I beg to move Amendment No. 1, in page 1, line 17, at the end to insert:

"and shall consist of the Lord Chief Justice of England sitting together with one Lord Justice of Appeal and one puisne judge of the Queen's Bench Division or of a Lord Justice of Appeal sitting together with two puisne judges of the Queen's Bench Division."

This Amendment relates to and seeks to implement paragraph 85 of the Donovan Committee Report on the Court of Criminal Appeal, which is the main Report on which the whole Bill is based. This deals with the composition of the new criminal branch of the Court of Appeal. If I may set the background a little, paragraph 83 of the Report of the Donovan Committee recommends that the: Court of Criminal Appeal should be incorporated into the Supreme Court of Judicature. That recommendation is implemented in the Bill.

Paragraph 84 of the Report suggests the way in which the new Court of Appeal should be divided between a civil division and a criminal division. Similarly, this recommendation of the Committee is implemented in the Bill. Paragraph 84 also suggests that the new criminal division of the Court of Appeal should sit in three courts—two most of the time, with the third court sitting from time to time as the volume of work demands.

Paragraph 85 of the Report sets out the Donovan Committee's recommendations as to the composition of the new criminal division of the Court of Appeal. The paragraph provides that there should be a first court presided over by the Lord Chief Justice, assisted by a lord justice of appeal and one puisne judge from the Queen's Bench Division. It suggests that this court should be concerned principally with appeals, whether against conviction or sentence.

The Committee goes on to suggest that the second and third courts should be presided over by a lord justice of appeal assisted by two puisne judges from the Queen's Bench Division. It suggests that these other two courts should be concerned principally with applications for leave to appeal, whether against conviction or sentence, although all three courts would be armed with the same power to deal with all matters which are at the moment dealt with by the Court of Criminal Appeal.

It is a sensible recommendation that the new criminal division of the Court of Appeal should be constituted in the way set out in paragraph 85 of the Report. The reasons why this is a good recommendation are set out in later paragraphs of the Report. It is a good thing to have two judges of superior rank in the first court, because the bulk of the work of this court will be concerned with important questions of law and practice, and also often with questions involving the liberty of the subject, as, incidentally, will nearly all the work of the other two courts. This is the main reason for having the first court constituted of the Lord Chief Justice, a lord justice of appeal and a puisne judge.

The reason for having a lord justice of appeal presiding over the other two courts is to increase the prestige and the judicial standing of the new criminal division of the Court of Appeal. Further, these courts also will be considering very important questions of law and practice from time to time. As the Report of the Donovan Committee points out, the guidance of a senior judge will be both desirable and helpful.

The reason for continuing to include puisne judges as members of the court is that thereby the court will have the benefit of their very great experience in the day-to-day handling of criminal cases and in the day-to-day sentencing of offenders. Another advantage which is highlighted in the Report of the Donovan Committee is the advantage to the puisne judge himself, in that he will gain experience from sitting in an appellate capacity.

These reasons for so constituting the court should commend themselves to the Committee and should have widespread support. It is not absolutely universally accepted that this is the right constitution, but I think that Parliament will accept that it is right. Judging by what the present Lord Chief Justice and the Master of the Rolls have said in another place, it is certain that they will adopt the same attitude.

We cannot be certain that future lords chief justices will take the same view. It is possible that they would revert to the old practice of having three puisne judges sitting. A future lord chief justice might be impressed with the idea of having a wealth of practical experience available to deal with the day-to-day matters of sentencing and trial of offenders; such a lord chief justice might want the court to be constituted as it is now. I suggest that such a constitution is not right and that the court should be constituted in the way recommended by the Donovan Committee.

I raised this matter on Second Reading. The Under-Secretary of State dealt with the matter in winding-up. He said this:

"It would be very rigid if we said that there must be so many judges of a particular standing who were on a particular appeal. Questions of illness might arise."

Of course questions of illness might arise. This is a hazard which confronts all courts at all times, but it is not a particularly major hazard. The possibility of an epidemic amongst the judges should not be dealt with by lowering the standard or calibre or status of the judges who sit in the new criminal division of the Court of Appeal. This is hardly an argument which will appeal to the Committee. The argument that it is necessary to lower the status of the court to keep pace with any possible flu epidemic which might arise is not worthy of the Under-Secretary.

1.45 p.m.

The Under-Secretary continued:

"It might not always be possible to have the Lord Chief Justice and a lord justice and a puisne judge hearing an appeal which is an appeal against conviction."

