Sitting of 12 October 1982

Preamble
Reassembling after the Summer Recess, the House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Bristol.

Pakistan: Political Prisoners
Lord Jenkins of Putney: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether, in pursuance of their declared concern for human rights, they will request the Government of Pakistan to state what substance there is in the allegations that there are some 40,000 political prisoners in Pakistan and whether it is true that the Pakistan Government countenances the torture of these prisoners.
The Minister of State, Foreign and Commonwealth Office (Lord Belstead): No, my Lords. Pakistan's Interior Minister has publicly denied allegations that such large numbers of political detainees are held and that the Pakistan Government countenance torture.
Lord Jenkins of Putney: My Lords, is the noble Lord aware that the figure in my Question appeared in an Amnesty International Report? Is he further aware that, even if the figure is denied, I think he will agree that it is incontrovertible that the dictatorship in Pakistan has become increasingly cruel and barbaric in recent years? Why is it that the Government appear to find this extremely repressive régime more acceptable than the relatively mild military régime in Poland?
Lord Belstead: My Lords, so far as the Amnesty International Report is concerned, it acknowledges that it is difficult to give precise figures for the numbers of political detainees at present and accepts that those detained in recent years have mostly been released after a short period. However, having said that, I give the noble Lord an assurance that the Government will continue to use appropriate ways of making it clear that we deplore violations of human rights wherever they occur.

New Zealand Butter Quota
2.39 p.m.
Lord Beswick: 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 they have done and what they propose to do in order to ensure, for the benefit of the British housewives and for our staunch Commonwealth partners, an
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unreduced New Zealand butter quota in the years ahead.
The Minister of State, Ministry of Agriculture, Fisheries and Food (Earl Ferrers): My Lords, the quota for New Zealand butter imports under the special arrangements has always been set on a degressive basis. In the arrangements for 1981 to 1983 we ensured that New Zealand was not deprived of outlets which are essential to her and that the British consumer could continue to buy New Zealand butter. This remains our policy.
Lord Beswick: My Lords, I thank the noble Earl for that Answer. May I ask further supplementary questions? Is it not the fact that since 1973 the New Zealand butter quota has been cut, at Brussels' insistence, from 166,000 tonnes a year to 92,000 tonnes a year? Am I not correct in saying that, as the result of discussions in Brussels last week, there will be another cut of something like 3,000 tonnes a year? May I also ask the noble Earl this question: would he not agree that this year, after 100 years of mutually beneficent trading with New Zealand and 100 years since the first refrigerated ship left a New Zealand port, it would be quite intolerable to accept another cut against our best friend and our most loyal ally?
Earl Ferrers: My Lords, I understand the noble Lord's concern. In 1973 the imports of New Zealand butter were 165,811 tonnes; in 1977 they dropped to 138,176 tonnes; in 1981, they were 94,000 tonnes and in 1982 they were 92,000 tonnes. The noble Lord will be aware that the arrangements always did entail a cut in New Zealand supplies to Europe. But, on the other hand, the noble Lord will be aware also that there has been a decrease in the amount of butter consumed and that over the period between 1975 and 1981 the sales of New Zealand butter on the United Kingdom market declined by only 7.3 per cent., whereas the consumption in the United Kingdom as a whole declined by 31 per cent. Therefore, the share of New Zealand butter in the United Kingdom market has remained virtually the same at 33 per cent.
Lord Peart: My Lords, may I congratulate my noble friend on putting his Question. I believe that our friends in New Zealand always accept that there should be a place for them in our market. Indeed, when we carried out the negotiations in Europe we were always conscious of the importance of New Zealand products. I should like to say that all of us recognise the importance of New Zealand as a trading partner.
Earl Ferrers: My Lords, I entirely agree with the noble Lord the Leader of the Opposition. It is our intention to see that, while the effect of the lowering of the butter demand in the European Community is a fact, New Zealand's sales should remain an important part of the United Kingdom's efforts in Europe. It is our intention to ensure that there are proper supplies of New Zealand butter. If I can assure the noble Lord, the discussions which are going on at the moment which insinuate a figure of 89,000 tonnes have the approval of the New Zealand Government.
Lord Mackie of Benshie: My Lords, is the noble Earl aware that this is part of a much wider problem, and that if the Government could persuade the EEC to adopt sensible policies such as the super levy on production of excess milk then much of the problems of New Zealand would be helped as well?
Earl Ferrers: My Lords, not entirely; because the fact is that butter demand is decreasing. As I tried to explain to the noble Lord, Lord Beswick, although New Zealand butter imports to the United Kingdom have gone down, their share of the United Kingdom market has remained the same as it was before we joined the Community.
Lord Chelwood: My Lords, when the quota is next considered, will the Government bear in mind the fact that exports of EEC butter to New Zealand's traditional markets accentuates the problem of that country in disposing of her very large dairy products abroad? May this please be borne in mind and does my noble friend have any comment on it? May I ask him to bear in mind also that there is every bit as much sympathy and understanding of New Zealand's problems on this side of the House as on the other?
Earl Ferrers: My Lords, I am grateful to my noble friend for that last remark, and I endorse it. We have every intention of doing all that we can to ensure that New Zealand's butter supplies continue in the appropriate and the best fashion. My noble friend is quite correct in saying that the disposal of surplus Community butter on to the world market affects New Zealand, as indeed would the disposal of American butter or butter from anywhere else. We want to see that the amount of butter coming from New Zealand remains a reasonable and proper amount, and that is what we intend to do.
Lord Cledwyn of Penrhos: My Lords, while the demand for butter may be reducing, as the noble Earl says, is it not the case that milk production in the Community this year is likely to rise on average by 2.6 per cent? Will not this result in a big increase in butter production in the Community which will create enormous problems for the Commission and for every member of the Community? Will the noble Earl say what the Government's attitude will be to this new butter mountain and how it is going to affect imports from New Zealand? This is a matter of interest to the whole House.
Earl Ferrers: My Lords, without going into too much detail, the short answer to the noble Lord, Lord Cledwyn of Penrhos, is that in 1981 94,000 tonnes of butter were imported from New Zealand; in 1982 92,000 tonnes were imported; and in 1983—and this has not yet been decided—the Commission's proposals were for 89,000 tonnes. This has the approval of the New Zealand Government. The noble Lord, Lord Cledwyn, referred to the butter mountain. I would remind him that at one time the butter mountain amounted to 200,000 tonnes in intervention and it now is only 54,000 tonnes, which is about three day's supply for the Community.
Lord Cledwyn of Penrhos: My Lords, what would it be if there is an increase in milk production of 2.6 per cent?
Earl Ferrers: My Lords, it depends where the milk goes. It may go into consumption; it may go into butter or cheese. I cannot answer that question.
Lord Beswick: My Lords, the noble Earl makes a point that the consumption of butter has gone down. But would he not agree that given the opportunity, the British housewife would buy more New Zealand butter because it is better value? May I ask the noble Earl whether it is not a fact that there is now a net levy of £358 a tonne on New Zealand butter, and that this money, when collected, is used to undercut New Zealand butter in other world markets? Can this possibly be right?
Earl Ferrers: My Lords, there is a levy on New Zealand butter, as there is on all imported butter, but the levy which is applied to New Zealand butter is at a concessionary rate and is lower than that applied to other butter. The noble Lord says that if there was more New Zealand butter—if it was cheaper—people would buy more. Maybe they would, but the fact is that people are buying less, and the fact is that part of the agreement when we joined the Community was that we would protect and there would be a protection for New Zealand butter supplies, even though they are on a degressive basis. That we have striven to ensure is a fact.
Lord Molloy: My Lords, is the noble Earl aware that there is an aspect of this entire discussion—I am sure he is aware of this—which has not yet been touched on but ought to have been? During the last war the New Zealanders imposed on themselves precisely the same rations that were extant in the United Kingdom from 1939 to 1945. They could have laid massive amounts of dairy produce and food on the table of every New Zealand family but they did not. They saw that that was sent to the United Kingdom—
Several noble Lords: Question!
Lord Molloy: My Lords, have we therefore not a moral responsibility to ensure that New Zealanders are given a fair deal in any aspect of Great Britain's involvement?
Earl Ferrers: My Lords, I do not think anybody in any part of the House would disagree with what the noble Lord, Lord Molloy, has said about New Zealand's contribution in the last war and her total and great allegiance to this country, particularly during recent events. What we have tried to do—and have succeeded in doing—is ensure that as part of the Community regulations they will have an agreed amount of butter coming into this country. It is the Government's intention not to agree a figure of which the New Zealand Government would not approve, and that we have not done.
The Lord Privy Seal: (Baroness Young): My Lords, I think it will be the wish of the House that we should now move on to the next Question.

The Enterprise Allowance Scheme
2.49 p.m.
Baroness Sharples: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government how many people are benefiting from the enterprise allowance scheme.
Earl Ferrers: My Lords, at the end of August 1,048 people were in receipt of this allowance.
Baroness Sharples: My Lords, I thank my noble friend for that reply. Will he tell me how many applications are in the pipeline and what is the criteria necessary for applicants to receive the £40 a week?
Am I right in understanding that if they receive the £40 a week to help, with their own £1,000, to set up a business, they do not lose their supplementary benefit or unemployment pay?
Earl Ferrers: My Lords, 1,804 applications have been received and 1,143 have been approved. These are in five pilot areas. They started in England on 25th January, in Wales on the 1st April, and in Scotland on the 12th April, and are due to end on 1st March. To be eligible, applicants must live and intend to set up business in one of these areas. They will need to have been unemployed for at least 13 weeks and must be receiving unemployment or supplementary benefit at the time of making their application. They must also be able to show that they have at least £1,000 which they intend to invest in the business. The scheme is open to people between the age of 18 and State pension age. If they are in receipt of this money, they will not of course be in receipt of unemployment pay.

Royal Navy Ship Repairs
2.51 p.m.
Lord Orr-Ewing: 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 proportion of Royal Navy auxiliary ships needing repairs or overhauls after the Falklands War are being sent to each of the following:

(a) the Royal Dockyards;

(b) Gibraltar Dockyard;

(c) British Shipbuilders' yards; and

(d) private sector yards.

The Earl of Avon: My Lords, all necessary repairs and overhauls of Royal Fleet Auxiliary vessels returning from the South Atlantic are being carried out in the Royal dockyards at Rosyth, Devonport and Gibraltar. Rosyth and Devonport have already undertaken work on seven vessels and Gibraltar two vessels.
Lord Orr-Ewing: My Lords, is my noble friend aware that it was always understood that the Royal dockyards, with their special expertise, should be kept for refitting warships? Is it not true that, as a result of the Falklands tragic experience with fire, there is a considerable task to be undertaken in refitting warships with anti-fire materials? Is not this the proper work of the Royal dockyards and would it not be better, therefore, to feed the refitting and repair of the Royal Fleet auxiliaries to the ordinary competitive shipyards, including those of British Shipbuilders, which is a nationalised industry, in order to alleviate the desperate unemployment in places like Tyneside and elsewhere, which are urgently needing this work and could undertake it quickly and economically?
The Earl of Avon: My Lords, adequate capacity currently exists for the necessary repairs and refits of Royal Fleet auxiliaries to be undertaken in the Royal dockyards and it is the Government's normal practice to take full account of the capacity available within the dockyards before turning to the commercial sector. On the specific point of the repairs needed to be made to Royal Navy ships, I am sure it would be better to wait for the White Paper on the Falklands before commenting on this. I believe my noble friend is aware that some 18 vessels of a trade nature have been repaired in other shipyards.
Lord Blyton: My Lords, does not the noble Earl consider it a disgrace to send ships to be repaired in Gibraltar when on Tyneside four ship repairing yards are being closed? Is it not a disgrace that in the whole area of the North-East we are now standing at about 15 per cent. unemployed and yet we are sending work to Gibraltar and leaving the shipyard workers on Tyneside on the dole?
The Earl of Avon: My Lords, I would not like to agree with the noble Lord about the future of the Gibraltar shipyard. As the House will be aware, the Gibraltar yard is to be closed in 1983 and I am sure the House would want the Gibraltar dockyard to be fully employed until that date. Regarding the other point which the noble Lord made, to date British Shipbuilders have been awarded contracts for six vessels at a cost of over £6 million and the private sector yards have 12 vessels at a cost of approximately £3.5 million.
Lord Bruce of Donington: My Lords, in view of the recent experience of Her Majesty's Government in regard to the task force to the Falklands, would the noble Earl not agree that it is time that the Government's decision about the eventual running down of the Portsmouth dockyard was reconsidered? Is it not quite clear in the light of the events that took place that the services of the Royal dockyards, whether they be at Rosyth, Chatham or Portsmouth, are of the utmost importance to the country as a whole?
The Earl of Avon: My Lords, I am very interested in the noble Lord's question because, of course, it looks at the other side of the coin to that put forward by my noble friend Lord Orr-Ewing, who has pointed out that we are taking work away from the private sector in order to give it to the Royal dockyards. I am saying that the Royal dockyards have the capacity to take the work, even with Rosyth and Devonport and without, I am afraid, using Chatham. As far as Portsmouth is concerned, again I think we should wait for the Falklands White Paper to see whether there are any new decisions on this subject.
Lord Orr-Ewing: My Lords, would my noble friend reconsider the matter of stating, as he did in one of his replies, that Royal Fleet auxiliaries would be fed to the Royal dockyards? This is the grist of the task of the commercial sector, whether it is British Shipbuilders or the private yards, and they are in woeful lack of orders at the moment. Has he seen the Lloyd's List of 30th September which states that a Tyneside repair yard is to lay off 550 workers just because they cannot get any work on this refitting task? Has he got the right

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balance? Will he please re-examine the situation in the light of unemployment in these desperately needful areas?
The Earl of Avon: My Lords, I fully sympathise with what my noble friend says, but as I said to the noble Lord, Lord Bruce of Donington, there are two sides to the coin. As the noble Lord is aware, we are cutting down on the naval dockyards, which not everybody agrees with. I am sure my noble friend is equally aware that there is adequate capacity currently existing to undertake the necessary repairs and refits of Royal Fleet auxiliaries to be undertaken by the Royal dockyards.
Lord Hankey: My Lords, will the Government consider, when working out their future policy about the Royal dockyards, that the Falklands force could not possibly have got off in such a short time or with such striking efficiency if it had not been for the dockyards in Chatham, Portsmouth and other places, including Gibraltar? Will the Government realise that a lot of people will require a great deal of convincing that it is a good thing to dispose of or wind down these first-class industrial assets which are necessary for the Navy at a time like this?
The Earl of Avon: My Lords, again I fully appreciate what the noble Lord says, but may I say that if we wait for the Falklands White Paper, which we expect towards the end of this month, we can then more easily appreciate the lessons.

Business
Lord Denham: My Lords, the Third Reading of the Criminal Justice Bill will be adjourned at approximately 7 p.m. for a short period. That will be subject to the progress of business. Perhaps I should also tell the House that dinner will be available.

Criminal Justice Bill
2.58 p.m.
The Parliamentary Under-Secretary of State, Home Office (Lord Elton): My Lords, on that reassuring note, I beg to move that this Bill be now read a third time.
Moved, That the Bill be now read a third time.—(Lord Elton.)
Lord Gardiner: My Lords, I rise to oppose the Third Reading of this Bill.
Several noble Lords: Order!
Baroness Young: My Lords, we all recognise the great interest the noble and learned Lord, Lord Gardiner, has in this Bill, but if he looks at the Companion to Standing Orders I think he will see that it is the usual practice of the House, when we are on Third Reading, to take the amendments—there are a very considerable number in this case—before speeches are made and then speeches will be made on the Motion, That the Bill do now pass. I refer him to the paragraph in standing orders to that effect, and
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I think it would he for the convenience of the House if we could keep to the usual practice in this case.
Lord Gardiner: My Lords, I have been a Member of your Lordships' House for 18 years—and for nearly six years as Lord Chancellor—and I am well aware of the customs of the House. Ordinarily, in many cases if one has a general point to raise on a Bill it is more convenient to take it on the Motion that the Bill do now pass, or, if it relates to clauses which are being amended, to take it on the amendments. But any Member of your Lordships' House is entitled to oppose the Third Reading of any Bill, and the ground on which I am doing so is that it will save a good deal of your Lordships' time. It is a general point. If I were prevented from taking it now, I should take it on every single amendment which is on the Marshalled List. The reason why I am taking it on Third Reading is to save the time of the House. It will save a lot of the time of the House if we dispose of this point now, rather than take it on every single amendment. It is quite a simple point—
Baroness Young: My Lords, I am sorry to interrupt the noble and learned Lord once again. I recognise that he has been in the House longer than I have, and I also recognise that this is a very unusual matter that we are discussing. But, if I may draw his attention to the Companion, it says:
"Debate often takes place on Third Reading, but if amendments have been tabled to the Bill at this stage it is usual to take the Third Reading formally and to debate instead the Motion 'that this Bill do now pass'. This enables the House to debate the Bill in its final form."
I appreciate that the noble and learned Lord has some point that he wishes to make on this matter, but I think that the time to discuss an alteration of our general practice in the House would perhaps be in the Procedure Committee and not on the Floor of the House, in a case like this. I should have thought that we ought to keep to what has been the general practice of the House in this case, as in others.
Lord Gardiner: My Lords, I know the Companion by heart. What the noble Baroness has said is perfectly right, but there have been occasions in the past when a Member of your Lordships' House has insisted on opposing the Third Reading of a Bill and it is his right to do so. As I said, I am doing so only for the purpose of saving time. I have been told that it is quite right that I can take this point separately on each and every amendment on the Marshalled List. If that is the wish of the House, I will do so. I merely thought that it would save a great deal of time if the point was taken now. I have no intention of making a very long speech—it is quite a short point—if the point is taken and disposed of now. But, of course, I am entirely in the hands of the House.
Several noble Lords: Agreed.
Lord Gardiner: Then, my Lords, I shall continue. The point is quite a simple one, and it is this. I do not think that we ought to give a Third Reading to this Bill until the Government have told us what their intentions are with regard to bringing its various provisions into force. At the time when I wrote to the noble Lord, Lord Elton, there was only one relevant clause, Clause 78, which provided:

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"This Act, except this section, shall come into operation on such day as the Secretary of State may by order made by statutory instrument"—
Baroness Young: My Lords, now that we have heard the point which the noble and learned Lord is making. I understand that this is a matter which is coming up on one of the amendments, and I think it is not a general point to be raised on each single issue. It is a matter which we shall have a chance of discussing, and that would be the time to do it. Alternatively, it seems to me that the point could be raised on the Question, That the Bill do now pass. In either case, he would have an opportunity to raise it at a later stage.
Lord Gardiner: But, my Lords, the present position is that the general clause leaves it to the Home Office to decide whether or not any particular section shall be brought into force. It is a common clause. It is, of course, very proper where there is some preliminary act which has to be done. If one is altering the procedure of the courts, the rules of court have to be made. That cannot be done in a moment. They have to be passed by the Rule Committee, which is not a creature of the Lord Chancellor. Obviously, such a section cannot be brought into force until the rules of court have been made. There may be some cases of that in this Bill. But there are a great many cases where many of us have found it quite impossible to think of any reason why they are not being brought into force.
At the time when I wrote to the noble Lord, Lord Elton, this clause was the only clause which was relevant. Since then, he has put down an amendment which we shall reach in due course, whereby nine sections are to come into force when the Bill receives the Royal Assent. This will still leave 70 sections on which we have no idea what the Government's intentions are. All I am saying, before we give the Bill a Third Reading, is that it would save a great deal of the time of the House if the noble Lord would tell us what the Government's intentions are with regard to the other clauses.
I give your Lordships an example. I am personally interested in Clauses 1, 67, 68 and 69, all of which provide that certain people shall not be sent to prison either because they are too young, or because they have been convicted of offences which are no longer to be imprisonable offences, like sleeping rough, or other vagrancy offences, or prostitutes soliciting. What are the courts supposed to do if, the day after this Bill receives the Royal Assent, a woman is convicted of soliciting and she has been fined for it before? I suppose that some of them will say. "Parliament is supreme and Parliament has decided that this ought no longer to be an imprisonable offence. Therefore, we ought not to send her to prison. "Others will say, "This section has not yet been brought into force by the Home Office. It is not Parliament nowadays which decides these things. It is the Ministers in the departments, and they have not brought the section into force."
Other Members are interested in particular clauses and will want to know. We can no doubt go into it on each and every amendment. I just thought that it would save time if at this stage we could get a statement from the Government as to what their intentions are. If, for example, they have a list of those
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sections of which they do not approve and therefore intend never to bring into force that, in itself, would save time, because what is the good of discussing amendments if they are on clauses which the Government intend never to bring into force?
If somebody says, "Surely it cannot be the case that a Government would decide not to bring something into force", may I say that I mentioned, when I wrote to the noble Lord, Lord Elton, the case of Section 7 of the Road Traffic Act 1974. That was a section introduced by the then right reverend Prelate the Bishop of London, and supported by many of us, to make it a minor offence for motorists to park their cars on that part of the highway which is called a footway. Every year, the right reverend Prelate put down a Question and, eventually, after four years, in 1979, he was told by the Minister of State:
"A firm date has now been fixed by the Government. This section will come into force on 1st April, 1980."
As I said, that was 1st April. Let no one say that civil servants have no sense of humour. I would ask the noble Lord whether he would tell us what is the position today.
It is purely fortuitous that I saw in the Financial Times yesterday that the Federation of Charities for the Blind has named this week as Pavement Week, because of the increasing numbers of blind people, most of whom have no guide dog and have only a white stick, and because of their injuries through bumping into motor cars. That is all I have to say. It will save a great deal of trouble later on, if the Minister is only prepared to tell us now what are the Government's intentions about bringing the remaining provisions of this Bill into force.
Baroness Llewelyn-Davies of Hastoe: My Lords, before the noble Leader replies, may I say that we all understand completely the passionate interest taken in this subject by my noble and learned friend and, indeed, by many noble Lords in all parts of the House. We understand that and we appreciate the deep feeling. Nevertheless, I think it very important, when the Leader of the House makes an appeal to the House that its normal practices should be carried out, we should take this with very great seriousness. We do not have a Speaker, and this House will not run unless we observe the customs of the House. I feel that it is inappropriate for someone of my standing to disagree with anybody as eminent and wise as my noble and learned friend. Nevertheless, we must accent to the House the absolute necessity of observing our own rules, before somebody makes it clear that we shall have to have rules imposed upon us.
On Question, Bill read a third time with the amendments.
Clause 6 [Youth custody: offenders aged 15 to 20]:
3.9 p.m.
Lord Elton Lord Elton moved Amendment No. 1:
Page 7, line 6, at end insert—
("(2A) If a court passes a sentence of youth custody on an offender because it considers that his detention in a detention centre would be unsuitable because of his mental condition, it shall certify in the warrant of commitment that it passed the sentence of youth custody for that reason.")
The noble Lord said: My Lords, may I thank the noble Baroness, the Opposition Chief Whip, for her

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helpful intervention on this matter and say to the noble and learned Lord, Lord Gardiner, that I intended no discourtesy. I merely try to be as courteous as I can to the House, to its traditions and to your Lordships' will. I remind him—and he has acknowledged—that there is an amendment. Amendment No. 91, on the question of the implementation of the Bill, which is when the generality should be addressed. However, in the context of moving this amendment, which strikes early in the Bill, I should like to tell your Lordships that, of course, the generality of provisions affecting imprisonment and reorganisation of procedures will take at least into the second quarter of next year to implement. But within that context we shall do our best to be as speedy as possible.
May I now ask your Lordships to consider Amendment No. 1, with which I should also like to speak to Amendments Nos. 5, 6 and 7. The amendments deal with sentences of youth custody which are imposed by a court in place of detention centre orders because of the mental condition of the offender. These amendments follow on an undertaking I gave at Report to reflect the spirit of amendments tabled by my noble friend Lady Faithfull. They seek to do as much as is practicably possible of what was intended at that stage by her Amendments Nos. 8 and 9. Their purpose is to prevent the holding in prisons of people who receive youth custody sentences of four months or less when they would otherwise be eligible to be held either in prison or in youth custody centres because they are considered to be mentally unfit for detention centres.
The amendment to Clause 6 essentially paves the way for the substantive provisions which I propose should be introduced by the later amendments to Clause 12. What it does is to ensure that the people concerned are properly identified so that prison establishments are in no doubt as to whether or not particular individuals fall within the relevant category. It does so by requiring the court to enter upon the warrant of commitment the fact that the person is receiving a youth custody sentence because he is considered mentally unfit for a detention centre. The amendments to Clause 12 go on to provide that such a person may be held in a youth custody centre or remand centre but not in a prison. That was the intention of the amendment tabled at Report. There will, however, be two limited but necessary exceptions. First, the person may be held in a prison for temporary purposes. This is needed, as with all youth custody trainees, to cover the process of assessment in and allocation from the local prison where he first goes after sentence and to allow temporary stays for compassionate reasons, while in transit or for production at distant courts.
The second exception relates to people serving less than 21 days, which can happen if they have broken the conditions of their supervision, or serving sentences which are effectively less than 21 days as a result of counting time on remand in custody. Those people will actually be spending less than 14 days in custody, and it would be no easier to move on those who are mentally unfit from the local prison where they went initially after sentence than it would any other people serving less than 21 days. Some will be
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ready for discharge before they have been assessed and some would only have a matter of days to serve after assessment. Indeed, in some ways it is more difficult because only a limited number of youth custody centres offer psychiatric oversight. and each specialises to some extent.
I realise that my noble friend and those supporters of her amendment at Report stage were not just concerned about appropriate treatment or oversight; they also wanted to remove entirely the mentally unfit from the local prison environment. To make this a requirement by statute is to make a demand we could not guarantee to meet. However, I am prepared to give this additional undertaking. We will see to it that any person considered by the court to be mentally unfit and so identified on the warrant of commitment who arrives at a local prison with a sentence of less than 21 days will be the subject of specific assessment by the medical officer and will be located in the prison's hospital if that is at all necessary.
I hope, therefore, that the House will accept that the Government have gone as far as they can on the face of the statute to meet the concern which has been expressed about the mentally unfit and that they will secure a proper oversight of the minority who cannot be covered by the amendment itself I beg to move.
Baroness Faithfull: My Lords, may I thank my noble friend the Minister for this Government amendment. I speak on behalf of the All-Party Penal Affairs Group when I say that we are most grateful to the Minister for taking note of our previous amendments. I understand the two exceptions which have been made but I hope that the Minister will see to it. over the years, that these two exceptions are phased out.
Lord Elwyn-Jones: My Lords. I join in welcoming the amendments, subject to reiterating the feeling that was widely expressed in the House that it is intolerable that youths from 10 to 16 may have to be kept, for however short a time, in prison. We have noted with great appreciation the proposal now that at least there should be a sieving of those unfortunates so that, wherever possible, detention should be in prison hospitals. That has not been the position up to now. One has heard horrific stories of those up to the age of 16 being dumped in remote corners of appalling prisons. We may assume from what the Minister has said that that will not happen again and that for those children prison custody will be in a prison hospital.
Lord Renton: My Lords, I. too, should like to join my noble friend in welcoming this amendment and those which go with it. My only point in rising is to ask my noble friend Lord Elton whether he will be so good when he replies to the debate as to confirm that, although the amendments use the expression "mental condition"—he has used the expression "mentally unfit"—he intends in law that the term "mental condition" shall include those suffering from mental handicap or mental impairment—he will remember the significance of that phrase—as well as those suffering from temporary mental illness.
Lord Donaldson of Kingsbridge: My Lords, the noble Lord will remember that it was my noble friend Lord Hunt who moved on Report the Motion about

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21 days, and I think we all remember that we had a tie. We on this side of the House were hoping not only to get what the noble Lord has given us—which is a good deal more than nothing, and I am grateful for it—but also that he would deal with the extremely simple, it seems to us, problem of the 30 or so people (which was the figure the noble Lord gave us) at any one time who might be concerned. The problem is to arrange for the one or two people in one or two courts on any particular day to be taken directly to a youth custody centre or even, if they cannot go to a youth custody centre, to a detention centre, or, if there is such a thing, to a remand centre, but not to prison. We were unable to move this again, so I must not zig-zag around the rules of the House by putting the case in full. However, I should like to say to the noble Lord that we are not satisfied that the reasons for not doing this, in my opinion, perfectly simple thing are valid in relation to the very serious possibility of a boy, for example, in a prison hospital being corrupted in every sort of way by old lags on either side. I do not think it is the least satisfactory. I think it is entirely avoidable. I can only say that my organisation, NACRO, of which I am proud to be president, will spend the next year chasing the Minister unmercifully to try to get something done about it.
Baroness Masham of Ilton: My Lords, may I ask the noble Lord whether the Government intend to put on a time limit for obtaining medical reports? Medical reports can sometimes take quite a long time, especially if they happen to be called for over Christmas and the New Year. Prison hospital beds might be blocked by young people waiting for medical reports to be made on them. This could be very detrimental to the other prisoners who may need the special beds in the prison hospitals. Therefore, I would agree with the noble Lord, Lord Donaldson of Kingsbridge, that they should go to a youth custody centre—and I see no reason why they should not go to a closed one, where they would be with other young people.
Lord Gardiner: May I ask the noble Lord, Lord Elton, whether there is some reason why the courts should go on doing something which we all agree is undesirable once the Act has received the Royal Assent?
Lord Elton: My Lords, I am grateful for the gratitude of noble Lords and will try to satisfy the ingratitude of other noble Lords in a few words, by the leave of your Lordships. The question raised by my noble friend Lord Renton I am absolutely seized of; the meaning of the words is intended to be exactly what they say. If a person's mental condition renders him or her unsuitable for a detention centre, then those will be the people who are named on the face of the warrant. I will certainly draw it to the attention of anyone who may need reminding in the system, that the terminology of mental handicap has changed or is changing as a result of an enactment to which he contributed considerably and which will, I hope, shortly reach the statute book.
I would like to acknowledge belatedly the interest in this matter of the noble Lord, Lord Hunt, who I am sorry cannot be here today. To the noble Lord, Lord Donaldson of Kingsbridge, and to the noble and
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learned Lord, Lord Gardiner, I have to advance the compelling consideration of geography and resources. It is a matter of being able to get the people in question to the places in question. Remember that we are referring to more people than those whose mental condition applies. They have to be identified and then they have to be allocated. I will certainly see that your Lordships' concern, which coincides with mine, that these people are not detained in prison when it is not strictly necessary or for longer than strictly necessary, is borne in on those who administer the system—but I think that they are sympathetic to it. I shall therefore look forward, with something less than equanimity but without fear, to the chasing which I shall be given by the noble Lord, Lord Donaldson of Kingsbridge, and his minions. I think that I had better write to the noble Baroness, Lady Masham of Ilton; I believe that I have taken her points on board, but, in case there are technicalities involved, I would rather answer her on paper.
Lord Mishcon: My Lords, I am sure that the House will be very grateful to the noble Lord the Minister for the reply he has just given to the noble Baroness, Lady Masham of Ilton. But I am sure that the view which many Members of your Lordships' House would want to express before approving this amendment is that the Minister should undertake that the medical officer concerned will be available to give a report and to make an examination within 24 hours of arrival. That cannot create administrative problems. As to how long he may take over his medical report. I quite understand that the noble Lord the Minister may wish to consult others who can give him an average time, a reasonable time, and so on—but there can be no doubt of the necessity at least to have the medical officer there within 24 hours, when there is a disturbed person of this kind entering prison. I hope that the Minister can at least give that assurance.
Lord Davies of Leek: My Lords, as one who is not bound by any legal training whatsoever but who is sometimes able to see through things, may I ask what will be done if the noble Lord's amendment is accepted, and when it will come into force if Clause 78 applies? That is my first point. My second point is, where will these unaccepted people go—these children of 11, 12, or 13 years of age—if they are not to be corrupted by old lags or not so old lags in some other forms of detention? If the Government's purpose—which I am sure is a true purpose—is to be carried out, it will need new establishments and a new type of staff to look after these people in the transitionary period. Nothing in this Bill talks about that. Even when we have finished with this Bill, if Clause 78 applies this will go on until kingdom comes without being an Act of Parliament and being put on the schedule. I may be incorrect. but I would like to be straightened out about this.
Baroness Bacon: My Lords, the noble Lord, Lord Elton, has not mentioned the special centres about which he spoke at Report stage, when he told me that these were being used for this purpose. I wonder how much of what he said today fits into the special centres and where they stand. I asked him before, and did not get a very clear answer, who was really responsible for

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admissions there; the Home Office or the Department of Health? He has not really put this into the context of the special centres.
Baroness Macleod of Borve: My Lords, before my noble friend rises to answer questions, I wonder if I may ask him this. This amendment states,
"If a court passes a sentence of youth custody on an offender because it considers that his detention in a detention centre would be unsuitable because of his mental condition …".
I wonder if my noble friend could tell us whether the court is to get medical evidence and, if so, how many medical practitioners would have to make the court aware of whether the youth in front of1 the bench is not medically fit to go to one of the other centres. Having sat on a juvenile court for something like 24 years, it seems to me that this has never really come to the notice of the courts before. I wonder whether one is supposed to remand a youth so that he can be medically examined. If that is the case, if the court thinks that he is unfit mentally and is suffering from a mental condition, then still somewhere has to be found for him to go. Can my noble friend answer my question?
Lord Avehury: My Lords, I apologise for burdening the noble Lord the Minister with another question when he already has several to which to reply, but this is an important matter. The noble Lord said that when a youth does have to be detained in prison, for one of the two exceptions which he gave, there would he a special medical examination of the patient to see whether he could be held in a prison hospital or otherwise. How will it be ensured in those cases that the medical reports on which the doctor has to reach his decision, or which are at any rate germane to his decision, even if they do not supersede any examination he may conduct, would reach him in the shortest possible time, bearing in mind that the noble Lord is as well aware as I am that there are difficulties in the transfer of medical records between one institution within the penal system and another? This is for the simple reason that these records do not accompany a patient when he moves from one prison to another or, presumably, from a youth custody centre to a prison, or whatever.
If the reports go by post, knowing what our postal system is like, there could be a delay of several days, and this could mean that the Minister's undertaking, although given to the House in good faith, would be physically impossible to carry out. I wonder if the noble Lord thinks that it would be possible to make a special arrangement in these cases to see that the medical records were transferred immediately—preferably together with the patient when he arrives at the prison so that the doctor has all the information in front of him to enable him to conduct his examination in the prison.
Lord Elton: My Lords, with great respect, I believe that I should remind your Lordships that this is a Third Reading debate. I did wait to rise to my feet for the second time with your Lordships' permission, until I saw, I thought, that nobody else wished to ask me any questions. I will try to wait a little longer in future, but after this amendment I do not think that I will seek to
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speak three times because your Lordships' patience—although tolerating such a thing at half-past three in the afternoon—may wear a little thin towards eight, nine, or ten o'clock at night. Very briefly, I will write with technical answers to technical questions. I can give the noble Lord, Lord Mishcon, the assurance he wishes that there will be a medical examination of somebody arriving with a warrant endorsed within 24 hours of the reception of the person at the place where he is to be contained. Commencement will be pari passu with the other provisions of Clauses 1 to 16 which I mentioned earlier.
The special centres question needs a fairly elaborate answer, and if the noble Baroness will forgive me, I shall write to her. The courts do in fact have the power to remand for medical examination, and there are arrangements to enable the courts to obtain inmmediate medical examination; we rehearsed these at either Committee or Report stage. At one of those stages I gave an undertaking, which I repeat, that we will review this question and remind the courts of the procedure so that they avail themselves of it. I hope I have disposed of everything. If I have not, I apologise and I shall write.
On Question, amendment agreed to.
Clause 10 [Computation of custodial sentences for young offenders]:
3.31 p.m.
Lord Elton Lord Elton moved Amendment No. 2:
Page 9, line 5, leave out ("subsection") and insert ("subsections")
The noble Lord said: My Lords, it may be to your Lordships' convenience if I speak also to Amendments Nos. 3 and 4. I regret that it is necessary to bring this amendment forward at so late a stage in the Bill's passage.
May I break off to ask for assistance, which the Opposition may have great pleasure in giving me. I do not often ask for illumination on my work from the other side of the House, but because of the arrangements which the cleaners or the attendants have made the noble Lord opposite will find if he switches the switch under the Dispatch Box on his side a flood of light will come out over mine. I am most grateful.
Lord Elwyn-Jones: My Lords, the Opposition is always delighted to enlighten the Government.
Lord Elton: My Lords, I am very glad it has been done in such a practical way. As I was saying when I indicated our intention on Report, the need for this only came to light at a very late date. I hope as many of your Lordships as wanted it have received some explanation in writing from me. The amendment deals with a complex and technical matter of sentence calculation. It amends Clause 10 of the Bill and that in turn amends Section 67 of the Criminal Justice Act 1967. It sounds complicated, but I think the principle can be expressed fairly simply. Clause 10 gives effect to a widely welcomed change in the basis on which sentences imposed on young offenders are calculated. Section 67 of the 1967 Act allows time spent in custody on remand to count towards a sentence. At present such remand time does not count towards detention centre or borstal sentences. Clause 10

