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Lords Chamber

Volume 431: debated on Tuesday 22 June 1982

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House Of Lords

Tuesday, 22nd June, 1982.

The House met at half-past two of the clock: The CHAIRMAN OF COMMITTEES on the Woolsack.

Prayers—Read by the Lord Bishop of Norwich.

The Prince And Princess Of Wales: Birth Of A Son

My Lords, with the leave of the House, I would like to say a very brief word, on behalf of the House, about the very happy news which we heard last night and which the nation has been celebrating this morning. The whole House will have a proper opportunity in a few days' time to express its congratulations to Her Majesty The Queen when, as Leader of the House, I shall move a Motion for an humble Address. But I am sure that the whole House will wish to join me today in congratulating their Royal Highnesses the Prince and Princess of Wales and in sending the young Prince our very warmest wishes for a long and happy life.

The Markham Case: Legal Implications

2.37 p.m.

My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.

The Question was as follows:

To ask Her Majesty's Government what advice or instructions they will now give to trading standards officers in the light of the judgment in the case brought by the West Yorkshire Trading Standards Office against Mr. Dennis Markham which appears to cast doubt on the legal definition of a pint of beer.

My Lords, it would not be appropriate for Her Majesty's Government to give advice or instructions on such matters to trading standards officers, who, as the noble Lord is aware, are employed by local authorities. It is for the courts to decide what is the legal definition of a pint of draught beer and for local weights and measures authorities to enforce that law.

My Lords, while thanking the noble Lord for that somewhat grudging reply, may I ask him whether, as he is apparently unmoved by the consumer argument against serving beer in short measure, he would bear in mind that whenever a barman serves beer in short measure, he defrauds not only the customer but also—because of the way by which duty is levied on beer—the Customs and Excise? Does the Minister find that argument sufficiently compelling to require beer to be served in an oversized marked glass instead of by the brimful measure from which it pours over the sides, which is not really an entirely appropriate vessel from which noble Lords could drink a toast to the new Royal baby?

My Lords, the noble Lord first asked me about short measure. I would draw to his attention the fact that duty on beer is paid at the brewery on the volume of the beer brewed; and if the publican, barkeeper or employee were to give short measure, the publican pays more VAT on the same volume of beer simply because the amount of VAT is determined by his income from sales. I hope therefore, even at this time, that the noble Lord will see that the Revenue is not defrauded in that respect.

The noble Lord then mentioned the question of differing sizes of glass, be they with a line or a brim measure. Perhaps the House should not be reminded that when the noble Lord last mentioned this subject, in December 1976, he said:
" Beer can also be served in a plant pot, flower vase or such ".
The noble Lord is a doctor, so I wonder whether he has also considered other receptacles which are used in hospitals, but I do not know whether they have measurements for liquids.

Perhaps I might clarify the supplementary I asked in relation to duty, my Lords. I was referring to duty and not to VAT, and the duty is levied on the barrel at so much per percentage point of specific gravity. If a landlord is able to extract more pints of beer from a barrel than there are actually in the barrel—which he can do by serving short measure—he then collects more duty than he pays and he pockets it.

My Lords, I think the noble Lord and I are on the same line in that I do not believe the landlord is able to pocket the difference because he will pay more VAT, as I pointed out. Secondly—I am sure noble Lords are aware of this—a pint of beer varies from one part of the country to another according to custom. I understand that in the region where there is at present a law case outstanding, the custom is that a pint of beer should have a certain collar or head on it, whereas in other parts of the country that is not necessarily the custom. I am sure noble Lords do not need me to tell them that a pint of beer contains the liquid together with the head or collar or whatever else goes with the beer.

Diplomatic Service: Personnel

2.41 p.m.

My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.

The Question was as follows:

To ask Her Majesty's Government how many members of the ethnic minorities and how many women are being trained for the Diplomatic Service.

My Lords, it is not our practice nor has it been that of previous Governments, to keep records of ethnic minorities within the Diplomatic Service. There are 1,251 women currently working in the Diplomatic Service, rather less than one-third of the total staff.

My Lords, while thanking the noble Lord for that Answer, may I ask him two supplementaries. First, would he agree that it would be of great benefit to the reputation of this country as a multi-racial nation to be seen to appoint members of the ethnic minorities, black or brown, as ambassadors and high commissioners to represent Britain in the world? Secondly, would it not reinforce the nation's anti-sexist development if there were women in similar positions? Can the Minister say how many women, for example, are either high commissioners or ambassadors representing this country?

My Lords, to take the noble Lord's supplementary questions in order, I would say, first, that I think that the House will accept that diplomats must be seen to represent Britain, and because of that fact in some countries neither women nor the ethnic minorities would be acceptable as ambassadors or high commissioners; the Moslem world, for example, readily springs to mind. With regard to women in senior positions in the Diplomatic Service, to the best of my knowledge there are no women high commissioners, and currently there are three women ambassadors in post, in Oslo, Copenhagen, and Montevideo.

My Lords, will not the noble Lord agree that some of the best diplomats in our service have in fact come from the ethnic minority represented by the nation of Scotland?

My Lords, the Government believe in integration of all sorts, and I would not accept that the Scottish nation is an ethnic minority.

My Lords, is the noble Lord the Minister aware that while we should all like to see more women in higher positions, those of us who have worked in the Foreign Service would not have wanted our appointments on the basis of statutory women, on grounds of sex. We look forward to many more opportunities. I hope that the noble Lord agrees that that is the most constructive approach.

Yes, my Lords, I quite agree. I do not approve of statutory women in any activity.

My Lords, will the Minister say whether the promotion and career prospects of a female member of a Diplomatic Service are affected by her marriage?

My Lords, recently the position in the Diplomatic Service has changed and there is now no restriction at all on married women. So I would say, no, her prospects are not now affected.

My Lords, may I ask my noble friend, for the purpose of answering this Question what definition do Her Majesty's Government use of the term "ethnic minority"?

My Lords, it would include any member of society who is of a creed and a racial origin different from that of the general population.

My Lords, is the noble Lord aware that the first part of the answer that he gave to my supplementary question is quite unsatisfactory? I appreciate that he has a point in suggesting that women ambassadors might not be acceptable in all parts of the Moslem world, but it is certainly not the case that any part of the Moslem world would refuse an ambassador or a high commissioner from the ethnic minorities. May I ask the noble Lord whether he will bring to the attention of his right honourable friend the importance for the reputation of this country over the years of bringing forward members of the ethnic minorities as representatives in our Diplomatic Service?

My Lords, the noble Lord took my point. Perhaps I may give him a further illustration in that it would not, at any rate in my view, be appropriate to have a senior diplomat of the Jewish faith in a Moslem country, or indeed perhaps vice versa—in Israel a diplomat of the Moslem faith, whether the diplomat be a man or woman; and that I would include, as I told my noble friend, among the ethnic minorities. Further to that, I can say with authority that there is absolutely no discrimination of any kind within the Diplomatic Service.

My Lords, is my noble friend aware that many people would be very sad if the criteria for these appointments were anything other than ability and experience?

Un Covenant: Compensation And Ex Gratia Payments

2.48 p.m.

My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.

The Question was as follows:

To ask Her Majesty's Government on what basis they contend that our obligations to comply with the requirements in Article 14(6) of the United Nations Covenant on Civil and Political Rights to provide "compensation according to law" in the cases there specified is met by providing ex gratia payments in some cases.

My Lords, the present Government, like their predecessors, take the view that the existing procedure, coupled with the right that an aggrieved person may have to bring a civil action, constitutes an adequate compliance with our obligations.

My Lords, while thanking the noble Lord for that reply, may I ask him whether he is aware that according to the Oxford English Dictionary, the meanings of the words ex gratia are:

" of, or by favour, done as a favour and not under compulsion".
Then the dictionary states:
" especially implying the absence of any legal right ".
Does the noble Lord agree that those are the meanings of the words?

My Lords, I would not seek to join issue with the noble and learned Lord in the pages of the dictionary. But the point that I wish to make is that the effect of the existence of the ex gratia system of payments gives the necessary flexibility for dealing with a very wide range of circumstances which could give rise to a miscarriage of justice and that in practice no really meritorious case is rejected.

My Lords, is it not really very difficult to contend that we satisfied our obligations under this convenant of the United Nations, which we have ratified, to provide compensation according to law, by making ex gratia payments when the latter are not only inconsistent with the former but are their direct opposite?

My Lords, I would not accept that they were the direct opposite, and I feel that they discharge what the United Nations wished to achieve. My argument would be more difficult to sustain had not a senior Government official given evidence before the United Nations Committee on Human Rights in 1978 and 1979 on this and other matters, and had it not been the case that the committee has not reported unfavourably on the matter.

Information Technology Year

2.50 p.m.

My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.

The Question was as follows:

To ask Her Majesty's Government what has been achieved so far in Information Technology Year.

My Lords, the acceleration of Government encouragement for information technology continues; but the main purpose of the Year is to increase awareness of information technology, and that is not easily measured. Many events and exhibitions have been organised nationally and regionally, and these have attracted large numbers of visitors. Her Majesty's Government believe that most visitors gain a clearer understanding of the nature and importance of information technology from their visits, which should lead to an increasing determination to seek the benefits of information technology.

My Lords, in thanking my noble friend for that useful reply, may I ask him whether it is not very encouraging that the Government, the Manpower Services Commission and the industry are all co-operating to train the young of age and the young of heart in these new technologies; and could he tell me how the money spent is shared as between industry and the taxpayer? Secondly, can he tell me what progress has been made in providing microcomputers in every secondary school in this country?

My Lords, as far as Information Technology Year 1982 is concerned, there is a joint committee of the private sector of industry and Government that has funded a budget of £3¾ million for the awareness part of Information Technology Year. The expenditure of the Government in this financial year on schemes, some of which started some time ago but many of which have started very recently, will be £134 million. As far as the accent on youth is concerned, yes, indeed, I would say to my noble friend, this is certainly a primary objective of my honourable friend the Minister of Information Technology, and during the Year there is an exhibition at the Science Museum from April to August to which we hope a million people, possibly many of them children, will go. The scheme to provide micro-computers in schools has reached nearly two-thirds of schools, and by the end of 1982 my honourable friend hopes that every secondary school will have a micro-computer. Training at the new information technology centres is another plank of the youth scheme, together with a scheme that he is now developing for summer camps.

My Lords, I thank the noble Viscount the Minister for what he has said. I believe it is an important statement, and could well provide the basis for a White Paper. Is he aware that we have always agreed on the importance of micro-technology? I remember that I brought into being ACARD, which was very successful. I should like to know if ACARD is still progressing, and I hope the noble Viscount will be able to give me a positive answer. May I say to the noble Lord who asked the Question—

My Lords, I was going to refer to the noble Lord who asked the Question, and say that for the first time I agreed with him.

My Lords, I deliberately mentioned that many of the schemes had been started before but my honourable friend has accelerated them, as I mentioned in the Answer, and has started many new ones as well. ACARD is in existence, and the continued response to the last ACARD report in this area goes on.

My Lords, may I ask the noble Viscount whether, before 1982 disappears as Information Technology Year, the Government will perhaps consider producing a Green Paper on technology and all that is associated with it, with particular reference to the National Health Service?

My Lords, that is a wider question, but as far as the National Health Service is concerned it gives me the opportunity to say that one of the new applications of my honourable friend is to encourage the use of micro-computers in surgeries throughout the health service, and that this, too, is showing an encouraging start.

My Lords, would the Minister confirm that a course is already running for Members of both Houses of Parliament, and is advertised in the House Magazine?

I am terribly sorry, my Lords, but I was trying to listen to two questions at the same time. Will the noble Baroness repeat what she said, please?

My Lords, would the noble Viscount the Minister confirm that a course is now running, or is just about to be opened, for 15 Members only at present, but Members of either House of Parliament; and that an advertisement is appearing in the House Magazine and, I believe, is being circulated with the Whips? There is also a notice on the all-party notice board.

My Lords, I am told that this is correct information but, personally, I have no information on the subject.

My Lords, as British technology is an important export earner for this country, may I ask my noble friend what is being done to promote British technology overseas in this important endeavour?

My Lords, mainly this is of course left to our industry, whose efforts are being supported to a very considerable degree. For instance, some of the new schemes following the need for the development of fibre optics are deliberately designed to put our industry in a stronger position. I think another area where the Government are strengthening the base of industry is in the teletext and viewdata area, where progress is being made and where the Government are making essential co-ordinating and promotion effort and are endeavouring to help exports.

My Lords, will the noble Viscount the Minister not agree with me that his honourable friend in the other place, the Minister in charge of technology, should be congratulated on the initiative he has taken and his enthusiasm in bringing to the notice of British industry the great importance of information technology? In asking this question I should declare an interest in that I am a founder member of the All-Party Parliamentary Group on Information Technology.

My Lords, I will convey that sentiment to my honourable friend, and it is all the more important for the fact that it is expressed by a Member who has studied the subject.

My Lords, may I ask the Minister whether in every other respect our achievements in the recent Falklands affair, and the efforts of our forces, backed by the Ministry of Defence, are worthy of the highest praise, but would the Minister not agree that as regards technological skill we did not seem to reach complete perfection?

My Lords, I think the noble Lord tempts me to go wider than the Question, but certainly one of the most important fields for the application of electronics is the defence field, and I think I would say to him that when we are able to give a full report, after a post-mortem of the campaign, it will be seen that while perfection is perhaps an elusive objective, nevertheless the vast majority of our equipment and our weapons systems performed extremely well.

My Lords, may I ask my noble friend the Minister whether he is aware that the Parliamentary Information Technology Committee is arranging an exhibition for the Telecommunication Engineering and Manufacturing Association in the Upper Waiting Hall of the Palace of Westminster between 12th and 16th July?

My Lords, I know the House will be pleased to have had that announcement.

My Lords, would the noble Lord agree that one of the most useful by-products of the Information Technology Year has been the great increase in industrial studies in secondary schools? By that I mean studies aimed at enabling pupils to understand industry, its methods, its structure and so on. But there is a great need to train teachers for this work. The Oxford Delegacy have instituted an 0-level in industrial studies, I understand, but there are very few teachers who have such training. The College of Preceptors is leading the way by instituting a diploma in industrial studies, but would the noble Viscount encourage colleges of education and university departments of education to institute diplomas for teachers, taken after they have completed their normal training, in industrial studies?

My Lords, I know that under previous Administrations and under this one much encouragement has been given to the objective which the noble Lord has outlined. I will draw his further and specific remarks to the attention of my right honourable friend the Secretary of State for Education and Science.


My Lords, at a convenient moment after 3.30 this afternoon my noble friend the Leader of the House will, with the leave of the House, repeat a Statement which is to be made in another place on Mr. Pym's visit to Luxembourg.

It may be for the convenience of the House if I were to announce that dinner will be available at the usual time this evening. The Committee stage of the Criminal Justice Bill will be adjourned at approximately 7 p.m. for a short period, during which the Pilotage Commission (Additional Function) Order 1982 and the Departments (No. 2) (Northern Ireland) Order 1982 will be taken.

Children's Homes Bill

3.1 p.m.

My Lords, I beg to move that this Bill be now read a third time. In moving this Third Reading, it is perhaps not inappropriate that, following the Statement made by my noble friend the Leader of the House and Lord Privy Seal, I draw attention to the fact that this is the first Bill to go through your Lordships' House since the birth of the Royal child and it concerns the wellbeing of children. This Bill is concerned with the protection of those children in the care of local authorities who are sent to live in privately run children's homes. At present these homes are not required to be registered and this Bill redresses this anomaly. There are some 2,000 children in privately run homes in this country, and if this Bill passes through this House these homes will be registered and inspected. I should say that the Association of Independent Householders, who represent privately run children's homes, are in agreement with the Bill.

Moved, that the Bill be now read a third time.— ( Baroness Faithfull.)

The Parliamentary Under-Secretary of State, Department of Health and Social Security
(Lord Trefgarne)

My Lords, may I say briefly, before the noble Lord the Deputy Speaker puts the Question on the Third Reading, how much the Government appreciate the efforts not only of my noble friend in bringing this Bill to this stage but also of the honourable gentleman, the Member for Hartlepool in another place, who initiated this Bill and got it through the other place so that it could be presented to your Lordships, and now it happily approaches the statute book. My noble friend refers to the fact that this is the first measure to do with children that we are passing following the happy event of yesterday. I suppose that it is worth saying that it is unlikely that the new Prince will end up in one of these homes.

My Lords, I am happy to associate myself and my noble friends with this Bill. The honourable Member in the other place and the noble Baroness, Lady Faithfull, have put the House in their debt and have rendered a service to Parliament by drawing attention to what was an omission in the protective legislation. Also they have put the social services of this country in their debt. We are glad to join in the support for this Bill and hope that its implementation will be effectively carried out.

On Question, Bill read a third time, and passed.

Planning Inquiries (Attendance Of Public)Bill

Read a third time, and passed.

Gaming (Amendment) Bill

Read a third time, and passed.

Criminal Justice Bill

3.5 p.m.

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—( Lord Elton.)

On Question, Motion agreed to.

House in Committee accordingly.

[THE LORD ABERDARE in the Chair.]

Clause 1 [ General restriction on custodial sentences]:

moved Amendment No. 1:

Page I, line 8, leave out (" Subject to subsection (2) below,").

The noble Baroness said: In moving the first amendment on this long Bill with a great number of amendments, I want to explain that the purpose of these amendments—which I think are important amendments as they get to the root of the problems in the Bill: that is, who should be in prison, how many should be in prison and what should be the different categories—if enacted, is to ensure that young offenders are not remanded or committed into custody with adult prisoners. Clause 10 gives the Home Secretary power to provide remand centres for young offenders aged 14 to 21, but, as Clause 1 stands at present, young people can and will continue to be remanded in adult prisons. I cannot believe that anyone considers this to be right for young people. On the contrary, an adult prison, however carefully segregation is attempted, is an evil finishing school for youngsters and an introduction to adult crime and to a series of antiheroes.

I remember many years ago, when I was a prison visitor at Holloway Prison, finding there a number of young people—and I was also lecturing there at the same time and so had considerable personal contact with them. Although there was a very brave attempt to try to segregate them, and the officials and warders wore plain clothes, contact with the adults in the adult prison and the amount that was speedily learned from one category to the other was nevertheless very considerable.

Such contact means also that the deterrent effect of prison is quickly lost. Several of those young women told to me that for the first day or so the idea of being sent to prison is terrible but after a few days people get used to it and then the whole deterrent effect has gone. I find it sad that I am now talking of something like 10 to 15 years ago and still the situation remains the same: that it is still not only possible but is happening all the time that young people are sent to adult prisons.

Secondly, it adds to what is one of the central points running through this Bill; and that is the question of prison overcrowding. By sending young people to prison, one is adding to the strain upon the population in that particular prison. In another place, in Committee, the Minister conceded that the object of the amendment (a similar amendment was moved there) was desirable but argued that practicalities prevented any real progress. The National Association of Probation Officers feel very strongly about this and about the particular amendment. They are naturally well able to judge the disastrous effects of the continuation of the present system. 1 agree that all Governments have been dilatory over this, and that this is not something which has suddenly happened. However, it is about time that it was brought to an end. The critical overcrowding of prisons, together with the recognition of the importance of young offenders being treated in a way which will not help to turn them into recidivists, should certainly give an impetus of urgency to what we are trying to achieve by means of this amendment.

I do not for one moment expect the Minister to stand up and say that he will accept the amendment as it is, because I understand the practical problems. But what we want to hear from the Government is not just that there is agreement on the principle, but that they believe this has a high priority and that they hope to be able to give a timetable of possible and highly probable implementation. If the Minister cannot give that today I hope that he will come back on Report, so that we do have some record and some indication that this really is being treated seriously now, when we are becoming more and more aware, in matters both of theory and of research, of what is happening in penology. Unfortunately, the distance between theory and practice is growing wider rather than narrower. I beg to move.