So be it. The Donovan Committee does not recommend that of necessity these matters shall be dealt with by the Lord Chief Justice, a lord justice and a puisne judge. These matters could be dealt with, if these senior judges are not available, by the second court or the third court which I have already mentioned, and which are referred to in paragraph 85 of the Report of the Donovan Committee. The hon. and learned Gentleman's argument falls, because the question does not arise.

The Under-Secretary then said:

"A certain amount of flexibility must be allowed ".

The hon. and learned Gentleman has not backed that up with any argument which appeals to me. He then said:

"The whole matter is amply covered by Clause I and it will be a matter for administrative arrangements to see how the Donovan recommendations will be dealt with in practice."—[OFFICIAL REPORT, 11 th July, 1966; Vol. 731, c. 1140.]

Parliament should determine the way in which the Donovan recommendations are dealt with in practice and we should adopt this recommendation in statutory form, as we have adopted most of the remainder of the Report.

These are the arguments which have been advanced against laying down in statutory form the composition of the court. We may have some new ones today, I have not found the arguments so far advanced against it convincing.

I am perfectly prepared to concede that the wording of my Amendment may not be totally satisfactory. It does not deal with the question of the need from time to time for there to be a court constituted of five judges or more. It is an absolute scandal that there is not available to us in the House of Commons a team of parliamentary draftsmen to assist us in framing Amendments. I have held this view during all the five years I have been in Parliament. Although I am a lawyer, I do not hold myself out as an able parliamentary draftsman. I doubt whether the Under-Secretary would hold himself out in this way. It is a highly esoteric art and we know that back benchers make mistakes in the niceties of drafting. I put forward this Amendment in the hope that its spirit will commend itself to the Committee. It is that the recommendations laid down in the Donovan Committee Report should be implemented in statutory form, and if the Committee, as I think likely, is swayed by the force of this, we would ask the Government to undertake on Report to draft an Amendment which meets this point.

I should like to know what is the position of the Amendments generally which are now before the Committee. If the Committee is minded to accept the spirit of this Amendment, may I take it that the Government have not manoeuvred us into a position where there will be a substantial inconvenience and loss of this Bill for a prolonged period because the Committee wishes to accept this Amendment? I hope it will be possible to complete the various stages of this Bill by the end of this Session. If this is not the situation, something very disturbing will have arisen because the Government would then be saying to us, "We know you welcome the Bill. Everybody welcomes the Bill. Everybody wants to have it by the end of this Session, but we are afraid that you will not be able to have it by the end of the Session if you amend it." I hope the Government are not saying that, and I would welcome an assurance that the Committee has not been manoeuvred into a position such as have just outlined.

I think this Amendment makes sound sense, perhaps not in precisely the form in which it is at the moment, but it is sound sense that we should implement the Donovan Committee recommendations as to the composition of the court, just as we have in the remainder of the Bill implemented so many of the other Donovan Committee recommendations

I cannot bring myself to agree with this Amendment. It would have the effect, as I understand it, that there could never arise the possibility in any set of circumstances or at any future time of a court of the Criminal Division of the Court of Appeal ever consisting of three puisine judges. That, I think, would be a consequence of the Amendment. I should have thought that to spell that out in the Bill would be to impose what, for practical purposes, is an unnecessary and undesirable straitjacket to the courts.

The second and third courts of the proposed Criminal Division will deal principally with applications for leave to appeal, whether against conviction or sentence. In these two courts important questions of law will admittedly arise from time to time, but the Report of the Departmental Committee points out that they will only occasionally arise. Sustained important issues of law will come before the first court in the Criminal Division where the Lord Chief Justice is sitting with another judge, and the two other courts in the proposed division, as I understand it, will be dealing with cases which, in the language of the Committee will only occasionally raise significant or important points of law. That being so, take the view that it would be quite undesirably inflexible not to permit a free discretion to the Lord Chief Justice to determine the constitution of the second and third courts of the criminal branch of the Court of Appeal, taking into account the circumstances for the time being.

Factors of illness are very relevant. The distribution of work at assizes, with the prospect of Lords Justices sitting at the assizes, are matters making it desirable that there should be a considerable degree of flexibility allowed for the manning of the second and third courts of the criminal branch of the Court of Appeal.

