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Clause 1

Volume 951: debated on Tuesday 13 June 1978

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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.