Skip to main content

Orders Of The Day

Volume 951: debated on Tuesday 13 June 1978

The text on this page has been created from Hansard archive content, it may contain typographical errors.

State Immunity Bill Lords

As amended ( in the Standing Committee), considered.

Clause 3

Commercial Transactions And Con Tracts To Be Performed In The United Kingdom

3.50 p.m.

I beg to move Amendment No. 1, in page 3, line 1, leave out from 'loan' to 'other' in line 2 and insert

'or other transaction for the provision of finance and any guarantee or indemnity in respect of any such transaction or of any'.
The purpose of this amendment is to widen the scope for non-immunity with regard to all financing transactions. It is intended to meet a criticism of the existing provisions and of the amendment moved by my right hon. and learned Friend the Solicitor-General in Committee.

The criticisms were voiced by the right hon. and learned Member for Wimbledon (Sir M. Havers). I hope that he will concede that these provisions clearly cover transactions for the provision of finance by means of forward purchase of foreign exchange over the next few years. The right hon. and learned Gentleman specifically mentioned that example in Committee.

I thank the right hon. and learned Member for Wimbledon for the constructive contributions that he has made towards making this a more comprehensive Bill. I also wish to put on record, as the Solicitor-General did in Committee, the great assistance which has been given by the City of London Solicitors' Company. Its advice has also been invaluable. I hope that the right hon. and learned Gentleman will find that this amendment meets his criticisms.

The passage of this Bill has been a tribute to the valuable co-operation which has existed between the Lord. Chancellor's Office, Ministers and the City of London Solicitors' Company. Between them they have done much to improve the Bill.

This amendment is another example, following the objections that I raised in Committee, of Government reaction to make improvements, with the assistance of the City of London Solicitors' Company. It covers one example which I raised in Committee because the amendment that was moved then still left open a gap.

I wish that it were possible to remove the doubt about the definition of the exercise of sovereign authority. A solicitor should not be left in a position where he is unable to advise a client whether in certain cases the exercise of sovereign authority may operate and is therefore unable to give a firm a certificate that it will not apply. This could still have a damaging effect. The object of the Bill is to remove that doubt. That doubt still exists for the reasons that I explained in Committee.

It might be worth considering whether it is possible to look at the nature rather than the purpose of the transaction or activity in question so that one could get round the difficulty. As a matter of law, there is support for an amendment on those lines. In Lord Denning's judgment on the famous Trentex case, he held that by entering into a commercial transaction a State waives its immunity as regards proceedings relating to that transaction and that in deciding whether a transaction was a commercial one the intrinsic nature of the transaction rather than its object was the material consideration. In Article 7 of the convention on State immunity there is support for what I say.

In the spirit of co-operation that exists in both Houses I suggest that the Parliamentary Secretary should consider again the amendment which, unfortunately, was a starred amendment and could not be discussed. The Government have a chance to think again and to make the necessary amendments in the Lords.

I thank the right hon. and learned Member for Wimbledon (Sir M. Havers) for what he said. The purpose of the amendment is to ensure that the advice of lawyers to their clients is given with as much clarity and certainty as is reasonably possible. The right hon. and learned Gentleman's suggestions have helped.

I understand what the right hon. and learned Gentleman is getting at. He will appreciate that the determination whether there has been an exercise of sovereign authority will have to be made in the light of the circumstances of each case. It is not easy to foresee how the definition that he suggests would work in the context of the many varied circumstances that would arise.

Establishing what is the nature of a transaction or activity is likely to involve an examination of all aspects of that transaction or activity. It is difficult to see how the amendment suggested by the right hon. and learned Gentleman would assist the court since it would merely impose a limitation on the consideration of the question whether there has been an exercise of sovereign authority. Instructing a court to consider the nature of a transaction would not lead it to consider anything that it would not consider in any event.

Without making any firm assurances that an amendment will be tabled in the Lords, I assure the right hon. and learned Gentleman that I shall look at the matter again on behalf of the Government.

Amendment agreed to.

I congratulate both the right hon. and learned Member for Wimbledon (Sir M. Havers) and the Parliamentary Secretary on not discussing the other amendment.

Clause 13

Other Procedural Privileges

I beg to move Amendment No. 2, in page 7, line 31, leave out from first 'property' to 'which' in line 32.

Amendment No. 2 is a drafting amendment. Amendment No. 4 is a paving amendment. Amendment No. 5 is of substance. It has three main objects. First, its purpose is to clarify the drafting of Clause 14(3) which my right hon. and learned Friend the Solicitor-General undertook to examine in Committee in answer to criticisms and doubts raised by the right hon. and learned Member for Wimbledon (Sir M. Havers). Secondly, it brings together all the provisions relating to central banks in one place. I am sure that the House agrees that that is sensible. Thirdly, it ensures that a central bank or other monetary authority shall have the same immunity with regard to execution or in respect of relief by way of an injunction or order for specific performance or for the recovery of land or other property as a State shall have, irrespective of whether the central bank is a separate entity or is acting in the exercise of sovereign authority.

Under the Bill as drafted the immunity of a State's central bank which is a separate entity and is not acting in the exercise of sovereign authority is slightly less than that of a central bank in other circumstances. That is the point that the right hon. and learned Gentleman made in Committee. I hope that he agrees that this amendment covers the point satisfactorily.

I hope that what the Minister said rang with great clarity in your mind, Mr. Speaker. But it is a highly technical matter. The amendment follows an issue that I raised in Committee basically because the independence of the central banks is jealously guarded by them. It is essential that they should be put into an entirely independent position throughout the Bill. I am grateful to the Government for responding to what I said in Committee.

