, would have done what this new clause does. It was discussed by a number of noble Lords and eventually the unanimous feeling of the Committee, as I interpreted it, was that it was a very good thing, subject to putting in some safeguards which we agreed about. I therefore said to the noble Lord, Lord Foot, and to the Committee, that if the Amendment was withdrawn I would get it re-drafted in such a way as to incorporate all the necessary safeguards and put it down for this stage of the Bill.
  I think I said at the time that it was a matter on which the arguments both

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  ways were fairly evenly balanced. There are advantages for many people of the sort that the noble Lord, Lord Foot, then described; there could be disadvantages to other people of the sort that I think the noble and learned Lord, Lord Gardiner, is about to describe—because since this happened I have had a very long letter from the noble and learned Lord in which he expresses a rooted objection to this matter.
  It seems to me, therefore, that the best thing for me to do is to produce the clause which does what the House in Committee appeared to think was right, and I will say very little more by way of justifying it save for this. I have invited all noble Lords on this side of the House (I am sorry that at the moment they have not all come back to the Chamber) to make up their minds on this; and that applies to noble Lords on the Front Bench as well as on the Back Benches. I have absolutely no position to take up on this, I am perfectly happy to abide by the decision of the House one way or the other. It is an important point and the arguments are evenly balanced. What I should now like is to hear them, and I should like other noble Lords to hear them. I know them fairly well, but the rest of the House does not, and I think perhaps the protagonists on both sides will put them very accurately. With that somewhat unusual introduction, my Lords, I beg to move the Amendment.
  LORD FOOT: I was anticipating—
  LORD GARDINER: My Lords, if the noble Lord, Lord Foot, wants to speak after me I think that he should be entitled to do so, because on Report he can speak only once.
  VISCOUNT COLVILLE OF CULROSS: My Lords, I think, with respect, that probably it would be right if the noble and learned Lord, Lord Gardiner, were to speak first because we have not previously heard the case against this Amendment.
  LORD GARDINER: My Lords, I have given the noble Lord a copy of the letter which I wrote to the noble Viscount, because that seemed right. When I heard the noble Lord, Lord Foot. he was saying in substance, that all this about remand having to be for no more than
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  eight clear days—that is really nine days —is all a lot of nonsense because there are cases which are not going to be heard for some time. He said that it is almost impossible to get magistrates who have once refused bail not to refuse bail again, and therefore he wants to change this eight days into 21 days. He said, "Look what an awful lot it will save! This nonsense takes up the time of the police and probation officers and magistrates; and, for that matter, solicitors too. Where these people are obviously not going to get bail, what is the good of their coming back every eight days? It is a waste of everybody's time."
  I thought that that sounded reasonable, and then the noble Viscount said he had waited to hear what we were going to say from these Benches, and we had not said anything. I think that the noble Lord, Lord Donaldson of Kingsbridge, said something prima facie in support of the noble Lord, Lord Foot; but nobody else said anything. The noble Viscount then said he would think about it. Having been into this matter, in particular with the Howard League, I think the first thing we have to get right are the facts. They are a little detailed and so I hope that I shall be forgiven if I read them.
  Lord Foot's argument revolves entirely around persons committed to the higher courts for trial; indeed he decided on the three-week period because he believes (column 355) that this is the minimum period which elapses between the first remand and committal. So the first point is that the vast majority of untried persons who are remanded in custody by magistrates are ultimately tried summarily, and not in the higher courts. A survey in Holloway prison in 1967 showed that of the untried prisoners, 72 per cent. were tried summarily (Dell, New Law Journal, 11/5/72). Figures since published by the Home Office for 1969 and 1970 show the same: over 70 per cent. of persons held in custody untried are later tried in the lower courts (Hansard, Vol. 839/40, July 3, Written Answers cols. 14–22). The Holloway survey showed that the majority of untried prisoners tried summarily did not spend more than eight "clear days" in custody, and a Home Office survey of 1958 had shown the same (Time Spent awaiting

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  Trial, H.M.S.O. 1960, Table 24). But the effect of Lord Foot's Amendment will be to expose these prisoners to the risk of being remanded in custody for three weeks at a time. The prison population could be increased in this way. hardly a desirable result—particularly in view of the way the untried population has been increasing in the last few years.
  Although the 20-day period proposed is the maximum, experience shows that it is the maximum which tends most frequently to be used. Whether the remand is before or after conviction, it is always most convenient to those other than the prisoner—police, solicitors, probation officers, prison doctors—for the remand to be for the longest permissible period, and it is these authorities, not the prisoner, that influence court procedure. The maximum period of custodial remand for medical and social reports is three weeks (S. 14 and 26 of the M.C.A. 1952) and this is the period commonly used by the courts for such remands. Yet the business of medical examination and reporting does not take anything like this time. The Home Office is now seeking by circular to persuade courts to remand medical cases for two weeks instead of the permissible three (Hansard, Vol. 838, June 7, col. 658). What irony; on the one hand the Home Office is trying to persuade courts not to use the three-week maximum period that is permissible for medical cases (a relatively small proportion of all remands), and on the other hand proposing to extend this three-week period so that it will cover the most numerous category of remand prisoners, the untried. Lord Foot says that he would not be proposing the Amendment if he thought that the eight-day remand period in practice provided a real safeguard. But he says it is an illusory safeguard because:
  "It is almost impossible, in my experience, once a court of magistrates has refused a man bail and remanded him for eight days, to get the same court to reverse that decision…"
  Whatever his experience, Lord Foot is wrong on this point. It is not at all uncommon for magistrates who have remanded a defendant in custody at one hearing to allow bail subsequently. In the Holloway sample of 1967, of 58 remand prisoners who were later tried in the higher courts, 25 were granted
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  bail either before or on committal; that is, almost 45 per cent. of prisoners who were initially remanded in custody were subsequently allowed bail. In the 1958 Home Office survey, it was found that of 414 persons who were remanded in custody before being committed for trial 72 (17 per cent.) were released on bail for further remands, and were then committed on bail, and another 45 (11 per cent.) were committed on bail: so that in 27 per cent. of the cases where a court of magistrates initially decided that custody was necessary, they subsequently changed their minds in the defendant's favour (Table 17).
  Where cases are tried summarily and more than one period of remand is required, it is also common for magistrates to revise their view about the suitability of bail. The only figures on this seem to be those of the 1958 Home Office survey. Table 25 shows a sample of 339 persons who were tried summarily, and spent some or all of their remand period in custody: 282 were in custody all of the time (for an average period of 10 days) and 57 spent some of the time in custody and the rest on bail. So at least 17 per cent. of those remanded in custody untried were subsequently bailed for the hearing. This, however, is not the true proportion, for the great majority of the 228 who were in custody all the time would have been remanded once only, and tried on their reappearance: they would therefore not have been eligible for release on bail on a subsequent remand. Making the unfavourable supposition that half of the 282 were remanded twice (it seems certain that the true figure must be considerably smaller) it appears that of 198 prisoners who were remanded in custody once and then were remanded again, 57, 29 per cent., were subsequently granted bail by the magistrates. This figure seems to represent a minimum of the cases tried summarily in which the court reversed its previous decision. Thus both from the figures of cases that later went for trial (upon which Lord Foot relied) and those that were tried summarily (which Lord Foot ignores) there is real evidence that magistrates' courts do in a substantial number of cases reverse their original decision to remand in custody. The 8 day reappearance gives a real, not an illusory, safeguard to the defendant.