The Report of the Committee sets out as the purpose of its recommendation that the Lords Justices should sit in the criminal branch of the Court of Appeal to improve or raise the status of the courts. I fully understand that purpose and I agree with it as an objective, but I cannot really believe that the status and standing of the courts in the Criminal Division of the Court of Appeal will suffer at all if occasionally it happens that puisne judges are sitting together. They are judges experienced in criminal law. As I say, if they are sitting together on rare occasions in a court where only occasional points of law arise, it seems to me not to be a matter which will be in delegation of the status of the court, but a matter which it would be desirable to keep open as a possibility for administrative reasons and to take account of factors which may be relevant at any given time—factors of an enforcing kind making it desirable that that should be the constitution of the court.

I support my hon. Friend the Member for Colchester (Mr. Buck) in moving this Amendment. I hope that I shall be in order, not having had the opportunity of taking part in the Second Reading debate, in expressing my own sincere welcome to this Measure taken as a whole, and in adding my congratulations to the very many more distinguished congratulations which have already been given both to the noble Lord, the then Lord Chancellor, to the then right hon. Member for Hampstead in having appointed this Committee, and to the Donovan Committee for the great care which it has put into its deliberations and for the results of those deliberations which have now been largely enshrined in this Measure. One would like also to congratulate the Government for having brought forward this Measure, albeit perhaps having taken rather longer to do so considering that the Committee reported as long ago as August, 1965.

I support my hon. Friend for this reason. I am not one of those who criticise the present composition of the Court of Criminal Appeal. I believe that in saying that, I am very much at one with the members of the Donovan Committee who went out of their way to commend the work that has been done year after year by the members of the Court of Criminal Appeal, and with all those who took part in the debates in another place on this Measure as well as those who participated in the Second Reading debate in this House.

There is no doubt that the puisne judges have had the great advantage in the Court of Criminal Appeal of bringing to the deliberations of that court their great experience gathered on circuit and at the Old Bailey of the day-to-day administration of the Criminal Law. For this reason, at first I was myself inclined to think, as many others were, that there was really no cause for making a change in the composition of the court. In one way or another, I have for many years had experience of the operations of that court, and, in all humility, I would do nothing but commend its work.

As I understand it, the reason why a change in the composition of the court has been proposed is to raise the status of the court so that everyone may be aware that criminal appeals are treated no differently, or very little differently, from civil appeals and may be aware that judges of the status and standing of Lords Justices of Appeal are sitting in that court. With that argument, it being important that justice should not only be done but be seen to be done, I have no quarrel. Therefore, I welcome the change in the status of the court, with, as an incident of that change, the recruitment or appointment to it of Lords Justices of Appeal.

2.0 p.m.

The question then arises, should we in Parliament make sure that the Donovan Committee's recommendations are implemented in the letter? It is to that that the Amendment is directed because it does no more than enshrine the recommendation in paragraph 85 of the Committee's Report. The answer to that question, given by the hon. and learned Member for Liverpool, Edge Hill (Mr. A. J. Irvine) this morning and given also by the hon. and learned Member for Lincoln (Mr. Taverne), the Under-Secretary of State, on Second reading, is based on the need for flexibility. Will it make the administration inflexible if paragraph 85 of the Report is made law? I see the force of that argument, but, as my hon. Friend the Member for Colchester said, the Amendment is not put forward as the last word in drafting. It would not pass the capacity of the Parliamentary draftsmen to insert as part of the Amendment a proviso that in certain circumstances the composition of the court should be varied but that as a matter of principle it should be as set out in the Amendment,

the Lord Chief Justice of England sitting together with one Lord Justice of Appeal and one puisne judge …. or a Lord Justice of Appeal sitting together with two puisne judges ".

If this Amendment to the Bill is not made, we shall, as regards the composition of the court, be acting like one who carefully dismantles a house and moves it, brick by brick, from England to America, re-erecting it on the other side of the Atlantic. The Court of Criminal Appeal is to be dismantled and re-erected as a division of the Court of Appeal. It is provided that in the new division, the new Court of Criminal Appeal, it shall be possible for lords justices of appeal to sit, but it is not provided that they shall sit. Thus, if I may continue my metaphor, the house re-erected on the other side of the Atlantic is very much like, and very little different in status from, the house as it was before. I submit that the Amendment meets the recommendations of the Committee and is worthy of the most serious consideration. I put it no higher than that.

May I end with a personal word to the hon. and learned Member for Lincoln? I should like to say how very happy I am to see him sitting where he is as Under-Secretary of State and to make my public congratulations to him. He and I have a friendship which is one of those friendships resulting from battle in the hard and fierce fires of a by-election. I am very glad to see him there.