Amendment agreed to.

I beg to move Amendment No. 3, in page 7, line 42 leave out from '(5)' to 'to' in line 44 and insert:

'The head of a State's diplomatic mission in the United Kingdom, or the person for the time being performing his functions, shall be deemed to have authority to give on behalf of the State any such consent as is mentioned in subsection (3) above and, for the purposes of subsection (4) above, his certificate'.
I hope that I shall explain this amendment with the same clarity. It is equally technical but I am sure that you. Mr. Speaker, will understand every word of it.

The purpose of the amendment is to meet the criticism that whereas Clause 2(7) specifies who may submit to proceedings on behalf of the State there is no provision in Clause 13 about who should be deemed to be entitled to give the consent of the State to execution or to the issue of relief against it by way of an injunction. The amendment provides that it is the head of the State's diplomatic mission who shall be deemed to be competent to give such consent.

There is no need to make any special provision with respect to consent given in a prior written agreement because if the court is satisfied that the agreement was made on behalf of the State, the consent clause in the agreement is sufficient. Provision is needed only to cover the cases where there is no prior consent to execution.

4.0 p.m.

Particularly since I have expounded it with such complete clarity, I hope that the right hon. and learned Gentleman will consider that that meets his point.

Amendment agreed to.

Clause 14

States Entitled To Immunities And Privileges

Amendments made: No. 4, in page 8, line 40, after "entity", insert

"(not being a State's central bank or other monetary authority)".

No. 5, in page 8, line 44, leave out from "entity" to end of line 5 on page 9 and insert—

"(4) Property of a State's central bank or other monetary authority shall not be regarded for the purposes of subsection (4) of section 13 above as in use or intended for use for commercial purposes; and where any such bank or authority is a separate entity subsections (1) to (3) of that section shall apply to it as if references to a State were references to the bank or authority.".—[Mr. Arthur Davidson.]

Motion made, and Question, That the Bill be now read the Third time, put forthwith pursuant to Standing Order No. 56 (Third Reading), and agreed to.

Bill accordingly read the Third time and passed, with amendments.

Community Service By Offenders (Scotland) Bill

As amended (in the Standing Committee), considered.

New Clause No 2

Nature Of Community Service

"In determining the nature of community service the courts may request the local authorities to relate the work to the nature of the offence.".—[ Mr. Teddy Taylor.]

Brought up, and read the First time.

4.3 p.m.

I beg to move, That the clause be read a Second time.

As the House will be aware, this Bill introduces community service orders in Scotland. As the Minister explained in Committee and on Second Reading, we have had a number of experiments in Scotland so far, and the Bill provides formally the powers to introduce the scheme throughout Scotland.

In Committee the Opposition moved a new Clause which suggested that in determining the nature of community service the courts and local authorities should have regard to the desirability of relating the work to the nature of the offence. The Minister certainly accepted our reason for putting the proposal forward. We thought that a useful use of community service might be, particularly in cases of vandalism and malicious mischief, that the penalty should seek to ensure that the person who had committed the crime should carry out some public service or work associated with it.

One obvious example would be that if a vandal had been caught putting graffiti on a wall, it might be a useful discipline for him to be invited to clean up the mess. That was the kind of thing that we had in mind and why we proposed the new clause in Committee. However, the Minister put forward a convincing argument and a number of reasons for not accepting it. As reported in column 87 of the Committee proceedings he said that it was not possible or practicable for the court to have the detailed knowledge of the kind of work that an offender should be doing against the background of his offence, and he said that it was not possible or practicable for the courts to have detailed knowledge of the availability of work that would be required.

He pointed out that under the Bill it was for the courts to determine the number of hours that a community service order would run for an offender, and that it was for the social work departments, which would supervise the order, to decide the content of the work which the offender would perform.

In spite of the Minister's explanation, the Opposition pressed the matter to a Division. After one of the intermittent visits, such as we are again having today, of the hon. Member for Glasgow, Garscadden (Mr. Dewar), we stood by our belief in the value of the clause.

The Minister rejected our case, but he indicated that in considering giving an offender a community service order the court would have the ability to recommend that an offender should carry out certain work. That is what we are trying to propose today as a compromise. We think that this is something which could be done, as the Minister has indicated, and it might be useful and helpful to write that into the law. That is why we are putting forward the new clause which it appears has the unanimous support of the Liberal Party. Under the clause the courts, in determining the nature of the community service, may request the local authorities to relate the work to the nature of the offence.

There is no doubt that the whole country is concerned not only about the increase in crime, but about the extent to which our prisons are becoming full. The Minister supported his Bill by saying that it might be an alternative to imprisonment or a fine. There was a telling example of the increased recognition that now exists of the problems of vandalism only last night when the Minister of State, Department of Health and Social Security, winding up a debate on preventive medicine, asked what might be done about children buying cigarettes from automatic vending machines. He pointed out that the problem was disappearing because the machines were being destroyed by vandals.

We have put forward a reasonable compromise which is consistent with the Under-Secretary's words in reply to our new clause in Committee. We are not saying, as we said in Committee, that the courts should have the absolute power to determine the nature of the work of community service. We say only that in determining the nature of community service the courts may request the local authorities to relate the work to the nature of the offence.

In Committee the Under-Secretary pointed out that it might be preferable for an offender to do some work which was related to his special skills or abilities. What we have in mind is a form of service related not to particular skills or abilities but to something which does not need a great deal of skill. It would be most useful if someone who destroyed a garden had to do some gardening. Equally, it would be useful if someone who defaced a wall had to clean it up. It would be quite wrong if the courts were to have no indication in the Act that they could influence the nature of the work done.