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  Lord Foot proposes two safeguards with his Amendment: that no one could be remanded for longer than 8 days if he was not represented, and also that he could not be so remanded if he objected. These safeguards are inadequate. Admittedly, at the present time, the former would mean that most summary cases would be unaffected by the new proposals, for the majority of defendants are unrepresented in the lower courts. But one hopes that this situation will change.
  Where the defendant is represented, it will often suit the solicitor to have 3 weeks remand at a time, particularly where the court appearance involves him in a journey. Like the police, probation officers and everyone else, solicitors prefer to have more, rather than less time, in which to accomplish a given task. If the police propose a three week remand, it will often be convenient for the solicitor to agree. But the overriding consideration should be the liberty of the prisoner, and not the convenience of the solicitor. A major objection to the proposed safeguard is that it puts these two elements in the case into conflict, and thereby puts the prisoner, in particular, into an impossible position. If the solicitor tells the prisoner that the case requires 2 or 3 weeks' preparation, the prisoner can hardly oppose it: he does not want a fight with his solicitor, and in any case he will usually believe that the solicitor is experienced and knows best. (People are persuaded to plead guilty, against their own convictions, by solicitors in this way.) So if the court asks if the defendant has any objection to a 3 week remand, his consent is likely to have a hollow ring. How many prisoners, given a free choice, would choose to be imprisoned for 20 days, rather than have the chance of attaining liberty after 8 days—if they were told that their chances of release were as high as the previous paragraph shows them to be?
  The 8 day maximum remand period provides a foundation for our system of justice and ensures that the imprisonment of untried persons is subject to frequent and public review. As paragraph 5 showed, this review is in a substantial number of cases favourable to the defendant. It may be in the interests of police, solicitors, courts and prisons to extend the period for which an untried person can
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  be imprisoned, but it will rarely be in the interests of that person himself. There may be some such cases—especially where the remand prisons are a long way from court, and where there appears to be little chance of magistrates granting bail—but they are a tiny majority of all the thousands of cases subject to the 8 day rule and benefiting from it. The Amendment has been put forward with a view to saving the authorities time and money. Alternative ways of doing this could usefully be explored—for instance the use of a special escort service. But there is no justification for abolishing the 8 day rule, risking an increase in the prison population, and eroding a valuable civil liberty.
  No doubt there are cases—murder charges, for example—where obviously a man is not going to be granted bail. He will have to be tried at the Crown Court, and it is a great waste of time jf he has to appear every week. But these are the minority of cases. This is really a great safeguard to the ordinary citizen, and I have ventured to trouble the House in order to get it on the Record, with a statement of the detailed facts. We ought, in my submission, to be very careful where a cause is proposed which will be so manifestly convenient to everybody except the person who is being charged with a criminal offence. It would clearly be an advantage to solicitors, who always like to have more time—"Three weeks: good! Then we need not do anything about it for the time being."It will be convenient to the police, to the prisoner's escort and to everybody. But this will seriously affect the rights of the individual. I would urge your Lordships not to accept the Amendment.
  7.9 p.m.
  LORD FOOT: My Lords, it was rightly said by the noble and learned Lord, Lord Gardiner, at the beginning of his speech that at the Committee stage my Amendment—which is reproduced in the noble Viscount's Amendment now—received very little discussion, probably because noble Lords were not prepared for it. The only person who, in my recollection, expressed any misgivings about it was the noble Baroness, Lady Birk. As the noble Viscount, Lord Colville of Culross has said it appeared to him, and certainly it appeared to me, that on that occasion the watchdogs of liberty in