I oppose the Amendment. I would not wish to add anything to what was said by my hon. and learned Friend the Member for Edge Hill (Mr. A. J. Irvine) but for the fact that my reasons for opposing it are almost the reverse of his. In my view, it is most undesirable that there should be forced on the appellate system a rigidity which would prevent it, if the occasion arose, from having two or even three lords justices sitting together to deal with a case which merited so high a judicial standard.

I find it difficult to believe that the incidence of sickness or other extraneous cause is likely to produce a situation in which it would be necessary or desirable that three puisne judges should sit in the criminal division. Sickness, of course, affects lords justices, but the Court of Appeal, although it calls upon a puisne judge from time to time, has never in my experience sat with more than two together with a lord justice. I cannot myself remember it sitting with more than one. One must not forget that lords justices are, in the ordinary course of events, puisne judges who have been promoted, They have, therefore, the very great experience that my hon. and learned Friend regards as being desirable in an appellate court on criminal matters, and, because of their ability, they have been advanced to the Court of Appeal.

In the circumstances, I should much prefer to leave the matter as it is in the Bill, so that, when a case merited a really high-powered court consisting, if necessary, entirely of lords justices or of the Lord Chief Justice and two lords justices, there would be no bar to such a court being gathered together to hear the case.

This has been a useful debate enabling us to discuss the whole composition of the new division of the Court of Appeal, which, of course, is the most important aspect of the Bill and constitutes its whole purpose. If one looks at the Donovan Report itself, one finds that the first purpose for which it was set up was to consider whether the powers of the Court of Criminal Appeal should be transferred to the existing Court of Appeal.

All the Amendment would do would be to put into legislative form the proposals made in paragraph 85 of the Donovan Committee's Report. The whole House will agree that in that section of the Report very good reasons are given for saying that the court should consist, first, of the Lord Chief Justice, a lord justice and one Queen's Bench judge, and second, of a court presided over by a lord justice. If the whole purpose of the Bill is to improve the stature of the criminal division of the Court of Appeal, it is important that a lord justice should always preside in that court. If we leave it open that the criminal division of the Court of Appeal may consist of three judges as at present, although we shall have passed a Bill the purpose of which is to improve the stature of the court in practice, its status and composition will remain exactly as they are now, and one may wonder, in that event, what purpose the Bill has achieved.

I do not know whether the Under-Secretary of State will say that the drafting of the Amendment meets the proposals of my hon. Friend the Member for Colchester (Mr. Buck). The opposition to the Bill, particularly that put by the hon. and learned Member for Liverpool, Edge Hill (Mr. A. J. Irvine) has very little merit. As the hon. and learned Member for Dulwich (Mr. S. C. Silkin) said, it is difficult to see any situation arising in which all the members of the court of appeal are struck down with illness, and it is difficult to see why greater flexibility is required than is proposed in the terms of the Amendment, which enable the court to consist of any of the lord justices and any two of the many judges of first instance.

May I ask the Under-Secretary of State one or two particular questions about the composition of the court. I do it now rather than have to speak on the Question, That the Clause stand part of the Bill. I ask particularly how he envisages the proposal of the Donovan Committee as set out in paragraphs 89 and 94 of the Committee's Report. On Second Reading he said that he feels that the composition of the court is a matter for the administrative decision of the courts themselves. If one looks at the Donovan Report one sees in paragraph 94 that the Committee very strongly recommends first, that there should not be a permanent lord justice sitting on criminal cases, for to have one man sitting all the time on criminal cases is a bad thing, and secondly, that the lord justices assigned to the criminal division should change every few months. Does he envisage that happening or does he see the possibility of having a second permanent lord justice trying criminal appeals?

The other recommendation made is that we should draw the lord justices who are to sit in the criminal division from those members of the court of appeal who have existing criminal experience. I am sure that the Under-Secretary of State agrees that this is a very important recommendation since one knows that the courts of appeal as at present constituted contain members who have been judges in the probate division or judges in the commercial courts and who have not, as such, ever tried any crime on assize. It is envisaged that the recommendation will be carried out and that the lord justices who sit in the criminal division of the court will be drawn, as is suggested, from a panel of six or seven of the existing members of the court of appeal who have that experience.

