Law Reform (Miscellaneous Provisions) (Scotland) Bill
As amended (in the Standing Committee), considered.
New Clause 6
Amendment Of Enactment Relating To Solicitors
'The Legal Aid and Solicitors (Scotland) Act 1949 and the Solicitors (Scotland) Act 1980 shall have effect subject to the amendments set out in Schedule [Amendment of enactments relating to solicitors] to this Act.'.— [The Solicitor-General for Scotland.]
Brought up, and read the First time.
With this it will be convenient to take Government amendments Nos. 53, 55 and 56.
The Solicitor-General for Scotland (Mr. Peter Fraser)
I beg to move, that the clause be read a Second time.The new clause and the schedule propose amendments to the Legal Aid and Solicitors (Scotland) Act 1949 and the Solicitors (Scotland) Act 1980 which were recommended by the council of the Law Society. The proposals were fully discussed in Committee and we undertook to bring forward on Report a revised schedule incorporating those items that we accepted as suitably adjusted. The terms of the new clause and the schedule have been agreed with the Law Society of Scotland. I commend them to the House.
Mr. Donald Dewar (Glasgow, Garscadden)
I am pleased to say that this is one of a number of occasions upon which I can fairly thank the Solicitor-General, or one of his colleagues, for useful amendments. As the Solicitor-General fairly says, new clause 6 and the fairly formidable schedule are the products of a good deal of consultation and discussion. They were originally tabled by me in Committee. I was then, in a sense, acting as an agent for the Law Society which had approached me and asked that the matter should be raised.The Minister was good enough to accept that there was good sense in most of the provisions, but he cavilled at one clause which dealt with the slightly more controversial matter of the need to tax solicitors' accounts before court action could be raised for recovery of fees due. I took the view, and I still do, that on balance that was probably sensible, if it is seen in the context of what will be a lengthy and continuing debate about the fairly traumatic shock of the arrival of advertising and competition in the staid and respectable world of Scottish solicitors. We shall probably want to return to that subject at leisure on another occasion. That matter has gone from the schedule and I understand the reason for that. A number of useful changes remain which deal with the right to levy a subscription and the right to have a special levy to fund a project, such as the new Scottish law publication with which the Law Society is involved. There are a number of other such matters—the recovery of expenses and the rather sad circumstances in which the Law Society has to take over a solicitor's business because of problems that have arisen. The provisions bring some flexibility to the framework within which the Law Society operates. These matters underline the difficulties that can arise when one needs primary legislation to effect minor tunings and changes which experience has suggested would be useful. I welcome the fact that the Solicitor-General for Scotland has—as one would expect—honoured the undertaking that he gave in Committee. I welcome the new clause.
Question put and agreed to.
Clause read a Second time, and added to the Bill.
New Clause 8
Power To Pay Extraparliamentary Commissioners For Service On Inquiries Under The Private Legislation Procedure (Scotland) Act 1936
'In section 5 of the Private Legislation Procedure (Scotland) Act 1936 (which provides amongst other things, as to the appointment of Commissioners for inquiries under the Act) there shall be added at the end the following subsection—
"(9) The Secretary of State may pay Commissioners taken from the extraparliamentary panel such fees or other amounts in respect of the performance of their duties under this Act as he may, with the approval of the Treasury, determine". '.— [The Solicitor-General for Scotland.]
Brought up, and read the First time.
The Solicitor-General for Scotland
I beg to move, That the clause be read a Second time.
Mr. Deputy Speaker (Sir Paul Dean)
With this, it will be convenient to take Government Amendment No. 51.
The Solicitor-General for Scotland
The new clause adds a new subsection, subsection (9), to section 5 of the Private Legislation Procedure (Scotland) Act 1936, to empower the Secretary of State to pay fees to commissioners appointed from an extra-parliamentary panel to serve on the inquiries into provisional orders submitted to him under that Act.Four commissioners are appointed, under section 5 of the 1936 Act, to serve on an inquiry. They are normally two hon. Members appointed by the Chairman of Ways and Means, and two members of the House of Lords, appointed by the Chairman of Committees. If the Chairmen are unable to appoint four parliamentary commissioners, the Secretary of State appoints as many persons as are required from the extra-parliamentary panel. The panel consists of 20 persons qualified by their experience of affairs who are nominated by the chairmen, acting jointly with the Secretary of State. Recourse to the panel is very infrequent. Until last November, when two members were appointed to act as commissioners for the inquiry into the Lothian Region (Edinburgh Western Relief Road) Order 1984 only three members from the extra-parliamentary panel had been called upon to serve in the last 20 years. Section 14 of the 1936 Act provides for the payment of travelling and subsistence allowances for all commissioners, but there is at present no provision for the commissioners from the extra-parliamentary panel to be paid a fee or to be reimbursed for loss of earnings through service as a commissioner. The absence of such a provision might create a difficulty when the Secretary of State next has to appoint a commissioner from the panel. My hon. Friend the Member for Strathkelvin and Bearsden (Mr. Hirst), who served on a recent provisional order inquiry, will well understand the need for this provision, which seeks to remove the possibility of difficulty.
Mr. Robert Hughes (Aberdeen, North)
I apologise to the Solicitor-General in that, because I have only just entered the Chamber, I do not know whether he has already mentioned this point. Is it perfectly clear that such payment would not involve commissioners in a difficulty over the question of an office of profit under the Crown?
The Solicitor-General for Scotland
No, the new clause would not create any difficulty, because commissioners who happen to be hon. Members will have no access to this opportunity. It is only in those infrequent cases where a commissioner is appointed from the extra-parliamentary panel that there might be a need for payment. The power to pay a fee—the level of which would be determined by the Secretary of State with the approval of the Treasury—will be additional to the provisions of section 14 for the payment of travelling and subsistence allowances. It will apply only to commissioners drawn from the extra-parliamentary panel. Hon. Members continue to receive their normal parliamentary salary when serving as commissioners, and Members of the House of Lords are entitled to allowances on the same basis as for attendance in their House.I commend the new clause to the House and trust that it will be seen as facilitating the private legislation procedure in Scotland.
Mr. James Wallace (Orkney and Shetland)
The amount is not limited; it is to be determined by the Secretary of State. It will be subject to Treasury approval, and that might lead us to believe that it is likely to be very modest, but should Parliament give an open-ended commitment? It is acceptable that people should be paid, but perhaps Parliament should have some control over the size of the payment.
The Solicitor-General for Scotland
The level of the fee is to be determined by the Secretary of State. If the hon. Member for Orkney and Shetland (Mr. Wallace) fears that the fee might be too high, he must be failing to take account of the fact that the approval of the Treasury will be required. It would be a unique experience, if the Secretary of State for Scotland were to find that the Treasury was prepared to agree to the payment of a sum, that the House might consider that excessive.
Mr. Donald Stewart (Western Isles)
The Solicitor-General for Scotland
I see that the right hon. Member for Western Isles (Mr. Stewart), with his experience, accepts that proposition.
Mr. Michael Hirst (Strathkelvin and Bearsden)
I am grateful for the opportunity to say a few words about the new clause. I do so with enthusiasm because I recently served as a parliamentary commissioner on a lengthy inquiry. Because only two of the four commissioners were Members of Parliament, it was necessary on that occasion to bring in two people from the extra-parliamentary list. The inquiry was privileged by the appointment of Mrs. Morris and Mr. Lowson. Mr. Lowson was retired, but Mrs. Morris was a very active person who found it necessary to forgo, for nearly three and a half months, practising her profession as a psychologist. It is entirely appropriate that this power should be granted, so that, in future, the private legislation procedure will be able to depend on the services of the talented and able people who are needed to serve in the onerous position of commissioner.The hon. Member for Orkney and Shetland (Mr. Wallace) has pointed out that the amount to be paid would be unlimited. That must be right, because the appropriate reimbursement may vary in different circumstances. Given the Treasury's record, I cannot believe that it will be prepared to pay substantial amounts without justification. I welcome the new clause with enthusiasm.
I welcome—in a somewhat muted fashion—a minor change. There should be room for recompense for those who give such public service. No sum likely to get past the eagle eye of the Treasury would be likely to compensate for the sufferings of the commissioners on the Edinburgh relief road inquiry. The comments of the hon. Member for Strathkelvin and Bearsden (Mr. Hirst) resembled a cri de coeur.On another occasion, we could have a useful debate about the way in which the procedure operates, its effectivness as a method of dealing with the immensely complex issues that arise in such inquiries, and the extent to which it can be conclusive. However, while the procedure exists, and while we ask people—we may ask them with increasing frequency in future—to serve from the extra-parliamentary list, it is only right that there should be some provision to pay them for their services. The Opposition would not wish in any way to obstruct the proposal.
Question put and agreed to.
Clause read a Second time, and added to the Bill.
New Clause 1
Places For The Care Of Drunken Persons
'In Section 5 of the Criminal Justice (Scotland) Act 1980, at the end, there shall be added—
"(2A) Where a constable has power to arrest a person without warrant for being drunk and disorderly, drunk and incapable drunk and in charge of a child, and drunk and attempting to enter licensed premises, then the constable shall take him to any place designated in Schedule (places designated as suitable for the care of drunken persons) to this Act, unless (a) the person refuses to go to such place, (b) the constable has reason to suspect that he has committed another offence or (c) there is no such designated place reasonably accessible. Where a constable does not take a person to a designated place and charges him with any of the above offences then he must enter on the charge his reasons for failing to take the person to a designated place.
(2B) Where a constable has power to arrest a person without warrant for any other offence and the constable has reasonable grounds for suspecting that that person is drunk, the constable may if he thinks fit, take him to any place designated in Schedule (places designated as suitable for the care of drunken persons) to this Act.".'.—[Mr. Maxton.]
Brought up, and read the First time.
Mr. John Maxton (Glasgow, Cathcart)
I beg to move, That the clause be read a Second time.
Mr. Deputy Speaker
With this it will be convenient to take new clause 2—Places designated as suitable for the care of drunken persons—
'The following Schedule shall be added to the Criminal Justice (Scotland) Act 1980— PART I
1. Within six months of the coming into force of this Act each Regional authority in Scotland shall submit to the Secretary of State for Scotland a list of places within each region which they consider suitable for the care of drunken persons. 2. Such places shall be those that having been inspected by the Social Work Department and the Local Health Board, are considered to have met the criteria listed in paragraphs 3 and 4 below. 3. The Social Work Department and the Local Health Board shall be satisfied that the place, whomsoever it is run by, has suitable accommodation for the care of drunken persons and meets the statutory, fire, health and safety standards. 4. The Social Work Department and the Local Health Board shall be satisfied that there is one person on the staff of such places who either is qualified to deal with drunken persons or has considerable experience in dealing with drunken persons. 5. Where a regional authority is of the opinion that there are inadequate numbers of places in the region for the purposes of section 5 of this Act, then they may, if they so wish, establish such places under their own authority.PART II 1. When the Secretary of State has received from each regional authority the list of places considered suitable for the care of drunken persons then he shall designate such places if he is satisfied that they are suitable, and accordingly inform the regional authorities. 2. The Social Work Department and Local Health Board shall inspect the designated places every six months to ensure that the standards as laid down in Part I of this Schedule are maintained. 3. If at any time the regional authority reports that a designated place is no longer suitable then the Secretary of State shall move that place from the list of designated plans. 4. A regional authority may, if it so wishes, make grants to other bodies in order to maintain such places.PART IIIPurposes of places designated as suitable for the care of drunken persons 1. Designated places shall take into care those persons brought to them by a constable and shall offer such treatment as the qualified or experienced person considers appropriate in order to resolve the problems the drunken person has. 2. A drunken person shall be asked to stay for such time as the qualified or experienced person considers necessary for the treatment.".'.
Those who served on the Committee may well recognise the words of these new clauses. New clause 2 is, or course, a new schedule to the Criminal Justice (Scotland) Act 1980. The new clauses are exactly the same as amendments that I tabled in Committee.Part 5 of the Criminal Justice (Scotland) Act gives constables certain powers when they arrest drunks for certain specific drunken offences. I believe that there are only three specific offences—drunk and disorderly, drunk and incapable, and drunk in charge of a child. In the case of those offences a constable may take the person in question to a designated place where he will receive treatment, rather than taking him to the police station, charging him with the offence and bringing him before the court. My new clauses require a constable to take a person to a designated place unless quite specific conditions have been met or the person refuses to go. It is not enough to say that constables may take people to a designated place, because the evidence of the past five years shows that they do not. New clause 2 provides what designated places are. In 1980, I wanted to ensure that the Secretary of State did not start designating unsuitable places where no treatment was available and which were essentially doss houses. The designated places should be capable of treating offenders and of keeping them there for a specified time. Medical care should be available and health and safety regulations should be met. I thought it necessary to have control over designated places. My fears have been proved utterly unfounded because, with the exception of one place in Aberdeen, none have been designated. Ministers had enormously high hopes during the passage of the 1980 Act. Of course, with the exception of the Secretary of State, none of the Ministers involved with the Act are still on the Front Bench. We were told how the Act would decriminalise drunkenness in Scotland. It was a laudable effort. We all welcomed the principle and agreed that it was time that people with drink problems should stop being treated as criminals. Five years later, nothing has happened. Last Friday I spoke to the chief constable of Strathclyde—Sir Patrick Hamill—who, when he heard that I intended to raise the subject, asked me to push it as hard as I could because he wants to decriminalise drink. I can think of no section of the community that disagrees with that. Each year, about 15,000 to 20,000 people are charged with offences caused principally by a drink problem. On the clause 5 stand part debate, my hon. Friends said that unless the Government were prepared to provide resources, nothing would happen. With the honourable exception of Aberdeen, that is what has occurred. 4.15 pm Matters are even worse in England as, far from detoxification units being opened, they are being closed for lack of resources. The Manchester unit is being closed for lack of resources, although I accept that it has problems because it is a little out of the city and not easy for the police to reach. In Glasgow we have an area that could be used as a designated place. It is doing a marvellous job treating people with serious drink problems. Like the hon. Member for Strathkelvin and Bearsden (Mr. Hirst), I have visited it. I refer to the Department of Health and Social Security resettlement unit at Bishopbriggs. It is doing a tremendous job and treats people with the most serious drink problems—the people whom the voluntary organisations will not touch. Only when the resettlement unit has partially dried people out will the voluntary organisations take them on. In spite of its good work, the unit is being closed. That is not good enough. I hope that the House is grateful that I have tabled these new clauses. They give Ministers an opportunity to explain what they have done since 1980. After all, there is no point in enacting legislation, no matter how well intentioned, unless it is put into action. That is what has happened here.
Mr. Donald Stewart
What will happen to the man who is simply drunk on the odd occasion and is clearly not an alcoholic? Would he be covered by these new clauses?
To some extent such a man would be benefited by the new clauses. If a man goes out on a blinder, he might be charged with being drunk and incapable and therefore have a criminal record, although he is an honourable man. However, if my new clauses were enacted, he would not be charged and he would therefore have no criminal record. He might be taken to a detoxification unit, but he would be there only one night as the staff would quickly be aware that he had no history of drinking.I hope that the Minister will say what the Government have done in the past five years and what they intend to do. Do they realise that passing legislation is not enough on its own, and that they must give local authorities, health boards and voluntary organisations money to ensure that there are places to which police constables can take people who have committed a drink offence?
The Parliamentary Under-Secretary of State for Scotland (Mr. John MacKay)
As the hon. Member for Glasgow, Cathcart (Mr. Maxton) said, these new clauses are identical to amendments that he tabled to the original clause 5 of the Criminal Justice (Scotland) Bill and which were discussed in the Scottish Standing Committee on 5 June 1980. I appreciate his reasons for retabling them—principally to enable further discussion of a subject that is still worrying. Although we do not think that provision such as this would be helpful, I should like to outline developments since the 1980 Act which have overtaken parts of the new clauses.Following the passage of the 1980 Act, the Scottish Office undertook consultation with many bodies and organisations, including the Confederation of Scottish Local Authorities and the Association of Directors of Social Work. In April 1982 we produced two sets of guidelines for designated places, covering the caring aspect of setting up and running premises suitable for designation and advice to the police on those who might be suitable for taking to such a place. The guidelines represented the detail that we thought it reasonable to lay down. They included the standard of premises, care and supervision in the premises, links with other types of facilities and co-operation with social work, medical and nursing services. While the guidelines for the police explain the purpose and scope of section 5 procedures and the degree of discretion which the police might want to exercise, for example, when a person has committed more than one offence, they also cover—I mention this in the context of the new clauses—the action to be taken if a person refuses to go to a designated place or if staff decline to accept him and he may be taken to a police station and charged. A specific part of the provisions of the new clauses, regarding the standards of premises and supervision, and the action to be taken by the police, need not and possibly should not be included in primary legislation. Some provisions—for example, specifying that a designated place must take into care all those brought in by the police, or that such persons would be asked to stay as long as the person in charge of the designated place thinks fit—would encroach on the proper use of discretion by those concerned and, possibly, on the liberty of the citizen. New clause 2 would require local authorities, within a limited period, to submit to the Secretary of State lists of premises which are suitable for designation to receive drunken offenders with suitable staff to run them, with the implication that, following designation, they should be operated either by the local authority or by other bodies with a local authority grant. I appreciate the hon. Gentleman's aim of making such a provision to accelerate the provision of designated places, of which, as he said, only one operates at present. Apparently, that one operates with considerable success. There are, however, two points that I should like to make. First, several parts of the new clause are unnecessary. For example, local authorities already have the power under the Social Work (Scotland) Act 1968 to provide funds to voluntary bodies for the purposes of the Act, and to inspect and register residential and other establishments, taking into account the suitability of staff, premises and conduct of the establishment. More important, while we welcome the implicit suggestion in the new clauses that the responsibility for providing facilities and services for people with an alcohol problem is primarily for local authorities and health boards, the Secretary of State would not think it appropriate to impose a duty on local authorities, which have many other demands to meet, to devote their resources to a single programme in this way against a specific time limit. It is open to local authorities to take an active role in the provision and promotion of designated places. I commend in particular the example of Grampian authority, which bought the premises at Albyn house for the Albyn House Association, and which is taking a share in the running costs together with the Scottish Office. That shows that local authorities can give assistance and support as necessary. However, we do not believe that the Secretary of State should impose a duty on local authorities to provide such facilities or to take away the discretion of local authorities as the new clause would. As I have made clear on more than one occasion, I remain ready to examine any project which comes to me, and to fund it in exactly the same way as the Albyn house project. Anyone who doubts whether projects in his local area may be successful, should look at the success of that project in Aberdeen. I stressed that in a visit to Aberdeen only a fortnight ago. I made it clear in some interviews that other voluntary organisations and local authorities should look at the good example in Aberdeen and be prepared to come to me with projects. I would be extremely sympathetic about funding such projects.
Mr. Gerald Malone (Aberdeen, South)
I wish to emphasise my hon. Friend's point. I remind him that, as a result of the project in Aberdeen, the number of offences of drunkenness in the city last year dropped to five. The project decriminalised the offence of drunkenness. More important, it saves substantial money and police time, and allows Grampian police to devote themselves to other activities. I hope that my hon. Friend will always bear that cost-effective argument in mind.
It may put the figure of five drunkenness offences in an even more dramatic context, if I say that my hon. and learned Friend the Solicitor-General for Scotland pointed out that there were 235 offences of drunkenness in 1983 in Aberdeen. Therefore, there has been a dramatic reduction in the number of cases of drunkenness in Aberdeen.If the new clauses have done nothing else, they have allowed us to stress to local authorities and voluntary organisations how successful Albyn house has been, and allowed me to say if projects come before me, I shall certainly look at them as sympathetically as possible with a view to funding them.
Mr. William McKelvey (Kilmarnock and Loudon)
I welcome the fact that the Minister will be sympathetic to cash funding such projects. However, he should go further. Does he agree that if he applied the same pressure and propaganda as he did when he tried to privatise certain elements in the National Health Service, and if he brought it to the attention of authorities that money was available, some authorities may accept his offer?
I shall not go down the highways of the National Health Service, but use the opportunity to say that I hope that if authorities have not considered the matter—I believe that they will have considered it—they should look at the example of Albyn house in Aberdeen and be prepared, either themselves or with voluntary organisations, to devise projects to undertake the same sort of work in other parts of Scotland.Although I am extremely sympathetic to the aims of the hon. Member for Cathcart, I consider that the prescriptions in the new clauses would not be helpful. I ask the House to reject the new clauses. However, I stress that we stand ready to help with projects that come to us from the voluntary sector and local government.
Mr. Harry Ewing (Falkirk, East)
I commend my hon. Friend the Member for Glasgow, Cathcart (Mr. Maxton) for tabling the two new clauses and for giving the Under-Secretary of State the opportunity to tell the House and, through it, the people of Scotland, that no Scottish local authority, apart from Grampian region, has submitted a scheme and had it considered. I take it that the only scheme to be submitted was the Aberdeen one, which was approved, and that no other scheme has been submitted and turned down by the Minister. It is important that we have that on the record.It is equally important that we have on the record the Minister's commitment that if local authorities submit schemes, whether joint-funded schemes through the health boards and the social work departments of regional councils or otherwise, he will agree to part-fund those schemes. I am fairly certain that one of the inhibitions on the regional authorities during the past four years has been the distinct suggestion from New St. Andrew's house that, no matter what is suggested, no money will be made available for it. That position has been slightly changed today by the Minister's commitment to fund such schemes. I shall do my best to encourage the regional social work departments and the area health boards because they also have a part to play. The hon. Member for Aberdeen, South (Mr. Malone) pointed out that there were savings to be made in police and court time. I am absolutely certain that there will also be savings to be made in the Health Service. They may be more long-term, but there will be savings. I shall certainly want to do all that I can to encourage Scottish local authorities and health boards to submit schemes on the understanding that the Minister gave today, that the schemes will be part-funded by the Scottish Office.
They should be 100 per cent funded.
My hon. Friend the Member for Kilmarnock and Loudoun (Mr. McKelvey) may say that, but the Minister is shaking his head in disagreement. I am disappointed that no other schemes have been submitted. The Minister said that we were talking about a local problem. I was interested in the intervention of the right hon. Member for the Western Isles (Mr. Stewart) and in his reference to occasional drunks. That reminded me of one of the great stories about the Western Isles. A boy said that he got drunk once a year—from February until October. I suppose that that is just occasionally drunk.However, it is important that we should have the Minister's commitments on the record.
The hon. Gentleman has referred to the Western Isles, but is he aware that, judging by the new clause, the Isles authorities are not expected to assume the statutory responsibility that would be imposed on the other areas? Was that a drafting error, or does the hon. Gentleman think that drunkenness does not exist in the Isles?
I should prefer my hon. Friend the Member for Cathcart to answer for his own drafting. However, I do not want to delay the House, so I shall be brief. It is important to emphasise the points that the Minister has made and to put them on the record. We can then go ahead and encourage local authorities and health boards to submit joint-funded schemes. We are discussing a major and growing problem in Scotland. It is a problem all over western Europe and I do not single out Scotland for special attention. Nevertheless, today we are dealing with Scotland, and the problem is becoming more serious. We should try to do something about it.
Because of my duties in Edinburgh in connection with the Parliamentary Commission, I was denied the opportunity to speak very often in Committee. Accordingly, I welcome this opportunity to make a short speech today and, in particular, to respond to the comments of the hon. Member for Glasgow, Cathcart, (Mr. Maxton) about the DHSS resettlement unit at Bishopbriggs, in my constituency. That unit is under threat of closure.I welcome the perhaps accidental presence of the Minister responsible for health and social work, as I have made urgent and vigorous representations to him on this issue. I hope that he will be able to deal with my remarks. It must be right that special centres are made available to those who suffer from chronic alcoholism. It cannot be a sensible use of police resources to have policemen locking up drunks and taking them to court in the morning, or to have justices having to send them to gaol for 14 days or imposing a small fine. The decriminalisation of alcoholism must surely be one of the social advances that the 1980s will see, and detoxification centres along the lines of the successful experiment at Albyn house in Aberdeen are clearly the answer. Indeed, my hon. Friend the Member for Aberdeen, South, (Mr. Malone) has already mentioned that. But what distinguishes Conservative Members from Opposition Members is that we recognise that resources are limited. Given that that is so, I make a powerful plea in support of the principle of detoxification centres. But until they can be put into place, I should like to see the facility at Bishopbriggs retained. Its premature closure would undoubtedly be folly, and it would deny the west of Scotland an essential safety net for those who suffer from chronic alcoholism. That facility fulfils a vital role. Not all of those who use it are alcoholics, although many have alcohol-related problems. On my first visit to the resettlement unit, the staff were engaged in nursing one of the inmates through an alcoholic stupor. It is a tribute to their skills that the inmate did not need to be taken to hospital for that rather specialised medical treatment. Although the resettlement unit does not have as its basic purpose the role of a detoxification centre, it provides a facility in the community where the chronic alcoholic can be given a chance to try to beat the problem. At present, it is highly questionable whether alternative facilities exist within the community in west central Scotland, and it would be a retrograde step if that important facility at Bishopbriggs in my constituency—whose work was greatly praised during a recent visit by my hon. Friend the Under-Secretary of State—closed. I was delighted to hear my hon. Friend the Minister say that he would do his best to try to make facilities and resources available to provide detoxification centres. Perhaps he will turn his attention next to west central Scotland where we traditionally have a serious alcohol problem. The community's resources might be best employed in providing a detoxification centre.
Mr. Robert Maclennan (Caithness and Sutherland)
The hon. Member for Glasgow, Cathcart (Mr. Maxton) has served a very useful purpose in raising this important issue again. The Minister did not dispose of his argument by saying that the Government had issued circulars since amendments were first moved in 1980. Whatever circulars may have been issued, we do not have the sort of institutions that the hon. Member for Cathcart wants, and which are supported by hon. Members on both sides of the House.It is quite plain that it is not enough for central Government to exhort local authorities to do something. Local authorities and social work departmens are hard pressed to meet existing commitments, and they will not feel able to embark upon expenditure on new institutions, regardless of whether they are backing the initiatives of private organisations or trusts or backing their own projects, unless the Government can go much further than the Minister went today. He said only that he would look sympathetically at applications for assistance. Can the Minister be more specific and precise? He shook his head negatively when the hon. Member for Kilmarnock and Loudoun (Mr. McKelvey) suggested that the Government should meet 100 per cent. of the expenditure of such institutions. However, the Minister has not clarified what he means by looking sympathetically. Can he go further than that? If he is genuinely trying to signal to local authorities a change of direction, and if he is saying that the Government are prepared to give higher priority to expenditure on such centres, we welcome that and will do our best to persuade our local authorities about the importance of the issue. However, it is not good enough for the Minister to say that he will look at the matter sympathetically and will wait for these initiatives to be taken. We have waited too long.
I must say that I found the Minister's reply disappointing. In the past five years, what has happened about the decriminalisation of drunkenness? Everybody admits that the experiment in Aberdeen has been a great success and has worked marvellously. Only five people have been charged with drunkenness in the past 12 months. That is a marvellous record and shows that such facilities work. But why do we not have them in the rest of Scotland? It is not good enough for the Minister to say that he is encouraging local authorities. Does that mean that he has not been encouraging them during the past five years and that he has not made it clear to them that he is prepared to give them resources? On the other hand, if he has been encouraging local authorities, what response has he had from them?I know that Fred Edwards, the social work director for Strathclyde region, is as committed to this idea as the chief constable of Strathclyde, Sir Patrick Hamill. If both they and Strathclyde regional council are committed to the idea, why has nothing been done? The answer is, as the hon. Member for Caithness and Sutherland (Mr. Maclennan) has said, that local authorities are already so strapped for money that they are having to cut existing facilities. Therefore, unless the Minister is prepared to finance such schemes 100 per cent., and to place a statutory obligation on local authorities to provide them, they will not be provided. Local authorities simply do not have the resources. We all know that this issue does not necessarily arouse great sympathy among the general public. Many people do not have much sympathy for those who have serious drinking problems or for the down-and-outs of our society. Consequently, it is not always easy for local authorities to switch resources from one area—such as children's homes, old folks' homes or sheltered housing—into another. A new commitment and 100 per cent. funding by the Government are needed.
Despite the fact that it is difficult to provide funds for this purpose, Grampian regional council has managed to do it, yet it has one of the lowest regional rates in Scotland. Might the fact that this council has been able to provide such funds have something to do with the fact that it is Conservative-controlled?
Mr. Robert Hughes
Before giving way to my hon. Friend, I shall give a simple answer to that question: no.
I very much regret that the hon. Member for Aberdeen, South (Mr. Malone) has introduced a purely partisan political note into the debate. I pay tribute to what is being done by the Grampian regional council, but there are many other things that the council ought to be doing. The fact that it has set a low rate does not excuse it, just because on this occasion it has done something good, from doing other things.
Grampian regional council is to be congratulated, but I do not believe that the hon. Member for Aberdeen, South can deny that Strathclyde regional council has to deal with far greater problems, caused by multiple deprivation, than those which have to be dealt with by the Grampian regional council. Owing to limited and declining Government grants, Strathclyde regional council faces great difficulties. New resources must be provided by the Government. If they genuinely believe in the decriminalisation of cases involving people who are drunk and disorderly, there must be a much greater Government commitment to dealing with the problem.I accept that, as was pointed out by the hon. Member for Orkney and Shetland, (Mr. Wallace), the new clause is faulty. Therefore, I beg to ask leave to withdraw the motion.Motion and clause, by leave, withdrawn.
New Clause 3
Police Complaints Panel
Brought up, and read the First time.