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corrects this anomaly by ensuring that periods spent in custody before sentence will count towards the period of custody.
This amendment deals with the application of Clause 10 to juveniles under 17 who are remanded to the care of a local authority. It is only now and with this Bill that the question of the application of Section 67 to time in care arises. It was, I am afraid, only at a late stage that it emerged that remands in care would count as remands in custody for the purposes of Section 67.
When a juvenile under 17 is remanded to the care of a local authority under Section 23 of the Children and Young Persons Act 1969 the local authority decides on the appropriate placement under the general powers applying to children in care. This may be a placement in ordinary residential accommodation or in secure accommodation; or it may be with a parent, guardian, relative or friend, or boarded out. Although remanding in care means that the local authority takes over responsibility for the young person and may involve to a greater or lesser extent restrictions on his freedom, it is quite different from the situation where a defendant is remanded in a custodial establishment. Whereas an adult held in prison before sentence has spent a period in custody, this does not apply in the case of care. A young offender given a sentence of detention or youth custody after a period of remand in care cannot be said to have already served part of the sentence. It therefore seems necessary to the Government to add this amendment to Clause 10 to establish that remands in care are not remands in custody for the purposes of Section 67.
My Lords, I would not wish to leave it there, because I think that would be wrong. If a juvenile is placed in secure accommodation in particular the restrictions on his liberty are severe. The noble Baroness has tabled an amendment to take this on board. If I may speak to that amendment at the same time, I would say that placement in secure accommodation is a professional decision taken by the local authority social workers. It is a decision which may be taken in relation to any child in care and has in itself nothing at all to do with whether the young person is an offender or is on remand. We do not, therefore, agree that placement in secure care should count towards sentence.
Remand in care is not in itself a reason to hold a youngster in secure accommodation. It would be invidious to provide by law that a period spent in secure accommodation while on remand counted towards sentence while other remands in care did not. I could illustrate this. I think it would lead to inequitable comparisons. Against this it may be argued that a youngster who was so unruly that he could not be held in care at all and therefore had to be held in, say, a remand centre should not be at an advantage compared with youngsters held in secure care. I readily concede that there is something in that point, and that perfect equity cannot be achieved.
We considered carefully what might be the best solution to this difficulty. The answer we reached was that the place to draw the line in law was between custody and care. After all, the youngster who spent time on remand in custody has served a period of time in custody. No one will dispute that that should count
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towards a subsequent custodial sentence. Secure care is not custody. Although it involves restrictions on what the youngster placed in secure accommodation may do, secure placement is designed to be an element within the broad child care system. It properly belongs within the care framework. Secure accommodation, often within normal residential homes, is more analogous to ordinary residential placement than it is to custody.
The placement in secure accommodation is used as sparingly as possible. In some instances juveniles are placed in secure accommodation for short periods of time, perhaps only a matter of hours. When youngsters are kept in security they may spend part of their time outside the secure accommodation. This flexibility is an important part of the arrangements. We think it would be wrong to base the legal calculation of sentence lengths on a distinction between time spent in residential care and time spent in secure accommodation.
But that is not to say that we propose to remove the distinction. We regard it as highly desirable that the courts should know the circumstances of the remand in care. It would be, for the reasons I have given, wrong for such time or part of it to count automatically towards sentence. But the courts should themselves be able to take it into account in deciding on the right sentence, taking account of the nature and duration of such care. What we therefore propose is that the local authorities should inform the courts of the placement of youngsters remanded to their care when they come up in court for sentence. In doing that we introduce this factor for their consideration when deciding the appropriate length of sentence, while at the same time treating all care as if it should rate equally with custody for the automatic process. I ask the House to accept the amendments standing in my name, and I hope that the noble and learned Lord opposite who will be joining issue with me will see sufficiently clearly the merits of the case that I have put not to pursue his amendment to a Division. I beg to move Amendment No. 2.
Lord Elwyn-Jones: My Lords, what we are discussing here is the fact of the deprivation of the liberty of these young people between the ages of 10 and 17. There is no doubt that an order remanding a young offender to care can involve as much loss of liberty to that individual as an order that he be kept in a remand centre or a prison. It is a loss of liberty, loss of his freedom. I understand that the Children's Legal Centre survey of local social service departments' policies on secure accommodation has shown that children remanded to secure units may be there for as long as six months. Therefore, we want to make absolutely sure that the courts should be under a duty to see that the remanding of a young offender to secure accommodation should count towards remission of a custodial sentence.
It is, of course, the case, as the noble Lord, Lord Elton, pointed out, that remand care which is spent in open provision in the circumstances he mentioned cannot be compared to remand in a remand centre or a penal establishment. But that is not the case when the period of remand to care is spent detained in accommodation provided for the purposes of restricting liberty. In those circumstances, children are

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sent there on the decision and at the discretion of the local authority. I confess that while we naturally appreciate the attempt of the noble Lord to mitigate the severity of the position with a proposal that, by administrative means, arrangements should be made for the local authorities to give the courts full details of the remand placements, we do not think that is enough. We believe that there should be a statutory provision requiring the courts to take the period spent on remand—in effect, in custody—into account when a sentence is imposed. Natural justice demands this; fairness to the offender requires it.
Baroness Wootton of Abinger: My Lords, may I say a word in support of the noble and learned Lord, Lord Elwyn-Jones. There is no possibility that any two children, one of whom has been in care and one of whom has been in remand for an offence, would understand the difference. Those children would both be aware that they have lost their liberty for a certain period. It is true that in a restrictive legal construction "in care" has a different meaning from "remand", but that is a strictly legal matter. No child or its parents will understand it, and injustice will be seen to be done. It is most improper that injustice should be seen to be done
Lord Donaldson of Kingsbridge: My Lords, I support the noble and learned Lord's amendment, not yet moved, and therefore oppose the present one simply on the grounds that he has given. It is incontrovertible that the restriction of liberty is always restriction of liberty. It also seems to me perfectly clear that the distinction can be made with absolute clarity between care and secure care. I see no problem and I think that we should pursue this.
Baroness Masham of Ilton: My Lords, has not this problem come about because of doing away with approved schools and the merging of young people who have committed crimes with those who are the "goodies" who have not committed crimes? That is the difficulty. I see no real way out unless one divides up the homes, with homes for the "goodies" and homes for the naughty ones. I can see the dilemma of the noble Lord, Lord Elton. He does not want to persecute all children, some of whom may be just the "goodies" who need care. The situation was much easier to organise when we had the old approved schools, which have now gone.
Lord Mishcon: My Lords, bearing in mind what the noble Lord the Minister said about the necessity to get in all points before he rises, may I make two short additional points in support of the amendment which may not have been formally moved at this stage only because the noble Lord the Minister's Motion was before the House. The amendment has not yet strictly been called, but we are confining this to one debate.
It should be borne in mind that the European Court of Human Rights stated clearly in judgments that whatever the circumstances of an individual's detention, there should be the same procedural guarantees and that one set should not be inferior to those existing in criminal matters. The Minister very fairly said that putting into secure accommodation is a deprivation of liberty. It is very hard to see the
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difference between the two. If I may say so, with respect, I am not even sure that the European Court of Human Rights judgment will be adhered to if there is not a clear indication that the same remission as in criminal cases would apply where a young person has been put into secure accommodation. The Minister also fairly drew attention to the point that an unruly youngster who was put into something more severe than secure accommodation because he was so unruly would have his period of detention counted against the sentence and not in any other way, but the youngster who has behaved himself in a comparatively civilised manner and who is in secure accommodation will not.
May I put one final point to the Minister. We were told that the local authority would be required to certify, as it were, the period within secure accommodation, so that the court had before it that information. That is not in the Bill. Will the Minister at least concede that if that is the only way in which he can afford relief in this matter, although I hope he will go further, and that the House will, in any event, agree to the amendment of my noble and learned friend, Lord Elwyn-Jones, between now and later tonight when something may happen to the Bill, this provision should be put into the Bill and not left loosely to be dealt with by way of a regulation to take place—I look at the noble and learned Lord, Lord Gardiner—one does not know when?
Lord Elton: My Lords, I refer to the last point first. It is our intention to ask local authorities to provide this information and also for the courts to ask for it if necessary. However, we shall consider whether an amendment to the court rules will be necessary in the light of our experience. That is a means of accomplishing our aim without legislation. As to the other points your Lordships have raised—
Lord Harris of Greenwich: My Lords, I may have misheard the noble Lord, Lord Elton. Is the noble Lord saying that there will be no absolute enforceable requirement on the local authorities to make that information available? Is that what I understood the noble Lord to say? Would he please clarify that?
Lord Elton; My Lords, I shall return to that. What I said was that if it proved necessary to achieve that aim, which we are determined to achieve, it would be possible to achieve it by means of the court rules, if it was not sufficient merely to do it by what the noble Lord would call exhortation.
I think we are all wishing to achieve the same objective. When a person is detained in circumstances which amount to custodial containment, that should be taken into account when the length of time he is detained after sentence is determined. The question that arises between us is one of definition and of means. Noble Lords and noble Baronesses have said that deprivation of liberty is deprivation of liberty is deprivation of liberty. But there are distinctions. For example, I am under the clear impression that attendance at public school is in many circumstances deprivation of liberty. But that is quite different from being contained in secure accommodation. Being contained in secure accommodation differs from case to case because a person may be required to be there

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for 24 hours, for three weeks or for a certain period in each period of 24 hours.
I should like to direct the noble Lord's attention to the very large administrative difficulty of recording every exit to the sweet shop or to the football ground that may arise in a particular case and every locking of the door each day for a remanded person who may eventually not serve beyond the appearance in court anyway. Moreover, the calculation that would fall upon the prison department, whom your Lordships would wish that we should inform of these circumstances, would be a formidably difficult task to perform. That is why we feel that the information about the way in which the person is being kept can more properly be given to the court at the time it determines the length of sentence overall, than it can be given to the prison, which will then have to calculate sometimes quite fractional deductions and sometimes on a very elaborate basis.
I am certainly aware of the European dimension of this matter, and your Lordships will know that we are at pains to make what we do conformable with European regulations. If I see anything to make me doubt that, I shall, indeed, be in touch with the noble Lord, Lord Mishcon, before the end of today's proceedings. However, I think that I have given an earnest of not only our intentions but the intentions of those who administer these matters. It is our intention that, by a simple and straightforward means, the information which is needed to calculate a sentence should be given to the court, rather than that a much more elaborate procedure—elaborate both before the trial and after it—should be instituted in order to adjust that sentence after it has been given. I hope that your Lordships will prefer my amendment as it stands to the amendment as it would become if the noble Lord's amendment were carried.
Lord Elwyn-Jones: My Lords, I do not know whether, as my amendment has not been called, I am entitled to speak again. However, I seek the mercy of the House and I think it will hasten matters if I may be regarded as having moved my amendment which I shall formally do now if that is acceptable to the Chair? I understand that it is not acceptable. In those circumstances, I do not know that I have any basis on which to speak again at this moment. The only trouble is that it is not a cause for applause but a cause for a second speech.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 3:
Page 9, line 13, at end insert—
("(6) The reference in subsection (1) above to an offender being committed to custody by an order of a court includes a reference to his being committed to a remand centre or to prison under section 23 of the Children and Young Persons Act 1969 or section 37 of the Magistrates' Courts Act 1980 but does not include a reference to his being committed to the care of a local authority under the said section 23.".").
The noble Lord said: My Lords, I beg to move Amendment No. 3.
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 4 as an amendment to Amendment No. 3:
At end insert—
("save where the offender is placed in accommodation provided for the purpose of restricting liberty for the period or part of the
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period of committal to care, which period shall be treated as a period of custody for the purpose of subsection (1) above.").
The noble and learned Lord said: My Lords, I beg to move Amendment No. 4. I have in fact spoken to this amendment and I shall, therefore, not carry out my threat to the House. However, in my submission, this is a most serious matter affecting the liberty of the subject and the fact that it is a young subject makes it all the more important. In my submission, this matter should be put into the Act as a statutory duty incumbent both upon the courts and upon the local authority. I beg to move.
Lord Elton: My Lords, I also shall be extremely brief, but I think it right to say that the noble and learned Lord referred earlier to sentences of six months. I think that those must have been remands in secure custody because it would be very rare to have remands in care for six months. I merely wanted to put the record straight; I do not want to have another go at the noble and learned Lord.
3.54 p.m.
On Question, Whether the said amendment (No. 4) shall be agreed to?
Their Lordships divided: Contents, 88; Not-Contents, 107.

DIVISION NO. 1

CONTENTS

Airedale, L.

Hooson, L.

Amherst, E.

Howie of Troon, L.

Amulree, L.

Hughes, L.

Ardwick, L.

Hutchinson of Lullington, L.

Avebury, L.

Hylton, L.

Aylestone, L.

Irving of Dartford, L.

Bacon, B.

Jacques, L.

Balogh, L.

John-Mackie, L.

Banks, L.

Kilmarnock, L.

Beaumont of Whitley, L.

Leatherland, L.

Beswick, L.

Listowel, E.

Bishopston, L.

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

Blease, L.

Blyton, L.

Longford, E.

Boston of Faversham,

Lovell-Davis, L.

Briginshaw, L.

McCluskey, L.

Brockway, L.

Mackie of Benshie, L.

Bruce of Donington, L.

Mayhew, L.

Byers, L.

Milford, L.

Chitnis, L.

Mishcon, L.

Cledwyn of Penrhos, L.

Molloy, L.

Collison, L.

Norfolk, D.

Cooper of Stockton Heath, L.

Peart, L.

David, B.

Ponsonby of Shulbrede, L. [Teller.]

Davies of Leek, L.

Davies of Penrhys, L.

Redcliffe-Maud, L.

Denington, B.

Rochester, L.

Diamond, L.

Sainsbury, L.

Donaldson of Kingsbridge, L.

Seear, B.

Elwyn-Jones, L.

Sefton of Garston, L.

Ewart-Biggs, B.

Simon, V.

Faithfull, B.

Spens, L.

Fisher of Rednal, B.

Stedman, B.

Foot, L.

Stewart of Alvechurch, B.

Gaitskell, B.

Stewart of Fulham, L.

Gardiner, L.

Stone, L.

George-Brown, L.

Strabolgi, L.

Glenamara, L.

Taylor of Blackburn, L.

Gormley, L.

Taylor of Gryfe, L.

Grey, E.

Tordoff, L.

Hale, L.

Underhill, L.

Hampton, L.

Wallace of Coslany, L.

Harris of Greenwich, L.

Wells-Pestell, L.

701

White, B.

Winstanley, L.

Wigoder, L.

Wootton of Abinger, B.

NOT-CONTENTS

Allen of Abbeydale, L.

Killearn, L.

Ampthill, L.

Kinloss, Ly.

Auckland, L.

Lane-Fox, B.

Avon, E.

Lauderdale, E.

Bagot, L.

Lawrence, L.

Belhaven and Stenton, L.

Lindsey and Abingdon, E.

Beloff, L.

Loudoun, C.

Belstead, L.

Lucas of Chilworth, L.

Berkeley, B.

Luke, L.

Bessborough, E.

Lyell, L.

Bristol, Bp.

McFadzean, L.

Campbell of Alloway, L.

Mackay of Clashfern, L.

Carnegy of Lour, B.

Macleod of Borve, B.

Chelwood, L.

Mancroft, L.

Chesham, L.

Mansfield, E.

Clancarty, E.

Margadale, L.

Clitheroe, L.

Marley, L.

Clwyd, L.

Marshall of Leeds, L.

Cockfield, L.

Melville, V.

Coleraine, L.

Milverton, L.

Cork and Orrery, E.

Montagu of Beaulieu, L.

Cottesloe, L.

Morris, L.

Croft, L.

Mottistone, L.

Cullen of Ashbourne, L.

Mowbray and Stourton, L.

Daventry, V.

Murton of Lindisfarne, L.

Davidson, V.

Nugent of Guildford, L.

De Freyne, L.

Orkney, E.

Denham, L. [Teller.]

Orr-Ewing, L.

Drumalbyn, L.

Penrhyn, L.

Dudley, B.

Portland, D.

Eccles, V.

Rankeillour, L.

Effingham, E.

Reigate, L.

Ellenborough, L.

Renton, L.

Elliot of Harwood, B.

Rochdale, V.

Elton, L.

St. Aldwyn, E.

Ferrers, E.

St. Davids, V.

Ferrier, L.

Sandys, L. [Teller.]

Forester, L.

Selsdon, L.

Fortescue, E.

Sharples, B.

Fraser of Kilmorack, L.

Skelmersdale, L.

Gainford, L.

Somers, L.

Glanusk, L.

Strathclyde, L.

Glenarthur, L.

Strathspey, L.

Greenway, L.

Swinfen, L.

Hailsham of Saint Marylebone, L.

Terrington, L.

Thomas of Swynnerton, L.

Hankey, L.

Trefgarne, L.

Hatherton, L.

Trumpington, B.

Hayter, L.

Tweedsmuir, L.

Henley, L.

Vaux of Harrowden, L.

Hives, L.

Vickers, B.

Hornsby-Smith, B.

Vivian, L.

Hylton-Foster, B.

Westbury, L.

Ilchester, E.

Young, B.

Resolved in the negative, and the amendment to the amendment disagreed to accordingly.
On Question, amendment agreed to.
Clause 12 [Accommodation of young offenders and defaulters etc.]:
4.5 p.m.
Lord Elton Lord Elton moved Amendments Nos. 5, 6 and 7:
Page 11, line 15, at end insert—
("(2A) Subject to subsection (10) below, an offender who has been sentenced to youth custody because the court considered that his detention in a detention centre would be unsuitable because of his mental condition is to be detained in a youth custody centre or in a remand centre as the Secretary of State may from time to time direct unless—

(a) the term of his youth custody sentence is treated by virtue of
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section 67 of the Criminal Justice Act 1967 as reduced to less than 21 days; or

(b) he has been sentenced under section 16(6) below to youth custody for less that 21 days; or

(c) the Secretary of State gives a direction for his detention in a prison under subsection (3) below.")

Page 11, line 20, at end insert ("or (2A)")
Page 11, line 27, after ("(2)") insert ("(2A)").
The noble Lord said: My Lords, I spoke to Amendments Nos. 5, 6 and 7 when I spoke to Amendment No. 1. I beg to move these amendments en bloc.
On Question, amendments agreed to.
Lord Donaldson of Kingsbridge Lord Donaldson of Kingsbridge moved Amendment No. 7A:
Page 12, line 16, after ("or") insert ("(where the offender is aged 17 or over)").
The noble Lord said: My Lords, I have heard through the grapevine that this amendment is likely to be acceptable to the Government. As arguments which are to be agreed to are even less necessary than arguments which are not, I shall say no more than that I am very grateful for the concession, which is an important one. Under Clause 12(8) (b) the Secretary of State:
"may from time to time direct that he (the individual) is to be detained (otherwise than for a temporary purpose) in a remand centre, a youth custody centre or a prison …".
This amendment would make the Bill read:
"…a remand centre, a youth custody centre or, where the offender is aged 17 or over, a prison".
In other words, the purpose of this amendment, which I am delighted is to be agreed to, is that no juvenile under the age of 17 sent to a detention centre for less than 21 days, or for any other period for that matter, will go to a prison if it is administratively necessary to send anybody to prison. I beg to move.
Lord Elton: My Lords, I am happy to confirm to the noble Lord that the grapevine is in this case correct. If it had not been it would have been embarrassing for both of us. On Report we had a valuable debate on amendments tabled by the noble Lord, Lord Hunt, to restrict powers to hold in prisons juveniles—that is, people under the age of 17—who receive sentences of less than 21 days. I undertook to consider all that was said in debate and to see whether there was scope for change. The Government share the view of this House that juveniles should be kept out of prisons if at all possible, and noble Lords will remember that, with that in mind, we had already amended Clause 12 at the Committee stage.
The amendment now before the House would extend the provisions with the effect that, regardless of the length of his sentence, a detention centre trainee could not be held in a prison, except for temporary purposes. I am glad to say that the Government accept this amendment and would like to thank the noble Lords concerned for giving them the opportunity to consider it between Report and Third Reading.
Baroness Masham of Ilton: My Lords, I should like to say how pleased I am that the Government have listened to the House. It looked so stupid to have juvenile courts and magistrates specially trained in

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juvenile matters and then to send juveniles to adult prisons.
On Question, amendment agreed to.
Clause 15 [Release on licence of young offenders]:
Lord Mishcon Lord Mishcon moved Amendment No. 8:
Leave out Clause 15 and insert the following new clause—
("Release on licence of young offenders
.—(1) Subsection (5A) of section 60 of the Criminal Justice Act 1967 shall cease to have effect.
(2) Where a young offender has been released on licence and that licence has expired he remains under the supervision of a probation officer under the terms and for the period specified under section 16 of this Act.")
The noble Lord said: My Lords, I hope that I can be brief upon this, but nevertheless successful, by virtue of this fact. The House has heard, throughout the various stages of this Bill until now, the very definite argument that the parole licence for a young offender should be for the same length of time as that for an adult. The argument has been based on the fact that the present arrangement placed young offenders in a worse position because they remain under licence subject to a recall for a longer period. This has been consistently mooted by many Members of your Lordships' House and as consistently opposed by the Government upon one ground only, which is a substantial one; namely, that it would create inequity between young offenders.
It is hoped that this amendment gets over that objection. It gets over it because a young offender will be on parole licence under this amendment with its special conditions and liability to recall until his remission date in exactly the same way as would an adult, but after that date he would remain on supervision to a probation officer under the normal supervision arrangements for those released otherwise than under licence until the date provided in Clause 16 of the Bill, and that of course is subject to the upper limit of 12 months.
If I may quickly give an example and then sit down, it would be that a young person serving a 24-month sentence released on parole after 12 months would be on parole for four months and then on ordinary supervision for a further eight months. I hope, as I have said, that we have now got rid of the stumbling block in the way of accepting the principle that I think generally commended itself to your Lordships' House and, if I may say so with respect and optimism, I believe in principle also commended itself to the Government.
Lord Elton: My Lords, I set out in Committee and at the Report stage the Government's views on the amendment now forming the first part of this amendment. If the noble Lord had merely moved that amendment once more, the Government would have found it unacceptable. The Government attach considerable importance to the supervision arrangements for young offenders. The period under supervision is an integral part of the sentence, and, as I said at the Committee stage, an offender who has been in custody is likely to be in a vulnerable state and a supervising officer could provide him with both firm guidance and support of a practical kind. The Government have been concerned that no change should be
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made which had the effect of giving to those released on parole a shorter period under supervision than that given to those who are not released on parole. The Government have been particularly concerned about the equity of treatment between these two groups of young offenders.
The second part of this amendment represents what I accept is a sincere attempt to meet the difficulties which have hitherto stood in the way. Its intention is to provide that the liability for recall should end for the young offender at the point two-thirds of the way through the sentence—the remission date—in the same way as for an adult. It then seeks to provide a further period under supervision, as if the offender had been released on supervision under Clause 16 of the Bill. This complicates the provisions. It means that a young offender released on parole may be subject to a change in the terms of his supervision. Frankly, the Government have taken the view that it is simpler to leave the provisions as they are. They are complex enough as it is. But I recognise the importance which the noble Lords opposite attach to this issue. I accept that the parole licence is more rigorous than young offender supervision. I accept, therefore, that there is a case for doing what the noble Lords opposite propose.
As it stands, however, the amendment is defective. It would repeal the whole of subsection (5A) of Section 60 of the Criminal Justice Act 1967, which deals not only with young offenders but also with extended sentences of imprisonment, and provides that in all other cases the parole licence should run until the remission date. More important, the amendment does not make changes which are necessary in relation to Clause 16. As the Bill stands Clauses 15 and 16 are parallel. They make mutually exclusive provision for young offenders released on parole and after the normal period of sentence respectively. The amendment therefore needs to provide that the post-release supervision provisions will apply to young offenders released on parole but only when the parole licence expires.
The House will understand that I have the gravest hesitation in suggesting that we should accept a defective amendment. At this stage of consideration of the Bill, however, that is the only choice we have. I accept that the amendment has merits in principle. I am not convinced that the merits justify the complexity involved. Nor am I sure that we can devise provisions to achieve it. If, however, the noble Lords opposite really wish to press ahead with this change I am prepared to try to assist them. If the House accepts this amendment, defective as it is, the Government are prepared to try to put the matter right when it is considered in another place. I must stress, however, that I can make no promises about achieving this. We will give it serious and urgent consideration in the time available. But I have to give notice that it may be necessary to revert to the provisions in the Bill as it stands. On that basis—and that basis alone—I am prepared, if it is the will of the House, not to obstruct the passage of this amendment.
Lord Mishcon: My Lords, the noble Lord the Minister could not have been more generous, nor could he have used more tolerant terms to describe the defects in the amendment that I have just moved. I am more than happy, if your Lordships are, to accept the

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assurance that has been given. The assurance is merely that favourable consideration will be given to the principle, which is admitted as being the central point of this amendment, when this matter comes before another place. With that assurance, I personally am perfectly prepared to withdraw the amendment.
Several noble Lords: No!
Lord Mishcon: My Lords, there are helpful voices behind me that tell me that, quite apart from my amendment having been faulty in construction, I am now dealing with it in an equally faulty manner to achieve the object that I want. As I understand it, in these circumstances at Third Reading I do not withdraw the amendment but with intensified courage now put the amendment, if I may, to your Lordships' House.
On Question, amendment agreed to.
Clause 21 [Requirements in supervision orders]
4.17 p.m.
Baroness David Baroness David moved Amendment No. 9:
Page 22, line 4, leave out ("6 p.m.") and insert ("9 p.m.").
The noble Baroness said: My Lords, it will be remembered that when the Government introduced the curfew provision at Report stage there was a good deal of anxiety about it and many people expressed reservations about it. I realise that we can do nothing now to get rid of the curfew clause, but what we are going to try to do in this amendment is to improve it. The Bill's provision requires that a young offender must be at home, or at whatever place is specified in the order, by six o'clock, and the amendment would change that to nine o'clock.
The Bill's provision has been widely criticised by organisations working with young offenders who regard it as full of practical difficulties. This amendment is an attempt to make it more workable. If a supervisor is to enforce a requirement of a supervision order effectively he must not feel that its enforcement would be either impracticable or unreasonable. If he does feel this, there is a danger that he may enforce it in a half-hearted manner, that he may not be inclined to breach a juvenile who does not comply with the requirement, or, if he considered the requirement impracticable, that he may make no serious attempt to implement it. If this happened in even a limited number of cases it would seriously undermine magistrates' confidence in the ability of probation officers and social workers to provide effective supervision and control of young offenders in the community.
The likely difficulty of enforcement was referred to in the comments of the National Association of Probation Officers on the proposal, contained in a letter from Mrs. Allan to Mr. Richard Fries of the Home Office dated 7th June 1982:
"… there could be no possibility of the Probation Service and Social Services Departments carrying out this kind of checking within present resources and the scheme would necessitate a considerable increase in staffing … We are concerned that in practice the impossibility of consistent enforcement would lead to repeated breaches, that would have the effect of undermining the credibility and authority of both courts and supervisors in the eyes of the juvenile".
Mr. Roy Bailey, Secretary of the Central Council of Probation and After-Care Committees, wrote to Mr. Fries in a similar vein. Similar points have been made by the Association of Directors of Social Services, the Association of Metropolitan Authorities, the Conference of Chief Probation Officers and NACRO. The amendment, by reducing the number of hours for which a court could require a young offender to stay at home in the evening, would make the enforcement of curfew requirements slightly less problematical and would reduce the resource demands to some extent.
There is a serious danger that curfew conditions which required a young person to stay at home from as early as 6 p.m. would create great difficulties in families. Such requirements would also be oppressive on parents. If they are to make a serious attempt to ensure that their children abide by the curfew conditions, it could require them to stay at home from 6 p.m. onwards. A single parent in this position would be unable to go out in the evening, and where there were two parents they could not go out together. Moreover, where a child subject to a curfew condition is late home, the parents will be placed in the invidious position of either having to "shop" their child or connive at a breach of a court order. All such potential problems would be lessened if the time after which the young person was required to stay at home was more realistic, as the amendment proposes. I repeat that the people who will have to work this system are extremely worried about it, and I therefore hope the Government will accept this extremely simple amendment.
Baroness Faithfull: My Lords, I am in a real dilemma over the amendment, in that, while I prefer what the noble Baroness, Lady David, has proposed to what is in the Bill, for the reasons she gave, I much prefer the amendment which stands in the name of the noble Lord, Lord Wigoder, and which we shall be discussing later. That being the case, I hardly know what to say because while, in a way, I do not agree with the Government, I do not agree with the amendment, and I am anxious to speak in support of Lord Wigoder's amendment. Nevertheless, I have a few practical points to make at this stage.
Coming from a city like Oxford, where I dealt with a number of juvenile offenders and children who were deprived of a normal home life, I found that one way of helping them was, when they left school at 15, to get them a job in one of the colleges. The Oxford colleges are very liberal, kind and understanding and I found that such efforts were most successful and that the young persons were well supported. Nevertheless, as the noble Lord, Lord Redcliffe-Maud, well knows, Oxford dines at very early hours, and as things have to be cleared away, young persons doing such work do not get away for some time.
That presented a dilemma. If two boys appear before the court together, having committed an offence together, and the magistrates want to impose a curfew on the two boys, they will not place a curfew on one because, if they do, he will lose his job—because he will not be able to carry out the work he is doing—and at this time of unemployment he will probably not get another job. On the other hand, the

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other boy, who may be doing a day job or perhaps be out of work, may be given a curfew. To the two boys it will represent an inequitable position. I am therefore in great difficulty over the issue. Although the House has accepted the curfew principle, I do not like it. However, I feel equally that I cannot support the amendment, in view of my hope of supporting the amendment standing in the name of the noble Lord, Lord Wigoder, at a later stage.
Lord Avebury: My Lords, I agree with those remarks of the noble Baroness, Lady Faithfull, but the noble Baroness, Lady David, having moved the amendment, I am provided with an opportunity of repeating a question which I put to the noble Lord, Lord Elton, at an earlier stage but which, I fear, he did not answer at the time. I refer to the important question of what parents are supposed to do when there has been a breach of an order. I put that question to the Minister on 19th July at column 679 and, although he made a speech later in that debate, he must have forgotten, by the time he came to make it, the question I had asked him. It is an important point because the courts will make a night restriction order only if they are satisfied that the relationship between the young person and the parents is such that there is a reasonable chance of it being observed, and both the parents and child must agree that a restriction order shall be imposed.
What does the Minister think a parent will do when, having given such an undertaking to the courts in good faith, it turns out that the child does not have the willpower to observe the terms and conditions that have been imposed? Say the child goes out one evening to a disco and the supervising officer does not notice; obviously he or she cannot be there every single evening, despite the assurances the noble Lord gave in the debate to which I referred about the resources which would be made available for the supervision of young persons subject to night restriction orders. The following morning, does the parent go to the supervising officer and sneak on the child, reporting the child for having breached the conditions? If so, what does the noble Lord think that will do to the relationship between the child and its parents, which by definition is good, otherwise the order would not have been imposed? This is an important question and we should know the answer to it before leaving the question of night restriction orders for ever.
Lord Donaldson of Kingsbridge: I was a little puzzled by the remarks of the noble Baroness, Lady Faithfull, because the two amendments are in no way inconsistent. The second amendment limits the times at which any sort of restriction order can he put on. The first, on the other hand, alters the sort of restriction order which can be imposed. The two are entirely consistent, so I suggest that all those who are against the general principle should vote for both of them.
Baroness Masham of Ilton: My Lords, I suggest that inserting nine o'clock would make the system even more difficult to work, and I speak as one who has two teenage children. Once they go out after their evening meal, there is great difficulty getting them home again, bearing in mind the various distractions such as discos and space invader machines. Indeed, I assure the
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House that these machines represent a terrible problem today. Children are becoming infatuated and hypnotised by them and are not only spending all their money on them but are stealing in order to get more money to work the machines. Once they have left the house after their evening meal, it will be impossible to get them back by nine o'clock, so I believe the amendment to be impracticable.
Lord Elton: My Lords, I am obliged to the noble Baroness, Lady Masham, for that practical intervention, because it underlines one of my own views on the amendment. On Report, your Lordships accepted, after a substantial and serious debate, the Government's proposals for a night restriction requirement as part of the supervision order; the detailed provisions are set out in Clause 21. Opinions were divided, but the House made its decision, and therefore I do not think I should address myself too much to the question of the principle of whether or not night supervision orders are a good thing. I have a copy of a letter to which the noble Lord, Lord Donaldson, referred on the last occasion and to which the noble Baroness, Lady David, referred this time, though I find in it support for what I propose. She mentioned many others.
I shall address myself to the details of the amendment as it touches on one of the main provisions of the proposed power; namely its time limits. Any time limits tend to be more or less arbitrary. Some organisations have suggested that there should be no limits to the times during which the restriction might be imposed. That would leave it entirely to the good sense of the courts to decide what was appropriate. Subsection (3A) sets a limit of 10 hours on any one night. That is designed to ensure that the restriction is not excessive. One side-effect of the amendment is that it would reduce the total time to nine hours on any one night, and that incidentally would make it necessary to have a consequential amendment to subsection (3J), which, so far as I can see, does not appear on the Order Paper.
The Government are not attracted to the proposed change. It is not so much the reduction in the total number of hours which is involved as the removal of the possibility of restriction between 6 and 9 p.m., which would, we think, be a loss. That early evening period may be just the time when a youngster may be in the greatest danger of causing trouble, and as the noble Baroness, Lady Masham of Ilton, has said, in her experience it is exactly when children have been fed and fuelled for the evening and feel best able to support themselves in the exciting environment outside the home which represents so many dangers to them.
Of course, the restriction should not preclude a youngster from participating in constructive activities. There may be after-school activities. He may be attending a youth club. He may be involved even in intermediate treatment activities. Those should not be prevented by the night restriction requirement. But in our view the correct approach is not to reduce the possible hours of restriction set out in the statute. The right approach is to take each case on its merits, and that is something that noble Lords and noble Baronesses in this House cannot possibly do. After all, we are concerned with youngsters before the courts for

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an offence, and the courts will have to consider what are the youngster's circumstances and what is his home background. They will have to rehearse those circumstances, whether they are such as my noble friend Lady Faithfull has rehearsed, or whether they are such as the noble Baroness, Lady Masham, has rehearsed, and indeed as everybody who has spoken has rehearsed.
I do not think that it would be seen as gravely unjust that a young person should be allowed out to work at the sacred table at which the noble Lord, Lord Redcliffe-Maud, takes his ease of an evening, early though it may start; the noble Baroness said nothing about when it might finish. His colleague who was given work at some other time of the day would not, I think, find it unjust that that should be so, that he should be restricted.
Before the question of a night restriction requirement arises the court will first have to decide whether a supervision order is right. Having made that decision, it is then open to it to consider whether the addition of a night restriction requirement is feasible and constructive. Among the many factors that the court will have to take into account in reaching that decision is the pattern of the youngster's activities. It will have to take into account what constructive commitments he already has, and in particular whether or not they legitimately involve leaving home in the evening. I could go on elaborating that aspect of things, but I think that I have made the point. Accordingly, it is the Government's view that the courts, in consultation with the supervisors, should be allowed to use their good sense within the hours which Clause 21 already provides.
The noble Lord, Lord Avebury, quite correctly chides me for not only having failed to refer to one of his questions at an earlier stage, but having subsequently not written to him. I apologise for the fact that my trawl through Hansard afterwards did not bring up the point. He asks what should parents do if there has been a breach of the order. Well, of course, it will depend very much on the parents, but so far as the law is concerned, the parents will have consented to the curfew, because under subsection (3G)(a) they are persons whose co-operation is needed, but the fact is that they are not themselves in any way bound by the order or under a legal obligation to enforce it. So it really is up to them to decide how best to handle the child, whom presumably they, of all people, know best. Therefore, I hope that your Lordships will not see fit to accept the amendment.
Lord Avebury: My Lords, does the noble Lord agree that the parents themselves are not under any duty to the court to report the absence from home of the child during the hours when the night restriction order is in force?
Lord Elton: My Lords, they are perfectly free to do so, but a discretion remains with the supervisor as to what action he then takes. No doubt he will consider his action in the light of the youngster's general conduct in respect of the supervision order. But as I understand it—
Lord Harris of Greenwich: Lords, may I ask the noble Lord —
Lord Elton: My Lords, I shall sit down if the noble Lord will allow me to do so.
Lord Harris of Greenwich: My Lords, I shall gladly give way to the noble Lord to allow him to resume his seat. With great respect, the answer that he has given is totally unintelligible. Having listened to the answer that he has just given, to me it is wholly unclear what is the parent's duty so far as the supervision is concerned. Is the duty none whatever, under any circumstances?
Lord Elton: My Lords, it is exactly as the noble Lord has said, and as I have said. I am sorry if I said it unintelligibly. The parents have consented to the order, but they are under no obligation under it to "split" on the child. That is what 1 would think the noble Lord would hope was the case. It is certainly what I think.
Baroness David: My Lords, I should like to thank all noble Lords and noble Baronesses who have spoken. Like the noble Lord, Lord Donaldson of Kingsbridge, I could not quite understand why the noble Baroness, Lady Faithfull, could not accept both this amendment and the next amendment, that the noble Lord, Lord Wigoder, will shortly be moving. I also did not quite understand the point made by the noble Baroness, Lady Masham of Ilton, when she said that children might go out after an evening meal. They might not even come in for the evening meal. They might be out all the time, and it might be difficult to get them in by six o'clock.
However, I have listened carefully to what the Minister and everybody else have said, and I think that I should probably be wise to withdraw the amendment and wait to give my support to the amendment of the noble Lord, Lord Wigoder, which no doubt he will be moving. So I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
4.35 p.m.
Lord Wigoder Lord Wigoder moved Amendment No. 10:
Page 23, line 25, at end insert—
("(3P) A court shall not impose a night restriction in respect of any offender unless the court has been notified by the Secretary of State that arrangements exist for persons who reside in the petty sessions area in which the offender resides or will reside for the supervision of such night restrictions.")
The noble Lord said: My Lords, I think it unlikely that there will ever be a young man who, on leaving court, will say to his friends that he got away with a night restriction requirement, and I very much doubt whether the phrase will survive the coming into law of the Bill. It is not unfair to say that as a concept it arose quite ex improviso in the course of the debates in another place on the Bill, and indeed as your Lordships know, it came into the Bill for the first time only as late as Report stage in your Lordships' House. I mean it as no criticism, but merely as a statement of fact when I say that it is a form of order that has not been researched with the thoroughness and the care that are usually devoted to new forms of sentence or new forms of treatment. It is because of that fact that it seemed to some of us that it might be helpful to give to the Secretary of State the power to introduce the

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order not immediately on a nation-wide basis but in such areas as he may from time to time think fit.
The wording of the amendment is taken from Section 14(2) of the Powers of Criminal Courts Act 1973, where community service orders were introduced for the first time. The power was there given to the Secretary of State to introduce them by area, so that careful monitoring could be carried out as to how the orders were working, how effective they were, what were the consequences, and, in particular, what were the resource implications. It seemed to some of us that, though perhaps the present amendment is not quite as grammatical as the original section of the 1973 Act, in the circumstances it might be desirable that the Secretary of State should proceed in a similar way with this new proposal.
During Report stage it became clear that almost every organisation that is concerned with the treatment of young offenders had very grave anxieties about the way in which the proposed orders would operate. There were anxieties about the relationship that might result between probation officers and social workers and the juvenile whom they were supervising. There were anxieties as to what additional resources might be required in order to ensure that there was effective supervision in the course of evenings where obviously present resources would be quite inadequate. There were anxieties as to whether in practice the forms of order would turn out to be totally unenforceable. As has already been mentioned on the previous amendment, there were anxieties as to what might be the effect on the relations between parents and children. All those matters were raised with considerable support from almost ever responsible organisation that has considered the problem.
I am not an opponent of the night restriction requirement; I am an agnostic. I do not know how it will work. I suspect that there will be serious problems. I suspect that there might be major resource implications, and it seems that it might be helpful if the Secretary of State had power to introduce the requirement in places such as, for example. Birmingham or Liverpool, and to monitor very carefully how it works, look at the results, and see what are the implications before extending it further. It is entirely with a desire to be constructive and helpful, therefore, that I move this amendment. I beg to move.
Lord Harris of Greenwich: My Lords, I rise to support what my noble friend Lord Wigoder has just said. Private Members, both in this House and in another place, often come forward with sensible ideas, and sometimes they come forward with less than sensible ideas. I think one is bound to acknowledge, in the light of the response that there has been to the inquiries made by the Home Office, that this is one of the less attractive ideas that has been put before Parliament during the discussion on this particular Bill. Rather like my noble friend Lord Wigoder, I began as something of an agnostic on this question. I cannot pretend that I had a very strong view on the matter when we began to discuss this: but the more one looked into it the more one was persuaded that, at the very best, this idea required a great deal of work done within some areas on an experimental basis.
I think the Government have to acknowledge that
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there have been very few occasions (certainly none when I was a Minister at the Home Office, and certainly none that I can recall in the last 10 years) on which any provisions have met with such almost unanimous opposition from virtually every organisation that has been consulted—on this occasion, with one exception. The exception is the Magistrates' Association. But, as the Minister is well aware, a very large number of magistrates, particularly those with experience in the juvenile courts, most strongly disagree with the view of the Magistrates' Association on this matter. Every other organisation is most firmly and resolutely opposed to it.
In that situation, it seems to me wholly reasonable, for two reasons, for the Government to look seriously at what my noble friend Lord Wigoder has proposed in this amendment. First, if there is anything in this idea, would it not be more sensible to have it tested out in one or two areas in this country, such as Birmingham, in terms of an urban area, and in one of the rural areas? So far as community service is concerned, I think it was tested out in six probation and after-care areas, including inner London. I cannot see any special reason why this should not be done in this particular case. The Government would then be able to extend it to the rest of the country if it was disclosed, as a result of an analysis of the orders made, that it worked.
My Lords, if the Government are resisting this approach, I hope the Minister is going to give us some clear indication as to why, in view of, first, the point that I have made already—namely, that there is this great volume of opposition, of which the Government have to take account, I should have hoped—and, secondly, the resource implication. If this matter is going to be taken seriously by the probation service there will undoubtedly be some quite significant resource implications. In that situation, given the fact that the Government are holding down the rise in the size of the probation service, it seems to me reasonable to do this on an area-by-area basis. The matter could then be evaluated, and, if it was disclosed that the experiment had been a success, then the Government could quite easily extend it to the rest of the country. That seems to me a reasonable proposal, and I very much hope that the noble Lord, Lord Elton, will now rise from his place and indicate that the Government, notwithstanding their support in principle for this proposal, will in fact accept the amendment proposed by my noble friend Lord Wigoder.
Baroness Masham of Ilton: My Lords. I should like to say that some mothers are absolutely exasperated with the behaviour of their children when they go out and drink though under age, when they glue-sniff and when they do all sorts of other things, and these mothers might welcome (indeed, I am sure will welcome) the curfew, because at least it is an alternative to custody, which everybody has been seeking. I agree it is useful to experiment to see whether or not it works, but I would certainly hope that it would be tried in more than two places. Coming from a rural area, I think it would be much easier to experiment in a rural area because the people are known, the pubs are known and everything is much smaller. I think that sometimes the parents are the last people who are able to express their view, and I know personally, because