I should like to associate myself very strongly with my noble friend's amendment, and to emphasise that, while it may be possible occasionally in a large central prison like Holloway to achieve some sort of segregation of young people, in local prisons where so many of them go, the conditions are particularly bad—worse than they are in central prisons—and the overcrowding is intense. There is really no possibility of proper segregation.

May I add support from these Benches for this amendment. The time comes when Governments have to accept that things that they have been saying for 15 years ought to be done and will now say that they shall be done. I would ask for approximately that which the noble Baroness has asked for—that the Government agreeing that this should be done, the noble Lord on behalf of the Government will now give us a timetable showing how it is going to be done and even saying: "It shall be done except in certain circumstances."

I do not think that the Government can be asked to legislate for something which they simply cannot do, and I think that they are really in that position—more shame to them and to all the other Governments before them—but I believe that we want something positive. The noble Baroness has put forward an unanswerable case. I am sure the noble Lord the Minister in fact agrees with it, and I hope that we get something out of it.

May I emphasise what my noble friend Lady Wootton has said? There is overcrowding in nearly every prison in the country, but the overcrowding in the local prisons, such as Leeds, is very much worse than in the training prisons, such as Wakefield. This is so because the local prisons have to take everybody who is sent to them by the courts, whereas to some extent the training prisons can say which prisoners shall come to them. But it is precisely to the local prisons that, with very few exceptions, young people are sent on remand. Therefore the likelihood of their being in the worst possible conditions is much greater than applies in some of the other prisons. I hope that the noble Lord will look at this question and make sure that the local prisons are not made worse than they otherwise might be by the influx of these under-21s.

I can say at the outset that I have the greatest sympathy with the amendment proposed by the noble Baroness and with the proposition on which it rests: that young people remanded for trial and young people committed pending sentence should be kept apart from the general run of the prison population and held in young offender establishments rather than in prisons which, as all your Lordships are aware, are overcrowded.

The noble Baroness, Lady Bacon, referred to Leeds, which I recently visited myself at a very early hour in the day, so that I saw it at its worst; and I take the point. I only wish, however, that I could translate that sympathy into acceptance of the noble Baroness's amendment, although she was kind enough to say that she did not expect that. That would certainly get our proceedings off in a friendly and accommodating atmosphere in which we all work at our best. Sadly, however, I cannot; and that is in part because things are not entirely as they seem.

What seems to be the case is that we have two distinct sorts of institution—prisons on the one hand and remand centres on the other—and that we are free to allocate remanded prisoners to one or the other as we choose. We can allocate them as we choose, and I quite see why the noble Baroness would like us always to choose remand centres rather than prisons, in particular for young offenders. But the fact so far as the law is concerned is that there is no distinction between the two categories of establishments. Both are prisons in law, and on the face of it the effect of the amendment would be to exclude something like 2,100 unsentenced under-21s from that accommodation; and we would have nowhere else to put them.

We do not regard this lack of distinction between remand centres and other prison establishments as satisfactory. Indeed, in Clause 10 of the Bill we shall, if your Lordships agree—and the noble Baroness has drawn attention to our intentions here—take power to do something about it. Under those powers, we intend to designate remand centres as such, and as being distinct from prisons. We shall be doing the same for detention and youth custody centres.

Why then, your Lordships may ask, can we not anticipate your Lordships' approval of those powers, accept a restriction preventing our sending young people under 21 to prison at any stage and not just after sentence, and agree to the noble Baroness's amendments? In the first place, it will take some time to achieve the recategorisation, and not every establishment will be redesignated at the same time. That perhaps could be overcome by transitional arrangements of one sort or another, cumbersome though that procedure doubtless would be; but I regret to tell your Lordships that even then we would still be in a difficulty. At present we already, wherever possible, follow a policy of detaining unsentenced young people in what we call remand centres, and we detain such people in ordinary local prisons only when no remand centre place is available for them in that part of the country. Even so, about 700 of them are in prison at any one time; and it is to them that the noble Baroness, Lady Wootton of Abinger, the noble Baroness, Lady Bacon, and the noble Lord, Lord Donaldson, all referred.

The noble Baroness's amendments would therefore result in there being nowhere (other than police cells, I suppose) in which any of those people could be detained and, given the crying need of almost every other part of the prison system for copious resources, I am afraid there is no prospect of my being able to undertake to run up sufficient accommodation in time to contain these young people.

Following the debate in this House on the Motion of the noble Earl, Lord Longford, a few weeks ago, your Lordships will be only too well aware of the great range of heavy and conflicting demands now facing the resources of the prison service and you would not, I think, expect me to commit a significant part of those on one requirement, even if I could. The noble Lord, Lord Donaldson, was most specific in the desire that I should give a timetable to your Lordships. The fact is that, again, things are not as simple as they look. Improvements in one sector of the prison provision relieve pressure upon others, and I am not able to say with what rapidity this will affect a particular sector, especially when we remember that in many cases remand centres are in some sense attached to existing prisons.

The noble Baroness and the rest of your Lordships can be very well assured of the Government's intention to keep young people, including unsentenced young people, separate from the more mature criminal population in local and other prisons. This we are already doing to a substantial, if limited, extent by administrative means. As our building programme progresses and as other provisions in this Bill begin to bite, we shall be able to do so for increasing numbers of them.

I hope the noble Baroness will accept our commitment to this policy as being a genuine one and that she will not feel the need to try it further.

Before the noble Lord sits down, may I get his figures right? Did he say that there were 2,200 under-21s in remand centres and 700 in local prisons, or was it a total of 2,200?

This amendment touches on a very important question; namely, the sense of grievance of those who are kept in prison on remand, and who are then either acquitted or not sentenced to any form of incarceration at all. Therefore, it is very important indeed to remedy that rightly felt sense of injustice on the part of those who come within that classification. I wonder whether the Minister can help us about the percentage of those who are imprisoned on remand and who, ultimately, are found guilty or are sent to prison. I do not ask for an answer off the cuff, but I suspect that quite a large proportion do not have subsequently to face terms of imprisonment. Therefore, there is an element of urgency in this. I confess that we have not found a great deal of satisfaction in the answer of the Minister, but no doubt my noble friend Lady Birk will be able to cross-examine with some particularity about the nature of the unsatisfactory answer.

I wonder whether I may very briefly support my noble friend. We are dealing here with young people under the age of 21. That incorporates those who come before the juvenile benches and, also, the young people who come before the adult benches. Therefore, one has to see where one can send the worst of the possible offenders on remand. I have had the privilege of being in an area, PSD, where we had two very good remand homes. The noble Baroness, Lady Birk, referred to Holloway, where they are all girls and women, and, although I am well aware that there are, unfortunately, an increasing number of girls who are getting into trouble with the law, I suppose that we are really thinking of young men.

From the noble Baroness's knowledge of the bench, which is extensive, she will know that there are many ways of dealing with young people, if one wants them to come back to court having had social services reports in, perhaps, three weeks. One can put them on bail, one can put them in a remand centre, one can send them back to their homes or one can remand them in custody. In custody, in my courts, always meant—perhaps I was lucky—a remand home. At this moment, I am talking of the juvenile courts and the under-17s, but I do not think one would ever have sent one to prison.

But when we take into consideration the increasing number of violent crimes that are committed at this time by the 16 to 21s in this country, it seems that any court must be able to remand a young person under that age to prison. If we were dealing with the under 17s, I would be entirely with the noble Baroness. But, as we are dealing with up to 21s, it is very important that courts should still be able to remand whenever they see fit. So I support my noble friend.

May I come back to the basis of the question that arises from the amendment? What we are dealing with are the 700 young people who are in local prisons, and surely the Minister would agree with the Prison and Borstal Governors' Association, who have described that situation as being a national scandal. I should like to ask the Minister not whether things are not as simple as they appear, but why some effort cannot be made immediately to build into the prison programme remand centres which are suitable for the type of person whom the noble Baroness has just mentioned—the person who needs to be locked up, but is not requiring, in any shape or form, the kind of security which is provided in a local prison? This national scandal should be brought to an end, and I should like to ask the Minister whether there are any plans for building such premises, which could be done very quickly without any major security.

I should like first to say that I am very much obliged to my noble friend Lady Macleod of Borve for explaining more fully than I had both the pressures on this part of the system and the reasons for wishing to continue with a custodial remand. As to what primarily concerns your Lordships, it is clear that there is an agreed inordinate pressure of bodies upon places throughout the prison system, and we have debated this at length on a number of occasions. What your Lordships are saying is that not only should there be an application of our finite resources to reducing pressure by increasing the places —and also, I hope your Lordships will agree, by reducing the number of bodies or the duration of their imprisonment, which is one of the principal objects of this Bill—but the young offender should go to the head of the queue for those resources in the prison system which extend to the need for more staff to oversee the activities of prisoners when they are out of their cells, more accommodation for prisoners to engage in manufacturing and other activities out of their cells, more resources for the education of prisoners in education centres, more cells, more washing facilities, better reception facilities and better processing all the way to the courts.

What I am trying to say, first, is that a programme of specific capital investment directed to that point, as the noble Lord, Lord Hutchinson of Lullington, has suggested, could not be implemented as swiftly as he suspects. The time range of introducing a new prison establishment is very long. It is a good deal longer than a hospital, or certainly as long, with the planning requirements and so on. It is not an overnight waving of the wand. But, given that, and before the noble Lord, Lord Donaldson, leaps up to put me right, saying that that does not alter anything, I go on to say that a lot of the accommodation that we have is suitable, and that it will become available in the process of our modernisation programme, not necessarily in buildings designed to take young offenders, but in buildings designed to take those who are now in the accommodation which the young offenders could better be occupying.

I have sought to arrive at the percentage of acquittals of young persons received on remand. This is the question about the numbers who subsequently receive or do not receive, sentences, which the noble and learned Lord, Lord Elwyn-Jones, asked me. I understand that, in very round figures, it is about 50/50. That underlines the understandable feeling of resentment of those who have been incarcerated and who have subsequently been told on their release that they need not have been. I accept that, but I do not think that it is the principal reason for trying to improve the conditions in which they are kept. The two points that I want to put before your Lordships are, first, that we are committed to listening and, finally, to resolving this problem; and, secondly, that it must be part of an overall programme for the whole of the prison population. The rest of the programme cannot be deferred in order to favour this part of the population, about which we feel very strongly.

The noble Lord anticipated my interrupting him, but he has not altogether prevented me. I take exception to the view that it takes years to build a prison, when it is not that that we are talking about. We are talking about the kind of country house which can be bought almost anywhere, putting a fence around it and installing a few telephones. Half the people who will be remanded there will not be sentenced to custodial service, anyway, so it is in no way parallel to building a prison.

From the point of view of the outsider who is not an expert on this, I must confess that what the Minister has said seems to be very unsatisfactory, for two reasons. He gave us a list of important things which have got to be done for the prison service, which is absolutely right, but some of us believe that these particular people ought to go to the top of the queue for two reasons: first because, as the noble and learned Lord, Lord Elwyn-Jones, has said, the whole business of remand in custody is a very suspect business indeed, and secondly, and much more importantly, because these young people are at the very age when, if we send them into the environment of an adult prison, we shall breed lifelong prisoners. For those two reasons, particularly the second, I feel that this must be an absolute priority over all the other desirable things which the Minister mentioned. If the Minister has been told that it takes longer to build a fairly secure remand centre than it does to build a hospital, I suggest that it is time he consulted another architect.

Perhaps I shall not want to hear what the last seven words of the noble Lord's interjection were, but I did not hear them. Was he telling me to tell it to the marines?

No, the marines have got their hands fairly full at the moment. What I was doing was telling the noble Lord to consult other architects than the ones who told him that it takes longer to build a remand centre than it does to build a hospital, because it cannot be true.

I was interested in what was said by the noble Baroness, Lady Macleod of Borve. At one point, however, she confused remand homes and remand centres. She also said that her court is able to send the most serious offenders to prison. In our part of the world, and in other parts too, maybe, it does not happen like that. There is a remand centre some 15 miles out of Leeds which is on the same site as an open prison. The reason why young people are sent into the most appalling conditions in Leeds Prison—I am pleased that the noble Lord the Minister has seen the appalling conditions there—is not because they are the most severe offenders but because the remand centre is full and there is nowhere else to send them, so they have to go into Leeds Prison on remand.

To return to the amendment, I have tremendous sympathy for what all noble Lords have said about the obvious long-term need to get the balance right. I am a little suspicious of instant remand homes at the waving of a wand, but it can happen. Nevertheless, in the nature of things they take time. Surely the question, though, is whether it is right for this House to put the amendment into the Bill at this point. It seems to me that in due course it would be right to have the sense of the amendment included in the Bill. However, it is too early to do so now because there will be insufficient resources and time to allow us to obey the law if the amendment is included now. Perhaps we can come back to it in two or three years' time when other things have been done.

I am sure that my noble friend Lord Mottistone is right. Architecture and what is practically desirable on the one hand are one thing. Legal necessity and the problem of having to cope with young offenders, many of whom have committed very serious offences, within the framework of the present system are another. We have to take things as they are, not as we should like them to be. Taking things as they are, it seems to me that it would be folly to leave out subsection (2) of the clause.

I am grateful to my two noble friends for bringing us back to a consideration of the amendment in the context of the Bill. As a finale to my response to what noble Lords have said about this, I would say that I have tried to make our concern clear. It is not a question of a country house being done over, with a few inexpensive additions. The people who could live there could be sent home on bail. We have to provide secure accommodation. That accommodation is expensive. I thought I retracted that it took longer than a hospital—I said it took a very long time, commensurate with that, and I stand by that—to provide prison accommodation, which is not always the most welcome new neighbour in a community. There are many planning difficulties. However, the state of the prison service as it now is—the noble Baroness has been generous enough to accept that this is not the fault only of this Government; the noble Lord, Lord Donaldson of Kingsbridge, has attributed it to many Governments, and I would endorse both speakers—means that to include the amendment in the Bill at this stage would leave us with nowhere to send a large number of remand cases, a considerable number of whom would subsequently be convicted, and convicted of violent misdemeanours, which means that they ought not to he left free to roam the streets. I hope that the noble Baroness will accept the earnest assurance I have given her of the fact that my perception of this very nearly coincides with hers.

One of the things which the Bill proposes is to do away with borstal training. No doubt the youth custody centres will be largely located in the borstal institutions, but it seems likely that the length of sentences and the number of persons so committed will be less than the total man-woman population, over time, in the borstal centres. Could not some use be made of the borstal centres to relieve this problem? Could not some spare accommodation be found in that way?

I am most grateful to the noble Baroness for giving an instance of the principle which I sought to adduce: that the improvements which we are making both in the capital programme and in the Bill will reduce pressure on accommodation and allow young people to go into it. I am most grateful to the noble Baroness.

I am very grateful to all noble Lords who have spoken in support of the amendment The Minister—and I agree with him—said that he agreed with the principle behind the amendment, as did the Minister in another place. He also pointed to the defects in the amendment as it stands at present. However, I think the Minister will agree with me that that is not the important part of it. If we are to enter into a discussion of remand centres in prisons and the fact that although they are used they are not remand centres in law, there is a danger that we shall get bogged down in semantics. That is not the principle which we are discussing.

I did not intend to divide the Committee when moving the amendment. However, having listened to what other noble Lords have said, and also to what the Minister has said, 1 am extremely worried—and I think other noble Lords who have spoken feel the same —that there does not seem to be the sense of urgency and impetus behind what the Minister said which I was hoping to hear. We on this side of the Committee are also extremely worried about the wording of the subsection. The subsection which we are trying to remove is written in such a way that it is a complete endorsement of the present system. It is not written in a way which gives an indication that this is going to be temporary and that we shall get rid of a wretched system which has gone on for too long.

My noble and learned friend Lord Elwyn-Jones made a telling point when he referred to the numbers of young people who are sent to prison. The noble Baroness, Lady Macleod of Borve, is quite right when she says that there are alternatives which all of us certainly try to use. I do, as I am sure the noble Baroness does. Nevertheless, the fact remains that there are still far too many young people in prisons—and not only in the prisons I was talking about. My noble friends have pointed out the even worse state in local prisons. Because there is no indication of any hope of trying to remedy or starting to remedy what is an atrocious system at the present time, I feel that I must test the temperature of the Committee.

My Lords, before the noble Baroness does that, may I ask her whether she will consider the terms of the amendment very carefully, because she is in fact throwing 2,100 people out on the street. I cannot imagine that many people would wish to vote for that.

I am dividing on this amendment because of the whole principle involved and the approach put forward by the Government. Unless a miracle occurs, I do not believe that we are going to win this Division; but it will at least make the Government think and come back with something they themselves have drafted for the Bill, which would at least meet the very strong feeling expressed around the Committee. Then we would feel that we had achieved something.

The amendment does not say that the 2,000 people who are already there are to be turned out. It just says that further people are not to be put in.

3.41 p.m.

On Question, Whether the said amendment (No. 1) shall be agreed to?

Their Lordships divided: Contents, 74; Not-Contents, 108.



Allen of Fallowfield, L.Kilmarnock, L.
Ardwick, L.Kirkhill, L.
Aylestone, L.Listowel, E.
Bacon, B.Llewelyn-Davies of Hastoe. B.
Balogh, L.Longford, E.
Birk, B.McCarthy, L.
Bishopston, L. [Teller.]MacLeod of Fuinary, L.
Blease, L.Milford, L.
Blyton, L.Mishcon, L.
Boston of Faversham, L.Molloy, L.
Brockway, L.Onslow, E.
Brooks of Tremorfa, L.Oram, L.
Caradon, L.Peart, L.
Cledwyn of Penrhos, L.Ponsonby of Shulbrede, L. [Teller.]
Clifford of Chudleigh, L.
Cooper of Stockton Heath, L.Redcliffe-Maud, L.
Darcy (de Knayth), B.Rhodes, L.
Davies of Penrhys, L.Sainsbury, L.
Denington, B.Saltoun, Ly.
Donaldson of Kingsbridge, L.Shinwell, L.
Elwyn-Jones, L.Stamp, L.
Elystan-Morgan, L.Stedman, B.
Ewart-Biggs, B.Stewart of Alvechurch, B.
Faithfull, B.Stewart of Fulham, L.
Gardiner, L.Stone, L.
Glenamara, L.Strabolgi, L.
Gore-Booth, L.Taylor of Mansfield, L.
Hanworth, V.Underhill, L.
Hatch of Lusby, L.Wallace of Coslany, L.
Howie of Troon, L.Walston, L.
Hunt, L.Wedderburn of Charlton, L.
Hutchinson of Lullington, L.Wells-Pestell, L.
Ingleby, V.Whaddon, L.
Jacques, L.White, B.
James of Rusholme, L.Wilson of Langside, L.
Jeger, B.Wootton of Abinger, B.
Jenkins of Putney, L.Wynne-Jones, L.
Kagan, L.


Adeane, L.Digby, L.
Alexander of Tunis, E.Dilhorne, V.
Allen of Abbeydale, L.Drumalbyn, L.
Allerton, L.Ebbisham, L.
Auckland, L.Eccles, V.
Avon, E.Effingham, E.
Bathurst, E.Ellenborough, L.
Belhaven and Stenton, L.Elton, L.
Beloff, L.Ferrers, E.
Berkeley, B.Fortescue, E.
Bessborough, E.Fraser of Kilmorack, L.
Cairns, E.Gainford, L.
Cathcart, E.Garner, L.
Cawley, L.Gibson-Watt, L.
Chelwood, L.Glenarthur, L.
Clitheroe, L.Glenkinglas, L.
Colyton, L.Grimston of Westbury, L.
Cork and Orrery, E.Harvey of Prestbury, L.
Cottesloe, L.Hatherton, L.
Daventry, V.Hawke, L.
Davidson, V.Henley, L.
De La Warr, E.Hives, L.
De L'Isle, V.Home of the Hirsel, L.
Denham, L. [Teller.]Hylton-Foster, B.
Derwent, L.Ilchester, E.