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  this House were not barking. But since then the noble and learned Lord, Lord Gardiner, has given this matter his attention and his scrutiny. I welcome the fact that we are discussing this matter again to-night. I think it is one of the great benefits of our procedures in this House, and indeed in the other place, that if something comes up for the first time in Committee and we do not have the opportunity of considering it properly we have the advantage of being able to have second thoughts. I should like to express my gratitude to the noble and learned Lord, Lord Gardiner, for having given this matter his attention, because anything that he says about it must carry great weight with the House.
  I do not complain in any way of the noble Viscount, Lord Colville, having taken a neutral attitude on behalf of the Government and making this a free vote. Indeed, it is a refreshing experience, especially after what we have been going through with the European Communities Bill, to have a free vote in this House. I must say that the outcome of the vote is a bit "dicey" because if one looks around at the number of persons who are listening to the argument what the ultimate outcome will be seems rather hazardous, because of course I am obliged to carry this Amendment to a Division.
  Having said that, I should like to try to identify and isolate the areas of agreement. The first thing that can be agreed is this : whatever else is said about this Amendment, it will result in a very considerable administrative saving. The noble Viscount, Lord Colville, in the debate in Committee said:
  "I should like to respond to the suggestion of the noble Lord, Lord Foot, in this way. I am immensely attracted to the administrative saving. Nothing could be more agreeable to Government than to do what the noble Lord said and save the time of the police, the courts and the prison service, and a great deal of money, too, in this way; provided that we have the right safeguards."—[OFFICIAL REPORT, 2/8/72; col. 3591)
  So I do not think there can be any dispute —and indeed the noble and learned Lord has confirmed this—that it will be to the benefit of magistrates, solicitors, the police and so on.
  The second matter so far on which I find myself in entire agreement with the
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  noble and learned Lord is in his approach to the problem. I share his view and I hope I made this clear before, but I certainly want to make it clear now—that whatever administrative saving might be achieved by this Amendment, if in fact it resulted in removing a valuable protection and safeguard for the untried person who is in custody, then that administrative saving would be much too high a price to pay. Therefore I think that the approach of the noble and learned Lord to this problem is the same as my own.
  There is a third point upon which I would hope the noble and learned Lord would agree with me, too. That is this: whatever else may be said, there can be no doubt that every day in the magistrates' courts of this land people are brought from prison for an appearance before the magistrates, and everybody knows that the appearance is going to be an absolute formality, either because the person is not going to ask for bail or because he has not the slightest hope of getting bail and therefore is not going to apply for it. I hope the noble and learned Lord will agree with me that in those cases where the prospects of bail are non-existent and where there is no application for it, it is an absolute waste of time and the only result is to submit the prisoner to what can only be described as an humiliating exercise. Those are the cases with which this Amendment was intended to deal.
  I suggest there is a danger that when we are talking about this sort of case we may be deluding ourselves by using fine words and fine phrases. Somewhere in the memorandum or in the brief—I am not quite sure what the noble and learned Lord was reading from—or perhaps in the letter he had received from the noble Viscount, Lord Colville, it was said that the value of the eight-day maximum remand in custody is that it ensures that the cases of persons who are on remand are kept under frequent and public review. In the cases to which I have referred, where the whole thing is an absolute formality, all that happens is that the prisoner is brought from the prison, goes into the dock, and the police get up and ask for a further period of remand in custody for eight days. The prisoner is asked whether he has any reason to oppose that, and he says

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  "No". Then the remand is made: the prisoner goes down below and is sent back to the prison from which he came. In all those cases there is no review, and talking about "a public review of the case" is a misuse of words. All that has happened is that a prisoner is put on view for a matter of thirty seconds or one minute; and the whole ritual that we go through in these cases is of no benefit to anybody, and certainly not to the prisoner himself.
  It was those cases we were concerned with when we put down this Amendment; and it was to those cases that we were directing ourselves. What we wanted to do was to devise some process by which there could be an end of this ritual production of prisoners to no purpose. We never had any intention —and I shall try to argue in a minute that the effect of our Amendment is not to do this—of prolonging for even one day the time that a prisoner spends in prison, in custody, on remand. I should like to demonstrate to the satisfaction of the House and, I hope, to the satisfaction of the noble and learned Lord that when he thinks we are trying to do that in this Amendment he is mistaken. We realised at the outset of course—those who assisted me in the framing of this —that it was essential, if one is going to make it possible in certain circumstance,, for the remand period to be extended to twenty-one days, to have every proper safeguard against abuse. Therefore the safeguards we, proposed—and these were the ones I mentioned in Committee and which the noble and learned Viscount has incorporated in his amended Amendment—were, first, that there must be the consent of the accused. If he refuses and says "No, I do not want to be sent away for twenty-one days: I want eight days only", that should be an absolute veto and the magistrate should have no power whatever to send him away for longer than eight days. Then we asked ourselves whether that was sufficient. It may be that the person, particularly if he is unrepresented, does not know what his rights are and may not understand what it means when he consents to be remanded. So we said, "No, it is not sufficient and a mistake could be made. He might not understand what his rights and position are." So we said that there must be a further safeguard,
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  which was that he should be represented either by a solicitor or by a barrister. So these were the two safeguards that we wanted.
  The substance of the argument in this House now seems to be: does the Amendment as it now stands (with the changes incorporated in it) achieve the purpose that we had in mind—which is first of all to eliminate these unnecessary appearances of the prisoner before a magistrates' court? At the same time, does it do that without increasing the periods for which people are held in detention before trial? The noble and learned Lord, Lord Gardiner, thinks that it does all these things. I do not think it does; and I suggest that the essential question is this: what benefit do the eight days confer upon the individual concerned? What is the advantage to him of being able to come back after eight days? What can he do when he comes before the magistrates in that way? All he can do is to apply or re-apply for bail. That is the only matter which at that stage the magistrates are reviewing; they are reviewing whether he should continue to be kept in custody or not.
  May I say this by way of parenthesis —and the noble and learned Lord pointed out—quite rightly—that I overstated this matter when I was speaking in Committee. He was quite right in saying that I said then that from my experience my impression was that once a bench of magistrates had refused somebody bail it was almost impossible to get bail on some subsequent occasion from that same set of magistrates. I apologise to the House for that: it was, at worst, a mistake, and at best, an overstatement. I fully accept the figures the noble and learned Lord quoted as to the number of occasions when bail is granted by a bench of magistrates after a previous refusal. I readily accept those figures. In my submission my error on that occasion does not affect the argument, and it does not affect the question which we have to answer.
  May I put my argument to the House in this way: would your Lordships consider what the situation would be if this Amendment became law and a person went into court and an application was made for his remand in custody? If the magistrates are minded for any reason to