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I have friends who have teenage children, some who might welcome this.
Baroness Faithfull: My Lords, during my working life I have been privileged to work in Birmingham and in two London boroughs, and also in Devon and Cornwall, Nottinghamshire, Derbyshire and Leicestershire. Conditions in all those places are very different. If you are in Devon or Cornwall—and, indeed, Hertfordshire, which is the county where this originated—it might be possible to implement a night restriction order, even if it were very unpopular, simply because if you live in a house with a garden or you live on a farm, or if you live in an area where it is quite possible to stay in, that is one position. It is quite a different position if you live in a high-rise flat in a London borough, in a family with perhaps four children, or possibly where yours is a single-parent family. In that case it is quite a different matter for a parent to enforce a curfew, a night restriction order.
I therefore support this amendment, but if this amendment is accepted—and here I agree with the noble Baroness, Lady Masham—I hope it will be tried in different types of area. It should be tried in a well-heeled county like Hertfordshire; it should be tried in, perhaps, Devon and Derbyshire; it should also be tried in, perhaps, Birmingham, or one or two of the most difficult London boroughs. I support this amendment, but I hope the experiment will be tried in more than one place and that it will be tried in different types of place.
This argument also applies to the whole question of resources and staffing. There are some areas where the problems are so serious and so great that the staff both of the personal social services departments and of the probation service are very hard pressed. There are other areas where the staff are not so hard pressed. For this reason, I would wish that the Government might accept this amendment, hoping that the resource question will also be investigated in different types of area.
Baroness David: My Lords, I should like to add my support to this amendment. The feelings of those of us on these Benches about the night restriction order are, I think, known, and this amendment would certainly mean an improvement to it. I agree very much with what the noble Baroness, Lady Faithfull, has said, and I hope that this will be accepted and that it will be tried in a number of really very different areas. I hope the Minister will also remember the resource implications.
Lord Elton: My Lords, I am obliged to noble Lords for their useful contributions to this debate. We have heard two agnostics, three infidels and one person of sound religion, so far as I can work out the analogy which we appear to be using. I am entirely orthodox in this matter. I understand that there are really two legs on which the noble Lord's amendment stands. One of them is what I call the resources leg (and there is an analogy here, is there not, with community service orders?); that is, that it might not for resource reasons be possible to implement the provision at the same time in different areas. But the resource reasons are extremely limited. It will of course depend from area to area upon the extent of enforcement and, indeed,
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upon the extent to which the orders themselves are used. It is not likely to be a substantial part of the additional commitment which the strengthened supervision order provisions will, together, involve.
That said, we would hope that Clauses 21 to 23 could be brought into operation in about April 1983. But I do not think it is a question of resources, really, because there is no necessary physical provision for this. One does not have to build the home in which the young person is going to be required to be for however many hours on however many nights. It is more a question of personnel and organisation.
That brings me to the second leg of the amendment, as I understand it, and that has attracted more interest from many of your Lordships. That is the experimental approach which is enjoined upon us. There does not seem to me to be a case for the piecemeal introduction of the night restriction requirement solely in order to enable it to be monitored in selected areas. Proper assessment will take quite some time, and we are anxious to make this new power available to the courts at the same time as the other changes in the powers relating to juveniles. There will have to be a period of preparation for all these powers while guidance is prepared for the courts and the supervising services and, particularly in relation to the residential care order, resources are made available.
It could be argued for any of the controversial proposals like the residential care order that it should be tried out experimentally first. In the case of the night restriction requirement (as for the other supervision order requirements), the provision for cooperation and consultation between courts and supervisors is, we think, a better way of monitoring the effectiveness and feasibility of the new provisions. Even those who advise experimentation advise it on an extremely wide front, so that it would be approaching the general in its application by the time one had chosen enough areas with different characteristics.
As some noble Lords have reverted again and again to the general principle and have actually prayed it in aid here—noble Lords have said that it is because there is universal opposition by everybody to a night restriction order among all the groups consulted except the magistrates and have adduced that as a reason for softening its impact in some way—I think that I ought to say I have a letter from NACRO to which the noble Lord alluded in an earlier debate and to which I think, by implication, the noble Baronesses referred as being among a batch of supporting letters. It says—and I concede that it says—
"It continues to be our view that such a measure as a curfew is unlikely to be appropriate for more than a very small minority of young people. However, there could be cases where, after consultation with the supervisor, the court, the parent and the child, some element of a curfew seems likely to be a helpful part of a wider package of positive and constructive activities carried out under a supervision order. We would support the proposal to make this possible."
I thought that, as, by implication, that view has been denied, I ought to put it on record. I do not like quoting from correspondence like this; nor do I rest my case on that. I believe that what we propose is right. I think it ought to be generally available to courts as part of the complete spectrum of powers that we are now giving them and that it is up to the courts and those who advise them and those who supervise

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between them to carry out their own monitoring exercise and use the power with the good sense which your Lordships just occasionally are not sufficiently willing to attribute to them.
Lord Wigoder: My Lords, I am grateful to those Members of your Lordships' House who supported the amendment. I do not think that it can be seriously disputed that the proposal does have or may have resource implications. It is bound to require probation officers and social workers to work longer hours or, alternatively, that more of them work than are employed at the moment. I venture to think that the Minister would agree that serious doubts have been expressed about the effectiveness of the order and that so far very, very little real research has gone into the whole concept.
Having said that, I go on to say that I can see very little point in my seeking to divide the House on this issue, confident though I should be of a very large majority were Ito do so. I say that because there seems to me to be not much purpose in enforcing upon the Secretary of State a discretionary power which it appears from what the noble Lord, Lord Elton, has said he would have no intention of exercising even if we were to grant it to him. I hope that the noble Lord, Lord Elton, will agree that what has been said is perhaps worthy of a little further consideration.
Clause 21 of the Bill still has to go back in its entirety to the other place because it is an amendment to the Bill as it came here. There is an opportunity, therefore, for it to be considered there if the Government think it appropriate. No doubt also in due course the Government will want to issue a circular offering guidance as to how the new order should be used and in what circumstances. I hope that the noble Lord will recognise from what has been said today that there might be a good deal to be urged in favour of asking courts when they are considering this new power to hasten slowly and to consider very carefully the effectiveness and the implications before proceeding to make these orders on a large scale. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 23 [Charge and control of offenders]:
4.55 p.m.
Baroness Faithfull Baroness Faithfull moved Amendment No. 11:
Page 27, line 17, after ("that") insert ("it is appropriate to exercise those powers because of the seriousness of the offence and that").
The noble Baroness said: My Lords, throughout the passage of this Bill I have opposed the residential care order clause. However, this has passed through your Lordships' House and this small amendment seeks to mitigate the damage which I feel may have been done or may be done by the residential care order. This amendment seeks to ensure that the powers to make a residential care order are exercised only because of the seriousness of an offence.
In a letter of 26th August of this year, the noble Lord, Lord Elton, made the following comment:
"The Government's own preference would be to leave it to the good sense and discretion of the courts to decide when custody can only be avoided by adding the charge and control conditions. We shall not therefore be bringing forward any amendment of our own,
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but we see no difficulty about the wording of the amendment which you propose and will not stand in the way of it.".
I will not waste the time of the House in going through all the arguments knowing, having received this letter, that the Government will accept this amendment. I beg to move.
Lord Elton: My Lords, my noble friend Lady Faithfull has obligingly made the speech which I should have made and which I could scarcely have made shorter.
On Question, amendment agreed to.
The Parliamentary Under-Secretary of State, Department of Health and Social Security (Lord Trefgarne)The Parliamentary Under-Secretary of State, Department of Health and Social Security (Lord Trefgarne) moved Amendment No. 12:
After Clause 25, insert the following new clause:
("Restriction of liberty of children in care.
.—(1) The following section shall be inserted after section 21 of the Child Care Act 1980—
"Use accommodation for restricting liberty.
21A.—(1) Subject to regulations under subsection (2) (a) below, a child in the care of a local authority may not be placed, and, if placed, may not be kept, in accommodation provided for the purpose of restricting liberty unless it appears—

(a) that—

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

(ii) if he absconds it is likely that his physical, mental or moral welfare will be at risk: or

(b) that if he is kept in any other description of accommodation he is likely to injure himself or other persons.

(2) The Secretary of State may by regulations—

(a) specify—

(i) exceptional cases where subsection (1) above is not to apply to children committed to the care of a local authority under section 23 of the Children and Young Persons Act 1969;

(ii) a maximum period beyond which a child may not be kept in accommodation provided for the purpose of restricting liberty without the authority of a justice of the peace;

(iii) a maximum period beyond which a child may not be kept in such accommodation without the authority of a juvenile court; and

(iv) a maximum period for which a juvenile court may authorise a child to be kept in such accommodation;

(b) empower a juvenile court from time to time to authorise a child to be kept in such accommodation for such further period as the regulations may specify; and

(c) provide that the power conferred by virtue of paragraph (b) above shall be exercisable on the application of the local authority in whose care the child is.

(3) It shall be the duty of a justice of the peace before whom a child is brought by virtue of this section to determine whether the criteria for keeping a child in accommodation provided for the purpose of restricting liberty are satisfied in his case; and if a justice determines that the criteria are satisfied, he shall make an order authorising the child to be kept in such accommodation until he is brought before a juvenile court.
(4) It shall be the duty of a juvenile court before which a child is brought by virtue of this section to determine whether the criteria for keeping a child in accommodation provided for the purpose of restricting liberty are satisfied in his case; and if a court determines that the criteria are satisfied, it shall make an order authorising the child to be kept in such accommodation and specifying the maximum period for which he may be so kept.
(5) On any adjournment of a hearing under subsection (3) or (4) above a justice of the peace or a juvenile court may make an interim order permitting the keeping of the child to whom the hearing relates during the period of the

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adjournment in accommodation provided for the purpose of restricting liberty.
(6) An appeal shall lie to the Crown Court from a decision of a juvenile court under this section.
(7) A juvenile court shall not exercise the powers conferred by this section in respect of a child who is not legally represented in that court unless either—

(a) he applied for legal aid and the application was refused on the ground that it did not appear 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) In the Legal Aid Act 1974—

(a) in section 28(3)(a) and (6), after "1969" there shall be inserted "or under section 21A of the Child Care Act 1980"; and

(b) at the end of section 29(1) (d) there shall be inserted "or (e) where a child is brought before a juvenile court under section 21A of the Child Care Act 1980 and is not (but wishes to be) legally represented before that court."."

Lord Trefgarne: My Lords, on behalf of my noble friend Lord Elton, I rise to move Amendment No. 12 in his name. During the Committee and Report stages of this Bill, your Lordships expressed considerable concern that our present arrangements for reviewing the placement of children in secure accommodation might be in breach of the European Convention on Human Rights. At Report, I outlined the Government's draft proposals for revising the arrangements for the use of secure accommodation, and undertook to consult relevant organisations on them. It did not seem likely that we would be able to bring forward a considered scheme in time to be included in this Bill, and I therefore gave the House a firm commitment to seek an early legislative opportunity to introduce proposals taking the consultation fully into account.
In the event, my assessment has proved correct, I am sure your Lordships will appreciate that we would not want to provide in legislation for a detailed scheme before we have received the views of the relevant organisations, especially since it already appears from comments that we have received so far that we will wish to make certain amendments to the draft scheme that I outlined to your Lordships. We think it important to take full account of the views of the relevant bodies so that we can ensure that the arrangements are seen to be feasible and acceptable to the agencies that will be concerned with their implementation. However, I am happy to be able to bring forward this new clause, which gives clear legislative expression to the Government's intentions in this matter. As your Lordships will note, the new clause sets out the framework for new arrangements which manifestly meet the requirements for such a scheme, while leaving it open to provide details in regulations. Our intention is to await the responses of all those bodies we have consulted and to settle these details in the light of the views expressed.
I should like to explain the effect of the amendment. Subsection (1) introduces criteria which will need to be met before a child in care may be placed in secure accommodation or kept there. There are two criteria, and only one will need to be satisfied. The second is the more straightforward, which is that the child is likely, if he is kept in any other description of accommodation, to injure himself or other persons. I think that your Lordships have always agreed that the main purpose of secure accommodation is to provide a safe
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environment for the care of those children who are at risk of assaulting and injuring one another or who are at risk of self mutilation or suicide.
The other criterion has to do with absconding. We have felt it necessary to retain an absconding criterion because there are a number of children who place themselves seriously at risk by absconding, but who are not likely actually to injure themselves or other people. On the other hand, we do not think it right that children should be liable for placement in security merely because they abscond, where their absconding is not associated with serious risk; there are children who absent themselves from a community home for a few hours to go down to the shops and then come back again, and there are children who have a tendency to go back home. Secure accommodation is not appropriate for children like them. We are therefore proposing in effect three conditions all of which must be met before a child becomes liable for placement in security on grounds of absconding. The first is that he has a history of absconding (this condition is the result of an earlier intervention by the noble Lord, Lord Donaldson of Kingsbridge, for which I am grateful). The second is that he is likely to abscond from any other description of accommodation. And the third is that if he absconds it is likely that his physical mental or moral welfare will be at risk. We think that a combination of these three conditions will ensure that, as regards absconders, only those children who need security will be liable for placement in secure accommodation.
The children we have in mind are those who would be likely to live rough, with all the physical and psychological dangers that that implies, or to drift towards unsatisfactory neighbourhoods where there is a risk of their being exploited, for example, for prostitution or organised crime. Noble Lords will have appreciated that the criteria included in this amendment are different from those that were originally included in Clause 26. The strengthening of the absconding criterion is one example. Another is that the criterion relating to damaging or taking other persons' property has been omitted, and I should like to tell your Lordships a little of the history of that criterion.
We always intended that children remanded to care charged with serious offences should be liable for placement in secure accommodation. However, in seeking to express this intention in legislative terms we experienced some difficulty over drafting a definition of what constituted a serious offence. This was how the criterion came to be expressed as "likely to damage or take other persons' property".
The noble Lord, Lord Donaldson, during an earlier debate pointed out that thus expressed the criterion would permit the placement in security of any child with a history of the most minor acts of vandalism or the most trivial thefts. That was not our intention, and I gave the noble Lord an undertaking that we would ensure that his concern was taken into account. Our considered view is that the criterion should be omitted altogether. The most serious of crimes are those which involve injury to other people, and children likely to commit these are specifically covered by the criteria included in the amendment.
Children remanded to care charged with serious

719
offences will be covered under new subsection (2)(a)(1). And it is our view that children likely to commit other crimes should be liable for secure placement only if they also meet the other criteria included in the amendment. Those criteria, as your Lordships will be aware, are that they are likely to injure themselves or to abscond in circumstances that place their physical, mental or moral welfare at risk. I should perhaps remind your Lordships that placement in secure accommodation is not a punishment, or a sort of custodial sentence for children who have committed serious crimes; its purpose is to provide an environment where disturbed and dangerous children can receive specialised care.
The third difference between the criteria in the new clause and those in the previous Clause 26 is that the criteria are now appearing in primary legislation rather than appearing as matters that may be the subject of the Secretary of State's regulation making powers. I think it has all along been the wish of many of your Lordships that this should he so, and I agree that it is more satisfactory that matters that will need to be considered by the courts in the context of deciding on the restriction of liberty should be introduced in this way.
I move now to subsection (2). This subsection empowers the Secretary of State to make regulations filling in a number of details in the new arrangements which will be decided in the light of views expressed as a result of the consultation exercise to which I referred earlier. The first part of this subsection allows for regulations to be made which would disapply the criteria to children who have been remanded to care. I referred to this group earlier, and explained that special arrangements are needed for them that are different from those that apply to other children in care. There are two reasons for this. The first is that the local authority may know nothing at all about a particular child until he is remanded to their care, so that they are not able to make an informed assessment as to whether or not he needs to be accommodated in security; and the other is the local authority's obligations in regard to his absconding are somewhat different. As well as needing to have regard to his welfare, the local authority also has a responsibility to present him at court as required.
The remainder of subsection (2) is to do with periods of time, and empowers the Secretary of State to fill in the details of the new arrangements by means of regulations. Subsections (3) and (4) specify the duties that the justice of the peace and the juvenile courts will have to perform; namely, those of satisfying themselves that the criteria are met in the case of an individual child in care and, if so satisfied, making an order permitting the local authority to continue his placement in secure accommodation. Subsection (5) permits the making of interim orders where adjournments are necessary, and subsection (6) introduces the right of appeal to the Crown Court. Subsection (7) requires that the child be legally represented at the juvenile court subject to the same exemptions as in the case of the residential care order. The amendments introduced by Clause 21A(2) are consequential.
I note that one of the amendments tabled by the noble Baroness, Lady David, seeks to delete those
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parts of the Government amendment that are concerned with ex parte applications to a justice of the peace. The noble Baroness will no doubt be aware that the proposed arrangements that we circulated for comment in August did include a requirement for such as ex parte application, but I should add that this aspect of our proposals has met with some opposition. Should the Government come to the view that ex parte applications are undesirable, no use will be made of these provisions. I am hoping that the noble Baroness will agree not to press her amendment when we reach it. Retaining these provisions enables us to retain flexibility, but does not oblige us to make use of them in the event of ex parte applications being considered undesirable.
I apologise to the House for having spoken at length on this amendment. I hope that your Lordships will appreciate that this is a totally new provision which provides the legislative framework for a significant change to existing arrangements, intended to ensure that we are in line with the requirements of the European Convention on Human Rights. I beg to move.
The Deputy Speaker (Lord Murton of Lindisfarne): My Lords, before I put the Question for the first time, I think I am right that, by leave of the House, it is agreed that Amendments Nos. 13 to 25 inclusive and Amendments Nos. 27, 120 and 121 should be taken with this amendment. Amendment No. 12 has been moved to insert the new clause as printed on the Marshalled List. As an amendment to Amendment No. 12, Amendment No. 13 is moved by the noble Baroness, Lady David.
5.10 p.m.
Baroness David Baroness David moved Amendment No. 13 as an amendment to Amendment No. 12:
Leave out subsection (1)(a) of the inserted section 21A.
The noble Baroness said: My Lords, I should like to thank the Minister for his very full explanation of the new clause which is Amendment No. 12. May I also say how glad I am that the Government have moved this far as a result of what was said at Committee and Report stages. We have come a long way since we first raised the question of the European Convention and the breach of those rules; but this Third Reading is our last chance to persuade the Government to change their proposals so that they provide proper safeguards in line with the European Convention on Human Rights in respect of young children who are locked up within the child care system.
It is for this reason that I shall be moving Amendments 13 to 22 to the new clause, and we hope that they will be accepted and will make it a more satisfactory clause which is more in line with the European Convention. I shall speak to all those 10 amendments together because I think it is the best way of dealing with them. The House will be pleased to hear that I shall not be moving Amendments 23, 24 and 27, which were put down by us before the Government's new clause was tabled. It was tabled only on Friday, so it has been difficult to get this dealt with in the short space of time available.
To come to the matter, the Goverment's new clause does two things. It provides criteria to limit who can be

721
placed in secure accommodation and it allows the Secretary of State to issue regulations on arrangements for judicial review of a decision to place a child in secure accommodation. These proposals follow the Government's acceptance of our claim made at Committee and Report stages that present procedures permit children in care, most of whom have not committed any offence, to be locked up in secure units for indefinite periods at the discretion of their care authority and with no judicial review. We claim that this is in breach of Article 5.4 of the European Convention on Human Rights.
Lord Trefgarne: My Lords, I do apologise for interrupting, but this is rather an important point and I hope I have the leave of the House to do so. We never accepted that our arrangements were in breach of the European Convention. That would be much further than we ever went, but we did agree that there was some room for doubt and it was to resolve that doubt that I have brought forward this amendment today.
Baroness David: My Lords, I apologise if I have misrepresented the Minister. I think the Government admitted the possibility that there was a risk of being in breach over that, and I am sorry if I went a little too far. The Government figures themselves have revealed that as many as 2,000 young people in care may be detained in this way for varying periods in the course of a year. There is no younger age limit and the Children's Legal Centre, in their survey, revealed that some children as young as 10 are detained in this way. At the Report stage on 19th July, in columns 719, 725 and 726 of Hansard, the Government gave an undertaking to legislate as soon as possible in order to obviate risks of breaches of the European Convention.
The DHSS put out a consultation paper, Proposed Arrangements Jiff the Use of Secure Accommodation. This was sent in August to the major representative bodies concerned, asking for replies by 30th September. Of course this is a slightly difficult time because it is holiday time, and some replies came in pretty late. A number of the influental bodies consulted by the DHSS find the proposals set out in the new clause not altogether satisfactory and they do not think they go far enough; hence our amendments to the Government's new clause.
Dealing first with the criteria—and I would agree at once that they are much improved against what they were earlier—we welcome the Government's amendment that these criteria should form part of primary legislation and not be left to regulations. So far as absconding is concerned, we cannot accept that absconding is a justifiable reason for locking up a child. Research evidence indicates that absconding is more often than not the product of poor quality care or worries about home life. The report of an internal DHSS working party on legal and professional aspects of the use of secure accommodation which was issued in 1971 stated:
"It is not enough for youngsters to be placed in security and deprived of their liberty simply because they abscond or because a more suitable environment with a higher staff ratio and specialist advice is not available elsewhere".
Both the Magistrates' Association and the Justices' Clerks' Society, in their comments on the DHSS consultation paper sent out in August, suggest that the
722
reference in this clause to "a history of absconding" is much too vague. The British Association of Social Workers also believe that this criterion, if included, should be tightened. So we propose in Amendment No. 13 to remove the section on absconding. Next, to deal with paragraph (b) concerning the likelihood "to injure himself or other persons", this criterion we agree also needs tightening. The DHSS in their consultation paper proposed that the likelihood should have to be demonstrated by reference to the previous behaviour of the child. In their comments on the DHSS paper, both the Magistrates' Association and the British Association of Social Workers agree with this addition, which is strangely missing from the Government's new clause, so we have put it in Amendment No. 14.
Regarding the arrangements for judicial review, Subsection (2) of the new clause, Article 5.4 of the European Convention on Human Rights says:
"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if his detention is not lawful".
In our view, the Government proposals do not satisfy the convention or provide adequate safeguards for young people detained in the child care system, for the following reasons. First, the Secretary of State is empowered but not forced to issue these regulations: hence the proposed Amendment 15, changing "may" to "shall" in the first line of subsection (2). A Government undertaking to issue regulations we do not feel is sufficient. The proposals allow for a judicial review by a single justice as part of the arrangements to be set out in regulations. This does not satisfy the definition of "court", as used in Article 5.4: hence our Amendment 16. The clause does not specify any time limits, which are too important a matter to be left to regulations, and these we have put in in Amendments 17, 18, 19 and 21.
The amendments which have been tabled in the Government's new clause would have the effect of ensuring that the Secretary of State does issue the necessary regulations. These would provide for a judicial review by the juvenile court on application by a care authority which wished to keep a young person in secure accommodation for longer than 72 hours. The power of the court would be limited to issuing an order permitting the child to be placed in secure accommodation for a maximum of three months, provided it was satisfied that the criteria applied.
In subsection (5) the Government have left the court with the power to adjourn for an indefinite period and issue an interim order permitting the child to be placed in secure accommodation. The proposed Amendment No. 22 would ensure that applications for adjournment could only be made by the child or counsel or a solicitor, that it could only last for eight days, and if the interim order authorised placement in secure accommodation the court would have to be satisfied that the criteria applied. The Magistrates' Association give support to that in their response, and say:
"We consider that, at the time of making an interim care order, a simultaneous open-ended permission to place the child in secure accommodation if the need arises is undesirable and oppose the recommendation".
There is considerable support for the necessity of these amendments in the views of some of the

723
influential bodies who commented on the DHSS consultation paper. The Magistrates' Association and the Justices' Clerks' Society, the two major bodies concerned with the practice of juvenile justice in this country, emphatically reject the proposal that a single justice should be involved in the arrangements. This is why we have put in Amendment No. 20 to delete subsection (3). I think that many a justice would feel very uncomfortable about being the only one dealing with this important matter.
The Justices Clerks' Society say:
"In our opinion, the pressure on a single justice of the type proposed … would be too great and should only be made to a court. We recognise that this might be a problem in rural areas where courts sit infrequently, but we feel that this is administrative and could be overcome."
The Magistrates' Association say:
"We are unhappy about this paragraph as it stands and recommend a hearing before the juvenile court within 72 hours and not an ex parte application before a single justice."
The Minister referred to this when he was speaking. The British Association of Social Workers also recommend that the proposal for an application to a single justice should be dropped.
The Magistrates' Association, with their juvenile justices' detailed experience of current practice, go even further in their recommendations than the amendments which have been tabled, in seeking to limit the power of the juvenile court to allow detention for one month rather than three. They say:
"We view what may virtually be solitary confinement for three months with abhorrence and urge that any child in secure accommodation should be the subject of a written weekly report by a registered medical practitioner and that if at the end of the month, the child is still confined, then a report from a consultant child psychiatrist must be obtained and these reports should be sent to the Clerk of the Court."
The British Association of Social Workers favours limiting the maximum period of detention which a court can authorise to two months. I think that a weekly report and monthly appearances are, perhaps, a little too much to ask and would put the social workers to more trouble than they should be asked to put up with. After all, they can always take a child out of the secure accommodation before the three months are up. The Magistrates' Association confirms the view also held by the Children's Legal Centre that,
"72 hours seems to be a reasonable interpretation of the right to a 'speedy' hearing guaranteed by Article 5.4 of the European Convention …"
and has the added logic of being in line with the requirement for detained juveniles.
In view of these clear criticisms from the major practitioners in the juvenile justice and child care systems, we hope that the Government can be persuaded to accept these minor, but vitally important, changes to their new clause. I understand that the Government may have been in difficulty in getting responses so very late. I know that the Magistrates' Association did not send off their response till 4th October, and I wonder whether, if some of these responses had come in earlier, the Government might have been able to take note of them, which might have influenced the drafting of the clause. But having said that, we should very much like our amendment to be accepted by the Government, which would very much improve the new clause. My Lords, I beg to move.
5.25 p.m.
Baroness Faithfull: My Lords, I rise to support the Government's amendment and I should like to make some comments on Amendments Nos. 13 to 21 proposed by the noble Baroness, Lady David. I wonder whether we should first look at these amendments of the noble Baroness through the eyes of a child. May I suggest that 72 hours, or three days, is too short a time in which to bring a case before the court. If one is dealing with a difficult, disturbed and maladjusted child, it is very disturbing to that child to take the case to court at that early stage.
As our juvenile courts in this country are constituted—and I make no secret of the fact that I should like to see our juvenile court system altered to be more in line with the panel system in Scotland—it is an ordeal for a child to appear before a juvenile court. If that child is disturbed, anguished and angry, to do it in 72 hours will make it impossible for the courts to assess the true situation with regard to the child and it could make the child even more disturbed. Therefore, while I think that the case should be brought before a juvenile court at an early stage, I believe that 72 hours is too soon.
It is too early for another reason, which is that the social workers, the residential care workers, have acknowledged to me on many occasions that, as time went on, they have changed their views about a child, and after only 72 hours they may not give the court the wisest or most acccurate assessment. I agree that local authorities and various local authority organisations should be consulted, with a view to making regulations. I believe that we need flexibility.
There is another side to the question of secure accommodation. As was said earlier, it is a terrible thing to deprive a child of liberty. I entirely agree about that. The present secure accommodation in some authorities' areas is poor—and we acknowledge that it is poor—hut there is a movement towards much better secure accommodation, which could be described as a home within a home. I speak with feeling on this point, having opened an assessment centre a little while ago in a country area, where the secure accommodation has its own staff and its own very pleasant little rooms, with no single rooms at all. Those children can be given a great deal of personal, individual attention, which they would not be given in a wider establishment.
Your Lordships may forgive me for saying that there is another aspect. I visited a community home of education and I asked whether a child could show me around. A girl of 13 showed me around, and when we got to the secure accommodation I asked: "What is this?" She replied: "Oh!, this is where you are sent when you are naughty." I then asked her: "Have you ever been sent here?" To which she replied: "I love it here. It gives me peace and I can get away from the rush of the world." I asked: "How did you get here?" And she replied: "I stamped on matron's foot." I then asked her: "You were sent here for how long?", to which she answered: "It was a pity; it was only for one afternoon." Therefore, I think that with secure accommodation, and in the way that we are moving in this country, we need to be flexible, and regulations will give flexibility. May I also say that solitary

725
confinement is becoming more and more rare. Finally—and this is a point I made earlier—it is necessary for cases to be brought before a juvenile court at a fairly early stage, but not as early as 72 hours.
Baroness Trumpington: My Lords, I should like to support Amendment No. 20 of the noble Baroness, Lady David, because I cannot help feeling that I would hate to be a justice of the peace sitting on my own. Subsection (3) refers to the "duty of a justice of the peace", while subsection (4) refers to the "duty of a juvenile court". Subsection (5) says:
"On any adjournment of a hearing under subsection (3) or (4) above a justice of the peace or a juvenile court …".
Why can it not be "a juvenile court" all the way through the section? It would then be perfectly in order so far as I am concerned. I do not know whether the noble Baroness, Lady David, would agree to that wording. Here one jumps from "a justice of the peace" to "a juvenile court". "A juvenile court" is acceptable to me, whereas the onus on "a justice of the peace" is far too great.
Lord Mishcon: My Lords, as has been truly said by my noble friend Lady David, realistically this is the last opportunity that the House will have to deal with these provisions. Therefore, whether or not the amendments which have been moved by my noble friend eventually meet with the approval of the House—and I hope that they will—I know that your Lordships will want to give all their attention at this moment to vital provisions which affect the liberty of our youngest subjects.
As has been said, this liberty was looked at by the European Convention on Human Rights. I know that the noble Lord, Lord Trefgarne, will not mind if I quote what he said. I always do so with the greatest of pleasure, but I find that the earlier his statement the more accurate it is. On this occasion I am reading from our deliberation on the Bill at col. 719 of the Official Report on 19th July. After praising, and very rightly so, the Attorney-General for giving a very quick opinion on the matter, the noble Lord, Lord Trefgarne, said:
"In the light of my right honourable and learned friend's advice, we think it better not to run any risk that our present arrangements are not compatible with the European Convention on Human Rights".
Obviously that meant the Attorney-General was saying that unless we do something about this we shall be running that risk. Therefore, I prefer to use that terminology from the previous speech of the noble Lord, Lord Trefgarne, rather than the terminology which he used today, for it created some kind of doubt as to whether there was any need at all to do anything about this.
I intend to deal only with a couple of the amendments because they are important and because the noble Baroness, Lady Faithfull, has dealt with the amendment to which I am now going to refer. The European Convention on Human Rights says that if one takes freedom away from any individual, whatever his age, then it is the duty of the Government observing human rights, as we see them, to ensure that the speediest possible look is taken by a court of law at the deprivation of that freedom.
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Your Lordships will remember what the noble Baroness, Lady Faithfull, said about certain local authorities. There is no doubt that certain local authorities have very fine, secure accommodation, the most wonderful, humane officers and committees consisting of very civilised, cultured and caring people. Other local authorities do not have those attributes. We are dealing with local authorities as a whole. Is it not proper, therefore, that if a local authority wishes to deprive a youngster of liberty by putting him in secure accommodation a juvenile court should be able to look at whether it is right that more than 72 hours of detention, if I may call it that, should be permitted? Anybody who has appeared before a juvenile court—many of your Lordships have experience of sitting on a juvenile court—knows perfectly well that this will not be a long and elaborate proceeding where there will be examination and cross-examination. The local authority will have to make out a prima facie case.
Where, as the noble Baroness, Lady Faithfull, said, there is a complete lack of analysis of the case at that time because more time is desired, a sensible, experienced juvenile court will of course say that it is going to extend the period for so long, but no longer. If the court is told that a case has not yet been properly assessed it will say that they should come back to the court later. We should not be doing our job in connection with the European Convention on Human Rights. But without being pompous about it, no English Parliament requires to be reminded by a European Convention on Human Rights of how valuable is the liberty of the subject. We had our habeas corpus and our Bill of Rights long before the European Convention was ever thought of. Let us not forget our tradition. Therefore, it surely must be right that this provision relating to 72 hours should be included.
I now turn (I do not have to make a lengthy address about it because I detected that the noble Lord agrees that the position is not very satisfactory, as a result of all the submissions which he has received and because people and associations did not have much time in which to make them) to my submission that it would be wrong for a single justice to sit on an ex parte application basis. The noble Baroness, Lady Trumpington, has underlined the point which was made first very effectively by my noble friend Lady David. I was not very happy with the language which the noble Lord, Lord Trefgarne, used. He will forgive me if, as a great admirer of his, on two occasions I have to deal with the words which he used and make some reference to them not by way of complaint but by way of wishing for further explanation.
As I understood the noble Lord the Minister, he said that if this did not work out right and it was thought to be an unsatisfactory procedure—I am paraphrasing his remarks—this procedure would not be used. I do not know what that means. If it is in an Act of Parliament, does one issue an edict—it is a diktat which I have not yet become accustomed to in our constitutional law—by which the Secretary of State says, "In spite of the fact that there is a provision in an Act which enables this to be done, please do not use the section"? That strikes me as being a clumsy way of legislating. If we are satisfied—and your Lordships

727
must be so satisfied, especially having heard the noble Lord the Minister and others from all parts of your Lordships' House—that it is wrong for this to be done on an ex parte basis before a single justice of the peace, then let us please remove subsection (3) from this suggested Government amendment and let us see that the matter is placed before a properly constituted juvenile court.
I hope that by means of at least these two provisions, together with, I should have hoped, the three-month period which also occurs in these amendments—otherwise there is no limit to the detention period which could be awarded—your Lordships will feel that we are properly protecting the liberty of our youngest subjects. Nobody is better equipped to do it than your Lordships' House, consisting as it does of citizens who are certainly adult, if not more than adult.
5.39 p.m.
Lord Elwyn-Jones: My Lords, I rise only for a brief moment to affirm and confirm the view which has been expressed about the necessity for proper availability of judicial review for the child to apply where his liberty is going to be taken away from him. In a situation where all the relevant authorities who will have to handle such cases are strongly opposed to giving this authority to a single justice, the objections of magistrates' clerks, the clerks to the justices and the British Association of Social Workers are on record. Greater heed should be paid to the warning of the learned Attorney-General in his earlier opinion. I believe that the Government and we as a country would be running into very bad trouble if this machinery of judicial review, which is something of a hollow sham in the terms of the present new clause, is not looked at. I do not know how this can be dealt with in terms of time but everything is possible in the procedures of this House and of another place. Therefore, I hope that even at this late hour the noble Lord may be able to meet what is a serious point in terms not only of the constitutional rights of a subject of this country but also of international law as well.
Lord Campbell of Alloway: My Lords, may I support what the noble and learned Lord, Lord Elton, has just said. It is of very great importance and really requires no emphasis from me. As it is so important, perhaps the more people who speak on it the better, but I shall not repeat what the noble and learned Lord has said.
Lord Donaldson of Kingsbridge: My Lords, on that principle, I too will say a word. I did talk about this the last time we debated it and the noble Lord, Lord Trefgarne, referred to what I said. My feeling about this is that it is very unfortunate that it comes at this moment. If we had had this concession from the Government by Report stage—and basically this clause is a concession—we could have left these suggestions we make for consideration and the Government could have come back perhaps accepting that the figure of the noble Baroness, Lady Faithfull, of 72 hours is too short and perhaps suggesting four months instead of three months; and certainly suggesting more than one justice. I believe they would have done so and I believe we would have got something better.
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I do not think it will do as it is. I believe the only way this can be dealt with is by an undertaking from the Government to look at it further in the light of the very strong arguments which we have put up and to bring in something in that direction when this Bill goes to another place. I do not believe that it can be dealt with tonight.
I personally would vote, I think, for each of these amendments, but possibly I could be argued out of voting for one or two of them. I hope very much that something of this kind can be done. For many of us, the whole idea of a residential care order is simply wrong. We are therefore very anxious to modify this and to put safeguards into it as fast and as far as we can. I would ask for something to be said from the Front Bench opposite, allowing us to leave the matter open to be thought about further.
Baroness Masham of Ilton: My Lords. I would just like to ask the noble Lord the Minister if it would be possible for him to give us an assurance that an acceptable overall standard will be striven for in all secure accommodation. The noble Baroness, Lady Faithfull, was very helpful to the House in trying to explain what secure accommodation is. Perhaps the noble Lord the Minister might go further so that Members of your Lordships' House know what to do. It is not a case of solitary confinement and children being locked up in cells. Some of the accommodation is quite splendid, with wonderful swimming pools and playing fields and other things which some of your Lordships may not know about. Whereas, some other accommodation does not have such facilities.
The noble Lord, Lord Mishcon, made a most valuable point when he said that all magistrates should be able to see all the facilities and accommodation to which they are going to be sending people. Only on Sunday the chairman of a magistrates' court told me that he had been refused permission to view a probation facility. I have not got around to writing to the noble Lord, Lord Elton, about this but this chairman had been refused permission to see a facility to which he wanted to send a young person. I think this is disgraceful and he was very shocked. He was actually told that if he went to this particular place, which is in a forest, he could look through the gate; this was said to the chairman of a magistrates' court. The noble Lord, Lord Elton, will be getting a letter from me.
It would be useful if the noble Lord could explain a little more about secure accommodation because I am worried about one of the amendments brought up by the noble Baroness, Lady David, concerning the persistent absconder. It is very difficult to know what to do with a persistent absconder. It may be safer and easier for him if he goes into secure accommodation for a bit. I have had, in my experience of borstals, young boys say to me, in an open borstal, "I wish I could go to a closed borstal," because they find it easier.
5.45 p.m.
Lord Trefgarne: My Lords, may I first touch on the point made by the noble Baroness, Lady Masham of Ilton. All secure accommodation is approved for use by the Secretary of State—who is, of course, my right