I beg to move, That the clause be read a Second time.I have to make it clear from the outset that this new clause was put down to allow the House to debate again, in Scottish terms, the need for a police complaints procedure. When I went to the Clerk of the House to put down an amendment to the police complaints procedure, I took with me a copy of the Bill which my right hon. Friend the Member for Glasgow, Govan (Mr. Millan) introduced when he was Secretary of State for Scotland but for which he could not obtain the support of the Liberal party and the House. Therefore, it was withdrawn. The Clerk of the House said, probably quite rightly, that to put down a Bill as a new clause was not within the rules. He therefore asked me to truncate it, and that is exactly what I have done. The new clause lays down the principles which were contained in the Bill. I accept that on its own it is insufficient to become law. A commitment would be needed that the Government accept the principle, and they would then have to introduce a new clause at a later stage. 4.45 pm It is important that the principle of a police complaints procedure in Scotland should be established. This matter was raised during the passage of what is now the Criminal Justice (Scotland) Act 1980. Many hon. Members said that they did not like the new clauses relating to detention or the new powers of stop and search. We still do not like those powers. However, they would be less abhorrent if there were some means by which the matter could be considered by a body other than the police. If a policeman steps out of line and a complaint is made about his actions by a member of the public, there ought to be some means by which the complaint can be looked at independently of the police. Complaints of this nature now go to the deputy chief constable, and when it is alleged that a criminal offence has been committed the normal practice is for the complaint to be sent to the procurator fiscal. However, those who make complaints are interviewed by the police before the matter is sent to the procurator fiscal, and in some cases the complaint is withdrawn. In other cases there is need for a disciplinary procedure because policemen have not acted within police rules. Therefore, it is essential for those cases to be investigated by a body that is independent of the police. This is not, as is so often alleged, meant to be an attack upon the police, but the police are unbelievably touchy about it. I believe that 99·9 per cent. of Scotland's policemen do their job well, obey the rules and often have to carry out their work in very difficult circumstances. However, there are those who do not operate within the rules, and it is in the interests not only of the public but of the police that the investigation of those cases should be handled by a body that is independent of the police. I have never understood why chief constables and the Police Federation are so opposed to the setting up of an independent body. The members of the inquiry would be appointed, not by the National Council of Civil Liberties or by the Scottish Council of Civil Liberties, but by the Secretary of State. They would not necessarily take the side of the complainant. As sensible people, they would take an objective view of the matter, which would be in the interests of the police. The argument that has always been advanced against having a police complaints procedure in Scotland is that Scotland has an independent prosecution system, whereas prosecution in England and Wales is a matter for the police. It is argued that because the procurator fiscal is the prosecutor there is no need for a police complaints procedure in Scotland. However, an independent prosecution procedure is to be introduced in England and Wales, but the police complaints procedure will not be abolished. On the contrary, it is to be strengthened. The Home Office believes that an independent prosecution system and a police complaints procedure should go hand in hand in England and Wales. If that is so in England and Wales, why on earth is it not so in Scotland, so that when complaints were made by the public about the police they would feel that their complaints had been properly investigated? It would also mean that the public would have greater respect for the police. Because of the few "bad eggs", that is not always the case now. I commend the new clause to the House.
Mr. Norman Buchan (Paisley, South)
I am pleased to be able to take part in the debate. I congratulate my hon. Friend the Member for Glasgow, Cathcart (Mr. Maxton) on the new clause. I remember vividly our debate on what is now the Criminal Justice (Scotland) Act 1980. Indeed, it was the passing of that Act that makes this measure more necessary then ever. I am sorry to hear that an attempt to introduce it in a properly structured piece of legislation was prevented because of the Liberal party's cold feet.We now have an opportunity to do two things: first, we can look back on that Act, which considerably increased police powers; secondly, we can look back at the events of the past year and a half in Britain. It would be wrong to ignore the nature of the disputes on the picket line over that period and the behaviour of some police. It is fortunate that England and Wales have a police procedure which prevented some of the community anger. Anyone who has been to the coalfields of England will be aware of not just the picket line and miners' anger but the community anger about some of the events that took place. Nevertheless, it would be interesting to know how many complaints were proceeded with. It would be interesting to know how many complaints were made in Scotland over the past year and a half. I recognise that the aggro in Scotland was less than it was in England and Wales, but how many complaints were dealt with successfully? That is part of the background that has worried some of us. I never believed that I would switch on a television set and see some of the events that we saw at Orgreave. The veneer in which we have taken pride in the past is not so deep as we might have hoped. I agree entirely with my hon. Friend, and I speak as a former Minister in charge of law and order, and therefore the police, in Scotland. The best security for the police against unjustified complaints is a police procedure which is above question to deal with complaints. We have been told that Scotland does not need such a procedure because of the existence of the procurator fiscal structure. We were told in 1980 that there was insufficient money, but now we are told that the legal structure makes it unnecessary. That is not the case. The only way in which we can be sure that the community will be satisfied is by a structure, independent of the police force, in the form of a panel to which people can have recourse when necessary. Without that, even the procurator fiscal does not provide the necessary knowledge that complaints have been fully investigated. We all know from letters that we receive that people make complaints about police behaviour, or indeed, about matters which do not effect the police, which the procurator fiscal does not take up. The suggestion is that a secret organisation has kept things below the counter. The only way to solve that problem is to ensure that there is open discussion in which people can have some faith. Moving away from the events of the past year and a half and the anxieties to which they have given rise, one must look at the 1980 Act, which considerably extended police powers of search, investigation and arrest. Complaints often arise from aggro at the time of arrest, holding or search. It is often difficult to establish the truth. It is often easy to make undisciplined and sometimes unfounded accusations. Such accusations cannot satisfactorily be dealt with if the people who make them are informed that there will be an investigation through the same police force that gave rise to the complaints in the first place. There is no comfort in the fact that a deputy chief constable, or someone at whatever level, will come from another area to investigate. To the people the police are the police, and that is all there is to it. I want to underline strongly my hon. Friend's points. Not least of the aspects with which we are concerned is to ensure that, like Caesar's wife, the police are above suspicion if an accusation is rejected. There is no doubt that there has been a decline in mutual trust, particularly between young people and the police, such as has occurred so bitterly in the mining communities. I should never have believed that those to whom I have spoken in, for example, Yorkshire would have spoken about the police in the way in which they have done. Clearly, trust has broken down, yet we do not even have the comfort of a separate complaints procedure to deal with matters. Even if the Minister were to reject the argument that there is a major case, in the sense of a mass of accusations, and even if he were satisfied with the present procedures, although I do not see how he can be, there is a case for re-establishing the mutual trust that once existed. That can come only with an independent police complaints panel, as outlined by my hon. Friend. My hon. Friend has been apologetic about the nature of the new clause. It is simplified but it is not too bad a structure, and it is one upon which we can build. I hope that the Minister will accept it in principle and give us the comfort of knowing that the Government intend to treat the matter seriously and come forward with legislation. I am sure that my hon. Friends will give him every support to get such a measure through quickly.
Sir Hector Monro (Dumfries)
It is extremely valuable that the hon. Members for Glasgow, Cathcart (Mr. Maxton) and for Paisley, South (Mr. Buchan) have given us the opportunity to discuss this important subject. I speak not from any practical knowledge of events of the past year, nor, indeed, would I want to do so, because that would introduce a different issue from that of complaints generally with which we want to deal.I have been chairman of a joint police committee in Scotland. Therefore, I am entirely supportive of the outstanding work that the police do day by day, week by week, year by year throughout Britain. But I must accept that every now and again constituents come to one's surgery with what, in their view, are complaints against the police, whether the result of a specific action or just general harassment of their lives. One may be able to deal with their case, perhaps by asking them to think again, but at the end of the day their only redress is the present procedure. The procedure is carried out effectively and fairly by the chief of police, or whoever he may depute, but when the result of the inquiry is known the constituent concerned almost inevitably feels aggrieved that his case has been tried by the police. The nub of the argument is whether that is fair justice. Should a complainant go away with a feeling that he has had hard justice? I know that we have the satisfactory procurator fiscal system, and I am glad that England is falling into line with that procedure, but it is worth making the point, so fairly made by the hon. Member for Paisley, South, that it might well be in the best interests of the police if an inquiry were carried out by an independent body. Ninety times out of 100—perhaps 99 times out of 100—police officers will be cleared if they have carried out their duties within the regulations. If that is so, the inquiry will exonerate them; but, more importantly, the independence of the inquiry, clear of a police officer as "judge", will mean that those who complain are much more satisfied. I hope that when my hon. Friend replies he will say that he intends to give this matter more detailed consideration. If his consultations produce a view similar to mine, I hope that it will be thought worth introducing the necessary legislation. This is not in any way a criticism of the police, for whom I have the highest regard. It would be in their interest to be clear of criticism from the public. Any subsequent inquiry would be seen to be independent, so the complainant would have no reason to continue to feel aggrieved.
I welcome the opportunity provided by the hon. Member for Glasgow, Cathcart (Mr. Maxton) to debate this important issue. He said that when the right hon. Member for Glasgow, Govan (Mr. Millan) was Secretary of State he introduced a Bill that could not proceed because it was blocked by the Lib-Lab agreement. I was not a Member of the House at that time, so I do not know why that happened. I assure the hon. Gentleman that it has always been the policy of the Liberal party, both in Scotland and in England, that there should be an independent police complaints procedure. I can only assume that the Bill fell on questions of detail.As the hon. Member for Dumfries (Sir H. Monro) said, all hon. Members receive complaints from constituents about police handling of certain cases. Such complaints often relate to cases in which people feel the police should have intervened, but did not. Although hon. Members discuss these cases with chief constables in great detail, and are subsequently satisfied that the police have acted properly, nevertheless our constituents are unhappy that the matter has been investigated by the police—even though the investigators are independent of the police officers involved in the original incident. They believe that, to some extent, the police protect their own. Therefore, it is important for the sake of the police to have an independent body to investigate complaints. If there is to be an independent police complaints panel, there should also be an independent force to investigate the complaints. I do not think that the hon. Member for Cathcart is suggesting that the three members of the panel should carry out the investigation. My hon. and learned Friend the Member for Montgomery (Mr. Carlile) put forward that view during the passage of the Police and Criminal Evidence Act, and I understand that that view was supported by the Police Federation. The Government said that it was not possible because of lack of manpower. If we apply our minds to the problem, we will find that it is not as great as might initially have been perceived. Such an independent force could comprise ex-policemen and others who have the necessary skills and qualities for investigative work—for example, former Customs and Excise officers. If we accept the proposal in principle, I am sure that there will be no difficulty in finding people for the investigatory force. That will supplement the important independent nature of the panel. It is useful to have such a debate and I look forward to the Minister's reply. I hope that he will be positive. If the new clause is not an acceptable way to proceed, I hope that he will outline the positive steps that the Government will take to provide for a more independent investigation of police complaints in Scotland. We must remember that England and Wales have made significant advances during the past two years.
Mr. Robert Hughes
I welcome the new clause tabled by my hon. Friends the Members for Glasgow, Cathcart (Mr. Maxton) and for Paisley, South (Mr. Buchan). I am especially pleased that it has attracted a great deal of support from the hon. Member for Dumfries (Sir H. Monro). It also received a cautious welcome in principle—although there was some criticism of the detail—from the hon. Member for Orkney and Shetland (Mr. Wallace). Indeed, there appears to be an all-party consensus that we need some form of independent investigation of the police.Like other hon. Members, I wish to state clearly that I have a great deal of respect for the police. Leaving aside the special tension of the past 12 months, it is nevertheless true that there are now greater tensions in society than for many a long day. The police are often at the sharp end when trying to deal with social tensions. It is in the general interest that there should be confidence between the public and the police. When I was a boy, policemen were represented not, perhaps, as PC Plods but as nice, couthy characters, very friendly, who could be approached on all sorts of matters. If one sometimes got into difficulty, the policement might administer a clip on the ear and say, "Go home." The relationship between the police and the public today is quite different from when I was a boy. I have experience of the police force both as a former member of Aberdeen city council and as a Member of the House. Successive chief constables have always said, "We do not want any bad eggs in the police force because that is not in our interests. We want to root them out. If that person is so bad that he should not be in the police force, we will get rid of him. If it is someone who has difficulty relating to the public, we will deal with it by training, discussion and identifying particular problems." Chief constables certainly believe that for the good of both the police and the public no member of the police force should be antisocial, in the widest definition. During my 15 years in the House I have not had many complaints about police misbehaviour or malpractice, although I expect I get my fair share. I am not anxious to encourage that. Some of the complaints have been justified. I shall not today, as I have done previously, go into detail because I do not want to identify policemen who have been disciplined. There is no point in raking up matters to their discredit. The worst case that I have had to take up with the chief constable—an allegation that neither he nor I could believe could possibly be true—was found to hold some truth following an investigation. Three policemen had to leave the force, and they were shown the door with great resolution. That happened more than 10 years ago, but it shows that the police will take action when serious cases are proved. This debate is not an exercise in police bashing—it is an attempt to restore the previous tradition of good relationships between the police and the public. All hon. Members who have spoken have said that it would benefit the police to have an independent investigation. I have had discussions and disagreements with trade union representatives of the police. I know that when a letter from me arrives on the desk of the chief constable and is fed through the system, some members of the police force are not exactly pleased. Some of the things that I understand have been said about me would not bear repeating in the House. The police should understand that we are putting forward this proposal not only because of the awkward squad—people who make frivolous or malicious allegations—but because we believe it will be of as much benefit to the police as to the public. When a complaint has been substantiated and disciplinary action has been taken, or if a case goes to the procurator fiscal and a policeman is prosecuted and found guilty, people are not dissatisfied with the way in which it has been handled. The problem arises when someone makes a complaint, which is investigated by the police, who say that there is no substance in it, that there was a misunderstanding, or that it was the fault of the complainant for being aggressive either verbally or physically. In such cases people say, "We are not satisfied that the matter has been given a proper hearing." Many of us who have been concerned for a long time with the complexities of society and the different ways in which authority, in its broadest definition, impinges on the lives of ordinary people, have been arguing for a wider complaints procedure. Largely as a result of such debates, we now have a Parliamentary Commissioner who can independently investigate complaints against the state. I know that there are limitations on his powers, but there is at least a procedure whereby someone aggrieved about a decision of public administration can have his complaint investigated thoroughly. The same is true of the National Health Service, although its commissioner is also limited in the sense that he cannot investigate matters of clinical judgment. Some of us may argue about that, but I realise that this is not the place to do it. Nevertheless, in general, the Health Service Commissioner system works, and people understand that it is another attempt to protect the ordinary citizen from big bureaucracy. There is also a Local Government Commissioner. Many of us know from experience how local government has grown in size and complexity. It deals with so many matters that impinge on ordinary people's lives that we decided—it was generally accepted—that we needed an independent complaints procedure so that an individual might have his grievances considered carefully. The Local Government Commissioner system also works extremely well. In some cases, the same person may do the job of Parliamentary Commissioner, Health Service Commissioner and Local Government Commissioner, but they are three separate offices. Their one failing is that they have no power to compel an offending authority to accept their recommendations and remedy the grievances. In the vast majority of cases, when a complaint is investigated, the commissioner recommends a course of action and the authorities carry out those recommendations. But if they decide to be obdurate and say, "We will not accept this," nothing can be done about it. One of the special attractions of new clause 3 is paragraph (f), which states that the decision of the panel must be complied with by the deputy chief constable. That must be right. I have always believed that if an authority is investigated and found to be at fault, not necessarily because it acted deliberately but because of maladministration or error, the recommendations of the panel should be binding. Therefore, if it is found that a complaint against the police is justified and the panel recommends some action, the police should comply with it. Public confidence in the police would be greatly enhanced if we had an independent complaints procedure. It is is long overdue. Others in the House may have a better memory of events than I, but I recollect that when the idea of a police complaints panel or an independent investigating system was first discussed in the House, it caused great controversy inside and among parties. The idea was welcomed by no one. Now there is agreement in almost all parties and, although I have no authority for saying this, I believe that we have gone through this argument so often and examined its merits with such care that even the chief constables would not bitterly oppose it. I am still not sure whether representatives of police officers would accept it, but gradually even they are beginning to understand that it is in their best interests. They are there to serve the public, not the state, and the public will be best served by a good police-public relationship and by enhancing public confidence in the police. I hope that the Minister will show his approval of the principle and accept it, or ensure that amendments are introduced in the other place. The Bill introduced by my right hon. Friend the Member for Govan has probably stood the test of time and would be a good way of going about it. The Minister will have the full support of the House if he does so. I commend the new clause to the House.
Mr. Robert Maclennan (Caithness and Sutherland)
The principle that any grievance should be independently investigated is increasingly accepted in society. The hon. Member for Aberdeen, North (Mr. Hughes) was right to refer to the Parliamentary Commissioner, the Health Service Commissioner and the Local Government Commissioner, but the principle has been extended beyond that. In Scotland, it has been accepted in relation to complaints against the legal profession, and Mrs. Joan MacIntosh's role as an independent ombudsman to whom the public can refer complaints is a recognition that the principle is constantly being extended. In the private sector, it has been extended to insurance, so that we now have the independent investigation of complaints against insurance companies. The principle is almost beyond party controversy. The only defence against extending it to the police that has been mounted by the Government is that, to some extent, Scotland already has it with the independent procurator fiscal system.However, in my constituency experience, the procurator fiscal system has not been wholly satisfactory in meeting the perceived need for an independent investigatory power. First, several complaints do not raise issues of criminal behaviour and are therefore not appropriate to be referred by the chief constable to the procurator fiscal. Many relatively nit-picking grievances against the police, and certainly issues of discipline, can give rise to the greatest sense of unfairness. That is not new. Indeed, the most celebrated case of a complaint against the police not being satisfied by the existing system occurred in my constituency. My predecessor, the late Sir David Robertson, raised in the House the famous Waters case, which led eventually to the setting up of a public inquiry. The fact that it was treated in such an inflated manner caused considerable damage to the police force. It was a serious complaint, but not so serious as to require such a massive response. I was told subsequently that it had even affected police recruiting. That is why I believe, with others who have spoken, that it is in the interests of the police to accept the desirability of an independent element in the investigation of complaints against them. I favour an independent element, not a wholly independent system of investigation and judgment, because I believe that if the police complaints system is to command the confidence of the public, it must be effective. To be effective, it will require the complete and wholehearted co-operation of the police in conducting the investigations. It is not wholly practical to establish a force to police the police. Although I concur with the view that there must be an independent element in the investigation, as well as in the panel to which the new clause refers, we must recognise that if investigations are to be carried out in depth and effectively, and if a wall of silence is not to surround the complaint, the investigating body must command the confidence and support of the police and be recognised as performing a function which the police, in their professional interests, would wish to be properly discharged. Like others, I believe that the police do a remarkably good job in Scotland. Few complaints are made, considering the number of times that the police are in contact with the public. The police are the last defence for the citizen against the breakdown of the rule of law and sometimes they have to use force or make a measured response to unruly behaviour. That is bound to lead to complaints on some occasions. The consensus on the subject has moved considerably since we last debated it in the House when we considered the Criminal Justice Bill. This week, a new police complaints body has been set up in England and Parliament is considering the introduction of an independent prosecution service for England. In England the Police Federation is calling for a totally independent system of investigating complaints against the police. That call has not yet been echoed in Scotland, but thoughtful policemen increasingly are of the view that there is much to be said for involving outsiders in examining complaints against the police. The new clause provides us with a valuable opportunity to raise the issues and for the Government to make a positive response. The hon. Member for Dumfries (Sir H. Monro) has direct experience as chairman of a police authority and the Government cannot ignore his contribution. All political parties are clearly of the view that the time has come for the Government to make a move. We seek, not a rush into uncharted territory, but a considered and careful response from the Government.
After what has been said today it will do the Minister no good if he merely digs in his heels and says that he is satisfied with the present position which has prevailed for some time. After the contribution by the hon. Member for Dumfries (Sir H. Monro), the Minister must now appreciate the widespread agreement that there must be an independent element in judging complaints against the police.My hon. Friend the Member for Aberdeen, North (Mr. Hughes) talked about respect for the police, but this issue is not about respect or disrespect for the police; it is about the public being confident that their complaints against the police will be fairly investigated and that the outcome of that investigation will be satisfactory to the complainant. The outcome might be different from that which is expected, but the complainant must be satisfied that his complaint has been properly and impartially investigated. It is important to emphasise that chief constables should take no part in such investigations, because at the end of an investigation the chief constable is responsible for disposing of the case and determining any punishment. I wish to set the record straight about what happened in 1978–79 when the Labour Government sought to introduce a Bill to deal with the problem. The Bill was never introduced. It was drafted and discussed across the parties, but that was under a minority Government and it was made clear that there was no majority in the House for enacting such legislation. It is important that the Minister should understand the events which led to the drafting of that legislation. In Scotland the Police Advisory Board meets regularly and the Minister probably chairs it, as I did, from time to time. I took the matter to the Police Advisory Board and with the exception of the Police Federation and the Police Superintendents' Association, both of which are represented by statute on the board, a substantial majority was in favour of introducing such legislation. The board comprises people from all walks of life, such as James Scotland, the principal of Aberdeen college of education and a playwright. Once the Police Federation and the Police Superintendents' Association realised that a majority of the board was in favour of such legislation and that the then Government were anxious to go ahead, they helped with the drafting. Whether they were reluctant to help is beside the point. The Police Federation represents officers up to the rank of inspector and the Police Superintendents' Association represents all ranks except assistant deputy chief constables and chief constables. It cannot be said that the police have always dug in their heels against independent investigations. Talk about what happens in England clouds the Scottish issue. Comparing the English and Scottish systems does not help. The hon. Member for Caithness and Sutherland (Mr. Maclennan) mentioned the element of independent prosecution to be introduced in England, but in the past the police have prosecuted in their own cases. Complaints against the police, which currently go to the procurator fiscal in Scotland, will continue to be referred to him even if we set up an independent element for investigating complaints against the police. It is important to emphasise that. The new clause is not an attempt to take away the reference to the procurator fiscal. I should not be in favour of it if it were. Cases that presently go to the procurator fiscal properly go to him. We must consider the danger of double jeopardy. I would be the last person to approve a system that put police officers at risk of double jeopardy. No hon. Member who has contributed to the debate would favour such a system. 5.30 pm The Labour Government's proposals, which were never put into a Bill, were that when a person was visited by a police officer after making a complaint he should not be asked whether he wanted to go ahead with the complaint but should merely choose whether he wanted the complaint investigated by the assistant chief constable—the existing arrangement—or by an independent panel. When the panel had investigated a matter, the complainant could not say that he was dissatisfied with the panel's decision and wanted the matter investigated by the assistant chief constable. We want to avoid that possibility and the new clause would avoid it. The existing system of investigating complaints against the police could continue in parallel with an independent system. We should not dismiss that possibility. I hope that the Minister will not simply say that the Government are satisfied with the existing position. I am sure that all hon. Members know of cases of constituents telling us that they want to make a complaint against the police. When we write to the deputy chief constable, he sends a chief superintendent—never anyone below that rank—who is always in uniform, to interview the person concerned, not about the complaint, but about whether he wants to pursue it. On many occasions I have had phone calls from desperate people—usually women—complaining about the police, and within two or three days they come back and tell me that they do not want to pursue the case. Subsequently, I have received a letter from the assitant chief constable or a deputy chief constable telling me that the woman has been interviewed, has changed her mind and is satisfied. Will the Minister give us a commitment to take this matter to the Police Advisory Board and bring forward proposals for an independent element in the investigation of complaints against the police? The independent element in investigations of complaints has spread far and wide. It already exists in the insurance industry, the legal profession, local government and the National Health Service. We cannot be like ostriches and stick our heads in the sand and pretend that nothing has changed. Events have moved on, and there has never been a better time for Ministers to encourage the people of Scotland by assuring them that there will be a thorough examination of the matter, with the possibility of introducing a Bill. I should prefer a Bill, rather than the new clause, so that we could set up a detailed and properly thought out system to give the Scottish people confidence that their complaints will be properly examined. The police could avoid much ill will if, now and again, chief constables admitted that their officers were wrong and sent letters of apology. In 14 years of representing constituencies throughout the central region, I have yet to receive a letter of apology from the police, even in cases where it was obvious to the blind that the police were in the wrong. Part of the problem is that chief constables always seem to think that their officers can do no wrong. That is not true in any walk of life.
Mr. Robert Hughes
My experience is different from that of my hon. Friend. When the police have found that a complaint was justified, the chief constable has written to me and often written personally to the complainant. I should not like it to be thought that the position described by my hon. Friend is universal.
I am grateful to my hon. Friend, because, if his experience is different, I should not like it to be thought that what I have said about chief constables applies throughout Scotland. However, my experience makes me wish that, just now and again, chief constables would admit that their officers were wrong and would apologise. I leave it at that.I hope that the Minister does not give us a head-in-the-sand reply, but will assure the people of Scotland that this matter will be dealt with in a way that its importance deserves.
Mr. George Foulkes (Carrick, Cumnock and Doon Valley)
I apologise for arriving at such a late stage in the debate. I shall be brief and raise only one point. I should have preferred to be able to give the Minister notice, but the matter relates to confidence in the police and to the independent investigation of complaints.I know that the Minister is aware of the circumstances surrounding the matter that concerns me, because he and the Secretary of State were courteous enough to arrange a meeting with me and my hon. Friend the Member for Glasgow, Cathcart (Mr. Maxton) to discuss the matter. As a preamble, I stress that public confidence in the police is extremely important. I go out of my way not to encourage casual or easy criticism of the police or unnecessary complaints. However, I pass on genuine complaints and pursue them as vigorously as I can within the existing structure, though I feel strongly that an independent element in the investigation of complaints is necessary. Hon. Members will recall the controversy and delay that surrounded the publication two years ago of the Scottish Office report on sexual assaults. It appears—my hon. Friend the Member for Cathcart can confirm this—that part of the problem was that, following a heated meeting at the end of March 1983, it appears that an attempt was made by senior officers of Strathclyde police, including the deputy chief constable, to discredit the Scottish Office research unit that had produced the report. That serious allegation was made to my hon. Friend the Member for Cathcart and me by senior officials of the Scottish Office. The conclusions reached by the research officers in their report—about the treatment of victims and about other aspects—were challenged by the police. At the end of the day, when it became increasingly clear that the points ut forward by the deputy chief constable and senior police officers could not be substantiated, an internal inquiry was carried out by the chief constable. There was no independent inquiry and no opportunity for an investigation outwith the context of the police. The result of that internal inquiry was simply a letter of apology—admittedly, it was a clear admission that there was nothing to substantiate the allegations against the researchers—and internal discipline by the chief constable, which amounted to a personal reprimand of the senior police officers concerned, although we are not sure whether that included the deputy chief constable. My hon. Friend the Member for Cathcart and I were assured by the chief constable that none of the detail of that internal discipline will appear on the records of the police officers concerned. Is it not strange that an internal inquiry resulted in such a mild reprimand, when a serious allegation had been made, challenging the integrity of reputable Scottish Office researchers and attempting to stop the publication of a Scottish Office report? That must undermine confidence in the police. Accordingly, I have today tabled a question for written answer urging that a person be appointed to carry out an independent inquiry into the allegations. There clearly was a heated dispute between senior Scottish Office officials and the Strathclyde police. Continued co-operation between the police and the Scottish Office is important. Research projects are taking place now, and there will be future research projects, and co-operation is necessary in those undertakings. The Scottish Office and Members of Parliament must feel sure that there will not be a repetition of that type of case, with the police, on the flimsiest of evidence—because they do not like the conclusion of a report—challenging the integrity of researchers. I hope that the Under-Secretary will agree that the least that should be done is to appoint an independent person—someone who has the confidence of the police and the Scottish Office—to carry out an inquiry, to report to the Secretary of State and to ensure that that report is published.
Mr. Tam Dalyell (Linlithgow)
Having represented Bo'ness for the time when it was in Central region, I appreciate the significance of the point raised by my hon. Friend the Member for Falkirk, East (Mr. Ewing) in relation to his constituency.Having listened carefully to what my hon. Friend said, I wish to put on record my thanks to the West Lothian police for their endeavours in cases raised by me. In fact, I have no need to contact the chief constable other than in exceptional circumstances. I approach the chief superintendent, David Scott, who—because there is an understanding between us—sends an appropriate policeman, depending on the case, to find out what the trouble is and to get at the truth of the matter. My experience has been that the Lothian police have looked sensitively and sensibly into any point that I have raised. I may be naive about that, but I do not think so.
The Parliamentary Under-Secretary of State for Scotland (Mr. Michael Ancram)
I appreciated the remarks of the hon. Member for Linlithgow (Mr. Dalyell), as will the police, because while in this debate hon. Members have not sought to diminish confidence in the police, they will appreciate that the police often feel that a number of hon. Members are sometimes less than fair to them. That is why the remarks of the hon. Member for Linlithgow will be appreciated not only in his area but more widely.The hon. Member for Carrick, Cumnock and Doon Valley (Mr. Foulkes) said that he had not managed to give me notice of the point that he raised. Perhaps I should congratulate him on managing to raise this issue because, as he is aware, it was not the subject of a complaint made against the police at that stage. As he said, it related to a number of discrepancies between material seen by researchers and material available in the police office, and that was the matter under investigation. It was an internal investigation relating to three minor discrepancies only. The hon. Gentleman will be aware that the reasons for the discrepancies were patent on looking at the various documents. They related—certainly in one instance, if I recall correctly—to the difference between what was effectively, on the one hand, a statement that had been taken down and recorded and, on the other, a precognition. I do not think that the hon. Gentleman suggested that those discrepancies were anything other than that. The hon. Gentleman seemed to suggest that had the matter been dealt with in a different way, a different conclusion would have been reached. Having looked into the matter, having satisfied myself that the discrepancies were explainable, and the Scottish Office having received an apology from the chief constable, I believe that that is the end of the matter. It was perhaps unfortunate that the matter arose at the same time as the police, as they legitimately can, were expressing their views on the substance of the report. Their views in that respect were not a matter for investigation, nor should they have been. They were reactions which the police were entitled to give us at that time. In raising the matter, the hon. Gentleman has not provided any evidence or information to suggest that any further action requires to be taken. Indeed, I suspect that on reconsidering what he said, he will see that he has, in a sense, blown up a matter that has been dealt with effectively and to the satisfaction of all the parties concerned.
If the truth is as the Minister says—that there were only minor discrepancies in three reports, and he gave my hon. Friend the Member for Glasgow, Cathcart (Mr. Maxton) and me an opportunity of reading those reports—how does he explain the fact that such a heated meeting took place at the end of March 1983—and both sides described it to us as heated—that there was then an attempt to substantiate the criticisms of Strathclyde police to the effect that the report should not be published; that there was then an internal inquiry by the chief constable, who told us that he put other things aside to carry out that inquiry; and that there followed a letter of apology and disciplinary action against senior police officers? Will the Minister explain the matter further, as the two issues do not seem to equate?