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  remand him for more than eight days and up to 21 days, they can do it only with his consent and also if he is represented. The effect of giving his consent will be that he will not have the opportunity of re-applying for bail for three weeks instead of eight days. What is going to be the determining factor in that man's decision as to whether he is going to consent to an extended remand? The determining factor is going to be this: what does he think are his chances of getting bail on the next occasion that he appears? If he thinks that there is any reasonable chance he will almost certainly say, "I want to be remanded for eight days because I want to renew my application for bail at the earliest date". That is the accused's decision as to whether he consents or not. He makes the decision if he is represented—as he must be—with the assistance of his legal adviser.
  The solicitor in those circumstances—and here I can speak with some small authority because I have spent all my life in this work—is in a particularly suitable position to advise the man upon this question of bail and what his prospects are of getting bail next time. If the man has already applied for the first time for bail he will know by that time what grounds of objection are advanced by the police, or the prosecution, against the granting of bail. He will often be able to judge what the prospects are of getting bail on some future application if it has been refused on that occasion.
  At one extreme we get the case of the housebreaker who has a long string of previous convictions of the same kind, where one knows that the chances of getting bail on the next occasion are remote, if not non-existent. By way of illustration of the case where one has an idea that one may get bail, may I quote a case in which I was involved between the Committee stage and this occasion? I was appearing for a young man charged with unlawfully handling stolen goods. I tried to get bail for him but was turned down by the magistrates because the police objected. The main objection of the police to bail on that occasion was that they had to pursue further inquiries, possibly into other goods that he might have received. On that occasion one could see clearly that
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  in a week's time (if by then the inquiries of the police were complete) there was every possibility that the man would be able to get bail. Eight days later the police did not oppose bail at all. I give those examples as illustrations that at that stage of the proceedings, a man, with the advice of his solicitors, can form a very good view as to whether it is worth his while to try to get bail in eight days' time, or whethter the whole situation is quite hopeless, in which case he may not want to be brought down from the prison uselessly.
  The noble and learned Lord, in the memorandum, said that the necessity for the consent of the prisoner to the 21 day remand was an unrealistic protection because the solicitor might be considering his own convenience. I will not make any comment upon the implication of that reflection upon my profession. But when the noble and learned Lord sought an instance of the type of occasion on which a solicitor could try to prevail upon a man to be incarcerated for a period of three weeks rather than a week he lit upon an illustration which I suggest does not really bear examination. He took the example of the solicitor who had come to the conclusion that the case would take two or three weeks' preparation and that in those circumstances the solicitor might want to try to prevail upon the client to accept three weeks' imprisonment because that would be the time necessary for the preparation of the case.
  The question of how long it will take to prepare a case is very relevant to the date which is eventually going to be fixed for the trial, but it is utterly irrelevant to the question as to whether it is in the man's interest to make another application for bail in eight days' time. The two things are not connected in any way. The only way in which I can think that a solicitor might advise a client to voluntarily incarcerate himself for three weeks rather than a week would be if the solicitor did not want to be put to the inconvenience of going to the court eight days later in order to renew his client's application for bail.
  I do not know what view the noble and learned Lord takes of my profession, but I invite the House to consider whether any solicitor is going to invite a man, or

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  try to bring pressure upon him, to surrender his rights and go into prison for three weeks for no better reason than that the solicitor does not want to turn up a week later for ten minutes. If the noble and learned Lord takes the view that solicitors might behave in that way, I would ask this question: do members of the Bar behave in that way? Would any member of the Bar invite his client to go into voluntary incarceration for three weeks because the members of the Bar did not want to turn up to renew the application a week later?
  Another analogy that the noble Lord sought to draw, I think in the letter he wrote to the noble Lord, was this. He said solicitors do sometimes over-persuade their clients; they over-persuade them sometimes to plead guilty; or sometimes they advise them to plead guilty when they should not plead guilty. I suggest that that is quite another matter, because when a solicitor or barrister is advising a client as to whether or not he should plead guilty to a charge, what he is presumably doing to the best of his ability (and, of course, we all make mistakes) is trying to decide what is the plea which is in the best interests of the client. He may be wrong; he may be right, but that is what he is doing. But when he is called upon to advise a client as to whether he ought to consent to a three week remand there is nothing to be gained for the client by advising him to consent to that—nothing whatever. Therefore, the solicitor or barrister can have no conceivable interest in trying to bring pressure to bear upon the individual to forgo his eight-day right.
  Then the noble and learned Lord made another analogy which I suggest is equally false. He said that it is commonly recognised that where you set up a maximum period, that tends to become the minimum. He gave as an illustration the remands under Sections 12 and 26 (I think it is) of the Magistrates' Courts Act 1952. Those are remands for medical reports and social security reports. In that case, of course, magistrates are empowered to remand somebody in custody up to three weeks. He rightly points out that unfortunately far too many Benches take the maximum period. I quite agree. But there is no analogy between that case and the situation that would prevail under this Amendment, because in that case the
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  magistrates have an absolute discretion up to three weeks; but in this case, under our Amendment, they have not a discretion at all because the individual himself can say, "No; I am not going to have it. I am only going to be remanded for eight days." So I suggest that there is not any analogy there. There is a letter in to-day's Times from a Mr. Tom Harper, whom I take to be at the Bar, which makes exactly the same error. He wrote in this letter, among other things:
  "The practical result of the amendment would be to take away from the courts the opportunity to review custodial orders every eight days and enable them to do so only every 20 days, for while the 20-day period is expressed as being a maximum, it is on past experience beyond doubt that 20 days will in practice become the minimum in most cases."
  This letter makes no reference whatever to the fact that there is a built-in safeguard whereby one can be remanded for more than eight days only with the express consent of the accused.
  Before I finish, may I deal with one point of detail for the noble Viscount, Lord Colvilleo f Culross? At the very end of subsection (2) he has inserted some words which were certainly not proposed by me. The words are as follows:
  " if the person charged is represented by counsel or a solicitor and he consents to be so remanded or if the court considers, having regard to his physical or mental condition, that his consent ought not to be dispensed with"—
  VISCOUNT COLVILLE OF CULROSS: "Ought to be dispensed with".
  LORD FOOT: I beg your Lordships' pardon—" ought to be dispensed with ". I did not suggest that and I do not think it is right. If there is any doubt as to whether a person is in a fit physical and mental condition to give a consent or not, then that doubt ought to be resolved in his favour and it ought to be found that he does not give his consent. If I was so fortunate as to get this Amendment through this evening, I would propose to move an Amendment at a later stage in order to delete or to alter the sense of those latter words; but that is only a point of detail.
  My Lords, I am sorry to have addressed the House for so long, but it is not often one has the chance of speaking when what one says might make some difference. I have therefore indulged