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honourable friend the Home Secretary. Attempts are made to keep to a common standard throughout the country.
The main thrust of my opposition to this series of amendments to the Government's new clause is that in our view we really ought to wait until the consultation is complete before we make these detailed provisions, which the various amendments put forward by the noble Baroness seek to do. I will deal with the amendments in detail but fairly rapidly in a moment. The consultation which we embarked upon at the beginning of August is not yet complete and I would be very loath to follow the suggestion of the noble Lord, Lord Donaldson of Kingsbridge, that we try to do something between now and the Commons consideration of your Lordships' amendments, because consultation with a very narrow deadline like that cannot be as effective as we would wish and I fear that we would find ourselves, as we do now, without fully understanding the position of all those who have submitted replies to our letter and of some who have not yet replied at all.
Perhaps I may now turn to the amendments in a little more detail. I am not going to deal with them in the order in which they appear on the Marshalled List because I think that logically they go in a slightly different order, but I hope that nonetheless your Lordships will be able to follow what I have to say.
May I first look at Amendment No. 15, which is the amendment to line 1 of subsection (2) of the inserted Section 21A, where the noble Baroness suggests that we leave out the word "may" and insert "shall". My first inclination was to urge your Lordships to accept that amendment because it is the Government's firm intention that regulations should be made under these provisions at the earliest practicable moment. However, it would appear that one of the effects of accepting the amendment as it stands would be, for example, that the Secretary of State would be required to make regulations relating to making ex-parte applications to a justice of the peace. This is a matter which has been touched upon before. I will want to say a little more about that in a moment, but it would seem that the noble Baroness does not favour them as part of the new arrangements and she has tabled amendments which seek the deletion of the relevant sections of the new clause. I hope, therefore, that the noble Baroness will not press her amendments on that particular point.
Incidentally, and before I forget, I said just now to the noble Baroness, Lady Masham of Ilton, that it was my right honourable friend the Secretary of State for Home Affairs—the Home Secretary—who approves the standards in secure accommodation. I find that I misinformed the noble Baroness and the House, and I apologise. The person responsible is in fact my right honourable friend the Secretary of State for Health and Social Security.
I come now to Amendments Nos. 16 and 20.
The reason why subsection (2)(a)(ii) is included in the Government amendment is to enable the option of an ex-parte application to a justice to form part of the procedure for the placement of a child in secure accommodation. The consultation document circulated by my department does in fact include the
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proposal that such an application be required at an early stage in the procedure. I am replying now particularly to the noble Lord, Lord Mishcon, who pressed me on this. Your Lordships will be interested to hear that this particular proposal has not so far met with general approval. The results of the consultation are not yet complete, and it would not be right at this stage to pre-empt any of the possibilities. Nevertheless, I can go so far as to say that I should not be surprised if the regulations that are made under this provision will not make use of this particular power. I hope therefore your Lordships will nonetheless allow the option to remain.
If I can draw the attention of the noble Lord, Lord Mishcon, to the provisions of this particular clause, he will see that in the new clause which I moved earlier in subsection (2),
"The Secretary of State may by regulations specify"
and then there are four little paragraphs listing what he may specify. But that is an enabling power and if we incorporate that new clause in the Bill, as I hope we shall, the power to make regulations to provide, for example, for this examination by a justice will be included; but it is only an enabling power and I am able to give an assurance that my right honourable friend would not wish to use that power if the weight of expert opinion we are presently consulting is against that particular use.
I apologise for jumping about, but may I turn now to Amendment No. 13. I have already explained why I consider it necessary to retain an absconding criterion. There are a number of children who are not violent, who are unlikely to injure themselves or other people but are nonetheless likely to abscond and while on the run get into serious trouble. Your Lordships will have noted that the criterion included in the Government's amendment refers not simply to absconding but to the likelihood that if the child absconds his mental, physical or moral welfare will be at risk. In our view this is sufficient safeguard to ensure that the child who absents himself for a short period without permission or simply takes himself back home is not liable for placement in secure accommodation.
But it would be irresponsible to exclude from liability children who are likely to be on the run for extended periods living rough, committing offences necessary for survival and at risk of falling into dangerous company where they may be exploited, for example, for prostitution or serious crime, or those who are known to have engaged in such activities previously. I hope, therefore, the noble Baroness will see fit not to press that particular amendment. Incidentally, the noble Baroness referred to the views of the working party on secure accommodation in support of her objection to the absconding criterion, but the working party in fact said that youngsters should not be placed in security merely because they abscond but that placement should be considered where absconding was associated with other problems. This is precisely the Government's view and what we seek to secure in the clause we have tabled.
Amendments Nos. 17, 18, 19 and 21 are all very detailed provisions, which for the reasons I have already described I hope your Lordships will not see fit to move into the Bill at the present time. I think the remaining amendments fall if the earlier clause is included, so I will not continue further.
Baroness David: My Lords, before the noble Minister concludes he has not referred to Amendment No. 14. I wonder if he is going to accept that one?
Lord Trefgarne: My Lords, I apologise for missing that amendment. I am in large measure sympathetic to the intention behind it, which I take to be to ensure that where a child is to be placed in secure accommodation it is likely that he would injure himself or other persons and that that likelihood should have been demonstrated by previous dangerous behaviour. I think there are good reasons for not accepting that particular proposal.
Subsection (1)(b) covers two very different types of children. They are those who are extrovert and aggressive and have much difficulty in controlling their behaviour and so there is real risk that they would injure other people. I would not expect that there would be any of these children who needed to be placed in security who had not demonstrated by their previous behaviour that they were likely to injure others. But there is another group of children who are at risk of self-mutilation or suicide, particularly those recently admitted to care after a distressing experience, who are disturbed and depressed, and where suicide is a real risk. It would be less common for these children to have attempted suicide on a previous occasion or to have previously injured themselves. It would be a responsible course of action for these children to be admitted to security for observation until their immediate distress had subsided. It is because of this second type of child—a type that any social worker will recognise, including, I am sure, my noble friend Lady Faithfull—that I would advise your Lordships to reject that amendment. With these children, previous behaviour may not be a sufficient guide to the likelihood of self-injury, and we must rely upon the professional expertise of those responsible for their care.
Viscount Bledisloe: My Lords, can the Minister enlighten me and the House on subsection (2)(a)(ii) and subsection (3)? Is he saying that if the Secretary of State does not make any regulations under subsection (2)(a)(ii) there will be no power in the justice of the peace to make an order. I confess that it would appear to me that if there were no regulations made the justice of the peace still would have the power, but with no maximum period specified restricting that power.
Lord Trefgarne: My Lords, the power to which the noble Viscount refers is, of course, contained in other legislation. What we are looking at here is a specific power to submit this particular kind of legislation to requirements, the times and so forth that may be provided for; it is particularly to ensure that the new provisions are precisely in compliance with the European Convention. It is for this reason that we have provided for this new power for my right honourable friend to make regulations and have precisely defined in this particular subsection the nature of those regulations.
Baroness David: My Lords, I believe I have the opportunity to respond as these are my amendments. I should like to thank all noble Lords who have spoken; their contributions have shown that we are
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discussing a very serious matter. As Lord Donaldson said, it is a pity that it comes quite so late so that we have either to accept something or reject it; that seems a pity because we might have made some slight changes.
I will say what I am going to about the first few amendments because I think that will make it easier. Although I am not altogether convinced by the remarks of the noble Lord on the absconding point. I am prepared to withdraw that amendment. I will also withdraw Amendments Nos. 14 and 15. But I am not happy about leaving in the new clause of the Bill, the Act as it will be, the two subsections which relate to the single justice. It is ridiculous for the Minister to say that the Government will not use those clauses if they are left in. Why have them in the Bill if they are not going to be used? Therefore, I shall be pressing Amendment No. 16. I hope that the Government will accept the amendment when it comes to the point.
As regards the 72 hours, I listened carefully to what the noble Baroness, Lady Faithfull, said. We value her experience enormously. I agree that 72 hours is a short time for some very disturbed children. On the other hand, we put that in because it is in line with what happens to other juveniles who are caught by the police. They cannot be kept for more than 72 hours without coming before a court. They also may be disturbed and difficult children. We must, therefore have a time limit and I think that 72 hours is reasonable. The regulations will have to stipulate a time, but the Minister did not say what that was likely to be.
As an aside, may I say that I believe secure accommodation can be extremely good? I visited a modern community home with education and secure accommodation yesterday to make sure that I was up to date. I was impressed with the accommodation and the staff.
However, we must allow for places where accommodation is not perfect and perhaps the staff are not quite so good. We must take seriously the deprivation of liberty, so I shall press that amendment. I shall wait to see what happens before reaching further decisions when the amendment is called. I beg leave to withdraw the amendment.
Amendment to the amendment, by leave, withdrawn.
[Amendments Nos. 14 and 15 not moved.]
Baroness David Baroness David moved as an amendment to the amendment, Amendment No. 16:
Leave out subsection (2)(a)(ii) of the inserted section 21A.
The noble Baroness said: I wish to press this amendment. I have already spoken to it. It deals with the single justice. I beg to move.
Lord Trefgarne: My Lords, I do not propose to divide your Lordships on this amendment.
On Question, amendment to the amendment agreed to.
Baroness David Baroness David moved as an amendment to the amendment, Amendment No. 17:
In subsection (2)(a)(iii) of the inserted section 21A, after ("period") insert ("which shall not exceed 72 hours").
The noble Baroness said: I have already spoken to this amendment.
6.4 p.m.
On Question, Whether the said amendment (No. 17) shall be agreed to?
Their Lordships divided: Contents, 76: Not-Contents, 91.

DIVISION NO 2

CONTENTS

Amulree, L.

John-Mackie, L.

Ardwick, L.

Kagan, L.

Aylestone, L.

Kilmarnock, L.

Bacon, B.

Leatherland, L.

Bishopston, L. [Teller.]

Llewelyn-Davies of Hastoe, B.

Blease, L.

Lloyd of Kilgerran, L.

Blyton, L.

Longford, E.

Boston of Faversham, L.

Lovell-Davis, L.

Brockway, L.

McCluskey, L.

Bruce of Donington, L.

McGregor of Durris, L.

Byers, L.

Mackie of Benshie, L.

Cledwyn of Penrhos, L.

Mayhew, L.

Collison, L.

Melchett, L.

Cooper of Stockton Heath, L.

Mishcon, L.

David, B.

Ogmore, L.

Davies of Leek, L.

Peart, L.

Davies of Penrhys, L.

Pitt of Hampstead, L.

Diamond, L.

Ponsonby of Shulbrede, L. [Teller.]

Donaldson of Kingsbridge, L.

Elwyn-Jones, L.

Rochester, L.

Ewart-Biggs, B.

Seear, B.

Fisher of Rednal, B.

Sefton of Garston, L.

Foot, L.

Simon, V.

Gardiner, L.

Stedman, B.

George-Brown, L.

Stewart of Alvechurch, B.

Gladwyn, L.

Stewart of Fulham, L.

Glenamara, L.

Strabolgi, L.

Hampton, L.

Taylor of Blackburn, L.

Hanworth, V.

Taylor of Gryfe, L.

Harris of Greenwich, L.

Tordoff, L.

Heycock, L.

Underhill, L.

Houghton of Sowerby, L.

Wallace of Coslany, L.

Howie of Troon, L.

Wells-Pestell, L.

Hutchinson of Lullington, L.

Whaddon, L.

Hylton, L.

White, B.

Irving of Dartford, L.

Wigoder, L.

Jacques, L.

Wootton of Abinger, B.

Jeger, B.

Wynne-Jones, L.

Jenkins of Putney, L.

NOT-CONTENTS

Auckland, L.

Crawshaw, L.

Avon, E.

Croft, L.

Bagot, L.

Cullen of Ashbourne, L.

Bathurst, E.

Daventry, V.

Beloff, L.

Davidson, V.

Belstead, L.

De L'Isle, V.

Bessborough, E.

Denham, L. [Teller]

Bledisloe, V.

Dilhorne, V.

Boardman, L.

Drumalbyn, L.

Broadbridge, L.

Ellenborough, L.

Brougham and Vaux, L.

Elliot of Harwood, B.

Campbell of Alloway, L.

Elton, L.

Campbell of Croy, L.

Faithfull, B.

Carnegy of Lour, B.

Ferrers, E.

Carthcart, E.

Ferrier, L.

Chelwood, L.

Forester, L.

Coleraine, L.

Fortescue, E.

Craigavon, V.

Gainford, L.

Craigmyle, L.

Glanusk, L.

Cranbrook, E.

Glenarthur, L.

734

Hailsham of Saint Marylebone, L.

Nugent of Guildford, L.

Orknev, E.

Hatherton, L.

Pender, L.

Henley, L.

Penrhyn, L.

Hives, L.

Rankeillour, L.

Home of the Hirsel, L.

Reigate, L.

Hylton-Foster, B.

Rochdale, V.

Ironside, L.

St. Aldwyn, E.

Killearn, L.

St. Davids, V.

Kilmany, L.

Sandys, L. [Teller.]

Kinloss, Ly.

Shannon, E.

Lane-Fox, B.

Sharples, B.

Lauderdale, L.

Skelmersdale, L.

Lindsey and Abingdon, E.

Spens, L.

Long, V.

Strathclyde, L.

Loudoun, C.

Strathspey, L.

Lyell, L.

Swinfen, L.

McFadzean, L.

Thomas of Swynnerton, L.

Mackay of Clashfern, L.

Trefgarne, L.

Macleod of Borve, B.

Trumpington, B.

Mancroft, L.

Tryon, L.

Margadale, L.

Vaux of Harrowden, L.

Mills, V.

Vickers, B.

Milverton, L.

Vivian, L.

Mottistone, L.

Westbury, L.

Murton of Lindisfarne, L.

Young, B.

Resolved in the negative, amendment disagreed to the accordingly.
[Amendments Nos. 18 and 19 not moved.]
6.14 p.m.
Baroness David Baroness David moved as an amendment to the amendment, Amendment No. 20:
Leave out subsection (3) of the inserted section 21A.
The noble Baroness said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment to the amendment agreed to.
[Amendments Nos. 21 and 22 not moved.]
On Question, Amendment No. 12, as amended, agreed to.
Clause 26 [Criteria for accommodation of children in care]:
[Amendments Nos. 23 and 24 not moved.]
Lord Trefgarne Lord Trefgarne moved Amendment No. 25:
Leave out Clause 26.
The noble Lord said: My Lords, this amendment is consequential upon Amendment No. 12. I beg to move.
On Question, amendment agreed to.
Baroness Faithfull Baroness Faithfull moved Amendment No. 26:
After Clause 26, insert the following new clause:
("Review of cases of children in care.
.—(1) Sections 20 and 90(3) of the Child Care Act 1980 shall have effect subject to subsections (2) and (3) below.
(2) Each local authority shall appoint a committee for the purpose of reviewing in pursuance of section 20 of the Child Care Act 1980 the cases of children in their care under care orders made under section 7(7) of the Children and Young Persons Act 1969.
(3) A committee apointed under subsection (2) above shall have among its members at least one person independent of the local authority.").
The noble Baroness said: My Lords, I beg to move Amendment No. 26. This amendment concerns the

735
review of cases of young offenders in care. We had a very long debate earlier on this subject, and I shall try not to repeat the arguments which were put forward then. In a letter which the Minister, my noble friend Lord Trefgarne, sent to me on 13th August, he stated:
"The Government endorses the need for careful and regular reviews for every child in care. Accordingly, we intend to discuss with the local authority associations the scope within the resources available for extending good practice in this field. In doing this we shall of course draw to their attention the strong feelings in the House of Lords that magistrates should be involved where children are in care because of criminal offences".
The central point which I wish to make in this amendment is that in the case of young offenders in care there should be an independent person serving on the review committee. I would very much hope that the independent person might in most cases be a magistrate. I believe that in that way there would be built up a better understanding between the personal social services and the Magistrates' Association. I believe also that it would be enormously helpful to magistrates to know exactly what was going on with regard to various different cases. In my own authority, when I was a director of social services. I met with the magistrates on a regular basis concerning the cases we had in our care. They told me that it had given them a much better understanding of the day-to-day work of the department and the way in which children could best be helped.
Therefore, in this amendment I press that there should he an independent person serving on the review committees, which in most cases, and in many authorities, already exist. Indeed, I think that it is good practice, and is acknowledged as such, that every child in care who has been before the court should be reviewed. I should like to draw attention for the second time to the panel system in Scotland. In Scotland every child who has appeared before the court as a young offender is reviewed by the panel every year. It is an independent panel.
I know that the local authority associations do not agree with this recommendation, particularly if the independent person were to be a magistrate. I think that their contention is that if it were to be a magistrate, then that magistrate would be prejudiced if a child were to appear before the court when that magistrate was serving on the bench. I should like to make only two points. The first is that if they have been concerned, then they do not have to serve on that particular bench. The second point is that the probation committees meet and discuss cases and on those probation committees are magistrates and so the same consideration would apply.
I would also point out that, for instance, in the IT system in Kent the magistrates attend and therefore get to know the children, even if those children are to appear before them. I understand that in principle the Government do not oppose the review committees, which should in any case in good practice be held, and I press for an independent person also to serve on those review committees. I beg to move.
Lord Donaldson of Kingsbridge: My Lords, I should like to endorse the view that has been put forward. It is important that we should have an independent, who need not necessarily be a magistrate. I do not think that in all circumstances a magistrate is better than
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some other independent, but as that matter is not included in the amendment there is no reason to discuss it further. I remind myself that any body of people responsible for something being done usually reviews it itself and prefers not to have an outsider doing so. I am not saying anything against local authorities, but that is true of all people doing anything. In my view it is a necessary safeguard for the child that there should be an independent person involved, and I very much hope that the Government will agree to this amendment.
Lord Campbell of Alloway: My Lords, I should like to detain your Lordships briefly to speak against the amendment. I agree that the amendment could serve a useful purpose if the proposals which it embodies as regards the setting up of a committee with an independent member could be embodied by the Secretary of State in the implementing regulations within Section 20(2)(a) of the Act of 1980—this in implementation of the general duty to review under Section 20(1) of that Act. This discussion warrants nothing unless one has read Section 20(1) and (2) of that Act, because there is the general duty of review and there is, under Section 20(2) the implementing machinery, where under Section 20(2)(a) the Secretary of State, could, within his remit—within his power—implement the very provisions which are proposed by my noble friend Lady Faithfull.
In my submission, it is wholly premature to speculate at this stage on these regulations of general application. They have not yet come out. Secondly, I would respectfully suggest that it is wholly erroneous in principle to single out a single type of child in care—those under care orders—from other cases of children in care by the superimposition of a special statutory requirement which may or may not be reflected in due course in the general review provisions under the regulation. If this amendment were to be accepted, this would make a very cumbersome situation and a possible nonsense.
The Lewisham Borough Council case, decided by your Lordships' Appellate Committee in 1980, serves to illustrate the generality of this problem. It may interest your Lordships to know that in that case we had to submit to adverse judgments all the way up through the judicial hierarchy—from the magistrates' court to the Appellate Commmittee of your Lordships' House—in order to get the particular point set aright. This is a general problem. I submit that no case is made out before your Lordships for a special regime for children in care under care orders, and the marginal gloss at the side of the proposed amendment tends, in submission, to confuse as the gloss appears to relate to all children in care, whereas the substance of the amendment is strictly limited to children under care orders. Therefore, for those reasons, with respect, I oppose this amendment.
Lord Trefgarne: My Lords, I should make it clear right at the outset that I have great sympathy with the thinking behind this amendment. It is most important that the statutory reviews of children in care, which are required every six months, should be used for a proper consideration of the future needs of the child. Where a care order applies the review must include consideration of whether to make an application for

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discharge of the order. There is no doubt that thorough reviewing is an essential element of good child care.
I hope, however, that I may persuade my noble friend that it would be inappropriate to pass the amendment, for two reasons: First, I think that the amendment moves into dangerous territory by introducing a special procedure which will apply only for the review of children in care because of criminal proceedings. The purpose behind a care order is the same regardless of the route by which a youngster comes into care—that is to assist the proper development of an immature person in circumstances where society accepts a responsibility for this. A care order is not intended as a punishment, but a means of providing the youngster with the supportive environment that he needs. Children who are in care for other reasons have the same needs. I believe that it would be quite wrong to ask local authorities to adopt different procedures for reviewing children in care following offences from the procedures they apply for other children in care, who are often accommodated in the same homes as offenders. Our aim must be to develop appropriate safeguards and procedures for all children in care, whether or not they have committed offences.
Secondly, as my noble friend Lord Campbell of Alloway has said, the power to make regulations about reviews already exists. I know that many of your Lordships are aware of this, but I hope that they will bear with me for going over the ground briefly, because I believe the point is an important one. Regulations will be able to cover the manner in which cases are to be reviewed, the considerations to which the local authority are to have regard in reviewing cases, and the time when a child's case is first to be reviewed and the frequency of subsequent reviews. This power is now consolidated in Section 20 and 90(4) of the 1980 Child Care Act, but it comes from the 1975 Children Act.
At the time the 1975 Act was passed, it was envisaged that the regulations would provide very full reviews for all children in care. These would involve the child himself, his natural parents, his foster parents or house parents, and anyone else with whom he had a close relationship. A great deal of extra work would be needed to make sure that everyone was fully consulted. The cost would clearly be substantial. A working party on the costing of the provisions of the 1975 Act estimated in 1980 that it would be about £7 million. I remember being teased about that figure during an earlier stage of this Bill. I know that that sounds a lot of money, but that is what it would cost if six hours' extra work was needed for each of the 200,000 or so reviews which take place each year. I am not sure exactly how my noble friend's amendment would work, but I suspect that it would cover about 30,000 reviews a year, and the reviews themselves would very probably be less demanding, and I agree would probably cost a lot less than that figure.
Lord Donaldson of Kingsbridge: My Lords, I should like to ask for clarification. How can six hours' work be derived from one person attending a meeting? I do not understand the calculation. This asks that one person other than the people working in the local authority should attend the meeting. This is not six hours work. As I said before, it is a fourpenny bus ride or maybe a tenpenny one now. With respect, it is not a serious argument.
Lord Trefgarne: My Lords, I was about to say that my objection to this amendment is not on the grounds of cost. In fact, I did say that as far as these particular reviews which my noble friend proposes are concerned, it would be much less than the figure to which I referred. The hallowed figure—if I may call it that—of £7 million of course refers to the case of all the children in care, which is not the purpose of my noble friend's amendment.
I firmly believe that regardless of cost it would be a serious mistake to introduce a special provision to cover one group of children only when the power already exists to make regulations for the benefit of all. I can understand my noble friend's frustration that regulations governing reviews have not been introduced since the 1975 Act—in other words, for seven years. I must say there are others who share my noble friend's frustration. However, we are about to hold discussions with the local authority associations to see what could be achieved to improve arrangements for reviews within the current likely availability of resources. I made this point when I wrote to my noble friend, and she quoted the letter just now. In doing this I can assure your Lordships that we shall look carefully at the ideas that have been put forward, but in this situation I very much hope that my noble friend will see fit not to press her amendment.
Baroness Masham of Ilton: My Lords, before the noble Lord sits down may I ask him whether he thinks it is wise to mix children sent from the courts with a residential care order with other children who are there just needing looking after?
Lord Trefgarne: My Lords, that is largely the position at the present time, as my noble friend has pointed out, and indeed as I said during the course of my remarks. There are no doubt cases when that is not the most desirable way to proceed, but the important thing is that we should proceed in accordance with the best professional advice in each individual case, and that is what the regulations will in due course provide.
Baroness Faithfull: My Lords, I thank my noble friend the Minister for that reply. If the argument is that child offenders and court cases should not be singled out from others, I wish I had put down an amendment to say that all children should be reviewed with an independent person. The point of limiting it to offenders who have appeared before the courts was simply because the court cases come in at a different door. They may be treated the same, they may be looked after the same, but they have entered the care through a different channel. The magistrates are not concerned with children who come into care for other reasons, only for court reasons. That is why we felt so strongly that there should be an independent person.
I should like to reiterate what the Minister has said, that many of us are distressed that these reviews have not taken place but should have been taking place from 1975 onwards. I dare to ask, what have the local authorities been doing? Secondly—and I speak with some sympathy here having worked in both the Department of Health and Social Security and the Home Office—why has it not been discovered before that these reviews have not been taking place in certain areas?
With regard to the comments of my noble friend Lord Campbell of Alloway, I admit most humbly that

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I have not read Section 20(2) of the 1980 Act; therefore, I cannot comment on it. But I would say to my noble friend that, as he has heard, reviews were recommended back in 1975. They are not new. The only thing that is new is the independent person. However, having listened carefully to what my noble friend the Minister has said, I know that he will take into account all that we have been saying, and I therefore beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 27 not moved.]
Clause 27 [Payment of fines by parents and guardians]:
6.35 p.m.
Lord Mishcon Lord Mishcon moved Amendment No. 28:
Page 30, line 28, after ("awarded") insert ("or a specified part thereof").
The noble Lord said: My Lords, I observe that it was suggested that Amendments Nos. 28 to 31 be taken together. I wonder whether your Lordships will permit me to make I hope the shortest speech on record from me, on Amendment 28, and then take Amendments 29 to 31 together because a different principle is involved.
Here is the shortest speech on record. We are dealing with fines, costs, and compensation. The Bill as it is at present before your Lordships does not appear to us to give the right to the court to apportion in a certain case part of the fine, or the costs, or the compensation as between parent and child. It looks to us as though the Bill says either the parent pays the whole or the child pays the whole. There must of course be many cases in which the court would come to the conclusion that part ought to be borne by the parent and part by the child, and this provision would give that power. I beg to move.
Lord Elton: My Lords, I shall try to emulate the admirable pace at which the noble Lord took this first fence on the circuit. I would merely observe that the parent is not a party to the proceedings. He is not charged with an offence and he is not on trial for his own shortcomings. It is the child who is charged and convicted, and against him that the penalty is awarded. It is important, therefore, not to apportion criminal liability between the convicted offender and someone who is not himself on trial. That is why Clause 27, like the existing law, confines itself to a separate power to order the parent to pay the penalty which has been imposed on the child. That does not blur the lines of criminal liability, as the noble Lord apparently wishes to do. I think that those remarks were just about as brief, and I hope they were as clear.
Lord Mishcon: My Lords, they certainly were as brief. This is a clause—and I am sure the noble Lord the Minister will forgive me if I go into this a little more carefully but I hope equally briefly—which entitles the courts in certain circumstances to allocate the payment of a fine, or compensation, or costs, of course imposed upon a child in the first instance. This clause enables the court to say that the parent shall bear the cost, or the child against whom the fine, penalty, or award of costs was made shall bear it. The
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simple purpose of this amendment—and if some semantic difference, or the position of the words in the clause, makes this imperfect, I apologise—is to enable the court not to do this in toto but to do it in part if it wants to. If the noble Lord the Minister would kindly concede the principle by the same procedure as has been invoked before by way of an "in lieu" procedure when it goes before the Commons and the other place deals with the Lords amendments. I should be perfectly content. The Minister has not answered the principle behind this amendment.
Lord Elton: My Lords, I am not clear whether your Lordships think that we should all have two bites at this debate. If your Lordships will permit, I doubt whether I have much more to add. The question is the question of the status of the parent. The purpose of requiring the parent to pay the fine is to bring home to the parent the responsibility it has for the behaviour of the child. But the parent, as I said before, is not himself or herself legally tried or legally convicted of the offence. If you start apportioning the fine you start apportioning what appears to be the legal blame, and apart from being faced sometimes with judgments of Solomon to decide on the apportionment, you will also be encouraging the child to imagine a sort of tariff of responsibility between parent and child, which I do not think courts could impose. I regret that I cannot be more lucid than that, and I shall not go on longer.
On Question, amendment negatived.
Lord Mishcon Lord Mishcon moved Amendment No. 29:
Page 30, line 36, at end insert—
("( ) In taking the decisions required by subsection (1) above, the court shall have regard to such of the following considerations as appear to it to be relevant, that is to say—

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

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

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

The noble Lord said: My Lords, I did not divide the House on what I thought to be a proper principle, and possibly I had in mind the greater principle involved in Amendments Nos. 29 to 31. As I understand it, the Minister helped me considerably by his reply to the last amendment, however unsatisfactory I found it in regard to the principle I was enunciating. He has said clearly that it is not the parent who is on trial. He has also said clearly that it is dangerous to have a tariff as between child and parent. We are now looking at the circumstances in which the court can say that the parent, in spite of the child being brought before it as the offender, can or should be ordered to pay the fine, costs or compensation. I remind the minister of his words—the fact that the parent is not a party; the parent is not to be assessed, according to him, with an apportionment of blame—and so, if this matter of the liability of a parent to pay the fine, costs or compensation is being dealt with, I am sure your Lordships will think that the court must be very carefully guided.
I hope there is nobody who will put forward the argument that parents should not be made responsible in considerable measure for the conduct of their

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children. There are many of us who are parents who would beg leave to put forward the defence in certain circumstances that we cannot be held responsible for the behaviour of children, in spite of the upbringing we have endeavoured to give them. But if a young offender is brought before the court and the parent is to be made liable for the whole of the fine, costs or compensation, then the court must be very specifically guided, and up to the moment the court has not been so guided. It was the good aim of the White Paper, Young Offenders, which the Government issued in 1980 that the interpretation of this liability should be made more certain because the courts had been reluctant to use these provisions in view of uncertainty as to their ambit in the past. The attempt to clarify this for the benefit of courts has not been a noble effort of the Government because the words used, which in effect are:
"Unless in the particular circumstances of the case a court thinks it would be unreasonable to make them pay",
leave an interpretation so wide and vague that it makes the situation, I should have thought, worse than it is at present, and in case your Lordships think I am exaggerating in any way, I quote from The New Law Journal, which, in an editorial of 16th October 1980, said:
"So far from simplifying and clarifying the existing provisions on which those powers depend, the substitution in the proposed redefinition of 'in the particular circumstances of the case a court thinks' for a proviso expressed in the comparatively clear and objective terms of 'failure to exercise due care and control', is likely only to have precisely the opposite effect and give rise to serious inconsistencies and injustice in practice".
My amendment seeks to do justice. It seeks not to set down the only matters which the court should have under review; the court can have other circumstances and considerations under review. But it points to very distinct matters which the court should have under review so that there is no doubt about the position of what the court ought to be considering and no doubt about the consistency with which various courts should act.
Having briefly referred your Lordships to (a), (b) and (c) which apply in the case of fines and costs in Amendment No. 29, and precisely the same (a), (b) and (c) in Amendment No. 31, which deals with compensation, I believe your Lordships will feel I have said sufficient to advance my argument. Those matters which the court should have under review, among others, are whether the parents have neglected to exercise due care and control; whether it is desirable that the child or young person himself should assume responsibility for payment of the fine, costs or compensation; and the relationship of the child or young person with his parents and the likely effect on that relationship of ordering the fine, costs or compensation to be paid by the parent or guardian, as well as any other matters which appear to be relevant.
On the last occasion when this came before the House, the hour was late and I said it would be wrong for me to move my amendment at that late hour with a House eminent in its quality but not quite so noteworthy in its quantity, and I begged leave to defer the argument until Report. The noble Lord, Lord Trefgarne—I regret saying this in his absence but I shall say nothing rude because I never would about him—felt it his duty, so industrious and energetic is he,
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to answer a case I had not even put and had announced I was not going to put. In the course of that, he made some comments on which the Government felt they might be resisting my amendment. One was that parents and children would, as a result of the amendment, find a long and controversial argument going on in court as to whether any of the factors applied. I answer that by saying only that, if, in any event, the question of reasonableness or unreasonableness is to be gone into, all the factors must be looked at by the court anyway.
There is a far greater danger. It is that, if the court, directed by wrong considerations or not taking into account relevant considerations, imposes a fine on a parent, your Lordships can well realise what can happen at home, especially if the home happens to be a very poor one, as a result of a completely wrong, as the parents may feel, imposition of a fine upon them when the fine should have been on the child, who they no doubt think was properly punished by the court. Therefore, I feel this is a proper and necessary amendment.
Baroness Macleod of Borve: I disagree with this series of amendments, my Lords, because they attempt to dot the i's and cross t's rather too much. After long experience, I feel that every case and every child, parent and guardian is different and that one must do the best one can to judge each case on its merits and act accordingly. I have always been led to suppose that if one fines a child, the parents are responsible, not only for the actions of the child but for any financial commitment that that child might fall into, up to the age of discretion, which is 17 or 18. For that reason, I do not consider the amendments necessary.
I like the i's dotted and the t's crossed, but I think that in this particular case to lay down by statute what is proposed in the amendment is going too far. I would hope that the noble Lord, Lord Mishcon, would perhaps be wise enough—as I know he is—to place some confidence in the magistrates. Perhaps they are not wise, nor even learned, people but they are people with very great experience of dealing with both parents and children. Therefore, I hope that the amendment is not pressed.
Baroness Faithfull: My Lords, I should like to pose a problem—whether to my noble friend the Minister, or to the noble Lord, Lord Mishcon, I am not quite sure. I am a little worried about the situation where parents are fined for the misdemeanours of their children, fail to pay the fine, and continue to fail to pay. I think that this kind of thing has actually happened. There are an enormous number of very good magistrates, but there are some who might perhaps make a mistake. Mistakes have been made, parents have been fined, and then children have been left without a parent because the parent has gone to prison for the non-payment of the fine. I am puzzled as to how that situation should be dealt with.
Lord Hutchinson of Lullington: My Lords, I should like to say a few words in support of the amendment, and at the same time support what the noble Baroness has just said, on the basis of reality. I would ask the Minister to think again about this question, since, as the White Paper stated, the clause has been inserted to

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assert the duty of a parent to accept the responsibility for his children, and in a sense it is using legislation to make a moral point, which is an extremely dangerous form of legislation. Despite the noble Baroness opposite saying, "Trust the justices", one finds that benches make the orders on a moral basis. For instance, a child might commit a couple of burglaries and steal property worth £500. The court will make an order for compensation against the parents. The parents—or the father—may have to pay £500 compensation at the rate of £2, £3 or £5 a week, which means that it will go on for a period of perhaps two years, with the compensation still being paid off.
We have received details of a number of cases from the probation service involving specific instances of the kind to which I refer. I would quote only one—and it involves a question of reality. Benches require criteria, because they must focus their minds on the specific case and the effects of it, and not just make an order for a moral reason because they want the parents to be responsible. In one specific case, for instance, a child committed an offence and was fined £30, and the parent was ordered to pay. This was a real case. The child committed further offences a fortnight or three weeks later and was sent to a detention centre.
Quite obviously, in the case of an adult the fine would then have been washed out, but in this instance it could not be washed out because the parent had been ordered to pay, even though the child had been sent to a detention centre. The child came out of the detention centre and immediately committed a trivial offence, was fined, and in this case the mother was made responsible for the fine. She is now responsible for two fines. She has three other children. The probation officer tried to argue with the court office not to issue a warrant against her. The warrant was issued, the whole business has to be gone through, and the compensation amounts were altered. The child committed another trivial offence. I shall not go further into the detail, but the result was that no fewer than four warrants were issued, four warrants were withdrawn, with each time the probation officer arguing the case for the mother, the mother being herself incapable of arguing it.
That is what happens if such an order is imposed upon a parent. It will be found that the rigmarole continues, and all the time the relationship between the child and the parent is growing worse and worse, all because originally, with the best will in the world, the bench made an order on moral grounds, not on realistic grounds, though of course the two sets of grounds may go together. I would beseech the Minister to think again about this matter on very practical grounds. I have in my hand details of a number of similar cases involving the rigmarole being gone through over and over again, at great detriment to the relationship between the child and the parent.
6.56 p.m.
Lord Elton: My Lords, as he has said, during our debates at the Report stage of the Bill the noble Lord, Lord Mishcon, gave notice that he would once more raise the issue of the court's powers to order payment of the fine by the parent rather than by the child. He has dealt separately with the question of apportionment, and so I shall not again refer to that. The
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Government have made their position on the general issue consistently clear throughout the considerations of the clause, and I would not seek to weary the noble Lord and the House once more with the arguments. But since the noble Lord has said that he would like the House to have the opportunity to consider the matter fully once more, your Lordships will forgive me if I state the Government's position on the general question, though fairly succinctly, and I think that the noble Lord will find that my noble friend has not deployed all her arguments in this matter in advance of the conflict.
We have always made it clear that the purpose of the clause is to give the courts a more effective power to bring home to parents their responsibility for the actions of their children when those children offend. That aspect of the serious responsibilities of parenthood cannot be set aside or diminished, and, with respect, I would say to the noble Lord, Lord Hutchinson of Lullington, that this is also a matter of reality. He drew a distinction between legislation for a moral aspiration and legislation for what he termed reality, and I can only say to him, as in my years, which are approaching years of maturity, I look at the way in which society has changed since my youth, that the decline of parental responsibility, and a general acknowledgment of it, is a salient feature in our society which has led to a decline in the behaviour of people, which many of us deeply regret, and which results in more people coming into the courts.
Therefore it is right that the courts should be given clear power to reinforce the principle in appropriate cases, so as to remind parents of their continuing responsibility if their children offend at a crucial stage in development. I say "appropriate cases" because the Government are not seeking to suggest that the child himself has no responsibility for his actions. That is not what the Government intend: nor would it be an appropriate response in cases where the parent has failed to bring up the child in a law-abiding way, but has clearly attempted to do so; and that very often is the case. Therefore, there is not necessarily a conflict between reminding the parent of his responsibilities and making clear to the child the consequence of his offending. With that in mind the Government have sought in Clause 27 to develop the provision currently in Section 55 of the Children and Young Persons Act 1933. That section provides that the courts must in the case of a child, and may in the case of a young person, order that any fines, costs or compensation awarded against him be paid by the parent or guardian, unless either they cannot be found, or the courts are satisfied that they have not conduced to the commission of the offence by neglecting to exercise due care and control.
The Bill extends the mandatory power in place of the discretionary to the upper age group, those aged 14, 15, or 16. It also simplifies and clarifies it. It does so by relying on the concept of reasonableness, trusting to the good sense and experience of the courts in deciding what is or is not reasonable in the circumstances of each case. The noble Lord indicated at the Report stage that it was the mandatory nature of that power which troubled him, but of course, apart from the extension to the upper age group, the clause does nothing new in this respect. What it does is to balance the mandatory aspects of the power by giving the court a wide discretion to disapply it in appropriate circum

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stances. The simplification and clarification which the Government seek are inherent in the discretion which the clause gives to the court. We think that any elaboration of the test of reasonableness by the inclusion of considerations of the kind proposed in the amendment would diminish the clarity of the power without increasing its effectiveness—and I am at one with my noble friend Lady Macleod in this.
Let us now consider the discretion which the present clause gives to the court. It will allow the court to take account of any material factors, which in some cases may well be similar to those which noble Lords opposite would like to see on the face of the Bill. There is nothing in the clause which would preclude the court from having regard to them if the court so wished; but I have great doubts whether it would be right to specify considerations, and I remain unconvinced about the validity of the considerations put forward. On the one hand, the court would be asked to consider the unreasonableness of the parent paying the fine: on the other, it would be invited to consider the parents' possible failures, as if they were a factor in the parents' responsibility.
To invite the court to assess the desirability of the child himself assuming responsibility for the fine could—I do not say automatically will, but could—invite the court to deal with the issue of parental responsibility as a matter secondary to the responsibility of the child, and that would run counter to the point which the Government wish to emphasise. I must repeat the Government's concern that a minute dissection of the parent-child relationship would be inappropriate when the courts were considering the imposition of a fine, which comes fairly low on the sentencing tariff.
I am sorry I cannot meet the noble Lord on either of his approaches. The courts may well follow considerations very similar to the ones he has put forward, and the Government are very happy to give them the discretion so to do; but we would be unwilling to impose such a requirement on them, and do not believe that the amendments would enhance the principle of parental responsibility which underlies the clause. I could not therefore recommend that the House accepts the noble Lord's amendments.
Lord Mishcon: My Lords, I was once present in a law court and heard a very learned counsel, who unfortunately was hard of hearing, read from his notes in answer to the speech which was made by opposing counsel. This learned counsel who was hard of hearing told the court that he disagreed completely with the interpretation of his learned friend in regard to various precedents. The fact of course was that his learned friend had not quoted those cases at all. I find myself very much in the same position, but being grateful that the noble Lord, Lord Elton, is certainly not hard of hearing—and we have always found him not hard of understanding, either.
I have made it perfectly clear that we on this side are thoroughly behind the principle of parental responsibility. Although we have in mind the situation in the last part of the 19th century in regard to children and parents, certainly in particular areas of London, we decidedly have it in mind that one of the unfortunate things that have happened is that there
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has been a lessening of discipline in the home and a lessening of parental responsibility. All that we have sought to do—and this is the case that the noble Lord the Minister has not answered—is to see to it that the court, when making a parent responsible in these circumstances, has definitely some material considerations in mind. And I have said that we were doing that for the sake of consistency and clarity, the Government having themselves made the point that up till now these powers have not been used by virtue of the fact that the courts were not clear as to what they ought to do.
Nothing in these amendments says that this is all that the court ought to take into account. The court can take into account all other matters it wants to. It merely shows the matters which, if relevant to the case, the court ought certainly to take into account among any others it might have in mind having regard to the circumstances of the case. So, not having had an answer to a case which I hope I made clearly, and thinking that that case is an important one, I ask that the opinion of the House be tested.
7.5 p.m.
On Question, Whether the said amendment (No. 29) shall be agreed to?
Their Lordships divided: Contents, 60; Not-Contents. 67.