I do not see in what way the hon. Gentleman says that they do not equate. Obviously, when there was a difference of opinion which had led to certain views being expressed, it was important for that difference to be sorted out. Under the procedures which were adopted, the differences were investigated, the discrepancies were discovered—as I said, they were patently explicable—and a letter of apology was then sent. I believe that that was the correct way to go about it, and the apology was accepted by the Scottish Office as a conclusion to the matter.Hon. Members will recognise that we are going over well-trodden ground. As they have pointed out, the issues with which the new clause is concerned have been debated on a number of occasions over the years. I appreciate what the hon. Member for Glasgow, Cathcart (Mr. Maxton) said, that he himself appreciated that his new clause, as drafted, was not capable of being sustained by the House, but that he saw this as an opportunity to debate the principles behind it. I concede the sincerity of the views that are held on both sides of the House on this matter. I do not think that I need to go into the details of the procedures in Scotland, because they have been gone over on many occasions, and were referred to by several hon. Members who spoke in the debate. However, let me say that there are two distinct strands. First, complaints from which a criminal offence may be inferred must, by law, be referred to the regional procurator fiscal for investigation. At present they amount to about 55 per cent. of all complaints dealt with, so that on average more than half and arguably the most serious complaints are already subject to independent scrutiny. I do not think that that will be disputed. I was a little puzzled by the comments of the hon. Member for Paisley, South (Mr. Buchan), because I could not gather whether he was suggesting—I trust that he was not—that the system of procurator fiscal investigation was anything other than independent.
The point that I was making was much more simple, but crucial. It is not enough for the law to be right. It has also to be seen to be right. I regret to say that most people would tend to regard even a reference to the procurator fiscal as no substitute for a known public panel such as is suggested in the new clause. People regard the procurator fiscal as in some way a part of the great mystery of the legal process. That is what I was dealing with, and that is the important matter to which the Minister should address his mind.
The hon. Gentleman is raising far wider issues about the independence of the prosecution system in Scotland. If he wishes to suggest that the system is not independent, he should establish his grounds more clearly. It is not only a matter of those particular complaints being investigated by the procurator fiscal. Where there is an inference of any criminal offence, it is required that the matter is considered by a Law Officer as well. Complaints can even go to the top of the Crown Office. I find it hard to accept from the hon. Gentleman that there is anything in this part of the system that he could regard as anything less than equitable and independent.
I do not see how the Minister fails to understand this. Because he is part of the system, he thinks that the entire population of Scotland are part of the system. They are not. They do not know how it works. They know that there is a mystery and that there is a man called the procurator fiscal to whom the matter is sent and then discarded. That is all that they know. We are dealing with people who get into difficulties and who do not understand the mysteries of the legal trade. I know that the Consevative party is full of advocates and so on, but that is not very much to our comfort.The Government must not hold that mystery to themselves. Why can they not establish an outside body or panel, with lay people of some intelligence, who are not involved in the mysterious apparatus of the procurator fiscal? That is what we are saying. Law and justice must not only be done, but be seen to be done, and be understood in the process of being done. That is not the case when the matter is referred to the procurator fiscal and, with respect to the Solicitor-General, even to a Law Officer, and then discarded. The system must be opened up, be seen, be understood and thereby be accepted.
If the hon. Gentleman is saying that there is not enough understanding or information on how the system works, I shall deal with that in a moment. My hon. and learned Friend the Solicitor-General informs me that in all those cases a full letter of explanation of how the system works is sent to each person.
Dame Judith Hart (Clydesdale)
Will the Minister give way?
I shall give way in a moment, but hon. Members must allow me to develop my arguments a little.
Dame Judith Hart
It is a very important matter.
Very well. I give way to the right hon. Lady.
Dame Judith Hart
This is a rather small but crucial point. If a Member of Parliament writes to the procurator fiscal raising some questions of doubt about particular cases, a letter comes back from a Law Officer saying that the Law Officer replies to all letters written to the procurator fiscal. There is no way that an individual can get a reply from a procurator fiscal. Even a Member of Parliament cannot get such a reply.
It is important that we establish the basis of the complaint. I understood the hon. Member for Falkirk, East (Mr. Ewing) to say that it was his understanding of the new clause that it was in no way supposed either to duplicate or to replace the present procurator fiscal system because it was regarded as independent. If the right hon. Member for Clydesdale (Dame J. Hart) is saying that the difficulty is not whether it is independent, but that it is insufficiently understood, giving rise to a feeling that it is a part of the establishment so that people are suspicious of it, that is different from saying that as a system it is wrong because it is not acting independently.I hope that the hon. Member for Paisley, South takes the same view as the hon. Member for Falkirk, East and, indeed, as the shadow Secretary of State for Scotland, the hon. Member for Glasgow, Garscadden (Mr. Dewar), to judge from the nods that he has been giving me. I understand that the new clause is not critical of that part of the complaints procedure.
Mr. Robert Hughes
We know that 55 per cent. of all complaints go to the procurator fiscal anyway, which is good. However, there is a difficulty. I know of a case that was raised well over 12 months ago. I shall not give the details of it, but each time I write to the chief constable to ask what is happening he says that the case is before the procurator fiscal and he is awaiting his reply. I do not know what the outcome will be, but I guarantee that if the procurator fiscal decides that it is not a case for prosecution, my constituent will feel that there has been a conspiracy, during which 12 months have elapsed. We are anxious to make it absolutely clear that the procurator fiscal is independent. How do we deal with the question that I have raised?
I understand that the outcome is eventually made known, and the complaint may relate to the time that that might take. My hon. and learned Friend the Solicitor-General reminds me that in many of these cases there is a requirement to wait, for instance, for the outcome of another trial that might be taking place. Therefore, there are circumstances in which delays are inevitable. The hon. Gentleman was trying to make my speech for me. I shall not be drawn into that, except to say that I hope there is a general acceptance that the independent scrutiny is correct.I referred to two strands. The second is complaints which imply that a disciplinary offence may have been committed, and which are investigated under the direction of the deputy chief constable of the force. Such investigations are undertaken by an investigating officer who is at least of the rank of inspector and wholly unconnected with the matter under investigation. Such complaints could cover matters such as discreditable conduct, neglect of duty and so on. In a sense, the hon. Member for Aberdeen, North (Mr. Hughes) strengthened that side of the system by suggesting that the police themselves are keen to root out what he called bad eggs. That is right. There is no incentive for them to maintain in the police force officers who, at the end of the day, will bring the police force into disrepute. Therefore, there is generally an impetus in that direction. The hon. Member for Paisley, South asked particularly about complaints arising out of the miners' dispute last year. In reply to a written parliamentary question on 14 December 1984 I informed the hon. Member for Dunfermline, East (Mr. Brown):
I do not have any more recent figures, but, given the date of that answer, it is unlikely that they are very much higher than that."I understand that 23 such complaints have been received by the police."—[Official Report, 14 December 1984; Vol. 69, c. 621.]
Can the Minister tell us the outcome of the complaints?
Without notice, I would not be able to do so. The hon. Gentleman asked a specific question about numbers. I hope that I have managed to answer that.The real issue facing the House is whether the existing procedures are inadequate. Listening to the debate, it has been my impression that there are strong feelings—there have been in all the previous debates—but that there are no substantive facts to show that the system is working inadequately. The hon. Gentleman knows the view that has been taken by the Government on several occasions, not only in debate, but in written answers. My right hon. Friend the Secretary of State said on 15 December 1983 that we had looked carefully at the matter, and
I remind the House that the Home Affairs Committee report, House of Commons No. 98-I of 1982–83, did not point to any shortcomings in the Scottish system. Although the Committee concentrated on arrangements in England and Wales, it took evidence from Scottish witnesses and had something to say about Scottish procedures. Paragraph 42 states:"concluded that no case has been made out for introducing radical changes to the present arrangements."—[Official Report, 15 December 1983; Vol. 50, c. 530.]
6 pm Paragraph 43 continues:"A system of local Crown Prosecutors modelled on the Procurators Fiscal would provide the most promising framework for the investigation of complaints against the police, and we would favour this solution from among the various options we have considered."
I think that that is a fair commendation of the present system in Scotland which we cannot afford to ignore today."If we could be certain of the establishment of a Crown Prosecutor system in England and Wales within say, the next five years, we would not find it necessary to suggest major alterations in police complaints procedures in the meanwhile."
Does the Minister accept that those comments related to matters currently referred to the procurator fiscal? The hon. Gentleman has understandably made considerable play of the fact that the new clause refers to the important but more limited area of potential disciplinary offences by policemen. The Home Affairs Committee considered the Scottish scene and drew parallels in a very different context. A lawyer might argue that the Law Society of Scotland is fairly ruthless and efficient in dealing with complaints against solicitors, but I am sure the Minister will agree that that is no argument for saying that there is no point in having a lay observer.
I accept that. To justify the hon. Gentleman's case, however, we need substantive facts to show that the present system is not working. I appreciate that hon. Members have strong feelings about this, as the debate has shown, but no substantive facts different from those put forward in previous debates have been brought forward today to suggest that the Government should change their attitude.
What does the Minister regard as a substantive fact? He has heard the opinions of Members from four different political parties, including a former Minister of his own party, who was chairman of a police committee. If opinion does not weigh with the Minister, what kind of fact does he regard as persuasive? Do we have to bring to his notice all the dissatisfactions that we have experienced and on which we drew in making our case? We did not think it appropriate to drag all those instances into the debate, because of the potential embarrassment to the individuals involved. What does the Minister mean by facts? Has he an open mind? Will he accept the view of the hon. Member for Falkirk, East that the matter should be referred to the Police Advisory Board?
The Government have taken the view, which I am arguing again today, that the present system works. I came to the debate to hear whether there were any specific instances in which the system had not been working, especially since 1983.After the Select Committee reported, we issued a consultation document seeking comments on recommendations which had implications for Scotland. Although it did not specifically canvass views on changes in the basic complaints structure, the evidence suggested overwhelmingly that the present procedures were operating satisfactorily. As my right hon. Friend the Secretary of State made clear in his written answer, we therefore concluded that the case for radical change had not been made. My right hon. Friend went on to say, however, that specific areas had been identified in which improvements could be made and in which guidance was desirable. My hon. Friend the Member for Dumfries (Sir H. Monro) made the valid point that the system required some rectification in terms of the information provided about the way in which the system worked because there was a good deal of misunderstanding and in some cases, as I know from my constituency experience, no understanding at all of what the system actually entailed. For that reason, we issued a circular to chief constables and police authorities last summer.
The Minister has been most generous in giving way. Does he accept that the consultation document specifically ruled out changes of the kind proposed in the new clause? If the Government send a consultation paper to any group of people making it clear that matters A, B and C are not for consideration, the responses will reflect that preconceived attitude on the part of the Government.As for evidence that the system is not working, why did the vast majority of the lay people on the Police Advisory Board, who are closer than we are to general public opinion, take the view in 1978 that there should be an independent element?
I cannot answer questions about what happened in 1978 because I was not there and the hon. Gentleman was doing my job. As my hon. Friend the Member for Dumfries said, it is important to appreciate that there is uncertainty about the system in the public mind due to lack of understanding. That is why we issued the circular to chief constables and police authorities in the summer. That circular gave guidance on the appointment of investigating officers and the circumstances in which they might be drawn from another force. It also emphasised the need to give complainants as full an account as possible of the outcome of the investigation. That is important in the light of what has been said by many hon. Members today.We also prepared a leaflet, in consultation with the police associations, explaining the complaints procedure for the benefit of members of the public who wished to lodge a complaint. The circular recommended that that leaflet be used by all forces so that anyone wishing to lodge a complaint would be given sufficient information about the procedure at that stage so that there would be no question of people not understanding it. In other words, since the last debate we have taken steps, albeit within the existing framework, to make certain necessary refinements. In my view, there is no point in making major changes of the kind suggested in the new clause purely for the sake of making them. The need for such changes must be shown, and I do not believe that such a need has been shown in this debate. I have certainly not been persuaded of the need for an independent panel. I do not believe that there is evidence of a widespread lack of public confidence in the present system or any reason to believe that public confidence would be significantly increased by the establishment of an independent panel. I believe that the public at large still repose a great deal of faith in the integrity and impartiality of the police service. That applies to the whole range of police activities. I have no doubt that the present procedure, with the independent procurator fiscal involvement in criminal complaints, serves the purpose well. For that reason, I cannot accept the new clause.
I have heard some long, dreary speeches saying no, but the contribution from the Under-Secretary of State for Scotland today must have been the longest and dreariest.
It was all written out for him.
Yes, it was all written long before the debate took place, so the Minister could not have paid much attention to what was said in the debate. Members in all parts of the House—including Conservative Back Benchers and, indeed, the chairman of the Conservative group of Scottish Members—made the case strongly and clearly, but the Minister was still not prepared to change his mind.Specific details were not given in the debate, but if the Minister believes that the public at large—especially the large sections of society who are disadvantaged or unemployed—have enormous confidence in the police, he must be living in cloud-cuckoo-land. He should come and see the alienation in parts of Glasgow not just from the police but from authority generally. It is not good enough to say that there is enormous confidence in the police. That is not the case. The reply by the Under-Secretary of State is typical of the general secrecy in which the police and the Government like to operate. My hon. Friend the Member for Carrick, Cumnock and Doon Valley (Mr. Foulkes) was right to raise those aspects of the sexual offences report. This shows the way in which the police are prepared to bring pressure to bear to ensure that no criticism of them is published. The Under-Secretary of State made great play of the fact that the differences were minor. If the differences had been major, there could have been a genuine difference of opinion between the two sides. Two different reports could have been examined, mistakes could have been made and the differences would have been evident. But the differences were so minor that they appear to have been used deliberately by the Strathclyde police to discredit the whole report. The fact that the discrepancies were so small worries me. Minor differences appear to have been used to discredit the research. It is all right to say that one disagrees with the report, but it is disreputable to try to discredit those who researched the report. I hope that the Under-Secretary of State will intervene and confirm what has happened in the following case. I have been told that researchers have investigated the way in which the provisions of the detention clauses of the Criminal Justice (Scotland) Act 1980 have been carried out during the past five years. I have been told that an interim report was prepared by researchers in the Scottish Office and that it has gone to the chief constables. I have been told also that, at meetings during the past few weeks, the chief constables have said that they do not wish that report to be published. They have asked the Scottish Office not to publish it and to cease monitoring the detention clauses. That interim report was not overly critical of the police. It did not say that they were misusing their powers. Because the report contains some criticisms of the police, the chief constables have said that it should not be published. Is that the case?
The decisions on whether to publish these reports and the last report are not matters for the police. They are matters for my right hon. Friend the Secretary of State and me.
I did not suggest anything else. I used the word "asked", as the hon. Gentleman will see if he checks the Official Report tomorrow.
The hon. Gentleman said "said".
I said that the police are asking and saying that the report should not be published. I have been informed that, at a meeting last Thursday between officials and chief constables, an agreement was reached that the report would not be published and that monitoring would cease. Will the Under-Secretary of State say whether that is the case? Will the report be published, or will it not be published? Will the monitoring continue? If so, will hon. Members be able to table questions about the number of detainees and the numbers who have been charged, and so on? Is the hon. Gentleman prepared to answer my questions?
I understand that the first draft has been prepared, that it has been seen by the chief constables and that they have commented on it. As I said before, decisions on whether these reports are to be published are matters for my right hon. Friend the Secretary of State, on my advice. Obviously, I cannot pre-empt those decisions before I have seen the draft report.
We shall be interested to note whether this report ever sees the light of day and whether monitoring continues.The reply by the Under-Secretary of State and the reaction of the police to research and reports show that they are so super-sensitive to any criticism that they create the type of problems about which we have talked. These actions make the public suspicious and make them feel that there is no proper way of getting at the truth. The police put up a wall of secrecy between themselves and the public. If they operate in that way, there will be further problems with public relations. Having said that, I accept that the clause is faulty. I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
New Clause 4
Restriction On Sale Of Alcohol In Vicinity Of Sporting Events
'After section 74 of the Criminal Justice (Scotland) Act 1980 there shall be inserted the following—
"74A. Where the Secretary of State has designated a sporting event under this Act, he may instruct the closure of premises which sell alcohol for consumption otherwise than on those premises, within a radius of 1 mile from the designated sporting event.".'.—[Mr. Maxton.]
Brought up, and read the First time.
I beg to move, That the clause be read a Second time.
The Solicitor-General for Scotland
I hasten to assure the hon. and learned Gentleman that I have only one more motion. I promise that I shall then be quiet for the rest of the evening.
Mr. Bruce Millan (Glasgow, Govan)
This could affect my constituency.
I do not think that is the case. I think that my right hon. Friend's constituency is not within a one-mile radius from Hampden park.
Ibrox park is.
Ibrox might be, I agree.Those of my constituents who live in the Hampden park area have asked: Is it logical, having said that there should be no drink within the grounds or on buses and trains going to the ground, that drink should be allowed near the ground? My constituents suffer from this problem. This is a recent phenomenon in the Hampden area, because the Mount Florida area used to be one of the dry areas of Glasgow. There were no pubs or off-licences. A change in the licensing laws has meant that there are off-licences. People purchase cans of beer and bottles of whisky from the off-licences and drink them in the street before going into the ground. They do not get drunk, but the empty cans and bottles finish up in the gardens and closes of the people living in the area. Those people are entitled to some protection. There is some evidence that crowd behaviour improves if the authorities make it difficult for people to drink outside the ground. I went to one of the two league cup finals in Hampden on a Sunday afternoon. Of course, off-licences are not permitted to be open on Sundays. There is no question but that crowd behaviour on the two occasions on which matches have been held on Sunday afternoons was much better than it had been on other occasions, despite improvements in other areas. I think that it is logical to extend the drinking limitations. I am not saying that, on every sporting occasion taking place on a designated sports ground——
Yes, my hon. Friend is.
If my hon. Friend listens, he will know that I am not saying that these limitations should apply to every sporting event at every sports ground. The legislation makes it clear that all drink is banned at two specific areas—near a designated sports ground and at designated sporting events. I am referring to the latter. The Secretary of State might designate a game at Hampden, Ibrox or Parkhead.
Mr. Martin J. O'Neill (Clackmannan)
My hon. Friend said, "Murrayfield." It could have problems. There could be a crowd, and therefore it might be better to ban drink. The drink would be banned only for specified games. The Act defines the duration of a sporting event. It is two hours before the sporting event and one hour after. A limited period is affected. I hope that the Minister will consider an extension of the present powers. Everyone in Scotland agrees that the powers have had an effect on crowd behaviour at footbal matches, and possibly rugby matches at Murrayfield, over the past two years. We can only hope that the Government will introduce similar legislation south of the border rather than the piecemeal action that they are taking. The provisions of the new clause are a logical extension of the present powers.
Sir Hector Monro
I congratulate the hon. Member for Glasgow, Cathcart (Mr. Maxton) on his ingenuity in raising all kinds of topics. We have relatively few opportunities to discuss matters such as football hooliganism, and we should not therefore miss this one. The hon. Gentleman was correct to raise the subject.In England, the Football Association, the Football League and the clubs have been criticised for failing to act, but ideas are shot down before being fully discussed. The hon. Gentleman's proposal is worth considering although we can see all kinds of practical difficulties—for example, whether one mile from the ground is the correct radius. If there were a one-mile radius in Dumfries no one would obtain a drink at all. The geography of a place and the layout of the streets might make it impractical to have such a limit. Thee might be a frontier. People would be able to obtain a drink on one side of the frontier but not on the other. The matter must be considered carefully. There has been a successful change in attitude in Scotland since the legislation, following the McElhone report, introduced by my right hon. Friend the Secretary of State and my hon. Friend the Under-Secretary of State for Trade and Industry when he was the responsible Minister. Everyone within the United Kingdom now points to Scotland and says, "You have taken steps and set an example. The situation is infinitely better." People are saying to England and Wales, "Come on. Let us take practical steps also to show that crowd behaviour can be improved by controlling the consumption of alcohol." Scotland has dealt with drink on buses and trains. As we did when discussing the last matter, we commend highly the work of the police in assisting the stewards and clubs to make crowd behaviour more manageable. We shall never get rid of all crowd trouble. We must not be complacent. We must think of ways of improving the legislation for Scotland. The success that has been achieved in recent years is a splendid base on which to build. Other countries are jealous of the reputation of Scottish fans at home and abroad. I hope that in their interests other countries will follow Scotland's actions with regard to drink. I am perturbed to see that England may only be bringing in a ban at selected grounds. England must go the whole hog and ban drink at all grounds if there is to be an impact on behaviour. Trouble could arise if a small ground which has had no drink ban suddenly meets Arsenal or Chelsea or any first division club. The legislation must be all or nothing. I want to pay a warm tribute to the Football Trust and to the Football Ground Improvement Trust. They are funded by a percentage of football pools income. We should be grateful to the football pools promoters for providing that money. The trusts have enabled improvements to be made to terraces and fences. Television cameras have been installed to keep an eye on awkward corners. They can provide valuable evidence as to who starts hooliganism in a ground. It is now recognised, although it took a long time, that the behaviour of players on the field has a bearing on the behaviour of the crowds on the terraces and in the stands. The hon. Member for Cathcart has included the word "may" in the new clause. The hon. Gentleman's intention, were the Minister to pursue the matter, would be not to have a universal ban on one mile, or any specified distance, around a ground, but to provide the flexibility to cater for any type of sporting event where there may be difficulties. We should sometimes look a little further into the future and hope—it may take rather longer than we would wish—that in five or 10 years we shall wonder what on earth we were doing in the 1960s, 1970s and 1980s having all this hooliganism at football matches and other major sporting events. Discipline at home, in school and in the country may work itself through, and the standard of living and of behaviour may be much better than it sometimes is at some football grounds. I welcome the fact that we have had a chance to discuss the subject. It is right to air successes as well as disappointments over football hooliganism.
I see some deficiencies in the new clause, not in its drafting but in the practicalities of its application. My hon. Friend the Member for Glasgow, Cathcart (Mr. Maxton) is trying to protect those who live around Hampden park. The problem with a one-mile ban around Hampden park is that the trouble would merely be extended to those who live one mile and one yard from the ground. There would be pandemonium. Busloads of people would arrive with drink. If the drink is not allowed on the buses they might come by bicycle or other means of transport. They would bring the drink closer to the ground. Under the present legislation, such people would be stopped. They would not be allowed to take the drink into the ground.If there were a cycle race from John O'Groats to Wick, the Secretary of State would have to designate areas of a mile all along the route. That would not close the public houses, because my hon. Friend is prepared to allow public houses to remain open within the vicinity of Hampden park, but it would close the licensed grocers and the off-licences. I do not believe that his proposal is practical. On this occasion, my sympathies lie with the Minister, who will probably say much the same as I have. We have all seen a marked improvement in crowd misbehaviour since the introduction of the legislation. We welcome that, but to extend the legislation in the way suggested is not practical or welcome. There are sufficient powers now to enable the police to ensure that no one can enter a football ground under the influence of alcohol. People may not carry drink into the football park or premises, or consume it within the grounds. I implore my hon. Friend the Member for Cathcart to withdraw yet another of his new clauses.
I congratulate the hon. Member for Kilmarnock and Loudoun (Mr. McKelvey) on using his gimlet-like and razor-sharp mind to identify the deficiencies in his hon. Friend's clause, not least with regard the selectivity of the restriction. One can imagine the representations that would have been made to the hon. Member for Glasgow, Cathcart (Mr. Maxton) if he had made the provision any more wide-ranging.I agree with my hon. Friend the Member for Dumfries (Sir H. Monro) that this is a good opportunity for us to reflect upon our successes in dealing with problems at football grounds and other sporting occasions in Scotland. The matter is causing concern across the United Kingdom. The provisions of part 5 of the Criminal Justice (Scotland) Act 1980 have in the four years of their operation proved to be a success. Indeed, they are now proving to be a model for the rest of the United Kingdom. Scotland has set an example that we hope will, over time, be reflected further afield. In line with the instructions given to me by the hon. Member for Kilmarnock and Loudon, I must say that I am not convinced of the necessity for the new clause. The 1980 Act already creates offences of being drunk at a sporting event, or attempting to enter while drunk or in possession of alcohol or of a controlled container—for example, a bottle or can. At the ground, anyone who had been imbibing or who was carrying alcohol could be charged with the commission of an offence. That provision is better than a restriction in terms of mileage. The hon. Member for Kilmarnock and Loudoun identified the weakness in that idea. Carry-outs could be bought a yard outside the mile limit, but shops a yard inside the limit would not be allowed to open. I am satisfied that the range of offences within the legislative framework, and the associated powers, are entirely sufficient to reduce the dangers of disorder at sporting events in Scotland. No one can claim that hooliganism and drunkenness have been entirely eradicated, but there has undoubtedly been—as my hon. Friend the Member for Dumfries said—a marked improvement in football crowd behaviour since the new provisions came into effect. I therefore see little justification for further legislative change. The new clause seeks to restrict the sale of alcohol from off-licences near a designated sporting event. It would add nothing to the existing law as it affects football hooligans who try to take drink or bottles into the ground. In addition, the new clause would duplicate the existing powers of the licensing board which, on the application of the police, may close certain licensed premises to the public if it is in the interests of public safety or order to do so. I refer to section 66 of the Licensing (Scotland) Act 1976. The matter was considered by the McElhone working party, and it was felt at the time that that legislation was sufficient. As far as I am aware, those powers have never had to be used in connection with a football match, but I am advised that they have been used in other circumstances. The new clause is an unnecessary duplication of existing law, in an area where there is sufficient legislation to provide the safeguards that we need. This is a rare opportunity for us to pat ourselves on the back for the success of the 1980 legislation. I hope that the hon. Gentleman will withdraw the motion.
If I had thought that I was merely giving the Government an opportunity to pat themselves on the back, I might never have tabled the new clause.It is true that there has been a vast improvement. Everyone would congratulate the Government on it, and the Minister has rightly paid tribute to the work of the late Frank McElhone and his working party. Hampden park is perhaps more completely surrounded than some other sports grounds by a residential area, and the people living there suffer when big games take place. This year, an extra big game has been forced upon them by the action of the Government. People feel strongly that there should be more control over what happens in the vicinity of the ground. I take the Minister's point about the duplication of the licensing laws. Perhaps I should have a word with my colleagues in the licensing courts in Glasgow to see what they could do.
The hon. Gentleman has made an allegation that—with his love of accuracy—he will not wish to remain on the record. He suggests that the decision to transfer a certain game to Scotland originated with the Government. It was not a Government decision. It was a decision taken by the football authorities on their own initiative. The Government had suggested a change of date. I believe that the decision to move the game to Scotland was a compliment to the Scottish football fans and to the law on football matches in Scotland.
If we were not in the House of Commons, I would give the Minister a straight answer. The Minister must ask himself whether, if the Minister responsible for sport had not asked the Football Association to make a change in relation to the game, the game would be taking place at Hampden. It would not. It would be taking place at Wembley on 25 May.The decision about transferring the game may have been that of the Football Association, but the decision to take the game out of Wembley on 25 May was forced upon the FA by the Government. The FA knew that it had no option but to cancel the game altogether or switch it to Hampden. It was the Government's decision. I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
New Clause 5
Recording Of Questioning At Police Stations
'At the end of section 2 of the Criminal Justice (Scotland) Act 1980 there shall be added the following "Any questions put to a person and any replies given by him while in detention in a police station detained under section (1) above shall not be admissable as evidence in any subsequent trial unless they have been tape-recorded or video-taped and the said tape recording or video recording and a transcript thereof is lodged as a production in Court.".'.—[Mr. Matron.]
Brought up, and read the First time.
I beg to move, That the clause be read a Second time.I promise that this will be the last clause on which I shall speak this evening. I wish to begin with a quotation from the Committee stage of the Criminal Justice (Scotland) Bill 1980. It is from a speech by the hon. Member for Edinburgh, Pentlands (Mr. Rifkind) who at that time was the Minister in charge of home affairs at the Scottish Office. He was later transferred to the Foreign Office, and the Minister who is to reply is one of his successors. I tabled an exactly similar amendment during that Committee stage. The Minister said:
the proposal to tape-record interviews at police stations—"The Government's view quite firmly and quite clearly is that if the tape recording experiments which are presently being conducted in Dundee and Falkirk are shown to produce no insuperable difficulties, it is our firm intention to implement these proposals"—
I do not know what has happened during the past five years. A five-year delay does not seem to me to be the earliest opportunity. We have had no published reports on the experiments in Falkirk and Dundee. The time has come for the Minister to give us some facts about those experiments, to publish any outstanding reports on them and to explain why the commitment given by his hon. Friend has not been carried out. Have the experiments produced insurmountable problems? I accept that a problem has been caused by the judgment of Lord Jauncey concerning tape-recorded evidence being produced in court, but tape recordings have been used in other courts. How many people have been interviewed? How long are the interviews? I have heard that tape-recorded interviews are considerably shorter than is normal. What is the average length of a tape-recorded interview? What is tape-recorded? I believe that, in Falkirk, only the caution, the charge and the accused's response are recorded. In other words, there is not a full recording of the whole interview. I believe that there is some evidence of police suspicion of tape-recorded interviews and that a much larger percentage of interviews are now conducted outside police stations, either in the suspect's home or in the police car on the way to the station. What are the police saying about the experiments? During proceedings on the Criminal Justice (Scotland) Bill it was said that detainees might refuse to answer questions with a tape recorder running. Have people refused to be interviewed with a tape recorder running? If so, how many? After five years, and the promises that were made in 1980, we are entitled to know the answers to those questions. We want to know what is going on and when the Government will fulfil their commitment to enact the Thomson report, which proposed that interviews should be tape-recorded and that the tape recordings should be used as evidence in court. Such a procedure would help with police relations and, in regard to challenges made by lawyers about what has and has not been said, the police would be helped as well. The hon. Member for Pentlands was prepared to accept that. Is the present Minister?"at the earliest opportunity. We do not see the question of resources as significant in implementing such proposals."—[Official Report, First Scottish Standing Committee, 13 May 1980; c. 364–65.]
On a point of order, Mr. Deputy Speaker. I have also put my name to the new clause and I am in some difficulty. My hon. Friend the Member for Glasgow, Cathcart (Mr. Maxton) has asked several questions, and this is the only opportunity that we shall have of getting answers to them. If I were to speak before the Minister, I should merely add to, buttress or repeat the questions that my hon. Friend has asked and I should not be able to speak again on Report unless moving a motion. Would it not therefore be better if the Minister answered my hon. Friend's questions now so that we can have a meaningful debate?