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  myself a little to-night, but I hope I shall be forgiven. May I conclude by summarising the matter in this way. Under my proposal, no one who is unrepresented before a Bench of magistrates when a bail question arises is at any risk whatever. No one can be remanded for longer than eight days unless he consents, and he is under no obligation to give reasons why he refuses. He has an absolute veto which he exercises himself with the assistance of his legal adviser. He has that assistance of the legal adviser who in these particular circumstances has nothing whatever to gain, nothing reputable at any rate to gain, by over-persuading the man to surrender his right to an eight-day remand. For all those reasons, I believe that the apprehensions which have been expressed by the noble and learned Lord are unfounded, and that this Amendment, while it would eliminate many wasteful practices and a lot of humiliating appearances and unnecessary appearances by people in custody before the courts, would at the same time not add a single day to the time that people spend in custody awaiting trial.
  7.36 p.m.
  LORD DONALDSON OF KINGS-BRIDGE: My Lords, very regretfully I have to withdraw the support I gave to the noble Lord, Lord Foot, on Committee. It is a very near thing. I feel very strongly indeed about the enormous inconvenience, particularly in local prisons, not only to staff but also to the prisoners themselves; and one of the reasons why local prisons are such extraordinarily unhappy places is the instability caused by these constant moves. The noble Lord has not entirely satisfied me that the case of my noble and learned friend Lord Gardiner is wrong, and so long as there is any doubt about the safeguards of the liberty of the subject one must proceed with total caution. If Lord Foot were my solicitor and were the solicitor to every prisoner I should feel much happier than I do now, but anybody who has had anything to do with prisoners knows that, whether their solicitors are good or bad, they always
  think they are bad after they have been convicted and the relationship between the prisoner and his solicitor is almost always a very difficult one. I feel that busy solicitors with half a dozen cases which seem fairly hopeless must be under a pressure to say, "Well, there is very little chance of the chap getting anything. Three weeks will be best." I am not going to argue this issue at length. We have heard the arguments put fully. We have to make a judgment, and my judgment is "thumbs down" to the noble Lord, Lord Foot, although I am sorry to say so.
  VISCOUNT COLVILLE OF CULROSS: My Lords, I want to say just one word about the detailed matter which the noble Lord, Lord Foot, raised on the final words of this provision. The point of this, for better or for worse, was that there are cases—and they are, when they occur, very distressing—where somebody is mentally ill. There have been cases, for instance, where the person just stood mute, incapable of taking in what was going on and incapable of saying anything one way or the other, and where it was perfectly obvious that, if for no other reason than medical grounds, he or she would have to go on being remanded. It was to deal with a situation of that kind that these words were inserted. But this again is a matter of judgment.
  LORD FOOT: My Lords, if there is a case where a person is so medically, or possibly mentally, unwell that he does not appear capable of giving a coherent answer, is there not an argument for keeping that case under review by bringing that person back at the end of eight days, rather than letting him be sent away for 21 days?
  VISCOUNT COLVILLE OF CULROSS: My Lords, it was to be combined with legal representation; but I do not wish to pursue this further.
  7.40 p.m.
  On Question, Whether the said Amendment (No. 24) shall be agreed to?
  Their Lordships divided: Contents, 6: Not-Contents, 45.

  CONTENTS

  Blyton, L.

  Foot, L. [Teller.]

  Maelor, L.

  Colville of Culross, V. [Teller.]

  Hacking, L.

  Wade, L.

  NOT-CONTENTS

  Auckland, L.

  Grimston of Westbury, L.

  Rankeillour, L.

  Balerno, L.

  Hailsham of Saint Marylebone, L. (L. Chancellor.)

  St. Just, L.

  Balfour, E.

  Sandford, L.

  Belhaven and Stenton, L.

  Henderson, L.

  Sempill, Ly.

  Champion, L.

  Hoy, L.

  Simon of Glaisdale, L.

  Cork and Orrery, E.

  Hylton-Foster, B.

  Slater, L.

  Craigmyle, L.

  Jacques, L. [Teller.]

  Stow Hill, L.

  Denham, L.

  Latymer, L.

  Strabolgi, L. [Teller.]

  Donaldson of Kingsbridge, L.

  Limerick, E.

  Strange, L.

  Drumalbyn, L.

  Lindsey and Abingdon, E.

  Strathclyde, L.

  Eccles, V.

  Lothian, M.

  Swansea. L.

  Elles, B.

  Lyell, L.

  Taylor of Mansfield, L.

  Emmet of Amberley, B.

  Monck, V.

  Wootton of Abinger, B.

  Gainford, L.

  Mowbray and Stourton, L.

  Wynne-Jones, L.

  Gardiner, L.

  Phillips, B.

  Young, B.

  Gowrie, E.

  On Question, Amendment agreed to.