DIVISION NO. 3

CONTENTS

Ardwick, L.

Irving of Dartford, L.

Aylestone, L.

Jacques, L.

Bacon, B.

Jeger, B.

Beaumont of Whitley, L.

John-Mackie, L.

Bishopston, L.

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

Blease, L.

Blyton, L.

Lloyd of Kilgerran, L.

Boston of Faversham, L.

Lovell-Davis, L.

Brockway, L.

McCluskey, L.

Brooks of Tremorfa, L.

Mayhew, L.

Byers, L.

Melchett, L.

Cledwyn of Penrhos, L.

Milner of Leeds, L.

Collison, L.

Mishcon, L.

David, B.

Ogmore, L.

Davies of Leek, L.

Peart, L.

Davies of Penrhys, L.

Pitt of Hampstead, L.

Diamond, L.

Ponsonby of Shulbrede, L [Teller.]

Donaldson of Kingsbridge, L.

Elwyn-Jones, L.

Rochester, L.

Faithfull, B.

Seear, B.

Foot, L.

Stedman, B.

Gardiner, L.

Stewart of Alvechurch, B.

Gladwyn, L.

Stewart of Fulham, L.

Glenamara, L.

Strabolgi, L.

Hampton, L.

Taylor of Blackburn, L.

Harris of Greenwich, L.

Taylor of Gryfe, L.

Heycock, L.

Thurso, V.

Houghton of Sowerby, L.

Tordoff, L.

Howie of Troon, L.

Underhill, L.

Hutchinson of Lullington, L.

Whaddon, L.

Hylton, L.

Wigoder, L.

NOT-CONTENTS

Airey of Abingdon, B.

Campbell of Alloway, L.

Auckland, L.

Carnegy of Lour, B.

Avon, E.

Cathcart, E.

Bagot, L.

Chelwood, L.

Bathurst, E.

Coleraine, L.

Belstead, L.

Craigavon, V.

Boardman, L.

Craigmyle, L.

Brougham and Vaux, L.

Cranbrook, E.

747

Crawshaw, L.

Long, V.

Croft, L.

Loudoun, C.

Davidson, V.

Lyell, L.

De L'Isle, V.

McFadzean, L.

Denham, L. [Teller.]

Mackay of Clashfern, L.

Dilhorne, V.

Macleod of Borve, B.

Drumalbyn, L.

Margadale, L.

Elliot of Harwood, B.

Mersey, V.

Elton, L.

Mottistone, L.

Ferrier, L.

Murton of Lindisfarne, L.

Fortescue, E.

Orkney, E.

Glanusk, L.

Pender, L.

Glenarthur, L.

Penrhyn, L.

Hailsham of Saint Marylebone, L.

Platt of Writtle, B.

Rankeillour, L.

Hatherton, L.

Rochdale, V.

Henley, L.

St. Aldwyn, E.

Hives, L.

St. Davids, V.

Home of the Hirsel, L.

Sandys, L. [Teller.]

Hylton-Foster, B.

Sharples, B.

Ironside, L.

Skelmersdale, L.

Kilmany, L.

Strathclyde, L.

Kinloss, Ly.

Trefgarne, L.

Lane-Fox, B.

Vaux of Harrowden, L.

Lauderdale, E.

Vickers, B.

Lindsey and Abingdon, E.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
[Amendments Nos. 30 and 31 not moved.]
Lord Sandys: My Lords, I think it would be for the convenience of the House if at this juncture we take our dinner adjournment and return at 8 o'clock. I beg to move that further proceedings on the consideration of Third Reading be now adjourned until 8 o'clock.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.14 p.m. until 8 p.m.]
Lord Donaldson of Kingsbridge Lord Donaldson of Kingsbridge moved Amendment No. 32:
After Clause 29 insert the following new clause:
Age of defendants.
(" .For all purposes of the Children and Young Persons Acts relevant to the age of the defendant, the age shall be that at which the alleged offence was committed.").
The noble Lord said: My Lords, in previous discussions we have raised this point and I thought that the position as announced by the Government was clear and therefore I did not pursue it further. But my friend Lady Janner, who is a magistrate and marvellously persistent, came to the conclusion that it was not clear. She persuaded me to pursue it. She has involved the Chief Metropolitan Magistrate, who agrees with her, and it seems that a good deal of confusion remains. Therefore, this is a probing amendment. What I want to get out of the Government is recognition that something needs dealing with and a promise that they will deal with it.
The position, roughly speaking, is that the case of Daley, which was a House of Lords judgment, was thought to settle the matter; but it now appears that it has not done so. The Chief Metropolitan Magistrate writes in answer to a letter from the Home Office:
"I have already made it clear that it is a matter of indifference to myself and I think to my colleagues at which point a person's age should be decided. The only thing that we ask is that whatever point is chosen it should not be liable to chance or manoeuvre and be uniform throughout the Act".
This is what I am asking for. It is perfectly clear that it does not matter where the right age is decided providing it is decided at the same place in all the circumstances. I was encouraged by Lord Elton's reply to Lady Janner at the beginning of this month, a few days ago when he said:
"You will see that, for reasons set out in the letter, we do not think it necessary or advisable to seek to amend these complex provisions in the last stages of the Criminal Justice Bill. But we do agree that the provisions need further careful consideration and this we shall be giving them".
The letter to which the noble Lord refers is of an infinite complexity and at this hour of the night (nor indeed would I do so early in the morning) I shall not inflict it on your Lordships. I want an assurance from the Government that they will consider this matter, and consider it carefully, and also that they will give us an answer within a reasonable time. At what stage is the offender's age to be calculated? Is it his age at the time the crime is committed? We tend to think that that would be the obvious answer, but I gather that the Government do not like that. Is it to be some other time? If so, what time?
All I am asking the Minister to say now is that he regards this as a serious and confused position. He admits that technically magistrates do not know how to find out the age of a person before them, and says that he will without undue delay have an examination of this fact and give us an answer. I beg to move.
Lord Elton: My Lords. I could rehearse some of the complexities to which the noble Lord has referred and possibly throw some additional light on them, but I do not think that that is what the noble Lord wants and I shall not therefore detain your Lordships. The amendment touches on matters of very great importance and some complexity—or should I say of some importance and very great complexity? At this stage of the Bill's progress I cannot do them justice. Indeed, I do not think, as I have said, that the noble Lord would wish me to do so. I can assure the House and the noble Lord that the Government are seized of the issues involved. We are giving them very careful consideration. We have begun the examination of them with the Chief Metropolitan Stipendiary Magistrate. We are also in touch with the Magistrates' Association and the Justices' Clerks' Society. We shall continue this process of consultation and our aim will be to seek agreement on the interpretation of the existing provisions, taking into account the decisions of the courts in the cases bearing on the issue. In the light of this, we shall consider what changes may be needed. I think that is what the noble Lord wishes me to say. This may mean legislation.
The Chief Metropolitan Magistrate has indeed urged that we should use the opportunity presented by this Bill to clarify the law right away. I should like to explain why we do not propose to do so. Our present view is that the existing provisions, though undeniably complex, are workable; and whatever view one takes of that—and, as I say, it is a matter that we are now testing in consultation with others—their very complexity means that any attempt at rapid legislation would be fraught with difficulty.
If we attempted to clarify the provisions at this late stage of the Bill before we have really been able to think through all the implications, the chances are that

749
hastily constructed new provisions would only create new confusion. The Government are therefore convinced that, even if legislation proves to be necessary, it cannot be rushed into. Your Lordships are sufficiently aware of the background to this matter for me not to explain about the cases which have precipitated the question so late. I hope your Lordships will accept from me that we are seized of the problem. We are looking at it in depth and if it is necessary to take steps, we shall take them.
Lord Donaldson of Kingsbridge: My Lords, I am most grateful to the noble Lord. I think that answer is satisfactory to us all and we shall watch progress with some interest, and every now and then we may give a little dig to see what is happening. But we have had the promise from the noble Lord. That is what I wanted. I think it is what the Chief Metropolitan Magistrate wanted, and I know it is what my friend and colleague Lady Janner wanted. We shall wait with interest to see what in fact happens and how soon. Having said that, I wish to withdraw the amendment.
Amendment, by leave, withdrawn.
8.9 p.m.
Lord Elton Lord Elton moved Amendment No. 33:
Before Clause 30, insert the following new clause:
("Power of Crown Owl to grant bail pending appeal.
.—(1) In section 81 of the Supreme Court Act 1981—
(a) In subsection (1) (which lists cases in which the Crown Court may grant bail) at the end of paragraph (e) there shall be added—
"or
(f) to whom the Crown Court has granted a certificate under section 1(2) opr 11(1A) of the Criminal Appeal Act 1968 or under subsection (1B) below:";
(b) the following subsections shall be inserted after that subsection—
"(1A) The power conferred by subsection (1)(f) does not extend to a case to which section 12 or 15 of the Criminal Appeal Act 1968 (appeal against verdict of not guilty by reason of insanity or against finding of disability) applies.
(1B) A certificate under this subsection is a certificate that a case is fit for appeal on a ground which involves a question of law alone.
(1C) The power conferred by subsection (1)(f) is to be exercised—

(a) where the appeal is under section 1 or 9 of the Criminal Appeal Act 1968, by the judge who tried the case; and

(b) where it is under section 10 of that Act, by the judge who passed the sentence.

(1D) The power may only be exercised within twenty eight days from the date of the conviction appealed against, or in the case of appeal against sentence, from the date on which sentence was passed or, in the case of an order made or treatedasmade on conviction, from the date of the making of the order.
(1E) The power may not be exercised if the appellant has made an application to the Court of Appeal for bail in respect of the offence or offences to which the appeal relates.
(1F) It shall be a condition of bail granted in the exercise of the power that, unless a notice of appeal has previously been lodged in accordance with subsection (1) of section 18 of the Criminal Appeal Act 1968—

(a) such a notice shall be so lodged within the period specified in subsection (2) of that section; and

(b) not later than 14 days from the end of that period, the appellant shall lodge with the Crown Court a certificate from the registrar of criminal appeals that a notice of appeal was given within that period.

(1G) If the Crown Court grants bail to a person in the exercise of the power, it may direct him to appear—
750

(a) if a notice of appeal is lodged within the period specified in section 18(2) of the Criminal Appeal Act 1968 at such time and place as the Court of Appeal may require; and

(b) if no such notice is lodged within that period, at such time and place as the Crown Court may require.".

(2) In the Criminal Appeal Act 1968—
(a) in section 11—
(i) in subsection (1), for the word "An" there shall be substituted the words "Subject to subsection (1A) below, an"; and
(ii) the following subsection shall be inserted after that subsection—
"(1A) If the judge who passed the sentence grants a certificate that the case is fit for appeal under section 9 or 10 of this Act, an appeal lies under this section without the leave of the Court of Appeal.";
(b) the following section shall be substituted for section 19—
19.—(1) The Court of Appeal may, if they think fit,—

(a) grant an appellant bail pending the determination of his appeal; or

(b) revoke bail granted to an appellant by the Crown Court under paragraph (f) of section 81(1) of the Supreme Court Act 1981; or

(c) vary the conditions of bail granted to an appellant in the exercise of the power conferred by that paragraph.

(2) The powers conferred by subsection (1) above may be exercised—
(a) on the application of an appellant; or
(b) if it appears to the registrar of criminal appeals of the Court of Appeal (hereafter referred to as "the registrar")) that any of them ought to be exercised, on a reference to the court by him.";
(c) the following paragraph shall be substituted for section 31(2)(e)—
"(e) to exercise the powers conferred by section 19 of this Act;".
(3) The following subsection shall be inserted after section 30(7) of the Legal Aid Act 1974—
"(7A) Where a certificate that a case is fit for appeal has been issued under the Criminal Appeal Act 1968 or under section 81(1B) of the Supreme Court Act 1981, legal aid which may he ordered to be given by a legal aid order under section 28(7) above shall include legal aid for the purposes of an application for the grant of bail by the Crown Court.".").
The noble Lord said: My Lords, when the amendment now embodied in Clause 30 of the Bill was so persuasively moved by the noble Lord, Lord Hutchinson, at Report stage, I drew attention to what I saw as a number of defects in the drafting of the clause and a number of difficulties over the operation of the new arrangements. In now reverting to the subject, I hope that your Lordships will agree to my speaking also to Amendments Nos. 34, 73 to 78, 124, 127 and 132.
We have, since the discussions at the last stage, given considerable attention to ways in which these difficulties might be overcome, and the result is the rather daunting array of amendments which I have just recited. I am sorry that, because this is such a very technical area of court procedure, these are, of necessity, rather complicated and appear different in form to Clause 30, for which they need to be substituted. I should like to emphasise, however, that in no way do these amendments affect the principle established in Clause 30 that the Crown court shall be empowered to grant bail to intending appellants to the Court of Appeal. That principle was established by your Lordships on a vote, and it remains intact. Rather, they seek to correct defects which exist in the present clause and to provide a detailed and more workable procedural framework within which the Crown court and the Court of Appeal (Criminal Division) can operate to deal with such cases.
I should like, if I may, to outline briefly the effect of the amendments. In the first place, the power to grant bail will be exercisable—as I know was the noble Lord's intention—only by the judge who presided at the trial or who passed sentence. Under these new arrangements, the power will be exercisable not only in relation to a person convicted on indictment, as provided in Clause 30, but also in relation to a person convicted summarily who is brought before the Crown court for sentence and wishes to appeal to the Court of Appeal against that sentence. I am sure that noble Lords will agree that there is no reason why this class of offender should not have the same right to apply for bail as other appellants.
Clause 30 at present provisdes that bail may be granted only where the person convicted has given the Court of Appeal a notice of appeal or notice of leave to appeal. I explained during the debate at Report stage the scope for delay and the difficulties inherent in this. We have concluded therefore that it should not be necessary for the notice of appeal to have been lodged with the Court of Appeal before bail can be granted. At the same time there seems a strong case for some mechanism which ensures that the courts are not faced with a flood of unmeritorious appeals simply on the off-chance that bail will be granted as a result. We think therefore that some filter is needed. This brings me to the most important new features of our proposals—namely, that, for the purpose of granting bail, it should be sufficient, after the trial, for the presiding judge to issue a certificate that in his opinion the case is one fit for appeal. The appellant may then apply for bail immediately, but, in order to ensure that he carries out his stated intention to submit an appeal, the amendments provide in a new subsection 1(F) that it shall be a condition of any bail granted that a notice of appeal shall be lodged within the period of 28days prescribed in the Criminal Appeal Act 1968 for the lodging of such appeals. We intend the effect to be to speed up the process for granting Crown court bail in those cases where the judge thinks it appropriate.
Under Section 1(2) of the Criminal Appeal Act 1968, a judge of the Crown court already has power to grant a certificate of fitness for appeal where the ground of appeal involves a question of fact or mixed law and fact. Through the new Clause 1(b)(1B), the amendments give a judge power to certify the fitness for appeal of appeals against conviction involving a question of law alone, thus completing the spectrum. I should stress that such a certificate will be required only where the appellant desires to apply to the Crown court for bail pending appeal. It will not affect the existing right of such offenders to appeal direct to the Court of Appeal without having to obtain the court's leave. By new Clause 1(b)(1C), a judge of the Crown court would also be given power to grant a certificate of fitness in relation to appeals against sentence made under Sections 9 or 10 of the Criminal Appeal Act 1968. This places all applicants for bail pending appeal on the same footing. Subsection (3) of the amendment amends the Legal Aid Act 1974 so as to make legal aid available for the purposes of an application to the Crown court for the grant of bail.
Other provisions of the new clause, which amend the Criminal Appeal Act 1968, deal with the relationship between the Crown court and the Court
752
of Appeal. For example, it would clearly be wrong for an appellant whose application for bail was refused by the Court of Appeal itself to attempt to go behind that decision by subsequently applying to a judge of the Crown court. Or, again, once a case has reached the Court of Appeal that court should be empowered to take its own decision as to whether bail granted by the Crown court should continue, taking into account any changes in circumstances since the case was tried. These matters are dealt with in the proposed amendments to Section 19 of the 1968 Act. There are in addition a number of amendments of a purely technical and consequential nature. These include amendments to Clause 59, to Schedule 15 and to the Long Title of the Bill.
I have accepted your Lordships' decision on Report. We have done our best to translate the wishes expressed in Clause 30 in workable form. It has not been an easy task and your Lordships will forgive me for having explained it in such detail for the record, but I hope that your Lordships will agree that we have accomplished it and will now accept it in place of Clause 30 as it at present stands. I beg to move.
Lord Hutchinson of Lullington: My Lords, as the original mover of the amendment for which this amendment is substituted, I should like to welcome the substitution and to express to the Minister my gratitude and that of my colleagues, as well as the gratitude of the All-Party Penal Affairs Group, for the form in which these amendments have come forward. It seems to me that the work which has been done on this amendment has been substantial and it seems to have put into effect the wishes of this House. I must say, as a comparative novice in these matters, that it would never have occurred to me that the "knock-on" effect of putting forward an amendment of this kind could be so complex and so complicated as it now appears to be. Indeed it is perhaps illustrative of why officials very often resist the putting forward of very simple reforms.
Having said that, may I just say that the aims of those who put forward this amendment really were threefold? They intended, first, to save time and cut down unnecessary delay and paper work. Secondly, they wished to give power to the court which was already seized of all the facts and where the lawyers and the police and the defendant were all present and could deal with the question of bail without involving the cost of going up to London, if those concerned lived outside it, and of making an application to the court, so saving a great deal of time and money. Thirdly, the intention was perhaps to liberalise the present very restrictive approach of the Court of Appeal (Criminal Division) to the question of the granting of bail pending an appeal.
That leads me really to enter my one reservation and concern about these amendments—that under the new Section 19(b) on page 13 of the Marshalled List it will be seen that the Court of Appeal is given power to revoke the bail which has been granted by the court of trial or to vary the conditions of the bail. I absolutely appreciate that the superior court no doubt has to be given that power, being a reviewing court and a superior court. But of course it means that the single judge will have this power. I would express at least my hope that the Court of Appeal (Criminal Division) will not issue some form of ukase after this becomes law,

753
laying down very restrictive principles in which Crown court judges and other judges may in fact allow bail when notice of appeal has been given.
I sincerely hope that that will not happen and that the Court of Appeal (Criminal Division) will allow this matter to go forward and wait to see how it works before issuing any such direction.
At the moment—your Lordships may not appreciate this—the attitude to bail in the Court of Appeal (Criminal Division) is that the circumstances have to be exceptional and such that would drive the court to conclude that justice can be done only by granting bail. That is such a restrictive approach to the question of bail that I hope that, in the spirit of this amendment—and it is certainly lying behind the wishes of those who moved the amendment—it will now be somewhat liberalised, and that the Court of Appeal (Criminal Division) will see how it works and accept that perhaps the principles enunciated in the Bail Act will be those which eventually apply to bail applications of this type, as well as those covered by the Bail Act. I welcome this amendment.
Lord Campbell of Alloway: My Lords, having supported this amendment, may I be allowed to add my congratulations on the way in which this has been brought forward and my total dissent from everything that the noble Lord, Lord Hutchinson, has said about the approach to bail, because I happen to take a different approach. But that is by the way. The point is that the Government have met the spirit of the amendment which was proposed, and this does not bring with it the dispute that arises as to the correct approach to bail.
On Question, amendment agreed to.
Clause 30 [Bail pending appeal:]
Lord Elton Lord Elton moved Amendment No. 34:
Leave out Clause 30.
On Question, amendment agreed to.
Lord Wigoder Lord Wigoder moved Amendment No. 35:
After Clause 31, insert the following new clause:
("Activation of suspended sentence.
. In section 23(1) of the Powers of Criminal Courts Act 1973, the words "which have arisen since the suspended sentence was passed" shall be ommitted.")
The noble Lord said: My Lords, this amendment was moved at Report stage and met with a substantial degree of support from various parts of the House. At that time, the noble Lord, Lord Elton, indicated that he would wish to consider the matter sympathetically before Third Reading. I hope that I am not wrong in deducing from his exceptionally benevolent expression at this moment that I may now therefore take this matter rather more shortly than I otherwise would have done.
The position is this. Where a man commits an offence and is already subject to a suspended sentence, the law is that in almost every case he should serve not only the sentence for his new offence, but also, and in addition, the full suspended sentence. That is obviously sensible, because otherwise the suspended sentence would not have its proper deterrent value. However, there is in the present existing legislation
754
what might be called an escape clause, in that in an exceptional case the court may take a different course, where it is of the opinion that it would appear to be unjust to impose the whole suspended sentence consecutively, in view of all the circumstances which have arisen since the suspended sentence was passed, including the fact of the subsequent offence.
All that this modest amendment seeks to do is to remove the words
"which have arisen since the suspended sentence was passed",
so that it increases to that small extent the discretion of the court in those exceptional cases to review the whole history of the matter, and the whole of the defendant's history, before deciding whether to impose the full suspended sentence. In that very small number of cases, if this amendment is acceptable to your Lordships, it will be that a small number of people will not be sent to prison upon whom under the present law the court may find themselves obliged to inflict that penalty. My Lords, I beg to move.
Lord Elton: My Lords, I must advise the noble Lord, Lord Wigoder, that it is dangerous to assume the reception that I will give to an amendment by whether it is taken immediately before or immediately after dinner. Having said that, the noble Lord has not, in fact, been misled.
The amendment raises a detailed but nonetheless important point on the provisions under which the courts deal with offenders already subject to a suspended sentence. We had an interesting debate at the Report stage, at the conclusion of which I undertook to consider the case for the relaxation proposed in the amendment.
It is an important principle on which the suspended sentence is based that the offender should know that if he re-offends there is every likelihood that he will have to serve the sentence of imprisonment which was suspended. Section 23 of the Powers of Criminal Courts Act 1973 gives the courts little discretion. At Report stage, and with support from my noble friend Lady Macleod, I set out the reasons for being cautious; in particular, the need not to undermine the offender's expectation that the suspended sentence will be activated on re-offending.
Her Majesty's Government have now reflected and are satisfied that it will be an improvement to the Bill if we increase the discretion of the courts by omitting the restrictions contained in the words that the amendment seeks to remove from the Bill. We are satisfied that it will not undermine the effectiveness of the deterrent impact of the suspended sentence, and that it will strengthen the powers of the courts in dealing with re-offenders. So I am glad to be able to advise your Lordships that we think that this amendment should be accepted.
On Question, amendment agreed to.
Clause 32 [Early release of prisoners]:
8.27 p.m.
Lord Elton Lord Elton moved Amendment No. 36:
Page 34, line 6, at end insert ("and
(c) an offence specified in Part III of that Schedule.")
The noble Lord said: My Lords, with the leave of the House, I think it would be helpful if, with this

755
amendment, I spoke also to Amendments Nos. 94 to 97 inclusive. The amendments fall into two categories. First, this amendment and Amendments Nos. 94 and 97 together have the effect of excluding from eligibility for early release under the provisions of clause 32 those prisoners who are serving sentences for offences of trafficking in drugs. This is in fulfilment of an undertaking I gave in the course of a debate on an amendment moved by the noble Lord, Lord Harris, on this issue at Report stage. He argued then, and I agreed with him, that those who traffic in hard drugs are at least as much a menace to society as those who commit offences of violence. And on that basis we would not wish to resist the exclusion of such offenders from the provisions of Clause 32.
Your Lordships will note that it has not been possible to confine the exclusion to trafficking in class A drugs as envisaged in the amendment moved by the noble Lord at Report stage. The offence provisions which are listed in these amendments do not themselves distinguish between the various classes of controlled drugs; and to make such a distinction in the schedule would therefore be inappropriate, since it operates essentially by reference to enactments. Moreover, the prison service, when assessing eligibility for early release, would in practice experience difficulty in distinguishing between offences involving class A drugs and those involving less serious categories. This is because this information is often omitted from the warrant of commitment issued by the courts.
We would ourselves naturally have preferred to define this exclusion as narrowly as possible. But I think that the feeling of the House is strongly that those who traffic in hard drugs should be excluded from Clause 32 and this slightly wider formulation is necessary if that is to be achieved. The second set of amendments is purely technical. The schedule at present refers to the Hijacking Act 1971 and the Protection of Aircraft Act 1973. These measures have, however, now been consolidated in the Aviation Security Act which received Royal Assent this summer. Amendments Nos. 95, 96 and 97 are therefore just the references required in the schedule. I beg to move.
Lord Harris of Greenwich: My Lords, I am grateful to the Minister for having accepted the amendment which the noble Baroness, Lady Trumpington, and I put forward during the Report stage of the Bill, Obviously, I agree with the noble Lord that it is important for Parliament to indicate the grave view it takes of trafficking in class A drugs—particularly in heroin and cocaine—although I accept the argument which he has put forward indicating that there would be administrative problems over differentiating this particular category of offender from others.
I do not in any way wish to appear ungracious because the noble Lord has accepted totally the case put forward by the noble Baroness and myself. The only point I must emphasise is my own serious concern—this may appear at one stage to be rather illogical—about having any exclusions at all from the executive release scheme. I think the Government must accept that if the executive release scheme is ever implemented there will be great problems associated with it. Notwithstanding that, if there are to be exceptions, obviously it is necessary for us to have this
756
particular category of offenders. The wider public would find it extremely difficult to understand why it was that those who had been convicted of assault occasioning actual bodily harm were not allowed to emerge from prison whereas those who had been involved in trafficking in possibly £5 million or £6 million worth of heroin were allowed to leave prison. For that reason I put down the amendment. If there are to be exceptions, it seems to me to be absolutely right that people who have committed offences of this degree of gravity should be linked with those who have committed acts of violence.
To return to the central point, however, I welcome very much the fact that the Government have met us on this matter, and I express my personal gratitude to the Minister for having done so.
Lord Donaldson of Kingsbridge: My Lords, before the House goes any further, does what the Minister said mean that someone trafficking in drugs which many people think are comparatively harmless—like nicotine, alcohol or cannabis—will be subject to this point?
Baroness Trumpington: My Lords, following what has just been said by the noble Lord, Lord Donaldson of Kingsbridge, I should certainly be in prison tomorrow for nicotine trafficking: offering a cigarette to my neighbour. May I add my warm thanks and associate my gratitude with that expressed by the noble Lord, Lord Harris of Greenwich, to the Government for having taken note of our amendment on the previous occasion.
Lord Elton: My Lords, I speak by leave of the House. The noble Lord asked one substantive question. We are talking about controlled drugs. As the noble Baroness has just made quite clear, the use of nicotine—by many of us—is not controlled.
On Question, amendment agreed to.
Clause 33 [Power to alter minimum period for eligibility for release on licence]:
8.34 p.m.
Lord Harris of Greenwich Lord Harris of Greenwich moved Amendment No. 37:
Page 35, line 36, leave out from ("words") to ("and") in line 13 on page 36 and insert (" "six months thereof";").
The noble Lord said: My Lords, I beg to move this amendment. I propose tonight to make some apology for going rather wider than the terms of this amendment, but given the fact that the argument upon which we are now going to embark involves the whole series of issues related to the size of the prison population it is quite inevitable. So that I propose to do.
I should say at the outset—this point has been made by a number of Members of this House in previous discussion of the Bill—that the Bill as at present drafted, excluding the clause which we are now discussing, will probably have only the most marginal effect upon the size of the prison population. It may go up marginally, it may go down marginally, but by and large the Bill will have only the most limited effect upon the overall size of the prison population. So what in fact will that involve? It will involve numbers in custody at an all-time high, probably the highest prison population in the developed world, apart from

757
the United States. It will ensure a continuation of the situation where there are over 5,000 prisoners herded three to a cell and another 11,000 two to a cell.
There is, I recognise, a problem when one discusses the issue of the size of the prison population, and it is this. There have been so many prophecies of an imminent breakdown of the system, a breakdown which has not taken place, that this has now begun to induce a spirit of some complacency. Constantly people say that if something is not done there will be a breakdown in the system, but months go by and the system appears to be going on just as before.
This, I fear, induces a second thought, which is that in some way we can muddle through. I do not believe that we can continue to muddle through. The system that we have—creaking, grossly overcrowded—is staggering along, in my view (this is literally true) only because of the dedicated work of a number of members of the prison service: members of the governor grades, a number of chief officers, a number of members of the uniformed staff. Were it not for the extraordinary' efforts made by these men and women there would have been just the breakdown that has been so constantly prophesied over the last two years.
Since we last debated this issue at Report stage there have been a number of developments, and I should like to touch upon them. First, we have had the revelation that last year—these are prison department statistics for 1981—we passed the 45,000 milestone. This sombre figure was cast last year. I am not suggesting that it was the average figure; it was a figure reached on one day. But it was not so long ago that a Home Secretary indicated that 42,000 would be an intolerable level. Now we are 3,000 beyond that.
Secondly, we have had the disclosure (I have given the Minister's office notice that I proposed to raise this matter) that because of grievous overcrowding, prisoners are regularly being held in police custody after they have in fact appeared in court, been remanded and become the responsibility of the prison department of the Home Office. This situation has led to correspondence between the Law Society and the director-general of the prison service. I am sure that the Minister will in no way suggest that this does not represent an extremely serious development.
Until the prison officers' dispute of 1980–81 it was unknown—save for the case of super grasses, resident informants, who are in a special category, for obvious reasons—for prisoners to be kept in the custody of the police after they had appeared in a magistrates' court. At the time when it became clear (I was Minister at that time) towards the end of 1978 that there was likely to be a serious dispute with the Prison Officers' Association it became quite obvious that the only way in which this matter could be dealt with, and that the number of prisoners in custody could be contained, would be if there were an acceptance, first by the police and secondly by the Ministry of Defence, that they would both have to become involved in such a situation.
The police were particularly unenthusiastic about taking on this responsibility. I understood at the time and understand now even better the reason for their reluctance to take this on. But they did take it on and now they are paying the price for having agreed to do so. For this is no longer a question of a temporary
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emergency measure to deal with the Prison Officers' Association dispute but has become a regular feature of the situation that has arisen in Greater London.
Within the last few weeks the Law Society has drawn the attention of the Home Office, and in particular the director-general of the prison service, to the gravity of this particular development. I believe that it raises some fundamental questions about the rights of accused persons to have the opportunity to discuss the details of their defence with their lawyers in conditions of confidentiality. That indeed is the position of the Law Society, and the society has made that absolutely clear to the Home Office. I do not believe that can be done in police garages—because that is where these men are being maintained in some cases—or in police stations. I believe it leads to the creation of a totally intolerable situation. I wish to quote briefly from a letter sent by the deputy director-general of the Law Society to Mr. Trevelyan, dated 20th September. It indicates that a number of solicitors practising in London,
"have drawn my attention to the conditions under which some prisoners are being held on remand in magistrates' courts and police stations in the London area. I am writing to you to express the Law Society's concern that there appears to be a serious suggestion that solicitors are unable to obtain proper instruction from defendants who are being detained in such circumstances."
One issue was raised which, if I may say so, Mr. Trevelyan handled with remarkable speed, and the problem has been dealt with with considerable efficiency, in my view. But the Law Society went on to say,
"The second matter which has been drawn to our attention is that once a solicitor does manage to see his client it is often not possible for the client to be interviewed in privacy. I take the view that as a result of these difficulties there is a serious danger that some defendants are not getting the advice to which they are entitled and their preparation of their cases is being prejudiced."
With great respect, that seems to me to represent an even graver development in some respects than some of those which we have discussed in the past.
Let us say as one example that the man's case—and I am totally prepared to accept that the case may be totally unjustified—is that he has been seriously misused in some way by the police. That allegation which he wishes to give to his solicitor is going to have to be given in some cases without any conditions of privacy obtaining and sometimes in the presence of a police officer. I can tell the Minister quite bluntly—and I am quite sure that he will not have any doubts about accepting the accuracy of this argument—that this is a position which the police find quite unacceptable in terms of its being a continuing situation. I very much look forward to hearing what the noble Lord the Minister has to say about the situation because I believe it will become clear as I develop my argument that it is absolutely essential to do what I am proposing to the House at this time.
Before I leave this point I should like to ask another question. What is the cost of all this? I assume that the ratepayers of London are not having to pay a bill which is properly that of the Home Office's prison department. If they are not, I should be very grateful to be told by the Minister this evening—and I am quite sure the House would appreciate it—how much the Home Office pays the Metropolitan Police, and other police forces in the south of England who may from time to time be involved in this matter, to keep

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prisoners in custody in these conditions. We should welcome some explanation. These new revelations in particular emphasise the need for urgent action by the Government. I hope that this will be done very much on a non-partisan, multi-party basis, because many of us wish to have some clear indication of what the Government are going to do—not to say, but to do—to deal with this situation.
I do not suggest for a moment that the amendment which I am proposing in terms of the extension of the parole scheme would deal totally with the entire prison overcrowding situation—of course it would not, but it would certainly have a significant effect and it would probably end for the time being at least the highly unsatisfactory procedure of remanding prisoners in police custody. The history of this amendment can be briefly stated. This amendment, or something along these general lines, was proposed in the Standing Committee in the other place. As a result of what was said on that occasion, the Government came forward with this form of words. I proposed the particular amendment which we are now discussing at the Committee stage of this Bill. I withdrew it and I indicated to the noble Lord the Minister on that occasion that I would return to the matter when we got to Third Reading to give the Government an opportunity to indicate their intentions on this matter.
What is involved in this amendment? What precisely are we proposing? The Bill as now drafted gives the Secretary of State the power to reduce the minimum period for parole eligibility. At present, an inmate has to serve at least one year in prison before he can become eligible for parole. Thus, taking account of his one-third remission, the present parole scheme applies to prisoners serving at least 18 months imprisonment but, in reality, sentences of more than 19 months. Our proposal this evening is that we should substitute six months to be served in prison instead of the 12 months which is the basis of the present parole scheme, and in fact that would be the minimum sentence to be served. Taking account again of the one-third remission rule, the scheme that I am proposing would apply to all those serving, strictly speaking, sentences of nine months or more. But because, obviously, we cannot have a parole scheme where a person serves one, two, three or four days of parole, in reality it would not apply to sentences of 10 months or more.
I accept at once that this would be a substantial extension of the present parole scheme. It would increase significantly the number of cases which would have to be considered by the local review committees which exist in every prison in England and Wales. But if it is argued, as it may be for all I know, that this in itself creates some sort of problem. I hope that Ministers will agree to re-examine the proposals made by a study group of my colleagues on the Parole Board which was submitted to Ministers some time ago and which is referred to in the report of the Parole Board for 1981. This study group was presided over by Mrs. Susan Baring, who was at that time chairman of the Hampshire Probation and After-Care Committee and who is well known to many of us on both sides of the House for her experience in these matters. It included two former deputy Under-Secretaries of State with substantial experience in the criminal justice system,
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a consultant psychiatrist with substantial prison experience of the prison system, a chief probation officer, a Crown Court judge from inner London, and a retired headmaster. They reviewed the present parole scheme, in terms not of what they might have liked, a totally new scheme, but of how the scheme might be more sensibly administered. They came forward with the proposal that it could be more intelligently administered if shorter sentence prisoners' cases were reviewed exclusively by local review committees and longer sentences entirely by the board, and there was not, as there is at the moment, double review. It seemed to me a particularly sensible proposal. I can say that with total freedom as I was not a member of the study group, though I did attend a number of their meetings.
Ministers, I am afraid, did not accept that proposal, but I hope that in the light of the developments there have been since it was submitted to the Home Secretary they will look at it again. I believe it represents a sensible proposal for reform of a kind which would make it quite possible to accept this amendment and administer it without some of the formidable difficulties that some have prophesied if the scheme I have suggested was implemented.
I do not in any way deny that there will be some resource implications in the proposal that is contained in this amendment. There would be an increase from the present figure of 3,000 or so on parole to somewhere in the region of 5,000 on parole. There would, of course, be some implications as far as the probation service was concerned, in terms not only of supervision but of the preparation of reports for local review committees. However, I think it is possible to exaggerate the resource implications as far as the probation service is concerned. We do have over 5,000 probation officers in England and Wales. We would still have a situation where there would be barely one parolee for every probation officer in this country. I think it would also undoubtedly increase the workload for members of the prison staff, particularly those who work in local prisons. There would probably be another 8,000 or so cases that would go to local review committees every year.
However, in my view the advantages of this proposal far outweigh those considerations. First, it would extend the parole scheme to shorter sentence prisoners, precisely the category of offender who would probably benefit most from supervision in the community and whose release would create the least anxiety as far as the general public is concerned. Secondly, it would have a major effect in the local prisons, and that is where the overcrowding is most serious. It is in the local prisons that we have two men or three men to a cell in conditions of Victorian squalor with slopping out and all the other obscenities which take place on a day-to-day- basis in our prison system. It is those prisons, where we herd these shorter sentence prisoners, which would be affected by this amendment.
There would indeed, I believe, be an additional advantage of the scheme that I have outlined if it was added to the Bill. The new scheme would permit many inmates now serving sentences of, let us say, 2 years' imprisonment to be considered not for the two months or so parole which they can get from the existing scheme because of the 12-months minimum rule, but