Mr. Deputy Speaker (Mr. Ernest Armstrong)
That is a matter for the Minister, not for me.
As the hon. Member for Glasgow, Garscadden (Mr. Dewar) has decided to hold his fire for the moment, perhaps I can deal with some of the issues raised by the hon. Member for Glasgow, Cathcart (Mr. Maxton).I think that the hon. Gentleman knows that my right hon. Friend the Secretary of State has always made it clear that he intends, for consultation purposes, to publish the results of the recent study into the tape-recording of police interviews with suspects in Scotland. The final report of that study, which deals with many of the questions that the hon. Gentleman asked, is expected to be submitted to my right hon. Friend shortly. We expect to make a statement about the Government's plans before the summer recess. It has taken time, but I am sure that the House appreciates that a good deal of evidence was collected during the experiments. I am sure that the hon. Member for Cathcart realises that, in those circumstances, it would be inappropriate for me to answer his specific questions, which are much more a matter for consultation.
Mr. Bruce Millan (Glasgow, Govan)
Will the statement relate to conclusions on which consultation is asked for, or will there be genuine consultation?
My right hon. Friend has said that he will publish the report for consultation. The right hon. Gentleman must wait to see what is in the report, but a statement will be made before the summer recess. I am sure that the hon. Member for Cathcart will agree that it would be inappropriate for me to pre-empt any decisions that might be made after publication of the report.Any decision to introduce tape-recording of police interviews with suspects in Scotland would not require new legislation. The new clause reveals some of the difficulties, especially with the admissibility or inadmissibility of evidence. For example, it might not be possible for the police to tape an interview. There might be an equipment failure, the police station might be in a remote area, or it might be necessary to travel a long distance to a fully equipped station. The experimental study has shown that a small but significant number of people refuse to be interviewed on tape. In such cases, the new clause would make statements thus obtained inadmissible in court. The hon. Member for Garscadden might like to mull over that before we debate this matter more fully when the time comes. Moreover, the new clause does not mention the considerable number of people who attend police stations voluntarily or who are detained under section 2 of the 1980 Act in premises other than a police station where there might not be tape recorders, but where statements which form an important part of the evidence might be made. There are many complexities, which I am sure the hon. Member for Garscadden will enjoy when he treads through them. I am glad to have been given the opportunity to say that we shall make a statement before the summer recess. I hope that in the circumstances the hon. Gentleman will withdraw the motion.
I am grateful to my hon. Friend the Member for Glasgow, Cathcart (Mr. Maxton) for tabling the new clause. It was obviously meant to be an exercise in information gathering, and we have succeeded in obtaining some quite interesting information from the Minister. I was relieved to hear that there would be a statement before the summer recess, because the situation was bordering on the scandalous. The delays have been so lengthy that my colleagues have been rightly concerned about the total lack of action by Ministers.This argument, in its immediate past, dates from the first version of the Criminal Justice (Scotland) Bill and, I suppose, from the Thomson report. Thomson produced a package with three principal parts. The first was detention for questioning, which became section 2 of the 1980 Act, the second was judicial examination, which became section 6 of that Act, and the third was the tape recording of the questioning of suspects in police stations. However, that was not included in the legislation. Some of us have always thought that this matter should be considered very carefully. To be fair, that view was widely shared by Conservative Members. I am sure that the first amendment calling for tape recording, which was tabled in the course of two attempts to put that Bill onto the statute book, was initiated by the hon. and learned Member for Perth and Kinross (Mr. Fairbairn). He continued to be enthusiastic when he become Solicitor-General for Scotland. On 22 July 1980, as Solicitor-General, he said:
The hon. and learned Gentleman then referred to the possible video taping of interviews, and rightly dismissed it on the ground that it was an unnecessary complication that would delay matters. He said:"The experiments in Dundee and Falkirk are going well. We shall be making a report in November or December on the initial situation."
That is what was said as long ago as 1980. Until today no final date had been given for the endless consideration arid sort of ministerial dwalm—a form of paralysis—that seems to have affected the Under-Secretary of State, the hon. Member for Edinburgh, South (Mr. Ancram) and his colleagues. It is stretching things a little even to refer to the recent study. The experiments in Falkirk and Dundee, and ultimately in Aberdeen and part of Glasgow, ran from 1980 to 1983. Thus, however comprehensive the consideration and however ingenious the complexities, I would have hoped for something by now. However, we must be thankful for small mercies. The Minister refused to reply to the specific questions of my hon. Friend the Member for Cathcart on the ground that it would prejudge the issue to do so, but he then went on to give us little snippets of information about the difficulties that might arise. Someone of a more suspicious frame of mind than me might think that he was approaching the whole issue with a fair degree of scepticism. However, I accept that there are difficulties. I know that there have been problems in the courts and I know from conversations with police officers—they were not a solicitor's conversations but very helpful conversations—that there is a difference of opinion among those officers who have experience of operating the system. Obviously, we shall await the report with an open mind, but I hope that there will not be any insurmountable difficulties, and that any difficulties will be considered on their merits, on the basis of the practicality of the system. However, I have been worried, because I have been watching events in England and Wales. The Minister is no doubt well aware of them. England and Wales were, for a while, a long way behind us, but now the Government have, in principle, openly committed themselves to the change. The Minister is probably more familiar with section 60 of the Police and Criminal Evidence Act than I am, but there a statutory duty has been placed on his colleagues south of the border to introduce a system of tape recording parallel to the system that we have been considering for so long. In fairness, I should point out that that section needs implementation and there is no timetable. The Minister responsible has made it clear that experiments are still running in England, and will, I think, run for the next two years. Therefore, I am not suggesting that tape recording will appear instantly in the English system, but at least there is a clear Government commitment on the statute book in section 60 of that Act. I do not want to labour the point, but it might be useful to put a few facts on record. Home Office research study No. 82 was published in 1984. It was an interim report by Carol Willis. I shall weary the House with the briefest of quotes from the "summary and conclusions"."We should not, however, introduce anything at this stage to delay what was the wish of the last Government and is the wish of this Government that recording should be proceeded with, and should be found to have a satisfactory future provided that no appalling difficulties stand in its way."—[Official Report, 22 July 1980; Vol. 989, c. 409–410.]
the point made by my hon. Friend the Member for Cathcart——"these preliminary results are encouraging in one important respect: they show an absence of any evidence that the data collected are invalidated or made meaningless through the systematic avoidance of tape-recording by the police. This goes to support the anecdotal evidence available to the researchers that the police officers involved in the trials have generally taken to tape-recording with commitment and enthusiasm. The preliminary data show that interviews with suspects have become slightly less frequent and shorter"——
There may be a difference in police experience north and south of the border, but the comprehensive interim report that has been produced—remarkably promptly, compared with the Scottish experience—suggests that the police found the experience very positive. Of course the police are not the only interest involved, but they are an important interest. We have always maintained that if such a system was introduced, it would act as a safeguard not only for the suspect and the courts but for the police, as it would guard against the all-too-easy defence that they had acted improperly in some way in obtaining a statement or confession. The appearance of a report in the next month or two will greatly help this debate. Once the report is published, we should reach some conclusion within a reasonable period, but after proper consideration. The Minister said that there would be a statement before the summer recess. I take it that he means that a statement will be made on the Floor of the House about the Government's intentions and about the way in which the report will be handled, but as such phrases can sometimes be ambiguous, I have put that point on record so that there can be no misunderstanding about it. If we obtain the report within the timetable suggested, we may be able to make some progress on this important issue. Sadly, the delay and general dithering that has characterised the past three or four years—especially when compared with the speed of events in other parts of the country—does not reflect great credit on the Scottish Office."which goes to support the view that tape-recording has required a greater discipline in interviewing practices. There appears to be no evidence to suggest that tape-recording inhibits the suspects from confessing or making damaging admissions; nor do the results suggest any decrease in the amount of information about other offences obtained during interview."
I welcome the fact that the Minister has said that the report will be published and that a statement will be made. I gather that at least three interim reports have already been prepared and circulated. I think that the last was in 1982. I cannot understand why those reports were not published, and why there could not have been an on-going review of what was happening, rather than five years of experimentation. No one expected that it would take so long. Indeed, I am not sure whether the report will cover the whole five years or whether monitoring was stopped in 1982. Can the Minister help?
I think that the hon. Gentleman will find that it stopped at the end of 1983.
Even the period between 1983 and now is too long. However, I accept what was said by the Minister. Therefore, I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
New Clause 7
Committee To Look Into Problems Of Young Offenders
The Secretary of State shall appoint a Standing Commission on sentencing policy for young offenders, their custodial treatment, care assessment and rehabilitation; and the Chairman of this body shall be a senator of the High Court of Justiciary and shall report to the Secretary of State on any matters he sees fit to refer to them.".— [Mr. O'Neill.]
Brought up, and read the First time.
I beg to move, That the clause be read a Second time.I fully recognise that the new clause may contain drafting shortcomings. Therefore, the Minister may choose to oppose it. All that I am trying to do is to establish a forum for debate rather than prescribing an exact option which the Minister should embrace. My involvement in the issue stems from the fact that the Glenochil young offenders institution and detention centre are situated in my constituency. Before the boundaries were redrawn, Polmont borstal, as it as then was, was situated in my constituency, and on the fringes of my constituency, although it is in the constituency of the hon. Member for Stirling (Mr. Forsyth), there is the women's prison at Cornton Vale. Within the central belt of Scotland there are to be found, therefore, a number of penal institutions. I have seen at close hand the problems facing the prison service, and I have been able to monitor some of the Government's responses. My lack of satisfaction with the outcome of those responses leads me to believe that an independent advisory body is needed which would be capable of restoring public confidence in the prison service. There are very few votes in penal reform. Those who in the past have sought popular support by advocating repressive regimes and harsher sentences have found that it does not result in ballot box dividends. The electorate have felt satisfied until recently that those in prison probably deserve to be there. To be out of sight is to be out of mind, and the care of offenders is left to the prison service. It is only when something goes wrong that questions are asked. Because of the tragic events at Glenochil, there has been an increase in public interest. Public concern is rekindled whenever a fatal accident inquiry takes place and interest is reawakened when the report of the inquiry is published. Constant publicity and continual dripping of water on the stone has etched the word "Glenochil" upon public consciousness in Scotland. Public interest has changed from concern to a lack of public confidence in the sentencing and care of young offenders in Scotland, particularly at Glenochil. This is despite the fact that five public inquests have already taken place. The report of each fatal accident inquiry showed that the sheriff concerned was unable to establish a cause and effect link between the regime, either at the detention centre or at the young offenders institution, and the death. The Inspector of Prisons, who is independent of the Secretary of State, has also failed to establish any connection, but even this report has not allayed public anxiety. The exposure of the closed world of the prison service to the glare of publicity has had an effect upon the morale of the staff. To be repeatedly told that one's work is leading to the deaths of young men is bad enough, but to have brought home to one the apparent futility of one's efforts when another corpse is discovered has a devastating effect upon some of the best trained and most highly committed men in the service. There is nothing to be achieved by using these tragic deaths to vilify the staff or to make cheap capital out of attacking the system. Most of the members of the Scottish all-party penal affairs group have visited Glenochil and other Scottish penal institutions. Although we may not approve of everything that takes place in those institutions—and we have made our views known to the authorities and to Ministers—it is fair to say that those who advocate sudden and wholesale changes to the system, in particular the closure of institutions, do not have a great deal of evidence to support their case. Perhaps I have already dwelt for too long upon the sensibilities of the staff. They are important, but they are not so important as the anxieties of the families of the young men who are in prison. I am sure that every death is felt in the homes of all those who have sons in prison. The scale of the problem can be illustrated by the figures which have been collected. They were made available to me last week by the governor of Glenochil and cover the two institutions that are to be found at Glenochil. In 1984, there were 1,037 detention centre inmates. Of these, 75 were placed under suicidal observation for periods of between two and 60 days. A total of 138 days were served under suicidal observation. Of the 75 who spent 138 days under suicidal observation, 53 admitted to self-inflicted injuries before they were admitted to the institution. Of the 53, 10 had inflicted injuries upon themselves during the sentence. Up to 24 April 1985, about 30 inmates had been placed under suicidal observation lasting between one and 46 days. During the first quarter of the year this amounted to a total of about 235 days under suicidal observation. Of the 30 inmates, 14 admitted to self-inflicted injuries before sentence and six inmates had tried to mutilate themselves since sentence. Of the 386 inmates admitted to the detention centre in 1985 for the short, sharp shock, 30 of them have, in one way or another, displayed suicidal tendencies. The position is the same in the case of the young offenders institution. In 1984, out of 858 inmates, 89 were placed under suicidal observation for periods of between two and 365 days. Of the 89, 37 admitted to self-inflicted injuries before admission and 15 of them inflicted injuries upon themselves during sentence. Up to 24 April 1985, of the 225 inmates who were admitted, 24 had been placed under suicidal observation for between two and 92 days, amounting to a total of 489 days. Twelve of the 24 admitted to self-inflicted injuries before sentence and three have so far admitted to self-inflicted injuries during sentence. I have spent time upon these figures because they are significant. All these inmates have admitted to suicidal tendencies. I need not spell out the consequences for the prison staff of those young men being in prison. There is the overtime that has to be worked, the care required from the prison medical staff, the burden that is imposed on the social workers and the numbers of hours that psychiatrists and psychologists have to spend working within the prison service in such institutions. It is clear that Glenochil has been the subject of interest and concern. Staff and specialists, such as psychologists, tell me that despite everything they are doing they expect the problem to become worse. With fewer young offenders being given custodial sentences, those going to detention centres and young offenders' institutions are probably more difficult prisoners than ever before. We are seeing a concentration of potential problem prisoners. Although there has not been serious research to underpin what I am saying, I am sure that the Minister will have heard from his advisers that at the moment a qualititive change is taking place in the young prison population. We are now seeing the first wave of those who have gone through the process of solvent abuse into hard drug addiction. The damage which that process inflicts upon young people is such as organically to damage their brains, and it creates problems the like of which the prison system has never had to confront before to any substantial extent. Even with the speedy implementation of every recommendation in the report produced by Dr. Chiswick's committee on suicides and parasuicides in Glenochil and other institutions, the problem will not go away. I hope that that will reduce the difficulties and that deaths might be avoided, but I cannot honestly say that Dr. Chiswick's committee will have all the answers. In fact, the calibre of the members of that committee is such that they would be the first to admit that. There is a danger of becoming alarmist in spelling out the problems, and I hope that I have not done that. We recognise that that group represents only 10 per cent. of the prison population and that the other 90 per cent will come through the experience for good or ill depending on how effective their treatment has been. The parents of every youngster who is likely to receive a custodial sentence in Scotland will be extremely worried about the prospects, and it is to that problem that I must keep returning. That is why I am suggesting tonight that some kind of advisory body, separate from the Scottish Office and the prison service, answerable to the Secretary of State, could begin to restore public confidence. The chairman of such a body must be a member of the bench. Experience has shown that the judiciary do not take kindly to outsiders advising them on how they should be sentencing. We should work on the basis of the old political maxim that if one has a problem and opposition, one of the opposition should be recruited to work for one rather than against one. The appointment of a High Court judge who has probably had extensive experience in one aspect of the business—the sentencing of offenders—would be substantial enough to ensure the independence and authority of such a body. I imagine that other members of such a body would be recruited from the Scottish Office's list of the great and good, and perhaps there could be some useful people as well such as psychiatrists, sociologists and social workers—people with some experience in the field. Such a body could be given the chance to look at the appropriateness of present custodial sentencing, the different types of institutions which could be made available, at what is being done in other parts of the United Kingdom with regard to day centres and the like, and examine the possibilities of hostels, where shorter stays could be arranged. It could look again at the generic sentence. Within the Executive, with all the appropriate safeguards, the prison system specialists could consider the most effective means of dealing with the offender once the courts had decided on the length of a sentence. 7.15 pm We could consider different ways of applying remission procedure and perhaps go down the road taken in Northern Ireland, where there are remission procedures of 50 per cent. Certainly in sentences of more than two years a remission of that order would be appropriate. We should consider giving greater assistance to accelerating remand procedures, and probably endeavour to delay detention of any kind until all oustanding cases have been heard so that a prisoner knows that when he begins a custodial sentence it is for a particular period and that if he keeps his nose clean he can get out early, or, if he has to do the whole stint, he can do it without the threat of future punishment hanging over his head. That should not be beyond the courts' administration in Scotland. Above all, there must be a serious and rapid examination of detention centre training. There must be far greater scrutiny of the short sharp shock treatment than a stroll around a detention centre by a prejudiced Home Secretary before there is any guarantee that the short sharp shock treatment is working or can ever work. Over the years of having watched and tried to gather information about the effectiveness of the system, I have been singularly unsuccessful in obtaining any evidence which shows that it deters, improves or keeps away from a life of crime many of the youngsters who pass through the doors of such institutions. I say that with regret, because I recognise that many of the staff try hard with the boys. Many of them are committed to the welfare of the young lads. I cannot for the life of me understand why the Government commit so much of their prestige and resources to that unproven and distasteful form of incarceration. As well as changes in the nature of the institution and the widening of the options available to the courts and whoever would be responsible for allocating prisoners their appropriate punishment, there must be some mechanism whereby the grievances of prisoners can be examined. I say that because there is a constant chipping away and undermining of the prison service because of the nagging doubts at the back of people's minds. Sometimes that can be the subject of an orchestrated campaign. Sometimes it can be that people, when they are released from prison, grind axes and try to settle old grievances. I freely accept that. However, it is incumbent upon the Secretary of State, if he is prepared to look at the care and treatment of young offenders, to seek to establish a more effective means of examining prisoners' grievances which would enjoy the confidence of the staff. If we do not have a system which can balance the obligations and rights of these two groups, allegations and counter-allegations will continue to be made and at the end of the day nobody will be satisfied either that one side has been cleared or that the other side has been vindicated. When we consider alternatives to prison, we must also look at what happens outside. We must find ways of helping and supporting the beleaguered social worker panels in the preparation of the social inquiry reports and community service order work, all of which are taking up an increasing amount of time. As anxiety about sentencing policy increases, greater emphasis will be placed on the social inquiry report. More time will be required by social workers. I know that the Minister does not have responsibility for that area of local authority funding, but I hope that he and his hon. Friend the Under-Secretary will bend the ear of the Secretary of State to obtain more resources. It is important to recognise that, outwith local authorities and Government, private agencies could be of considerable assistance in the resettlement and rehabilitation of offenders. The figures for suicidal observation times show the amount of effort and time involved. Suicide observation means 15-minute observations, which means that in every 24-hour period, 96 checks are made. If the lad improves, the number drops to 48 checks in 24 hours. It takes only five minutes for someone to hang himself. I do not want televisions in cells, or glass doors. Prisoners are entitled to privacy. That is the balance that governors must strike. However, the problems and difficulties consume much of our resources. I have seen the overtime figures for Glenochil, and I am sure that they are paralleled in other institutions where the authorities are just as anxious to ensure that the lads do not abuse themselves any more than is consistent with civil liberties. If we could reduce those dreadful figures, we would reach the point where such reforms would become almost self-financing. I do not wish to take a partisan, anti-Government position. To some extent, the Government have tried very hard. The Minister has allowed greater public asccess to institutions. Indeed, the media now visit them almost as often as some of the recidivists. I have never been denied any information, and every courtesy and assistance has been shown to me. I recognise that the Minister has instructed sheriffs to extend the terms of fatal accident inquiries so that every facet and aspect of a death is regorously examined. The Minister was probably right some years ago to refuse to set up a public inquiry into the running of the Glenochil institution. The requirement of the law to have a fatal accident inquiry and the sub judice provisions that govern that would probably have inhibited a public inquiry from going about its business. The specialist groups studying suicides and parasuicides will go a considerable way towards providing highly specialised assistance. The reception of Mr. Barry's report was cool, to say the least. He is a distinguished public servant, who has produced a report on an issue of great public interest, but while it might have been correct, it did not allay public fears. The restoration of public confidence will take both money and time. It will take a great deal more than the limited range of options currently open to the courts. Any young man who is sentenced to four months or less must go to a detention centre unless the governor or the courts think otherwise, and then he could be sent to a young offenders institution. If he is a security risk, he will be sent to Glenochil. If that institution has one record, it is that no one has escaped from it. I was recently told about two boys who had been sent to the detention centre at Glenochil for the short sharp shock treatment. One of them had only one foot and the other did not have a left arm. I am not sure what the courts were about when they sent those lads to the detention centre. I do not know the quality of the social inquiry reports. Quite frankly, the simplicity and the crudeness of the way in which the sentencing policy was carried out horrifies me. I know that there are now provisions to stop that happening a second time. There is a provision in the Bill that someone can be sent only once to a detention centre and that if the short, sharp, shock treatment does not work, he should be sent elsewhere. That is a first step, but the Government are moving at a slow pace. After almost 20 years of operating the system, there is no option open to the courts when dealing with a young man who is showing signs of serious nervous disorder and who needs secure treatment. There is little help available in the Scottish Health Service. None of us would want to go to Carstairs. If it is shown that a lad is a security risk, he must go to a secure institution. I make these points not to criticise the system, but to show the paucity of choice and the alarming consequences of that narrow scope. I am not trying to patronise the Minister. I know that he is well intentioned. As a liberal in his party, he is constrained by those about him. However, if one thing has been shown during the past few months or years, it is the shift in attitude in Scotland. There has been a deafening silence from the old Dundee thunderer urging police or prison reform. The Sunday Post has not commented on the institutions during the past few months, or even the past few years. It does not have any answers. It realises that harsh treatment is not the answer, and has made that point clear by its silence. Options are open to us. There is now a concensus on penal matters in Scotland which affords the Minister the opportunity to move forward with public support on a programme of reforms, especially for young offenders. The modest proposal that I have put forward tonight would give the Secretary of State an opportunity to do something that is desperately needed, if only to allay the fears of parents, to improve the morale of the prison staff and, most important of all, to try to prevent further tragedy.
Lord James Douglas-Hamilton (Edinburgh, West)
I listened with great interest to the hon. Member for Clackmannan (Mr. O'Neill). Like him, I represent a considerable number of prison officers. The hon. Gentleman made an interesting speech on an important subject.All too often, prisons have been the forgotten sector of Scottish politics, but they are vital not only for prison officers, social workers and prison visitors but for the relatives and the prisoners. All have a vested interest in the prisons operating effectively and in ensuring that really severe problems do not arise. I have considerable sympathy for the aim behind the new clause. The May committee recommended the setting up of the inspectorate of prisons. At that time, the committee clearly saw the need for an independent and impartial overview of prisons. That principle is now generally accepted, but when the May committee reported, although the governors and staff associations accepted the idea of an inspectorate, there was some objection from administrators. However, the inspectorate was set up, and it has performed a valuable function. Mr. Phillip Barry has completed several reports and many of his recommendations have been implemented. They have been useful in highlighting the need for improvements. 7.30pm As for Glenochil, what we say today is necessarily constrained by the sub judice rule and by the fact that a working party was set up last year by the Secretary of State to consider precautions when dealing with possible suicides. I hope that my hon. Friend will ensure that its report is published as soon as possible, because then it will be much easier to see what steps can be taken. By that time, the review of the possible options for the future of the prison system should also be available. I ask my hon. Friend the Minister to consider setting up a small standing committee of professionals who could perform the necessary investigations as and when difficult circumstances arise—a sort of watchdog committee. The hon. Member for Clackmannan talked about a standing commission. It might not be necessary to have such an impressive body; a small standing committee might be more appropriate. It would need to be largely independent. A similar committee in the past may not have been completely effective, but the Scottish Select Committee of more than 10 years ago was not completely effective either, although since it has started again it has worked actively and had a substantial effect. A similar committee could serve a useful purpose.
I do not wish to make a cheap debating point about this being another quango, but after what some Conservative Members have said about quangos, how will the hon. Gentleman defend another one? Secondly, with some good will towards his suggestion, what does he say to the argument that it is rather a cop-out when dealing with extremely awkward problems?
Lord James Douglas-Hamilton
Genuine problems must be considered seriously, on their merits. I do not believe that Members of Parliament are competent to do the job. It is difficult for an all-party committee completely to grasp what is going on. Even if the Scottish Select Committee were to take on the task—it has other priorities on its agenda—it could not easily do justice to the subject. A small committee of professionals to investigate cases as and when they arise would be the best way forward.Several serious points should be made. First, is the Minister satisfied that information about incoming prisoners is arriving quickly enough at prisons and other penal establishments? Is there a satisfactory computer system? Other institutions in Scotland have no problems with suicides. Although the Minister will not be able to do this until the working group has reported fully, will he consider whether there is a danger of imitative behaviour? On 5 November last year, The Guardian quoted the deputy governor of Glenochil as saying that
Further, there is no provision in the law for re-sentencing if it is discovered that a custodial sentence is unsuitable. The Solicitor-General and the Minister will be aware that there has been a substantial expansion in community service orders, which have worked well. Diversion schemes have also been successful. If a youngster cannot cope with the regime, for a variety of reasons, a mechanism should be available to deal with him so that, if necessary, a tough but constructive noncustodial sentence can be applied. What about the future of the special units? Should they be available only to dangerous prisoners who must be kept out of circulation, or will other special units be set up for those who are prone to commiting suicide? One criticism from the Scottish Council for Civil Liberties was that only one 40-minute visit a month is permitted at Glenochil, which it believes is too harsh. The Scottish Association for the Care and Resettlement of Offenders called for a code of practice for the treatment of young persons in custody. It recommended that medical officers at penal establishments and prison staff be trained in understanding immature patterns of behaviour. It also argued for continuity of supervision for youngsters in custody, and for a re-assessment of procedures in relation to behavioural problems. That organisation also said that strict suicide observation in special solitary confinement cells with canvas bedding and a canvas smock for clothing was dehumanising. The other side of the story is that, if youngsters have committed serious offences, they should be dealt with firmly under a strict regime. The criticism is not directed primarily against firmness under a strict regime; it is that, in some circumstances, prisoners cannot cope with their conditions. Those of us who have been in the Army—I was in the Territorial Army for about 10 years—have some practical knowledge of what a short sharp shock means. But it is different for volunteers. Some do not mind it, a few like it, and some do not like it at all. But if someone cannot cope in the Army, he can be asked to leave. There are no volunteers in a detention centre. I have the highest regard for the prison service in Scotland. However, as the hon. Member for Clackmannan said, there is a problem of public confidence, morale and parental anxiety. As a matter of common sense and experience, if something is believed to be not quite right, there should be scope for an investigation, to be followed by the necessary action."deaths by hanging were having a knock-on effect."
The hon. Member for Clackmannan (Mr. O'Neill) moved his new clause with all the knowledge that comes from having lived with the problems of Glenochil for many years. He has a detailed and sympathetic understanding of the predicament of prison officers who are asked to provide custodial care for those who, as a result of our laws, we send to prison. He made a powerful and effective speech with which I agree almost completely. His argument went beyond the tragedy of the self-inflicted deaths of recent months to the underlying causes. That is the appropriate tack in a debate on the reform of Scottish law.The Social Democratic party wholeheartedly supports the hon. Gentleman's recommendation of a standing commission on sentencing policy for young offenders. However, there is one small caveat. He suggested that the commission's duty should be to report to the Secretary of State on any matter which the Secretary of State sees fit to refer to it. I believe that it should do more. It should have the power to initiate inquiries and to make recommendations when it chooses; it should not be confined to acting upon the submission of issues by the Secretary of State. One of the defects of the Law Commission is that it relies upon a reference. That limitation should be avoided.
I was proposing an additional role, so that the commission can examine specific problems put to it by the Secretary of State.
In that case we may need only a drafting amendment.This is not an appropriate time to dwell at length on the recent tragedies at Glenochil, which are subject to fatal accident inquiries. I have no doubt that Dr. Chiswick's committee will have relevant comments to make. Ministerial responsibility is involved. No recognition is reflected in ministerial action of the need for an investigation into the seven deaths at Glenochil since 1981 to see whether there are any connecting factors. Separate fatal accident inquiries cannot deal with the circumstances of other fatal accidents. The scope of the inquiries is too narrow and their remits are inadequate. The terms of reference of Dr. Chiswick's committee have been widened since the latest death, and an early report has been called for, but the terms are too narrow to examine the causes. The committee is considering how best to prevent a fatal accident or self-inflicted death, but it cannot cover all the issues discussed by the hon. Member for Clackmannan. It cannot consider whether people admitted to Glenochil are properly or wisely admitted. The hon. Gentleman provided us with interesting information about the number of people who had been on suicide observation in the last two years. The statistics are terrifying. How could 75 people with suicidal propensities be admitted to the detention centre in 1984? Should such people be admitted to such custodial care? We must go into that in greater depth. In response to periodic expressions of dismay that have accompanied the announcement of yet another death, the Government have drawn back behind a stockade of self-defence, as if their reputation were as important or more important than the future of such custodial institutions. That has added to, not diminished, public anxiety. Some recognition of the seriousness of the problem would have resulted in a different response from the Government. 7.45 pm The proposal for a standing commission is wise. We should look beyond our own experience in the United Kingdom and take account of United States experience. In New York, all young offenders in one year were discharged from custodial treatment. The consequences of that are worth examining. My experience is limited to constituents who have received custodial sentences. I have observed a high rate of recidivism. In England, it is as high as 70 per cent. The Home Secretary has admitted that the short sharp shock treatment has had a negligible effect upon a person's propensity to commit crime. The 70 per cent. figure applies to the only part of the United Kingdom where studies in depth have been conducted by academics of quality and ability. Custodial treatment is more common in the United Kingdom than in all other European countries. It does not seem necessary for us to stick with the penal philosophy favoured by this Government. I cannot discharge the present Government from responsibility for that, because they are making a virtue of extending the principle of the short sharp shock treatment. I recognise that such treatment is not formally applied in the young offenders' institutions. The Minister claims that nothing has changed since the Conservatives came to power. However, changes have taken place in the numbers of people in such institutions—some falling off in numbers has occurred—and there has been a change in the type of person sent to them. We want more than a response to individual tragedies. We want a thorough examination of sentencing policy for young offenders in Scotland so that we might avoid using custodial treatment which coops up some of the most inadequate and deprived people in our society. For them there is little prospect of becoming normal citizens because of deprivation, which forms an inevitable part of custodial treatment. I do not criticise those who look after young offenders, but those young offenders are less likely to become normal citizens after they have experienced such custodial sentences. Some of my constituents have responded badly to custodial treatment. They came through the ordeal, but it did them no good. In certain circumstances such treatment is unavoidable. Society must detain in custody certain young individuals, but only a small number need that treatment. Experts increasingly take that view. Major public expenditure implications are involved, because the alternative to custodial treatment is not cheap. Community service orders, day care orders and other tried methods are extremely expensive to administer. The Scottish social work departments are over-stressed, and the Government are putting yet more pressure on them. If the Government want to avoid tragedies, they must find alternatives to custodial sentences. They must recognise the inappropriateness of their retributive penal policy and the need to provide a humane alternative.