The final point which I would raise on this issue is the proposal that those who are to sit in that capacity should be encouraged to go out from time to time either on assize or to the central criminal court to try crime throughout the country. This I believe to be equally important. I believe that the Under-Secretary of State will agree that it is important that the judges who are in charge of either of these courts should be in contact with what is happening in the criminal courts throughout the country, and they can get that experience only by going out themselves on assize. This will be a quite substantial change from the present position since I think I am right in saying that it is very seldom today that any lord justice, rather than the Lord Chief Justice, goes out on assize, and that is usually only to try civil work where there has been a shortage of judges due to illness or some other cause.

Will the Under-Secretary of State deal with these points? How far does he see these recommendations being implemented? I ask him to say that he accepts the spirit of the Amendment and that he proposes that the criminal division of the court of appeal should be constituted in the way that the Donovan Committee recommended.

I certainly accept the spirit of the Amendment, because the Government and certainly myself accept the recommendations which were made in the Donovan Committee Report. I must, however, ask the House to reject the Amendment for the reasons which I gave on Second Reading and which I will elaborate a little now.

The Bill is deliberately silent on the question of how each court will be composed, and I think that it is silent for the good reasons which were given both by my hon. and learned Friend the Member for Liverpool (Edge Hill (Mr. A. J. Irvine) and by my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin), which were in a sense complementary. While one hopes to see the court or the courts constituted on the lines recommended by the Donovan Committee, there will be occasions when this is impossible, and it may be convenient occasionally for reasons of illness or of the absence of the Lord Chief Justice to have a court in which perhaps the Lord Chief Justice sits with two puisne judges or two lord justices sit with one puisne judge. Sometimes it is intended, in accordance with the recommendation of the paragraph 88 of the Donovan Report, that on a difficult point of law five judges will sit, and that would be precluded by the terms of the Amendment.

What would happen if the Amendment were accepted? First, it rather suggests that there would not be a third court, which is one of the specific recommendations of the Donovan Report. If the Lord Chief Justice were ill—and illness occasionally strikes even the highest in the land—only one court could sit, which would he very undesirable and very unsatisfactory. No court of five judges could sit. There is at the moment from time to time a spare lord justice who may go out and try cases at first instance, but it would not be possible to use this spare lord justice instead of a puisne judge who was ill.

I do not think that the argument about status is a very telling argument. Already by becoming the criminal appeal division of the court of appeal the status will be enhanced. If in practice most of the time when it is possible the recommendations of the Donovan Committee are adopted, the status of the criminal appeal division will be enhanced. But it is not necessarily a loss of status if, owing to the absence of one lord justice at a particular time, the Lord Chief Justice sits with two puisne judges, and it may well be desirable in certain cases to have more than one lord justice sitting.

It seems to me that these matters can safely be left to the Lord Chief Justice and the Master of the Rolls to man the courts at their discretion, and I think that we can expect them to take account of the Donovan recommendations and to implement them wherever possible. If it is thought that they could and would neglect the recommendations. that is not something which one can consider likely because it is in envisaged that under the powers of the Judicature Act, 1925, two lord justices will be appointed, and these will be lord justices with special criminal experience. If these two lord justices were there, it is quite inconceivable that they would not be used.

There are, in addition, some drafting defects to the Amendment, but I think that the observation of the hon. Member for Colchester (Mr. Buck) is fair: back bench Members cannot always be expected to draft with perfection. The word "or" suggests that at one time one can have only three judges of the criminal appeal division sitting. Under the Bill all the judges of the court of appeal and such puisne judges as are requested to sit will compose the criminal appeal division, and they can form any number of courts of three judges under Clause 2.

There were some additional questions —for example, what is the position about time and Amendments? If the Committee wishes to adopt an important Amendment, time will have to be found and it would no doubt be possible to see that the Bill is passed before the Recess. I would not deny that it would cause considerable inconvenience and would depend to some extent on what kind of Amendment it was, because there might be some Amendments on which further consultations were needed. I may have to make some remarks on this in relation to one Amendment already on the Order Paper.

I was asked by the hon. Member for Runcorn (Mr. Carlisle)—we are both here in a relatively fresh capacity—whether a lord justice will sit permanently in the criminal appeal division. I have no doubt that the Lord Chief Justice and the Master of the Rolls will again take into account the recommendations of the Donovan Committee. It is intended that continuity and consistency should be given to decisions of the appeal division —something that has been missing all too often in the past—and no doubt the Lord Chief Justice and the Master of the Rolls will consider the desirability of having one lord justice permanently concerned with criminal appeals and nothing else.