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in some cases, if it is the opinion of the local review committee, endorsed by the Home Office, of course, they would be able to get possibly as much as 12 months' parole. It would have a very significant effect indeed upon the numbers held in custody and upon the character of the parole scheme as we know it.
I do not suggest for a moment that this proposal by itself would end the crisis in our prisons, but as The Times pointed out in a particularly sensible leader which I read a few weeks ago, what is needed in the present situation is not one all-embracing idea which deals with the whole of the situation but a whole series of interlocking proposals which taken together would have a most significant effect upon the size of the prison population and would reduce the present intolerable strains on our prison system.
The Government have, unhappily, opposed many of the other proposals which could have formed important parts of just such a comprehensive attack upon the size of our prison population. All that is now left, as we reach the final stages of this Bill, is the parole system itself. This, proposal I repeat, cannot by itself solve the problem; even if the scheme I am proposing was to be introduced grievous overcrowding would undoubtedly continue; but I believe it would make a major contribution towards creating rather more civilised conditions in many of our prisons and lessening the strains which now affect both staff and inmates alike. It would also be acceptable, I believe, to a public rightly concerned about the rising level of crime. I believe they would see an extension of the parole scheme, which does have substantial support among informed public opinion, as a rational response to a situation of the greatest degree of seriousness, I believe that the need for action along these lines is now desperately urgent. I believe it would be quite irresponsible of this House, as we reach the concluding discussions on this Bill, to close its eyes to the gravity of the situation which we are now discussing and that it ought to make a clear decision on the issues of principle now involved. I beg to move.
Baroness Trumpington: My Lords, in the context of the prison world my opinion is that cleanliness is more important than godliness. I think those words of mine are shared by the noble Lord, Lord Harris of Greenwich, who has spoken eloquently of the really bad conditions in our local prisons. Those words are also echoed in the Report for 1981 of Her Majesty's Chief Inspector of Prisons. He does not exactly say what I said, but he does say that the overcrowding really makes for the inevitable preoccupation with the basic routine of bathing, feeding, exercising and slopping out, all because of the weight of numbers. Later in the Report he commented:
"By no stretch of imagination can these conditions be regarded as humane or proper. They are unacceptable. They certainly fall short of the standard suggested by Rule 5(3) of the European Standard minimum rules, which says that the deprivation of liberty should be effected in material and moral conditions which ensure respect for human dignity. Indeed, we doubt if this standard can be said to have been realised in any of our local prisons".
That seems to me to come from an impeccable source. This amendment would not, of course, produce such a radical reduction in the number of prisoners, but more radical proposals have been rejected at earlier stages of the Bill, and this proposal would at least provide some relief for the local prisons.
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Since its introduction in 1968, the parole scheme has shown that many sentences can be reduced in length without significant risk to the public. In 1981, 9,620 determinate sentence prisoners were considered for parole, of whom 5,271–54·9 per cent.—were granted parole; and the proportion of eligible prisoners who are granted parole at some point in their sentences is now 63·6 per cent. However, the proportion of those recalled for misbehaviour while on parole has always been low. During 1981, 544 people on parole from determinate sentences were recalled to prison during their parole period and had their licences revoked. That represents 10·3 per cent. of those recommended for parole in that year. Less than half of these—268 out of 544—had committed another offence while on parole; the others were recalled for breaches of their parole licences which did not involve an offence. Even this very low rate of re-offending while on parole licence must be seen in the light of the Parole Board's comment in its report for 1971; namely:
"In all fixed term sentences the question before the Board is not whether a man should be released from prison—that is going to happen in any event—but when is the best moment for release, and whether the risk of his re-offending is more likely to be reduced if he is placed under supervision and given statutory after-care, than if he is released at the normal time without any control over his future behaviour."
This point is especially relevant in the case of short-term prisoners, where the additional period of imprisonment, if parole is not granted, would be only a few months.
It has traditionally been argued that, without the requirement that a substantial minimum period of imprisonment must be served before release on parole is possible, first, it would be impractical to go through the time-consuming process of reviewing someone for parole and, secondly, that in considering him for parole it would be difficult to find grounds which differed from the information available to the sentencing court.
However, the argument about the time-consuming nature of the parole machinery could be overcome if all the decisions in these cases were made by the prison's local review committee. The second argument could be overcome if the local review committee had available not only the initial police reports but also more recent reports from the prison and probation services within the prison and an up-to-date home circumstances report from the home probation officer. The Parliamentary All-Party Penal Affairs Group has therefore concluded that this proposal is not only right in principle but is also perfectly practicable.
When this amendment was discussed in Committee in the House of Lords on 1st July my noble friend Lord Elton said that the Government were persuaded of the desirability of reducing the minimum threshold for parole eligibility and had
"already put in hand the detailed investigatory work on the issues necessary to be resolved."
He said that it would be necessary to consult the prison, police and probation services and the Parole Board, but that this work was being carried out
"with the greatest expedition possible."
When my noble friend the Minister was asked whether he would accept the amendment and fix a suitable future commencement date, he replied:

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"that idea had been hovering in the back of my mind, but I had not taken advice on it; and as this issue is going to be raised again at a later stage, perhaps we may address ourselves to it then."—[Official Report, 1/7/82; cols. 381 and 383.]
May I conclude by asking my noble friend the Minister: what progress has been made in the three and a half months since this matter was debated in Committee?
Baroness Macleod of Borve: My Lords, may I briefly make one or two points about which I feel very strongly. First, our prisons are overcrowded because there is a violent increase in crime. Secondly, I should like to ask the judges concerned not to send people to prison for what we call relatively minor cases—in other words, I should never send anyone to prison on a drunken charge. Perhaps I would do so if the charge was one of being drunk and disorderly and the accused had been guilty of it several times, but never just for drunkenness. I know that there are many people in prison for that offence.
Thirdly, we are in danger of abrogating the responsibilities of the judges. They send the people to prison, and they have the people in front of them. They have heard their backgrounds and about the crime. They decide on the sentence. If we or anyone else, within this ambit of one year, by statute decide that the prisoners should be paroled, we are abrogating the responsibility of the judges.
Lord Elton: My Lords, in his introduction to the amendment the noble Lord, Lord Harris, drew our attention to the number of prisoners at present in prison. I can assure him that there is no complacency whatever in the Government or administration about that.
Within hours of being appointed to my present responsibilities I was faced with a full-scale review of the prison system, instigated by the noble Earl, Lord Longford. Since that moment the level of the prison population has been inescapably etched on my mind. Further, since that day the consequences have been borne out in my visits to various custodial institutions. Consequently, I do not need reminding, neither do your Lordships, of the dedication of the staff required to cope with these extreme conditions. There is no lack of recognition of that.
My noble friend Baroness Trumpington pointed out the weight which the prison population places on the prison population and the prison staff in the matter of the regime for the prisoners. It is necessary to recall that the lack of a constructive regime for a prisoner has a destructive effect on the morale of the person who keeps him in prison. We are all too well aware of that.
I do not think that your Lordships gave perhaps sufficient credit to the present Government for having the biggest prison building programme since the war. I do not think that your Lordships perhaps gave sufficient credit for the series of alternatives to custody that we are developing, not least within the framework of this Bill or, indeed, for the extension that is contained within it to the power to partly suspend sentences, that power itself having been implemented by this Government.
I would in my own preface to my reply to the noble Lord quote back to him the diagnosis which he quoted, I think, from The Times, if I recall it correctly,
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that what we are looking for is not one all-embracing idea that will solve all the problems, but a series of interlocking proposals. With respect, I think that we have the beginnings at least of that.
I should like to turn now to the detail of what the noble Lord asked me. First, he brought forward the letter from the Law Society. There have in fact been two. On the matter of accessibility, I think that he was kind enough to acknowledge that we acted quite swiftly. On the matter of privacy, we have received only this morning suggestions from them to which I cannot honestly respond at such short notice, but they will be responded to very swiftly. As to the question of costs, they are borne by central Government: they are not borne by the ratepayers or by the police. Indeed, I should say that I am speaking now about the costs of keeping prisoners in police station cells and magistrates' courts cells. It works out at about £70 to £80 per night which, as I have said, is not a charge on the rates and which is, in fact—although this is no recommendation of it at all—a good deal cheaper than keeping them in prison.
When the noble Lord put down his amendment at the Committee stage, I assured him—and I have been reminded of it—that the Government were in sympathy with its objective but could pursue it only on the basis of the fullest possible consideration of the implications which such a course could have—implications on the integrity of the principle and practice upon which the success of the existing parole scheme has been built. We have already made substantial progress in analysing what would need to be done in bringing access to parole to some of the shorter sentence population.
The review of parole published last year concluded—as noble Lords will know—that any significant reduction in the parole threshold would destroy the essentially selective nature of the parole scheme. We believe that this was too pessimistic a view, but I must make it clear at the outset that a parole scheme applying to short sentence prisoners, and thus involving a reduction in the time available for observation and reporting, would necessarily be somewhat different from the scheme to which we are accustomed, and I shall return to that.
Moreover, a scheme for shorter sentence prisoners would have to reflect the nature of the newly eligible population as well as the shortness of time available for review. The short sentence population is different in many ways from those serving longer terms: in particular, it contains a high proportion of the more inadequate, rootless kind of inmate. There is a real question whether it would be right to grant parole to people who have no very adequate plans on release, or, indeed any home to return to. The construction of good release plans in the short time that would be available raises new problems for the professional agencies concerned, and it is essential that they should be fully consulted about the issues that are involved.
The extension of parole to the shorter term population also raises specific administrative difficulties. In particular, there is a proportion of cases in which a prisoner's parole review would coincide with the time he was due to be transferred from a local prison to a training prison. This raises a dilemma. A postponement of transfer in these cases in order to enable completion of the parole process would place

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an additional burden on precisely those prisons—the local prisons—that we are all most concerned to relieve. On the other hand, postponement of the parole review until after transfer would leave little time for all that needed to be done at the training prison. I do not want to give the idea that we cannot find answers to these problems. But I must stress that they are very real ones, and we cannot risk overburdening the local prisons either with an increase in their population or with an excessive share of the extra administration and paper work. I think that from his remarks the noble Lord, Lord Harris, himself is aware of that.
There are also resource implications, as the noble Lord has recognised. There would clearly be work for the prison service in coping with almost twice as many parole reviews as at present, and a transfer of an appreciable number of people at any one time from prison custody to supervision in the community has obvious consequences for the probation service. Financial arrangements would clearly need to be made before a new qualifying period could take effect but, first, detailed consultations would be needed with all those concerned—the staff associations for both the prison service and the probation and after-care service, and probation authorities and our own responsible staff in the prison service.
I can tell my noble friend Lady Trumpington that the study that we have done in the three and a half months since the House last considered this issue enables us to start these consultations in depth, and that is what we are now going to do. We believe that a reduction in the qualifying period would be feasible. However, the change is a substantial one and we must be certain that we get it right. We must make certain that we bring assistance to our local prisons rather than adding to their problems. It has got to be done right. We shall certainly look at the possibility of short sentence prisoners being considered only by the local review committees, as the noble Lord suggested. I hope that I have flown a clear enough signal for the noble Lord to see where our intentions lie and, therefore, I hope he will agree not to press his amendment.
Lord Elwyn-Jones: My Lords, the House has very great respect for the noble Lord, but I do not think that he has increased this respect by an almost totally negative response to what has been said in the debate tonight. For weeks we have been discussing the scandal of the conditions in our prisons, which are an indictment of our society, not only of the Government. It is a shameful story with no parallel in Western Europe so far as my travels in those parts indicate.
The question one wants to ask about this amendment is: can it be harmful from the point of view of the protection of our society?—which, of course, is a crucially important question. There has been no indication from anything that the Minister has said that it would be harmful and, indeed, all the expert study on this problem has established—as the noble Lord, Lord Harris of Greenwich, indicated in his speech when he referred to the Home Office study, the Review of Parole in England and Wales—that the combined effect of parole supervision and the threat of recall appears to reduce significantly the probability of an offender being reconvicted.
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The prospects—particularly in regard to short-term prisoners, who after all, as criminals, are those who constitute the least danger to our society—of this measure of parole being introduced would, we believe, far from being harmful, be beneficial to the treatment of the criminal and of crime. From the point of view of whether or not it would benefit our society, as I have said, I believe that it would, if only by making a small contribution to tackling the crisis and the scandal in the prisons.
This is the last opportunity that the House will have in the consideration of this Bill of seeing that something is done, in addition to what the noble Lord, Lord Harris, said was the marginal effect of the Bill on the size of the prison population—it may go up; it may go down. What an indictment of this great exercise in the reform of the penal system that is—and I am afraid that it is a true summary. This is a sad conclusion to the consideration of this Bill. I wonder whether it is possible even now, at this late hour, to have any indication of something more substantial, more real, than these tentative further studies into the problem. Heaven knows, the problem has been staring us in the face for years and to some extent, as a Minister in the previous Administration, I must concede that we must bear our share of responsibility too. But now it has reached the worst level ever, and that level is increasing; it ought to be diminishing. Accordingly, I hope that the House will give its fullest support to this amendment.
Lord Harris of Greenwich: My Lords, I propose to speak only very briefly. Using fairly restrained language, I find the Minister's reply deeply disappointing. The noble and learned Lord, Lord Elwyn-Jones, referred to Ministers in the previous Government. I certainly was one and I made many speeches from that Box in debates of this character defending the then Government's record. But, I am bound to say that I find it almost impossible to envisage a situation where we would be having a debate with a prison population having touched 45,000 and listening to that sort of speech from the Government Front Bench. As a Minister, I did not believe, and I do not believe now, that it is right to make this a party question. It is a matter of supreme importance to our society that we should try to have the maximum degree of bipartisanship in dealing with our criminal justice system. It is not the sort of issue that we should relegate to the small change of party political warfare.
But there is in that situation a greater responsibility on Government to be sensitive to the concerns of both Houses of Parliament and to the informed members of our society who consider these matters and who have personal responsibilities. I do not want to make the position of the Minister any more difficult and I certainly do not intend to say anything which would tend to drive a wedge between him and those who are working on a day-to-day basis in the prison system. But, knowing the situation which I think he will recognise fairly well, I must tell him quite bluntly that, if those members of the prison service—the governor grades and many other dedicated members of the prison staff—read reports of this debate tomorrow, they will be aghast that there could be made a speech

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of the kind we have heard today, indicating that, despite all that has been said about the size of the prison problem in our society, so little progress has been made.
There is no indication from what we have heard tonight that the Government are in fact going to act. I have no doubt at all—of course, I do not have any doubt—that the right honourable gentleman the Home Secretary, for whom I have a warm personal regard, and indeed the Minister himself, are concerned about the situation. Of course, they are. But it is not enough to be concerned about the situation. The question is, what do you do about it? Of course, any move in this direction can be misrepresented, but I believe that it is a responsibility for Ministers to deal with it.
When the Minister said at the beginning of his speech that he did not believe that the present Government had been given adequate credit for the present prison building programme, he may be right about that. I am sure he would agree that in virtually every debate we have had on this matter I have paid warm personal tribute to the Home Secretary for having done just this, though in fact that is a rather controversial view. Many of us have recognised in this situation, with conditions as bad as they are, that it is right to have a prison building programme, and I welcome it and have done so in the past. But, with great respect to the Minister, he does not appear to be aware of what is going on in some of our prisons. Certainly there is a prison building programme under way, but unhappily there are not the staff available to staff some of the new prisons. I was in a local prison only a hundred miles from London a short time ago. A new wing had been built at considerable expense, but no inmates were inside. There was still grievous overcrowding in the prison because the Government had not made available the numbers of prison staff necessary in order to manage it.
We have another prison, a dispersal prison, in the North of England at Frankland in County Durham. I do not know the situation at the moment, but certainly earlier this year the only purpose-built dispersal prison in this country could not be used for that purpose because staff were not in fact available to man it because of the restrictions on public expenditure. I say that only to demonstrate that many of us have indicated in the past our warm approval for the building programme. We only wish that the staff resources were made available in order to make it far more effective than it can be.
Having put that on one side, what we are facing at this moment is a difficult decision, and I recognise this is particularly so for some noble Lords opposite who have been here to listen to the debate. I repeat that I do not wish to make this a partisan political issue, and I do not propose to do this in any way either tonight or subsequently. These are very difficult matters indeed. But I certainly propose to divide the House. I propose to divide the House because it would be quite irresponsible not to do so. We have no indication whatever that the Government are going to implement this clause as it now stands. Even if the amendment were to be carried, the Government would not have to implement it until they made the appropriate commencement order. Only by making some form of
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demonstration that a number of us are grievously alarmed about the situation we are facing in our prisons, do I believe that we shall be fulfilling our responsibilities. I hope not to make that point too pompously. It is my genuine opinion. I shall gladly give way.
Lord Elton: My Lords, I am grateful to the noble Lord for giving way. He has spoken at some length on two occasions. I propose, with the leave of the House, to be very brief. I would ask the House whether what the noble Lord is saying is being fair either to the Government or to the administration. What I have said is that, when we last discussed this, while the idea was attractive we had no idea whether it was feasible. I have now said that we have investigated this in depth and we believe that it is feasible and we propose to go into the consultations to see how and if this can be done.
The noble Lord is asking your Lordships to pin the Government down not to any flexible reduction but to an actual, precise reduction of six months excluding any other recourse which we might find preferable. It might take much longer to be able to implement that than to move under the existing statute to some halfway house so that we could start the process straight off. I do not think that is good advice. I also wonder whether it is quite fair—
Lord Elwyn-Jones: I am grateful to the noble Lord for permitting me to intervene, my Lords. We have earlier today emphasised in some slightly painful circumstances the importance of abiding by the rules and practices of your Lordships' House. With great respect to the Minister, I think he is in danger of embarking upon an erroneous path if he goes on a minute longer.
Lord Elton: My Lords, in half a minute I shall, therefore, apologise to your Lordships if I have spoken for too long in this manner and merely remind the House that the population of the prisons this year is about 44,000, not the figure of 45,000 which has been imprinted on your Lordships' minds.
Lord Harris of Greenwich: My Lords, that is a totally trivial point and the Minister really should not embark on that sort of argument. I was addressing my remarks to the position last year, as I made quite clear. I have made my position clear. I think the House now wishes to come to a decision on the matter and I therefore propose to press the amendment.
9.25 p.m.
On Question, Whether the said amendment (No. 37) shall be agreed to?
Their Lordships divided: Contents, 44; Not-Contents, 47.

DIVISION NO 4

CONTENTS

Avebury, L.

Elwyn-Jones, L.

Beaumont of Whitley, L.

Ewart-Biggs, B.

Bishopston, L.

Foot, L.

Blease, L.

Gardiner, L.

Byers, L.

Harris of Greenwich [Teller.]

Cledwyn of Penrhos, L.

Hooson, L.

Collison, L.

Houghton of Sowerby, L.

David, B.

Howie of Troon, L.

Diamond, L.

Hutchinson of Lullington, L.

Donaldson of Kingsbridge, L.

Ingleby, V.

769

Jeger, B.

Seear, B.

John-Mackie, L.

Stewart of Alvechurch, B.

Kagan, L.

Stewart of Fulham, L.

Kirkhill, L.

Stone, L.

Lewelyn-Davies of Hastoe, B. [Teller.]

Taylor of Blackburn, L.

Taylor of Gryfe, L.

McCluskey, L.

Underhill, L.

Masham of Ilton, B.

White, B.

Milner of Leeds, L.

Wigoder, L.

Mishcon, L.

Winstanley, L.

Peart, L.

Winterbottom, L.

Pitt of Hampstead, L.

Wynne-Jones, L.

Ponsonby of Shulbrede, L.

NOT-CONTENTS

Airey of Abingdon, B.

Hatherton, L.

Ampthill, L.

Hives, L.

Avon, E.

Home of the Hirsel, L.

Bathurst, E.

Inglewood, L.

Belstead, L.

Kilmany, L.

Boardman, L.

Lauderdale, E.

Brookeborough, V.

Long, V.

Brougham and Vaux, L.

Loudoun, C.

Campbell of Alloway, L.

Lyell, L.

Carnegy of Low, B.

Mackay of Clashfern, L.

Chelwood, L.

Macleod of Borve, B.

Crathorne, L.

Mersey, V.

Croft, L.

Monk Bretton, L.

Davidson, V.

Mottistone, L.

Denham [Teller]

Murton of Lindisfarne, L.

Drumalbyn, L.

Rankeillour, L.

Elton, L.

Rochdale, V.

Faithfull, B.

Sandys, L. [Teller]

Ferrers, E.

Skelmersdale, L.

Ferrier, L.

Trefgarne, L.

Fortescue, E.

Vaux of Harrowden, L.

Glanusk, L.

Vickers, B.

Glenarthur, L.

Young, B.

Hailsham of Saint Marylebone, L.

Resolved in the negative, and amendment disagreed to accordingly.
9.35 p.m.
[Amendment No. 38 not moved.]
Clause 37 [The standard scale of fines for summary offences]:
Lord Elton Lord Elton moved Amendment No. 39:
Page 38, line 1, after ("enactment")insert ("(whether contained in an Act passed before or after this Act)")
The noble Lord said: My Lords, with this amendment I shall, with the permission of the House, also take amendments Nos. 50 to 52, 57, 60, 64, 83, 84, 87A and 90. These correspond with the groupings proposed in the paper that has been circulated. If I may recall your Lordships' attention, these are all drafting amendments. The crucial amendment is Amendment No. 90; that is, the last amendment in the group which I have just listed. This inserts a new clause providing for the construction of references to the standard scale in existing and future enactments. Its purpose is purely to simplify the drafting of future legislation. Amendments Nos. 39 and 87A likewise simply clarify the definition of the standard scale by making it clear that it applies to all enactments, whether passed before or after this Bill. Amendments Nos. 83 and 84 make minor drafting changes to Clause 70; and the other amendments are all consequential on Amendment No. 90.
My Lords, I could make a longer speech explaining the detailed effect of each amendment, but, as they are in effect all technical, I hope your Lordships will be prepared to take them at that. I beg to move.
On Question, amendment agreed to.
Clause 38 [General increase of maximum fines for summary offences under Acts of Parliament]:
Lord Elton Lord Elton moved Amendments Nos. 40 to 43:
Page 38, line 27, at beginning insert ("Subject to subsection (6A) below,")
Page 39, line 12, at end insert—
("(6A) Where an enactment to which this section applies provides on conviction of a summary offence for a fine or maximum fine in respect of a specified quantity or a specified number of things but also specifies an alternative fine or maximum tine, subsection (6) above shall have effect to increase—

(a) the alternative fine; and

(b) any amount that the enactment specifies as the maximum which a fine under if may not exceed,

as well as the fine or maximum fine which it has effect to increase by virtue of subsection (2) above.")
Page 39, line 14, leave out ("subsection (6)") and insert ("subsections (6) and (6A)")
Page 39, line 18, after ("more,") insert ("but less than £500")
The noble Lord said: My Lords, here, again, we have a group of amendments, comprising Amendments Nos. 40 to 43, inclusive, and Nos. 45 to 48, inclusive. With your Lordships' leave I will speak to these together and move the first group en bloc. They are all technical or drafting amendments to Clauses 38 and 40, which provide for general increases to fines.
Subsection (2) of Clause 38 ensures that the increase operates where the maximum fine is expressed as per quantity or per specified number of things. However, there are some Acts which provide both for a maximum fine per quantity or per number of things and for an alternative general maximum fine or for a maximum fine which the per quantity fine must not in certain circumstances exceed. Amendment No. 41 therefore inserts a new subsection into the clause to ensure that the general increase operates not only on the per quantity fine but also on any other maximum fines specified in the offence provision.
Amendments Nos. 40 and 42 are both drafting amendments consequential on the insertion into Clause 38 of the new subsection (6A). Amendment No. 43 alters the wording of Clause 38(8), which makes special provision for fines of £400 to be increased, not to the next level on the standard scale (namely, level 4; that is to say, £500) but to level 5, that is to say, £1,000. Amendment No. 46 has the same effect in relation to Clause 40 as Amendment No. 41 has in relation to Clause 38. Amendments Nos. 45 and 47 are both drafting amendments consequential on the insertion into Clause 40 of the new subsection (6A). Amendment No. 48 amends Clause 40(8) in the same way that the corresponding amendment, No. 43, amends Clause 38(8), by restricting its operation to fines of £400 or more which are less than £500.
I have truncated what is in the notes I have before me. I hope that if your Lordships read it tomorrow morning it will not be found confusing, but these are in effect technical amendments. I beg to move Amendments Nos. 40 to 43 en bloc.
On Question, amendments agreed to.
Lord Elton Lord Elton moved Amendment No. 44:
Page 39, line 20, after first ("fine") insert ("that falls to be increased").
The noble Lord said: My Lords, Amendment No. 44 stands on its own and makes a minor change to Clause 38 in the interests of clarity. The purpose of Clause 38 is to increase fines to the next point on the standard scale. The purpose of subsection (9) of that clause is to ensure that, in the case of offences which have up to now attracted enhanced penalties, the amount that falls to be increased by Clause 38 is the amount brought about by Clause 35 which has the effect of abolishing enhanced penalties. The amendment inserts into Clause 38(9) the words
"that falls to be increased",
thus making the intention of the clause clearer and bringing its wording into line with the wording of corresponding provisions in Clause 40(9). I beg to move.
On Question, amendment agreed to.
Clause 40 [General increase of maximum fines under subordinate instruments]:
Lord Elton Lord Elton moved Amendments Nos. 45 to 48:
Page 40, line 21, at beginning insert ("Subject to subsection (6A) below,").
Page 40, line 6, at end insert—
("(6A) Where an enactment to which this section applies confers a power by subordinate instrument to make a person, as regards a summary offence, liable on conviction to a fine or maximum fine in respect of a specified quantity or a specified number of things but also confers a power by subordinate instrument to make a person, as regards such an offence, liable on conviction to an alternative fine or maximum fine, subsection (5) above shall have effect to increase—

(a) the alternative fine; and

(b) any amount that the enactment specifies as the maximum fine for which a subordinate instrument made in the exercise of the power conferred by it may provide,

as well as the fine or maximum fine which it has effect to increase by virtue of subsection (2) above.")
Page 40, line 8, leave out ("subsection (5)") and insert ("subsections (5) and (6A)").
Page 40, line 11 at end insert ("but less than £500").
The noble Lord said: My Lords, I spoke to Amendments Nos. 45 to 48 inclusive when I spoke to Amendment Nos. 40 to 43. I beg leave to move them en bloc.
On Question, amendments agreed to.
Lord Elton Lord Elton moved Amendment No. 49:
After Clause 40, insert the following new clause:
Emergency regulations.
(" . In section 2(3) of the Emergency Powers Act 1920 for "of one hundred pounds" there shall be substituted "not exceeding level 5 on the standard scale, as defined in section [Construction of references to "the standard scale"] of the Criminal Justice Act 1982, or not exceeding a lesser amount".").
The noble Lord said: My Lords, with this amendment I will, if your Lordships approve, speak to Amendments Nos. 101 and 109. These are not new provisions but for technical reason bring into the new clause provisions relating to the increase in penalties under the Emergency Powers Act currently located in Schedules 3 and 6 to the Bill. I beg to move.
On Question, amendment agreed to.
Clause 41 [Orders relating to spread of pests]:
Lord Elton Lord Elton moved Amendments Nos. 50 to 52:
Page 41, line 23, after ("scale") insert (", as defined in section [Construction of references to "the standard scale"] of the Criminal Justice Act 1982,").
Clause 43, page 42, line 16, after ("scale") insert (", as defined in section [Construction of references to "the standard scale"] of the Criminal Justice Act 1982,").
Clause 44, page 42, line 30, after ("scale") insert (", as defined in section [Construction of references to "the standard scale"] of the Criminal Justice Act 1982.").
The noble Lord said: My Lords, Amendments Nos. 50 to 52 I spoke to with Amendment No. 39. I beg to move them en bloc.
On Question, amendments agreed to.
Clause 45 [Conversion of references to amounts to references to levels on scale]:
Lord Elton Lord Elton moved Amendment No. 53:
Page 43, line 39, after ("Act") insert—
("(bb) any enactment contained in an Act passed on the same day as this Act")
The noble Lord said: My Lords, this is a purely drafting amendment. I beg to move.
On Question, amendment agreed to.
Clause 46 [Provisions supplementary to sections 35 to 45]:
Lord Elton Lord Elton moved Amendment No. 54:
Page 44, line 1, after ("to") insert ("40 and").
The noble Lord said: My Lords, this is a drafting amendment which limits the extent of the definition of "fine" in Clause 46(2). I beg to move.
On Question, amendment agreed to.
Clause 47 [Potter to alter sums]:
Lord Elton Lord Elton moved Amendment No. 55:
Page 44, line 33, leave out from beginning to ("compensation") in line 34.
The noble Lord said: My Lords, this amendment and Amendments Nos. 56 and 112 are technical amendments which simply remove from the Bill an incorrect reference to the Naval Discipline Act 1927. I beg to move.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 56:
Page 44, line 35, leave out ("those Schedules") and insert ("that Schedule and paragraph 14(1) of Schedule 4A to the Naval Discipline Act 1957").
The noble Lord said: My Lords, I have just spoken to this amendment with Amendment No. 55. I beg to move.
On Question, amendment agreed to.
Clause 48 [Fines for certain offences under Merchant Shipping Acts and Prevention of Oil Pollution Act 1971]:
Lord Elton Lord Elton moved Amendment No. 57:
Page 46, line 8, after ("scale") insert (", as defined in section [Construction of references to "the standard scale"] of the Criminal Justice Act 1982").
The noble Lord said: My Lords, I spoke to this amendment with Amendment No. 39. I beg to move.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendments Nos. 58 and 59:
Page 46, line 20, leave out first ("subsection") and insert ("subsections").
Page 46, line 21, at end insert—
("(6A) For the purposes of subsection (3)(f) of this section—

(a) section 32 of the Magistrates' Courts Act 1980 (by virtue of which there is a prescribed sum as the statutory maximum fine on summary conviction of an offence triable either summarily or on indictment):

(b) an order under section 143 of that Act (which alters the definition of "the prescribed sum" in section 32(9)); and

(c) section 73 of the Criminal Justice Act 1982 (construction of references to "statutory maximum"),

shall extend to Northern Ireland.")
The noble Lord said: My Lords, I think it would be for the convenience of the House if I moved Amendments Nos. 58 and 59 together, the former being a paving amendment for the latter. Perhaps I may speak also to Amendments Nos. 61, 62, 63, 88 and 89. Although complicated in appearance, the insertion of the new subsection (6A) into Clause 48 is in fact another drafting amendment, but I think that I ought perhaps to give a rather more extensive explanation than I gave to the others; unless your Lordships give evidence of impatience, in which case I shall conclude my remarks.
Subsection (2) of Clause 48 amends Section 20 of the Merchant Shipping Act 1979 and ensures that orders made under Section 20 can provide for the creation of offences (both summary and triable either way). The maximum fine on summary conviction of an either way offence which can be provided for in the order is to be the "statutory maximum"—that is, £1,000. The Act of 1979 extends throughout the United Kingdom and consequently, by virtue of Clause 79(2)(c), the Bill provides for Clause 48 to extend to Northern Ireland. However, the statutory maximum is not a concept that is generally used in Northern Ireland at the moment. It is therefore necessary to extend Clause 73 of the Bill (construction of references to statutory maxima) to Northern Ireland for the purposes of Section 20 of the 1979 and also Sections 32 and 143 of the Magistrates' Courts Act 1980—the latter in order to ensure that the inflation proofing of the statutory maximum works in relation to Northern Ireland as well as in relation to the rest of the United Kingdom for the purposes of this particular provision in the 1979 Act. That is the effect of Amendments Nos. 58 and 59.
My Lords, I was anxious to get those remarks into the record so that references to Northern Ireland could stand in the record. I hope your Lordships will be content when I say that the other amendments relate directly to this. I beg to move.
On Question, amendments agreed to.
Lord Elton Lord Elton moved Amendment No. 60:
Page 46, line 45, at end insert (", as defined in section [Construction of references to "the standard scale"] of the Criminal Justice Act 1982").
The noble Lord said: My Lords, I spoke to Amendment No. 60 with Amendment No. 39.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendments Nos. 61 to 63:
Page 47, leave out lines 24 to 28.
Page 47, line 28, at end insert—
774
("(7) For the purposes of subsection (6)(b) and (c) above—

(a) section 32 of the Magistrates' Courts Act 1980 (by virtue of which there is a prescribed sum as the statutory maximum fine on summary conviction of an offence triable either summarily or on indictment);

(b) an order under section 143 of that Act (which alters the definition of "the prescribed sum" in section 32(9)); and

(c) section 73 of the Criminal Justice Act 1982 (construction of references to "statutory maximum"),

shall extend to Northern Ireland.")
Page 48, line 1, leave out subsection (5).
The noble Lord said: My Lords, Amendments Nos. 61 to 63 are all consequential on Amendment No. 58. I beg to move.
On Question, amendments agreed to.
Clause 49 [Fines for offences against regulations relating to wireless telegraphy apparatus on foreign ships and aircraft]:
Lord Elton Lord Elton moved Amendment No. 64:
Page 48, line 15, after ("scale") insert (", as defined in section [Construction of references to "the standard scale"] of the Criminal Justice Act 1982,").
The noble Lord said: My Lords, this amendment is consequential on Amendment No. 39. I beg to move.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 65:
Page 48, line 28, at end insert
("(2) Nothing in this section shall affect the punishment for an offence committed before this section comes into operation.").
The noble Lord said: My Lords, Clause 49 deals with fines for offences under the Wireless Telegraphy Act 1949. Amendment No. 65 simply inserts a standard transitional provision which has the effect that any person who commits an offence before the date on which the increased fine comes into force and who is tried after that date shall not be liable to the higher fine, but only to the maximum fine that could have been imposed prior to the increase. I beg to move.
On Question, amendment agreed to.
Clause 53 [Revision of penalties for summary offences and of certain other sums]:
Lord Elton Lord Elton moved Amendments Nos. 66 and 67:
Page 54, line 15, leave out ("Where") and insert ("Subject to subsection (8A) below, where").
Page 55, line 28, at end insert—
("(8A) Where an Act to which this section applies provides or confers a power to provide for, on conviction of an offence triable only summarily, a fine or a maximum fine in respect of a specified quantity or a specified number of things but also provides or confers a power to provide for an alternative fine or maximum fine as regards the offence, subsection (8) above shall have effect to increase—

(a) the alternative fine; and

(b) any amount that the Act provides or confers a power to provide for as the maximum which a fine as regards the offence may not exceed.

as well as the fine or maximum fine which it has effect to increase by virtue of subsection (4) above.").
The noble Lord said: My Lords, Amendments Nos. 66 and 67 are similar to Amendments Nos. 40 to 42 and 45 to 47 which we have already discussed for England and Wales. They ensure that in cases where the fine formula is of the type "£x, per quantity of £y, whichever is the greater"both legs are caught for the purposes of Section 289G (uprating of summary fine

775
levels) and 289F (conversion to levels on the standard scale). I beg to move.
On Question, amendments agreed to.
Lord Elton Lord Elton moved Amendment No. 68:
Page 55, line 43, after ("enactment") insert ("(whether passed or made before or after the passing of the Criminal Justice Act 1982)").
The noble Lord said: My Lords, this is a drafting amendment. I beg to move.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendments Nos. 69 and 70:
Page 56, line 30, leave out ("Where") and insert ("Subject to subsection (6A) below, where")
Page 56,line 36, at end insert—
("(6A) Where an Act provides or confers a power to provide for, on conviction of an offence triable only summarily, a fine or a maximum fine in respect of a specified quantity or a specified number of things but also provides or confers a power to provide for an alternative fine or maximum fine as regards the offence, the fine or the maximum fine for the purposes of this section is—

(a) the alternative fine; and

(b) any amount that the Act provides or confers a power to provide for as the maximum which a fine as regards the offence may not exceed,

as well as the fine or maximum fine referred to in subsection (6) above.").
The noble Lord said: My Lords, Amendments Nos. 69 and 70 are consequential on Amendment No. 66. I beg to move them both.
On Question, amendments agreed to.
Lord Elton Lord Elton moved Amendments Nos. 71 and 72:
Page 58, line 39, leave out ("passing") and insert ("commencement of section 54").
Page 59, line 4, leave out ("passing") and insert ("commencement of section 54").
The noble Lord said: My Lords, Amendments Nos. 71 and 72 are technical amendments designed to ensure that any increases in summary penalties for triable-either-way offences made between the passing of this Bill and the commencement of Clause 54 are not overridden by the provisions of the new Section 289B(1). I beg to move.
On Question, amendments agreed to.
Lord Elton Lord Elton moved Amendments Nos. 73 to 78:
Page 64, line 11, leave out ("(e)") and insert ("(f)")
Page 64, line 13, leave out ("(f)") and insert ("(g)")
Page 64, line 23, leave out ("(1A>)") and insert ("(1H)")
Page 64, line 24, leave out ("(f)") and insert ("(g)")
Page 64, line 28, leave out ("(1B)") and insert ("(1J)")
Page 64, line 29, leave out ("(f)") and insert ("(g)").
The noble Lord said: My Lords, Amendments Nos, 73 to 78 inclusive I spoke to in connection with Amendment 73. With your Lordships' leave, I will move them en bloc.
On Question, amendments agreed to.
9.53 p.m.
Baroness David Baroness David moved Amendment No. 79:
After Clause 64, insert the following new clause:
("Maximum period of probation
. In section 2(1) of the Powers of Criminal Courts Act 1973, the words "three years" shall be omitted and the words "two years" shall be substituted.").
The noble Baroness said: My Lords, this amendment, which aims to reduce the maximum length of probation orders from three years to two, has
776
been discussed both at the Committee and Report stages, and I think the arguments are well-known. The three-year probation order is being used less and less and the probation officers are keen that it should be reduced from three years to two. The chances of breach and so on are less. The noble Lord, Lord Sandys, said at the Report stage that it might be contrary to the aims of the Bill to deprive courts of an option which they still find useful, but the fact is that the courts have been making increasingly less use of long orders, and the probation officers want there to be less long orders. The Government agreed at Report stage to consult the judiciary, the magistracy and the probation organisations about the desirability of this. I think we should like to know what the results of those consultations are, and I beg to move.
Lord Donaldson of Kingsbridge: My Lords, I think that if the probation service want this they should have it.
Lord Sandys: My Lords, this is the third time this amendment has been raised in your Lordships' House, and the fourth time since the Bill was introduced into another place. I think the arguments are well-known, as the noble Baroness says and there is little new that can be said at this stage. We are all agreed that probation orders should not be longer than is necessary for the offender to derive the benefits which supervision brings. But there are about 2,000 cases a year where courts have decided that a probation order for longer than two years is in fact necessary. This is a fairly consistent figure over the last three or four years, and we believe it would be wrong to deprive courts of this option which they still find useful. We cannot assume that all the offenders in this category would have been given shorter sentences. If the option was not available to the courts, some of them would probably have gone into custody.
We are, as I said, all agreed that an unnecessarily long probation order is a waste or money and probably counter-productive. Probation officers, if they are worth their salt, can see when this is happening and there are arrangements to ensure that probation orders do not in fact have to run for longer than necessary. The probation officer has access to the court to apply either for the discharge of the order or for the substitution of conditional discharge. The offender, too, has an interest in keeping the length of the order to the minimum and he also has access to the court for the same purpose which has been mentioned.
The Government are always, of course, alert to opportunities to economise. But the economies offered by eliminating the potential third year of probation are, in fact, minimal. The evidence we have suggests that the net effect on the resources of the probation service of any reduction in the maximum length of orders would be very slight. It would not take many decisions to give prison sentences in place of three-year orders to soak them up altogether.
Your Lordships have, of course, heard these arguments already. You will also recall that I mentioned at Report stage, as the noble Baroness said, that we had decided to take views on this matter outside Parliament. We have now consulted the judiciary, the Magistrates' Association and the probation organisations on this matter. The balance of opinion was clearly in favour of retaining the present

777
maximum period of three years. This was mainly on the grounds of maintaining the flexibility of the court's power in making non-custodial disposals, and for dealing adequately with the comparatively rare offender for whom a three-year order was appropriate. It was also suggested that there are sufficient means for discharging a three-year order, if the circumstances warranted such a course. The noble Baroness was kind enough to give us the opinion of the National Association of Probation Officers and I am, of course, aware of it. I ought to tell her that within their own profession they were not supported by the Conference of Chief Probation Officers, and that the balance of the rest of the opinions we took was strongly against them.
In the light of this response, we do not believe there is at present any justification for reducing the maximum length of probation orders I should add that, of course, if it appears that the courts no longer find this a useful disposal, we shall be prepared to reconsider the matter. As I have explained, it is quite unnecessary to resort to legislation for this purpose. The necessary change can be made by the order-making power conferred on my right honourable friend the Home Secretary by Section 2(9) of the Powers of Criminal Courts Act 1973, which would be subject to affirmative resolution. I hope that, with that comparatively long explanation, the noble Baroness will not feel obliged to press the amendment.
Baroness David: My Lords. I thank the Minister for that reply. Of course, I appreciate that the judiciary, the magistracy and the probation organisations have been consulted, and I do not think that I can press this amendment in the light of that. I remain very sceptical and think that, in fact, people will not go into custody if this does not remain. But, in the light of what the Minister has said, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 67 [Community service orders]:
Lord Elton Lord Elton moved Amendment No. 80:
Page 70, line 12, at end insert ("with respect—

(a) to the powers of courts in England and Wales in relation to community service orders; and

(b) to arrangements for persons in England and Wales to perform work under such orders.