Inglewood, L.Reigate, L.
Killearn, L.Reilly, L.
Lane-Fox, B.Renton, L.
Long, V.Richardson, L.
Lovat, L.Rochdale, V.
Lucas of Chilworth, L.Rugby, L.
Lyell, L.St. Davids, V.
Mackay of Clashfern, L.St. John of Bletso, L.
Macleod of Borve, B.Sandford, L.
Mancroft, L.Sandys, L. [Teller.]
Mar, C.Selkirk, E.
Marley, L.Sharples, B.
Massereene and Ferrard, V.Skelmersdale, L.
Merrivale, L.Spens, L.
Mersey, V.Stodart of Leaston, L.
Mills, V.Strathclyde, L.
Milverton, L.Terrington, L.
Monk Bretton, L.Teviot, L.
Montagu of Beaulieu, L.Thomas of Swynnerton, L.
Montgomery of Alamein, V.Tollemache, L.
Mottistone, L.Torphichen, L.
Murton of Lindisfarne, L.Trefgarne, L.
Newall, L.Trumpington, B.
Northchurch, B.Vaux of Harrowden, L.
Nugent of Guildford, L.Vivian, L.
Orr-Ewing, L.Wakefield of Kendal, L.
Porritt, L.Waldegrave, E.
Radnor, E.Westbury, L.
Reay, L.Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

I think your Lordships would agree that it might now be appropriate for the Statement to be repeated. Therefore, I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

Luxembourg Meeting Of Foreign Ministers

3.49 p.m.

My Lords, with the leave of the House, I will now repeat a Statement being made in another place by my right honourable friend the Secretary of State for Foreign Affairs, on the visit which he paid to Luxembourg on 20th to 21st June, during which he attended a meeting of the Foreign Ministers of the Ten and the first part of the Foreign Affairs Council, which continues today and on which there will be a report to the House. The Statement is as follows:

"At my request there was first a discussion of the Community's decision-making procedures. I left our partners in no doubt about the British Government's position that where a member state considers that very important interests are at stake, discussion must be continued until unanimous agreement is reached and that Community business should continue to be governed by this principle in accordance with the Luxembourg Compromise. This position was supported unreservedly by two member states and by two others with minor qualifications.

" The position is therefore that five member states support the principle that decisions must be deferred where a member state considers that its major national interests are at stake. It was not to be expected that the five members who declined to endorse this principle in 1966 would do so now, but they made it clear that they were not seeking to reopen the Luxembourg Compromise. The Community's practice since 1966 was based on an agreement to disagree, and this remains the position.

" In view of what happened at the Agriculture Council on 18th May, I would obviously have preferred a clear-cut result. Although there is now a better understanding in the Community of our position and of the principles involved, we may have to return to the subject. The crucial point is what will happen in practice when our very important national interests are at stake. We shall continue to defend them on the basis we have made clear to our partners.

" In addition to the discussion on majority voting, we also had a brief discussion on the Genscher/ Colombo proposals. No conclusions were reached but it was agreed that work on the proposals would continue.

" The Foreign Ministers agreed that the arms embargoes on Argentina imposed nationally by member states would remain in force for the time being. They decided that the European Community's ban on Argentine imports should be lifted as from 22nd June in the expectation that there would be no further acts of force in the South Atlantic.

" They also agreed that, should this not be the case, a new situation would arise to which the Ten would be obliged to react immediately. Normal commercial relations between Argentina and the member states of the European Community depend therefore on a lasting cessation of hostilities in the South Atlantic.

" Foreign Ministers also discussed the increasingly serious situation in the Lebanon. They expressed their determination to continue humanitarian aid both nationally and in the Community framework. The Community decided not to proceed at this stage with the signature of the second Financial Protocol with Israel.

" On 21st June I had a meeting with the Spanish Foreign Minister. Sr Perez-Llorca informed me that the Spanish Government wished to postpone the arrangements by which the Lisbon statement of 10th April 1980 would have been implemented on 25th June 1982 with a meeting between us in Portugal and the opening that day of the Gibraltar border.

" Her Majesty's Government were fully prepared to go ahead and I much regret this further postponement. Nevertheless I agreed with the Spanish Foreign Minister that we were both determined to keep alive the process envisaged in the Lisbon agreement; that we would remain in touch on the matter personally and through diplomatic channels; and that the date for a new meeting would be fixed in due course. The Governor of Gibraltar will be returning to London for consultations tomorrow, and I hope to have talks with Sir Joshua Hassan and Mr. Isola in the near future ".

My Lords, that concludes the Statement.

3.54 p.m.

My Lords, the House is grateful to the noble Baroness for repeating the Statement. Is she aware that that part of the Statement which deals with the Luxembourg Compromise is vague and unsatisfactory? Is the way not left open for the veto to be ignored once again, and what happens if that takes place? Is it not vital for further talks to be held as soon as possible to clarify the matter? And was not some procedure which would define a very important national interest, which is the wording in the Luxembourg Compromise, discussed? On the Genscher/Colombo proposals, are not the voting procedures dealt with in these proposals, and is there a chance that the work on the proposals might be completed fairly soon? Perhaps the noble Baroness could put a date on it.

While it is disappointing that the imports ban should be raised before the cessation of hostilities by the Argentine, can the noble Baroness enlarge on the proposal to extend the arms embargo, which is very welcome news? Can we be sure now that armaments from France, like the Exocet missile and other armaments, will not reach the Argentine through Peru or some other country?

With regard to the Lebanon, is the EEC now proposing any further action in accordance with the Venice declaration? Are any initiatives from the leaders of the EEC in view? Can the noble Baroness say if United Nations Resolution 512 is being implemented; namely, the resolution which deals with the humanitarian aspects of this matter, and the need for medical supplies getting through to the Lebanon from the United Nations and other agencies as soon as possible? Is it true, for example, that a ship in Cyprus is unable to get through because the port of Lebanon is mined? On the last point, Gibraltar, does the decision taken mean that the frontier at La Linea will remain closed indefinitely now, or will the 1980 argeement that the frontier should be opened be implemented before the talks are resumed? Will what has taken place now affect the United Kingdom's attitude to Spain's entry into European Community?

My Lords, we, too, would like to thank the noble Baroness for repeating the Statement. First, I think, we would all like to express sorrow at the postponement of the talks on Gibraltar. We must all hope that when the tension over the Falklands has diminished somewhat they will still, as I think the Government anticipate, take place.

Even though the deplorable so-called compromise of Luxembourg has apparently been reinstated—and here I differ from the noble Lord, Lord Cledwyn; I think it has been reinstated—as the accepted unofficial rule, we must at least hope, surely, that it will not be so disgracefully misused as it has been in the past. What is more sad, to my mind at any rate, is what I fear is the prospective demise of the Colombo/ Genscher plan. Since this plan, it seems, can only be accepted, even in a watered down form, by unanimous vote—I think I am right in saying that this is necessary —is it not obvious that no significant proposals contained in it will ever see the light of day? The Danes, for instance, have a veto, and seeing that the overriding objective is never to separate themselves, or to separate themselves as little as possible, from their Scandinavian friends, they will invariably exer- cise it in order to block the smallest advance towards European political unity, of which in principle they thoroughly disapprove. I would be interested to know if the noble Baroness can comment on that statement.

Would not the Government, therefore, agree that, if there is to be any advance in this direction, it must be made by such members as favour it? After all, political action is outside the treaties, and those who favour it can do so in any way they please. There is no reason, for instance, why members who favour some sort of co-operation as regards defence should not co-operate, without involving those colleagues who do not want so to co-operate, and who in any case would in no way be bound by any decision taken in this sphere. Otherwise, frankly, I see little future in common political action, still less in the formation of any genuine common foreign policy.

My Lords, I would like to thank both the noble Lord, Lord Cledwyn, and the noble Lord, Lord Gladwyn, for their response to the Statement. They have asked a number of questions on different matters, and I will do my best to answer them. The noble Lord, Lord Cledwyn, asked a number of questions, on the Luxembourg Compromise. I would like to say that five member states agreed that the Community should continue the practice of deferring majority voting when member states consider that major national interests are at stake. We can, therefore, expect that the Community will continue to operate on a basis which will enable us to safeguard our important national interests.

On the question of the Genscher/Colombo proposals—a point raised by the noble Lord, Lord Cledwyn of Penrhos—again I can give no date when they might be implemented. Discussion continues between the member states and there are a number of problems still to be resolved. I am afraid that that does not answer the detailed points that the noble Lord, Lord Gladwyn, raised but, as the noble Lord will know himself—and he no doubt will have heard the Government's views expressed in a speech by my right honourable friend the Minister of State in another place last week—it has now been recognised that there is an ad hoc group of officials which have been examining the proposals, and they should continue this work under the Danish Presidency.

As regards the Lebanon, I was asked quite specifically about help on humanitarian grounds. We are contributing, through the European Community, to the International Committee of the Red Cross appeal for aid to the Lebanon, and the Government have also pledged almost £¼ million of humanitarian aid to the victims of the conflict. This is being channelled through the International Committee of the Red Cross, the Lebanon Red Cross and other agencies.

Finally, both noble Lords raised the question of Gibraltar. I think that we all agree with the point that the noble Lord, Lord Gladwyn, made that it is most regrettable that the opening of the border has been postponed. I do not feel that I can go further than what I said in the Statement on this matter.

My Lords, as regards the Statement, I wonder whether the Government can give a little more information on three particular points. First, as regards the Luxembourg Compromise, did the Secretary of State for Foreign Affairs find it possible to introduce the idea of a country giving its reasons in writing when it was invoking the veto—an idea which was very fully debated in this House?

On the question of the Genscher/Columbo proposals, we heard in the Statement that work would continue and, in her answer just now, the noble Baroness referred to an ad hoc group of officials. It all depends on the tone of voice, does it not? Is this work continuing among the group of ad hoc officials in a hopeful tone of voice or in a "sweep it under the carpet" tone of voice? I think that the House would like to know the answer to that.

As regards the Lebanon, we find that for the fifth time in a generation the Middle East is in flames; the Israel Army stands halfway up the Lebanon; and world war is nearer than it has been for many weeks at least, to put it mildly. Yet the European Community, after its considerable history of political co-operation and positive proposals in this matter, simply proposes not to proceed with the Second Financial Protocol. Can the Government at least tell the House what is the Second Financial Protocol?

My Lords, the noble Lord, Lord Kennet, has raised three further points. The first concerns the Luxembourg Compromise. I think that I can only say further on this matter that, on the question of whether or not it enables us still to have a veto, it was accepted by the Six nations that it did enable us to do so, and the agreement to disagree has worked for nearly 10 years among the Nine and the Ten. As regards the question of giving our reasons in writing, that certainly is an idea which was included in the Genscher/Colombo proposals, but there was no decision reached about the texts of this matter at the meeting which concluded on 20th June. I really cannot add anything further to what I have already said about the Genscher/Colombo discussions and certainly, if I may say so, not about the tone of voice. I have tried to indicate that the discussions are continuing, and I think that that is where the matter must rest. I have no doubt that, when it says that the report makes this quite plain, that is what is happening and it is continuing its work under the Danish presidency at present and will, of course, continue—should it not be concluded before then—under the next presidency.

The noble Lord finally asked me a further question about the Lebanon. I should like to say on this matter that we did once again maintain the firm commitments to the principles of the Venice Declaration as a framework upon which progress towards a negotiated settlement in the Middle East could be based. We are regularly in touch with the parties concerned to promote the acceptance of these principles.

My Lords, I should like to ask my noble friend two questions. The first concerns the Luxembourg Compromise, as regards which I think everybody would accept that the veto should be there for real and proper defence of national interests—that is, stopping people fishing up to the shores of Great Britain. But it seems to have been used recently as a bargaining counter. To use it as a bargaining counter—in other words, to say, "I will not pay my parking fine unless I get my case heard favourably in the House of Lords"—seems to be an abuse of that Luxembourg Compromise. I ask my noble friend to bear in mind what happened with the liberum veto in Poland. When that happened, the whole of the Polish constitution collapsed because everybody had the power of veto. Can we please have an undertaking from Her Majesty's Government that they will not use it in the way which I described as regards the parking fine in the House of Lords?

Secondly, I should like to go back to the problem of Gibraltar. When we have a situation like the Berlin Wall across from Gibraltar to La Linea, is it not rather odd that Spain should still be a member of NATO when it has not taken down that "Berlin Wall" between Gibraltar and Spain?

My Lords, I hope I made clear in what I said earlier that, as regards the question of whether the Luxembourg Compromise is still valid and when it would be used, from discussion it is quite clear that five member states, including ourselves, took the view that the practice of deferring decisions by majority voting where a member state considers that important national interests are at stake should be continued. The operative words are "important national interests I think that this is the matter upon which we should concentrate. It provides a basis for the Community's decision-taking procedures which will enable important national interests in the future to continue to be safeguarded.

On the question of Spain and NATO, of course, as a Government we have welcomed Spain's entry into NATO which has just taken place and which will be good for the NATO Alliance. We have not set any pre-conditions to this. However, it is a fact that it is regrettable that the border between the territories of two NATO allies should be closed, and that is why we hope that the situation will be rectified as soon as possible.

My Lords, I should like to ask the noble Baroness one very brief question. While we all hope for an amicable solution to the problem, can she give us an assurance at least that, so long as Spain keeps the frontier with Gibraltar closed, the accession of Spain to the Common Market will not be acceptable to Her Majesty's Government?

My Lords, on the question of the accession of Spain to the Community, I should like to confirm what I think has already been said—namely, that, although we have supported Spain's application to join the Community, it is inconceivable that there should be a closed frontier between the territories of two members of the Community, and we have made this point clear to the Spaniards.

My Lords, I want to ask my noble friend the Leader of the House just one question. Although I welcome the arrival in this country tomorrow of the Governor and the visit later on of Sir Joshua Hassan and Mr. Peter Isola, in view of what has transpired in Luxembourg, will Her Majesty's Government be willing to place on the agenda of the discussions with these gentlemen the question of a Government reappraisal regarding the sustaining of the economy of Gibraltar? First, one is not sure that the commercialisation of the dockyard is viable. Secondly, the alternative economic activities which were looked into by a consultancy firm appointed by the ODA on behalf of the Gibraltar Government included tourism, financial operations, industrial activities and free trade zones. Are some of those not somewhat irrelevant in view of the fact that Spain has decided not to open the frontier?

My Lords, I have no doubt at all that when the Governor comes to London all these many issues will be discussed. They are, of course, material to all the reasons for wanting the frontier to be reopened. But as I have already indicated, it is an unhappy situation that Spain has not reopened the frontier, as we hoped she would.

Criminal Justice Bill

4.12 p.m.

House again in Committee.

[ Amendment No. 2 not moved.]

moved Amendment No. 3:

Page 2, line 4, at end insert (" or make a detention centre order.").

The noble Lord said: I beg to move this amendment which stands in the names of myself, my noble friend Lady Birk, and the noble Lord, Lord Donaldson of Kingsbridge. The effect of this amendment, if it were to be graciously accepted by the Government and incorporated in the Bill, would be to abolish detention centres. The amendment has been moved upon the basis that to allow it would be a logical progression in the philosophy of Part I of the Bill, and also that it would be consistent with the development of progressive thought on this matter over the last decade.

As many Members of the Committee will know, as early as 1974 the Advisory Council on the Penal System recommended that the three systems of imprisonment, borstal and detention centre should be merged into one youth custody scheme. That report spelt out very succinctly its reasons. They were as follows:

" The general concept of constructive training pioneered by the borstal system has indeed won such wide acceptance that it is largely applied not only in borstals but throughout the young prisoner centres and detention centres as well. The result is that the supposed distinctions, which were once real and significant, between prisons, borstals and detention centres as establishments offering alternative ways of dealing with young adult offenders in custody, have now become blurred and indeed misleading ".

That argument was accepted by the last Labour Government in their Green Paper of 1978 entitled, Youth custody and supervision—a new sentence.

The present Government, when they took office, very soon thereafter published their White Paper of 1980, Young Offenders. But although accepting that there was an unanswerable case for the fusion for young offenders of the system of imprisonment and borstal, they jibbed at the inclusion of detention centres.

In the submission of those of us on these Benches, there are very strong and overwhelming reasons for accepting this amendment. I think that the reasons can be summarised as follows. If fusion is brought about, it will inevitably create a more flexible system than ever existed before. It will enable the problems of overcrowding to be tackled on the one hand and, on the other, the conditions of under-utilisation also to be dealt with. The effect upon the individual offender more often than not would be that that offender can be placed in an institution much nearer home than is the case at the present moment. I am sure that every Member of this Committee will agree that that is an extremely important factor. It means that the close contact which is so necessary and so desirable between the young person, his family, his friends, probation officers and social workers, which very often is now threatened by long expensive journeys, would, in the alternative, be maintained.

Even though efforts are now often made by probation officers to see young people before the end of their term in borstal, very often in practice this is not possible. In my submission, this factor is something that can have a very considerable influence indeed upon the situation in relation to detention centres, which reflects a failure in the context of so many young people. As the Committee is well aware, 76 per cent. of all young people who go to detention centres are reconvicted within the period of two years.

The Advisory Committee on the Penal System in its 1974 publication stressed the following:

" It should be an object of policy so to reorganise the pattern of location of establishments and the allocation of young adult offenders to them that periods in custody will normally be spent in establishments situated nearer to their home areas ".

As, I trust, a realist, I have no doubt that the Government will set their face against this amendment and will say, indeed, that there is really no justification for it. It seems to me that the Government are committed to take that view because of the paramount significance that they attach to the maintenance of detention centres. They conceive of them as being places not only of training but basically punitive institutions where the short sharp lesson is to be learnt. May I say, with great respect to those who hold those views, that although there has been research the world over during the last 20 years into various types of youth custody and, indeed, in many countries into the phenomenon of the short, sharp sentence, there is no hard evidence from any part of the world to suggest that it is more successful than a more ameliorative system. Indeed, in 1980, when the experiments at Send and New Hall were commenced, the Government made it clear that those were only in the nature of experiments and promised that data would be published as soon as possible.

My calculation—and I stand to be corrected on this—is that by now a total of some 1,200 young people or so will have passed through those two institutions. By now the Government must surely have a fair idea whether those figures show a marked improvement upon the old system. If there has been a marked improvement, then no doubt it is the duty of each and every one of us to reconsider the position in the light of such data. If, on the other hand, there is no such data to support that contention, clearly, in my submission, there is a duty upon the Government to reconsider their whole position in the context of detention centres. If it be the case that there is nothing to suggest that the short sharp sentence is any more successful in 1982 than it was in the 1950s and 1960s—and there are ample data to show that there was no earthly justification for it in terms of success in that period—then most certainly there should be the most radical rethinking on the part of the Government.

The Government have, it seems, wavered on this matter before. In 1970, when they came into office, they accepted for a short period the report of the advisory committee in 1970 on detention centres. It may have had something to do with the fact that a Minister of State at the Home Office then was Mr. Mark Carlisle, a Member of another place, who himself had been a member of that particular sub-committee. It is therefore in that light and against that background that this amendment is moved as an urgent plea for the Government to justify the experiment that has now been running since April 1980; and, if they are not able to justify that experiment, to say that they are still willing to reconsider the situation fundamentally. 1 beg to move.

May I briefly support the opening speaker here. He has raised two points, one pro and one against. The pro point is the increased flexibility which the Home Office and the prison department very much require. To have one youth service covering the whole gamut of youth offending would give them a flexibility which would make it easier for them to send people to detention near home.

The second, and negative, point is that the detention centre, as opposed to borstal, is punishment without any particular effort at rehabilitation. Rehabilitation has very much gone out nowadays. We none of us think that borstal was doing much good, and there is no plea for it to be retained; but there is no doubt that the staff working in these institutions are very unhappy indeed if no room is left for rehabilitation as one of the things they can do—and the short, sharp shock more or less excludes the direct rehabilitation. There is a pious hope that there will be indirect rehabilitation, which many of us doubt. The figures do not show it, and I support the noble Lord, Lord Elystan-Morgan, in asking for some justification for not doing this. It obviously is not a matter of life and death, but a matter of organisation which would be improved by this amendment.