  7.48 p.m.
  VISCOUNT COLVILLE OF CULROSS VISCOUNT COLVILLE OF CULROSS moved Amendment No. 25:
  After Clause 44, insert the following new clause:
  Summary trial of certain offences of arson
  " . In Schedule 1 to the Magistrates' Courts Act 1952 (indictable offences triable summarily with the consent of the accused when adult) for paragraph 2 there shall be substituted the following paragraph. in lieu of that substituted by section 7(1) of the Criminal Damage Act 1971:—
  " 2. Offences under section 1(1) or section 1(1) and (3) of the Criminal Damage Act 1971 or under section 2 or 3 of that Act "."
  The noble Viscount said: My Lords, this Amendment carries out the original intention of I believe everybody under the Criminal Damage Act. That intention was that there should be retained a summary offence of arson for the very small cases. Arson can, of course, be a very serious crime indeed, but it was never intended that all cases which might be described and would have to be charged as arson should be tried on indictment. Unfortunately, the drafting of the Bill has proved to be incorrect in this respect, because in the case of R. v. Aylesbury Crown Court, ex parte Simons which was recently dealt with by the Divisional Court and was reported yesterday, it has been held that one cannot, under the Criminal Damage Act, prosecute somebody summarily for arson. We think that the situation as it was always intended to be should be restored and that there are some small cases which do not need to go to trial on indictment. That is the purpose of this Amendment and Amendment No. 42. I beg to move.
  Clause 63 [Citation interpretation, commencement and extent]:
  7.51 p.m.
  VISCOUNT COLVILLE OF CULROSS:My Lords, this is a drafting Amendment. I beg to move.
  Amendment moved—
  Page 40, line 15, leave out ("sentenced") and insert ("sentence ").—(Viscount Colville of Citlross.)
  VISCOUNT COLVILLE OF CULROSS VISCOUNT COLVILLE OF CULROSS moved Amendment No. 28:
  Page 40, line 32, at end insert:
  ("Provided that—

  (a)sections 28, 30. 31 and (Increase of Maxi MUM punishment under section 27(1) of the Housing Act 1957) shall not affect the punishment for an offence completed before those sections come into force; and

  (b)neither section 35 nor the corresponding section referred to in section 60(3) shall come into force until provision has been made by rules of court with a view to preventing or restricting the disclosure of the identity of the acquitted person in references under that section.")

  The noble Viscount said: My Lords, this Amendment relates to certain matters which we have already discussed. Para-graph (a) of this new proviso avoids the increases in penalties being retrospective. Paragraph (b)is important because it deals with the rules of court to which I have already referred and about which we divided. The noble and learned Lord, Lord Gardiner, was rather scathing in his remarks about the use of the word "restricted". The point of inserting a provision to allow the rules to restrict disclosure is that if somebody asks to have his case publicised, despite the fact that he has been acquitted, he should

  1391
  not be altogether prevented from doing so. In other words, if he wishes to give his consent to publicity—there are such cases where it is a matter of principle—. we do not want to preclude the rules from enabling a case to be publicised. That is the sole purpose of this Amendment and there is nothing sinister about it. I beg to move.
  VISCOUNT COLVILLE OF CULROSS: My Lords, Amendment No. 29 is consequential and drafting. I beg to move.
  Amendment moved—
  Page 40, line 34, at end insert (" section 31 so far as it relates to section 67(5) of the Shops Act 1950.").—(Viscount Colville 0f Culross.)
  VISCOUNT COLVILLE OF CULROSS VISCOUNT COLVILLE OF CULROSS moved Amendment No. 30:
  Page 41, line 6, at end insert ("and").
  The noble Viscount said: My Lords, I suggest it would be convenient to discuss together with this Amendment Amendments Nos. 31, 32 and 33. These are all part of the criminal bankruptcy matter to which I referred in connection with Amendment No. 6. I beg to move.
  VISCOUNT COLVILLE OF CULROSS: My Lords, I beg to move Amendment No. 31:
  Amendment moved—
  Page 41, line 6. at end insert ("and"). Colville of Culross.)
  VISCOUNT COLVILLE OF CULROSS: My Lords, I beg to move Amendment No. 32:
  Amendment moved—
  Page 42, line 34, leave out paragraphs 8 to 11.—(Viscount Colville of Culross.)
  VISCOUNT COLVILLE OF CULROSS: My Lords, I beg to move Amendment No. 33:
  Amendment moved—
  Page 44, line 39, after ("bankruptcy") insert ("and no order shall be made by the High Court under section (Recovery of assets for
  1392
  criminal bankrupt's estate) of this Act". —(Viscount Colville of Culross.)
  7.55 p.m.
  Schedule 2 [Ineligibility and Disqualification for and Excusal from Jury Service]:
  LORD SIMON OF GLAISDALE LORD SIMON OF GLAISDALE moved Amendment No. 34:
  Page 46, line 17, at end insert—
  (" Active Elder Brethren of the Corporation of Trinity House of Deptford Strond.")
  The noble and learned Lord said: My Lords, the object of this Amendment is to put the active Elder Brethren of Trinity House as nautical assessors to the Admiralty Court in the place where they obviously belong; namely, the group of "Others concerned with the administration of justice." The Admiralty Court at the moment is part of the Queen's Bench Division, although in my time it was part of the Probate, Divorce and Admiralty Division. I move this Amendment with the approbation and support of my noble and learned friend the Lord Chief Justice, who has had to leave our proceedings.
  The Amendment is limited to active Elder Brethren because there are a number of honorary and retired Elder Brethren who do not act as nautical assessors. As your Lordships will know, a number of very important functions performed by Trinity House are directed by the Elder Brethren. They are the pilotage authority for the Port of London and are therefore responsible for the safety of navigation, the licensing of pilots and so on in the Port of London with its immense shipping traffic. They are the lighthouse and lightship authority for the British Isles, and in addition—this function is relevant to the Amendment—they sit as nautical assessors to Admiralty Courts, both at first instance and on appeal.
  There are only ten Active Elder Brethren, and to show the pressure on them, apart from a recital of the other functions I have laid before your Lordships, I need only mention that there are ten cases listed for the coming term in which nautical assessors will be required. Many of those cases will require two nautical assessors sitting with the judge and in some cases they will be sitting in the Court of Appeal at the same