(2) Schedule 12A to this Act shall have effect for the purpose of the enforcement in one part of the United Kingdom of community service orders made in another part.")
The noble Lord said: My Lords, with your Lordships' permission, I shall speak also to Amendment No. 116. The purpose of these amendments is simply to clarify the provisions of the Bill relating to community service orders as far as extent is concerned. The existing Schedule 12 is to be split into two schedules; the first (representing what is now Part I of Schedule 12) extends only to England and Wales; and the second (representing what are now Parts II to IV of Schedule 12) deals with the reciprocal execution of community service orders in the different parts of the United Kingdom, and must therefore he extended also to Scotland and Northern Ireland. These amendments accordingly pave the way for the relevant provision in Clause 79, a new comprehensive structure for which is provided by a later amendment. I beg to move.
On Question, amendment agreed to.
Clause 68 [Maximum periods of imprisonment for defaulting on fines etc.]:
Lord Sandys Lord Sandys moved Amendments Nos. 81 and 82:
Page 71, line 17, leave out from ("thereto,") to end of line 18.
Page 72, line 32, at end insert—
("(2) The following subsection shall be substituted—
(a) for section 71B(2) of the Army Act 1955 and the Air Force Act 1955: and
(b) for section 43B(2) of the Naval Discipline Act 1957:—
"(2) Subject to subsections (4) and (5) below, the periods set out in the second column of the following Table shall be the maximum periods of further imprisonment or detention applicable respectively to fines of the amounts set out opposite thereto.

TABLE

An amount not exceeding £25

7 days

An amount exceeding £25 but not exceeding £50

14 days

An amount exceeding £50 but not exceeding £200

30 days

An amount exceding £200 but not exceeding £500

60 days

An amount exceeding £500 but not exceeding £1,000

90 days

An amount exceeding £1,000 but not exceeding £2,500

6 months

An amount exceeding £2,500 but not exceeding £5,000

9 months

An amount exceeding £5,000

12 months".")

The noble Lord said: My Lords, with the permission of the House, I will speak to these amendments together with Amendment No. 126. These all relate to the provision of the Bill dealing with imprisonment for fine defaulters. Amendment No. 81 is a drafting amendment. Amendment No. 82 simply brings the provisions for fine defaulters, where a fine has been imposed by a court martial, into line with the provisions for defaulters on fines imposed by magistrates' courts and the Crown court, the latter of which were introduced at a previous stage of the Bill and are now contained in Clause 68. Amendment No. 126 is consequential on Amendment No. 82.
Amendment No. 81 merely removes some misleading words in clause 68, which inserts new subsections into Section 31 of the Powers of Criminal Courts Act 1973. The purpose of these subsections is to ensure that, when the Crown court imposes a fine and makes an order fixing a period of imprisonment to be served in default of payment, the term fixed by the other should not exceed the maximum term specified by the table in subsection (3A). Unless the Crown Court commits the offender to prison straight away under Section 31(3) of the 1973 Act the fine is, by virtue of Section 32 of that Act, enforced by the magistrates' court as if it had been imposed by the magistrates themselves. The magistrates are, however, bound by the term fixed by the Crown Court as the term to be served in the event of subsequent default. The table in new subsection (3A) therefore refers to amounts due at the time that the Crown Court imposes the fine and fixes the term to be served in default. Unless, therefore, the offender is committed to prison straight away under Section 31(3) (and this practice is unusual) the amounts referred to in the table will not be amounts due at the time the imprisonment or detention is imposed. This amendment therefore merely deletes those words.
Amendment No. 82 ensures that when a court martial fixes a period of imprisonment to be served in

779
default, that period cannot exceed the amount specified in the table set out in the new subsection. At present a court martial can fix any amount it thinks fit in default, provided it does not exceed 12 months. This amendment brings the position in courts martial into line with the position in magistrates' courts and in Crown Courts, for which provision is made in Clause 68.
Amendment No. 126 is purely consequential on the amendment to Clause 68 which inserts the table of periods to be served in default in cases where the fine is imposed by a court martial. The repeal removes the words "not exceeding 12 months" in Section 13 of the Armed Forces Act 1976. I beg to move.
On Question, amendments agreed to.
Clause 70 [Abolition of imprisonment for loitering and soliciting for purposes of prostitution]:
Lord Elton Lord Elton moved Amendments Nos. 83 and 84:
Page 73, line 19, leave out ("not exceeding £50") and insert ("of an amount no exceeding level 2 on the standard scale, as defined in section [Construction of references to "the standard scale"] of the Criminal Justice Act 1982,")
Page 73, line 21, leave out ("not exceeding £200") and insert ("of an amount not exceeding level 3 on that scale").
The noble Lord said: My Lords, Amendments Nos. 83 and 84 are consequential on Amendment No. 39. I beg to move.
Lord Gardiner: My Lords, I think the noble Lord, Lord Elton, will agree that since I was thoroughly squashed by the usual channels I have been remarkably silent. Clause 70, with which we are dealing at the moment, is the clause which provides that soliciting by women for the purposes of prostitution shall no longer be a criminal offence.
The first question I should like to ask is, what is the point of amending the clause if the Home Office have already decided that they are not going to bring it into force? If the answer to that question is that the Home Office have not so decided, that they are going to bring it into force but that there is something which they must do first, may we be told what it is? It is quite proper not to bring a section into force at once if it cannot be practicably worked because something else has got to be done first. If the noble noble Lord tells me that the Government must consult the prostitutes'
780
union, or something of that sort, I shall accept it. I am only asking to be told.
May I remind the noble Lord that I think it is important because of the difficulty of what the magistrates are to do. As the whole House knows, I have a great regard for the magistrates, who are extremely conscientious and who do their best to carry out what Parliament requires. But here is a case in which they will be told that Parliament—that is, both the elected Chamber and the House of Lords—has decided—and the Queen has signified her Royal Assent—that this is no longer an imprisonable offence. So a woman who is before the magistrates the day after the Bill receives Royal Assent and who has been convicted and fined several times in the past would ordinarily be sent to prison. But they cannot do that because they must do what Parliament has said, and Parliament has said this is not an imprisonable offence.
However, other justices or clerks may say, "Oh, but this section is not yet in force because the Home Office have not yet made an order bringing it into force. Therefore, you can still send her to prison". Then the first group may say, "But the clause itself provides that it should apply to soliciting which has taken place even before the Bill received the Royal Assent. Parliament must have presumed that it would be brought into force and receive the Royal Assent." What they will do in the end I do not know, but it puts them in a very difficult position. If the noble Lord can give the justices any help as to what on earth they are suppose to do, I am sure it would help. Should they say, "After all, it is not really Parliament who make the laws but the Government deparments, and if they do not choose to bring this into force then we will go on sending women to prison"? If the Minister can help, I am sure it would be of great assistance to the justices.
Lord Elton: My Lords, I dearly wish that I could tell the noble and learned Lord, Lord Gardiner, that it was necessary to consult the prostitutes' union. If he would undertake to accept that answer there would be no comeback. In fact, the noble and learned Lord is aware that the amendments we are discussing relate to the fines and not to the imprisonment. The question which concerns him is the bringing into effect of the clause, and assuming that we receive Royal Assent in due time, we are aiming at 1st January 1983.
On Question, amendments agreed to.
10.2 p.m.
Baroness David Baroness David moved Amendment No. 85:
After Clause 70, insert the following new clause:
("Abolition of imprisonment for possession of cannabis for personal use.
. In paragraph 1(1)(c)(i) of Schedule 5 to the Criminal Law Act 1977. for the words "3 months or £500, or both" there shall be substituted the words "£500 where the drug concerned is cannabis or cannabis resin, and 3 months or £500, or both, lithe drug concerned is not cannabis or cannabis resin".").
The noble Baroness said: My Lords, this amendment was moved both at Committee stage and Report stage and was withdrawn, so I believe the House is well aware of what the amendment is all about. It would remove the penalty of imprisonment on summary conviction for simple possession of cannabis but it wouild not affect the penalties for the separate offence of possession of cannabis with intent to supply. It is directed towards cannabis users and not towards cannabis pushers. Nor would it affect the penalties available for offenders convicted on indictment, where imprisonment would remain an option.
The attitude of the courts towards this offence has been liberalised in recent years. The proportion of those found guilty of possession of cannabis receiving custodial sentences has been declining. As long ago as 1968 the Advisory Committee on Drug Dependency recommended that there be no custodial sentence for simple possession. That recommendation was repeated in 1979 by the advisory council, and so it has gone on. We are now in 1982 and we are asking that this really ridiculous case of prison sentences for simple possession should be removed. I was interested to read in The Magistrate for October that there was an appeal against prison sentences by two defendants who had been found guilty of simple possession. One had been sentenced to two months and the other to six months imprisonment. It was their second offence. In the Court of Appeal Lord Justice Griffiths allowed their appeal and substituted fines. This has very much become the practice and I hope this is one other case where we can get rid of a prison sentence. I beg to move.
Lord Donaldson of Kingsbridge: My Lords, as someone who used to smoke and who does drink, I regard nicotine, alcohol and cannabis as being more or less on a par. I think that any nation or Government which has never had nicotine would he right to stop it coming in; and that any Government who had never permitted alcohol would he right to stop it coming in. So I think the Government are correct in trying to stop the growth of cannabis, but in so far as any cannabis does get in, a person who uses it for his own purposes and who does not sell it is, in my opinion, in exactly the same position as most people in this House. It is ridiculous to suggest that imprisonment is a suitable penalty in this case. Certainly those concerned can be fined. This offends against the law, which law is, I think, sensible. The offenders should be fined, but I object totally to people being sent to prison for this offence and I support the amendment.
Lord Elton: My Lords, I was trying to reserve to myself a place at the end of the queue. The
782
Government do not believe it right to deprive the lower courts entirely of the option of a short custodial penalty, as this amendment seeks to do. An identical amendment has been moved at earlier stages of the Bill, and I then fully informed your Lordships of our objections to its proposals. Therefore, I can be brief on this occasion.
The Court of Appeal has held in a series of decisions that it is not appropriate as a general rule to impose a sentence of imprisonment for possession of small quantities of cannabis for personal consumption. However, it has stated that the law cannot countenance a continual flouting of the statute. If there is a continuous and persistent defiance of the law, there may come a time when the courts have no alternative but to impose a custodial sentence. With respect, the Government agree with that view. We do not consider that the sentencing practice of the courts is such as to call for parliamentary intervention.
We should also bear in mind the risk that reducing statutory penalties may lead some people to believe that cannabis is less dangerous than they had supposed and start using the drug. A copy of the report we received from an expert scientific group set up by the Advisory Council on the Misuse of Drugs to assess the available evidence has been placed in your Lordships' Library. That group concluded that there was no clear evidence that cannabis was harmless. On the contrary, they consider that there are worrying indications of the drug's effect. For example, the use of cannabis may interfere with the metabolism of other drugs, and indeed other drugs may affect the metabolism of cannabis. Many details of its action on the human circulation require further examination. There have been no studies of the effects of its long-term use on the respiratory system. There is evidence of potentially adverse effects on the reproductive and the immunological systems. Research on possible brain damage has so far proved inconclusive. A dependence syndrome may exist, and the extent to which it may produce long-term psychotic disorder remains open. Until we are certain that cannabis is harmless, it would be wrong to take steps that might lead to more people using the drug.
An amendment on the lines proposed could only be read by the general public as a signal that the drug was regarded as less harmful now than when the penalty was fixed. That could well prove to be cruelly misleading and could lead many young people to use the drug at a cost in terms of their own health which we are simply not yet able to quantify. Many of your Lordships probably started smoking tobacco assuming, as I did, and as the noble Lord, Lord Donaldson, doubtless did, that it was harmless. Many of your Lordships' contemporaries have died, sometimes in most disagreeable circumstances, as a result of that same assumption. I am not prepared, and Her Majesty's Government are not prepared, to give even the small encouragement contained in this amendment while the question of what harm cannabis can cause is still so much in doubt.
Lord Melchett: My Lords, the fact of the matter is that cannabis is now widely regarded as being much less dangerous than it was when these penalties were

783
fixed. The noble Lord, Lord Elton, is quite wrong to suggest otherwise. The fact is that that is reflected in the sentencing practices of the courts, where fines for simple possession of cannabis, even on repeated occasions, and indeed fines for things that are seen as more serious, are also now commonplace. Indeed, recently at Heathrow on-the-spot fines seem to have been introduced by some process.
Internationally there has been a series of reports which make it clear, in contradiction to what the noble Lord Lord Donaldson, said, that cannabis is a great deal less dangerous than alcohol or tobacco. It is not, for example, physically addictive. In among a lot of jargon, that was clear from what the noble Lord, Lord Elton, said, whereas alcohol and tobacco are widely accepted as being physically addictive. The fact of the matter is that these penalties are completely out of line with the practice in the overwhelming majority of courts.
The reason for wanting to change the penalties in the Bill is that there is a wide discrepancy in sentencing, as research has shown. Some people find themselves receiving penalties which there would not be any chance of them getting in other courts. That is no doubt why sentences of imprisonment have been overturned on appeal. A reform of this sort is long overdue, and I hope the House will accept the amendment.
Baroness David: My Lords, I think my noble friend Lord Melchett has answered the Minister extremely well. There is nothing more for me to add. I endorse every word he said. There is no proof that a certain amount of harm could be done. A great many things can do harm. Many of the drugs that people take could do harm to the system. That drugs can do harm is a very poor argument. The overwhelming argument is that there is not a case for sending people to prison for simple possession. I therefore press the amendment.
10.15 p.m.
On Question. Whether the said amendment (No. 85) shall be agreed to?
Their Lordships divided: Contents, 30; Not-Contents, 42.

DIVISION NO. 5

CONTENTS

Ampthill, L.

John-Mackie, L.

Avebury, L. [Teller.]

Kagan, L.

Beaumont of Whitley, L.

Llewelyn-Davies of Hastoe, B.

Bishipston, L.

McCluskey, L.

Blease, L.

Melchett, L.

Collison, L.

Pitt of Hampstead, L.

David, B. [Teller.]

Ponsonby of Shulbrede, L.

Donaldson of Kingsbridge, L.

Stewart of Fulham, L.

Elwyn-Jones, L.

Stone, L.

Ewart-Biggs, B.

Tweeddale, M.

Foot, L.

Underhill, L.

Gardiner, L.

White, B.

Harris of Greenwich, L.

Wigoder, L.

Houghton of Sowerby, L.

Winstanley, L.

Jeger, B.

Wynne-Jones, L.

784

NOT-CONTENTS

Airey of Abingdon, B.

Hatherton, L.

Avon, E.

Hives, L.

Bathurst, E.

Kilmany, L.

Belstead, L.

Long, V.

Boardman, L.

Loudoun, C.

Brougham and Vaux, L.

Lyell, L.

Campbell of Alloway, L.

Mackay of Clashfern, L.

Carnegy of Lour, B.

Mersey, V.

Chelwood, L.

Monk Bretton, L.

Craigmyle, L.

Mottistone, L.

Crathorne, L.

Murton of Lindisfarne, L.

Croft, L.

Rankeillour, L.

Davidson, V.

Rochdale, V.

Denham, L. [Teller.]

Sandys, L. [Teller.]

Elton, L.

Skelmersdale, L.

Faithfull, B.

Trefgarne, L.

Ferrers, E.

Trumpington, B.

Fortescue, E.

Vaux of Harrowden, L.

Gardner of Parkes, B.

Vickers, B.

Glanusk, L.

Young, B.

Glenarthur, L.

Hailsham of Saint Marylebone, L.

Resolved in the negative, and amendment disagreed to accordingly.
10.23 p.m.
Lord Wigoder Lord Wigoder had given notice of his intention to move Amendment No. 86:
After Clause 72, insert the following new clause:
("Disqualification for jury service.
. In Part II of Schedule 1 to the Juries Act 1974 (persons disqualified) there shall be inserted after the words "borstal institution" the words—
"; or
(iii) been convicted on two or more separate occasions of an offence triable, in the case of an adult, on indictment.".")
The noble Lord said: My Lords, for reasons which I propose to give when we reach the Question, Whether the Bill do now pass?—assuming that we ever do so—this amendment is withdrawn. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 73 [Construction of references to "statutory maximum"]:
Lord Elton Lord Elton moved Amendment No. 87A:
Page 74, line 18, leave out ("this Act and any Act passed") and insert ("any enactment (whether contained in an Act passed before or")
The noble Lord said: My Lords, this amendment is consequential upon Amendment No. 39. I beg to move.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendments Nos. 88 and 89:
Page 74, line 20, leave out ("or Northern Ireland")
Page 74, line 24, leave out from ("money)") to end of line 26.
The noble Lord said: My Lords, Amendments Nos. 88 and 89 are consequential on Amendment No. 58. I beg to move them both en bloc.
On Question, amendments agreed to.
Lord Elton Lord Elton moved Amendment No. 90:
After Clause 73 insert the following new clause:
("Construction of references to "the standard scale".
. In any enactment (whether contained in an Act passed before or after this Act) "the standard scale"—

(a) in relation to England and Wales, has the meaning given by section 37 of the Criminal Justice Act 1982;

(b) in relation to Scotland, has the meaning given by section 289G of the Criminal Procedure (Scotland) Act 1975.")

The noble Lord said: My Lords, this amendment is consequential on Amendment No. 39. I beg to move.
On Question, amendment agreed to.
Clause 78 [Commencement]:
Lord Elton Lord Elton moved Amendment No. 91:
Page 75, line 11, leave out ("This Act, except this section.") and insert—
("(1) The following provisions of this Act shall come into force on the day this Act is passed, namely—
section [Restriction of liberty of children in care]:
section 32;
The noble Lord said: My Lords, the effect of this amendment is to bring certain provisions of the Bill into force on Royal Assent. Clause 73 and the new clause on the construction of references to the standard scale of fines have implications for all future legislation dealing with penalties and in order to ensure that they apply comprehensively it is essential that they are brought into force immediately. We felt it appropriate also to propose bringing into force on Royal Assent those provisions which are simply enabling powers. These are the new clause dealing with the restriction of liberty of children in care; Clause 32—the power to order the early release of prisoners; Clause 33—the power to lower the parole threshold; and those parts of the schedules which are consequential on these clauses; and other supplementary provisions—such as the financial provision. Another provision which has no immediate impact on the statutory framework within which the courts work is Clause 56— dealing with the appointment of Her Majesty's Chief Inspectors of Prisons—and it seems sensible also to bring that clause into effect immediately. I beg to move.
Lord Donaldson of Kingsbridge: My Lords, we must not have a debate on this at this stage, but I should like the noble Lord to write to me as a result of the earlier protestations of my noble and learned friend Lord Gardiner, and explain to me the reason for not allowing the following clauses to come into operation with the passing of the Bill and the Queen's consent. I shall just read out the clauses. Perhaps I can have an explanation in writing. They are Clauses 17, 18, 19, 20, 24, 25, 30, 58, 59, 62, 63, 66, 68, 69 and 70. I should be grateful to have that information.
Lord Gardiner: My Lords, may I venture to go a little further than that, because when I asked a question as to when Clause 70 was to come into force I was given at once the date. This suggested to me that somewhere in the Home Office there is a list of the dates on which it is proposed that the different clauses should come into force, including possibly a list of clauses which the Home Office proposes never to put into force. Whether or not that is so, I do not know. The subject is clearly one of public interest, but is there any reason why this should not be published?
Lord Elton: My Lords, perhaps I can give as much information as I have available to me, which miraculously increases. In the Home Office there is no intention of withholding implementation of clauses just because they have advised against them. But perhaps I could elaborate more gracefully by saying that most of the provisions in the Bill necessitate some sort of preparation—for example, with the courts.
786
Therefore, it will not be possible to bring most of these into force before the beginning of the New Year. However, we would hope as soon in the New Year as possible—or Hogmanay, as it is called north of the Border—to implement those provisions of the Bill which depend only on the issue of guidance to the courts and any others concerned before they can he brought into effect.
If the noble Lord, Lord Donaldson, would tick off his list, that includes Clauses 61 to 66, 68 and, the noble and learned Lord, Lord Gardiner, will be interested to hear, from Clause 68 to Clause 70. The implementation of other provisions—and here I have in mind very much the custodial provision for young offenders—depends on complex planning arrangements, in particular involving the prison system. The preparation of new court rules is also necessary. Others—and here the obvious examples are the strengthened supervision order and the residential care order—are dependent on the necessary resource being available. I cannot at this stage give firm dates for the implementation of that sort of provision. Our aim is to bring them into force as soon as possible but this may, in some cases at least, not be until well into 1983.
It is difficult to be precise. If there was a list I could helpfully pass to the noble Lord for him to pin on a hoard or for me to put in the Library, I would do so. I suspect that what I have said, which embraces many of the clauses noble Lords are interested in, may be as far as I can go, but I shall certainly write to the noble Lord, Lord Donaldson, and copy my letter to the noble and learned Lord, Lord Gardiner.
On Question, amendment agreed to.
Clause 79 [Citation and extent]:
10.31 p.m.
The Lord Advocate (Lord Mackay of Clashfern)The Lord Advocate (Lord Mackay of Clashfern) moved Amendments Nos. 92 and 93:
Page 75, line 17, leave out subsection (2) and insert—
("(1A) Subject to the following provisions of this section, this Act extends to England and Wales only.
(1B) The following provisions of this Act extend to England and Wales and Scotland—

section 15;

section 33;

section [Emergency regulations];

section 41;

section 43;

section [Construction of references to "the standard scale"].

(1C) The following provisions of this Act extend to Scotland only—

Part IV (including Schedule 6 and 7);

section 56(2);

section 72;

section 73(2).

(1D) The following provisions of this Act extend to England and Wales. Scotland and Northern Ireland—

section 44;

section 46(2);

section 48;

section 49;

section 63 (including Schedule 10);

section 67(2) (including Schedule 12A);

section 74;

section 78;

this section.

(1E) Section 51 above extends to England and Wales and Northern Ireland.

787
(1F) Sections 75 and 76 above extend to any part of the United Kingdom in so far as they amend or repeal any enactment which extends to that Part, except that—

(a) section 76, so far as it relates to the Animal Health Act 1981, extends to England and Wales only; and

(b) the following provisions—

(i) section 75, so far as it relates to paragraph 2 of Schedule 14; and

(ii) section 76, so far as it relates to the Electric Lighting (Clauses) Act 1899,

extend to Scotland only,
(1G) Section 77 above extends to Scotland only, so far as it relates to paragraph 18 of Schedule 16.
(1H) Section 57 above (including Schedule 8), so far as it relates to any enactment, extends to any place to which that enactment extends.
(1J) Section 76 above, so far as it relates to any enactment contained in—

(a) the Army Act 1955;

(b) the Air Force Act 1955;

(c) the Naval Discipline Act 1957; or

(d) the Armed Forces Act 1976.

extends to any place to which that enactment extends,").
Page 75, line 39, leave out subsections (3) and (4) and insert—
("(3) Her Majesty may by Order in Council direct that all or any of the enactments specified in subsection (4) below shall extend, subject to such modifications as may be specified in the Order, to the Isle of Man or any of the Channel islands.
(4) The enactments mentioned in subsection (3) above are—

(a) section 32(1) of the Criminal Law Act 1977;

(b) sections 32 and 143 of the Magistrates' Courts Act 1980; and

(c) in this Act—

(i) sections 35 to 38:

(ii) section 39 (including Schedules 2 and 3);

(iii) section 40;

(iv) sections 45 and 46;

(v) section 49;

(vi) section (including Schedule 10);

(vii) section 73(1); and

(viii) section [Construction of references to "the standard scale"].

(5) Her Majesty may by Order in Council provide that section 48 above shall extend, subject to such modification as may be specified in the Order,—

(a) so far as it relates to section 20 of the Merchant Shipping Act 1979, to any of the Channel Islands, the Isle of Man or any colony and any country or place outside Her Majesty's dominions in which Her Majesty has jurisdiction in right of the Government of the United Kingdom; and

(b) so far as it relates to section 21 of that Act, to any country such as is mentioned in section 15 of the said Act of 1979.

(6) Section 75 above extends to the Isle of Man and the Channel Islands, so far as it relates to paragraphs 11 to 16 of Schedule 13.
(7) Section 76 above extends to the Isle of Man and the Channel Islands, so far as it relates to section 32(2)(a), (c) and (e) of the Criminal Justice Act 1961.")
The noble and learned Lord said: My Lords, it would be convenient if I took Amendment No. 92 with Amendment No. 93. The purpose of these amendments, although the result of them appears a little formidable, is to clarify and bring up to date the extent provisions of the Bill. The structure of the relevant provisions of Clause 79 as it stands was not found to be satisfactory, particularly as more and more amendments have been incorporated into the Bill at the various stages of its passage through your Lordships' House, and indeed also in another place. It is usually practical to deal with this extent provision towards the end of the proceedings on the Bill and I hope your Lordships will agree to these amendments.
Lord McCluskey: My Lords, I hope your Lordships will forgive me if I raise a point which is not exactly central to this Bill. This Bill is concerned with criminal
788
justice essentially in England and Wales but it contains, like a Yorkshire pudding with porridge oats inside it, something which is entirely alien to its true character; that is to say, it contains a number of provisions about Scottish criminal justice and, more astoundingly, a number of provisions about Scottish criminal procedure, which in my submission have no proper place within this Bill at all.
This method of proceeding of including in an England and Wales Criminal Justice Bill provisions about Scottish criminal law, and particularly about Scottish criminal procedure, is one which the whole profession in Scotland protests about. It leads to considerable difficulties for us because we have to scrutinise not only the statutes which are enacted for Scotland but the ones which are enacted for England as well in order to discover what changes have been made in Scots law.
It may be said by the noble and learned Lord the Lord Advocate that this point that I have raised in relation to this provision is raised somewhat late. It is indeed raised somewhat late, but the points in respect of which the law of Scotland has been altered were introduced into the Bill somewhat late. In fact Clause 72, which I view as being of some little importance, was introduced into the Bill on Report in this House on a Friday afternoon when no Scot was present; and it was moved by the noble Lord, Lord Sandys, and was accepted without any observation by any Scotsman and particularly by any lawyer in the House. Clause 54 was introduced at the Committee stage in a similar fashion, again with no discussion.
This creates great difficulties for practitioners in Scotland. They have no notice of an intention to change the law in this respect and they have no chance to comment upon the proposed change. It is an old chestnut but I would ask the Government to avoid, if they possibly can, this regrettable practice. I would ask the Government to give some indication that they will as soon as possible consolidate the legislation about criminal procedure and justice in Scotland, because a number of amendments have been made in Scottish and English Bills in Parliament since the 1975 Act was enacted and the situation in Scotland has become very confused in trying to follow what has been enacted.
I would also pick up the point here that my noble and learned friend Lord Gardiner has made, because it applies here too, that the Government are using the unnecessary device of commencement orders, and I do not even know whether some of these provisions which may apply to Scotland or to the United Kingdom as a whole are going to be brought into force by the Secretary of State for Scotland or by the Secretary of State for Home Affairs. It is difficult for Scottish lawyers to know from day to day what the state of the law is.
I wish to compliment the noble and learned Lord the Lord Advocate, however, on at least bringing forward Clause 79, which enables us to look at one particular provision in the Bill to find out which parts of the measure will apply to Scotland. Without that amendment, which was made at a very late stage in the progress of the Bill, we should have had to look through perhaps 115 pages of the measure to find out whether or not the English legislation included provisions for Scotland.
Lord Mackay of Clashfern: My Lords, I am obliged for the remarks the noble and learned Lord made towards the end of his address. As for the earlier matters, he acknowledged that it is not the first time that provisions relating to substantive Scottish criminal law have appeared in a Criminal Justice Bill, and the Long Title of this measure makes it clear that there are provisions affecting Scotland. The provision to which the noble and learned Lord referred, Clause 72, reinstates something which had been taken out inadvertently in the 1980 Act and this looked like a suitable opportunity to correct the error. I am extremely glad to have this opportunity to say that we hope to consolidate the law relating to criminal procedure in Scotland, basically on the 1975 Act with the amendments which have been made to it since, and I believe with the noble and learned Lord that this will be to the advantage not only of practitioners in Scotland but also of the public in Scotland affected by these enactments.
On Question, amendments agreed to.
Schedule 1 [Offences excluded from Section 32]:
Lord Elton Lord Elton moved Amendments Nos. 94, 95, 96 and 97:
Page 78, line 6, at end insert—
("MISUSE OF DRUGS ACT 1971 (c. 38)
17A. Section 4 (production or supply of a controlled drug).
17B. Section 5(3) (possession of a controlled drug with intent to supply it to another).
17C. Section 20 (assisting in, or inducing the commission outside the United Kingdom of, an offence relating to drugs punishable under a corresponding law, as defined in section 36(1)).")
Page 78, line 6, leave out lines 10 to 12.
Page 78, line 6, leave out lines 15 and 16.
Page 78, line 6, line 18, at end insert—
("AVIATION SECURITY ACT 1982 (c. 36)
24. Section I (hijacking).
25. Sections 2, 3 and 6 (other offences relating to aircraft).

PART III CUSTOMS AND EXCISE OFFENCES RELATING TO DRUGS
26. Offences under sections 50(2) and (3), 68(2) and 170 of the Customs and Excise Management Act 1979 in connection with a prohibition or restriction on importation or exportation of a controlled drug which has effect by virtue of section 3 of the Misuse of Drugs Act 1971.")
The noble Lord said: My Lords, I spoke to these amendments with No. 36. I beg to move.
On Question, amendments agreed to.
Schedule 3 [Maximum fines to be increased by more than the general increase:]
Lord Elton Lord Elton moved Amendments Nos. 98, 99 and 100:
Page 81, line 11, column 3, leave out from ("£20") to end of line 12.
Page 81, Line 15, leave out ("demanding") and insert ("exacting")
Page 81, line 24, column 3, leave out from ("£20") to end of line 25.
The noble Lord said: My Lords, I will, with the leave of the House, speak to these amendments and at the same time to Amendments Nos. 102, 103, 104, 105, 106 and 107. These are all purely drafting
790
amendments. Unless your Lordships wish me to explain their effect in detail, I shall move them en bloc.
On Question, amendments agreed to.
Lord Elton Lord Elton moved Amendment No. 101:
Page 82, leave out lines 3 to 5.
The noble Lord said: My Lords, this amendment is consequential on No. 49. I beg to move.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendments Nos. 102, 103, 104, 105, 106 and 107:
Page 83, line 24, leave out ("(1)" and insert ("(6)")
Page 83, line 30, column 3, leave out from ("£100") to end of line 31.
Page 83, line 34, column 3, leave out from ("£50") to end of line 35.
Page 84, line 11, column 3, leave out from ("£100") to end of line 12.
Page 84, line 32, at end insert ("other than offences of tampering etc, with parking meters and similar apparatus or devices")
Page 86, line 35, leave out ("£5") and insert ("£25")
The noble Lord said: These amendments are all consequential, my Lords, and I spoke to them with No. 98. I beg to move.
On Question, amendments agreed to.
Baroness Gardner of Parkes Baroness Gardner of Parkes moved Amendment No. 108:
Schedule 3
Page 86, line 36, at end insert—

HOUSING ACT 1980 (c. 51) Offence under paragraph 7 of Schedule 24 (using or permitting the use of premises without means of escape in case of tire in contravention of an undertaking).

Section 147 and Schedule 24

£50 and £5 per day following conviction.

£1,000

The noble Baroness said: My Lords, this ties in with the previously accepted amendments to the Housing Act 1957. The Government having accepted those amendments, it would leave a very anomalous situation if they did not accept this one. It is important that the penalty with which we are concerned here should come into line with the other penalties under that Act and I hope that without going into the matter in great detail—because it is clear cut and speaks for itself—the Minister will accept it. I beg to move.
The Deputy Speaker (Lord Ampthill): My Lords, Amendment proposed, page 86, line 36—and not line 35, as printed on the Marshalled List—at end insert the words as printed.
Lord Elton: My Lords, I am obliged to the noble Lord the Deputy Speaker for making what amounts to an oral amendment to the Marshalled List. During our earlier debate on an amendment on these lines, I said that the increase proposed would result in a penalty significantly greater than for roughly comparable offences. Since then, however, my noble friend Lady Gardner has successfully persuaded the Government to accept the amendment which she moved at Report stage, increasing the penalty for one of these comparable offences: that under Section 27(1) of the Housing Act 1957. In those circumstances the Government's previous objections clearly no longer have the same force, and the Government are therefore prepared to accept the amendment.
Baroness Gardner of Parkes: My Lords, I thank the noble Lord.
On Question, amendment agreed to.
Schedule 6 [Schedule to be inserted as Schedule 7D to the Criminal Procedure (Scotland) Act 1975]:
Lord Elton Lord Elton moved Amendment No. 109:
Page 90, leave out lines 3 to 8.
The noble Lord said: My Lords, this amendment is consequential on Amendment No. 49. I beg to move.
On Question, amendment agreed to.
Schedule 8 [Courts-martial etc.]:
Lord Elton Lord Elton moved Amendment No. 110:
Page 98, line 3, at beginning insert—
("(1) The following subsection shall be inserted after section 57(2) of the Army Act 1955 and of the Air Force Act 1955—
"(2A) If the offender has attained seventeen years of age but is under twenty-one years of age, subsection (2) above shall have effect in relation to him as if the power to impose a sentence of imprisonment were a power to make an order under section 71 AA below.
(2B) The subsection inserted by sub-paragraph (1) above in section 57 of the Army Act 1955 and the Air Force Act 1955 shall also be inserted after subsection (3) of section 38 of the Naval Discipline Act 1957, as subsection (3A) of that section, but with the substitution of "43AA" for "71AA".")
The noble Lord said: My Lords, this is an amendment to Schedule 8 to the Bill to modify a provision in the Armed Services Acts enabling a court-martial to deal summarily with contempt in connection with the court-martial proceedings by imprisoning the offender for up to 21 days. The amendment replaces the power of imprisonment by giving the court-martial power to deal with the young service offender by ordering his custody for a period not exceeding 21 days, the order to have effect as if it were a custodial order passed on the young service offender under the Armed Forces Acts.
During our debate on 21st July on Report the noble and learned Lord. Lord Elwyn-Jones, asked how these armed forces provisions would work. In reply I mentioned that there would be consolidated legislation. I am afraid that that was not right, and I should like to take this opportunity to apologise to both the noble and learned Lord and the House for misleading them and to set the record straight. I think that the noble Lord's real concern was to discover how the armed forces tribunals, which of course work by reference to the armed forces legislation, could be expected to be aware of the provisions being made in this Criminal Justice Bill, which is concerned with the powers of the ordinary criminal courts. The answer is that the provision is being made in such a way that the armed forces tribunals will not have to refer to the substantive provisions in this Bill, but only to the parallel provisions which the Bill inserts into the Service discipline Acts.
To give an example, Clause 1(1) of the Bill abolishes the sentence of imprisonment for offenders aged under 21. The effect of paragraph 1(a) of Schedule 8 is that each of the Service discipline Acts is amended to
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contain a provision that no Service court shall impose imprisonment on an offender aged under 21. The same approach is adopted in all the other substantive amendments which affect the powers of the Service courts. The effect is that they continue to exercise their powers by reference to their own legislation, and not by reference to this Bill. The amendments made to the Service discipline Acts will be set out in the Manual of Military Law.
I hope that that explains the position more clearly than the rather brief and slightly misleading reply that I gave in the earlier debate. I return to the amendment, which I beg to move.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 111:
Page 99, line 33, at end insert—
("2A.—(1) In section 71B of the Army Act 1955 and section 71B of the Air Force Act 1955 (power to impose imprisonment for default in payment of fines)—
(a) at the end of paragraph (b) of subsection (1) there shall be inserted "or

(c) in respect of whom the court makes an order under section 71AA above on the same occasion for the same or another offence, or

(d) who is already serving or otherwise liable to serve a period of detention under such an order.";

(b) the words "or detention" shall be inserted after the word "i m prison ment"—

(i) in the third place where it occurs in that subsection; and

(ii) in subsection (4); and

(c) the following subsection shall be inserted after subsection (5)—
"(5A) An order imposing a term of detention under this section shall be given effect as if it were a custodial order under section 71AA above.".
(2) The amendments made by sub-paragraph (1) above shall also be made in section 43B of the Naval Discipline Act 1957 but with the substitution of "43AA" for "71AA", in both places where it occurs.")
The noble Lord said: My Lords, the purpose of this amendment is to make provision in respect of young Service offenders who are in default in the payment of a fine. Fines imposed on Service offenders are normally recovered by means of deductions from pay, but there is power for a court-martial, on sentencing a Service offender who is at the same time sentenced to, or is already subject to, imprisonment, to fix a further term of imprisonment to take effect if the fine is not paid before the date on which the offender would otherwise be released. It is necessary for provision to be made in the Bill to enable that provision of the armed forces legislation to be applied to young Service offenders for whom imprisonment will no longer be available. Any order fixing a further term will be given effect in the same way as any other custodial order made by a court-martial on a young Service offender. I beg to move.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 112:
Page 101, line 9, leave out (" those Schedules") and insert ("Schedule 5A to the Army Act 1955 and to the Air Force Act 1955").
The noble Lord said: My Lords. I spoke to this amendment with Amendments Nos. 55 and 56. I beg to move.
On Question, amendment agreed to.
Schedule 11 [Probation and after-care]:
Lord Mishcon Lord Mishcon moved Amendment No. 113:
Page 108 line 19, leave out from ("unless") to the end of line and insert—
("it has first consulted a probation officer as to—

(a) the offender's circumstances: and

(b) the feasibility of securing compliance with the requirements, and is satisfied, having regard to the probation officer's report that it is feasible to secure compliance with them.")