I hope that the Minister will accept our clause as being fair and reasonable and consistent with his speech in Committee. I hope that he will accept that if we do not put in the clause there will be nothing in the Bill to give the courts the right to determine or influence the nature of the work to be done.

I intervene briefly to support the clause, as I supported the earlier clause in Committee. I took the point that the Minister made then, and I congratulate the hon. Member for Glasgow, Cathcart (Mr. Taylor) on having phrased the new clause in a way that meets the points raised by the Minister. I hope that the Minister will accept it.

The hon. Member for Cathcart referred to special skills. It might be possible to make someone who has wrecked a garden do some gardening. But that person might be completely hopeless at gardening and might replant the flowers or potatoes in such a way that they simply would not grow. The clause will mean that the local authorities, which will have the responsibility of devising the schemes, will be able where it is appropriate to make the punishment fit the crime and, where that would not be appropriate, because of the offender's lack of skill, they could choose some other form of work. I therefore commend the clause to the House.

Like the hon. Member for Galloway (Mr. Thompson), I rise only briefly. This matter was aired in Committee, and although the hon. Member for Glasgow, Cathcart (Mr. Taylor) has ingeniously altered the wording of the clause, his arguments remain basically the same. I think that he now has the worst of the argument.

To suggest that in determining community service the courts may request the local authorities to relate the work to the offence is to invite friction. There is nothing to prevent the sheriff from expressing his informal opinion, and I hope that an opinion expressed by a sheriff would also be persuasive on a social work department.

However, the clause would not give the courts the right to determine, instruct or lay down the sort of work to be done. It merely gives a spurious kind of statutory authority to a sheriff's suggestion. I believe that either a sheriff should have the power—a proposal that was rejected in Committee—or the matter should be left on a completely informal basis. The clause is something of a halfway house which may be ingenious but is certainly not desirable.

I remain of the view—and I hope that my Front Bench will also remain of the view—that however attractive it is to argue that the punishment should be made to fit the crime, given the difficulties over the availability of jobs under a community service order and the difficulties of supervision—whether by statutory staff or by people in the voluntary sector who may have an offender seconded to them—that the placing of the person who has been put under a community service order should and must remain the responsibility of the social work department.

In a way, if we were to follow the reasoning and the logic of the hon. Member for Cathcart what we would be doing would be confusing the role of the social worker and the sheriff. I believe that that would be a mistake.

It is clearly a matter for the sheriff to look at the offender, to look at the circumstances of the offence, and to look, perhaps, at the public interest, and to decide in terms of the Bill, when it is an Act, whether the person could appropriately be made the subject of a com- munity service order. It seems to me that we must leave to the social worker the judgment how that should be carried out and which particular tasks, given the range that is available, are appropriate in the individual case.

I am not necessarily quarrelling with the theory that if someone destroys a garden—as has been suggested—work in public parks, therefore, or in tidying up the gardens of old-age pensioners, and so on, might well be appropriate. But I do not think that the nature of the offence is or ever can be the only criterion that should govern where someone is placed in terms of a community service order.

It may be that the person has special skills of another kind that the sheriff, when making the order or when making the kind of recommendation for which the Conservatives wish in the new clause, will not have the full information about the skills and aptitudes or, indeed, the full availability of the work that is available to the social worker when he decides on the final placement.

I would not wish to fetter the discretion of the sheriff in making suggestions, but it seems to me that it is inappropriate that the power to suggest should be enshrined in the Bill, as the hon. Member for Cathcart is suggesting. I should prefer to leave it as a social work judgment. After all, if we were to have this power, it seems that we would have to have a situation in which the social worker, when providing the original report, would give an exhaustive list of all the places that are available at that stage and the whole range of community service tasks. The sheriff would then have to give attention to what was available as well as what seemed peculiarly appropriate in terms of the offence that he was considering.

It seems to me that the new clause is inappropriate. It is inviting the sheriff to do something which he is not qualified to do and which, in the majority of cases, it would not be appropriate for him to do. I should prefer to leave the Bill as it is and leave it to the social worker, once the decision on suitability for a community service order has been made by the court, with his particular and specific expertise to decide on the best method of supervision and the best way in which a community service order should be implemented.

I listened with care to what was said by the hon. Member for Glasgow, Garscadden (Mr. Dewar). There is some validity in it at first hand. However, I rise to support the new clause, and for this reason. Given a social worker upon whom there is the necessity to find something for someone upon whom a community service order has been imposed, perhaps he will just look at the matter and say "What shall we do with you, George? I know. You can go and repaint the footbridge at such and such a place." I think that there will be a grave likelihood, in view of the pressures on such people, that they will merely find a job for them to do in order to exercise the order.

I am impressed by the new clause because it is important that there should be a relationship between the punishment and the offence. I say that because I remember that shortly after the war there was a competition amongst schoolchildren as to what they would have done to Hitler if they had been able to punish him alive. The child who won said this: "Turn his heart kind and then introduce him to his victims."

I think that it is easy, perhaps, for a child to wreck a fence or to throw a bottle through a window, but to have to meet the family through whose window the bottle was thrown or to have to dig the garden of a poor old women after one has wrecked it could be a most beneficial and reasonable way of introducing the awfulness of a crime. Crime is so easy to commit at a long distance and so difficult to commit face to face.