  1393
  time as the Judge of first instance is trying some other case with some other nautical assessor. Your Lordships will see that there would be a strong case for including the Elder Brethren in Part III of the Schedule, persons who are exempt; but I do not ask your Lordships to approach the matter in that way. At present the whole of the pilotage service is exempt from jury service—not only the Elder Brethren but the pilots themselves and the whole of the staff of Trinity House.
  The Morris Committee on the Constitution of Juries for Trial realised that the present position was quite anomalous, and I understand that their Report recommended that there should be a new class of persons who were not exempt but who were ineligible for jury service. The ground on which they were made ineligible was that they were so intimately connected with the administration of justice that they might appear to other people to have undue influence with an ordinary lay jury. I understand that that was the philosophy of the Morris Report. If so, it is surely obvious that the Elder Brethren of Trinity House should be in Group B of Part I of this Schedule.
  One need only look at a test case. Who is more intimately connected with the administration of justice and who is the one who more fully satisfies the criterion or the Morris Committee—the Elder Brother of Trinity' House, sitting as nautical assessor in the Admiralty Court, or the shorthand writer of the court? I ask the noble Viscount, unless he is prepared to accept this Amendment with alacrity, expressly to address himself to that question. One could make other comparisons. Consider the position of the Elder Brother who sits in court with the judge, who sits in the Court of Appeal with the judge and who sits in the Appellate Committee of your Lordships' House with those of your Lordships who are concerned with judicial matters. Is he more concerned with the administration of justice? Does he satisfy the criterion proposed by Lord Morris of Borth-y-Gest and his Committee, or does a barrister—I take the very first class mentioned in Group B—called to the Bar, say, twenty or thirty years ago, who has never practised? Does the Elder Brother satisfy the test more than a member of a board of prison visitors,
  1394
  retired for nine years, who would appear in Group B, or the cook of a probation hostel, or the typist in a forensic science laboratory? If the matter is decided in that way, not only do the Elder Brethren appear centrally as concerned with the administration of justice, but there are obviously a great many marginal cases here which are well on the other side of the Elder Brethren.
  I myself at one time held a very humble post in the Department which the noble Viscount represents in your Lordships' House with such distinction and I have the gravest foreboding as to the sort of brief he may have been given. I fear very much that it starts by saying that this Amendment is put forward at the very last minute and that there may be repercussions which cannot at the moment be envisaged. I shall deal with that in a moment. It will go on, I surmise, to say—
  VISCOUNT COLVILLE OF CULROSS: My Lords, may I tell the noble Lord that one thing he does not have to deal with is that argument.
  LORD SIMON OF GLAISDALE: I think I am safe in saying that his brief will go on to say that Lord Morris's Committee did not recommend that the Elder Brethren of Trinity House should be Then I suppose it will probably say finally that administrative action can be taken to meet the undoubted case of the Elder Brethren: that it would be quite impossible without disruption of the services which Trinity House gives both forensically and administratively unless they are given exemption; that the Lord Chancellor's Office is now charged with the duty of supervising exemptions and therefore what I venture to propose to your Lordships will be conceded by administrative means.
  So far as the recommendations of the Morris Committee are concerned, I say with considerable confidence that I do not believe for a moment that they ever considered the Elder Brethren of Trinity House in this connection at all. I say that for two reasons. If they had considered them they could not have failed to see that they fall well in the middle of the list and satisfy fully the test that the Committee itself proposed. There is a further reason. I myself was President of the Division at the time the Morris