I should like briefly to intervene. The noble Lord, Lord Elystan-Morgan, drew our attention to the possibility of a youth custody scheme. It seems to me from what he and the noble Lord, Lord Donaldson, have said, that it would be at the direction not of the courts but of the Home Office as to where any of the juveniles—that is the under-21s we are still talking about—should go. If the direction of their destination should be left in the care of what we must call civil servants instead of the magistracy, instead of the law, then I am sure that that would be wrong.

The noble Lord mentioned Send detention centre, where I was a short time ago. Indeed, I was on the telephone to them this morning. I, for one, was impressed by the way young people were—and I use the word carefully—treated. They were 15s to 17s. The centre was not full. The youths were obviously not rehabilitated because, as the noble Lord, Lord Donaldson, says, there was not the time available. The sentence in the future will be, as I understand it, from 21 days to four months. But there will be remission on any sentence. Therefore, a young person could remain in a detention centre for as short a time as one week, which means that no rehabilitation is possible.

On the other hand, when I was there I was told that it is apparent that these young people are taught something. They are taught a bit of discipline. They are taught, perhaps for the first time in their lives, occasionally to do what they are told. It is an important remedial way of treating some of these offenders. I asked the warden what were the categories of offence that came to him and were there at this time. They were for burglary, several cases of TADA, several cases of GBH and robbery. I asked, "Robbery with violence on the street, being mugging?" He said, no, because they are a county and they do not take in those from London; therefore, they do not have many of those. But that if there were those cases they would surely end up there. With this package deal that we are being asked to approve in Part I of this Bill, I feel that the detention centres certainly—not the borstals—have an important part to play.

I intervene to make only one observation from the standpoint of someone who believes that the short, sharp shock is probably slightly preferable, to the long, sharp shock, but otherwise has very little to support it. I dislike talking in generalised terms, and I should be grateful if the noble Lord the Minister would give us some simple figures that the Home Office must have by this time. First of all a simple question: how many young offenders underwent that treatment in the first 12 months since April 1980? The figure must be available. Secondly—and it may not be conclusive; we can argue about the significance of it—how many of those people were reconvicted in the 12 months after their release?

4.27 pm..

May I welcome the noble Lord, Lord Elystan-Morgan, on board this Bill, which I think is going to voyage for some considerable time, and compliment him on the obvious conviction and considerable eloquence with which he argued his case. May I start from the standpoint of the common man, which is the one 1 think I am best fitted to occupy. It generally is the case in human experience that the first experience of any strict or unaccustomed régime has the greatest impact. I remember with pangs of unhappiness my first day at boarding school,

I remember with almost sharper pangs being woken at three o'clock in the morning at the Castlemartin camp—into which I had the day before been conscripted to howls of derision from the rest of those conscripted because I had a mackintosh and they had not—in the grey light of dawn at the sound of the furniture being broken up by my fellow conscripts to light the fire. All this was a new world and it was something which it took me time to adjust to. It was in the first weeks of that experience that I found myself most affected by this new experience. Thereafter, being a young person I adapted rather quicker, I dare say, than I would now. Therefore, I think that there is, from the commonsense point of view, a supposition that the first part of any sentence is going to have the greatest effect upon the people who experience it.

That means that the provision for the sentence needs to be different from the traditional form of sentence, because for a start there will be no time for an elaborately structured training programme; but that does not mean that there will be no progress made with the inhabitants, with the young person detained. I recently visited Haslar, which is one of the detention centres running the new régime. I was greatly impressed by the way in which the education resources there were used for diagnostic and helping activities with the young people.

I would go along with the noble Lord, Lord Wigoder, if I could not persuade your Lordships further down the road which the Government wish to travel, or nearer to the dotted white line in the middle of it, that is, that we are all agreed that the necessity of locking people up is unfortunate. Most of us are in considerable doubt as to whether there is a rehabilitative effect when we do so and the noble Lord, Lord Elystan-Morgan quoted reconviction which must prove damaging to the thesis that people should be in prison detained for longer because of its rehabilitative effect.

If detention, or custodial treatment of any kind, is not to be beneficial to the subject and is not to achieve what it sets out to achieve, then presumably the shorter the time occupied by it, and the smaller the resources devoted to it, the better. But that is an argument from weakness which I would not want to pursue very far. Under the provisions in the Bill the detention centre order will on the whole be used for those who are fit and have little or no experience of custody, and it seems right that they should be held in separate establishments, apart from those more serious offenders who have received longer sentences, and let us remember that the detention order is intended to be the first experience of that sort.

We also intend to retain the distinction between junior and senior detention centres so that juveniles are, wherever possible, held separately from older offenders. Under generic sentence, such as the noble Lord suggests, although there would be flexibility, there would not be the advantages that we expect from allowing courts to send offenders to places appropriate to their age and character. As I say, in some detention centres there will be a new régime. I can tell the noble Lord, Lord Wigoder, that altogether about 5,000 have been through the tougher régime, but I regret to tell him that we do not as yet have reconviction figures, that there is a monitoring exercise actually in progress, but that it is required for statistical reliability to run for two years and therefore, as I said on Second Reading, those figures will be available at the end of this year.

The amendmendment would, as I say, combine all custodial sentences for young people in one indistinct whole and remove from courts the ability to choose the destination of the people they sentence. I would remind your Lordships that it is necessary to obtain the confidence of the courts in any system we run, and that it is an important aspect of it. The Children and Young Persons' Act 1969 contains within it provision to abolish the sentence for juveniles, and the future of the system, and more particularly the future of the people who work in the system, has therefore been in doubt for no less than a decade. It seems to me proper that that doubt should be put at an end for the sake of the people who operate the system.

The only other matter I would draw to your Lordships' attention is that this is a determinate sentence, whereas the borstal sentence is indeterminate, and here again we touch on the confidence of the courts in the system as they wish to decide what is to happen to the young people who come before them. That is our position. It does not accord with that of the noble Lord, Lord Elystan-Morgan. Indeed, his position appears to be hostile to the whole philosophy to a major part of the Bill for which the Government seek to obtain your Lordships' approval.

Leaving aside the question of statistical reliability, which is a matter each of us can make up our own minds about, my Lords, may I ask the Minister if the Home Office have the simple figures (we can argue about their significance later) first, for the number of people who went through the detention centres, where there is the short, sharp shock, from April 1980 to April 1981? They must have those figures. Secondly, do they have those figures, down to April 1982, of how many of those people have been reconvicted? Let us argue about the significance later. It is idle to pretend that, because of the question of statistical reliability, the Home Office are not able to give those figures to the House and apparently will not be able to do so until consideration of the Bill is over.

I had no intention of using an excuse to conceal from the House knowledge which the department already had. What I wished to explain was that the actual evaluation would not be sufficiently reliable as an exercise as a whole for us to put before your Lordships until it had run for two years, and it then needs to be processed. As to the figures, the only figures I can get now is the round figure of 5,000 who have been through already. I take the noble Lord's question and I see its relevance. It appears not be possible to produce them at this stage. I assure him that I shall get them as soon as may be possible and convey them to him and other of your Lordships who may be interested by the most appropriate and expeditious means, but I cannot put my finger on them at the moment.

That is not very satisfactory, but it is the best I can do. The fact remains that our general philosophy believes that the most effective part of a sentence is the beginning, that unless it is to be a very long programme of rehabilitation, tailored to the individual, the shorter it is the better, not only in terms of resources but also in terms of the individual offender, and of course by reducing the length of the attendance, that means less use of resources which are scarce and better conditions for other people in the system, and that is something we want as well.

the noble Lord, Lord Elton, with his customary graciousness, has indicated that the answer he has just given is not very satisfactory, and with that most of us would agree. He is arguing today that it is desirable to maintain detention centres in a separate existence, and that is an arguable proposition about which a valid argument could no doubt be made on both sides. He was then pressed by the noble Lord, Lord Wigoder, to say what had happened in relation to the short, sharp shock sentence, and he has been unable to give any clear indication about that except to say that he will correspond with Lord Wigoder and others at some later stage to tell them what the results have been of the analysis. Being well used to debates in this House, the Minister will recognise that that is not a very satisfactory position.

What I would imagine might happen would be that we should be able to raise the issue at a later stage so that all your Lordships could partake of the knowledge. I do not wish to hold cards close to my chest. I cannot display them until I myself see what is on the face of them.

I am delighted to be reassured on that and let us hope that on Report we shall be able to have that information. I would remind the Minister that no serious argument was ever made for the introduction of the sentence in the first instance; there was no serious criminolgical or social research which ever justified it. It was an ill-considered phrase in a weekend speech, and that is the basis of the short, sharp shock. I suggest that we are entitled to have an early answer as to what is the result of the research that has taken place. I hope it is being carried out by the Home Office Research Unit, which has a substantial reputation. The Minister has indicated that we shall have the information, and I hope that every effort will be made to make sure that we have it by Report, when we shall be able to return to the matter and see what the result of the study has been.

Perhaps I might elaborate a little. I shall certainly be able to produce the reception figures to 1981. The reconviction figures are not so easy to come by, because each individual case has to be tracked down. I shall certainly see that every best effort is made. I have no wish to conceal things from your Lordships. What I cannot produce is what we have not got, but we shall do our very best to get everything that your Lordships may wish, and the proper time, I accept, to do that is at the next stage of the Bill, rather than by correspondence.

Before my noble friend sits down, may I ask whether he would agree that the boy who has been in detention has to have had re-offended before we can get any figures at all?

I am very sorry, but my attention was wandering to the previous point when my noble friend asked her question with such admirable brevity that I was not able to pick it up.

Is it not correct—and the detention centre short, sharp shock treatment started in April 1981—that the person who has left the detention centre has to re-offend before one can get any figures?

Indeed, yes, that is so, and therefore, as I think the noble Lord, Lord Wigoder, would say, there would be some limitation on the use of all of this. What the noble Lord wants is some indication of where we are going, and I think that that is a perfectly acceptable desire.

Since the statistics give the reconviction figures for detention centres as a whole, it would surely not be necessary to track out every individual, but to have a breakdown according to the different types of detention centre—those which practise the short, sharp shock, and those which are less short, less sharp and less shocking.

In fact, at the moment, the normal method is not to conduct research until two years after conviction. That is why at this stage I am being so very hesitant in making an unwise commitment to more than I can deliver. The normal screening is after two years, to see how many reconvictions there have been. Therefore, there is not a running programme out of which we can just pick the figures as the noble Baroness suggested we should. The latest figures given in prison statistics are for those released until 1977, I understand.

I wonder whether it would help my noble friend the Minister if I were to say that I understand that the short, sharp shock was based on experience at Glenochill Detention Centre in Scotland. Glenochill Detention Centre has had the short, sharp shock for some considerable time. Would it help the Committee and the Minister if the noble and learned Lord the Lord Advocate, who is present, were able to obtain the figures from Glenochill Detention Centre, on which I understand the English detention centres were based?

I should like to make a point to the noble Lord before he replies to that question. The two detention centres that have been referred to are not simply part of the generality of criminal statistics; they were set up as experimental programmes. If I may say so to the noble Lord, it is not good enough to come to the Chamber and say, "Well, the criminal statistics are collected two years later and I won't be able to tell you anything until then". In the normal course of events, if governments really want to know what is happening—and I suggest to the noble Lord that there must be some doubt about that—the experimental programmes are monitored as they go along. Each individual young person who has been through the short, sharp shock will be followed very carefully to see what happens to him. It ought to have been possible for the noble Lord to give us some information today, and certainly to give some information before the Report stage, so that we can consider it before we debate a similar amendment at that stage.

As I say, the experiment is designed on a statistical basis, with a two-year base. We have not reached the end of it. As to an "ill-considered phrase in a weekend speech", that really is not the basis of policy. It was, rather, a well-considered and apt phrase, describing the policy. I would point out that we are talking about only two places. We are not talking about every detention centre being full of people who are there for only a week or a fortnight. I really cannot tell the Committee more than I have told it. I am certain in my bones that, in the difficult position in which we are, this is the better way to proceed, that we ought not to continue as we now are, and that we should not leave the question mark hanging over the people at present working in the detention centres. To the best of my ability I shall put before your Lordships further information at the Report stage.

I would say that the actual number of reconvictions is not the only aspect of the experiment which is being carefully monitored, and I have every reason to believe that what we see is reassuring. But I would remind the Committee, as it has been reminded by the noble Lord, Lord Wigoder, who started this hare running, that in fact, even if it is only the same product as what we already have, it means that people will be detained for shorter periods, at less expense and less inconvenience. That, as I say, is an argument for weakness, and I hold it only in reserve.

I wonder whether it would ease the noble Lord's problem if he were to finish the quotation, which runs:

" A short, sharp shock
On a cheap and chippy chopper
With a cheap and chippy chopper
On a big, black block ".
Then the noble Lord would not need any follow-up.

There may in fact be an argument, a philosophical argument, a practical argument, a statistical argument, in regard to the short, sharp shock in the detention centre. But the one thing that, so far as I am aware, the noble Lord the Minister has not dealt with is the very real advantage that will be apparent to the whole Committee, and which was mentioned by my noble friend Lord Elystan-Morgan—that is, the greater flexibility. About one thing there is no doubt at all—that is, that overcrowding of our institutions is an absolute disgrace. That applies in respect of the youngster as much as everybody else. There is also the point that greater flexibility obviously would allow of non-overcrowding, if I may put it that way, because of the variety of institutions that are available if there is a single youth sentence.

The other point concerns the greater ability to send the youngster to somewhere which is near his home. The great advantage of a family being able to visit is one of which the Committee must be very conscious. The terrific hardship following the short, sharp shock that there might be to the family of a young man or a young girl in a detention centre is somewhat relieved by the ability to visit, and is made all the worse by a complete inability to visit owing to the distance away from the family home of the detention centre in question.

Before the Minister replies to that, I wonder whether he can also enlighten us. If the régime has the benefits that he has indicated, why are girls deprived of the privilege of undergoing the short, sharp shock as much as boys?

I suppose the disadvantages of mixing young offenders with adult offenders which would result from the larger sentence that the noble Lord was after apply even more when one mixes male young offenders with female young offenders. As to the question of nearness to home, of course I accept that it is a good thing when a prisoner can be visited and is close to home. As a matter of policy, we always put young offenders, as others, as near to home as is possible. However, there are other considerations. It is better to have him in provision that is suitable to him a little further away, and we are dealing with short sentences, when of course visiting is of rather less importance.

Does not the noble Lord recall that we did have detention centres for girls and that it was because they were so unsatisfactory that we decided to close them and not send any more girls to detention centres?

May I go back to the point on which the noble Lord was so helpful a few moments ago? As I understand the assurance that he has given the Committee, it is that before the Report stage, or at the Report stage, he will bring to the House all the information that is available about the trial régime at the particular detention centres. As I understand his argument, he goes further than that. He said that it is not just a question of the statistics involved. Referring to what the noble Lord, Lord Wigoder, had said, he went on to say that it is not just a question of statistics; there are other matters of an unspecified character with which he will be able to assist your Lordships when we reach the Report stage.

I should like to ask the noble Lord two questions. First—to repeat the question which, no doubt inadvertently, he was unable to deal with earlier—is the statistical analysis being carried out? Who is carrying it out? Is it being done by the Home Office esearch Unit, or by somebody else? Secondly, in terms of the qualitative judgments which, as I understand it, he indicated are being made, who is making them? Is that being done by the Home Office Research Unit, or is it being done by somebody else?

I think these are important matters; and, as the Minister will be aware, he is in fact endeavouring to persuade the Committee that it is necessary to retain detention centres. Being a person well versed in debates in your Lordships' House, he will realise that the onus is upon him, given the character of the debate we are now having, to demonstrate that there are satisfactory answers to these questions. Speaking for myself, if he indicates that what I have said broadly speaking represents the assurances he has given the Committee, then I think a number of us will be content, certainly until the Report stage, when we hope we will get a detailed statement by the noble Lord on these questions.

If I may revert first to the question of girls, I would remind your Lordships that there was in fact, and has only ever been, just one detention centre for girls. Moor Court, in Staffordshire, was opened in 1962. It served only the northern part of the country, and had an average daily population of about 24 girls. It was closed in 1969 on the recommendation of the Advisory Council on the Penal System; and a study of girls sent there and to borstal showed that, apart from the number of previous convictions, there was little difference between the sort of girl sentenced to the detention centre and the sort of girl sentenced to borstal training.

The advisory council concluded that short-term custodial training was in principle unsuitable for girls, and that girls of the kind who were sent to the detention centre would be better dealt with non-custodially or given the longer period of treatment that borstal training provides. The advisory council considered that the needs of delinquent boys and delinquent girls were so dissimilar—and this is the point—that there was no reason why the disposals open to the courts should be the same for both sexes.

The evaluation of the short, sharp shock is being done by the Home Office statisticians and psychologists. There are also two distinguished independent academics who sit on the steering committee. The department and my colleagues get our advice from as wide an area as possible. I think that your Lordships have possibly debated this issue for a length of time which suggests that we should not go on, but, of course, that is in the hands of the Committee.

The noble Lord, Lord Elton, has made the admirable point that it is the first few days, if not indeed the first few hours, of a custodial sentence that have the greatest impact upon the offender. I am sure that no one would seek to contend to the contrary; but, with great respect, it does not seem to me that that answers the argument. That of course will be the case whether you sentence a person to seven days' or to seven years' custody. It does not deal with the question of what the appropriate length of sentence should be in any particular case. In any event, in so far as the category that we are dealing with here is concerned, there is the range of from 28 days to 4 months less remission already catered for.

Of course, it may be that a tough régime can show the most beneficial results, and that is really what the argument has been about on this amendment. But, basically, there is nothing to show that the imposition of toughness on top of the deprivation of liberty has in itself anything to commend it. As I am sure the Minister will recollect, the Advisory Council on the Penal System, in its report in 1970, made this point and recommended,
" that the function of detention in a detention centre should he regarded as fulfilled by the deprivation of an offender's liberty ".
That in no way militates against the principle of the greatest impact taking place inside the first few days. That impact may be a more beneficial impact on account of deprivation of liberty than on account of anything else punitively grafted on top of that particular restriction.

The matter that worries me most in this connection is the dogmatism of the Minister. He has accused me of dogmatism, but my own attitude is that, although one has certain preconceived ideas in this matter, for my own part—and I am sure that I speak for my noble and learned friend and for my noble friends behind me in this matter—I am prepared to reconsider the situation if there be some spectacular, massive truth that stems from the data that is eventually to be published. But it does not seem to me that the Minister is willing to be regulated in the same way.

The Minister accepts that here was an experiment set up by the Home Office; here was the Home Office setting up a machinery for the collection of data; but as far as the Minister is concerned, not having been supplied with one item of that data, he is still totally certain as to the eventual result. Is the Minister prepared to tell the Committee that, although he has his own views about the matter, nevertheless, as a Minister in the Home Office, he is prepared to look at this data upon its merits when it is eventually available?

I join with those noble Lords who have asked for the maximum data to be released at a significant time in the passage of this Bill; namely, at such time as would allow your Lordships to act upon it. If it be that in practice it would not be possible even to give the reconviction figures for one year for all those who have passed through Send and through New Hall under the latest régime, surely it would be possible to take a sample of letters—say 500—and, on the basis of that sample, to make an intelligent calculation as to what, in total, the data would reveal? If the Minister is prepared to give that assurance, then most certainly I would not seek to press this amendment.

It is difficult to be clearer in an undertaking than I hope I have already been. What I will seek to do is to obtain the largest appropriate and feasible sample. There are constraints upon recovering information about reconviction. I am not personally familiar with how long it takes to trace the subsequent career of a released detainee, but I will see the extent to which I can satisfy your Lordships with information and I will make available the whole of the information which I feel the Committee ought to have in this context.