If the new clause is accepted, the relationship in which we may achieve some resolution of the criminal abandon in the realisation of a human effect might well be realised. That is why I support the new clause.

4.15 p.m.

As the hon. Member for Glasgow, Cathcart (Mr. Taylor) pointed out, we are returning to a discussion that we had at length in Committee on another new clause moved by the Opposition. I indicated then that, for various reasons, I did not feel able to accept it. I do not feel able to accept this new clause either.

Perhaps I could begin with the remarks of the hon. and learned Member for Kinross and West Perthshire (Mr. Fairbairn). With great respect, there seems to be a fundamental misunderstanding of the community service system as it has been set up and as it has operated in the four experimental areas in Scotland that we have had over the past few months. There seems also to be a belief that the courts have no say or influence in the kind of work that is made available to offenders. That is a total misconception of the position, because in the four experimental areas, and in all areas in which in future the social work department advise my right hon. Friend the Secretary of State that a community service order scheme is available and my right hon. Friend would in turn inform the courts, local advisory committees have been set up.

A local advisory committee consists of representatives of the police, the social work department, the trade union movement—which has a role to play in this matter in identifying the kind of jobs that could be made available to the offenders for community service work—and representatives of the sheriffs. Therefore, the courts themselves have some say and influence in the kind of work that is made available to offenders who are made the subject of community service orders.

The new clause would merely confuse the position of the social work department vis-à-vis the courts.

The hon. Member for Cathcart has framed the new clause to state:
"In determining the nature of community service the courts may request".
That presupposes that it is the courts that determine the nature of the community service. That is not so. It is the social work departments that determine the nature of the community service when they are putting these schemes together. Therefore, the new clause would have the effect of confusing the position of the court vis-à-vis the social work department which would administer the community service order once it has been attached to an offender.

Even apart from that, the new clause is unnecessary because at present courts have powers to make recommendations when an offender comes before them. We should bear in mind that we are still talking about a position in which the offender has in the first place to accept a community service order. We are not talking about a position in which a community service order could be applied against the wishes of the offender.

It may well be—it is only speculation—that the giving of this kind of power to the court would have the effect of stopping many offenders who would be disposed of by the CSO disposal method from accepting a CSO, albeit that the alternative to that would possibly be imprisonment. One should think of the effect on the offender of courts having this kind of power.

Does the Minister agree that the present position is that a sheriff would be making such an order almost blind, not having any knowledge of the kind of work which would be done? Would it not be helpful to put in the Bill some indication of the court having some influence on the matter, otherwise many sheriffs will be in the difficulty of agreeing to make a CSO which in the course of events might in their view prove to be totally unsuitable.

The hon. Member for Cathcart misses the point that I made at the beginning that in deciding the kind of jobs that would become available in a social work area the sheriff has a say through the local advisory committee, which is made up of the sheriff, the police, the social work department and the local trade union movement. What the hon. Member is saying in proposing the new clause is that the sheriff should have an extension of this power to identify a job that had not been identified by the local advisory committee as being part of the community service by offenders scheme that had been put together by the regional council's social work department. That would be dangerous. It is not the kind of power that the courts would welcome.

We have had many representations on the Bill about all sorts of matters, major and minor. But this is one of the issues on which we have had no representation. The courts and the social work departments are happy with the way in which the experiment has worked. No concern has been expressed to us on the matter.

As my hon. Friend the Member for Glasgow, Garscadden (Mr. Dewar) has said, we would be in danger of loading the statute book with unnecessary requirements when at present the court has the ability to say to a social work department that the sheriff thinks that the offender should be put to work on such-and-such a job. The sheriff will know what jobs are available, because he is part and parcel of the local advisory committee set-up.

I was not on the Committee, though I have read some of the proceedings of the Committee. Does the advisory committee and the trade union members on it say what work they will tolerate offenders doing, and thereafter does the sheriff merely commit them to it and say that the work will be gardening rather than painting lamp posts, if local authority employers will allow such work to be done by offenders? Do I understand that the sheriff has no power to say "You will not just dig gardens, but you will dig Mrs. Smith's garden"?

The hon. and learned Member, of all people, appreciates that we live in a democracy, and that—I hope it always remains the same—we can do basically only what we can get agreement to do.

Not necessarily by the unions. Sometimes more often by the legal profession. Often many of the things that we would like to do have been frustrated not by the trade union movement but by professional organisations such as the legal profession. I do not complain about that. We are a consensus nation and can do only what we are allowed to do.

We have had these experimental schemes running for some months and have experienced no difficulty with them. We are therefore anxious to extend these schemes—we are on the point of doing so—and to get one more region in Scotland. We are anxious, as the Bill provides, to give this scheme legal back-up. The powers contained in the new clause are totally unnecessary because the courts already have the power to suggest to a social work department what work an offender should do. Such a recommendation will be made with the knowledge of what jobs are available.

The basis of the new clause is that we should make the punishment fit the crime.

I am not opposed to that. However, we must bear in mind also that there are some offenders who for various reasons would not be suitable to do some jobs that people are suggesting might be made available to those treated by the CSO system.

I have been no more convinced in this debate than I was in Committee. No new points in support of the proposition put to us in Committee have been made today in support of the amended proposition. I accept that it is an amended proposition. It is not good legislative government to clutter up the statute book with this kind of unnecessary requirement. I hope that the House will not allow the new clause to be read a Second time.

We were encouraged to see among the names added to the new clause three distinguished Members of the Liberal Party. We were disappointed that in this short debate none of them has seen fit to come into the Chamber to support the new clause.