The noble Lord said: My Lords, well-informed and sweet-sounding rumour has it that this amendment may well he accepted by the Government. In those circumstances, and in reliance upon that rumour, I intend to be extremely brief. Your Lordships will remember that this new provision, which deals with requirements in probation orders, was debated, and opposition was expressed to it, but it is now in the Bill. The desire of this amendment is to see that at least there is proper consultation with probation officers: not just the general term "consultation", as mentioned in the Bill, but consultation dealing with the specific items set out in this amendment. I beg to move.
Lord Elton: My Lords, the friendly operation of the House denies me repeatedly the pleasure of holding the noble Lord opposite in suspense. I will speak but briefly longer than him. The amendment seeks to spell out in some detail what should happen when a court consults a probation officer about including a requirement in a probation order which would entail the offender attending a specified place or participating or refraining, from participation in specified activities. As the Bill stands at present, the court must consult a probation officer before making such a requirement. In addition, the offender himself must consent to the requirement, and the agreement of any third party concerned must also be obtained. That is quite a formidable array of safeguards, and might seem sufficient to prevent the making of unsuitable requirements.
We are, of course, well aware of the similar provision which is now included in Clause 21 dealing with requirements in supervision orders. This was introduced by my noble friend Lord Trefgarne at Committee stage. We are anxious to do everything possible to maintain the confidence of the courts in the probation order, particularly when it may be used as an alternative to a custodial sentence. We therefore agree that it is very important that the court is satisfied that there is every reason to suppose that the offender will be able to meet the obligation which is being imposed. That may be particularly relevant when the so-called negative requirement is being considered. We should not wish to prevent such negative requirements from inclusion in probation orders if they were decisive in persuading a court in favour of probation rather than custody.
On balance, therefore, the Government are prepared to recommend acceptance of the amendment, on the grounds that it will give courts greater confidence that requirements in probation orders will be effective and therefore that such orders can present a feasible alternative to custody. While it
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may be that the noble Lord was not so anxious to hear the reasons for the acceptance, I felt it necessary to put them on the record so that others should understand why we have taken this decision.
Lord Mishcon: My Lords, I am much obliged to the noble Lord the Minister.
On Question, amendment agreed to.
10.48 p.m.
Lord Mishcon Lord Mishcon moved Amendment No. 114:
Page 108, line 34, at end insert—
("(4A) A place specified in the order shall have been approved by the probation committee for the area in which the premises are situated as providing facilities suitable for persons subject to probation orders.").
The noble Lord said: My Lords, the self-same rumour reached me in regard to this amendment, and I hope it was equally correct. Therefore, I can be extremely brief. Your Lordships will appreciate that in this amendment we are dealing with a place specified in an order. If your Lordships look at the new Section 4B. you will find that day centres are there mentioned, and they are geared specifically to the needs of offenders. But the new Section 4A is concerned with other places, and there is nothing in that new section to ensure that the places specified reach a suitable standard. This amendment deals with that provision. I beg to move.
Lord Elton: My Lords, this amendment would require centres of facilities that are included in requirements in a probation order to be approved by the local probation committee before an offender attended them. The provisions in the Bill would already require the consent of the offender and the agreement of any third party involved, as well as consultation with a probation officer. What is being sought here is an additional safeguard about the values and standards of the centre or the activity concerned.
We ought to be clear about the intention behind such safeguards. There is general agreement that courts should be encouraged to make non-custodial disposals wherever that is appropriate. The inclusion of requirements in a probation order may well he the factor which persuades a court to put an offender on probation rather than sending him into custody. What we should be seeking, therefore, is greater confidence on the part of probation officers that they can recommend suitable facilities in a report to the court and greater confidence by the court that any requirement they make will benefit the offender and contribute to his keeping out of trouble during the currency of the order. That is the intention of this amendment as I understand it.
If the local probation committee has approved a particular facility, then the court is more likely to have confidence in its regime, and is therefore more likely to use it. To that extent, this could be an encouragement to the court to give serious consideration to probation as an alternative to a custodial sentence. Therefore, as the noble Lord correctly anticipated, the Government are prepared to recommend acceptance of the amendment.
On Question, amendment agreed to.
Lord Mishcon Lord Mishcon moved Amendment No. 115:
Page 108, line 48, at end insert—
("(7) Requirements under this section shall not operate so as to contain a custodial or other punitive element and shall he such as to advise, assist or befriend the probationer.").
The noble Lord said: My Lords, there has been on this occasion a failure of communication as a result of which I have not heard this rumour. However, equally, I can be brief in regard to this amendment. Recently, there has been a tendency to use the probation order as a vehicle for imposing restrictive and punitive elements which are very much like a semi-custodial sentence. The noble and learned Lord, Lord Bridge, was commenting on this when, in a judgment in the case of Cullen v. Rogers, he said:
"A requirement"—
and then follow a few words not relevant to this—
"must not introduce such a custodial or other element as will amount in substance to the imposition of a sentence".
This amendment spells out clearly what the probation service wants to have spelt out—namely, that the aim of probation is to advise, assist and befriend. It can do no harm. The noble Lord the Minister in a courteous letter to me implies that it can do no good because there it is well known and statutorily enforced that this is the job of the probation service. Because it can do no harm, because the probation service want it and because it has an implication in regard to the statement that was made by the noble and learned Lord in that well known case, I would hope that the House would agree to this amendment. But it would be even better if the noble Lord the Minister could save the time of the House by agreeing to it himself. I beg to move.
Lord Elton: My Lords, this amendment would provide that attendance at a facility or participation in activities specified under Section 4A should not in practice introduce a custodial or other punitive element, but should be designed to advise, assist or befriend the offender. I can well understand the motives behind this amendment. None of us wishes to introduce anything which is not compatible with the nature of probation. I am sure that we all wish to see the probation order used to the benefit of the offender and to keep him out of further trouble during the currency of the order.
So much is common ground. But difficulties are introduced as soon as we begin to use words like "custodial" or "punitive". These adjectives are too imprecise in the context in which the amendment places them, and would almost certainly lead to doubt as to precisely what facilities and activities they embrace. To take a lay example, is a requirement to attend a lecture indoors on a warm summer afternoon for my own edification and good entirely educational? It will certainly seem to contain a custodial element to me. Is a requirement to join a cross-country run on a cold and wet winter afternoon for the improvement of my own moral and physical fibre only entirely therapeutic? It will certainly seem to have a punitive element to me.
To avoid litigation, the courts would need to know for sure in every case in which they made requirements in probation orders. In addition, there might well be a series of appeals that certain requirements had fallen foul of such a provision. The result would be great
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uncertainty about whether it was safe to make requirements or not, and a reluctance on the part of courts to take that risk. They could be forced to conclude that, although they did not wish to do so, they had no alternative in some cases but to give custodial sentences in place of probation. We should, therefore, see the very opposite of what I am sure is the noble Lord's intention.
In cases of this kind we have to make clear what our intention is. Clearly, it is to give the probation order the flexibility to deal with quite sophisticated offenders in the community. Courts then need to have the confidence to make use of probation; and that means they want some idea of how the offender is going to spend his time, and what he will be doing. One can, of course, say that requiring him to attend any centre or take part in an activity is "custodial" or "punitive". I would prefer to say that such requirements are the very opposite, because they are the means of keeping the offender in the community; that is, out of custody and taking part in what would be to his benefit.
Finally, we should remember what are the general duties of a probation officer. These include the statutory duty to "advise, assist and befriend" those who are placed under his supervision by the courts. We can properly draw the inference that the probation order is intended to create the framework for that duty to take place. It may be that at times the order will impose certain restrictions, or impose some discipline upon an offender's life. I do not think any of us would see that as being custodial or punitive, but it would be open to that interpretation. It is rather creating the conditions for realistic advice, assistance and effective friendship. Let us not put any artificial barriers in the way of allowing the probation service to tackle the problems of those who might otherwise well end up in prison.
I hope the noble Lord does not think that I am being pettifogging. It is an honest opinion that those interpretations could be placed on these terms and would be so placed in circumstances which would eventually lead to a limitation of the freedom of disposal of the courts rather than otherwise.
Lord Mishcon: I would never accuse the noble Lord of being pettifogging in any respect; but I think that the House will be very disappointed in the personal examples he gave of his lack of cultural and athletic appetite. Having said that. I think it would not serve a useful purpose to the House if at this stage of the Bill and at this time I tried to press this amendment. I have put my point of view; I have put the probation officer's point of view. The noble Lord has given me a courteous reply. In those circumstances, I do not propose to press the amendment.
Amendment, by leave, withdrawn.
Schedule 12 [Community Service Orders]:
10.57 p.m.
Lord Elton Lord Elton moved Amendment No. 116:
Divide Schedule 12 into two schedules, the first consisting of Part I and the second of Parts II to IV.
The noble Lord said: This amendment is consequential on Amendment No. 80. I beg to move.
On Question, amendment agreed to.
Schedule 13 [Minor and consequential amendments]:
Lord Elton Lord Elton moved Amendment No. 117:
Page 131, line 37, after ("Scotland).") insert ("and in section 42(2) (application to Northern Ireland).").
The noble Lord said: My Lords, this is a purely technical amendment relating to transfer of young offenders in custody between the various British jurisdictions. I beg to move.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 118:
Page 131, line 45, leave out from ("after") to ("Where") at page 132, line 1. and insert ("subsection (1B)—
(1C)").
The noble Lord said: My Lords, this is a purely drafting amendment. As it stands the Bill inadvertently creates two new subsections 1(A) in Section 60 of the Criminal Justice Act 1967—in Clause 33(a) and in paragraph 18 of Schedule 13. This amendment simply corrects the latter reference to Section 1(C). I beg to move.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 119:
Page 133, line 38, at end insert—
("Criminal Appeal 1968 (c. 19))
22A. In section 10 of the Criminal Appeal Act 1968 (appeal against sentence passed by Crown Court for an offence not tried on indictment)—

(a) in subsection (2)(b), after the word "discharge" there shall be inserted the words "or an attendance centre order";

(b) in subsection (3)(a), after the word "imprisonment" there shall he inserted the words "or to youth custody under section 6 of the Criminal Justice Act 1982": and

(c) the following subsection shall be inserted after subsection (4)—

"(5) If by virtue of an order made under section 14 of the Criminal Justice Act 1982. the term of 4 months specified in section 4 of that Act is increased to a term of 6 months or more, subsection (3)(a) above shall have effect, for so long as the term so specified is 6 months or more, as if after the word "more" there were inserted the words "or an order for his detention in a detention centre for a term of 6 months or more has been made under section 4 of the Criminal Justice Act 1982".")
The noble Lord said: My Lords, the purpose of this amendment is to make two changes to Section 10 of the Criminal Appeal Act 1968 which provides a right of appeal to the Court of Appeal against sentence when a person is sentenced by the Crown Court for an offence for which he was not convicted on indictment. I indicated at the Report stage of the Bill, on 23rd July, that these changes would be necessary to take account of the new provisions of the Bill in relation to young offenders.
The first part of this amendment concerns attendance centre orders, and a young offender's right to appeal to the Court of Appeal against a sentence imposed by the Crown Court. At present, the Crown Court can make an attendance centre order only when it is dealing with a young offender who has been convicted by a magistrates' court and committed to the Crown Court under Section 37 of the Magistrates' Courts Act 1980 with a view to a sentence of borstal training. If the Crown Court decides not to pass such a sentence it can deal with the offender in any way in
798
which the magistrates' court could have dealt with him, which includes making an attendance centre order. Any breach of the order will however be dealt with by the magistrates' court.
The Bill enlarges the power of the Crown Court to make attendance centre orders and gives the Crown Court power to deal with an offender who is in breach of such an order. When it deals with a breach, the Crown Court can pass sentence for the original offence as if the attendance centre order had never been made. The Criminal Appeal Act 1968 does not cover a sentence passed by the Crown Court in that situation where the offender was originally tried summarily by a magistrates' court. The purpose of the first part of this amendment is to ensure that in such circumstances the offender has a right of appeal to the Court of Appeal against the resultant sentence.
The remainder of this amendment concerns the new sentence of youth custody and the detention centre order. As I explained in relation to the earlier part of this amendment, Section 10 of the 1968 Act deals with the circumstances in which an offender who was convicted by a magistrates' court but sentenced by the Crown Court can appeal against that sentence to the Court of Appeal. Such an appeal does not usually lie where the Crown Court decides not to use its greater sentencing powers, but instead passes a sentence which would have been within the competence of the magistrates' court. As a limited exception to that broad rule, paragraph (a) of subsection (3) provides that there can be an appeal under Section 10 where the Crown Court passes a sentence of imprisonment (or more than one such sentence) totalling six months or more. That provision should also apply where a young offender is sentenced to youth custody for six months or more, and this amendment achieves this by adding to the statute a reference to the new young offender sentence.
The final part of this amendment makes provision in relation to a detention centre order of six months or more. The Bill provides that a detention centre order is a sentence of four months or less, but Clause 14 of the Bill contains an order-making power which would allow the Secretary of State to move the threshold of four months between detention centre orders and youth custody sentences. If that power were ever exercised so as to provide an upper limit of six months or more on detention centre orders, such orders would need to attract the substantive right of appeal under Section 10 of the 1968 Act, and this reference makes provision against that event. I beg to move.
On Question, amendment agreed to.
Lord Trefgarne Lord Trefgarne moved Amendments Nos. 120 and 121:
Page 138, line 18, leave out from beginning to ("(provision") and insert—
("42A. In section 10(2) of the Child Care Act 1980 (parental powers of local authorities) for the word "regulations made in pursuance of section" there shall be substituted the words "section 21 A of this Act and to regulations made in pursuance of section 21A or".
43. In section 21 of that Act")
Page 138, line 25, at end insert—
("43A. In paragraph (c) of section 39(2) of that 'Act (regulations as to conduct of community homes etc.) after the words "other requirements" there shall be inserted the words "(in addition to those imposed by section 21A above)".")
The noble Lord said: My Lords, on behalf of my noble friend Lord Elton. I beg to move Amendments Nos. 120 and 121. which are both consequential to Amendment No. 12.
On Question, amendments agreed to.
11.4 p.m.
Lord Foot Lord Foot moved Amendment No. 122:
Page 138, line 26, at end insert—
("In section 11(1) of the Magistrates' Courts Act 1980 insert at end "and where the trial of an information so proceeds such trial may take place together with the trial of other informations against the accused as the Court thinks fit".").
The noble Lord said: My Lords, if I have read the Marshalled List aright, I think this is probably the last amendment on the Marshalled List which involves any controversy of any kind. First of all. I will not apologise but I will express my regret that this small amendment of mine should be considered at such a late stage and that it was not possible for me to put the amendment down at an earlier stage of the Bill. The reason for that, as I have already explained to the Minister, is that the amendment I am seeking to move arises from, and has been occasioned by, a decision in a divisional court as recently as 25th June of this year, and of course that was too late to allow me to put the amendment down at an earlier stage.
What I seek to do is to make a minor amendment but. I suggest, a not unimportant one, to Section 11 of the Magistrates' Courts Act 1980. That is a section which deals with the situation which arises in a magistrates' court where somebody has been summoned to appear on an information, and fails to do so. Subsection (1) provides that where that happens and where a person is due to appear on a certain date to answer a certain information, if he fails to appear but the prosecutor does appear, the magistrates, if they choose, can proceed to try the case in his absence. What they have to do then is to listen to the evidence. Only if they are satisfied on the evidence that the case is proved can they find that an offence has been committed.
It is obviously necessary to have some system of that kind to deal with a situation where a defendant simply fails to turn up, because otherwise the work of the courts could be frustrated by defendants who persist in not turning up for their trials. But there was one omission from subsection (1) of Section 11; that is, that it did not say what was to happen if an accused person was charged not on one information only but on two informations or more.
It has been supposed, I think, by magistrates' courts, and magistrates' courts clerks in particular, over the last 15 or 20 years that when a person fails to turn up to answer more than one information they can properly deal with the two, three, or however many informations it may be, together. That is the view which has been held for a very large number of years. But as a result of this case, which was heard the other day in the divisional court, that conclusion appears to be erroneous. It was a case entitled Regina v. Hunstanton Justices ex parte T. E. Clayton and E. A. Clayton. The Claytons were man and wife and I am going to confine my remarks, for the sake of simplicity, simply to the case against Mr. Clayton.
There were three informations against him under the Post Office Act 1969 and he failed to appear, although there was no dispute that he knew of the time and date fixed for the hearing of the case. He also knew of the informations which were laid against him. The magistrates proceeded to deal with the cases in his absence under the terms of Section 11. But they made what subsequently turned out to be the basic error of hearing all three informations together. They fined him £50 on each information and he appealed to the divisional court on a question of law. It was argued on his behalf that the magistrates had not been entitled to try the three informations together without his consent and, since he had not been there to give his consent, his consent had not been given. The divisional court, having heard the argument, upheld that contention and decided that they were bound by an earlier decision of the divisional court running right back to 1962. the case of Brangynne v. Evans.
I think it will be sufficient for my purposes if I do what that court did and simply quote the headnote of that 1962 case.
It was a divisional court presided over by Lord Parker, who said this:
"It has always been a principle of law that a defendant in a magistrates' court can only he called on to answer one charge at a time, unless he consents either expressedly or impliedly to informations being heard together. Accordingly, a magistrates' court should never proceed to hear two or more informations at the same time without expressly asking the defendant whether he consents to that course."
That was the perhaps rather surprising decision, in view of the previous history of the matter, that the convictions which had been recorded against Mr. Clayton were invalid and could not be upheld. As I said before, the only reason why Mr Clayton's consent had not been obtained was that he had not been there to give it.
The other point which I suggest should be noted is that, so far as Mr. Clayton was concerned, the outcome of the matter would have been exactly the same if the magistrates had dealt with each of the informations separately. He would have found himself tined £50 on each of the three informations.
Perhaps to finish off the matter, and to emphasise what seems to me the very surprising consequences of that decision. I may quote what was said by Lord Justice Griffiths in his judgment. I am leaving out some words which are not material.
He said:
"We have some sympathy with the clerk of the justices who has sworn an affidavit pointing out that he has great experience in magistrates' courts sitting at Southampton. Dudley. Birmingham and Coventry, and who says 'In my court experience, stretching back over some 16 years, the practice of dealing with several cases against an accused person which are of a summary nature, frequently motoring offences, is one which has been followed for many years, is widespread throughout the magistrates' courts and is accepted as normal practice in the vast majority of cases'".
Lord Justice Griffiths went on to say:
"As Mr Fanner"—
who was counsel for the Crown—
"pointed out, it would have greatly added to the inconvenience of the procedure and taken up needless time if the magistrates in this case had gone through the process of hearing each information separately, pronouncing judgment and then having the same officer re-sworn and proceeding with the evidence on the next information. As Mr Farmer said, if that procedure had to be multiplied many times a day, it would considerably slow down the work of the magistrates' court. So it may, but administrative inconvenience is

801
no good reason for this court to disregard authorities that are binding upon it".
The only other words of Lord Justice Griffiths that I wish to quote are the concluding words. They are, I suggest, particularly significant:
"Perhaps the damage will not be quite so great as is feared by the clerk to the justices in this case. If it does cause inconvenience, then the remedy must be for the magistracy to consider whether some amendment to that procedure should be placed before Parliament, but that is not a matter for this court".
Finally:
"On the facts of this case, although for my part I sec absolutely no merit in the applicants' case at all, they are entitled on this technicality to have their convictions quashed".
The whole purpose of my amendment is to do what Lord Justice Griffiths impliedly suggested: that is, to invite Parliament to put right this technical absurdity, as I would suggest it is. The effect of my amendment is simply this. It would add to Section 11(1) of the Magistrates' Courts Act these words:
"and where the trial of an information so proceeds"—
that is, in the absence of the accused—
"such trial may take place together with the trial of other informations against the accused as the court thinks fit".
I beg to move.
Lord Elton: My Lords, the Government do indeed recognise the importance of' the judgment in the case of Regina v. Hunvanton Justices ex parte Clayton. particularly for the work of magistrates' courts, but we do not think that this amendment is sufficient to deal with the problem, nor do we think that it is advanced altogether at an appropriate time.
As to the untimeliness of the amendment, I should point out that, as the noble Lord himself has indicated, the divisional court has certified two points of law as being of general public importance arising in the judgment. It is open to the respondents in the case to apply to your Lordships' House for leave to appeal. We understand that it is probable that such an application will be made. I cannot, of course, foresee the outcome of such an application, but this is a case where the divisional court were not interpreting a point of statute law. They were expressing a view on a basic principle of English law, and there remains an avenue of appeal to a court which might express its own view on that principle. It therefore seems appropriate to the Government to await the outcome of the case before deciding how to proceed.
Even if this approach were not adopted, we would have to oppose the amendment on the ground that it fails to do the job for which it was intended. In attempting to allow a magistrates' court to try several informations together when those informations arise from the same or similar sets of facts, the amendment has in fact gone far too wide. It would, for example, permit a court to try any outstanding information against the defendant, no matter what the circumstances of the offence or the occasion on which it was committed. The only criteria to guide the court would be that the informations were indeed outstanding against him. I am sure that this is not what the noble Lord intended to do, but it is, I regret, what would result from the drafting.
The Government are not unaware of the difficulties to which this particular judgment might give rise in the work of magistrates' courts.
802
We shall certainly consider the problem further—particularly when we have the views, if any are eventually expressed, of your Lordships' House on appeal from the divisional court. We shall have to consider whether an amendment to statute is indeed necessary to overcome these problems, but we do not want to rush into this without considering all the arguments for and against what the courts have determined to be a basic principle of English law. None the less, I am grateful to the noble Lord for the care with which he has reviewed this matter and brought it to your Lordships' attention. But I would urge your Lordships not to accept this amendment.
Lord Foot: My Lords, of course I accept that. I am glad to hear that the matter is regarded as one of some concern by the Home Office, and that is some consolation at any rate.
On the matter of its still being open to the magistrates to take this matter to the House of Lords on a point of general publicimportance, I would say to the Minister that I know what the question was which was being certified as being of general public importance. It was this: whether the consent of the defendant is necessary in the trial together of' two or more informations. If I may say so, that question does not answer my point. My point is this. If a defendant is absent and not in a position to give his consent, can the magistrates then try a number of informations together or must then try each of them separately? So the question which has been certified does not achieve the object and does not meet the question which I tried to raise here. Having said that, I will leave it there. I am much obliged to the Minister for having considered it even at this very late hour, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 15 [Repeals]:
Lord Elton Lord Elton moved Amendment No. 123:
Page 149, line 32, at end insert—
("Section 67(1)(b).".
The noble Lord said: My Lords, Amendments Nos. 123 and 128 simply correct a drafting error in the Bill as it stands. I beg to move.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 124:
Page 149, line 33, at end insert—

("1968 c. 19.

Criminal Appeal Act 1968

In section 20 the words "(hereafter referred to as "the registrar")".").

The noble Lord said: My Lords, this amendment is consequential upon Amendment No. 33. I beg to move.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 125:
Page 149, line 43, at end insert—

("1971 c. 77.

Immigration Act 1971.

In section 6(5) the words "except in Scotland,", and paragraph (b) and the word "and" preceding it.").

The noble Lord said: My Lords, this is a drafting amendment, and I beg to move.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 126:
Page 150, line 57, at end insert—

("1976 c. 52.

Armed Forces Act 1976.

In section 13, the words "not exceeding 12 months".").

The noble Lord said: My Lords, this amendment is consequential upon Amendment No. 81. I beg to move.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 127:
Page 150, line 57, at end insert—

("1976 c. 63.

Bail Act 1976.

In Schedule 2, paragraphs 40 and 42.").

The noble Lord said: My Lords, I spoke to this amendment with Amendment No. 33. I beg to move.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 128:
Page 151, line 12 leave Out ("paragraph 10") and insert ("in paragraph 10, the words from "and at"onwards.").
The noble Lord said: My Lords, I spoke to this amendment with Amendment No. 123. I beg to move.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 129:
Page 152, line 28, column 3, at end insert (""respectively" and ""£50" and",")
The noble Lord said: My Lords, this is a drafting amendment designed to ensure the correct repeal of redundant words in Section 46(1)(c) of the Criminal Justice (Scotland) Act 1981. I beg to move.
On Question, amendment agreed to.
Schedule 16 [Transitional provisions]:
Lord Elton Lord Elton moved Amendment No. 130:
Page 154, line 6, leave out paragraph 5 and insert—
("5.—(1) A custodial order to which this sub-paragraph applies shall he treated as a youth custody sentence for all purposes of detention, release and supervision of the offender in respect of whom it was made.
(2) Sub-paragraph (1) above applies to a custodial order specifying a maximum period of detention which has not expired at the commencement of sections 1 to 16 above—

(a) if the maximum period of detention which it specifies is more than 4 months: or

(b) if—

(i) the maximum period is 4 months or less: and

(ii) the offender is female.

(3) A custodial order to which this sub-paragraph applies shall he treated as a detention centre order for all puposes of detention, release and supervision of the offender.
(4) Sub-paragraph (3) above applies to a custodial order made in respect of a male offender and specifying a maximum period of detention of 4 months or less which has not expired at the commencement of sections 1 to 16 above.
(5) In this paragraph "custodial order" means an order—

(a) under section 71 AA of the Army Act 1955, section 71AA of the Air Force Act 1955 or section 43AA of the Naval Discipline Act 1957; or

(b) under paragraph 10 of Schedule 5A to the Army Act 1955, Schedule 5A to the Air Force Act 1955 or Schedule 4A to the Naval Discipline Act 1957.").

The noble Lord said: My Lords, this brings us back to the forces. This amendment relates to the
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transitional provision for those young offenders sentenced by armed forces tribunals who are in the custody of the prison department when the Bill comes into force. Those with short sentences are to be treated as if they had been given detention centre orders. One inadvertent effect of this basically straightforward provision is that it could oblige us to hold young women in detention centres. As noble Lords will recall, there are no detention centres for young women. Any young women in custody during the brief transitional period should therefore be treated as if they had been given short youth custody sentences, and that is what this amendment provides. I beg to move.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 131:
Page 158, line 9, leave out from ("thereafter") to end of line 11 and insert ("have effect as if it were a requirement imposed under section 4B of that Act specifying as the day centre which the probationer is required to attend the day centre at the premises of the day training centre")
The noble Lord said: My Lords, the purpose of this amendment is to enable a requirement to attend a day training centre, included in a probation order by a court prior to the enactment of this Bill under powers contained in Section 4 of the Powers of Criminal Courts Act 1973, to continue in force as if made under the new Section 4B of the 1973 Act. It will be recalled that the Government introduced the new Section 4B as an amendment in Committee to overcome the courts' lack of power to require probationers to attend a day centre disclosed by their Lordships in the appeal of Cullen v. Rogers. This is a consequential amendment which should have been introduced with the new Section 4B.
We are indebted to the chief probation officers with day training centres in their area who alerted us to the necessity for this amendment. As the Bill stands and without this amendment, it would be necessary for probationers attending the four day training centres, or awaiting a place on a course, to be taken back before the courts for a fresh requirement to be made under the new Section 4B to the 1973 Act. The amendment will also enable probationers with a requirement in force when the Bill is implemented to be taken back to court under the new legislation if they fail to comply with a requirement to attend a day centre. I beg to move.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 132:
In the Title, line 12, after ("persons") insert ("and to the grant of bail to persons convicted or sentenced in the Crown Court")
The noble Lord said: My Lords, I spoke to this with Amendment No. 33. I beg to move.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 133:
In the Title, line 12, after ("abolish") insert ("subject to savings")
The noble Lord said: My Lords, this is a purely technical amendment to deal with a point made by my noble friend Lord Renton on Report. It makes clear in the Title that the right to make an unsworn statement is not to be totally abolished. An unsworn defendant will still be able by virtue of subsection (1) of Clause 71

805
to make any statement which he is required by law to make personally, and a statement made after the verdict and before sentence by way of mitigation. I beg to move.
On Question, amendment agreed to.
[Amendment No. 134 not moved.]
11.24 p.m.
Lord Elton: My Lords, I beg to move that this Bill do now pass.
Lord Elwyn-Jones: My Lords, is the noble Lord going to address the House?
Lord Elton: My Lords, I think it is normal for the Minister bringing the Bill to the House to speak first. As I am now up perhaps your Lordships will permit me to do that. Our labours have been long. I think your Lordships would prefer my concluding remarks to be brief.
Your Lordships received from another place a Bill of 62 clauses. We are about to return for approval there a Bill of over 80 clauses. Your Lordships' work has been thorough and productive—and by no means entirely directed by party allegiance. While some of your Lordships would wish that the Bill could have achieved more, it really cannot be claimed that what it does achieve is of little account. It will imprint indelibly upon the statute book that custody is a measure of last resort. It will give to courts both a greater control over the duration of custody when it is applied and a greater range of alternatives to custody to reduce its application. It has provided for the use of the most restrictive accommodation under a care order. It has entailed a thorough revision of the powers under which probation orders are made. It abolishes the anachronisitic unsworn statement from the dock. It has been the occasion of close scrutiny of the means and acceptability of shortening the minimum qualifying period for parole. It has, without having recourse to custody, strengthened the powers of the courts to deal with young offenders in care who re-offend. It has strengthened the powers also in prescribing the supervision of young offenders. It widens the power of suspending sentences in part. It provides for a saving in the number of productions of unsentenced prisoners for bail hearings, but only permits its application with their consent. It does a great deal more of a technical nature to facilitate both existing procedures and future legislation.
As a result of proceedings in your Lordships' House, the Bill gives courts greater flexibility in the deferment of sentences. It has made legal aid available for care order cases. It has strengthened the social inquiry report requirements. It has placed strict limitations on the holding of juveniles in prison. It enables the court to require a person in care to spend the night hours, when he may be most particularly at risk, in a specified place, and it provides a readier access to bail for prisoners whose cases are pending appeal.
The Bill has provided a challenging exercise for your Lordships in what was at first, for me, a new field and for all of us one of the utmost importance. I am greatly obliged to your Lordships not only for the thorough and often selfless work your Lordships have put into the Bill, but also for the courteous and patient way in which you have contributed from your collective
806
wealth of experience to the improvement of my own knowledge and understanding. It leaves us with a Bill that is one-third larger and, I hope, a little more than one-third better than when it came to us. I hope your Lordships will join me in wishing it well.
Moved, That the Bill do now pass.—(Lord Elton).
Lord Elwyn-Jones: My Lords, at this valedictory stage I know that the House will join with me in thanking the noble Lord, Lord Elton, for the way in which he has borne the heavy burden of conducting this case through the House, which he has done with courtesy, patience, thoroughness and sense of humour. Heaven knows, that was called for from time to time, not only from the Government Front Bench but from the Opposition Front Bench.
In the circumstances, I think it is appropriate that I should acknowledge, on behalf of noble Lords from each side of the House, the assistance that we have received from a number of organisations working in the sphere of criminal justice, particularly the National Association for the Care and Resettlement of Offenders, the National Association of Probation Officers, the Justices' Clerks' Society, the Association of Directors of Social Services and the Children's Legal Centre. It may also be appropriate to pay tribute to the work of the Parliamentary All-Party Affairs Group, in which members of all parties have played a notable part and I have little doubt have been partly responsible for the beneficial changes that have been made to the Bill during its progress through the House.
Many individual provisions of the Bill are sensible. A small number are retrograde. However, the main criticism of the Bill concerns what has been left out. It contains no measure to tackle the prison crisis effectively and, consequently, represents a tragically missed opportunity.
Lord Wigoder: My Lords, it has sometimes seemed today that any resemblance between our proceedings and a normal Third Reading has been purely coincidental. At this late hour I shall confine myself to two short observations. First, my noble friend Lord Harris of Greenwich and I owe it to your Lordships to explain in a sentence why the amendment we tabled on Report and on Third Reading dealing with disqualifications for jury service was not moved. It was an attempt to deal with the very serious and increasing problem of jury nobbling, of interference with juries, by ensuring that persistent or serious criminals were not available for jury service.
I believe that the amendment would have won widespread support both inside and outside your Lordships' House. However, there were those who took the view that, interesting though the amendment was, it was not relevant to the subject matter of the Bill. That appeared to the noble Lord, Lord Harris, and myself to be an arguable matter. However, it appeared also that if we were to pursue our amendment as regards this Bill it would have meant indulging in something of an altercation on a procedural issue across the Floor of your Lordships' House, and neither of us thought that that was appropriate. In those circumstances we decided not to move that amendment. Perhaps I might be allowed to say that we shall await with great interest what the Government propose to do about this urgent matter in

807
the next Session of Parliament. If the Government do not make positive proposals, then my noble friend and I will have no alternative but to proceed directly in your Lordships' House.
The other observation that I want to make is by way of conveying congratulations from my noble friends, and I am sure from all in the House, to the noble Lord, Lord Elton, for the way in which he has conducted this Bill. It is a better Bill than it was when it came to us. The amendments that have been carried have improved it. Some have been carried against the advice of the noble Lord, Lord Elton, but many of them have been carried as a result of the careful, kind and constructive consideration which he has at all times given to the arguments that have been urged upon him. I should like to say how very grateful we all are to him for the part that he has played in securing those amendments.
11.31 p.m.
Lord Donaldson of Kingsbridge: My Lords, I should like to associate myself with the other speakers. We are grateful to the noble Lord for his courtesy and for the friendly way in which he has dealt with the Bill. It is longer and better than when it came to us. But I must say that I am filled with absolute despair when I look back at the opportunities missed. What we should have done is to have passed the amendment of the noble Lord, Lord Hunt, which would, at a stroke—if I may coin a phrase—have taken between 6,000 and 7.000 out of the prison population. Equally, we should today—and we missed by only three votes—have passed the amendment of the noble Lord, Lord Harris, which would have taken a couple of thousand out and made the situation tolerable. However, I do not want to go on about this matter.
In view of the time and energy spent on this Bill, I believe it is dreadful that a Bill of this kind should pass without a single step being taken in regard to the only thing that is important. Only two measures in the Bill are of any relevance to the matter as a whole; they are Clauses 32 and 33, which give the Home Secretary power to do certain things. I wish just to say that if he does them, and I think that he will have to do them, he will have our fullest support.
On Question, Bill passed, and returned to the Commons.

GREATER LONDON COUNCIL (GENERAL POWERS) (No. 2) BILL
The Examiner's Certificate that no further Standing Order is applicable: ordered to lie on the Table.
  EUROPEAN PARLIAMENTARY ELECTIONS: VOTING PROCEDURE
  EUROPEAN PARLIAMENTARY ELECTIONS: VOTING PROCEDURE
  CRIMINAL STATISTICS: CONVICTION VARIATIONS
  CRIMINAL STATISTICS: CONVICTION VARIATIONS
  MR. HENRYK PODLEWSKI: POLICE CONDUCT
  MR. HENRYK PODLEWSKI: POLICE CONDUCT
  AIR GUNS: USE IN CRIME
  AIR GUNS: USE IN CRIME
  AIR GUNS: CONTROL BY LICENCE
  AIR GUNS: CONTROL BY LICENCE
  AIR GUN INJURIES TO ANIMALS
  AIR GUN INJURIES TO ANIMALS
  EUROPEAN PARLIAMENT ELECTIONS: UK NATIONALS ABROAD
  EUROPEAN PARLIAMENT ELECTIONS: UK NATIONALS ABROAD
  RAF WELFORD: TRANSPORT AND STORAGE OF ARMAMENTS
  RAF WELFORD: TRANSPORT AND STORAGE OF ARMAMENTS
  THE FALKLANDS TASK FORCE AND ASBESTOS SUITS
  THE FALKLANDS TASK FORCE AND ASBESTOS SUITS
  SENIOR CIVIL SERVANTS: RETENTION BEYOND AGE 60
  SENIOR CIVIL SERVANTS: RETENTION BEYOND AGE 60
  THE CIVIL SERVICE: REPORT ON EFFICIENCY AND EFFECTIVENESS
  THE CIVIL SERVICE: REPORT ON EFFICIENCY AND EFFECTIVENESS
  MEAT PROCESSING AND SLAUGHTERING
  MEAT PROCESSING AND SLAUGHTERING
  AIR-INDIA v. WIGGINS
  AIR-INDIA v. WIGGINS
  TEST BAN TREATY WORKING GROUP
  TEST BAN TREATY WORKING GROUP
  TEST BAN TREATY NEGOTIATIONS
  TEST BAN TREATY NEGOTIATIONS
  ISRAEL AND THE LEBANON
  ISRAEL AND THE LEBANON
  ISRAEL: SUPPLIER OF PHOSPHOROUS WEAPONS
  ISRAEL: SUPPLIER OF PHOSPHOROUS WEAPONS
  Greater London Council (General Powers) (No. 2) Bill
  Greater London Council (General Powers) (No. 2) Bill