My hon. Friend the Member for Clackmannan (Mr. O'Neill) was right to use the Bill to raise a burning issue. I congratulate him on what he said, especially as an inquiry is being held. The hon. Member for Caithness and Sutherland (Mr. Maclennan) was right to say that, given the background of Glenochil, it would be insufficient to have merely a fatal accident inquiry.We are told that there is no apparent connection between the deaths at Glenochil. That, in itself, is disturbing. If there is no apparent connection, the number of deaths must be related to the regime or to the area. Those of us who feel in our bones that the short sharp shock is wrong do not believe that other custodial solutions will necessarily produce magnificent results. As a former Minister, I know how weary we are after all the attempts to reduce the rate of recidivism. Few of our attempts succeed. However, some regimes can give hope, both to those who work in the institutions and to those who serve sentences there. Some regimes deaden hope, which must create recidivism. The special unit at Barlinnie had success with a much more serious category of prisoner. Hope must be provided. The most important point made by my hon. Friend the Member for Clackmannan was the concept of sentencing being done by the courts, but the handling of the prisoner being done by the Executive. There is no reason to assume that the person who judges and sentences necessarily knows the best form of custodial treatment for an offender. There should be a much more flexible response, whether by introducing a delay before sentencing, so that the Executive can examine the case and decide whether to endorse a form of treatment, or by providing that, if a custodial sentence is passed, we should consider what sort of place is appropriate. In addition, there should be much freer movement between institutions, though not on the lines of the Bill, which says that if a young person has been to a detention centre he must subsequently go to a young offenders' centre. It must be wrong to adopt that attitude towards young people. We must make sure that we do not create a beleaguered attitude among the staff. They are as much the victims of the situation as the rest of society, and they are in the front line. All the evidence about the short sharp shock treatment shows that no improvement results from it. It was nonsense to bring back that treatment. It is said that there is no relationship between the seven cases at Glenochil, but the incidents appear to be related to the people involved being about to undergo a change—perhaps going for an interview or about to be released. We sometimes forget that there are not only prison and staff regimes. There is also the regime of the prisoners who get information from staff and from inmates as they move from one place to another. That regime has its own mythology, folklore and rumours. It can be frightening and panicking for someone facing a change. One of the young people who died at Glenochil was about to be released, or perhaps he was about to see the governor. In any case, the stories spread. I wish that more studies were made of that aspect. Like the hon. Member for Caithness and Sutherland, I was horrified by the numbers who had made suicide attempts and so on. We must deal with that problem. Supervision is not enough. I support the suggestion in the new clause that the standing commission should consider not only sentencing policy, but custodial treatment, care assessments and rehabilitation. It must be a continuing process, and we must give hope to the staff and to the inmates. Above all, we must have the sort of mechanism that makes changes easier if it is obvious that a regime is not appropriate for an inmate. We must not be bound to a hard and fast regime. We cannot separate one inmate from the mythology in an institution. Nor can we have the 100 per cent. supervision imposed by television cameras. That creates its own terrors and problems. We must have flexibility. The standing commission should consider sentencing, and, if custodial treatment is recommended, we must decide the nature of that treatment and the place to which the offender should go. That would at least allow us to deal with the situation and to offer hope, above all to the staff.
I agree strongly with my hon. Friend the Member for Paisley, South (Mr. Buchan) that the staff in institutions—I do not believe that I have any constituents who are staff—should not feel beleaguered. That is most important.I speak with muted reticence about teenage suicides. I thought that I knew the son of a right hon. Friend of mine very well. I chatted to him at length one day, but found out that a fortnight later he had hanged himself, in circumstances that my right hon. Friend the Member for Clydesdale (Dame J. Hart) and others know about. Great tragedy has struck the teenage children of hon. Members on both sides of the House and of many other people. Who can know what goes on inside the heads of those young people? I am reluctant to pass judgment on a subject that few of us or anyone else can claim to know much about. A constituent in Winchburgh contacted me the day after the most recent tragedy at Glenochil. She was going round the proverbial bend about what would happen to her son. I do not criticise the staff at Glenochil, because I do not know enough about the centre. However, is it a fact that visiting arrangements have been less than flexible? I was given the impression by the family in Winchburgh that they would go to Glenochil far more often if they were allowed to do so. Whatever the harshness or otherwise of the regime, it is important that any family ties—some teenagers do not have much of a family life—should be encouraged, within reason, at every turn. I should welcome a response from the Minister about visiting. It is partly for that reason that I am not unsympathetic to what the hon. Member for Edinburgh, West (Lord James Douglas-Hamilton) said about having a committee. That might help in many cases.
We have had an extensive debate and I do not wish to prolong it unnecessarily.I pay tribute to my hon. Friend the Member for Clackmannan (Mr. O'Neill) not only on tabling the new clause and allowing us to raise a number of issues about the custodial treatment of young offenders, but on his constructive and dignified response to a most difficult constituency problem—the tragic series of incidents in the Glenochil complex over the past three or four years. I have some inkling, as have other hon. Members, of the pressure that can be placed on the local Member of Parliament to go for what one might call a high profile response. In this case, my hon. Friend has resisted that pressure for the best of reasons and in the best traditions of the House. 8 pm It is right that we should be debating this issue, because there is undoubtedly a great deal of public anxiety over it, and we should reflect that in Parliament. We must try to put what have been tragic events into some perspective, and discover the best framework within which the staff, who have the unfortunate job of supervising persons serving custodial sentences, can operate. An enormous spotlight has been turned on the issue because of the suicides since 1980–81. It is clearly a subject of tragedy, of high emotion, and sometimes, in terms of public reaction, of anger. I join those who recognise the problems that face the staff. I do not want any sort of accusatorial procedure to be established. We should ensure that the staff are not, in some way, placed in the dock for what has happened. To do that would, by and large, be unfair. I also caution taking a sceptical approach to some of the remarks that have been made. I say "some", because they must be properly investigated. For example, some statements that have been made about the way in which the staff operate and the way in which the regime is run within the Glenochil complex. In that context, we had an interesting example of the need for caution with the sensational letter that received widespread publicity at the time of one fatal accident inquiry in 1983. Subsequently, the young man who wrote the letter, in which he made the most lurid accusations of assault, drugs and extortion in the detention centre, gave evidence at the fatal accident inquiry and confessed that he had never been in the detention centre and had no direct knowledge of any of the events described in his letter. They had all been inventions of his imagination—a form of attention-seeking of a most destructive kind. I mention that because it is important to try to take a balanced approach to the problem. I intend to make some critical remarks about the way in which we have organised the regime and about the detention centre procedure. It is important to remember, though sometimes easy to forget, that we are considering a complex that contains two separate institutions and two different approaches and regimes. Although much of the criticism has centred on the short sharp shock approach, as it is called, five of the seven deaths occurred in the young offenders' institution, some involving young men facing lengthy sentences. The last one—a tragic case, the details of which appeared in a newspaper, so I am not breaking any confidences by repeating the personal details—concerned a young man who came from a fractured and sad background, an example of the inadequacy of many such young men. He had been to a detention centre originally; he had been at Friarton and was transferred, because of his instability, to the young offenders' centre at Glenochil. He was typical of the individual problems with which the system must cope, but with which it has obviously been failing to cope, in the most final sense, considering the number of individuals concerned. I have much sympathy with what my hon. Friend the Member for Clackmannan said in favour of the new clause. I argue for an overall review, on a permanent basis, of the way in which the system is operated. There is undoubtedly much scope for reconsideration of the way in which we carry out the sentences imposed by the courts and the form of custody that we inflict on the young men concerned. I welcome the fact that an inquiry is now going on into the way in which suicide-risk inmates are dealt with at Glenochil. Nobody would cavil that such an inquiry should take place. However, we should go wider than that in our researches, and that is where the standing commission referred to in the new clause would come in. A substantial mistake was made when we abolished borstal and the indefinite form of sentencing that borstal training represented. I do not mean that we made a mistake in abolishing borstal as such. I supported that, and I still do. The mistake was what we put in its place. The Government decided to go for the detention centre as basically the only option for any custodial sentence between 28 days and four months. It was to be a one-road solution, the regime for all individuals and all seasons, with no flexibility and no attempt to consider the needs of the individual. That was undoubtedly a mistake, and it was pointed out to the Government at the time by me and many other hon. Members. We opposed the proposal then, and nothing that has happened since—I am not referring specificially to the two detention centre suicides; I am talking of a broader perspective—has convinced me that I was wrong. My hon. Friend the Member for Clackmannan spoke of a couple of spectacular mistakes in placement by the courts. He referred, for example, to the case of a boy with a physical defect of a dramatic sort who was clearly unfitted for a detention centre, yet who was sent to one. I recognise that such mistakes can happen. There is machinery in section 45(10) of the 1980 Act to deal with such persons. It allows transfers from detention centres to young offenders' centres. I gather that that provision has been used occasionally—almost always when there has been a specific, usually physical, problem which has made its use essential. We need greater flexibility than that escape route allows. I believe that Ministers also take that view. Therefore, I welcome the fact that clause 43 of the Bill contains an important concession which recognises that a substantial number of youngsters who were going into the detention centre at Glenochil—and, no doubt, into the detention centre at Friarton—had been there once, or perhaps more than once, previously. Those youngsters created a substantial discipline problem in the detention centre. It is the law of diminishing returns if one believes that the detention centre concept is always effective. They created real problems for the staff. In clause 43 we are legislating to prevent a continuation of that situation. That is a recognition of the fact that all is not well with the old, simplistic assumption that a detention centre must be right for everyone, that it does much for the backbone of a lad and aids his moral character. We have departed to some extent from that with this sensible provision in the Bill. We made an error in going down the detention centre road. I checked the earlier debates and noted that, at the time, I did not call for the abolition of detention centres. I do not call for their abolition now. There may be a case for the retention of the detention centre as one of a range of options for the young offender. However, I repeat my strong feeling that to have it as the only option has been a narrow piece of legislation which has had unfortunate results. There was a tendency for the Government to see it not simply as something which fitted their approach, but as a remarkably convenient move, for it could be represented, on the one hand, as being tough with the young offender, and, on the other, as a move which would save a considerable amount of cash because it would reduce the size of the population in young offenders' institutions. I have had handed to me an interesting little publication, issued by the Conservative Research Centre, on the policy of the Government in Scotland. The document, issued a few days ago, in the section dealing with law and order, refers to a statistic that I have heard Ministers use in the House in recent weeks. It says that the number of youngsters serving custodial sentences has been reduced by 20 per cent. since the Criminal Justice (Scotland) Act came into effect. However, I suspect that the number of admissions might show a considerably different picture because the population has dropped. When we abolished borstal, the average was nine or 10 months, and sometimes longer than that if satisfactory progress was not made. Now everyone on a summary complaints procedure faces a maximum of six months at a young offenders' institution, and many go to a detention centre. Inevitably, the number who were in at any one time was cut, but not necessarily the number of youngsters being admitted and experiencing the difficult transition into and out of a detention centre or young offenders' institution. It is not my job to argue at great length tonight, but I genuinely think that that is the sort of area that we must consider. We should look back to the debates in 1980—for example, 12 June 1980—when the matter was first discussed. It is amazing to see the lack of research and what might be described as proper inquiry made by the Government before they took that dramatic change in direction in the way in which we deal with the young offender. It was Opposition Members who scrambled around reading articles in New Society and looking for documentation from the National Association for the Care and Resettlement of Offenders. We were trying to bring some logical facts to bear on whether the detention centre had a desirable effect and whether it reduced recidivism. For Ministers, it was merely a statement of faith, "We believe in the discipline. We believe in the short sharp shock." That was the end of the argument. I genuinely believe that, with Glenochil, we have misused an opportunity to look in a systematic, in-depth way at the impact of the detention centre and the results that it produces. We should do so before committing ourselves, as we did in 1980, to a road which, unfortunately, has been littered with the tragedies that we have been discussing for the past hour or so. I still unashamedly prefer the solution in the first Criminal Justice (Scotland) Bill introduced by my hon. Friend the Member for Falkirk, East (Mr. Ewing), who was then the Minister in charge of the Committee. It was lost because of the 1979 general election. The House will remember that in clauses 36 and 37 we had something that looked very much like what was wisely commended by my hon. Friend the Member for Paisley, South (Mr. Buchan)—that the court should decide on the necessity or otherwise of custodial sentence. It decided the length of the sentence, but after that it was a matter for proper assessment as to whether it should be a detention centre, a young offenders' institution or some other form that might evolve in future. That proposal would allow greater sensitivity, which might lead to better results and give a new dimension to the job of a prison officer. I accept that it might be difficult for some to adapt, but I believe that almost everyone in that profession is conscious of the fact that the system can be rigid and limited, and that they must try to broaden the range of their activities, experience and sensitivities. Therefore, I welcome the idea of a standing commission to go into the broader issues of policy that we have neglected and for which we in the House can be criticised. There are many other areas that I cannot and should not debate tonight. I have been talking mainly about the detention centre, but when we come to the young offenders' institution we encounter the problems of the young men who are shut in. The staff do their best, but it is a limiting and depressing regime for those young people for some years. There is the important matter of the possibility of getting greater variety in that regime, which the standing commission could consider, too. 8.15 pm There is also the problem of transfers of youngsters showing signs of mental stress. I have been told by some senior staff involved in that work that if they approach a mental hospital and say that they are from Glenochil, doors slam in their faces because it sounds like trouble, and no one wants it. One does not want to see youngsters suffering from stress in the conventional closed ward of a mental hospital, which most mental hospitals are trying to move away from. The relationship between the young offenders institution and detention centre and the mental hospital should be looked at in view of some of the comments that have been made to me by people of genuine experience. There is an enormous amount to be done in examining the alternatives to custodial sentence. I do not practise nowadays in the sheriff courts in Scotland, but I doubt whether they have changed very much over the past year or 18 months since my experience came to an end. Until recently, it was frequent to have a youngster in the dock, with the sheriff having before him a series of reports saying unanimously that community service would be a useful way of disposing of the case, and the boy might respond to it. However, the final, deadening remark at the end is, "No place is available." I recognise that there are genuine difficulties in getting the work opportunities implicit in community service orders, but there is also an enormous problem of a lack of resources. Perhaps the Minister will confirm that in areas of Scotland there is not just a lack of places, but the scheme does not operate at all. We should consider that. We should also consider probation and its use, and attendance centres. Therefore, there is an enormous area to be covered. The one thing that has happened is that we have allowed the Government—perhaps we could not stop them—to go down a road which, in many ways, at least in custodial matters, has reduced the options, made the system more rigid and made it close in upon individual offenders. That is one of the things that has led to some of the troubles that we are now considering. It is a sensitive issue. Clearly there will be variations of opinion upon it. Truth is never absolute, and it is hard to assess the results. We have a duty to continue to try. We certainly have a duty to take seriously the tragedies in the young offenders institution. We must sympathise with the staff and with the problems of an institution which is the place to which all troublesome youngsters are sent. If a boy is in trouble in Polmont young offenders institution, he will be transferred to Glenochil. If a boy shows signs of mental instability, he will be transferred to Glenochil. There are special problems for the staff. I still believe that we are giving them a task that has been complicated by an over-rigid approach to the regime that should be available and that many youths will not, in detention centre terms, respond merely to the fact that they have to work through a series of grades that depend on taking a minute off their mile time or the ability to order their kit with almost military precision. That may be a useful regime, but it is not a universal panacea. The Government, in trying to make it so for a large proportion of the youngsters coming into custody, possibly took a wrong turning. If we can get the wider perspective and in-depth examination that I am sure my hon. Friend the Member for Clackmannan is thinking about when he advocates a standing commission, we shall be doing a great deal to help future generations to cope with the distressing problems that we have experienced over the past three or four years.
Rightly, this has been a lengthy debate on a very important subject. I join hon. Members who rightly acknowledged and endorsed the efforts that are made by those who work in such institutions. We all recognise that, in a sense, they are working for us. We owe them an acknowledgement of the work that they do. I am grateful to hon. Members who have done so tonight. I listened with care to the speech by the hon. Member for Clackmannan (Mr. O'Neill). He raised a matter of great public concern. I entirely share his regret at the tragic deaths in the Glenochil complex, a subject to which I shall return.As the hon. Gentleman said to me, I hope that I do not sound patronising in saying this. I should like to thank him for the thoughtful and responsible attitude that he displayed not only tonight but during the difficult months that have passed. He has served his constituency well in so doing. That contrasts remarkably with some comments made by hon. Members, which have done nothing to achieve any confidence, but have done a lot unnecessarily to instil anxiety in the hearts and minds of parents who have children at that institution. The Government are committed to the full investigation of those complex and distressing cases, but I should make it clear at this stage that in my view a statutory standing commission is not the answer. Nevertheless, I welcome this opportunity to debate the whole question of the treatment of young offenders. First, it is important to set in context the issues that have been raised about custodial treatment of young offenders. Understandably, public interest and concern have been concentrated on those detained in custody. Detention, however, is the last resort, as the hon. Member for Glasgow, Garscadden (Mr. Dewar) recognised to some extent. Only a minority of young offenders are dealt with in that way. The court can sentence a young offender to detention only if it is satisfied that no other method of dealing with his is appropriate. Before doing so, the court must obtain information about the offender's circumstances, usually by way of a background report from the local authority social work department. Other, non-custodial, disposals are available and the courts rightly turn to them first. The figures bear that out. Last year, more than 50,000 young offenders appeared before Scottish courts, but fewer than 5,000 received custodial sentences. The vast majority—more than 90 per cent.—were dealt with in some other way. A wide range of non-custodial options is available to the courts. The hon. Member for Paisley, South (Mr. Buchan) seemed to be suggesting that the non-custodial options were too narrow, but the range available is very wide and it is still widening. The commonest, and often the most appropriate, is the fine, but probation is also widely used, especially for the under-21s, and community service is now available in most sheriff and high courts as a realistic alternative to imprisonment.
I was referring to the options within the custodial structure. I was not dealing with the non-custodial options, of which there are certainly many. I believe that the custodial structure should offer a wider variety of regimes and institutions, ranging from the very open, almost teaching, environment to, inevitably, the extremely secure.
I apologise to the hon. Gentleman. I thought that he was suggesting that some offenders who were inside penal institutions should be outside but that places were not available.
That is true, too, but I was not making that point.
The hon. Member for Garscadden referred to community service orders. I should point out to him that they are now available in three quarters of the Scottish sheriff courts and we are actively pursuing expansion of that system.
I do not wish to score cheap public points, but the Minister's briefing to the effect that the options are widening does not accord with the experience of those of us who have received complaints about the closure of the Guthrie school. That option should have been kept open. I do not make the point in a partisan spirit, but the hon. Gentleman must be careful about claiming that the options are widening.
The closure of Dr. Guthrie's school is the responsibility of another Minister, so it would not be right for me to refer to it at the Dispatch Box.The fact that there are now more ways to dispose of young offenders is reflected in the fact that fewer and fewer young offenders now end up in penal institutions. Our policy continues to be that non-custodial sentences should be developed further, as shown by our continued commitment to the growth of community service orders. Last year, 1,200 such orders were made for young offenders. Our recent announcement about fine-enforcement officers is further evidence of our intentions in that direction. The hon. Member for Garscadden questioned this, but the daily population of young offenders in penal custody has been reduced by 20 per cent. since the new sentencing arrangements were introduced in November 1983. The full figures for 1984 are not available, but the 20 per cent. reduction is a clear improvement. The crux of the debate is, perhaps, that there will always be a minority of offenders for whom a custodial sentence is the only option in view of their response to previous disposals or, in some cases, the seriousness of the crime. Some young offenders defy all efforts at non-custodial restraint and continue to offend. Some have committed extremely serious offences and considerations of public safety as well as of criminal justice require the imposition of custodial sentences. I believe that the Government have responded quickly and positively to the new opportunities for dealing with young offenders out of custody. The methods available to the courts are already varied and continue to develop, and they are being used in a constructive and reasonable way. The formulation and review of policy must be flexible so as to respond quickly as new opportunities and difficulties emerge. That is an important part of the Government's purpose. The same applies to the assessment of young offenders. The provision of information before a sentence is imposed is the responsibility of the local authority social work departments, to which guidance has been given by the Scottish Office—most recently in November 1983 in a circular setting out in detail the requirements of section 45 and schedule 5 of the Criminal Justice (Scotland) Act 1980. The hon. Member for Clackmannan referred to the resources available to social work departments. A joint Scottish Office-COSLA working party comprising officials from the Scottish Departments, social work directors and financial advisors is currently considering the provision of social work services for offenders and I hope that recommendations will come forward for our consideration in due course.
It is desperately important to all our constituents that more resources should be made available. Is the Minister satisfied with the level of resources likely to be made available, because we have heard differently? In that context, the working party is extremely important.
The hon. Gentleman will appreciate that a working party of this kind must assess whether resources are being deployed in the most effective way and, if so, what additional requirements there may be. We must await the results.The decision as to the sentence is a matter for the court. I do not think that that fact was fully reflected in some contributions today. For young offenders who may be mentally disordered, there are arrangements for medical reports to be obtained and the court can make a hospital order rather than impose a custodial sentence. I should make it clear to the hon. Member for Clackmannan that that does not mean Carstairs.
I think that the Minister is about to slip around this, and I want to get him. God forbid that any of these offenders should be sent to Carstairs, but I am told by the prison authorities that virtually no other institution in Scotland is prepared to take them. They cannot find anywhere else to put these lads unless the nature of the disorder is such that the offender should never have been sentenced in the first place. That is the reality of the situation.
A medical report has to be obtained and the question of accommodation follows.The arrangements for assessment and classification of young offenders within the prison system are the subject of current research with the SHHD. That research will be made available to Dr. Chiswick's working group, so that he will have the benefit of it in reaching his conclusion. The changing pattern of offences and sentences by the courts inevitably means that adjustments are required in the allocation and use of penal establishments for young offenders. Apart from the reduction in the daily population of young offenders, to which I have already referred, the response and attitudes of young inmates need to be carefully monitored by the prison service. I can assure the House that this task is not overlooked and that great care is taken in the assessment and review of appropriate regimes for individual inmates. I shall, however, come to some specific changes that we have in mind a little later. 8.30 pm Recent concern about the Glenochil complex and continuing, generally uninformed, criticism of detention centres have tended to distract attention from other young offenders' institutions in Scotland. In the light of the subject of this debate, it is right that I should mention them. The open establishments of Castle Huntly and Noranside offer a contrasting and worthwhile opportunity for young offenders to serve custodial sentences in more congenial and open conditions. There is also a YOI at Polmont which deals with shorter-sentence young offenders and a number of young inmates remanded in custody by the court. I share the appreciation of the hon. Member for Clackmannan of the work done by the staff not only at Glenochil but at other establishments such as these. I do not think that the type of standing commission which the hon. Member for Clackmannan suggested would add significantly to the considerable efforts that are already being made to improve sentencing and custodial care for young offenders. Earlier in the proceedings on the Bill, the House approved a Government amendment—the hon. Member for Garscadden referred to it—intended to ensure that, normally, young offenders receiving a sentence of between 28 days and four months appropriate to a detention centre would serve such a sentence only once in a detention centre. This amendment reflected experience with the new sentencing arrangements under section 45 of the 1980 Act. Obviously, my right hon. Friend the Secretary of State and I cannot interfere with the sentencing of the courts in individual cases, but I believe that we have responded positively to the changing needs of young offenders. We shall continue to try to do so. There have been suggestions that detention centres should not continue in their present form. I understand that that is one of the contentions of the hon. Member for Clackmannan. I must emphasise that the brisk detention centre regime has operated in Scotland since 1960. It is followed at the Glenochil and Friarton detention centres. As Her Majesty's Chief Inspector of Prisons noted in his report on the Glenochil detention centre, the regime is positive and purposeful. I remain convinced that it is of great value to many young offenders who need time away from associates who might encourage them or lead them into other offences and a regime that is physically demanding but worth while in terms of targets for performance. I accept that the detention centre regime is not suited to all young men who receive sentences of between 28 days and four months. Section 45 of the 1980 Act recognised that some individuals might be medically or physically unfit for the regime, and such individuals can be transferred to a young offenders' institution. As I reminded hon. Members earlier, there are other amendments which will mean that no one will serve in a detention centre more than once.
This may be a misapprehension on my part, but I have the impression from talking to staff involved that the exceptional provisions of section 45— these provisions require the specific approval of the Secretary of State before a transfer is made—come into play only in cases of exceptional misplacements. An extraordinary example of misplacement has involved a boy with only one foot being sent to a detention centre. Will the Under-Secretary of State assure me that, if the governor of one of these institutions approaches him with the case of a boy who fails to cope, he will look sympathetically at any transfer request?
Obviously, a detention centre sentence will not be imposed in special circumstances. That might be the case in examples of the sort given by the hon. Member for Glascadden. There are other cases in which a person is found not to be suited or is unable to cope with the detention centre regime. In such cases, the person can be moved. I do not want to go further on that point, because it involves a case on which, for obvious reasons, the hon. Gentleman would not expect me to comment.
This might not be the appropriate time to make an in-depth analysis. If the short sharp shock institution is not suitable for young offenders, will the Minister consider using a variety of institutions? Clearly, this will require legislation. Will the hon. Gentleman say that his mind is open on this matter, so that a serious medical, physical or psychological condition does not have to be specified before it is decided that a particular boy should be not in that centre but in a different regime? If the hon. Gentleman were to open his mind to that proposition, he would allay many anxieties.
Nothing I have said should suggest that I expect individual young offenders who are incapable of remaining within a detention regime to remain there.
I have heard what the hon. Gentleman has to say. I have said that we are always looking at this matter in terms of trying to meet changing needs. The demand is not static; it is continually moving. We have responded to it as it has moved. Obviously, I shall carefully consider all the remarks made in this debate.The suggestion for a standing commission and the other proposals for a large-scale public inquiry bring me to the serious concern that the Government share about recent deaths in custody. Self-inflicted injury or the death of a young man, perhaps at his own hand, are distressing and complex problems, as the hon. Member for Linlithgow (Mr. Dalyell) pointed out. Obviously, I cannot comment on the two most recent deaths which are still to be subject to fatal accident inquiries. I wish to emphasise, however, the seriousness with which the Government regard the problem and the importance which we attach to full investigation of the individual cases and the more general issues. I resent the suggestion of the hon. Member for Caithness and Sutherland (Mr. Maclennan)—I should perhaps have expected that he would indulge in such language—that the Government are in any way complacent or are battening down the hatches as a result of these incidents. We take these incidents very seriously. We attach great importance to investigating them in the fullest possible way.
If that is so, why will the Government not agree to establish an inquiry that goes beyond the terms of a fatal accident inquiry to consider the conceivable nexus among the seven deaths?
If the hon. Gentleman would let me make my speech in my own way, he might discover my view. The fatal accident inquiry has been criticised as inadequate by some people who, I suspect, have not read the determinations of previous fatal accident inquiries. The independent investigation of the facts and circumstances of a case is a vital first step. The sheriff principal or sheriff concerned has the opportunity to set up additional factual observatons or recommendations in his determination. The Government take full and careful account of any such observations or recommendations. Indeed, in the case of the fatal accident inquiry on William McDonald, which recommended the investigation that Dr. Chiswick and his working group are carrying out, the sheriff principal made several searching and important observations on the issues arising from that case.The Government have taken full and careful account of those observations. The Chiswick working group on suicide precautions at Glenochil implemented a recommendation made by the sheriff principal. The Crown Office is taking steps to ensure that the fatal accident inquiries into the two most recent deaths take place as quickly as can reasonably be done, but I am sure the hon. Members accept the need for a full and thorough investigation as a basis for such inquiries. There has been criticism of the scope and nature of the investigations by Dr. Chiswick's working group on suicide precautions at Glenochil. I emphasise that the working group is independent and that it has taken a great deal of evidence from within the prison service and from other bodies and individuals. The working group is free to examine and comment upon the wider issues arising from its remit. In view of concern about recent deaths at Glenochil, my right hon. Friend has made arrangements to ensure that the working group can complete its task more quickly and report by the end of June. We have undertaken to publish its report and the Government will want to give careful and detailed consideration to any recommendations that it makes or which emerge from the fatal accident inquiries into the two most recent deaths. I do not wish to diminish in any way the concern or importance that the Government attach to these issues. I fully appreciate the force of the argument of the hon. Member for Clackmannan that there needs to be careful examination of the problems of dealing with young offenders, but, as I have emphasised, matters arising from the deaths at Glenochil will already be the subject of careful and independent scrutiny and my Department is continuing to monitor and respond positively to the changing requirements of young offenders in general. I do not exclude the possibility of further inquiries or investigations at a later stage when we have considered the full findings of the fatal accident inquiries and the Chiswick working group. We should not pre-empt those findings by considering further investigations or changes. A number of questions were asked by hon. Members. My hon. Friend the Member for Edinburgh, West (Lord James Douglas-Hamilton) asked whether information about inmates was reaching prisons quickly enough. That is one matter with which I hope the Chiswick report will deal. He asked also about inmates sentenced to detention centres when they are manifestly unfit for it. I hope that I have dealt with that point. The hon. Member for Linlithgow (Mr. Dalyell) asked about visiting frequency at Glenochil. Visiting entitlement was extended in most penal establishments last year. I shall study the arrangements at Glenochil in the light of what he has said to see whether improvements can or should be made. The hon. Member for Caithness and Sutherland referred to the narrowness of the terms of reference of the Glenochil working group. I accept that its membership is professional. It comes from the caring professions. It does not include anyone from the judiciary. At the same time, the evidence that it is taking is wide-ranging. It comes from a number of varied sources. I suspect that the hon. Gentleman has spoken recently to a number of people who have given evidence. I believe that the working group is capable of coming to conclusions and making recommendations which will be valuable. I said earlier that I would mention a number of measures that we are considering. Before Dr. Chiswick reports, we are continuing to take practical measures to improve the precautions and care of inmates who might be suicidal. I should emphasise the difficulty of identifying inmates who are genuinely suicidal as opposed to self threatening for other motives. That is a matter of which I know the hon. Member for Clackmannan is aware. Work is being put in hand at Glenochil to make a secure hospital facility of a ward and a single cell so that strict medical observation can be provided in appropriate cases. In addition, immature or vulnerable inmates who are identified as requiring a more closely supervised regime will be transferred from Glenochil to the secure unit at Carrick house at Polmont. Carrick house is a facility which has been used for some time to allow vulnerable or immature inmates a respite from the pressure that they feel other inmates may put upon them. It is not new, it has been going for some time. I must stress that governors and staff already make considerable and continuing efforts to deny bullies any opportunity for their activities and to ensure that weaker inmates are encouraged and helped to remain in normal circulation. For the small number who cannot cope, Carrick house will provide an alternative location. I am also arranging that all inmates who are found to be medically or physically unfit for the detention centre regime will be transferred to Polmont young offenders institution in the first instance as it is the establishment which normally deals with short-sentence young offenders. It may be necessary to transfer some of those inmates to Glenochil if they present serious security risks. I mention those measures to emphasise the continuing flexibility and response to change which is day-to-day part and parcel of the custodial services for young offenders. I welcome the fact that we have had the chance to debate this important matter. I hope that the hon. Member for Clackmannan will feel, in the light of what I have said, that his suggestions are unnecessary and that he will withdraw his new clause. The Government are determined continuously to improve the system and to respond to the changing circumstances and needs of those within it.