We have tried to give the Minister the opportunity for second thoughts on the matter. We discussed this at some length in Committee and we felt then that the Minister was too rash in rejecting our proposal. The Minister today still takes a narrow view of the point that we are anxious to make. In the Bill the local authorities will have the sole responsibility of deciding the sort of work that offenders should do. Yet the courts, where the case will be heard, will have exercised their option under Clause 1 of the Bill of making a CSO instead of imprisonment, a fine or taking some other action.

This is important as the court will have heard all of the evidence and judged the character of the offender before deciding that a CSO is appropriate. It is difficult to follow the argument put forward in Committee by the Minister.

Does the hon. Member not accept that the courts have an influence, through membership of the local advisory committee, on the kind of jobs that are made available for community service by offenders? If he accepts that, the new clause is not necessary.

There is no reference in the Bill to courts having an influence through advisory committees, which are presumably set up in an administrative exercise and could just as easily be abandoned. Secondly, as was said by my hon. and learned Friend the Member for Kinross and West Perthshire (Mr. Fairbairn), the advisory committees are essentially of a general nature.

We are suggesting that the court, having listened to the evidence and judged the character of the offender and his suitability for a CSO, could make a specific recommendation as to the nature of the work. I put it to the Minister that there is a difference between the court making a specific recommendation of which work should be done in an individual case and a general recommendation made through some generalised committee structure which can be abandoned at any time because it is not part of the Bill.

The House is in danger of getting itself into some difficulty. Will the hon. Member explain what would happen under the new clause if a sheriff in a sheriff's court recommended that an offender be given some specific kind of work and the social work department said that such work was not available for the offender to do or that it was available but not suitable for the offender to do? Would that not lead to conflict rather than co-operation between the social work departments and the courts? That is the very thing that we have sought to avoid right through the experimental scheme, and we have avoided it.

4.30 p.m.

The way that the Bill is constructed is more likely to lead to conflict than are the contents of the new clause. The Minister is floating a typical red herring because it is not unusual for courts, if in doubt about the suitability of a sentence or any other consideration regarding the offender, to take time for consultation before reaching a decision. The Minister must know that, and his intervention is not relevant.

Does the hon. Gentleman not accept that it is clear in the new clause that even if a sheriff makes a specific request for a particular offender and the social work department decides to ignore it, that might leave a frustrated and annoyed sheriff, but there would be nothing he could do about it? Equally, if after 100 hours of a 200-hour order had been completed, that type of work ran out, the social work department would have no option but to depart from the sheriff's suggestion.

That is the position without the new clause. We are trying to give the sheriff some standing in this matter. I take the point that if the social work department ignored the sheriff's recommendation, there would be nothing under the new clause that he could do about it. However, I am sure that we all hope that relationships between the courts and the social work departments would be better than that. It is in order to try to ensure that these relationships get off to a good start that we are trying to give some right to the court in deciding the nature of the work to be done rather than having that right as the sole domain of the social work department.

Does the hon. Gentleman not agree that there are great disadvantages in inserting suggestion clauses in statutes? While statutes can be enforced, the new clause proposes inserting a right to suggest but not the right to enforce. That is extremely clumsy and unsatisfactory.

Surely it would be better to follow the logic of what the hon. Gentleman has said. We hope that there will be good relationships between social work departments and sheriffs and that suggestions from the bench, as they normally are, will be given serious consideration by the social work department. We would do better to leave it on what might be called a scout's honour basis because that would make for happier relationships and a much tidier Bill.

The defence of the Minister against the new clause is that advisory committees exist. However, the hon. Member for Glasgow, Garscadden (Mr. Dewar) will agree that there is no reference to these committees in the Bill.

No. It is relevant to the debate. Secondly, we admit to having softened the wording of the new clause and that it is not perfect. We softened the wording because when it was in a harder form in Committee and provided that the courts "shall have regard to", we found that it was not acceptable to the Committee. Indeed, the hon. Member for Garscadden was one of those who voted against it.

Does my hon. Friend agree that judges in the High Court may recommend a minimum period that a man convicted of murder should serve and, as far as I know, it has not been suggested by the Government that this causes friction between St. Andrew's House and the Senate of the College of Justice on the basis that a Minister might recommend that a man should be released, contrary to a judge's recommendation.

It is one thing to say that a court should be able to recommend that a man should pick raspberries in Forfar for the whole summer, without any right to enforce that recommendation under an Act, and it is another to have a statutory right to request, which is more likely to improve the respect that the Bench and social work department have for one another than to cause aggravation.

I agree entirely with what my hon. and learned Friend has said. His intervention is fundamental to the debate and the Minister should pay some attention to and make some reference to those points.

The hon. Member for Garscadden is taking too strict a legal view of the matter. He seems to be following very much the line of the Minister. I am surprised, because the hon. Gentleman has had some time in which to disentangle himself from these doctrines. I am also surprised that he should come back to the House without having broadened his mind on some of these matters.

Having considered the case in detail, heard the evidence for and against the offender and considered the damage done by the offender, as well as the plight of the victims, the courts have a unique role and should have the right to relate the community service order to the nature of the offence. The court is in a different position from the social work department or any local authority official. The court considers the case on its merits and listens to all the evidence, including the character of the offender. That is why we feel that the court should be in a position to make a recommendation.

The hon. Member showed great loyalty to the views of his hon. and learned Friend the Member for Kinross and West Perthshire (Mr. Fairbairn) who seemed to believe that the sheriff should suggest that an offender should put right the damage in the garden that he had vandalised or the house into which he had broken. In those circumstances, would it not be important to have a new clause to provide that the unfortunate person who is to be the recipient of these services should be consulted before the sheriff goes ahead with his suggestion?