  1395
  Committee was sitting and my noble and learned friend Lord Morris of Borth-y-Gest consulted me about a number of matters affecting jury trials and juries in the Division over which I then presided and I consulted the judges. He never asked me my view at all on how far the Elder Brethren of Trinity House satisfied his test of ineligibility. I am quite certain that he would have asked that if the matter had ever been considered at all, and of course I should have said that the nautical assessors are intimately bound up with the standing and functioning., of the court and would be bound to be ineligible by Lord Morris's own test.
  May I say this finally, my Lords? The Admiralty Court is an international court. It attracts business from all over the world. I can remember myself trying a case of a collision which took place in the Kiel Canal between a Danish and a Greek ship. The reason why foreign shipowners bring their business to the English courts is, I am convinced, largely because of the expert and dispassionate advice that the judges of the English Admiralty Court get from the Elder Brethren.
  There remains finally the question of repercussions. I have myself been able to think of no other class of persons who are comparable with the Elder Brethren of Trinity House in their capacity as nautical assessors to the Admiralty Court. As I say, they fall well within the test proposed by the Morris Committee. They are far more ineligible than many of those to whom I have drawn your Lordships' attention.
  THE EARL OF BALFOUR: My Lords, I should like to say a few words in support of this Amendment. One of the reasons why so many foreign companies come to the United Kingdom to settle any court case is that each word in English law has a distinct and definite meaning. I understand that in many countries this is not the case. Marine law can be quite complicated and these people act as expert advisers on many cases in the course of all sorts of deliberations in the Marine Court. Why, under English law, Admiralty, Probate and Divorce should have been grouped together is one of the delightful mysteries of legislation, but I think that there is a lot in what the noble
  1396
  Lord, Lord Simon of Glaisdale has just said.
  8.9 p.m.
  VISCOUNT COLVILLE OF CULROSS:My Lords, there must be a very large number of people who do extremely important jobs in this country. I am not for a moment going to enter into the invidious task of saying whether those jobs are more or less important than the advice given by the Elder Brethren of the Corporation of Trinity House of Deptford Strond; but of one thing I am quite certain: were it not for their quasi-judicial functions, this Amendment would be a complete non-starter. I must emphasise this because the whole pattern of the recommendations of the Morris Committee on Jury Service is to get away from the old exemptions from jury service as a matter of right, so that people, be they never so important and never so busy, are as a matter of first instance to be liable to take part in this very important business of serving as jurymen.
  It is perfectly true that we have made provision for them to get themselves excused, but they have to get themselves excused for good reasons, and not merely because they happen to occupy a position in some authority which by some historical statutory provision has been hitherto exempt. Practically all the things that the noble and learned Lord, Lord Simon of Glaisdale, has mentioned as being the duties of the active Elder Brethren come, I would suggest to the House, in that category and do not qualify them for any different treatment from the very important other people who under this Bill are now for the first time exposed to being selected for jury service unless they can excuse themselves.
  There is, however, one distinction, and that is that they have this judicial function—or, rather, a function which, though not strictly judicial, is very closely connected with the work of the Admiralty Court at all levels, as has been explained. The principle of making sure that people who are even on the edges of the judicial system should not be thought to be involved in the decisions of juries is right, and I would say that on balance this is a case where the noble and learned Lord had made a point which is too powerful to resist, and I therefore suggest to the House that this Amendment be accepted.
  LORD SIMON OF GLAISDALE: My Lords, I do not think I can do more than to express first of all my great gratitude, and secondly my shame in appearing so ungracious as to anticipate that the noble Viscount would not accept the Amendment and, indeed, going so far as to smear my old Department in the process. I am very grateful to him.
  Schedule 3 [Amendments of enactments relating to costs on appeal]:
  VISCOUNT COLVILLE OF CULROSS: My Lords, perhaps it will be convenient, if the House agrees, to take Amendments Nos. 35, 36 and 37 together. They are drafting Amendments to deal with the consolidation of costs in criminal cases legislation, a matter which I am afraid at the moment has got bogged down but will start again next Session. There is nothing of substance in the Amendments but there are words here which ought to be put right for ease of consolidation. I beg to move.
  Amendments moved—
  Page 48, line 35, leave out ("his expenses") and insert ("any expenses properly incurred by him")
  Page 49, line 12, leave out ("his expenses") and insert ("any expenses properly incurred by him")
  line 26, at end insert—
  (" (7) In Schedule 2, paragraph 3 (costs where retrial results in acquittal), for the words "section 1 of the Costs in Criminal Cases Act 1952" substitute "section 47 of the Courts Act 1971" and for "39(2)" substitute "39 "."). —(Viscount Colville of Culross.)
  Schedule 5 [Minor and consequential amendments]:
  VISCOUNT COLVILLE OF CULROSS: My Lords, Amendment No. 38 is consequential on Amendment No. 11. I beg to move.
  Amendment moved—
  Page 51, line 11, after ("and") insert ("the").—(Viscount Colville of Culross.)
  VISCOUNT COLVILLE OF CULROSS: My Lords, Amendment No. 39 is consequential on Amendments Nos. 10 and 11. I beg to move.
  Amendment moved—
  Page 51, line 30, at end insert—
  (" In section 4(1) of the said Act for the words "for such period not extending beyond twelve months from the date of the order as may be specified therein" there shall be substituted the words "during the whole of the probation period or such part as may be specified in the order."
  In Schedule 1 to the said Act, in paragraph 3, after the words "sections three and four of this Act" there shall be inserted the words" or of section 19 of the Criminal Justice Act 1972 ".")—(Viscount Colville of Culross.)
  8.13 p.m.
  VISCOUNT COLVILLE OF CULROSS VISCOUNT COLVILLE OF CULROSS moved Amendment No. 40:
  Page 54, line 35, leave out from second ("the") to end of line 36 and insert ("words from "decides to deal with the case" to the end of the subsection there shall be substituted the words "is of the opinion that the case is one which can properly be dealt with by means of—

  (a) an order discharging him absolutely or conditionally, or

  (b) an order for the payment of a tine, or

  (c) an order requiring his parent or guardian to enter into a recognisance to take proper care of him and exercise proper control over him,

  with or without any other order that the court has power to make when absolutely or conditionally discharging an offender ".")
  The noble Viscount said: My Lords, this Amendment does need a word of explanation. Under the Children and Young Persons Act 1969 there is a requirement that an adult magistrates' court which finds a juvenile guilty of an offence—this would happen when he was being tried jointly with an older person—has to remit the case to a juvenile court unless it makes one of a number of specified minor orders: that is, absolute or conditional discharge; fine, damages or costs; or an order for the parent or guardian to enter into a recognisance to take proper care or control of the child. But if a court in fact fines a person or discharges him absolutely or conditionally there are a number of other subordinate orders to be made at the same time: for instance, restitution of stolen property or the confiscation of an offensive weapon. At the moment, as the 1969 Act stands, if the court wanted to do one of those things it would have to remit the juvenile. Therefore, in order to enable the senior court to deal comprehensively with the subordinate orders, this

  1399
  Amendment is proposed. It is really a matter of convenience because it would be absurd if you had to send it back just on that particular ground and it would be bad because it might discourage the senior court from confiscating an offensive weapon or ordering restitution of stolen property. I beg to move.
  Schedule 6 [Repeals]:
  VISCOUNT COLVILLE OF CULROSS: My Lords, Amendment No. 41 is consequential on Amendment No. 11. I beg to move.
  Amendment moved—
  Page 57, line 32, column 3. at end insert—
  ("In Schedule 1, in paragraph (b) of the proviso to paragraph 3, the words "or to submit to treatment for his mental condition".").—(Viscount Colville of Culross.)
  VISCOUNT COLVILLE OF CULROSS: My Lords, Amendment No. 42 is consequential on Amendment No. 25. I beg to move.
  Amendment moved—
  Page 59, line 14, column 3, at beginning insert ("Section 7(1) ").(Viscount Colville of Culross.)
  VISCOUNT COLVILLE OF CULROSS: My Lords, Amendment No. 43 is a drafting Amendment. I beg to move.
  Amendment moved—
  Page 59, leave out lines 17 and 18 in column 3 and insert ("23(3) the words "and as being Exchequer moneys", and the same words in paragraph 31(4)").—(Viscount Colville of Culross.)

  CHANNEL TUNNEL AND BRIDGE PROPOSALS
  CHANNEL TUNNEL AND BRIDGE PROPOSALS
  MYRA HINDLEY: ELIGIBILITY FOR PAROLE
  MYRA HINDLEY: ELIGIBILITY FOR PAROLE
  LEEDS CITY GALLERIES: GRANTS FROM PUBLIC FUNDS
  LEEDS CITY GALLERIES: GRANTS FROM PUBLIC FUNDS
  PRICES AND INCOMES ACTS 1966–1968
  PRICES AND INCOMES ACTS 1966–1968