I cannot be more specific than that because I do not know how you get the reconviction figure back. It is not a very easy process, because unless the person re-offends you do not know where he is. As my noble friend said, is that an indication that he has not been reconvicted, or is it an indication that we have not looked in the right place for him? But I shall be advised about this, and I hope to be able to assure your Lordships as to the quality as well as the quantity of the information I give, and your Lordships will be able to judge it on that.

But I would just come back to this point. We are not embarking on this in the sort of slap-happy way that the noble Lord seems to suggest. It is the result of mature reflection, not of a word cast aside in a speech. Even if we were wrong in our expectations and there was no change, there would be advantages both to the inmates and to the system, and therefore I think your Lordships, casting your minds over the other points that I made earlier, would be wise to welcome the noble Lord's decision not to press this amendment.

Amendment, by leave, withdrawn.

5 p.m.

moved Amendment No. 4:

Page 2, line 14, at end insert (" because it appears to the court that he is unable or unwilling to respond to non-custodial penalties or because a custodial sentence is necessary for the protection of the public or because the offence was so serious that a non-custodial sentence cannot be justified ").

The noble Baroness said: In moving this amendment I should like to speak to Amendments Nos. 5 and 7 as well because the same points apply in those amendments. Having had this debate on detention centres, may I say that my central interest in this Bill is non-custodial care, and not custodial care. Clause 1 (4) of the Bill states:

" Where a person under 21 years of age is convicted or found guilty of an offence, the court may not—
  • (a) make a detention centre order in respect of him;
  • (b) pass a youth custody sentence on him; or
  • (c) pass a sentence of custody for life on him,
  • unless it is of the opinion that no other method of dealing with him is appropriate ".

    I am sure that my noble friend the Minister will feel or say, or feel and say, that that is adequate. My contention, with my amendment, is that it is not adequate. This is because I think we should put into the Bill the words,

    " because it appears to the court that he is unable or unwilling to respond to non-custodial penalties or because a custodial sentence is necessary for the protection of the public or because the offence was so serious that a non-custodial sentence cannot be justified ".

    My noble friend may say that this could go into regulations and that it is not for the Bill, but I would point out two things. First, the Children and Young Persons Act was passed in 1969 and in that Act non-custodial treatment in the form of intermediate treatment was recommended. However, although it was in the Bill, it was not clearly spelt out, there was no formula laid down, and, as a consequence, here in 1982, the Bill having been passed in 1969, we have not got overall satisfactory intermediate treatment throughout the country. Therefore, it seems we should have a formula as to exactly what it is that the court should do before it makes a custodial order. That is the reason for moving this amendment.

    I believe that, if this amendment were to be accepted by my noble friend the Minister, there would be a shift from custodial to non-custodial care. I would say this. Of course we all agree that there are certain of the difficult young people that we deal with who need and must have, for the protection of the public and for the protection of themselves, custodial care; but, down the years since 1969, the number of juveniles sent to borstals and detention centres rose from about 3,000 in 1970 to 7,500 in 1980 and, correspondingly, supervision orders dropped considerably from 1970. If a formula had been laid down concerning intermediate treatment and if it had been law, I maintain that we should not have lost all those years from 1969 to 1982.

    Surely, we want to reduce the level of custodial care. I think it has been said in many other debates that we have the highest number of children and young persons in custodial care in the EEC. I think that I have already mentioned that a German criminologist told me that the 1969 Children and Young Persons Act was a good Act badly administered. I believe it was badly administered because we have not got a proper formula. A Danish criminologist rang me recently to say that he thought it was an extraordinary thing that in this country we had so many children in custodial care. This formula which I suggest we should put forward would be a help to the magistrates, but not only to them; it would help the social workers as well. It is not always either social workers or magistrates who have embarked on so many custodial sentences: I would suggest that it is both and that both need to have the same formula.

    Another point is that we need an overall policy in the country. The policy from bench to bench is uneven and this is shown by a piece of research that was carried out by the National Children's Bureau, which showed how different was the sentencing on the part of different courts throughout the country. I wonder whether with the shorter sentences we may find that more, not less, children get sent to custodial care. This, I think, is worrying. In the last debate, on the amendment moved by the noble Lord, Lord Elystan-Morgan, a great deal of discussion took place over monitoring and over general principles. I would suggest that, if we were to monitor what happens over non-custodial care, if cases were to come to the Court of Appeal and were to be analysed, perhaps we might then get at what should be done and what is our policy and where we are going; but I fear that, by the time that happens, we shall not have built up a policy and, although this wording may be, for an Act, somewhat heavy, nevertheless I believe it would be aguideline, a formula, for the courts, and for both the social workers and the probation officers. Also, it will be the same the country aver. I beg to move.

    I am happy to rise to support the amendment moved in the name of the noble Baroness. I know that she will not mind if 1 remind her that this amendment arose from one of the recommendations in the report by the all-party penal affairs group entitled, The Young Offender: A Strategy for the Future, in which we strongly recommended that the precise circumstances for a court decision to incarcerate a young offender should be spelt out in the statute. It may be felt by some that to give three specific conditions or reasons to help the courts in interpreting the word "appropriate" is an undue interference with the discretion of the courts; but as the noble Baroness has made clear—and I should like to make this point again—that word "appropriate" is wide open to a diversity of interpretation by magistrates' courts up and down the land.

    I see this amendment, as, I think, do my colleagues as one step towards reducing the lack of consistency in sentencing policy by the courts and, therefore, reducing the degree of inequity to young offenders who are sentenced by the courts. Both points seem very important indeed.

    The noble Baroness has said that her concern—and it is the concern of all in the all-party penal affairs group—is to reduce the number of young people put away into custodial situations by the courts. The fact is that the numbers who have been put away have risen astronomically during the last decade and far outstrip the undoubtedly rapid rise in crime—and all this without a corresponding effect in deterring young people from committing offences.

    On all these grounds, we feel that it is extremely important to spell this out in the statute so that the courts and, as the noble Baroness has said, the social workers can be adequately guided and not left in considerable doubt on the basis of that euphemistic word "appropriate".

    I should like to support the noble Baroness, Lady Faithfull, and to underline one of the things that has just been said by the noble Lord, Lord Hunt, about the preparedness of the courts to incarcerate children since the passing of the Children and Young Persons Act which, as the noble Baroness told us, was thought to be going to be a means of reducing the number of children in custody when in fact the reverse has happened and there has been a very sharp increase indeed over the last 12 years.

    The noble Lord, Lord Hunt, reinforced this point by saying that not only has the number of children in custody increased but the proportion of children coming before the courts and being given custodial sentences has also risen over this period. It may be of interest to say that the proportion of boys aged between 14 and 16 convicted of indictable offences who received custodial sentences rose from 6 per cent. in 1970 to 12 per cent. in 1980, while the number receiving supervision orders fell from 22 per cent. to 16 per cent. This emphasises the point which was made by both the noble Baroness, Lady Faithful, and the noble Lord, Lord Hunt—that we have not been at all successful since the Children and Young Persons Act was passed and it has not meant that we were less prepared to lock up young people than we were prior to that Act coming into force.

    I should like to refer to the undertakings given by Ministers in another place that the criteria along the lines of these amendments, if not identical with them, would contain any guidance that was given by the Court of Appeal on the use of the sentencing powers in the Bill after the Bill comes into effect. Surely if that is so and if the Court of Appeal would give the sort of guidance that we have in this amendment, it would be better put into the statute itself. Why wait until after the Bill comes into effect and until the Court of Appeal has got around to doing what the Government say it is going to do anyway? Is it not really the job of Parliament to say what they think legislation means, rather than to leave it to the courts to deal with as best they can afterwards?

    I must say that I agree with the noble Lord, Lord Hunt, about the word "appropriate". It is so nebulous and vague that the Court of Appeal in theory could develop guidelines along a totally different path from that which has been set down by the noble Baroness, Lady Faithfull. If this is what Parliament wants, let us put it into the Act now and let us not leave the tidying up to be done by the Court of Appeal after the Bill comes into effect.

    I should like very strongly to support this amendment from these Benches. I would entirely agree with the noble Baroness, Lady Faithfull, that most of our interest is in seeing how very much more we could do in the way of non-custodial methods of dealing with crime rather than the custodial methods. I think it is perfectly true that there is tremendous danger in what is in fact a good measure of reducing the minimum period at a detention centre from three months to three weeks. I can say without any doubt that many benches will use this as a sentence in preference to a non-custodial. They will do it from the best of motives and with the best will in the world, but it will be a custodial sentence rather than a non-custodial sentence. If the Minister feels, as he may, that this is covered quite sufficiently in the Bill—I entirely agree with the noble Lord, Lord Hunt, about the word "appropriate"—I would put it to him with great respect that this really is not so. We have seen in so many other pieces of legislation—not necessarily criminal legislation but others also—that these things have been left open and not spelt out in detail, and it has caused a great deal of confusion and difficulty.

    In this case it is particularly important because, as the noble Baroness pointed out, one of the important things is that there should be uniformity. It is wrong that one should leave too much flexibility. Obviously, there must be flexibility in looking at individual cases; but not too much flexibility, not just between one bench and another but between different compositions of benches within the same court area and another, which is in fact what happens. If this is spelt out in this way it would concentrate the minds of magistrates, and I think they would be grateful for these guidelines which are in the legislation. We have seen that, although those are in the guidelines, until something was spelt out on the criteria for bail—and this is rather different; it should be in the major, primary legislation—it was extremely difficult because one got such different approaches. We found exactly the same problem when we were debating legal aid: it was difficult to find a consensus of what the criteria should be. Here is being spelt out, in what I think is a quite admirable way in order to remove doubt, what should be the criteria for giving a custodial sentence rather than a non-custodial one.

    It has been pointed out that there has been an increase in juvenile crime, but that increase is not proportionate to the rise of those who are sent to penal establishments. If we wanted any further evidence of the failure of the custodial method of sentence, we have only to look at the reconviction figures of young offenders: those leaving prisons, 68 per cent.; those leaving borstal, 69 per cent. But when we come to detention centres the reconviction figures are quite horrific; 76 per cent. of those leaving detention centres and 83 per cent. of those leaving borstals are reconvicted within two years.

    Finally, I think we should also be keeping our eye on the economics of the situation and the question of value for money. There can be no question that non-custodial methods need only a fraction of the resources that custodial methods need, and I hope that the Minister will accept these amendments. They have the support not only of those of us on this side of the House but of other noble Lords as well.

    I should like very briefly to support my noble friend Lady Faithfull, for the reasons given by the noble Baroness, Lady Birk, who, as a very experienced magistrate, has put the side of the magistracy. I also agree with the reasons given by the noble Baroness, Lady Faithfull. I think that uniformity would be brought about by these words being put into the Bill and I warmly support the amendments.

    I support what the noble Baroness Lady Birk, was saying from the practical experience point of view, because I think these words:

    " No other method of dealing with them is appropriate"
    are imported—are they not?—from the Powers of Criminal Courts Act 1973. All experience of those words in court has been this. What happens in magistrates' courts very often is that the clerk, after the magistrate has sentenced the person to imprisonment of some kind, looks up and simply says: "No other method appropriate"? The magistrate nods and then that is entered on the record. It becomes a pure formality. Exactly the same thing has happened with not sentencing first offenders to prison. Again you have to state your reasons and once again off goes the person to prison and the clerk says: "Seriousness of offence?", and the magistrate nods, and down goes "seriousness of offence". It becomes a formality.

    I am personally a little ambivalent about what my noble friend Lord Avebury was saying about putting criteria into a statute rather than leaving the matter to the Court of Appeal. I am not so sure that I entirely agree with him about that. The trouble is, can one guarantee that the Lord Chief Justice—one almost can with the present Lord Chief Justice, if I may say so—will in fact lay down the criteria? He has laid down the criteria recently in the case of Clark for partially suspended sentences. He has done the same thing in the cases of Bibi and Upton in the most admirable way.

    It is much easier for courts to follow guidelines which come down from the Court of Appeal than to try to wrestle with words in a statute and try to interpret what they really mean. If there was some guarantee that the Lord Chief Justice would lay down the guidelines, if these words were not included and the amendment was not accepted, that might be a better method of proceeding. But I see difficulties in guaranteeing that situation.

    I also should like to support this amendment, mainly on the grounds which the noble Baroness, Lady Birk, mentioned. It seems to me that if you have a reconviction rate of 82 or 83 per cent. in two years of people who have been sent to borstal, then borstal has been shown to be almost a total failure. Of course, I concede that there are people who must be kept inside simply for the protection of the public. But, surely, the fewer people there are in prison or in borstal, the more the care that can be taken to do the essential part of borstal training, which is to train, re-educate and civilise. If the more people we can keep out, the more accurate and generous the treatment within borstals can be, it may consequently be that the reconviction rate will be reduced from 82 to 81 per cent.

    5.22 p.m.

    This seems to me to be a fundamentally important amendment and it is worth just reminding your Lordships of the background against which we are discussing it. As has already been said, over the last few years, whether there has been a significant increase in juvenile offending or not, the proportion of young offenders being sent to institutions has increased substantially. The percentage of young people coming before the courts and being sent to institutions has increased, at the same time as our knowledge about the ill effects of being sent to institutions has grown, as my noble friend Lady Birk said, with the enormously high proportion that are reconvicted within two years. In effect, what a sentence to an institution of that sort means for a young person is that his chances of not being reconvicted within the next two years are almost negligible.

    The Government have introduced a major Bill dealing with criminal justice against that background, and also against the background of mounting concern about the numbers of young people and adults whom this country sees fit to lock up in institutions. On any international scale, we are one of the countries that locks up more people—young people and adults—than others. There is no doubt that most of the professional organisations and experts who have looked at the Government's legislation have come to the view that it is likely to worsen the situation rather than improve it. It is likely to lead to even more young people being sent to institutions, albeit possibly for a shorter period, than the reverse. This amendment seems to me to be the one chance that Parliament has of putting that matter right. That is why I think it is so important.

    If I may make just one other point in response to what the noble Lord, Lord Hutchinson, said about the possibility of the Court of Appeal using these words in a judgment, or in advice to the courts on sentencing policy, I think that that would be very much a second best. Indeed, I would go so far as to say that it would be completely unsatisfactory, in comparison with having the words in a statute, unless the Government were able to reassure me that all courts would have to give their reasons in writing, in the light of the Court of Appeal's instructions, when they sentenced a young person to an institution. As I understand it, that would not be the case unless the words were incorporated in the Bill.

    My second ground for concern is that a great deal of research has been done on sentencing practice, and I do not think there is very much doubt that judgments of the Court of Appeal, significant as they may be, particularly for the higher courts, very often have some difficulty in penetrating to magistrates' courts. This is no criticism of magistrates. The Court of Appeal makes a great many very worthy judgments and it would be unrealistic to expect all lay magistrates to be familiar with all of them, even those which affect sentencing policy, of which there are now a great many. I really do not think that that is any adequate substitute for incorporating these words in the Bill, and we are left, as we so often are when arguing with Governments on matters of this kind, with trying to get the Government to say, if the Court of Appeal are prepared to say this, why they cannot put the words into the statute, which is what we ought to do.

    There is a remarkable unanimity about what we wish to achieve and I subscribe to it. We want to stop people from going improperly to custodial treatment, when they can be treated in the community. We are alert to, and share, the anxiety about the rising figures for custodial treatment, particularly of young people, and I have a great deal of sympathy with what my noble friend Lady Faithfull—I almost forget what she looks like, because she will sit behind me—wishes to achieve and with the way in which she has advanced her cause. But it is not only the interests of the individual offender which demand that he should receive a custodial sentence only when no other method of dealing with him is appropriate. The appalling pressure, to which I have referred before, throughout the prison system advocates that as well. I say this to make absolutely clear both the Government's acceptance of the principle embodied in these amendments, and the spirit in which they have approached them. There is already in Clause 1 an unequivocal provision that no court shall pass a custodial sentence on a young offender unless no other method of dealing with him is appropriate, and the amendments themselves borrow words used in paragraph 3 of this Government's White Paper.

    The principle, therefore, is not in dispute. What is at issue is whether these amendments would achieve the aim which we all appear to share. 1 appreciate that they differ from the amendments tabled in Committee in another place, which were discussed at great length, and which have been expanded in the light of the debate in another place to include a reference to the seriousness of the offence, as one of the matters which the court must take into account. Indeed, the amendments essentially turn on the need to protect the public and on the gravity of the offence. They leave it to the judgment of the courts to decide what type or length of sentence is demanded by the need to protect the public or by the seriousness of the offence. Therefore, the amendments would not prevent the courts from imposing custodial sentences where they thought them necessary.

    One could argue on that ground that the statement of principle enbodied in these amendments cannot, therefore, be objectionable. But there is an equally important point which I ask the House to consider very carefully. It is that, for the same reasons, such a statement of principle is not likely to be effective. It directs the courts towards the principle that custodial sentences should be imposed only in respect of serious offences. Unless, however, there is any guidance as to what constitutes a serious offence, a provision on these lines is not likely to be of much help to the courts. They are left, again, with determining something which has not been quantified. The difficulty which we are up against is that legislation can seek to provide only comprehensive, general principles. In matters of sentencing, there are very real limits to how far Parliament can have a practical effect on the day-to-day decisions made by the courts in an enormously wide range of individual cases.

    The question, therefore, is how far can the principle, that a custodial sentence should be awarded only if unavoidable, be helpfully and effectively spelled out in legislation and how far should we look to the courts to provide the guidance? The Government have taken soundings on this, in the light of the discussion in another place. There is no disagreement about the importance of the principles underlying the amendments. They are, indeed, considerations which the courts should—and do—have in mind. But are principles at this level of generality a help to the courts? They have, after all, to cover a wide variety of specific facts and circumstances. It could be said that, at the least, statutory principles on these lines could do no harm. I would be cautious about that.

    For example, there may well be circumstances where an offender has, through repeated but minor offending, shown himself "unable or unwilling" to respond to non-custodial penalties. It may nevertheless be right in particular cases to persevere with non-custodial sanctions. The courts need the flexibility to suit their response to the case before them. If it is said that the amendments would leave this open, that is surely to concede that their efficacy is doubtful.

    As I say, we agree on the preferability of keeping people out of custody. The phrase must have a familiar ring to the noble Lord, Lord Melchett. Keeping people out is something in which he has a laudable interest. My noble friends and others have all spoken to this. My noble friend Lady Faithfull said that she had heard the Children and Young Persons' Act referred to as a good Act badly administered and she asked for a formula. All we are discussing is where the formula should come from. Before I address myself to that, may I say to the noble Lord, Lord Melchett, that Clause 1(7) requires magistrates' courts to give their reasons for imposing a custodial sentence. That is something to which I think he attaches importance.

    No, that was not my point. So that I do not forget it and in order to allow the noble Lord to get more advice, what I want to know is this: if the Court of Appeal lays down guidelines, will the reasons given by the magistrates' court for imposing a custodial sentence have, in writing, to take into account those guidelines? In other words, will the reason which is given in writing have to say which of the various reasons from the Court of Appeal's guidelines they have taken into account? I understand that if we put these words into the statute, this will quite clearly be an obligation placed on the court.

    I am much obliged to the noble Lord and I take his point exactly. It is something which I shall take into consideration. The noble Lord need not think that I am trying to fob him off. I want first to establish that in my view it is from the courts—indeed, from the Court of Appeal—that this kind of guidance should come. I am grateful to the noble Lord, Lord Hutchinson of Lullington, for his inter- vention. I take the point that the track record of the Court of Appeal in relation to Upton, Bibi and so on is extremely convincing. I hope your Lordships will note that, as my honourable and learned friend the Minister of State indicated on Third Reading in another place, we can be confident that the Court of Appeal will doubtless take it upon themselves to provide guidelines in exactly the way noble Lords wish. I would refer the noble Lord, Lord Avebury, and others who feel that this kind of guidance ought to be on the face of the Bill not only to the actual detectable effect of the advice given in Upton and Bibi, which appears to be already becoming apparent, but also to the fact that where the court gives this guidance it will be able to do so with the authority of its own experience of sentencing and with the advantage that it will not require, as my noble friend's amendment would require, the passing of another statute through both Houses of Parliament if experience shows that the guidelines need to be either modified or expanded.