The new clause says:

"In determining the nature of community service the courts may request the local authorities to relate the work to the nature of the offence."
That is the point we are making. There is no substitute for the courts in the discharge of this function. Without the new clause, there would be nothing in the Bill to give any rights to the courts.

I am sorry to intervene again, but it is important to point out that the social worker will hear none of the evidence, will not have been present in court, will probably know nothing about the offence and will probably know only of the conviction. How can such a person be responsible for deciding the sentence?

My hon. and learned Friend underlines the points that we are making. So far, they have not been answered by the Minister.

In Committee, the Minister said:
"It may well be that on the positive side of this argument an offender has a particular talent not related to the offence he has committed. It would be better if we utilised that talent for the benefit of the community".—[Official Report, First Scottish Standing Committee; 25th May 1978, c. 88.]
Having heard all the evidence and considered the offender's character, the court might think that the purposes of the Bill would not be served if he were to indulge in his favourite pastime—which is what the Minister suggested.

But that is likely to be the same as indulging in his favourite pastime. If there is any possibility of that suggestion being adopted by local authorities, the new clause is doubly relevant. There should be some reference to the nature of the offence and the court should be able to make a contribution here.

I said in Committee that it was in the interests of the social work departments that the courts should have the right to relate CSOs to the nature of the offence. If the full responsibility for prescribing the work lies with social workers they will bear the brunt of any criticism. The responsibility should be shared by the courts and the local authorities.

We want the Bill to have the broadest possible acceptance by the public, the police, the courts and the local authorities. This is not a party matter. I hope that the Minister will respond favourably so that the Bill may be more satisfactory to all concerned.

Question put and negatived.

Clause 1

Community Service Orders

I beg to move Amendment No. 1, in page 1, line 8, leave out from 'of' to 'make' in line 9 and insert

'dealing with him in any other way,'.

I understand that it will be convenient to discuss at the same time the following amendments: No. 2, in page 1, line 9, after 'imprisonment', insert 'or'.

No. 3, in page 1, line 9, leave out 'or a fine'.

Government Amendment No. 4.

Amendments Nos. 1 and 4 meet a commitment that I gave in Committee in response to representations from social work departments and others about the meaning of the Bill. We were anxious to make it clear that CSOs should not be seen as an alternative to a fine but should be used where imprisonment would be imposed.

Does Amendment No. 1 do a great deal It simply takes out the reference to specific alternative penalties and inserts the words:

"dealing with him in any other way".
The options which are removed are imprisonment, detention and a fine. Is this just an amendment in wording without real effect? After all, I can think of no option but those three.

Perhaps I have no right to ask this question, but it seems that Amendment No. 4 is putting right something which was left out. It provides that nothing shall be construed as preventing a court which makes a CSO from imposing, for instance, a disqualification. In other words, no other penalty is ruled out. Presumably, in a driving offence, a CSO and disqualification could be imposed. I know that this will puzzle the hon. Member for Glasgow, Garscadden (Mr. Dewar) but many things do these days.

To ensure that the Bill is perfect, I wonder whether the Government would consider Clause 4, which refers to a £50 fine, to ensure that the court would not be prevented from imposing that fine and an additional fine. Might there be a case for a similar amendment to Clause 4?

4.45 p.m.

These intriguing amendments deal with a matter which raised considerable discussion in Committee on Opposition attempts to remove the phrase "punishable by imprisonment" from Clause 1. I thought that that was an argument about psychology and the influence of wording in statutes on the actions of courts. That phrase is hardly a limitation of the imposition of community service orders, since any common law offence—vandalism, assault or dishonesty, for instance—is punishable by imprisonment, so CSOs would be permitted on almost anything.

However, it was suggested that CSOs should not be the alternative to imprisonment but should be something much wider—for example, a sanction for the non-payment of a fine—or that they should be confined to first offenders whom the courts were often unlikely to sentence to imprisonment.

Some of us thought that, although we should not exclude the possibility of a CSO being an alternative to monetary penalty, the emphasis should be on it as the alternative to prison. Of course there should be a choice—the courts should not be fettered—but we should encourage this emphasis. The CSO should not be a way of beefing up a probation order or an alternative to a fine. By their amendment, the Government have gone some way—I hope that this is the intention—to achieve this.

I do not want to alarm the hon. Member for Glasgow, Cathcart (Mr. Taylor) with that introduction. I agree that the amendment has no substantial practical effect, but some social work departments and some hon. Members were alarmed that the reference to a fine was an invitation to sheriffs with a different view of the Bill from that which I and the Government have.

I should prefer Amendments Nos. 2 and 3, but I accept that they might lead to difficulties. I am prepared to stop at the halfway house suggested by the Government.

Can the hon. Gentleman disabuse us of the suspicion that he might be using a drafting amendment to make a Second Reading speech? What difference does the amendment make? What other options are there but imprisonment, detention or a fine? The Government appear to have replaced a reference to three options with a general phrase. What difference does that make?

I suggest that the hon. Gentleman is hardly in a position to tell me when I am in order or out of order. No doubt another person will be keeping an eye on that. I agree with the hon. Gentleman in this respect. I do not think that this is a matter of the psychology of the Bill. I do not think that it makes a great deal of practical difference in terms of the substantive law. I welcome it because I think that it is a shift in the right direction.