I have been asked whether the lord justices have been encouraged to go out of London. The same answer applies. No doubt the courts in their administrative arrangements will take account of the recommendations of the Donovan Committee. This is not a matter one can legislate about and I think that the Opposition recognise this. We cannot lay down precisely what administrative arrangements should be made; that is something that can safely be left to the courts. The same observations apply to the subject matter of the Amendment.

I am grateful to the hon. and learned Gentleman for what he has said. He stated that he accepts the spirit of the Amendment. I am surprised, therefore, that he does not take it away for the benefit of advice from the vast Ministry behind him, give it proper legal form and bring it back to the House on Report.

I was disappointed not to carry with me the hon. and learned Member for Liverpool, Edge Hill (Mr. A. J. Irvine). I found that his reasons for speaking against the Amendment alarmed me somewhat as they did the hon. and learned Member for Dulwich. The sort of circumstances which the hon. and learned Member for Liverpool, Edge Hill adumbrated, whereby three puisne judges will sit, is something against which the Donovan Committee has come down. It would not enhance the status of this new branch of the Court of Appeal. It is to prevent the honing down of the calibre and quality of the court that I put down the Amendment.

I only want to emphasise that I would not regard it as desirable to have these three puisne judges in the Court of Appeal except on rare occasions. What I do not like about the Amendment is that it excludes the possibility for all time. J would not like anyone to think that I do not in principle agree with the desirability of Lord Justices in the court.

This is where the hon. and learned Gentleman and I part company. I do not think that there are circumstances where it would be legitimate to have three puisne judges sitting. I can envisage circumstances in which an appellant would feel aggrieved that his appeal had only been heard by three judges of the same status as the judge who sentenced him, because justice must be seen to be done as well as done.

In view of what has been said, and as I am conscious that the Amendment as drafted does not fully implement all the recommendations as to the composition of the court, I beg to ask leave to withdraw the Amendment.

I beg to move Amendment No. 2, in page 4, line 12, at end insert:

(3) The 1925 Act shall have effect as if the registrar and any assistant registrar of criminal appeals were included in Part 1 of Schedule 3 of that Act (officers to whom special provisions as to appointment, retirement and pension apply).

(4) Without prejudice to the last foregoing subsection, the registrar, any assistant registrar and any deputy assistant registrar of criminal appeals shall be officers of the Supreme Court and, without prejudice to section 110 of the 1925 Act (attachment of officers for duties) shall be attached to the Court of Appeal.

I beg to move Amendment No. 3, in page 5, line 8, to leave out "it is" and to insert:

"a conviction on any part of the indictment mould be".

On Second Reading there was general agreement, certainly shared by my hon. and learned Friend the Joint Under-Secretary of State, that it was desirable to widen rather than restrict, as far as we could legitimately, the powers of the criminal division of the Court of Appeal to allow appeals where the justice of the case so demanded. That is the reason for the Amendments to the 1907 Act which are proposed in this legislation.

The purpose of this Amendment is to carry the process possibly even further in the sense that, as the provisions of the Bill stand, we shall have the situation that the Court of Appeal in deciding whether to allow an appeal or not will be required to do so if it thinks that the verdict of the jury should be set aside on the ground that

"… under all the circumstances of the case it s unsafe or unsatisfactory …"

That is to say, the court will be looking back to the verdict of the jury in considering, whether it is unsafe or unsatisfactory, rather than looking at the situation as it exists at the time the appeal is heard.

If there is any doubt as to the effect of that provision, the view might be taken that the court would be bound to place itself in the shoes of the jury at the time the case was heard and say, "Could the jury possibly have felt that a conviction was unsafe or unsatisfactory at that time?" rather than look at the matter afresh at the time the appeal is heard and say to itself, "Do we think that it is unsafe or unsatisfactory?" That would be an undue restriction of their powers. It is to make it clear that it must look at the case as at the time of appeal and not through the eyes of the jury that I move this Amendment.

I had not intended to intervene on the Amendment but was on the point of asking the hon. and learned Member for Dulwich (Mr. S. C. Silkin) a question when he sat down. It is to ask him the question now that I rise to intervene.

I am not very clear what the hon. and learned Gentleman wishes to arrive at in suggesting the words

"a conviction on any part of the indictment …"

Surely what the appeal division will be concerned with is not a conviction on any part of the indictment but a conviction on that part of the indictment that is the subject of appeal.