    The argument that custody fails, on the evidence of reconviction rates, does not establish that cheaper community-based treatment will succeed. The courts will not therefore necessarily accept the view that a custodial disposal is better. The guidelines in that respect are admirable, but are they effective? They leave it to the courts to decide, as they do now, whether custody is necessary because of the seriousness of the offence. It would be far better to let the Court of Appeal spell out the considerations in detail. That method gives to the courts an element of flexibility which would be denied to them by legislation, because cases will arise from time to time when the statutory principles cause difficulty on particular facts.

    There can be no doubt that we are all after the same thing. I am content that guidance of the kind wanted will be provided by the Court of Appeal with greater authority and with greater flexibility than can be provided in your Lordships' House by this means. I hope my noble friend will feel able to accept this reassurance as in fact achieving what she wants with more certainty than the amendment which is now on the Marshalled List.

    .36 p.m.

    I speak as one who will not forget what the noble Baroness, Lady Faithfull, looks like, even if she were sitting behind me on these Benches—as, indeed, I hope she will one day. I waited to intervene because I was not entirely sure whether the noble Lord, Lord Elton, was going to argue that this amendment is unnecessary or whether he was going to argue that it is inadequate. As I followed his argument, he is not saying that it is inadequate. He is not suggesting that there are other criteria, apart from those set out in the amendment, which the courts should consider in deciding whether to impose a custodial sentence. Therefore, the only basis for the difference of opinion that has emerged during the course of the debate is whether it is unnecessary or whether it serves a useful purpose to set out what appear to be commonly agreed criteria in the statute.

    I can only say that for my part I should have thought that it would have helped not only magistrates but also recorders and judges to have the criteria set out in this simple and clear way and in a form which will make them, at the end of their decision, have to say in terms on what basis they have imposed a custodial sentence. I accept that the noble Lord the Minister and the noble Lord, Lord Hutchinson of Lullington, have a point in saying that there may be a role for the Court of Appeal, but I doubt whether it is right for your Lordships to hand over the whole of the responsibility to the Court of Appeal in that way. The noble Lord, Lord Elton, says, for example, that if we include the words "the offence was so serious that a non-custodial sentence cannot be justified" they may require further clarification. I respectfully agree with him. This is surely the area where the Court of Appeal should come in and say what is meant by a somewhat general term of that nature. However, on the issue as to whether or not it is unnecessary to include a clause of this nature defining the criteria, I should have thought there was a great deal to be gained for judges of all sorts and magistrates at all levels and nothing whatever to be lost.

    I should like to support what the noble Lord, Lord Wigoder, has just said. In a curious way, it is not flexibility that one wants. The fact of the matter is that there has been flexibility of different minds in different courts up to now. If we have too much flexibility, we shall be right back to the situation where those of us who have worked in different courts know full well the different decisions which different courts will come to on the same kind of case. Therefore I support what the noble Lord, Lord Wigoder, has said and agree very strongly that it is the guidelines which are necessary which should be set down, which still leaves room for the Court of Appeal to make additional moves, if they so wish.

    My noble friend Lady Faithfull said at the beginning that she was speaking to the three amendments together. Clause 5 deals with imprisonment for default. It also says that no court can commit a person unless there is no other method of dealing with him which is appropriate. In default of a fine, somebody can receive a prison sentence but there is no way of providing that another form of alternative sentence is available. For instance, community service orders are not available to the originating court, because it would not be an imprisonable offence if only a fine could be imposed. I would like to clear up whether instead of being sent to prison for default of a fine, a community service order could be instituted.

    I take it that that question is addressed to the mover of the amendment. In any event, I think that we are focusing our attention on the essentials of this issue and it is simply a question of what will be more efficacious in doing what we all want. Some noble Lords say that it is best done in tablets of stone which can only be chiselled away by all the stages of another statute, and that the corners and the commas should be rounded and inserted by the Court of Appeal. I can only say that the guidance given by the Court of Appeal will be binding on the lower courts. I do not doubt that it will be extensive and specific, and not simply in the form of a check list which the lower courts can tick off, as has been suggested. The sentencing courts will have to take into account the statutory requirements and the principles which the Court of Appeal lays down. The reasons for these will be recorded and will be open to appeal. I believe that that answers the point raised by the noble Lord, Lord Melchett.

    I regret to be at issue with some of my noble friends as well as with noble Lords opposite. I am content to rest my case because I believe that it is the right way to proceed, and that I would be supported in this by the judiciary. I believe also that it gives an opportunity for law to evolve rather than go jerking about from one piece of legislation to another. I still hope that my noble friend Lady Faithfull will see fit not to pursue the matter further.

    Before the noble Lord sits down, will he say if he can conceive of any circumstances in which the Court of Appeal's guidance would conflict with the words proposed by the noble Baroness, Lady Faithfull, for insertion in this Bill?

    I can well conceive a pattern of the guidance far wider than that which my noble friend proposes and some parts of which would not be in precise accord with what she says. I do not see any point in having unnecessary, overlapping grids of guidance when we have the expertise and experience of the Appeal Court of this land, which can be adjusted to meet circumstances as they change, rather than placing immutably on the statute book something smaller and bolder, and therefore rougher and readier.

    If the Court of Appeal will have to lay down these guidelines at some future date, would it not be better to put them in the statute book now so that everybody knows what it says, and then we do not have to go to the Court of Appeal?

    I should like to follow that by suggesting that is essentially a policy matter, on which Parliament is to give guidance. It is neither fair nor appropriate that we should simply "pass the buck" on to the judiciary. This is for Parliament to legislate on. I co not believe that the judiciary would be unhappy about being given guidelines such as these. I think that we ought to go forward and support these amendments.

    I feel like a desembodied voice, standing behind my noble friend. Would my noble friend Lord Elton like to look at me? To the noble Lord, Lord Wigoder, I will say that I am committed to these Benches but I thank him for inviting me to the Liberal Benches. Could I first take up the point made by the noble Lord, Lord Hutchinson. Obviously he is very well versed in these matters, but perhaps I could say, with the utmost diffidence to magistrates, that not all magistrates know what goes on in the Court of Appeal.

    Secondly, social workers and probation officers are the people who make recommendations and provide social inquiry reports to the courts. The courts have the final say but I believe that two magistrates in our House would possibly concede the point that they are influenced by what is said in the probation officers' and social workers' reports. I regret to say that they also do not always know what the Court of Appeal has said. It is a question of the whole climate of opinion, and I am not all sure that we can even wait for these Court of Appeal judgments to be issued and worked upon.

    My noble friend the Minister talks about the formula. I believe we must concede that a formula is necessary. My noble friend agrees that the formula is necessary but what he does not agree upon is where it should come. If he agrees that a formula is necessary, then why could it not be in the Bill? I hope that I remain to my noble friend the Minister a disembodied body because I am afraid I feel that I must divide the House on this issue.

    5.46 p.m.

    On question, Whether the said amendment (No. 4) shall be agreed to?

    Their Lordships divided: Contents, 102; Not-Contents, 81.



    Allen of Fallowfield, L.John-Mackie, L.
    Ardwick, L.Kagan, L.
    Auckland, L.Kilbracken, L.
    Avebury, L.Kilmarnock, L.
    Aylestone, L.Kinloss, Ly.
    Bacon, B.Kirkhill, L.
    Balogh, L.Lauderdale, E.
    Banks, L.Listowel, E.
    Barrington, V.Llewelyn Davies of Hastoe, B.
    Belhaven and Stenton, L.
    Beswick, L.Longford, E.
    Birk, B.Lovell-Davis, L.
    Bishopston, L.McCarthy, L.
    Blease, L.Macleod of Borve, B.
    Blyton, L.MacLeod of Fuinary, L.
    Boston of Faversham, L.Mar, C.
    Brockway, L.Melchett, L.
    Brooks of Tremorfa, L.Milverton, L.
    Byers, L.Molloy, L.
    Cairns, E.Mottistone, L.
    Chitnis, L.Mountevans, L.
    Cledwyn of Penrhos, L.Northfield, L.
    Clifford of Chudleigh, L.Onslow,E.
    Collison, L.Oram, L.
    Craigavon, V.Peart, L.
    Darcy (de Knayth), B.Plant, L.
    Davies of Leek, L.Ponsonby of Shulbrede, L.
    Davies of Penrhys, L.Rochester, L.
    Donaldson of Kingsbridge, L.Saltoun, Ly.
    Seear, B.
    Elwyn-Jones, L.Shinwell, L.
    Elystan-Morgan, L.Simon, V.
    Evans of Claughton, L.Spens, L.
    Ewart-Biggs, B.Stedman, B.
    Faithfull, B. [Teller.]Stewart of Alvechurch, B.
    Foot, L.Stewart of Fulham, L.
    Forester, L.Stone, L.
    Gardiner, L.Strabolgi, L.
    Gosford, E.Taylor of Mansfield, L.
    Greenway, L.Tordoff, L.
    Harris of Greenwich, L.Trumpington, B.
    Houghton of Sowerby, L.Ullswater, V.
    Howie of Troon, L.Underhill, L.
    Hunt, L. [Teller.]Vaux of Harrowden, L.
    Hutchinson of Lullington, L.Wade, L.
    Ilchester, E.Wallace of Coslany, L.
    Ingleby, V.Walston, L.
    Irving of Dartford, L.Wedderburn of Charlton, L.
    Jacques, L.Wells-Pestell, L.
    James of Rusholme, L.Whaddon, L.
    Jeger, B.Wigoder, L.
    Jenkins of Putney, L.Wynne-Jones, L.


    Airey of Abingdon, B.Long, V.
    Alexander of Tunis, E.Lucas of Chilworth, L.
    Allen of Abbeydale, L.Lyell, L.
    Allerton, L.Mackay of Clashfern, L.
    Avon, E.Marley, L.
    Bathurst, E.Massereene and Ferrard, V.
    Bellwin, L.Merrivale, L.
    Beloff, L.Mersey, V.
    Bessborough, E.Monk Bretton, L.
    Caithness, E.Monson, L.
    Campbell of Alloway, L.Montgomery of Alamein, V.
    Campbell of Croy, L.Murton of Lindisfarne, L.
    Cathcart, E.Newall, L.
    Cockfield, L.Northchurch, B.
    Cork and Orrery, E.Nugent of Guildford, L.
    Daventry, V.Orkney, E.
    Davidson, V.Orr-Ewing, L.
    De La Warr, E.Plummer of St. Marylebone, L.
    Denham, L. [Teller.]
    Digby, L.Radnor, E.
    Dormer, L.Reigate, L.
    Drumalbyn, L.Renton, L.
    Eccles, V.Renwick, L.
    Ellenborough, L.Rochdale, V.
    Elton, L.St. Davids, V.
    Ferrers, E.Sandys, L. [Teller.]
    Fortescue, E.Selkirk, E.
    Fraser of Kilmorack, L.Sharples, B.
    Gainford, L.Skelmersdale, L.
    Glenarthur, L.Stodart of Leaston, L.
    Gowrie, E.Stradbroke, E.
    Harmar-Nicholls, L.Swansea, L.
    Harvington, L.Swinfen, L.
    Hatherton, L.Teynham, L.
    Henley, L.Thomas of Swynnerton, L.
    Home of the Hirsel, L.Torphichen, L.
    Hylton-Foster, B.Trefgarne, L.
    Inglewood, L.Wakefield of Kendal, L.
    Kilmany, L.Westbury, L.
    Kinnaird, L.Wilberforce, L.
    Lane-Fox, B.Young, B.

    Resolved in the affirmative, and amendment agreed to accordingly.

    5.55 p.m.

    moved Amendment No. 5:

    Page 2, line 17, at end insert (" because it appears to the court that he is unable or unwilling to respond to non-custodial penalties or because a custodial sentence is necessary for the protection of the public or because the offence was so serious that a non-custodial sentence cannot be justified ").

    On Question, amendment agreed to.

    Before I call Amendment No. 6, I should point out to the Committee that if Amendment No. 6 is agreed to, I cannot call Amendment No. 7.

    moved Amendment No. 6:

    Page 2, line 18, leave out subsections (6) and (7).

    The noble Lord said: Your Lordships may find it to the convenience of the Committee if, in moving Amendment No. 6, I speak also to Amendments Nos. 9, 176, and 180. I am pleased to bring forward these amendments to give effect to an undertaking which the Government gave during the passage of the Bill through another place. The Government were strongly pressed to provide that a court should always and invariably consider a social inquiry report before imposing a custodial sentence on a young offender.

    May I in parenthesis address myself to a question which I think is exercising the Opposition Front Bench. Perhaps the noble Lord, the Chairman of the Committee would allow me to say that Amendment No. 7 is consequential on Amendment No. 4, which has fallen, or, if you happen to look at it from the other side, stood up. Therefore, it does not relate to this debate. All I can do is to congratulate those with whom I disagree on their victory and look for their magnanimity.

    Reverting to Amendment No. 6, I am glad to bring forward these amendments to give effect to an undertaking which the Government gave during the passage of the Bill through another place. The Government were strongly pressed to provide that a court should always and invariably consider a social inquiry report before imposing a custodial sentence on a young offender. That was difficult because there would sometimes be cases in which a rigid requirement of that kind would operate in a ridiculous way. Such a case might arise where, for example, the court after a long trial already had a great deal of information about the offender and his circumstances and the offence was so serious that a substantial custodial sentence was absolutely unavoidable. It would clearly be wrong if in such a case the court had to adjourn the case before sentence simply because its information did not happen to be in the form of a social inquiry report.

    After long debate there was general agreement that a court should normally consider a social inquiry report before passing a custodial sentence on a young offender, but that it should be able to dispense with the requirement where, in the circumstances of the case, it thought such a report unnecessary. That is the provision which this new clause makes.

    The Government have taken the opportunity with these amendments to offer a slight rearrangement of the opening clauses of the Bill. This new clause incorporates the provisions which now appear in subsections (6) and (7) of Clause 1. Clause 1 sets out the general principle that a court may not impose a custodial sentence on a young offender unless it is of the opinion that no other method of dealing with him is appropriate. The new clause elaborates on that provision by providing that the court should usually consider a social inquiry report, and that it must take into account any information before it which is relevant to the young offender's character and his physical and mental condition. A magistrates' court must state and record the reasons for its opinion that no other method of dealing with the offender is appropriate and, if necessary, its reason for dispensing with a social inquiry report.

    This clause improves and strengthens the Bill. It serves to emphasise that custody should always be a last resort and that any decision to impose a custodial sentence should be arrived at only after the fullest consideration of all the circumstances of the offender as well as the offence. I urge the House to accept these amendments.

    The Committee will be grateful, or at least we on this side of the Committee will be grateful, to the noble Lord for having met the strongly expressed opinions in another place commending the view that before a custodial sentence is imposed on an offender under 21, the court should consider a social inquiry report unless there are special reasons which make that course unnecessary. Where there are such circumstances the court should give its reasons why it considers this unnecessary. This is a helpful amendment and I think that it will greatly assist the courts in the application of these clauses.

    I should like to raise one matter to ensure that I have understood the position. If and when these amendments are carried, as I understand it Amendment No. 7 will not now be called. Amendment No. 7 is consequential to Amendment No. 4 which the Committee has just supported. As I understand it, the position is—and I would be grateful for the Minister's confirmation—that if these amendments are carried, Amendment No. 7 will not be able to be put, but at the Report stage Amendment No. 7 will be re-tabled to come in at the appropriate stage after the new Amendment No. 9 and subsection (4). It will, in effect, then follow on as it would have done had these new amendments not been proposed.

    I think that perhaps I was injudicious in my intervention at the beginning of my introductory speech because the noble Lord has looked at what the noble Lord Chairman said. It would seem that we are to remove a part of the Bill which is to be amended by Amendment No. 7, although it is a consequential amendment. When I was doing my preparation I had not made the assumption that the last Division would go against me and that is why I drew that conclusion. It will be for my noble friend not to move Amendment No. 7, but to do what is appropriate at the next stage of the Bill.

    On Question, amendment agreed to.

    I cannot call Amendment No. 7. The next amendment is Amendment No. 8.

    [ Amendment No. 7 not moved.]

    moved Amendment No. 8:

    Page 2, line 39, at end insert—
    (" (9) For the purposes of this Act the age of a juvenile or young person found guilty or pleading guilty to an offence shall be deemed to be the age of the person at the date of the commission of the offence.").

    The noble Lord said: I beg to move Amendment No. 8 which stands in the name of my noble friend Lord Donaldson of Kingsbridge and myself. The purpose of this amendment is to supply what we believe to be essential information—an essential factor—in regard to the general purpose of this clause. Clause 1, as your Lordships are well aware, has to do with the general restrictions on the custody of young people. In the previous subsection—subsection (8) as it stands at the moment, which is the last subsection —there is reference to the matter of age. As your Lordships will see, it says:

    " For the purposes of any provision of this Act which requires the determination of the age of a person by the court or the Secretary of State his age shall be deemed to be that which it appears to the court or the Secretary of State (as the case may be) to be after considering any available evidence ".

    It seems to us that there is something missing. I have never sat on a Bench myself, but it seems to me

    that in determining the disposal of a young person, the age of that person at the time either of the arrest or of the sentence—or could it be, as we believe, at the time he or she committed the offence?—is totally relevant to the kind of disposal.

    If the young person is below the age of 14 he or she cannot be committed to custody and, depending on the length of sentence which the court deems it correct to impose, the person may be sent to a detention centre or to youth custody. To some extent a relevant factor must be the age of that person. It seems to us sensible to relate the age of the juvenile to his offence or to relate the offence to the age of the juvenile at the time when he or she committed it. It is as simple as that. I hope that your Lordships will agree that there is something missing from the Bill as it stands at the moment and that the Minister will be able to see the ommission, agree it, and put it into the Bill. I beg to move.

    On the face of it this would seem to be a very helpful and sensible amendment. But I wonder whether the noble Lord, Lord Hunt, and those who may agree with him, have considered the principle that is summed up in the old Latin tag, nullum tempus occurit regi—there is no limitation in criminal cases. Indeed, somebody can be brought up before the court for an offence which he or she committed years before. Therefore, if in principle this amendment is right, an exemption would have to be added because it really would be quite absurd if, for example, a person committed an offence at the age of 16 or 17 but did not come before the courts until he was in his middle twenties. It is obvious that when he does eventually come before the courts the principles of sentencing which apply to people of the age at which they do come before the courts, should apply. Therefore, I do not see how your Lordships could accept the amendment as it stands, but perhaps my noble friend Lord Elton will be able to clarify this matter.

    This is a probing amendment. The point is that as it stands it seems unsatisfactory that the magistrate sitting on the Bench does not know at what period he has to take the age before he decides what to do with the offender. If that is not the case, we should be very happy to withdraw the amendment. It seems to me that there is a gap here. I do not wish to say what ought to be the case; we have put down what seemed to us to be correct. The noble Lord, Lord Renton, says that it will not "go"—all right, but something should go. It should not be up to the magistrate to say, "Well, you were 14 when this crime was committed but you were only convicted when you were 15 and, therefore, I shall treat you as 15". He ought to know which it is. It seems to me that the situation is wrong.

    I should like to mention one other matter that is wrong. In the third line of the amendment, as printed on the Marshalled List, the word should be "commission" and not "committal".

    I should like to ask a question as somebody who has a totally open mind. Surely this is not something very new? The problem must have arisen since the beginning of the commission of crime. The noble Lord, Lord Donaldson, might have got up to some appalling high jinks when he was 15 but to prosecute him now and to send him to the detention centre at Send to have a quick, short, sharp sentence would be really carrying things to an idiotic length. However, this situation must have occurred previously, but of course not to that extreme.