I am not completely depressed by what the Minister has said. His last few remarks give us some grounds for hope, but I am rather sad that he persists in viewing the young offenders' system with the tunnel vision that has characterised the Government from the outset. He refuses to look outside the two options which are open at present—the detention centre and the young offenders' institution. Within those parameters, there is insufficient scope for a flexible response.I shall withdraw the new clause, because I realise that it is unrealistic, but it has provided us with a useful basis for debate, and I am happy about that. I must apologise, because I did not appreciate that I had spoken for as long as I did. I feel that we shall have to return to this subject. I wish the measures which the Minister has described a fair wind. We all hope that anything that is done will improve matters, but we may well see more tragic deaths before we find solutions to the problems towards which almost everyone who has participated in the debate has been groping. Until we find them, I cannot see the terrible problems diminishing. We know that they will never be resolved completely because people will have to be retained in secure custody because of the nature of the crimes that they commit. That is, however, no excuse for moving only at the speed of the slowest. That has, unfortunately, characterised the Government's response. To that extent I am slightly disappointed this evening but we have had a useful debate, and I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
New Clause 9
Malicious Contamination Or Alleged Malicious Contamination Of Food
Brought up, and read the First time.
Mr. Michael Shersby (Uxbridge)
I beg to move, That the clause be read a Second time.I ask for the indulgence of Scottish Members for intervening on a Scottish Bill, but the matter that I wish to raise can only be considered in a Bill which involves the reform of the law. As there is no criminal justice legislation during this Session, I have taken this opportunity to table the new clause. The substance of my new clause is as important to Scotland as it is to the rest of the United Kingdom. I declare an interest, in as much as I am a member of the Food and Drink Federation and of other bodies listed in the Register of Members' interests. The purpose of the new clause is to make the malicious contamination, or alleged malicious contamination, of food an offence punishable by a substantial fine of up to £1,000 or by a term of imprisonment, or both. Why is that necessary? The House will no doubt recall a recent case when a national newspaper was contacted by a group of people who were seeking to publicise their cause by attempting to inflict damage on a well-known firm of food manufacturers. The group claimed that it had placed a contaminated food product on the shelves of retail outlets in five cities in the United Kingdom. In fact, I understand that a note was placed in the product stating that it had been contaminated and that there was also a note on the exterior of the wrapping to the effect that the product was contaminated. The clear message was that the product was unfit for human consumption and could cause serious illness or worse. The product sent to the newspaper had indeed been tampered with, but—this is the important point—no other examples of the product found on the shelves of shops throughout the United Kingdom had been tampered with. They did not contain any toxic substance, as had been alleged by the group concerned. The items sent to the newspaper for publicity purposes had been subject to malicious contamination, but for thousands or millions of packs of the product on the shelves of shops throughout the United Kingdom and intended for human consumption the threat was no more than a hoax. For the manufacturer and the consumer, the hoax was serious and dangerous. It caused great anxiety in the minds of the public, even though the claims that the product had been tampered with were false. While that anxiety was being caused, the perpetrators of the hoax appeared on television, broadcast on the radio and gave stories to the newspapers to publicise their cause. The spokesman for the group simply said that his group had tampered with a nationally known product. He did not speak as the person who had actually tampered with the product, and no charge was preferred, presumably because it was believed that no offence had been committed in England by that person. Such a malicious hoax, causing great public anxiety, is a very serious matter for any food manufacturer or retailer. It is somewhat akin to the type of bomb hoax that was made an offence by the Criminal Law Act 1977. To indulge in such a hoax is to make use, or to seek to make use, of the nation's food supply chain as a weapon to advance a point of view or to seek some change in commercial policy. The problem is causing great concern to the Food and Drink Federation, to the food companies that belong to the Food Manufacturers Federation, and to the consumer. I believe that the time has come for Parliament to make it clear that the malicious contamination of food, or its alleged malicious contamination, is an offence that should be punishable by the full rigour of the law in the form of a substantial fine or a term of imprisonment, or both. In England, Wales and Northern Ireland the law appears to be inadequate to prevent such highly undesirable and dangerous activities. The law in Scotland may be different. I hope that the House will be informed on that point when my hon. Friend replies to the debate. I hope that he will consider the matter carefully and be disposed to welcome the new clause. Perhaps Scotland, which has a fine reputation for clear and sensible laws, will be the first country in the United Kingdom to clamp down on this objectionable and dangerous activity, which can have, and has had, such serious effects on several sectors of our community.
Mr. Conal Gregory (York)
My hon. Friend the Member for Uxbridge (Mr. Shersby) has a great deal of knowledge of the industry concerned. However, I probably represent more confectionery companies and employees than any other hon. Member. As a Sassenach, and not wearing my kilt I hesitate to speak in such a debate, but my electors sell their beautiful product north of the border and I therefore think it right to make some brief comments.From time to time anarchists appear in our midst, who cannot obtain support at the ballot box for their extreme views and, therefore resort to extremist means. I hope that my hon. Friend will take note of the views expressed by the confectionery trade, which seeks to produce good quality products which are not only enjoyed throughout the United Kingdom but contribute richly to our exports. It is not right that their products should be damaged by hoax calls and similar activities. I hope that my hon. and learned Friend will look kindly on the amendment.
I apologise to the hon. Member for Uxbridge (Mr. Shersby) for not having been present to hear his opening comments.The Opposition deprecate the actions of those who resort to such tactics. In the case of the Mars bars there was no infection, but the fact that the group concerned announced that it had done such a thing caused widespread fear and alarm. The Opposition want no truck with such behaviour. We have our views on the protection of animals, on field sports and on other issues. All such issues should be discussed in the political forum. However, in no circumstances will we condone or tolerate actions of this kind. As I expect the Minister will explain to his hon. Friend, in the case of Scotland, the announcement by the group that it had injected the Mars bars with poison—although it had not in fact done so—caused the police to investigate the complaint. There is in Scotland an offence of wasting police time. If the perpetrators of that act had been discovered, they would have been charged with wasting police time. As always, Scots law—I do not intend to denigrate the English law, and I could not do so in your presence, Mr. Deputy Speaker—has certain advantages over the English legal system. Surprise, surprise—our High Court has the power to invent offences. The Solicitor-General looks surprised at that revelation. In the case of Malik v. Her Majesty's Advocate, when the selling of glue-sniffing kits was not an offence, the High Court invented the offence and Malik was convicted. I hope that, if the police catch the perpetrators of the offences which we are discussing, they will be charged with wasting police time, or, if not, that the High Court will consider its ability to invent an offence. Having said that, I do not want to prejudge any case. I should not be answering for the Minister and be suspected of reading his brief, but I am sure that Scots law can deal with the problem to which the hon. Member for Uxbridge has rightly drawn our attention. The Opposition strongly deprecate the actions of those who were involved in the scare which resulted in announcements about Mars bars and, latterly, turkeys and other produce. I commend the hon. Member for Uxbridge on presenting his new clause, but Scotland should be able to deal with such matters.
Mr. John MacKay
I have listened with care to my hon. Friend the Member for Uxbridge (Mr. Shersby), who was kind enough to give me advance warning of his intentions. I also listened carefully to my hon. Friend the Member for York (Mr. Gregory), who has some interest in the confectionery industry. Some of the rest of us are trying to curtail our intake of confectionery to limit our waistlines. I also listened with interest to the hon. Member for Falkirk, East (Mr. Ewing).The behaviour that we are discussing is to be condemned without reservation. It is deplorable, especially with products that are eaten mainly by children. Parents must be greatly alarmed if they think that their children's sweets might have been tampered with and therefore endanger their health. I am sure that the whole House condemns those tactics without reservation. I can speak only for Scotland. Matters might be different south of the border. I do not think that we need the new clause, as the behaviour that we are discussing is adequately covered by the common law. We would not wish to contemplate legislative change unless we were satisfied that the common law was inadequate. Much depends on the circumstances of a case, but, bearing that in mind, common law charges which might be brought include extortion, breach of the peace—one of the essential elements of which is the causing of fear and alarm to the public—malicious mischief and, as the hon.. Member for Falkirk, East said, the wasting of police time. I am satisfied that existing law in Scotland is sufficient to ensure the prosecution of people who commit these crimes. If such crimes are prosecuted at common law, the maximum penalty can be substantial. It depends on the power of the court hearing the case. In the High Court, the maximum penalty by way of fine or imprisonment t is unlimited. Serious cases could be taken to the High Court, so those who indulge in such activities should be aware that they lay themselves open to extremely severe punishment. I hope that, in the light of what I have just said, my hon. Friend the Member for Uxbridge will not wish to press his clause. I know from what he said earlier that he wants to give this important subject an airing, and the Bill is a vehicle to that end. I hope that he has been assured that Scotland has the law to deal with such matters. In the High Court, we have the penalties which should cause anybody who contemplates such disgraceful action to have second thoughts.
I am extremely grateful to my hon. Friend the Minister for those remarks. The Scottish law is apparently superior to the English law, but I am grateful to him for spelling out the position. I am also grateful to the hon. Member for Falkirk, East (Mr. Ewing) for what he said on behalf of the official Opposition. The issue is important, and it is quite clear that the parties in the House fully recognise that.It is also useful to know that under Scottish common law such matters can be dealt with, that there are severe penalties, and that if such offences are perpetrated in Scotland they will be dealt with severely. I only hope that my hon. and learned Friend the Solicitor-General may feel inclined in the not too distant future to consider carefully the law in England, Wales and Northern Ireland to ensure that it has beneath it the same safety net as the Scottish law, as my hon. Friend the Minister has so clearly explained. I am grateful to my hon. Friend for his remarks, and for the opportunity of raising the issue in this short debate.
I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
New Clause 10
Award Of Expenses Where Defendant Acquitted Or Prosecution Not Proceeded With
the court shall order the accused's expenses to be paid either out of the Legal Aid (Scotland) Fund or by the prosecutor.'.— [Dame Judith Hart.]
Brought up, and read the First time.
Dame Judith Hart
I beg to move, That the clause be read a Second time.First I shall outline the background to the new clause, and the present position. Contrary to the position in England and Wales, the position in Scotland is that someone who is found innocent or who it is found has no case to answer cannot have his legal expenses paid unless he is a recipient of legal aid. About 10 years ago the Thomson committee reported on several matters relating to courts and procedures in Scotland. In one of its reports it looked at this issue rather briefly, and somewhat casually considered the arguments for changing the system in Scotland, and dismissed them. That was the last opportunity for considering the issue. My concern arose originally from the juxtaposition of three constituency cases during the same period a few years ago. As the Solicitor-General and the Secretary of State will know, I tabled several questions seeking statistics, had some brief correspondence on the matter with the Lord Advocate, and was involved in an exchange with the Secretary of State for Scotland during Question Time. I asked the Secretary of State whether he would consider ensuring that expenses could be paid to accused people
He said no, and added that he remained persuaded by the assessment of the Thomson committee. When pressed a little further, he said:"where the verdict is 'not guilty' or where there is a formal verdict that there is no case to answer."
I do not agree with that—"I must observe that any cases of genuine hardship are covered by legal aid. For people who are otherwise affected, there are other sources of aid. The Thomson committee went into the issue extremely carefully"—
That is the Secretary of State's position. I shall briefly draw the attention of the House to some of the relevant facts. I believe that the 1983 figures are available, but I do not have them. However in 1982, in the case of crimes, 1,459 people had the charge against them withdrawn, and the number of those found not guilty was 3,424. In the case of offences, of those pleading not guilty, the charge was withdrawn in 1,830 cases and the person was found not guilty in 2,666 cases. That gives us a total of about 9,400 people. They had pleaded not guilty, or they were found to be not guilty, or the charge against them was withdrawn. The question, therefore, is whether any of those cases were not covered by the Secretary of State's assumption that legal aid was available for genuine hardship cases and whether money was available from other sources for cases of real hardship. Is there any reason to suppose from those figues that there is not a great need not for second-guessing but for having a further look at the matter and coming to a different conclusion? Inevitably, the number of cases varies between one part of Scotland and another. Because of my interest in two constituency cases, I obtained the figures for Lanark sheriff court and compared them with those for Scotland as a whole. I have no reason to suppose that there is not so great a variation between sheriff courts and the figure for Scotland as a whole as I found there to be between the Lanark sheriff court and the figures for Scotland as a whole. The percentage of those who pleaded not guilty where the charge was withdrawn varied between 8·6 in 1980, 13·6 in 1981 and 12·1 in 1982. The percentage of crimes was almost constant at between 12·5 and 13·5. In the Lanark sheriff court, the percentage of those pleading not guilty where the charge was withdrawn rose from 2 per cent. in 1980 and 2 per cent. in 1981 to 37 per cent. in 1982. The figure of those pleading not guilty who were found not guilty in the Lanark sheriff court was more than double the figure for Scotland as a whole. One consideration which clearly has to be borne in mind is that whether or not an accused person who pleads not guilty is found not guilty or has the charge against him withdrawn may be determined at least as much by the decision of the police and the procurator fiscal about whether to bring a prosecution. If that is so, the misfortune of somebody who finds that he has considerable legal expenses to bear can be placed at the door of others, certainly not himself. I shall mention my two constituency cases, although not by name, in order to illustrate my point. One concerns a business man in a small way who was charged with reset. He was summoned five time to attend the Lanark sheriff court, and appeared in the dock for about one and a half hours. On each occasion his defence lawyers had to be at court. When the prosecution had brought their case, the sheriff ruled that there was no case to answer. This person's legal costs totalled about £1,100 but he was over the limit for legal aid. There was no professional association, trade union or any other organisation to help him. Therefore, he was brought to court on a relatively serious charge and was then faced with the personal problem of having to pay legal charges, even though the sheriff had ruled that the prosecution had not produced sufficient evidence to justify proceeding with the case. My second illustration relates to a family who had been involved in a contretemps with the police. Fifteen charges had to be faced in the Lanark sheriff court. In the case of 13 of those charges it was found that there was no case to answer, while there was an aquittal in one case and the other was not proven. The legal costs for that defence were £2,500. They were a modest family, living in a council house, but just over the legal aid limit when one took account of the earnings of those members of the family who were involved. That is not right. 9.15 pm What did the Thomson committee argue? Let me take the essence of its argument. It said that the possibility of expenses being awarded against an accused could put indirect pressure on him to plead guilty. So it rightly rejected the idea that expenses could be awarded in that sense. It said that in the case of acquitted persons there had been strong public pressure for the introduction of awards of expenses. It said:"and I do not believe that it would be worth while trying to second-guess by having a full review of the matter."—[Official Report, 30 November 1983; Vol 49, c. 874.]
That is more or less the case in the two examples that I have quoted. The committee then went on to deal with less likely cases:"It is argued in favour of the payment of expenses to acquitted persons that it is wrong in principle that a person who should not have been prosecuted should have to bear the cost of defending himself against a charge of which he is innocent. Some of the extreme cases mentioned by our witnesses as appropriate for the exercise of judicial discretion in an award of expenses to an acquitted person were where the Crown pursues a case with insufficient evidence or the prosecution fails and the cost of the defence results in undue hardhsip on the accused."
Those three categories are rarely met. However, the first category, as we have seen from the statistics, is, according to the judgment of the courts, found by no means infrequently. The Thomson committee went on to say:"where there is gross negligence on the part of the Crown which results in an unjustifiable prosecution or where there is an obviously frivolous prosecution or where the Crown libels a manifestly exaggerated charge."
That is a somewhat superficial statement. There may be many who are assisted in such a way, but equally there will be a number who are not. The law, if it is to take account of fairness and justice, must take into account the minority as well as the majority. The Thomson committee did not even attempt to produce any evidence to support that statement. It just said that there would be motoring organisations and trade unions, but it produced not a scrap of evidence to support that claim. If the matter were investigated intensively, I doubt whether it would be possible to find convincing evidence to support that statement. The Thomson committee went on:" We consider it important to bear in mind that many organisations and associations already make arrangements to assist financially accused persons in the conduct of their defence. For example, motoring organisations, trade unions, various professional organisations, insurance companies and local authorities."
Of course it would be unnecessary in cases where legal aid was awarded, but there are, as we know, particularly with the considerable limitations that are being defined for the award of legal aid, many cases in which there is no legal aid. The committee said:"In addition, there is an extensive free legal aid scheme in operation which ensures that persons of limited means are not hampered in their defence and which would make the award of expenses to an acquitted person unnecessary in many cases."
The committee spent a lot of time talking about a Canadian report but very little talking about evidence derived from the Scottish experience. The Thompson committee's arguments were trivial. They did not take account of the needs of minorities or the extent to which the statistics—I assume that similar statistics were available at that time—showed the proportion of cases brought before the courts where a not guilty plea is entered and where a person is found not guilty or where the court says that there is no case to answer. Therefore, it is not a tiny minority. Natural justice demands that when a person is found innocent—or, even more to the point, where it is found that there is no case to answer—there should not be added to the anxiety the immense burden of legal expenses amounting to £1,000, £2,000 or even more. The second reason for looking again at this matter is that if expenses were awarded to those found innocent or where it was found that there was no case to answer, that could be an effective consideration for the procurators fiscal and the police before they brought cases. That could only be good in ensuring that they re-examine the evidence before persisting in bringing a case to court. Finally, the cost would not be considerable in comparison with the exercise of justice that would be represented. This practice cannot continue for another 10 years. It is all very well to accept the findings of a committee, but that was only one of its many findings. I venture to suggest that it did not have the full consideration that it deserved. If justice and common sense demand a change, there is no reason why the Government should not be ready to say, "Yes, we will look at this matter again. We do not rest on Thomson for all time. We think that it is a section in the report that is too insubstantial to give us ground to say that it must be true for all time.""We do not think the number of people involved justifies the introduction of the system."
My right hon. Friend the Member for Clydesdale (Dame J. Hart) has raised an important issue. It is important to place on the record the difference between criminal legal aid and civl legal aid. Civil legal aid is entirely income-related and is either granted or refused following consideration by the legal aid committee. The same cannot be said of criminal legal aid. It is partly income-related, but in recent months there have been a number of instances when sheriffs have refused legal aid on the basis that the interests of justice would not be best served.My right hon. Friend's new clause might not meet the point that she is trying to pursue, but I have reached the firm conclusion that there should be a system that when applications for criminal legal aid occur the sheriff should not refuse them, on the ground that the interests of justice would not be best served, when subsequently the accused is acquitted, or when even before the case comes to court, the Crown counsel decides to desert the case. It is obviously not a matter for the procurator fiscal. He does not have an interest in the granting or refusal of legal aid or even in the verdict of the court. His role is to decide whether, in the first instance, the case should be brought to court, and, in the second instance, to which court it should be referred—the district court, the sheriff court or, in exceptional circumstances, the High Court. In view of developments during the past two or three years, there should be a system whereby an accused person who is refused legal aid on the basis that the interests of justice would not be best served, and who subsequently is not proceeded against or is acquitted, should have the right to return to the court and make a fresh application for legal aid. There must be injustice in the sort of case mentioned by my right hon. Friend. I hope that the Solicitor-General will be flexible in his approach to the problem that has been highlighted by the new clause.
The Solicitor-General for Scotland
I appreciate that the right hon. Member for Clydesdale (Dame J. Hart) has pursued this matter for some time and that she is probably more conversant with the provisions of the Thomson report than are many hon. Members. She has raised the matter more than once with my right hon. Friend the Secretary of State. However, at the outset I must say that I do not recommend the House to accept the new clause.About 8 per cent. of those proceeded against for criminal offences in Scotland are acquitted. That includes cases where the judge or sheriff has directed that there is no case to answer. The right hon. Lady produced statistics based on what she discovered from Lanark sheriff court. I have no reason to doubt what she said, but she will appreciate that the position varies from one court to another and that there are differences in the rates of acquittal. The important point to remember, although the right hon. Lady may not accept it, is that some of those acquitted will have had their expenses met from legal aid. The hon. Member for Falkirk, East (Mr. Ewing) talked about criminal legal aid in Scotland. Although his analysis was correct as far as it went, it is worth underlining the fact that Scotland has a non-contributory scheme. Therefore, once an accused person has been granted legal aid, his expenses will be paid. The civil legal aid system is different. Other accused people receive help from schemes operated by motoring organisations, trade unions and others. I do not wish to go into this in detail——
Dame Judith Hart
The Minister asserts that many people are helped by other organisations. Could he at least ensure that the next round of statistic-gathering will provide that information? Instead of the Minister making an assertion without producing facts, let us have some facts.
The Solicitor-General for Scotland
During the recent unhappy miners' strike, legal aid was refused in some cases. I was told that some individuals would go into court unrepresented. I said in the House that if any hon. Member was aware of people going into court unrepresented, I should be interested to hear about it. It is extremely difficult for the prosecution to know when someone comes into court with a lawyer to represent him whether the accused is paying for the defence or whether an organisation is paying for it. All that is obvious to the prosecution is that the person is represented, and it would be improper to ask him who was paying the bill.
Of course, the National Union of Mineworkers, as one would have expected, paid the defence costs of the miners who were refused legal aid. I hope that the sheriffs did not expect that to happen when they refused legal aid.
The Solicitor-General for Scotland
The point made by the right hon. Member for Clydesdale (Dame J. Hart) was that individuals would have to pick up the bill for their own defence. I was saying that other organisations, especially motoring organisations, picked up the bill for many people. It is difficult, if not impossible, for the Crown or the Government to discover who pays the bill when an accused person is represented.
Some miners who are charged with offences arising from the miners' strike will not be represented by lawyers paid for by the National Union of Mineworkers. That is because the NUM has decided to represent only members charged with offences relating to picketing.One of my constituents was charged with an offence arising from the miners' strike, but not picketing. He will not be represented by the NUM, and he has had to make arrangements for his own defence. I do not know whether my constituent has been granted legal aid, but it would be wrong to assume that the NUM is defending all its members who have been charged with offences arising during the dispute.
The Solicitor-General for Scotland
I did not suggest that. I was saying that trade unions, motoring organisations and professional bodies often pay the bill.The case for such a provision, as the right hon. Lady said, was put to the Thomson committee. The right hon. Lady has expressed her views forcibly about its decision, but it rejected the proposal in its second report. I have responsibility for procurators fiscal in Scotland and I take the view that they do not commence proceedings without the sound reasons identified by that committee. Apart from those from the right hon. Lady, the Department has received no similar representations. The argument that legal expenses should be met from public funds has to be justified by need. In England and Wales, where costs in certain instances are payable to acquitted persons, costs are also awarded in favour of the prosecution in some circumstances. It is difficult to operate one arrangement without the other. There would be little enthusiasm for the suggestion that those who are found guilty should have to meet the costs of the prosecution. Practical difficulties would arise in funding and administering the proposed scheme. The clause contains anomalies. If an accused person is charged with several offences—as often happens—but not all are pursued to conviction, or if the individual is acquitted, difficulties in relation to status and expense arise. The right hon. Member for Clydesdale said that she did not think that her proposal would cost much. It is difficult to estimate the cost, but we are talking about millions of pounds. There is no reason why such expenses should be met from the legal aid fund when under the present Scottish arrangements the accused would not qualify for legal aid or legal advice and assistance. Legal aid should be available only when the relevant criteria are met. I cannot recommend the wide extension proposed to the House. The hon. Member for Falkirk, East (Mr. Ewing) talked about the interests of justice provision in the legal aid scheme. The hon. Gentleman will know that a consultation paper on legal aid was issued at the beginning of last month and the point that he made will be considered. It is an interesting matter on which the Government would like to receive views, but it does not arise directly out of the new clause. I have little doubt that my answer has not satisfied the right hon. Member for Clydesdale, who is worried about this complicated matter, but I hope that I have set out clearly the reasons why the Government are not prepared to approve the introduction of the scheme which she proposes.
Dame Judith Hart
I am disappointed, because the Solicitor-General for Scotland and his colleagues have closed minds on the matter. Their arguments are as frivolous as those presented in the Thomson committee report.The Solictor-General for Scotland told us what proportion of people were found innocent and he said that most of them were on legal aid or had their expenses paid by other people. On that basis, his estimate of the cost of my proposed scheme was ludicrous. The hon. and learned Gentleman equated the innocent with the guilty when he said that in England the defence might have the pay the prosecution's costs. I am worried about the injustice suffered by the small number of people against whom cases are not proceeded with—that is probably the fault of the police or the procurator fiscal—or who are found innocent when perhaps the charge against them should never have been brought. What happens to the guilty should not bear too heavily on our consideration. I hope that the Government will continue to think about the matter and perhaps even have some new thoughts. I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
New Clause 12
Breach Of The Peace (Child Molestation)
Brought up, and read the First time.
Mr. Malcolm Bruce (Gordon)
I beg to move, That the clause be read a Second time.I ask the House to consider seriously my modest proposal. All hon. Members have received a letter about the matter covered by the new clause. It arises out of an incident in my constituency which worried two local ladies who felt that it raised a point of law that needed to be dealt with. I pay tribute to those ladies for the way in which they have presented their case. They have done it in a thorough, responsible and balanced way. They have sought information from a variety of experts. I have had correspondence with the Minister, but he has not convinced my constituents that nothing can be done about the problem. When a person has committed what any reasonable person would regard as child molestation—not involving contact or assault, but causing embarrassment or distress to the child—the response is to charge that person with a breach of the peace. The argument is that that is a general, catch-all charge which gives at least a chance of getting a conviction, which may satisfy the community that the person who perpetrated the offence has been dealt with. However, the fact that breach of the peace is such a general charge means that it does not demonstrate to anyone investigating the record that the person concerned has been engaged in activities that make him unsuitable to be employed in jobs that bring him into close contact with children. Somebody who has in some way embarrassed or distressed children—say, outside a school playground or while on their way home from school, as happened in a case in my locality—would be considered by most people to be unsuitable as a school janitor, as the driver of a school bus or as an employee in a local community centre or youth club. The new clause proposes that such a person could be charged, if the police thought it suitable, with "breach of the peace (child molestation)". It is well understood that such records should not be available for public consumption, but when a major employer, such as a local authority, checked the records, it would be known from the definition of the charge that the prospective employee had been involved in a case which made him unsuitable to be employed in a job which involved contact with children. Regrettably, there have been too many instances of people being employed in jobs of the sort with which we are concerned after they have committed offences involving children. In some cases they have gone on to commit more serious offences. The new clause is designed to ensure that such people are so categorised at the time of the first offence that they will not subsequently be put in a position, which would be a threat to them as well as to the children, where they would be exposed to the possibility of perpetrating similar, or perhaps more serious, offences. The system should not allow such offenders to filter through and again be employed in occupations involving children, so that when they offend again the public say, "That should not have been allowed to happen." The procurator fiscal, or whoever was pressing charges, could use the charge that I propose at his discretion. In other words, it would be an additional charge rather than a supplement to an existing one. It would not remove what exists, but would add a new dimension. That would reassure parents who are concerned lest offenders who have offended in a minor way go on to commit a more serious offence. The additional offence that I propose would not magnify the situation out of all proportion, but will provide law officers with an additional safeguard. It would be stronger than the catch-all charge of breach of the peace, a charge which does not tell people the nature of the original offence.
I share the concern of the hon. Member for Gordon (Mr. Bruce) about incidents of child molestation. Such incidents can be traumatic for children, and even a minor incident can have a disturbing effect and be a source of great worry to parents. Incidents which have a specific and explicit sexual connotation are of particular concern, and that is especially true when young children are involved. I agree that we should do everything in our power to ensure that incidents are adequately dealt with.The hon. Gentleman and I have been in correspondence on the matter, following approaches made to him by the constituents to whom he referred. Those constituents have also been in direct correspondence with my Department, which brought the matter to my attention. I, too, have been impressed with the concern that has been shown by the parents and with the businesslike manner in which they have approached their arguments for changes in the law. The new clause seems to go wider than the concern expressed. It relates to all breaches of the peace as a result of which a child has been alarmed. That could result from any of what one might call ordinary breaches of the peace—for example, shouting abusive language outside a football ground or a fight outside a public house. That might alarm a young child, but the hon. Gentleman will agree that it would be wrong to seek to label an offender of that sort a child molester. However, that illustrates the difficulty of drafting a workable provision in that area. My Department has been considering the matter for some time, and although we entirely sympathise with the objectives, we see great difficulty in pinning down in statutory language the sort of behaviour, presently comprised within breach of the peace, which nevertheless could be described as child molestation in some sexual sense, and which one would wish to see on an offenders' record for future reference. Almost any description of the behaviour that can be worked out seems to take it out of the realm of breach of the peace altogether and into some other common law crime—for example lewd and libidinous behaviour, which would be charged as such, and in relation to which the offender's record would be entirely plain. Therefore, while I sympathise with the objective, so far I have been unable to devise a form of statutory wording that would achieve the desired effect. I do not believe that the present clause, as I have already explained, succeeds in doing so. Having said that, I should make it clear that my mind is not closed on the matter, because I recognise the worrying nature of the problem. I remain happy to consider any further suggestions or alternative means of approach that would reach that objective. I should be prepared to look sympathetically at any alternative formulation that may ultimately be forthcoming. I do not believe that the hon. Gentleman's new clause achieves the purpose in a satisfactory way; and I hope that he will withdraw it.