In emphasising the removal of the specific reference to a fine, it may be removing the encouragement to sheriffs who see a community service order not as a replacement of imprisonment but as a way of strengthening probation orders, and as an alternative to a monetary penalty. I have talked to sheriffs who have told me that they see the community service order in that light. I hope that the Minister will confirm that this is his intention in removing the phrase and putting in the omnibus words which do not refer to the specific series of alternatives. It may do something to bolster those of us who see it as an alternative to imprisonment.

I share the puzzlement of my hon. Friend the Member for Glasgow, Cathcart (Mr. Taylor) about the reason why the amendment has been put forward. I have no argument with the Minister to the extent that, as I said in Committee, these community service orders should be used as alternatives to imprisonment. I have therefore no argument whatsoever with the objective of the Bill or with the professed objective of the amendment.

The hon. Member for Glasgow, Garscadden (Mr. Dewar), in reply to the intervention by my hon. Friend the Member for Cathcart, seemed to be saying that if we remove the word "fine", psychologically we take away the emphasis of the word "fine", and the sheriff will not consider a fine. But equally, if we are trying to put more emphasis on imprisonment, surely we are also taking away the emphasis on imprisonment by taking out the word "imprisonment". I find it very difficult, in drafting terms or in legal terms, to know what, if anything, is achieved by the amendment.

If we are trying to achieve what the Minister is trying to achieve, we ought to be adopting not Amendment No. 1 but Amendments Nos. 2 and 3, in the name of the hon. Member for Edinburgh, Central (Mr. Cook), because to my mind his amendments go much more specifically towards the point here. If the use of the words is purely cosmetic, the Minister ought to leave in the words in the first part that he is seeking to take out, that is to say, the reference to imposing a sentence of imprisonment, and then go on to talk about dealing with the offender in any other way. If we want to place emphasis on imprisonment, that is the way in which to achieve it, if it is purely cosmetic. But if the Minister genuinely wants to try to make this an alternative to imprisonment, we ought to be considering the amendments of the hon. Member for Edinburgh, Central.

Frankly, in legal terms and in terms of the way in which the Bill will work, I cannot see that anything whatsoever is achieved by the change proposed in Amendment No. 1. Before I would be prepared to accept the amendment I should like the Minister to spell out in drafting terms precisely what it achieves over and above what is in the Bill as it stands. If the Minister does not intend to achieve any more and is merely introducing it as a cosmetic, I respectfully suggest that it would be better to leave the Bill as it is and not to play around with words. If he genuinely wants to change the Bill in order to give an alternative of imprisonment, I do not know whether it is the aim to try to maintain a certain amount of flexibility, but the amendment would appear to be trying to introduce an element of flexibility without producing any improvement whatsoever.

Before accepting the amendment, therefore, I should be grateful if the Minister would spell out precisely what difference it makes in relation to the kind of sentence which the courts will pass. I cannot see what improvement it is on the Bill as it stands at the moment. My understanding of the English language may be different from that of the Minister's, but I cannot see what the amendment achieves.

I think that I can answer the question which was asked by my hon. Friend the Member for Cathcart (Mr. Taylor) and, indeed, the matter that was raised by my hon. Friend the Member for North Angus and Mearns (Mr. Buchanan-Smith). The Minister should consider my point, which is that the amendment does the reverse of what he suggested it is intended to do.

It is very nice to know that the hon. Member for Glasgow, Garscadden (Mr. Dewar) thinks that sheriffs will think that the Bill means what he thinks it means, but as a lawyer he will know that it does not matter a monkey's tuppence what Parliament intended the Bill to mean. Once the Bill is given the Royal Assent, it means what it says and what it is capable of being read as saying.

I hope that the Minister will consider the fact that there are other disposals available to a sheriff. There is, for instance, admonition. There is also absolute discharge. The amendment would mean that a sheriff could impose a community service order rather than admonition and rather than an absolute discharge.

As I understand it, that is the reverse of what is intended by the amendment. With the amendment, that is what the Bill will mean, whether the Minister likes it or not and whether that is what he intends or not. Those courses would be available to the sheriff. If the Minister does not want that to happen, he should look again at his amendment.

I am prompted to rise because of the remarks of the hon. and learned Member for Kinross and West Perthshire (Mr. Fairbairn). Half his time in the House seems to be spent in telling us about the great value of the courts, and in emphasising that the judgment of the courts must be listened to, and so on. For the rest of the time he seems to attribute to the courts an astonishing stupidity. I am not saying in which way I would strike the balance. On this occasion I shall come into his camp on the first half of his proposition, and give the courts more credit than I have usually given them for making an intelligent approach to the problems before them.

It seems to me that if it is in the mind of the Bench to admonish or to give an absolute discharge, the Bench will do that. The amendment is a modest proposal to try to meet some of the anxieties which were brought up in Committee. Incidentally, the only modest proposal with which the Tory Benches ever appear to agree is that of Dean Swift. I believe that the modest proposal put forward by the Minister goes some way towards meeting the anxieties expressed in Committee.

I agree that there is no real shift in specific meaning. What it might do, however, is to give a balance of advantage. As the Bill stands, the sheriff has to consider a number of questions in deciding what he should do. First, should he punish? If he punishes, should the punishment be in the form of a fine, imprisonment, or detention? The wording suggested opens up the possibility of the use of the community service order. In other words, it provides one alternative to retributive punishment, instead of having three or four other available courses of action.

I can envisage many situations in which a sheriff would tell himself that imprisonment was not suitable, and in which a fine would be ridiculous because it could not be paid and would merely be a punishment of other members of the family. The sheriff could say to himself "Without this Act I would have to admonish, but instead of that I shall make this person do 50 hours of work". I think that that is what is more likely to happen if the amendment is passed.