An appeal may be directed to a conviction or to a given part of the indictment, but I am not clear whether the hon. arid learned Gentleman seeks to give the division power to decide the substance and subject matter of the appeal and look at all the surrounding circumstances. That would be going much too wide. But if that is not the objective of the hon. and learned Gentleman, I do not follow him when the Amendment proposes that the court should look at any part of the indictment

I rise to support the Amendment, not because I flatter myself that I can state the case better than my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin), but because there is one aspect of the matter which he has put with his usual fairness and moderation and which I should like to repeat with less moderation and restraint. Before doing so, I wonder whether I can attempt, for myself at least, to answer the point put by the hon. and learned Member for Solihull (Mr. Grieve). It is certainly not the intention of this draftsmanship to place the whole matter at large, as it were. The words "any part of the indictment" might well have been left out. What is intended is to attempt to provide for the court some guidance on an issue which arises both on the body of this provision and on the proviso, that is.

Whether the court is required to direct its attention to the merits of the appeal, or whether it is required, as it were, to do the thing in two stages; whether it is just that the appeal should succeed, or whether the jury, properly directed, would have thought that it was just. It is a question which the Donovan Committee considered at some length in paragraphs 151 to 161 of its Report, concluding, with very little hesitation, that the correct answer was that the court should be invited to direct its attention to the justice of the matter.

Unhappily, over a period of about 300 or 400 years the mystique with which the jury has become shrouded in this country has resulted in a court directing its attention not to the justice of the appeal, but to the effect on the mind of a jury of a hypothetical proper direction, and so the type of questions which have been asked has been, "What would have been the effect on a jury of particular types of direction?". The result over the years has tended to be undue emphasis on legal technicalities to the exclusion of the justice of the appeal.

The result has been, as the Lord Chancellor remarked in another place, that if it is possible to satisfy the court that there has been a technical misdirection, then, irrespective of the merits of the matter, the appellant might well go free, but if his only complaint is that he is wholly and entirely innocent, that might have little effect on the mind of the court. It is because I believe that procedure should assist the process of justice and not impede it that I rise to recommend the Amendment to the Committee.

I am very doubtful whether the language of the Amendment has the effect which it is intended to possess as it has been explained by my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin). The emphasis upon "any part of the indictment" gives rise to the kind of anxiety which the hon. and learned Member for Solihull (Mr. Grieve) felt.

I think that the Amendment is capable of an interpretation which would be regarded as very unsatisfactory by everybody, including my hon. Friends who have spoken on its behalf. It might well be interpreted as meaning—this arises from the expression "any part of the indictment"—that if there were some material irregularity in the trial relating, for example, to a charge of shop breaking in an indictment in which there was also a count for assault, any appeal allowed by the Criminal Division of the Court of Appeal would have to relate to both counts.

In other words, in a case where there was a miscarriage related wholly to the shopbreaking, or an irregularity wholly in the evidence on the shopbreaking, and there was also a separate count for assault, the appeal on shopbreaking could not be allowed without there also being allowed an appeal on the assault. I do not think that anybody wants that, for it would be obvious nonsense. I fear that from mischance the language of the Amendment would be more likely to have that effect than the effect for which my hon. Friends are contending.

I am in some difficulty, because I do not understand the Amendment at all. I do not understand how it is to make the court look at the circumstances at the time of the appeal, as opposed to the circumstances at the time when the jury was considering its verdict What it does is to direct attention to any part of the indictment, apparently as opposed to the indictment as a whole. The remarks of the Donovan Committee in paragraphs 151 to 161 of its Report were directed at the proviso and how in the past the court had interpreted the proviso. Those remarks do not seem to have any relevance to the way in which the court will interpret the earlier part of Clause 4(1,a).

The purpose of my comments on those paragraphs was to show that the same issue arose in this connection as arose on the proviso. The purpose of the Amendment is to invite the court to look at the "conviction", which is the important word in the Amendment, rather than the "verdict", which is what exists at the moment in the Bill.

I have obviously misread it or misinterpreted it, but I still do not understand how the effect striven for is achieved, because whether one looks at the conviction, or part of the indictment for which a person has been convicted, or at the verdict, does not seem to alter the matter. The question which the Criminal Anneal Division will have to consider is "Was the verdict of the jury unsafe; was the verdict of the jury unsatisfactory?". That seems essentially to meet the points made by my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin).