I am grateful to the Minister for that response, which deals adequately with the concerns that have been expressed by my constituents and the way in which they have gone about trying to promote their issue.I accept the shortcomings of my new clause, which, I freely admit, was an opportunity to bring the matter to the House and discuss it a little more. From the correspondence that he has had, I think the Minister recognises that the existing charge of lewd and libidinous behaviour is too strong for the circumstances. My constituents are looking for something in between to deal with a particular situation. I accept that the new clause may not be the right way to do it. I appreciate the Minister saying that his mind remains open and that he is willing to consider alternatives. I advise the House, and warn the Minister—although I think that he is aware of this already—that my constituents have written to numerous foreign countries to obtain guidance on similar circumstances elsewhere. There have been some interesting and useful replies. In a nutshell, the problem is that simple breach of the peace does not quite go far enough, but lewd and libidinous behaviour goes too far. There is a need for something in between. I appreciate the difficulties. My constituents are looking for an additional option, not a replacement for an existing charge. They are looking for something which, if it were possible to pin it on someone who was guilty of the offence, would make it clear that it was a child molestation offence, whereas breach of the peace could mean almost anything and would not elicit the same danger signals. I am grateful to the Minister for saying that he will consider the matter further. I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
New Clause 13
Interim Detention In Places Of Safety Of A Child, Beyond The Control Of His Parent
'In section 37(2) of the Social Work (Scotland) Act 1968, there shall be added at the end of sub-paragraph (e), the following:
"(f) who is beyond the control of his parent.".'.—[Mr. Wallace.]
Brought up, and read the First time.
I beg to move, That the clause be read a Second time.The new clause is an amendment to section 37(2) of the Social Work (Scotland) Act 1968. That subsection gives a constable or any person authorised by the court, or any justice of the peace, the authority to take a child into a place of safety. A series of circumstances are listed in which the child may be taken into a place of safety. The purpose of the new clause is to add to the list children who are beyond the control of their parents. Once taken into a place of safety, the child may be retained there until arrangements can be made for the child to be brought before a children's hearing. When a child is so taken into a place of safety, it is incumbent on the occupier of the place of safety, for example, the constable, to inform the appropriate reporter to the children's hearing of the circumstances of the case. At that point, certain duties are placed on the reporter, relating to the length of time that the child may be detained. If the reporter is satisfied that the child is in need of compulsory measures of care, wherever practicable he must try to ensure that the children's hearing sits on the first lawful day after the commencement of the child's detention. Section 37 safeguards the interests of a child taken into detention. I seek to extend those provisions to children beyond the control of their parents. At present, various circumstances are laid down in which a child can be taken into care—offences committed by a member of the household, lack of parental care, and so on. In all those circumstances, the interests of the child are very much at stake. If circumstances come to the attention of a person authorised under that section suggesting that the safety and welfare of the child may be at risk because the child is unruly, perhaps frequently absconding from school and putting himself or herself at some personal risk, that may constitute something of an emergency and powers should be available to take the child to a place of safety. A reporter in my constituency told me of a case in which the child had to be locked up in a police cell before the reporter could take any action. I am sure that all hon. Members agree that that is highly unsatisfactory. During the passage of the Bill, letters have been received by hon. Members advocating this change and I am told that, at a recent meeting of reporters from all over Scotland, there was considerable if not unanimous support for such a measure. I believe that it is consistent with the general theme and purposes of the children's hearing system and it is based on the welfare of the child. I commend it to the House.
Mr. John MacKay
As the hon. Member for Orkney and Shetland (Mr. Wallace) has said, his proposal has been supported for some time by the Association of Reporters to Children's Panels, but I do not believe that it is appropriate to make the change at this stage, for a number of reasons.First, we thought it right to include in the Bill a strictly limited number of social work provisions. Our intention was to include items which were self-contained, in the sense that they would not open up significant areas of wider interest which ought to be dealt with more systematically. We wanted to confine ourselves mainly to those which were generally agreed and did not require further consultation or were needed to clarify a matter on which the meaning of the legislation appeared to be uncertain. In looking at the proposal put forward by the Association of Reporters to Children's Panels we considered that there were wider issues involved. Section 37 of the 1968 Act sets out various grounds on which a child may be taken to a place of safety in an emergency. One could roughly describe all those grounds as circumstances in which the child is a victim or possible victim. They are generally, but not entirely, similar to those set out in section 32(2) as grounds on which a child may be brought before a hearing, but they are clearly designed to relate to situations in which some dramatic change in the child's circumstances has taken place which requires immediate action and which justifies immediate removal of the child from his home. I am not convinced that a child getting beyond the control of his parents is that kind of emergency. I should prefer to look rather more broadly at the relationship between section 37 and the other sections of the 1968 Act dealing with compulsory measures of care, together with some of the procedures for dealing with children subject to such orders before agreeing to the changes proposed in the new clause. It is also right to point out that the view of the Association of Reporters on the necessity of this amendment, although forcefully put, is not generally agreed by other interested parties. I understand that, for example, the Convention of Scottish Local Authorities and the Association of Directors of Social Work are not convinced of the necessity of this amendment. This reinforces my view that it would be preferable to avoid a piecemeal change at this stage. In a sensitive area of law such as this, dealing with important distinctions between grounds for immediate action to remove a child and grounds for longer-term compulsory measures of care, where the distinctions between the grounds for action in relation to the child are real and important—although they are by no means easily made—it is better to take a wider view which is supported by all those most clearly involved. I hope that the hon. Member for Orkney and Shetland (Mr. Wallace), having aired this desire by the reporters to the children's panel, will agree to withdraw his motion.
I have listened to the Under-Secretary of State. Although I accept that the provisions of subsection (2) relate to cases where a child is usually the victim, I suggest that there could be cases where a child has acted in a way that is beyond the control of the parents and has, almost by self-infliction, become a victim. In such circumstances an emergency could arise. I acknowledge the wider points made by the Under-Secretary of State. This matter must be seen in a wider context. It was probably implicit in the hon. Gentleman's speech that the Government have not shut the door and are prepared to listen in a continuing dialogue with the Association of Reporters to Children's Panels and others. Perhaps this matter can be dealt with at greater length in more appropriate legislation. This matter could well come up for discussion again. In those circumstances, I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
New Clause 14
Membership Of The Sheriff Court Rules Council
'(1) The Sheriff Courts (Scotland) Act 1971 shall be amended in accordance with the following provisions of this section: (2) In section 33(1) of that Act (Sheriff Court Rules Council): (a) the words "one person appointed by the Secretary of State, being a person", shall be omitted, and the words "two persons appointed by the Secretary of State, being persons", shall be substituted therefore; and (b) the words, "provided that at least one of the two persons appointed by the Secretary of State shall not be engaged in professional practice of the law in Scotland nor shall he be employed in the administration of justice in Scotland'', shall be added at the end of the subsection.'.—[Mr. Wallace.]
Brought up, and read the First time.
I beg to move, That the clause be read a Second time.A degree of urgency seems to be creeping into the proceedings. The purpose of the new clause is to amend the composition of the Sheriff Court Rules Council. That council's statutory functions are set out in section 34 of the Sheriff Courts (Scotland) Act 1971. The council
The council shall prepare and submit draft rules to the Court of Session. Thereafter, the Court of Session, by means of an act of sederunt, embodies those rules and they become the rules of the sheriff court. The new clause has the support of the Scottish Consumer Council. This measure was one of the specific recommendations made by the council in response to the consultation paper issued on behalf of the Lord Advocate by the Scottish courts administration dealing with small claims. The small claims provisions in the Bill are contained in clause 18. We shall deal with some amendments to that clause probably sooner rather than later. The theme behind the setting up of a small claims court in Scotland is that there should be more accessibility to the public. The purpose of the new clause is to introduce lay representation to the Sheriff Court Rules Council. The council comprises two sheriffs principal, three sheriffs, one member of the Faculty of Advocates, five solicitors and two persons, each of whom is a full-time sheriff's clerk. They are appointed by the Lord President of the Court of Session. One further person is appointed by the Secretary of State for Scotland and his qualifications are set down in section 33 of the 1971 Act. He is a person with"shall review generally the procedure and practice followed in civil proceedings in the sheriff court".
My understanding, on reading the "Parliament House Book", is that the gentleman who currently occupies that post is from the Scottish court administration. All members of the Sheriff Court Rules Council are involved in professional practice or in the administration of justice. It is healthy for such a body to include outside lay representation. One of the most immediate functions of the legislation—assuming that it is not amended out of recognition by the other place—is to set up rules for a small claims court. I accept that the council presently consults outside interests, in particular consumer interests, at present when its draft rules are prepared. We are dealing with access to the courts. That is not of interest solely to the professionals. It is of considerable interest to members of the public who are involved in the day-to-day running of the courts because they are pursuers or defenders. There has been lay representation on the Cowie committee which dealt with simpler divorce forms and the Dunpark working party which produced interesting proposals, some of which have been accepted, for the improvement of administrative justice in Scotland."qualifications suitable for such appointment".
It being Ten o'clock, the debate stood adjourned.
That, at this day's sitting, the Law Reform (Miscellaneous Provisions) (Scotland) Bill may be proceeded with, though opposed, until any hour.—[Mr. Archie Hamilton.]
Question again proposed, That the clause be read a Second time.
I am sure that, from the list of the great and the good which is kept in the Secretary of State's office, he would find at least one person representing lay interests who could make a worthwhile contribution and represent the general public who wish to have better access to the courts.
The Solicitor-General for Scotland
I have listened to the arguments of the hon. Member for Orkney and Shetland (Mr. Wallace) on previous occasions. I have previously said that the Government considered that the Sheriff Court Rules Council already had sufficient powers to enable it to consult whenever and whomsoever it wished. It is fair to say that that remains our view. The rules council has in the past shown itself willing to consult and to take the views of outside interested bodies where the subject matter of the proposed rules has shown that to be desirable. Such bodies as mentioned by the hon. Gentleman—the Scottish Consumer Council and the Scottish Association of Citizens Advice Bureaux—have made helpful and constructive contributions. They have welcomed the opportunity to be consulted. I think of their assistance in preparing forms for use once divorce moved to the sheriff's court.It is not every subject for which court rules are required which necessarily lends itself to comprehension by a lay member, and on that basis my interest has always been that the appointment of a lay or non-legal member to the council will not always be to the benefit of the council, of the draft rules which it may be considering or of the general public. As the hon. Gentleman said, the council is already large. For those reasons, I conclude that the existing arrangements have worked satisfactorily. Given the powers that the council has to consult and its readiness to do so, I hope that the hon. Gentleman will be prepared to withdraw his new clause.
It is clear that the Government will not move on that. An increase of one would not make a great difference. There is a view that being in at the start is slightly better than being consulted. I recognise that there has been widespread consultation. I shall not press the clause to a Division. I beg to ask to leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
Limitation On Use Of Property Held On Long Lease Not To Apply To Property Held On Certain Renewable Leases
Amendment made: No. 1, in page 1, line 12, after 'of', insert 'section 1 of'.— [The Solicitor-General for Scotland.]
Power Of Sheriff To Grant Renewals Of Certain Long Leases
The Solicitor-General for Scotland
I beg to move amendment No. 2, in page 2, line 14, at end insert
'or appears to him would have been so due and payable had the landlord renewed the lease'.
Mr. Deputy Speaker (Mr. Harold Walker)
With this it will be convenient to take Government amendments Nos. 3, 4, 5 and 6.
The Solicitor-General for Scotland
These are drafting amendments. They arise from the concern expressed in Committee by the hon. Member for Glasgow, Garscadden (Mr. Dewar). They relate to expenses and the power of the sheriff to distribute sums consigned into court. They are essentially formal.
Amendment agreed to.
Amendments made: No. 3, in page 2, line 21, after 'obligation', insert 'in or'.
No. 4, in line 25, leave out from 'so' to 'and' in line 26 and insert
'when he was obliged to'.
No. 5, in line 30, leave out subsection (6).
No. 6, in line 12, at end insert—
'(10) The sheriff's power under subsection (9) above extends to ordering that any award of expenses of the application under this section be paid out of any sums consigned in court under subsection (2) above'.—[The Solicitor-General for Scotland.]
Interpretation Of Sections 4 To 6
Amendment made: No. 7, in page 6, line 33, after first 'landholder', insert 'or statutory small tenant'.— [The Solicitor-General for Scotland.]
Amendments Of Matrimonial Homes (Family Protection) (Scotland) Act 1981
The Solicitor-General for Scotland
I beg to move amendment No. 8, in page 11, line 3, at end insert—
'(1A) In section 1(1)(a) of that Act (right of occupying spouse not to be excluded from matrimonial home), for the words from "not" to the end there shall be substituted the words "to continue to occupy the matrimonial home;".
(1B) After section 1 of that Act there shall be inserted the following subsection—
The amendment adds a new subsection to section 1 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981. It will make it clear that the non-entitled spouse's right to occupy the matrimonial home includes the right to have any child of the family with him or her. In view of the difficulties that have occurred, we consider it desirable to spell that out rather than leave it to implication. In Committee my hon. and learned Friend the Member for Perth and Kinross (Mr. Fairbairn) said that a person who has the right to occupy a house has an implicit right to invite people into it. By spelling out the right of the spouse to have the children with him or her in the matrimonial home we shall avoid any implication that there is no right to invite others into it. The amendment makes it clear that the provision relating to children is without prejudice to the generality of the occupancy rights conferred by section 1(1) of the 1981 Act. It also appeared to us on examination of section 1(1) that the occupancy rights under section 1(1)(a) are narrowly expressed as"(1A) The rights conferred by subsection (1) above to continue to occupy or, as the case may be, to enter and occupy the matrimonial home include, without prejudice to their generality, the right to do so together with any child of the family.".'.
It is not at all clear that that is a right to occupy, with all the rights normally implicit in the right to occupy, such as the right to invite others into the house. The amendment therefore amends section 1(1)(a) to refer to the right"a right not to be excluded from the matrimonial home or any part of it by the entitled spouse".
It was also generally recognised in Committee that it was undesirable to define "child" too restrictively. Restrictions based upon age or other factors could cause anomalies. We have concluded that the definition of "child of the family" in section 22 of the Act is appropriate. This covers"to continue to occupy".
If either spouse abused their right to have the children living with them, for instance by bringing in adult offspring who had no need to be there, the remedy of the other spouse would be to seek an order restricting or regulating the occupancy rights under section 3."any child or grandchild of either spouse, and any person who has been brought up or accepted by either spouse as if he or she were a child of that spouse, whatever the age of such a child, grandchild or person may be".
The Opposition welcome the amendment. The Opposition put down an amendment in Committee, and the Government have kindly taken it away and redrafted it.If this provision cuts across the amendments to the 1981 Act as contained in the Family Law (Scotland) Bill which we discussed in Committee this morning, I have no doubt that the Solicitor-General for Scotland will ensure that when the present Bill goes to another place it will be possible to remove any confusion that may have arisen.
Amendment agreed to.
The Solicitor-General for Scotland
I beg to move amendment No. 9, in page 11, line 19, at end insert—
'( ) for the words "the purchase of a matrimonial home by" there shall be substituted the word "a sale to".'.
Mr. Deputy Speaker
With this it will be convenient to take Government amendment No. 10.
The Solicitor-General for Scotland
These amendments seek to meet two criticisms which the Law Society of Scotland has made consistently about the drafting of section 6(3)(e) of the Matrimonial Homes (Family Protection) (Scotland) Act 1981. Firstly, in section 6 we are concerned with the dealing of the non-entitled spouse with the matrimonial home. From the point of view of the non-entitled spouse the dealing is a sale, not a purchase, and should be described as such. The Law Society thinks the use of the word "purchase" is misleading, giving the false impression that the third party must be purchasing the property for use as a matrimonial home by the third party. Whether or not this is so, I agree it would seem more logical to refer to the dealing as a sale rather than a purchase, and the amendment makes this change.The second criticism is that the use of the words "of a matrimonial home" in section 6(3)(e) gives the false impression that it is only competent to swear an affidavit in accordance with sub-paragraph (i) of that provision where the property is in fact a matrimonial home. In fact, it should be possible to swear these affidavits wherever the subjects are property which is potentially a matrimonial home. The words "of a matrimonial home" are unnecessary in the context and I agree that if they are causing confusion they should be excised.
Amendment agreed to.
Amendments made: No. 10, in page 11, line 33, leave out 'purchase' and insert 'sale'.
No. 11, in page 12, line 12, after 'and', insert 'at or'.— [The Solicitor-General for Scotland.]
I beg to move amendment No. 13, in page 12, line 25, at end insert—
At another time, this amendment might have given rise to a lengthy debate. However, I will briefly sketch in the purpose of the amendment and invite a reply from the Solicitor-General for Scotland. This is an attempt to amend section 15 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981. The House will remember that subsection (3) deals with the power of arrest attached to a matrimonial interdict, and makes it clear that a constable'(6A) In section 15(3) of that Act there shall be added at the end of the following "even if there are no grounds for believing that a criminal offence as such has been committed.".'.
Various discussions arose on the amendment, which I accept was not very practical. It would have made the constable's power to arrest mandatory rather than discretionary. The Government rightly argued that that would be going too far. However, there is a genuine worry that at the moment, unless the situation is such that there is likely to be a criminal charge or that the constable believes that criminal charges will be mounted by the procurator fiscal, there is a tendency for the constable to walk away from the scene, regarding it as a domestic event in which the police have no real interest. That was not the intention of section 15(3) nor, to be fair, was it the intention of the chief constables' guidance. Nevertheless, there is a widespread belief that it happens. The amendment makes it clear that, under clause 15(3), the power of arrest still exists if there is a prima facie breach of interdict, even if there are no grounds for believing that a criminal offence has been committed. It underlines what we have all agreed—that when there has apparently been a breach of interdict, there is a discretionary power of arrest. There is no presumption that that power will not be exercised merely because there is not a circumstance which might give rise to a criminal charge. I must put the argument in its most telescoped form. There is some virtue and value in adding these words to the statute in an attempt to deal with the misconceptions which still exist and mean that the matrimonial interdict, with the attached power of arrest, has not been used as frequently as the circumstances warrant and to make the statute stronger and more effective in achieving what was originally envisaged."may arrest without warrant the non-applicant spouse if he has reasonable cause for suspecting that spouse of being in breach of the interdict."
The Solicitor-General for Scotland
Amendment No. 13 would not alter the existing powers of the police. I appreciate that the hon. Member for Glasgow, Garscadden (Mr. Dewar) wants to emphasise that a constable may arrest a non-applicant spouse simply on grounds of suspected breach of interdict, even when no criminal offence has been committed.The reference to a criminal offence would blur rather than clarify the distinction between this power of arrest and the power of arrest for an offence. The guidelines clarified matters concerning the power of arrest. As the hon. Member knows, we are examining them to see whether further clarification could usefully be made on this and other matters of concern. The hon. Gentleman may recall that, in Committee, I said that I would raise this matter in any discussions that I might have with senior police officers. I fulfilled that undertaking when, like the hon. Gentleman, I was recently at Tulliallan. That is the better way in which to drive the point home. Such problems as might arise stem not from the terms of the legislation but from how it is implemented. In view of the undertakings that we gave in Committee to try to improve understanding of the provisions, I hope that the hon. Gentleman will be prepared to withdraw the amendment.
I am somewhat alarmed to hear that the Solicitor-General has been following me to Tulliallan. I have been there twice this year. The first time I noticed some sinister gentleman from the Scottish Office at the back of the room taking copious notes. I did not have that burden the second time, but I now realise that the master was making inquiries in person. I note that.At a serious level, the amendment was worth tabling. If we had had more time I should have probed and argued a little further. I take the Solicitor-General's point and shall not insist on this matter. I am glad to hear that he has already put in hand his discussions with police officers. I hope that we get a gradual improvement of and more familiarity with the intentions of the 1981 Act. I recognise that there will be no overnight change of attitude. On that basis, and in view of the assurances offered to me by the hon. and learned Gentleman, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Withdrawal Of Privilege Against Self-Incrimination In Certain Proceedings Relating To Intellectural Property
The Solicitor-General for Scotland
I beg to move amendment No. 14, in page 13, leave out line 26 and insert—
Section 1(1) of the Administration of Justice (Scotland) Act 1972 empowers the Scottish civil courts to order, if necessary before the commencement of proceedings:'(2A) The proceedings referred to in subsection (2) above include—
(a) proceedings on appeal arising out of these proceedings; (b) proceedings under section 1(1) of the Administration of Justice (Scotland) Act 1972 (provision in relation to the power of the court to order inspection of ducuments and other property etc.) which relate to civil proceedings falling within subsection (2) above which are likely to be brought.'.
about which the court considers that questions may arise in existing civil proceedings, or—this is the point of the amendment—in civil proceedings which are likely to be brought, and to order the production and recovery of such property. Subsection (2) of claue 15 sets out the civil proceedings to which the clause as a whole is to apply. There is at present no mention there of applications under section 1(1) for a court order in relation to likely future actions. So, if the Scottish court were to grant an order for the production and recovery of goods or materials such as pirate video tapes, because it considered it likley that they would be of relevance in relation to probable future court proceedings for breach of copyright, the execution of the court order might be frustrated because clause 15 did not apply when likely future court proceedings were involved. Consequently, the privilege against self-incrimination would continue to be available. That would clearly be undesirable and the amendment sets out to remove that obstacle."the inspection, photographing, preservation, custody and detention of documents and other property"
I commend the amendment to the House.
Amendment agreed to.
Power Of Sheriff To Order Sheriff Clerk To Execute Deeds Relating To Heritages
Amendment made: No. 15, in page 15, line 8, at end insert 'relating to heritable property'.— [The Solicitor-General.]
Small Claims Proceedings
I beg to move amendment No. 16, in page 15, line 38, at end insert
We have tabled the amendment in order to obtain some idea of the Government's thinking. Those who served on the Committee will remember that clause 18 deals with small claims proceedings. In Committee we had an interesting debate—which we left with the Solicitor-General—relating to what happened when someone raised a summary cause. Apparently, in the Government's eyes, it would automatically translate into a small claims proceeding if it fell below a certain financial ceiling. In brief terms, there was a distinction between a system that envisaged a choice that might largely lie with the pursuer as to whether it was a small claims or a summary cause proceeding, and a system that automatically translated itself into a small claims proceeding. I preferred the first system. The Minister said that he would think about it, but I think that he preferred the second. I gather that the Scottish Consumer Council, which is just one of the interested bodies, has some sympathy with the first system, but is prepared to live with either. I tabled the amendment simply to discover the result of the Minister's thinking.'and which are raised initially by the pursuer under the small claims proceedings or have been subject to a direction under section 37(2C) of this Act'.
The Solicitor-General for Scotland
The Government intend that in general every summary cause whose subject matter falls within the prescribed description for small claims will proceed as a small claim, irrespective of whether a defence has been stated. On that basis, in amendments that I shall shortly move, we propose to make provision for taking cases out of small claims procedures where difficulties of law or fact arise. We also propose to cover the question of the award of expenses in undefended small claims cases and the questions of abuse of procedure.The effect of the amendment tabled by the hon. Member for Glasgow, Garscadden (Mr. Dewar) would be that a case might proceed as a small claim only if it fell within the prescribed description and if, in addition, the pursuer chose to raise the case as a small claim. The Government would not consider that to be either a practical or satisfactory way to proceed. I hope that the amendments to which I shall shortly speak will set out a framework for acting that will be satisfactory both to pursuers and defenders, whether they are consumers or those who are small business men.
I shall await with interest the Minister's remarks. The subject is important and, unfortunately, we are having to take it at rather a sharp gallop. However, at this point at least I am happy to beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Solicitor-General for Scotland
I beg to move amendment No. 17, in page 16, line 9 leave out from beginning to end of line 15 and insert—'Expenses in small claims proceedings.
36B.—(1) No award of expenses shall be made in small claims proceedings in which the value of the claim does not exceed such sum as the Lord Advocate shall prescribe by order.
(2) Any expenses which the sheriff may award in any other small claims proceedings shall not exceed such sum as the Lord Advocate shall prescribe by order.
(3) Subsections (1) and (2) above do not apply—
(a) to small claims proceedings in which no defence has been proceeded with; (b) where the sheriff is satisfied that any party to the proceedings has acted frivolously, vexatiously or otherwise unreasonably in relation to the proceedings; (c) in relation to an appeal to the sheriff principal.
(4) An order under this section shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.'.
Mr. Deputy Speaker (Sir Paul Dean)
With this, it will be convenient to take amendment No. 18, in page 16, line 15 at end insert—
'(3) When the sum claimed or the amount involved in a small claims proceedings fall below a certain sum then no expenses shall be due to or by either party to the proceedings unless the sheriff certifies that the expenses have resulted from the frivolous or vexatious conduct of one of the parties to those proceedings and such sum shall be laid down by order made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament'.
The Solicitor-General for Scotland
Under the Scottish scheme as proposed, the cause does not become a small claim on the stating of defences. It starts off as that, and it is that aspect in particular that has given rise to legitimate concern not so much in relation to the recovery of the sum fixed for—since all the remedies available for execution of a summary cause degree will be available for a small claims decree—but rather in relation to awards.Some hon. Members will remember that in Committee I said that the Government were sympathetic to the principle of a financial band for small claims within which no expenses would be awarded against a defender in favour of a successful pursuer, or vice versa. However, in the case of those major utilities and many others who use the summary cause procedure for debt collection, if such a no-expenses rule were to be applied universally, then for those debts that fell within such a band, small claims might well be seen as an invitation to debtors to avoid paying their bills, and even after court proceedings were successfully brought against them—having to pay not one penny more than was due at the outset—the pursuer would have to pay all his own expenses involved in bringing the action, and might be substantially worse off financially. We are in no doubt that it would be totally inequitable, since the whole object of our scheme is that there should be a fair and balanced approach to the bringing of small claims and to the award of expenses. I shall explain the Government's proposals for a solution while dealing with the details of the amendments. Subsection (1) of new clause 36B makes it clear that no expenses are to be awarded where the value of the small claims proceedings does not exceed an amount to be prescribed. Subsection (2) provides that in relation to small claims falling between the limits prescribed for subsection (1) and the upper ceiling for small claims in general an award of expenses to be made is not to exceed such sum as would also be prescribed. Subsection (3) thereafter caters for what would otherwise be the possible injustices that might arise through abuse of the scheme. It provides for circumstances where the special no expenses or limited expenses rule for small claims is to be disapplied and the ordinary rule for the award of expenses in a summary cause is to be applied. The circumstances are, first, where a small claim is undefended or where a defence is not persisted in, to take care of the difficulties which might otherwise arise for undefended debt collection; secondly, where a party has acted frivolously, vexatiously or in any other way unreasonably in the course of a small claim; we envisage this taking care in particular of a party acting in bad faith or in a dilatory manner with the object of frustrating the proceedings; and, thirdly, as at present in clause 18, when an appeal to the sheriff principal is taken from a small claims decision of the sheriff. I consider that this is a reasonable approach for the clause to adopt. It maintains the general thrust and emphasis upon small claims and contains, I hope, encouragement for wider use by the general public of the courts for airing their grievances. At the same time it seeks to avoid the inequitable features which all members of the Standing Committee recognised. It will not have escaped the notice of hon. Members that the new clause 36B which replaces part of subsection (2) of clause 18 sets out the principle of our approach to expenses. The precise financial amounts are to be prescribed by order by my noble and learned Friend the Lord Advocate. I make no apology for this. I consider this to be the correct and proper approach to adopt.
I do not demur from what the Solicitor-General has said: That the proper way to deal with it is by means of an order. In that way I hope that it can also be regularly reviewed. However, could the Solicitor-General mention the sums he has in mind for the initial order?
The Solicitor-General for Scotland
In Committee I said that in the first instance we were looking at a range between £500 and £1,000. However, I assure the hon. Gentleman that no firm decision has been taken. On the top limit to be fixed within which bounds will be set and levels of expenses determined, it seems to me that it is more sensible to wait until the point of introduction before determining what is the most appropriate level.As the hon. Member for Glasgow, Garscadden (Mr. Dewar) appreciates, this is a very important innovation in the law of Scotland. For that reason I have had to take slightly longer over dealing with it. Nevertheless, I hope that the principles I have set out are now clearly understood. It appears from my recent correspondence with the chairman of the Scottish Consumers Council that that body understands what we are now seeking to do and in broad measure welcomes the banding approach that we have adopted.
The Minister has been consistently helpful. Other organisations which take an interest in the matter have undoubtedly expressed that view, too, and it would be churlish not to put that on the record. I accept that negotiations and discussions must take place. However, the Solicitor-General referred to an upper limit for small claims proceedings of £1,000, wth the range lying between £500 and £1,000. I hope that he has not closed his mind to the adoption of the upper figure that was mentioned earlier. Although the maximum expenses award of £50 has disappeared as a result of the amendments, I presume that it does not mean that the Minister has changed his mind. If I am wrong about that, no doubt he will say so. If not, I shall assume that I am right.
The Solicitor-General for Scotland
For the purposes of illustration, if £500 were to be the figure initially seized upon, we would anticipate as presently advised having a £50 expenses limit and the band for no expenses due to or by would be at £150. That is the sort of relationship that I hope will give the hon. Gentleman some feel for what might be introduced if we were to go above £500.
We might want to correspond on this point. As I said in Committee, £150 is on the low side, but as the orders will have to be finalised we can conduct the debate in another way.Clause 18, 36B(3) says:
"Subsections (1) and (2) above do not apply—
Does that mean that if someone raises what at the moment would be a summary cause, say for a sum which normally when it converts into a small claims proceeding would be below the no expenses limit, it only falls under the no expenses rule if it is defended? That seems to be what that is saying and it takes us back to that anomaly which led to some skirmishing in Committee, as the Solicitor-General will remember, where anyone in the welfare rights office or solicitors office would advise his client to lodge defences in order to get the benefit of the no expenses rule. That might have some anomalous and strange results in terms of equity and the position of those pursuing, say, trade debts. That seems to be the position still under the amendment, but I hope that the Solicitor-General will clarify that point.(a) to small claims proceedings in which no defence has been proceeded with".