    The point which I want to raise is as follows. Why is the age 21 and not 18? One can vote for my right honourable friend Mrs. Thatcher at 18, but if in one's exuberance at her winning the election one commits some foul deed, one is sent to a juvenile detention centre as opposed to a male prison. I should like to ask that question.

    It seems to us on these Benches that, as regards the question of the age of an offender in the context of any line that is drawn at law, the choice must really lie between his age at the date of the commission of the offence or his age at the time he is dealt with by the court. No doubt there are many situations that will render either of those two dates less than appropriate. But the lesser of the two evils, in our submission, is the date at which he is dealt with by the court.

    In fact, that is the situation at present in relation to a court passing a borstal sentence. It has to consider the age of the miscreant and sometimes that in itself can be a problem, but it must decide that issue of fact as best it can. It has to decide the age at the date on which it deals with the particular offence. That is the position under Section 80 of the Criminal Justice Act 1948. Therefore; of the two evils that would seem to be the lesser in this connection.

    My Lords, my work has almost been done for me. My noble friend Lord Onslow, is, of course, right that the question has arisen before. He thinks that it was resolved at the moment when crime began; that was when Eve first picked the apple, and I think that the result was almost instant eviction, which is not an order appropriate to what we are now considering. But the usual rule is, as, indeed, the noble Lord, Lord Elystan-Morgan, has said, that a court should sentence an offender according to his age at conviction and sentence. There would be very absurd results if this were not so, even if some of the results are not altogether agreeable as things are now. Indeed, this is borne out in Clause 3(1)(a) of the Bill itself, which relates to detention centres if under 21 and over 14 when convicted, and the same for youth custody in Clause 5(1)(a). So I do not think that there is an omission on the face of the Bill.

    I could illustrate this further but, as I say, I think that the work has been done for me. If the noble Lord wishes me to proceed further, I could point out other difficulties that will result from what he proposes, but the fact is that to award a sentence appropriate to a 16-year-old compared to, say, a 25-year-old would be rather absurd, and I think that the court has to decide on what is appropriate for the culprit at the time of his trial rather than for the crime at the time of its commission.

    In regard to the biblical reference to the eviction from the Garden of Eden, it may help the Committee to remember Mark Twain's famous observation that he would rather be outside the garden with Eve than inside it without her!

    I do not think that your Lordships will wish me to detain the Committee very long on this amendment. As my noble friend has said, it was intended to be a probing amendment. I am still left with the impression that there is something to be said which is not said at the end of this clause with regard to this matter. I am in the weak position of not having any judicial experience myself, so I would not know whether the usual practice—which I now understand is to take the age as the age at conviction and sentence—is the normal and usual practice. If that is so, I personally am quite happy to leave it at that. But I would ask the Minister whether he would give a little further thought as to whether it would not be useful, as it is not in the Bill as it stands at the moment, to put it in at the end of this clause.

    I thought that I had made it clear that it is in the Bill, but in Clauses 3 and 5. The noble Lord, Lord Elystan-Morgan, has pointed out that the usual practice is also based on statute, so I think I can assure the noble Lord that what he seeks to do is superfluous.

    Before the noble Lord withdraws it, can my noble friend give me some answer as regards the age of 21 as opposed to the age of 18? It may not be the appropriate place to ask this question, but it seems to me to be a relevant point.

    Perhaps I may reply to my noble friend afterwards, because I have not actually grasped the point, and we wish to get on with the Committee stage.

    I think I mentioned that the Committee on the age of majority some years ago decided that the criminal provisions, such as provisions relating to sentencing, the age of various criminal liabilities, and so on, should not be touched by their recommendations. I think that that must be the answer to my noble friend.

    Amendment, by leave, withdrawn.

    On Question, Whether Clause 1, as amended, shall stand part of the Bill?

    I do not wish to detain your Lordships for more than a few moments but perhaps I may draw attention to the fact that, thanks to the success of my noble friend Lady Faithfull—with whom I did not vote I must confess, but nevertheless I congratulate her—we now have two additions to Clause 1 in precisely the same terms, and neither of them very brief. I hope that if these provisions are to remain part of the law and if the Government are not to try to get them reversed somewhere, somehow, the draftsman may be invited to collate them so that we do not have repetition.

    The other point I wish to make is as follows. This is a very important clause because it replaces Section 3 of the Criminal Justice Act 1961. Of course, there have been three Criminal Justice Acts since the war, several Criminal Procedures Acts, Magistrates Courts Act—a vast amount of legislation—in most of which some of us, in one place or another, have taken part. I have regarded all the statutes dealing with the criminal law and its application as experimental. Perhaps I may make a confession to your Lordships. I was largely responsible for the much maligned Section 3 of the Criminal Justice Act 1961. At the time it was fairly controversial and I never expected it to last 21 years. Under Governments of both complexions that is what it has done, but, speaking for myself, I shall be gald to see the back of it.

    The only point of substance which my noble friend raised was to ask us to have a look at the technicality which my noble friend has placed upon the face of the Bill, and of course we shall do so.

    Clause 1, as amended, agreed to.

    (" Social inquiry reports etc.

    .—(1) For the purpose of determining whether there is any appropriate method of dealing with a person under 21 years of age other than a method whose use in the case of such a person is restricted by section 1(4) or (5) above the court shall obtain and consider information about the circumstances and shall take into account any information before the court which is relevant to his character and his physical and mental condition.

    (2) Subject to subsection (3) below, the court shall in every case obtain a social inquiry report for the purpose of determining whether there is any appropriate method of dealing with a person other than a method whose use is restricted by section 1(4) above.

    (3) Subsection (2) above does not apply if, in the circumstances of the case, the court is of the opinion that it is unnecessary to obtain a social inquiry report.

    (4) Where a magistrates' court deals with a person under 21 years of age by a method whose use in the case of such a person is restricted by section 1(4) or (5) above, it shall state in open court the reason for its opinion that no other method of dealing with him is appropriate.

    (5) Where a magistrates' court deals with a person under 21 years of age by a method whose use in the case of such a person is restricted by section 1(4) above without obtaining a social inquiry report, it shall state in open court the reason for its opinion that it was unnecessary to obtain such a report.

    (6) A magistrates' court shall cause a reason stated under subsection (4) or (5) above to be specified in the warrant of commitment and to be entered in the register.

    (7) No sentence or order shall be invalidated by the failure of a court to comply with subsection (2) above, but any other court on appeal from that court shall obtain a social inquiry report if none was obtained by the court below, unless it is of the opinion that in the circumstances of the case it is unnecessary to do so.

    (8) In determining whether it should deal with the appellant by a method different from that by which the court below dealt with him the court hearing the appeal shall consider any social inquiry report obtained by it or by the court below.

    (9) In this section "social inquiry report" means a report about a person and his circumstances made by a probation officer or by a social worker of a local authority social services department.").

    The noble Lord said: This is consequential. I beg to move.

    On Question, amendment agreed to.

    Clause 2 agreed to.

    Clause 3 [ Orders for detention of male offenders aged 14 to 20]:

    moved Amendment No. 10:

    Page 3, line 44, at end insert—
  • (" (1A) The Secretary of State may by order made by statutory instrument substitute a higher number for the minimum number of years of age for the time being specified in paragraph (a) of subsection (1) above.
  • (1B) An order shall not be made under subsection (1A) above unless a draft of the order has been laid before Parliament and approved by a resolution of each House of Parliament.").
  • The noble Baroness said: This is an amendment which does not ask Her Majesty's Government to do something at the moment, but which looks into the future when we may think of children of school age being dealt with in the education system instead of in the penal system. From the point of view of figures, we have noticed that it is the older children or young persons who commit the most difficult crimes with which to deal, and we feel strongly that as a future policy we should consider and work out how children of school age should be kept in the education system, and not the penal system.

    I speak with great feeling here, and I hope that your Lordships will forgive me if I repeat what I have said before in your Lordships' House. During the time that I was a children's officer and director of social services only six children in those 18 years went into a penal institution. The remainder were kept in the education system or in the care system of children's homes. I think that it is this to which we should work towards, even if we cannot achieve it now. Therefore, the meaning of this amendment is to make it possible

    " by statutory instrument [to] substitute a higher number for the minimum number of years of age for the time being specified in paragraph (a) of subsection (1) above ".

    That is really the substance of this amendment.

    We have continually talked of the number of young children and young persons going into custodial care who really could be dealt with in the community, and I shall not continue with that. It is distressing to prison and borstal governors when they find themselves dealing with juveniles, and it is distressing to the staff of those institutions. Perhaps most significant of all is that the present Government have themselves accepted the desirability of ending prison department custody for juveniles, but they have done so in another part of the United Kingdom; namely, Northern Ireland.

    In 1979, the Black Report on Legislation and Services for Children and Young Persons in Northern Ireland made the controversial recommendation that, except in the case of very serious offences, all existing custodial and residential sentences for juveniles should be amalgamated into a single determinant residential order. The Black Committee recommended that this order should be reserved for those who are clearly a threat to society, and proposed that those sentenced under this order should go to a mixed secure establishment with a régime which could be as helpful and supportive as possible.

    However, the then Minister of State for Northern Ireland told the House of Commons Northern Ireland Committee on 5th November 1980 that the Government accepted these proposals. He added that new residential establishments for juvenile offenders would be run by former training school staff and not by prison staff. With justifiable pride, he pointed out that following these changes Northern Ireland would be one of the first areas in Europe which would no longer accommodate children in adult penal institutions. Therefore, I move this amendment in the hope that the Minister will feel able to accept it, bearing in mind that this is what we should move towards. I beg to move.

    6.23 p.m.

    I should like to support the amendment moved by the noble Baroness. It is an interesting and important amendment. It is doing something which I hope we will see done in this Bill. It is bringing something creative and looking towards the future, and following a particular philosophy which we try to embody more and more in the field, which is to move away from the custodial side into the non-custodial side when dealing with penal offences. In this part of the Bill, where we are dealing with young offenders and juveniles, it is appalling to be reminded so many times as we go into these amendments of the rise in the numbers of juveniles going into custody.

    Furthermore, when we have to accept that the rise in the number of juveniles in custody has no parallel among the older age groups, even today, it makes one gasp. Apart from the awful aspect of so many youngsters in custodial care, and I will not rehearse the arguments on previous amendments where we have shown what the rate of recidivism is, what we are doing is to create future generations of prison occupants. It is becoming this vicious penal circle, and it is something that we should stop.

    This amendment opens a window of fresh air to the future and is saying that the minimum age should be able to be raised. In looking into this amendment, which is supported by the all-party Penal Reform Group, I was impressed that not only the prison and borstal governors share this view, but the probation officers and social workers. When the comments came out on the parliamentary all-party Penal Affairs Group report, Young Offenders, a Strategy for the Future, the Police Federation also expressed its support for the phasing out of prison department custody for juveniles. It is interesting that one has this all round support.

    It is important to show in this major Bill that we are moving towards the future and not staying put in the unfortunate rut in which we find ourselves today in this great area of dealing with juveniles and young offenders. I hope that the Minister will find it possible to accept this amendment. If there is anything in the drafting that does not please him, what we are concerned with is that the spirit and intention of it should be incorporated into the Bill.

    I wanted to say something and it seems to me that this is the right part of the Bill at which to do so, in view of the noble Baroness's amendment. Last weekend I was sitting next to the former Lord Mayor—deputy now—of Birmingham, who was the chairman of the committee of social services. I was fascinated by what he had to tell me in that large and difficult city. He, as chairman, had been round to all the establishments run by the social services. He had found that those establish- ments were in no cases full. He had, therefore, closed some of the establishments, but he had made a specific point of taking out the social worker from each of those establishments and he had formed them into a fostering committee. He had organised them into this committee, and they had been sent into the City of Birmingham to find fostering homes for these children. It was not only for delinquent children, but others who needed to be removed from the care of their own homes. I am only telling your Lordships this because it seemed to me that this might be a way ahead for certainly some of our big cities.

    I would support the noble Baroness who has just spoken about fostering, which is one of the most important remedies open to us. I do not know whether it is strictly applicable to this amendment. All that I want to say about this amendment, because it has been fully discussed by the noble Baroness who moved it and my noble friend on the Front Bench, is that I want to give just an impression of total gloom. Everybody that I know who is connected with penal affairs thinks that it is a mistake, where it is avoidable, to send children—and by children, I mean youngsters up to 18, anyway—to prison.

    Every magistrate you speak to says the same thing. Every judge says the same thing. Yet the increase in custodial sentences since 1965 has been five fold. That is less than a fifth of the percentage rise in crime. So it is a real increase in courts sending juveniles to prison. This may be inevitable. They may be so clearly evil that there is no other way of treating them, but I do not believe it. On the other hand, I do not think that either magistrates or judges are telling anything but the truth. I do not know what on earth is the answer, but it is a nasty situation that exactly the opposite of what we all think ought to happen is in fact happening.

    During the past 20 years the proportion of convicted adults received into custody has been more than halved. During the same period, the proportion of juveniles receiving custodial sentences has more than trebled. I am not giving any answers. I am only saying that I am thoroughly worried, and the least we can do in this Committee tonight is to persuade the Government to leave it open to themselves to improve the situation by raising the age as soon as the opportunity arises.

    It is relevant to mention in connection with the amendment the experience of the alternative probation project which has been running for five years or more at Farnham in Hampshire. It was conceived originally as a new way of doing probation, but in the process it was discovered that most of the young offenders coming into it had either missed school or failed to benefit from school. Therefore they built into the whole project an educational component. That is why I support the noble Baroness, Lady Faithfull, in all she said about keeping children in education and not doing custodial sentences of one kind and another. I hope the Government will take the matter very seriously.

    I have a short suggestion for my noble friend the Minister. Would he agree that the amendment imports a desirable degree of flexibility in an area where flexibility is desirable?

    Part of the answer which the noble Lord, Lord Donaldson, seeks, rests in other parts of the Bill, and I am sure my noble friend will accept that our principal intention in the Bill is to reduce both the numbers in custody and the duration of custody—to increase the confidence of the courts in non-custodial sentences—and thereby to reverse a progress which we all deplore. But 1 do not think my noble friend believes any more than I do in what I would call aspirational legislation. The fact is that even she, in her lengthy and enlightened régime at Oxford, was constrained to see six children consigned to penal institutions. There will always be cases, I regret, when younger as well as older young offenders, however few, will be of a nature when they will have to be so contained. That is the reality of the situation. I wish it were otherwise, but we have a duty to deal with things as they are and not things as we would like them to be.

    The whole burden of this part of the Bill is to direct the courts very strongly away from the use of custody for young offenders, but we do not intend to deprive them of that power in the most serious cases. The amendment seeks to insert a provision which would enable the Secretary of State to present a draft order to raise the minimum age for detention centre orders. It is in one sense a statement of aspiration, as I said, for the future, but it is wrong to put on the statute book any provision which has no real prospect of being brought into use. There was a reference to the Black Report in Northern Ireland. I have to say that the recommendations of the Black Report have not been implemented. There is a great deal to be said for them, but they could not easily be applied here and my noble friend read out the passage in which an exemption was made for the very people to whom I am referring—very serious offenders: for those we have to make provision.

    If the proposals were fully implemented, there would be major changes in the framework of the juvenile justice system, but it has not been possible over the last 13 years to implement in full the Children and Young Persons Act 1969. Again, this is aspirational legislation which may feel like a window open to the future, but it is one through which it is impossible to go. It has itself caused a great deal of uncertainty, not least for those who work with juvenile offenders, who simply do not know where they stand. If the amendment were accepted, the staff of junior detention centres would ask us, quite rightly, what use we intended to make of the provision, and the truthful answer would have to be, alas, that we saw no real, foreseeable prospect of being able to use it because it would close the option for that limited number of people for whom, I regret, it will always be needed.

    I thank the Minister for that reply. I appreciate what a difficult amendment it is and the fact that possibly we may all have to work to prove it is necessary and to bring it in at a later stage. I was always taught to hitch your wagon to a star. I believe one can help young offenders. I do not take the gloomy view of the noble Lord, Lord Donaldson. I think we have got off the tracks but that we can get back on to them. Perhaps over the next few years we may try to get better relationships between the social services and education and we may try to help with the new schemes that are being started and which are being monitored. There is a scheme, for instance, run by Barnardo's and the local authority in Pontefract, which is showing signs of improvement in an area of high delinquency, and I could give examples of many other areas. Therefore, I hope that, having brought the amendment before your Lordships, perhaps as the years go by we may completely alter the way we deal with juveniles, bearing in mind of course that there are some who, as my noble friend Lord Elton said, need a particular type of help because of their particular difficulties. I will not divide the Committee on the amendment at this stage. I will read what my noble friend said and, in the meantime, I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    6.37 p.m.

    moved Amendment No. 11:

    Page 4, line 4, at end insert—
    (" ( ) Where reports indicate that a specific course of treatment is necessary (whether it be medical or otherwise) provision may be made exceptionally by the Court to extend the period of 4 months in order that treatment may be completed.
    ( ) Where the period of custody is extended in accordance with subsection ( ) above, the case is to be reviewed at 14 day intervals.").

    The noble Lord said: The Committee will have seen that I have several amendments down. It may be convenient if I make a short preface to them all: I do not propose to move them together, but separately as we come to them, because they all deal with different subjects. On Second Reading I said I had been advised in the matter by a recently retired warden of a custodial establishment for delinquent girls in the London area. I slightly stress the London area because the theme of my amendments, and the questions I have to ask, may distress my noble friend Lady Faithfull somewhat in view of what she said; the general theme deals with the six whom she had to send to prison—repeated in the London area, as it were—and I suspect that in the London area there are rather more people who are too difficult to deal with under other circumstances than there are in other parts of the country, where it might be possible to handle them more reasonably.

    I am grateful to my noble friend for the kind letter he wrote in response to my remarks on Second Reading. It was surprisingly confident, I would say, in referring to the ability of local authority personnel to handle what they are asked to handle. My advice is that in many parts of the country that is not quite the case, but I will leave it at that. All my amendments are probing—I have informed my noble friend of that—and are really asking him a series of questions and, as he knows what they are, hopefully I shall get some splendid, or at any rate meaningful, answers.

    The problem is that there are types of medical and other treatment which last for more than four months. The question, therefore, is how the detention centre is to complete a course of treatment for drugs, solvent abuse, venereal disease or something of that sort when the cure may last for more than four months. That is really the substance of the question. I beg to move.

    I am obliged to my noble friend for narrowing the area of his concern in this amendment to the question of medical and other treatment in detention centres. The Committee will know that the intention is that the sentences shall be short, and I accept that it is possible that inmates might be partaking of courses of treatment of one kind or another which last longer than the sentences. The question that my noble friend is asking is: should we keep them inside the detention centres for longer than the sentences in order to see that the courses of treatment are completed?

    I think that I can assure my noble friend that under any circumstances we should not wish to keep anybody in detention for longer than the sentence required, but equally we should not wish a person to be discharged into the community without proper medical supervision and the chance of completing a course of treatment. if the course of treatment were such that it could not be given in the detention centre, the young person would already have been transferred to the National Health Service, or to another part of the Prison Service where the treatment was available. If, on the other hand, the course of treatment could be carried out in such an establishment, then in the natural order of things, the medical officer would ensure that the detainee was put in touch with the National Health Service and that his treatment was not interrupted upon his release.

    Yes, I feared that my noble friend might say that, but really that is not an answer. The kind of people whom we are talking about, on being released from prison, even if they were put in touch with the local doctor, would not have the same approach as your Lordships would have to these problems. If we, at our great age, are put in touch with the doctor, we do not dare to go to see him. But if you are 14, 15, 16 or even in your early twenties, and you are told, "Gosh, you've got venereal disease, and you've got to complete the course, otherwise you are going to be a menace to society ", you do not care a fig for that, and you do not go to the doctor. It is a real problem. My adviser had this sort of problem.