But it is not a bad thing, surely, that the sheriff should have this alternative open to him. The hon. and learned Gentleman is suggesting that the sheriff might say "I think I should punish but I cannot see a means by which I can punish, therefore I shall admonish". That does not seem to me to be a particularly satisfactory decision for a Bench to make. If the Bench considers that an alternative of the community service order will serve a social purpose, and be helpful for the person before the Bench, it should be open to the sheriff to adopt that alternative. For all these reasons, I support the amendment.

Perhaps I can take up the point about the case in which a sheriff was considering admonishing or giving an absolute discharge and, as an alternative, imposing a community service order. We are again wandering into the area where the belief seems to prevail that a sheriff can make an offender do community work. He cannot. The offender has to accept a community service order. What the hon. and learned Member for Kinross and West Perthshire (Mr. Fairbairn) is suggesting is that in a case where a sheriff would consider admonishing he says to the offender or the accused "I want to dispose of you by a community service order", the offender or the accused person says "No" and then suddenly finds himself in prison. I just do not believe that people with the legal knowledge of the hon. and learned Gentleman believe that that situation will prevail.

5.0 p.m.

The sheriff will not say "Now look here Harry, my boy, I shall either admonish you or I shall give you a community service order. Which would you rather I do?" What he actually says is "I am thinking of disposing of your case by means of a community service order. Do you accept that?" The accused person does not know whether the sheriff will send him to prison, fine him, or whatever.

I was depending on the hon. and learned Gentleman's well known ability for reading the mind of a sheriff. That is what the hon. and learned Gentleman told the House he was able to do when he made his contribution to the debate. What has been said in that regard just confuses a very simple issue.

I thought that I sensed the feeling of the House to get on. I accept that I moved the amendment rather quickly. But during the debate on this aspect of the Bill in Committee, representations were made through my hon. Friend the Member for Edinburgh, Central (Mr. Cook). My hon. Friend the Member for Glasgow Garscadden (Mr. Dewar), the hon. Member for North Angus and Mearns (Mr. Buchanan-Smith) and several others made a different point during that debate. The hon. Member for North Angus and Mearns said that CSOs should be available only where imprisonment would have been imposed as an alternative. Representations were made about the concern expressed by social work departments about the emphasis in Clause 1 on fines. I said at that time that I would consider this and produce a form of words which would remove the emphasis from the word "fine" and make the Bill presentation-ally better in this respect.

I want to make it perfectly clear that these amendments do not, in any shape or form, alter the legal situation of the Bill. Through these amendments we have really met the wishes of the social work departments which made representations to us.

The hon. Member for Glasgow, Cathcart (Mr. Taylor) properly referred to Government Amendment No. 4. This is consequential on Government Amendment No. 1. The effect of Amendment No. 4 is to make it clear to the court that it still has the ability to suspend someone from driving or to confiscate the tools that have been used in the commission of an offence. It has the ability to do these things at the moment. We felt that that might not be clear and that it was necessary, as a consequence of moving Amendment No. 1, to move Amendment No. 4 in order to clear up that point.

The hon. Gentleman also referred to the question of a fine on a community service order offender. The position is that if a community service order offender breaches a community service order the court can impose a fine of up to £50 if the community service order is to continue. But if the CSO is not to continue, the offender will be disposed of by the court in a way in which the court feels fit. If a breach was committed, and the service order was to continue, the court would impose a fine of up to £50. I hope that I have made that clear.

For the benefit of the House I should say something about the two amendments of my hon. Friend the Member for Edinburgh, Central. They are not acceptable to the Government because they have the rather drastic effect of giving the courts the ability to impose both a fine and a community service order, in other words, to impose up to 240 hours of community work and a fine as well. In our view, that is not acceptable. I am not saying that that is what my hon. Friend sought to achieve. What I am saying is that if the House were to accept his amendments that would be their effect. I am sure that the House does not want that.

The Minister has rightly pointed out that the main reason for Amendment No. 4 was to make it clear that if a CSO were imposed it would not prevent the courts, for example, from also disqualifying someone from driving. As for a fine of up to £50 for breaching a CSO, it would seem to me from a reading of Clause 4 that the intention is that this £50 fine is the penalty for breaching the order and that the court can then go on to deal with the original penalty as it would have been dealt with but for the CSO.

Perhaps between now and consideration in another place the Minister will see whether the same problem has arisen in Clause 4 and in Clause 1, that by imposing a £50 fine the court may be precluded from going on to deal with the original penalty with an additional fine. Will he look at Clause 4 in exactly the same way as he has looked at Clause 1, in order to make sure that by imposing a CSO the court is not prevented from doing other things? Perhaps he will even drop me a note about this, or sort it out before the matter is considered in another place.

I can give an undertaking that I shall certainly look at this. If there is a need to sort the matter out in another place, we shall certainly be very happy to do so.

Amendment agreed to.

Amendment made: No. 4, in page 2, line 34 at end insert:

'(7) Nothing in subsection (1) above shall be construed as preventing a court which makes a community service order in respect of any offence from—
  • (a) imposing any disqualification on the offender;
  • (b) making an order for forfeiture in respect of the offence;
  • (c) ordering the offender to find caution for good behaviour.'.—[Mr. Harry Ewing.]
  • Motion made, and Question, That the Bill be now read the Thrd time, put forthwith pursuant to Standing Order No. 56 (Third Reading), and agreed to.

    Bill accordingly read the Third time and passed.