I am in sympathy with what the Solicitor-General is trying to do but does the amendment help with vextious small claims? That is a problem that we all come across in our surgeries. Will the proposal in any way alleviate the problem?
The Solicitor-General for Scotland
Subsection (3)(a) is there because we are anxious to avoid a problem which seems to have arisen under the English proceedings that once a defence has been lodged, or whatever the comparable step is, thereafter one is brought into the no expenses due to or by provision whether or not one has a proper defence to pursue. That is an aspect of the arrangement which is open to abuse which we want to avoid. A small shopkeeper might find that he has a number of debts which people are not paying and it could lead him to considerable costs. By that provision we are seeking to make sure—it would have to be elaborated upon in rules—that there is an arrangement for individuals trying to abuse the system.The hon. Member for Linlithgow (Mr. Dalyell) has referred to the very vexatious type of claim. We are trying to get a simple, cheap and effective small claims procedure, but at the same time we should not so develop things that as we manage to open one door it allows other people to come in and act vexatiously or to the detriment of others who are perfectly entitled to sue for their debts.
I am probably being rather dim, but, as I understand it, a small claims proceedings in which no defence has been proceeded with will not be covered by subsections (1) and (2). That pulls two ways. It would mean that they would not get the advantage of the no expenses band, but it would also take them out of the protection of saying that any small claims proceedings should not have expenses above the limit set by the Lord Advocate. On simple reading that might mean that in those cases normal expenses running above the small claims proceedings limit could be collected. In a counterproductive way, that seems to expose one danger while protecting against another.
Mr. Deputy Speaker
Order. We are getting into a muddle. We are not in Committee. The Minister had allowed an intervention.
The Solicitor-General for Scotland
If the claim is within the band where no expenses would be due to or by, and if a defence has not been proceeded with, someone could not take advantage of the no expenses due to or by provision. That would protect the small shopkeeper where there is no proper defence. If the claim was larger and came within the band £150 to £500, the restriction on expenses would be £50 if it was defended in a sensible manner. In those circumstances, it would be for the sheriff to award expenses in the ordinary way.The hon. Member for Garscadden will appreciate that if it were simply the making of a claim for an unpaid debt, we would not anticipate the amount of expenses being very great.
I understand the matter as being that if no defence is proceeded with, that covers someone putting in a frivolous defence simply because he wanted to put in a defence to get round subsections (1) and (2).It is unusual to have awards of expenses determined by statute in such detail. Sometimes a perfectly legitimate defence is put in, but is not proceeded with because there has been an extra-judicial agreement between the parties. Will the Solicitor-General for Scotland confirm that in such circumstances there might still be a provision for no award of expenses in the higher band?
I do not want to delve into legal matters at this stage. I have been guided throughout our debates not only by my hon. Friend the Member for Glasgow, Garscadden (Mr. Dewar) but by the Scottish Consumer Council. They both appear to be satisfied that the amendments will cover the points raised in Committee. As the aim of the small claims procedure is to make courts accessible to ordinary people, I welcome the amendments, because we are speaking on behalf of ordinary people, who are sometimes forgotten between legal gentleman when they discuss the vagaries of the system.I welcome the opportunity for the small claims procedure to be established in an informal fashion so that there is no question of the gowns, trappings or pompousness that occurs in usual court procedure. Ordinary people will not be afraid to go through the informal procedure in an attempt to obtain justice. On the question of limit transfers, presumably when the sheriff takes that course it will be on a very limited matter.
The Solicitor-General for Scotland
The matter to which the hon. Member for Kilmarnock and Loudoun (Mr. McKelvey) referred arises under the next group of amendments.The answer to the hon. Member for Orkney and Shetland (Mr. Wallace) is that there are circumstances in which no defence is lodged because an agreement or settlement has been reached. I would expect any expenses to be part of the settlement. On the assumption that there was something of a defence anyway, that would hold it within the arrangements set out in the clause. We must make sure that the matter is absolutely dead right, because we want it to operate successfully.
Amendment agreed to.
The Solicitor-General for Scotland
I beg to move amendment No. 19, in page 16, line 20, leave out from 'stage' to the end of line 21 and insert—'—
'(a) may, if he is of the opinion that a difficult question of law or a question of fact of exceptional complexity is involved, of his own accord or on the motion of any party to the proceedings; (b) shall, on the joint motion of the parties to the proceedings.'.
Mr. Deputy Speaker
With this it will be convenient to discuss the following: amendment No. 20, in page 16, line 20, after 'instance', insert
Government amendment No. 21.'if he is satisfied that a difficult question of law or a question of fact of exceptional complexity is involved'.
The Solicitor-General for Scotland
The amendments relate to the power of the sheriff to transfer cases which start as small claims out of that procedure and into the more formal approach of summary cause or ordinary cause procedure. Hon. Members have expressed concern that there were no statutory criteria to guide parties and the sheriff when this may be done. The underlying concern was that parties should not be subjected, perhaps, to the additional expense and time which may be involved, unless there was something in the circumstances of the case which clearly demonstrated that the small claims procedure was inappropriate.Accordingly, the amendment makes it clear that the sheriff may have a small claims case transferred to ordinary or summary cause procedure only where a difficult question of law or extremely complicated facts are involved. Equally, before a sheriff may have a case transferred on the motion of any one party to the small claims, he must be satisfied that one of the criteria applies. Where, however, all parties to the small claims proceedings are agreed that the case should be transferred, the sheriff must have the case transferred. Amendment No. 21 to subsection 2C reflects the approach that where parties request that a summary cause or ordinary cause be transferred to and dealt with as a small claim, which otherwise on account of the monetary limit involved would be inappropriate for it, the sheriff must give effect to the parties' agreed wishes. This approach to remits in respect of small claims is wholly consistent with the approach of section 37 of the 1971 Act to other remits within and from the sheriff court. The amendments ensure that the parties' wishes may be given effect to, if they represent the wishes of all, and ensure that small claims cases are not diverted from the small claims procedure unless for the sound reasons laid down in the clause. I hope that that answers the query of the hon. Member for Kilmarnock and Loudoun (Mr. McKelvey).
I have received a letter from Peter Gibson of the Scottish Consumer Council, who says:
Is that covered by the Government's suggestion?"An informal hearing should be available to the majority of consumers. People will not go to court if they cannot tell in advance whether they will be able to have the cheap and informal small claims hearing. Sheriffs should be able to transfer cases to the ordinary court process if difficult questions of law or fact are involved. However, this discretion to transfer cases should be strictly limited to a small minority of cases."
The Solicitor-General for Scotland
I hope that the amendment that I have just moved precisely covers not only what Mr. Peter Gibsn said, but the amendment which the hon. Member for Garscadden tabled.
Amendment agreed to.
Amendment made: No. 21, in page 16 line 31, leave out 'may' and insert 'shall'— [The Solicitor-General for Scotland.]
Disclosure Of Names In Certain Proceedings
The Solicitor-General for Scotland
I beg to move amendment No. 22, in page 17, line 11, leave out from beginning to 'any' and insert
'any person to disclose such information as he has as to the identity of'.
Mr. Deputy Speaker
With this it will be convenient to discuss Government amendments Nos. 23 and 24.
The Solicitor-General for Scotland
These amendments are designed to clarify the scope of the court's power to order disclosure. At present, the clause may be open to the interpretation that it contains a power only to require disclosure of names and addresses of persons who are otherwise identifiable by the pursuer—that is to say, where the person seeking to raise the action may have knowledge of an individual and all that is lacking is the name and address of that individual.As hon. Members may appreciate, it is not our intention to have the power limited in this manner. We wish to cover the case where there is a known wrong which would be cause for a civil action—an easy example to think of would be video piracy—but where that action cannot be pursued because the names of the real wrongdoers are unknown, although it is likely that their identity is known to a third party or to a possible co-defender. The Government do not intend that the pursuer should have to supply any further identification of the prospective witness or defender than he can do by reference to the wrong itself. The Government intend that he should be able to apply for an order requiring, for example, the retailer to provide the names and addresses of his suppliers without the pursuer having any knowledge as to the identity of the suppliers.
I commend the amendment to the House.
Amendment agreed to.
Amendments made: No. 23, in page 17, line 13 leave out 'would' and insert 'might'.
No. 24, in page 17, line 16, leave out 'would' and insert 'might'.— [The Solicitor-General for Scotland.]
Re-Employment Of Retired Judges
The Solicitor-General for Scotland
I beg to move amendment No. 25, in page 18, line 14, at end insert
'and, in either case, has not reached the age of 75 years.'.
Mr. Deputy Speaker
With this it will be convenient to discuss Government amendment No. 26 and amendment No. 27, in page 18, line 17, at end insert
'but any person so appointed cannot serve beyond the statutory retiring age for judges.'.
The Solicitor-General for Scotland
During the debate on this clause in Committee, I undertook to consider carefully the argument persuasively put by the hon. Member for Glasgow, Cathcart (Mr. Maxton) that a retired judge should not be brought back to act in a temporary capacity after he had reached the age of 75. Put briefly, the practical outcome of the arguments was that if the court required assistance, it should be provied by temporary judges who had not yet reached the retiring age or by the appointment of another permanent judge.I do not want to spend time rehearsing the arguments in favour of retaining the clause, but the proposal will limit the modest assistance provided to the Lord President of the Court of Session. That factor was taken into account when we considered the proposal. We have come to the conclusion that the balance of advantage lies in its adoption. I trust that the House will agree that it is prudent to frame the provision in such a way as to allow a temporary judge to dispose of business that has been only partly heard before he reaches the age of 75. This is a practical and prudent arrangement which in no way conflicts with the principle behind the amendments.
I welcome the concession. The amendment is sound and I am delighted to see it on the Order Paper.
Amendment agreed to.
Amendment made, No. 26, in page 18, line 17, at end insert
'but, subject to subsection (4) below, a period during which or occasion on which a person may so act shall not extend beyond or be after he reaches the age of 75 years.'.—[Solicitor-General for Scotland.]
Amendment Of Provisions About Detention Of Children
The Parliamentary Under Secretary of State for Scotland (Mr. John MacKay)
I beg to move amendment No. 28, in page 20, line 1, after 'hearing)', insert '—(a)'.
Mr. Deputy Speaker
With this it will be convenient to discuss Government amendments Nos. 29 and 30.
These amendments are simple and technical. Their purpose is to ensure that the accepted policy intention on the 3 days and 14 days is properly achieved. I hope that they satisfy doubts expressed in Committee by the hon. Member for Glasgow, Garscadden (Mr. Dewar).
Amendment agreed to.
Amendments made, No. 29, in page 20, line 2, at end insert
'(b) for the words from "for", where last occurring, to the end there shall be substituted the words "after whichever is the earlier of the following—
(a) the expiry of 14 days beginning with the day on which he was first detained; (b) the disposal of the application by the sheriff.".'.
No. 30, in page 20, leave out lines 17 and 18 and insert
'after whichever is the earlier of the following—
(i) the expiry of 3 days beginning with the day on which he was first detained; (ii) the consideration of his case by the children's hearing.'.—[Mr. MacKay.]
Amendment Of Power To Detain Children In Secure Accommodation
Mr. John MacKay
I beg to move amendment No. 31, in page 20, leave out from beginning of line 22 to 'the' in line 26 and insert 'for the words from "authorise" to the end there shall be substituted the words "order that, pending the determination of his case in accordance with section 42(5) or (6) of this Act,".'.
Mr. Deputy Speaker
With this we may discuss Government amendment No. 32.
These amendments follow a long and important debate in Committee on what the law should provide when a children's hearing or a sheriff decides to issue a warrant for the interim detention of a child pending disposal of his case and considering the use of secure accommodation if that is appropriate.The problem arose because a court case in Fife resulted in uncertainty about the powers and responsibilities of hearings which result in the issuing of such warrants. We therefore thought it right to move quickly to produce an amendment which clarifies the legislation. The original clause caused controversy. I took careful note of what was said in Committee, of the various representations made to me and of what was said by those who attended a conference sponsored by the National Children's Bureau in Glasgow on 8 March. I concluded that warrants should deal with secure accommodation in the same way as supervision requirements—that is, a warrant for interim detention may simply give authority to the person in charge of the residential establishment named in the warrant, with the agreement of the relevant director of social work, to make use of secure accommodation during the period of the warrant at such times as this is considered to be necessary in the child's interest. The amendments are designed to do that and I commend them to the House.
This is important to those involved with children's panels. In recent months my informed mail on the subject has ben heavy. I thank the Minister for the amendments. He buttressed his view fairly with the opinions of panel members and professionals. Subsequently he discovered that the unanimity which he thought existed among panel members did not exist. The argument's balance has changed.For example, Mrs. Sherry, the chairman of the Strathclyde children's panel, takes a different view about where the balance of advantage lies. The difference is small and the change is almost certainly for the better. Even those who were on the other side of the argument accept that we must have some flexibility and that the law should not make it mandatory on those in whose care a child is placed to keep that child throughout the period of the warrant in secure accommodation with all the limitations implied. It is wise for the law to authorise that the child can be kept in secure accommodation, but it should not demand that he is. It will please the reporters, the psychologists, the social workers and many others, and I believe that it will have much wider support among members of children's panels than we first thought. It is an example of a good piece of work in Committee and a sensible reaction by the Government. I do not often say that to the Under-Secretary, so he had better enjoy it while the going is good.
Amendment agreed to.
Amendment made: No. 32, in page 20, leave out from beginning of line 36 to 'order' in line 40 and insert
'for the words from "authorise" to the end there shall be substituted the words".'.—[Mr. John MacKay.]
Interest On Awards Of Compensation By Scottish Land Court
Mr. John MacKay
I beg to move amendment No. 33, in page 22, line 10, leave out 'of the award' and insert
'when such sum is payable'.
Mr. Deputy Speaker
With this we may take Government amendment No. 34.
The amendment ensure that the clause accords with the normal practice of the Land Court and that the intention of the clause is carried out.
Amendment agreed to.
Amendment made: No. 34, in page 22, line 28, leave out 'of the award' and insert
'when such sum is payable'.—[Mr. John MacKay.]
Rules As To Valuation Of Sheep Stocks
Mr. John MacKay
I beg to move amendment No. 35, in page 23, line 3, leave out 'subsection' and insert 'subsections'.
Mr. Deputy Speaker
With this we may take Government amendment No. 36.
The amendments will ensure the continuation of the existing system whereby the formula for determining the sheep stock valuations at the end of a lease depends on the date when the lease was entered into. That means that both parties to the lease know what valuation system will apply at the end of it. The amendments are, therefore, supported by both sides of the agriculture industry.
Amendment agreed to.
Amendment made: No. 36, in page 23, line 7, at end insert—
'(1B) A variation made under subsection (1A) above shall not apply for the purposes of a valuation made in respect of a lease entered into before the valuation was made.'.—[Mr. John MacKay.]
Evidence In Trials Of Certain Sexual Offences
The Solicitor-General for Scotland
I beg to move amendment No. 37, in page 27, line 15, at end insert
'in relation to sexual matters.'.
Mr. Deputy Speaker
With this we may take the following amendments:No. 38, in page 27, line 15, at end insert
Governments amendments Nos. 39 and 41. No. 42, in page 29, line 12, at end insert'with regard to sexual character and habits.
Government amendment No. 43.'with regard to sexual character and habits'.
The Solicitor-General for Scotland
During our debate in Committee on clause 33, as it then was, we had an interesting and helpful discussion on the question of evidence about the character of the complainer. This is a complex area of the law.In its report on evidence in cases of rape and other sexual offences, the Scottish Law Commission proposed that there should be a ban on questioning and evidence which showed that the complainer in a sexual offence case was not of good character. The commission concluded in its report that the character concerned should be the sexual character of the complainer. That conclusion was arrived at on the basis that it can never be relevant to a charge of rape—any more than it is to a non-sexual offence—to assess a complainer's general credibility by reference to outdated standards of moral propriety. The Government accepted that conclusion, but were concerned that the draft Bill annexed to the commission's report went too wide in its reference to "character" alone. That could result in a sexual-offence complainer being treated more advantageously than his or her counterpart in a non-sexual offence case. Further consultation on the commission's proposals carried out on behalf of my noble and learned Friend, the Lord Advocate revealed that the majority of opinion favoured some form of limitation on the prohibition on questioning and character. The existing subsection (2), which the amendments propose to delete, reflects the underlying principle that the complainer in a sexual offence case should be treated neither more or less advantageously than the complainer in a non-sexual offence case. Subsection (2) sought to do that by displaying the prohibition on character questioning on cases where the questioning related to the truthfulness of the complainer. While convinced that the principle behind it was correct, the Government were aware that the exact terms of the subsection did not represent the best solution. Our helpful discussion in Committee confirmed that to be the case and I undertook to consider for Report alternative ways of dealing with the problem. Subsection (2) does not implement the Government's policy effectively and arguably has the effect of undermining the main purpose of the clause, which is to provide a measure of protection for the complainer from unnecessary intimate and embarrassing questioning. However, a straightforward deletion of subsection (2) would not be sufficient. That would still leave us with the original problem of the reference to "character" in subsection (1)(a) being too wide and covering all aspects of character. For that reason I have tabled these amendments, which provide for the deletion of subsection (2) and also for the qualification of the reference to "character" so that it relates to sexual matters. I think that such an approach will find favour with the hon. Member for Glasgow, Garscadden (Mr. Dewar) especially, who tabled an amendment on similar lines in Committee. The advantage of such an approach is that it limits the Bill's provisions to a particular type of character evidence and leaves the other aspects of general character to be dealt with in accordance with the present law. This approach seems particularly appropriate in view of the forthcoming consideration by the Appeal Court to this particular area of the law in the O'Hara case. It is certainly true, on the other hand, that amendment of the Bill in this way leaves unspecified the boundary between what is and what is not sexual character. I hope the House will accept that it would be undesirable to seek to define further that boundary and that questions of this sort are best left to the court to deal with in the light of the individual facts and circumstances. The amendment of the Bill in this way removes the difficulty with subsection (2), and, by changing the focus of the main provision, is a neater and more effective method of dealing with this sensitive area so that the complainer secures the level of protection proposed by the commission, and at the same time the accused is allowed the opportunity of a fair trial.
This is an important group of amendments, and the Minister's remarks meet with my approval. I confess that some of the more rewarding Committee experiences are in the less controversial areas of law reform, where it is not like bison locking horns with no chance of movement on either side.I came away from the debates on the clause dealing with evidence in rape trials with not much hope of movement on the part of the Government. I knew that the Minister had looked seriously at the points already and I thought that we would not get much more from him. I have been pleasantly surprised, however, and this series of amendments is helpful. Subsection (2), which falls, caused widespread alarm, particularly among some parts of the women's movement, as it was seen as a loophole which might have underminèd the whole point of the new provision. The subsection did not appear in the Law Commission's draft Bill. The difficulty was that, without the subsection, the drafting of what will become Section 141A(1)(a) meant that the normal right to attack—allowing for the possible retaliation—the general character of the complainer would have fallen. It was necessary, therefore, to limit the phrase
in some way that made it clear that it referred to the complainer's sexual habits. I suggested "sexual character and habits" whereas the Minister referred to "sexual matters," but I shall not argue the toss on that semantic point. This series of important amendments significantly improves and strengthens the clause. The Minister deserves congratulations for showing flexibility, and there will be a welcome for these proposals in the areas in which this matter has been discussed and studied."is not of good character"
Amendment agreed to.
Amendments made: No. 39, in page 27, line 21, leave out subsection (2).
No. 41, in page 29, line 12, at end insert
'in relation to sexual matters.'.
No. 43, in page 29, line 18, leave out subsection (2).— [Mr. John MacKay.]
Arrestment Of National Savings Bank Deposits
Mr. John MacKay
I beg to move amedment No. 47, in page 37, line 3, leave out paragraph (a).
Mr. Deputy Speaker
It will be convenient to discuss at the same time Government amendments Nos. 48 and 49.
In Committee, I undertook to consider whether it was necessary under present circumstances to give the Lord Advocate an order-making power to direct that the arrestment provision to be introduced by clause 49 should not apply. I now take the view that such a power is not necessary, and this series of amendments removes the order-making power and makes consequential drafting changes.
Amendment agreed to.
Amendments made: No. 48, in page 37, line 5, leave out paragraph (b).
No. 49, in page 37, line 14, leave out paragraph (e).— [Mr. John MacKay.]
Amendments To Mental Health (Scotland) Act 1984 As Respects Hospital Orders
Amendment made: No. 50, in page 38, line 35 leave out from 'In' to end of line 36 and insert
'each of sections 21 (approval of applications by the sheriff: hospital) and 40 (approval of applications by the sheriff: guardianship)'.—[Mr. John MacKay]
Amendment made: No. 51, in page 40, line 4 after 'Act', insert
'or section 5(9) of the Private Legislation Procedure (Scotland) Act 1936',—[Mr. John MacKay.]
Citation Commencement And Extent
Amendment made: No. 52, in page 40, line 17, after '29', insert '54'.— [Mr. John Mackay.]
'AMENDMENTS OF LEGAL, AID AND SOLICITORS (SCOTLAND)
ACT 1949 AND SOLICITORS (SCOTLAND) ACT 1980
Legal Aid and Solicitors (Scotland) Act 1949 (c. 63)
1. Section 25 (provisions as to taking apprentices) is hereby repealed. Solicitors (Scotland) Act 1980 (c. 46) 2. In section 6 (admission as solicitor)— (a) in subsection (1)(b) the words "by affadavit or otherwise" are hereby repealed. (b)after subsection (3) there shall be inserted the following subsections—
"(3A) The Council may petition the Court for the admission as a solicitor of an applicant who has complied with the requirements of subsection (1) above; and where it does so it shall lodge the petition not later than one month after the applicant has first so complied.
(3B) The court shall, on a petition being made to it under subsection (3A) above make an order admitting the applicant as a solicitor.".
3. Section 15(2)(a) (Council to have discretion as to issue of practising certificates where applicant still has to serve post-qualifying year of practical training) is hereby repealed. 4. in section 35(1) (power to make accounts rules)— (a) the word "and" immediately preceding paragraph (d) shall be omitted; (b) after that paragraph there shall be added the following—
(e) as to the recovery from solicitors of fees and other costs incurred by the Council in ascertaining whether or not a solicitor who has failed to comply with the accounts rules has remedied that failure and is complying with the rules"
5. Section 48 (restriction on number of apprentices) is hereby repealed. 6. After section 62 there shall be inserted the following section—
"Councils power to recover expenses incurred under section 38, 45 or 46.
62A.—(1) Without prejudice to the Society's entitlement under section 46(4) to recover expenses, the Council shall be entitled to recover from a solicitor in respect of whom it has taken action under section 38, 45 or 46, any expenditure reasonably incurred by it in so doing.
(2) Expenditure incurred in taking action under section 38 is recoverable under subsection (1) above only where notice has been served under paragraph 5(2) of Schedule 3 in connection with that action and—
(a) no application has been made in consequence under paragraph 5(4) of that Schedule; or (b) the Court, on such an application, has made a direction under paragraph 5(5) of that Schedule.". 7. In Schedule 1 (constitution etc. of the Law Society of Scotland)— (a) for paragraph 6 (subscriptions) there shall be substituted the following paragraphs—
"6. Subject to paragraph 7, every member of the Society shall, for each year, pay to the Society such subscription as may be fixed from time to time by the Society in general meeting.
6A. The subscription payable under paragraph 6 by a practising member (or the proportion of it so payable, calculated by reference to the number of months remaining in the practice year) shall be paid at the time of submission of his application for a practising certificate.";
(b) in paragraph 7 (subscription in first three years of enrolment)— (i) the word "annual", in both places where it occurs, is hereby repealed; (ii) after the word "year" there shall be inserted the words "or part therof'; and (iii) there shall be added at the end the words "(reduced, in the case of a solicitor first included in the roll for only part of a year, in that year proportionately)"; and (c) after the said paragraph 7 there shall be inserted the following paragraphs—
"7A. The Society shall have power, subject to paragraphs 7B to 7D, to impose in respect of any year a special subscription on all members of the Society of such amount and payable at such time and for such specific purpose as it may determine.
7B. The Society may determine that an imposition under paragraph 7A shall not be payable by any category of member or shall be abated as respects any category of member.
7C. An imposition under paragraph 7A or a determination under that paragraph or paragraph 7B may be made only at a general meeting.
7D. No imposition may be made under paragraph 7A above unless a majority of those members entitled to attend and vote at the general meeting at which it is proposed has, whether by proxy or otherwise, voted in favour of its being made.".
8. In Schedule 3 (the Scottish Solicitors Guarantee Fund)— (a) in paragraph 1(1) (annual contributions to Guarantee Fund) the words "not exceeding the sum of £25" are hereby repealed. (b) in paragraph 1(3) (Council to fix amount of contributions for each year by previous 31 July) for the words "31 July" there shall be substituted the words "30 September"; and (c) paragraph 1(7) (limit to special contributions to Guarantee fund) is hereby repealed.'.—[Mr. John MacKay.]
Brought up, read the First and Second time and added to the Bill.
Amendment Of Enactments
The Solicitor-General for Scotland
I beg to move amendment No. 54, in page 43, line 43, at end insert—'The Criminal Justice (Scotland) Act 1980 (c. 62)
This ensures that the provisions in new section 3B of the Criminal Justice (Scotland) Act 1980—which is concerned with children detained in connection with terrorism and which is inserted by clause 35—cover the case where the detained child is living with someone who is not his parent or guardian. As these provisions must be consistent with those relating to children detained under the 1980 Act for other offences, the change is achieved by amending the general definition of "parent" in section 3(5) of the 1980 Act to include both guardians and persons who have actual custody.20A. In section 3(5) (which defines the terms "parent" and "child") after the word "guardian" there shall be inserted the words "and any person who has the actual custody of a child".'.
This matter repeatedly arises in one form or another in our surgeries, particularly in new towns. How will the amendment help the problem of single parents?
The Solicitor-General for Scotland
With respect, I do not see that there is so much a problem with single parents. We are concerned with the cases in which it may be more difficult to identify not just one or other parent, but any parents at all. It is for that reason that we want to say that there should be not just the word "parent" or "guardian" but the phrase
A child may be living habitually with someone other than his parents or guardian. We want to ensure that there is an opportunity of intimation to that person. In view of discussions that we had in Committee, I should have thought that that change would be considered desirable by everyone."and any person who has the actual custody of a child".
Does that help the problem of parents having access and seeing grandparents? It is difficult to do it in telescope form, but can the hon. and learned Gentleman address the matter?
The Solicitor-General for Scotland
We are dealing with a special situation which, I hope, will seldom happen, if ever, in Scotland, where children are arrested for terrorism offences. It applies only in those exceptional circumstances. Clearly, some provision has to be made for giving intimation to the parents. The particular problem which was underlined in Committee, and which I promised to look at again, was where the child did not have a readily identifiable parent, and was living with someone else. In those circumstances, the arrangement for intimation to that person is now provided for.
Amendment agreed to.
Amendments made: No. 55, in page 46, line 16, at end insert—
|'1949 c. 63||The Legal Aid and Section 25. Solicitors Act 1949.'.|
No. 56, in page 46, line 40, at end insert—
|'1980 c. 46||The Solicitors (Scotland) the Act 1980||In section 6(1)(b), the words "by affidavit or otherwise".|
|In section 35(1), the word "and" immediately preceding paragraph (d).|
|In Schedule 1, in paragraph 7 the word "annual" in both places where it occurs.|
|In Schedule 3, in paragraph 1(1), the words "not exceeding the sum of £25" and paragraph 1(7).'.—[Mr. John MacKay.]|
Order for Third Reading read.—[Queen' s Consent, on behalf of the Crown, signified.]
Motion made, and Question proposed, That the Bill be now read the Third time.— [The Solicitor-General for Scotland.]
The hon. Member for Glasgow, Garscadden (Mr. Dewar) had his opportunity to say how grateful he was to Ministers for the flexibility that they have shown on several issues. I should like to add my own words of thanks. We did not get all that we wanted on several matters, but in Committee Ministers showed a willingness to listen. In some of today's amendments, they have shown that they have taken on board many of the comments that were made. The Under-Secretary of State referred to a tidying-up, technical amendment to clause 51. I persuaded the Solicitor-General eventually to concede that amendment. I am grateful for the tidying-up that was done to it.I would not wish my speech to be all bouquets, and should like to make just one final comment. My hon. Friend the Member of Southwark and Bermondsey (Mr. Hughes), being an English barrister, was somewhat amazed to hear that, almost in the same breath, we were dealing with valuation of sheep for leasing purposes and then important matters relating to evidence in rape trials. It is unbelievable that that would ever happen with the law in England and Wales. The sooner that such matters can have proper and separate debates in a Scottish Parliament, the better.
As one who was not on the Committee, I should like to express a certain gratitude to colleagues of all parties who worked hard on what every Scottish Member of Parliament knows are important subjects.I thank the Minister for giving undertakings to some of us about Glenochil in the hope that at least it will ease people's minds in that difficult area.
The Solicitor-General for Scotland
As the Bill has addressed such a wide range of issues, as the hon. Member for Orkney and Shetland (Mr. Wallace) has said, it is difficult to highlight its most significant provisions. On Second Reading the hon. Member for Glasgow, Garscadden (Mr. Dewar) described the Bill as a collection of legal bric-a-brac. However, I am sure that he will agree that, none the less, it contains many useful provisions. They may not have been controversial in any party political sense, but such matters as evidence in rape cases and the introduction of new small claims proceedings have been important changes in the law of Scotland.I thank the hon. Member for Orkney and Shetland for his comments in this debate and the hon. Member for Garscadden for what he said earlier. Debates on the Bill were certainly not conducted on party political lines, which meant that in many respects, both in Committee and on Report, we were able to give more assiduous scrutiny to the provisions than is sometimes the case. Although the Bill is something of a miscellany, I hope that what we have achieved in it will be welcome to the people of Scotland even though it was quite properly completed in this House and not in another building, somewhere in Scotland.
Question put and agreed to.
Bill accordingly read the Third time, and passed.