    Perhaps I may press my noble friend slightly. I would not necessarily expect an immediate answer, but I should like him to study the situation of people who will not comply with what one might call normal social pressures. What is to be done if the course of treatment is perhaps three-quarters complete when the sentence ends? What do we do to make sure that the treatment is completed?

    I should like to support the noble Lord, Lord Mottistone. There is another aspect to this problem, and it is concerned with the question, who is to treat the people involved? My experience is that at the moment in the psychiatric service one cannot get psychiatrists or mental hospitals to accept a patient if he is not willing to go for treatment. Those of us who have dealt to a considerable extent with drug addicts know that they will not go to a clinic. If the people in question are to be handed on to the National Health Service, will the NHS in fact take them? I ask that because my experience is that it will not take them.

    I must make it quite clear that the function of the prison service is not to cure the sick. We had lengthy debates in this area when considering the Mental Health (Amendment) Bill, and it was then made quite clear the types of illnesses under which people could be detained because they suffered from them. Frankly, under those circumstances a person would not be in a detention centre, anyway. But if he were suffering from a lesser affliction, whether it be a social disease or a mental disease, we must remember that when the sentencing justice says to him, "You must take your medicine", he uses the term entirely figuratively. The young person is put inside for a purpose which relates to his misdemeanour, not to his state of health.

    I consider that the prison service has a highly commendable record for close co-operation with the National Health Service in this field. What the noble Lord seeks to do is to extend periods of detention in order that courses of treatment which do not relate to the offence can be completed. I regret that that is not the function of the Bill; nor is it the function of the prison department.

    Compulsory treatment outside the prison system, and indeed inside it, leads to very considerable difficulties, which we have discussed in very great length in this Chamber. My noble friend Lady Faithfull for one has taken part in such debates, and many of your Lordships whom I see sitting here are familiar with the issues. I should not think that we wanted to broach them now. The only reassurance that I can give to my noble friend is to say that this is an area which interests me, too, in particular in the mental health field, but also in the medical field. I have the matter under review. I believe that it might be possible to make things better than they now are, but they are by no means bad.

    If I may intervene briefly, I would say that though I accept that the noble Lord, Lord Mottistone, has raised a matter of importance, I believe that there are arguments of principle against what he is proposing. As I understand it, the court would have the opportunity to extend a period of custody to ensure that a course of treatment is completed. I speak subject to correction from the Minister, but I know of no provision in the English law which has ever given a court such a power.

    I might be wholly mistaken in that view, but I should like to cite one particular example of which I have some knowledge. It relates to the problem of mental illness, touched on by the noble Baroness. I think that doctors would approach with the utmost caution the question of wanting powers of this kind to be exercised on behalf of a person who had some form of mental illness. As I understand the amendment moved by the noble Lord, Lord Mottistone, the court would have the power to review the matter at 14-day intervals. I cannot think of a worse manner in which to approach a person suffering from a difficult psychiatric problem of one kind or another. Though, of course, completely aware of the reality of the issue described by the noble Lord, Lord Mottistone. I do not believe that this is the way to deal with the problem.

    I hasten to dispel any opinion that I have been seeking to put through the amendment; it is a probing amendment. My noble friend, as well as the noble Lord, Lord Harris of Greenwich, went off and followed the hare that I wanted to put through the amendment. I want to put to the Government the fact that there is a very real problem involving the prison service and all that goes on there, local authority care, and doctors. In a sense they are all saying. "It's your job, not mine". There is a group of people whom it is difficult to convince that they must do something for the benefit of themselves, let alone the benefit of the community, and in effect they fall between the official bodies and so are not dealt with.

    As I say, this is a real problem. I received a glimmer of hope from my noble friend when he said that he is desperately interested in the matter, and I trust that that might lead to some action in some way. I reserve the right to go on being a nuisance at the Report stage in one way or another in order to try to get something more solid out of my noble friend. In the meantime, I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    6.49 p.m.

    The noble Lord said: This amendment is different from the last one, though it is another probing amendment. At present there are no detention centres for girls. This point was mentioned earlier, and it was partly answered under Amendment No. 3 by my noble friend. I cannot remember to whose speech he was responding. I am not sure whether it was the noble Lord, Lord Harris of Greenwich—no, it was the noble Lord, Lord Hutchinson of Lullington.

    My question is—and I hope that my noble friend will be allowed to listen to it—are detention centres for girls to be established? If not—and this is the key question—what provision is to be made for young female offenders? Your Lordships might recall that at Second Reading, speaking on advice that I had received, I told the House that it is the 14- to 17-year-old girls who have been involved in the biggest increase in vicious crime among any group of people in the last few years. What we are to do? So what provision is to be made for young female offenders?

    May I say first that all young offenders released otherwise than on parole will, on release, be subject to a period of supervision, and that supervision is integral. Perhaps your Lordships would bear with me for a moment. They will have to observe certain conditions, and the Government intend that these will be relatively simple and will relate mainly to keeping in touch with the supervisor. There must be sanctions if they are not observed. Clause 15 deals with the offence of breach of supervision and sets out the penalties, which are a fine of up to £200 or a custodial sentence of up to 30 days. The offence of breach of supervision is directly connected with the original custodial sentence. The courts should be able to remind the offender of the importance of supervision and of the need to comply with its conditions.

    My noble friend was particularly interested in short sentences for juvenile girls. Under the provisions of the Bill the custodial sentences made available for young women and girls broadly reflect the present situation. Girls aged 15 and 16 will be eligible for a youth custody sentence of over four to 12 months. Young women aged 17 and over will be eligible for youth custody sentences of 21 days or over, and custody for life. The Bill does not affect the power to order juvenile girls convicted of grave offences to be detained under Section 53 of the Children and Young Persons Act 1933. No attempt is made to introduce a detention centre order for girls or a short custodial sentence for juvenile girls.

    My noble friend is not I think anxious to claim that it is unjust to discriminate on grounds of sex by providing a short custodial sentence for boys aged 14 or over but not for girls. That is generally used to support the abolition of detention centre orders for juvenile boys; but there may be some noble Lords who feel that there should be a detention centre order or some other short custodial sentence for juvenile girls. There only has ever once been one such detention centre, Moor Court, which I had occasion to refer to earlier this afternoon. That is in Staffordshire, and was opened in 1962. As I said, it served only the northern part of the country, and had an average daily population of about 24 girls. So the scope of this problem is not an enormous one. It was closed in 1969; and, as I reminded your Lordships earlier, the Advisory Council on the Penal System came to the conclusion that the needs of the boys and the girls were so dissimilar that there was nothing wrong in having separate provision.

    The number of girls who offend is very much smaller than the number of boys. The offending by the boys is on a much larger scale, as well; and the courts, I think, could not manage without the custodial sentence for the boys. The type of régime operated in detention centres is suitable for boys but not for most of the adolescent girls who commit serious offences.

    The question is: where should they be put? The answer is that we feel that in those circumstances there are two sets of reasons why the age groups should be allowed to mix. One of them is the simple logistical one that there are too few to have a national provision without journey times being absolutely unacceptable. The other is that the nature of the female young delinquent, young offender, is such that the older offenders seem to have a steadying effect on the slightly younger girls, and therefore it is proposed that the provision for these girls shall be the same as for the older offenders.

    I thank my noble friend for that answer. The only point I should like to leave with him on this matter is that, having experimented with a girls' detention centre in 1962 and closed it in 1969 because there were to few people to occupy it, I understand that, sadly, the rise in the number of teenage female offenders has been such in the years since 1969 that he might well find that it would be wise to consider re-introducing such a place. Even if it was found unnecessary in the 1960s, in the 1980s the increase in crime among teenage girls might justify it. But having said that, I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    The noble Lord said: In this case it says in the Bill:

    " Subject to subsection (6) below, a court shall not make an order under this section for the detention of an offender…if it considers that his detention in such a centre would be unsuitable because of his mental or physical condition ".

    My question then is: What alternative arrangements are to be made? The present problem is that medical units for the disturbed or addicted accept individuals on a voluntary basis only. If a young person does not want to stay, or absconds, then the necessary treatment and help is not received. What is the answer to this problem that my noble friend would care to give me? I beg to move.

    If a young offender is not physically or mentally fit for the régime at a detention centre, then ideally he should not be sent there, and we shall be debating this issue, I think, at greater length after dinner. If, on the other hand, he arrives there and proves not to be fit to pursue the tougher régime, he can be moved to a less demanding one. Furthermore, if he is seen by the court not to be fit either mentally or physically for a detention centre régime, then his sentence can be made one of youth custody and he will go to the establishment appropriate to that régime. I hope that answers my noble friend's question.

    I thank my noble friend for that answer. It is the best one I have had so far. I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    6.58 p.m.

    moved Amendment No. 14:

    Page 4, line 24, at end insert—
    (" ( ) For the purposes of determining whether the detention of an offender in a detention centre would be unsuitable because of his mental or physical condition the court shall obtain and consider a report into his mental and physical condition ").

    The noble Baroness said: The purpose of this amendment is to require the courts to obtain a medical report before passing a detention centre sentence. I am well aware that such a practice is already widely in use, but no compulsory legislation exists and it is my contention that, in order to make sure that medical reports are always obtained, this amendment should be made to the Bill.

    In 1972 Home Office Circular 179 drew the courts' attention to the demanding nature of the detention centre régime and pointed out that the régime is brisk and involves a vigorous and active day with comparatively little free time. That circular therefore stressed that the régime is unsuited for those with physical or mental handicaps likely to interrupt detention centre training. Despite this guidance there is much evidence to suggest that a considerable number of those entering detention centres are far from fit or stable young men either physically or mentally.

    Since the new régimes were introduced, medical officers at the centres have made the decisions as to whether the boys received from the courts were physically or mentally unfit to stand up to the rigours of the régime, and if they decided they were not then transfers to other establishments were arranged. Between 21st April 1980, when the tougher régimes were introduced at two detention centres, and the 25th January of this year, 81 trainees were transferred from New Hall and 107 from Send—around 7 per cent. of the trainees sent to those establishments. The Prison Officers' Association has expressed serious concern about the number of unfit boys being sent to these centres who then have to be tranferred elsewhere. I am sure that we would all agree with those sentiments. I find it hard to believe that anyone could argue against the fact that it would be much more sensible for information relating to the young person's mental and physical condition to be available to the courts in every case at the point of sentence. Why not? What are the difficulties? After all, no court can pass a community service order without considering a report as to the offender's suitability for community service. Far from fettering the discretion of the courts to pass the sentence most appropriate to the offence and to the offender, the availability of a medical report would help the court to pass the most appropriate sentence having regard to the state of the offender's health.

    The other point is that in most cases the court already considers a medical report before passing a detention centre sentence. All this amendment would do is to extend that normal practice and make it invariable practice. There will be no delay because the courts in practice do not wait for long periods to obtain medical reports from general practitioners before passing detention centre sentences. In Home Office Circular 179, the following advice is given:

    " In general, police surgeons in their private capacity would be the most appropriate doctors to perform the examinations since the scheme requires the attendance at short notice of a medical practitioner to examine the defendant within the precincts of the court or at an adjacent place, for instance, a police station. After examination, the practitioner would provide the court with a certificate indicating the fitness or otherwise of the defendant for detention centre training ".

    The circular asks clerks of courts to make local arrangements for the attendance of doctors when needed for conducting such a medical examination. If there are areas where such arrangements are inadequate, then that is a case for improving the arrangements and not for rejecting the amendment.

    I hope the Government will accept the amendment. It must be obvious that the case for requiring a medical report for detention centres operating the tougher régime is particularly strong; but the nature of even the ordinary detention centre régime is sufficiently exacting to make the consideration of a medical report desirable in all cases and not just in the majority of cases, as at present. I beg to move.

    I am happy to support the noble Baroness, my colleague on the all-party penal affairs group. She covered the points that I would have covered. There are only three points that I should like to make. The first is that this: I would see the proposal as one more move towards achieving greater consistency between the courts than is the case at present. The noble Baroness mentioned the rigours of the detention centre régime which make severe physical demands and create a strong emotional impact on those who go through the régime.

    The other point where I believe medical advice is needed is in regard to the temperament of the boy concerned; whether he is likely to react favourably to the régime or whether it is likely to aggravate those delinquent and criminal propensities which caused him to be sent there. I would doubt whether courts of law are sufficiently qualified to reach a decision on that without taking medical advice and psychiatric opinion.

    Thirdly—and it is a simple administrative point—the noble Baroness mentioned the considerable numbers of young people who arc sent to the two borstals administering the short, sharp shock—nearly 200 of them in the course of 12 months. One must think of the amount of administrative work and the cost involved, quite apart from the disturbance that this causes the young offenders themselves. On those grounds, in addition to those put to your Lordships by the noble Baroness, I hope the amendment will prove acceptable.

    I endorse all the sentiments expressed by the noble Baroness, Lady Trumpington, and the noble Lord, Lord Hunt. It seems to me that what it is sought to provide is something which would at once be acceptable to most noble Lords; namely, that, in view of the régime at a detention centre, nobody should he sent there unless there is a medical report which indicates that the person is suitable for that sentence. Unhappily, so far as I can see, the Bill as drafted and the amendment as drafted do not achieve that at all, because of the rather curious way in which the Bill is drafted. The Bill puts it the other way round. What the Bill says is that the court shall not make an order if it considers that the person's detention would be unsuitable because of the mental or physical condition, and the amendment provides that, if the court wishes to determine whether it is unsuitable, there must be a medical report to that effect. This seems totally different from providing what I think most of us would agree should be provided—which is to put it in a positive way so that if the court makes an order it shall not do so unless there is a medical report specifying the medical and mental condition of the person in relation to whom the order is made.

    I agree entirely with the sentiments expressed by the noble Baroness and the noble Lord, but I think that the flaws in both the Bill and the amendment need to be turned round before we reach the next stage if they are to achieve what is sought.

    I agree with the sentiments of the noble Lord on the Liberal Benches: it would be better if it were put in that particular way so that a court would not be allowed to come to that conclusion unless it had had the benefit of a medical report. I hope very much that the Government will be able to accept this amendment, for it seems to me that the arguments in favour of it are wholly irrefutable. The situation in law at the moment falls only barely short of what the amendment seeks to achieve.

    Clause 1(6) says:
    " For the purposes of determining whether there is any appropriate method of dealing with a person under 21 years of age other than a method whose use in the case of such a person is restricted by subsection (4) or (5) above the court shall obtain and consider information about the circumstances, and shall take into account any information before the court which is relevant to his character and his physical and mental condition."
    Furthermore, Clause 3(5) reads:
    " Subject to subsection (6) below, a court shall not make an order under this section for the detention of an offender in a detention center—
    (a) if it considers that his detention in such a centre would be unsuitable because of his mental or physical condition ".
    The amendment advances the protection of the young person only slightly beyond that. Secondly, in so far as the situation on the ground is concerned, I am assured by those who deal with these matters day in and day out that in the overwhelming majority of cases reports are sought by most courts in any event—a point already touched upon by the noble Baroness.

    Lastly, on the one hand, I do not think there is the slightest danger that the courts would be fettered at all, because this would enable a court to have greater information and to feel that it was more free in its scope to deal with the young person than if it did not have it. Nor, on the other hand, is there any real danger of delay. In the main, the reports need not be prepared by general practitioners. They can be prepared by police surgeons who are probably in a position to attend that very court to make such reports.

    There is one further argument. It is that, if a report has been properly made, a court is in a position to consider the very sort of case that the noble Lord, Lord Mottistone, spoke about in his earlier amendments. If in fact a court knew that a youngster was suffering from the sort of conditions the noble Lord has described to us, then it would make a care order and that person would never end up in a detention centre at all. Therefore, if that full information is given at the right time, it is in everybody's interest.

    There is one point I should like to raise in supporting my noble friend Lady Trumpington. If there were 87 people sent away from Send and a number from another place, surely this disturbs the régime in the detention centre, whose object it is, we all hope, to have a curative effect. I am sure it cannot be good for those who are undergoing a short, sharp, shock to see people coming in and going out for what they may feel are slightly unfair reasons.

    The other point I should like to ask, although I do not necessarily expect an immediate answer, is this. Of those people who were sent away from Send, how many had undergone medical examinations at the point of sentence in the courts, and how many had not?—because if it is shown that none of them had been asked to undergo a physical or mental test at the time of conviction and sentence, it would seem to show that a medical test at court level would save time, trouble, money and administration. That would be very well worth while from their point of view and also, I would suggest, from our point of view and the point of view of the taxpayer.

    Very briefly, may I say I believe this should be absolutely mandatory. I would agree with the noble Lord who said that in the majority of courts that would obtain and they would have a medical—and especially if the magistrates concerned had been to a detention centre themselves. I think this is important, and when I was at Send recently—though 1 do not want to harp on the fact that I have just been to see the institution—the warden tried to make the point to me that there were some boys who had been sent when they were not physically fit and he hoped that in future this would not happen.

    7.13 p.m.

    I can travel a good deal of the way down the same road as the noble Lord, Lord Elystan-Morgan, did in dealing with the amendment proposed by my noble friend. I think I am right in saying that in her intervention just now my noble friend Lady Macleod had it in mind that had the magistrates been to detention centres in an inspectorial role, rather than a custodial role, they would certainly see that a medical report was furnished.

    Let us see what the law already provides in this Bill. It goes a long way. First of all, the court must be of the opinion that no other method of dealing with the offender is appropriate. In deciding that, the court, under the new clause which the Government have introduced, must consider a social inquiry report in most cases. It must also take into account any information before it which is relevant to the offender's character and his physical and mental condition. It is further prohibited by Clause 3(5), as the noble Lord, Lord Elystan-Morgan, said, from making a detention centre order if it considers that the offender's detention in such a centre would be unsuitable because of his physical or mental condition.

    I think we have to trust the courts to some extent to satisfy themselves that they have the information they need to come to a proper decision, and they can obtain whatever medical, psychiatric or other reports they ask for. Even if they are placed under a statutory obligation to obtain a medical report in every case, which is what this amendment seeks to do, the ultimate judgment as to whether an offender is unsuitable for a detention centre will remain with the court.

    Now let us see what would flow from a decision to amend the Bill in the way proposed by my noble friend. I think there is more than has so far been suggested. The court will have before it a young offender. It has already decided that nothing less than a custodial sentence will do. It has also decided that the sentence should be served in a detention centre. Such a centre is designed for people (and Clause 3 seeks largely to reserve it for such people) who have had no earlier significant custodial experience. The sentence can be for as little as three weeks.

    What must the court now do? It will adjourn the case for a medical report and the young offender will be remanded. It has already been decided that by reason of the seriousness of his offence he should be detained in custody and, as most remands for this purpose are for three weeks, the result for the older age group will be a period of three weeks spent in a remand centre or a local prison while it is decided whether or not he is fit enough for a course of treatment designed for people who have had no experience of either.

    That I think is a somewhat absurd situation; but I do take on board my noble friend's anxiety and I should like to say that the reference in Clause 3(5) to the offender's fitness is not, as she seems to think, a flimsy shield for a weak offender against a savage régime. The centres themselves are not anxious to recruit weak or ailing inmates, and the truth is that it is simply not very convenient to have to deal in a detention centre with an offender who is in some respect not quite up to the régime. I will seek the breakdown of the statistics my noble friend Lord Onslow asked for, but I cannot instantly answer how many of those who were subsequently referred on were subject to a medical report.

    However, allowances and concessions are made for offenders who are not up to the régime, and they will continue to be made for any who, in spite of the Bill, are found not to be fit when they are examined by medical officer on reception. The provision is aimed at those who are to receive custodial sentences anyway and is designed only to ensure that they go to the most suitable type of establishment. It is in the interests of the whole system, and not just of the offender, to get him into the right place; but I wonder if I could say something to help my noble friend. A procedure was established under the Home Office Circular 179 of 1972 for medical examinations to ascertain fitness for detention centres to be carried out at or in the vicinity of the court, usually by police surgeons. The purpose of the circular was to reduce the need for re