To some extent, I must agree with the remarks of my hon. and learned Friend the Member for Liverpool, Edge Hill (Mr. A. J. Irvine) that it might well have a very strange effect. At the moment, if there are separate counts and an appeal is allowed as to part, it can be dismissed as to the other part. In that sense, the verdict of the jury is already separated by the Court of Criminal Appeal, but the effect of the language of the Amendment might be that if it is only on part of the indictment, on one of the counts, that the appeal is allowed, the whole of the conviction, the whole of the verdict, must be set aside. I cannot accept the Amendment, because I do not understand it. It does not seem to achieve what it sets out to achieve and its effect might be unfortunate.

Like the hon. Member for Colchester (Mr. Buck), I would not claim any particular ability in draftsmanship and if the drafting of the Amendment is liable to criticism, I would be only too happy for those far more experienced than I am to look at it again and to put it in a form which carries out our intention.

What we are concerned with is that there should be no doubt that the Criminal Division, when deciding on an appeal, should not feel that it is in any way restricted by the feeling that it has to look at the matter simply through the eyes of the jury which heard the case, but should have that much wider elasticity which would enable it to look at all the facts and the circumstances as they are and as they existed at the date of the appeal.

I have heard what has been said about the drafting, but I hope that my hon. and learned Friend will consider the principle behind the Amendment. With that hope in mind, I beg to ask leave to withdraw the Amendment.

I beg to move Amendment No. 4, in page 5, line 14, to leave out from "proviso" to end of line 15 and insert:

"for the words 'consider that no substantial miscarriage of justice has actually occurred' there shall be substituted the words 'are satisfied that a reasonable jury properly directed at a trial conducted without irregularity would not upon all the evidence given have done other than convict'".

It might be said on first sight that this is merely a drafting Amendment, but in my submission it is rather more than that. It is an attempt to clarify into statutory form, what, in practice, has been the effect of the proviso under the Criminal Appeal Act, 1907. I should go back briefly into the wording used in that Act and say how it comes about that this Amendment is brought before the Committee. Section 4 of the Criminal Appeal Act 1907, sets out the grounds upon which an appeal could be granted including:

"that … there was a miscarriage of justice …"

It noes on to say:

"Provided that the court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has lethally occurred."

As the Committee will know, the Donovan Committee recommended the removal of the word "substantial" from the proviso. As it would then have stood one was faced with the position that, if no other consequential Amendment had been made, the Section would have read that one of the grounds upon which an appeal could be allowed was that there was a miscarriage of justice, provided that the court should not decide in favour of the appellant if they considered that no miscarriage of justice had actually occurred. As the learned Attorney-General pointed out on Second Reading, that appeared to be a complete nonsense and led to the Government making an additional Amendment to that proposed by the Donovan Committee, by changing the words "miscarriage of justice" in the existing ground for granting an appeal for the words

"…material irregularity in the course of the trial".

It should be made clear that whereas that Amendment may have improved the elegance of the Clause, in practice its effect, as was apparently intended, was nil. In moving the Second Reading of the Bill, the learned Attorney-General said of the Amendment that the Government were taking out words and replacing them by another set of words which were considered to have the same effect. The point made by the noble Lord, Lord Pearson, in the House of Lords on Second Reading was that it was difficult to see that there could be any material irregularity which was not to some extent a miscarriage of justice. As I say, although the wording has been approved so that at fist sight it does not appear apparent nonsense, if one goes further into the words one finds that it is still an apparent nonsense and is producing two completely contradictory statements.

In our Amendment we have attempted to remove the words of the existing proviso entirely and to set in their place what, in practice the court does, namely, not to allow an appeal, although a point of material irregularity may have occurred, or although there may have been a misdirection on law, if the court is satisfied that a reasonable jury, properly directed, would still have convicted. The Amendment to the 1907 Act as proposed by the Government, as the noble Lord, Lord Pearson, again pointed out in his speech, lessened the effects of the proviso by the removal of the word "substantial". As the noble Lord said, once any miscarriage of justice, however small it might be, had occurred, and it could be established that it was a miscarriage of justice, then the court would be prevented in any way from making use of the proviso.

One knows that what has happened over the years since the Court of Appeal was set up is that the court has, to a certain extent, disregarded the strict interpretation of the words in the 1907 Act and has, in the words of the Lord Chief Justice in another place, done what it thought to be right in all the circumstances. The purpose of this Amendment is to put into words, into the Statute, what is the effect in practice of the proviso as it now stands. The words may appear familiar to all Members who were present on Second Reading. On 12th July the learned Attorney-General, explaining what the proviso means, said that the court would:

"…dismiss the appeal if…. satisfied that a reasonable jury, properly directed, could not have done other than convict."

2.45 p.m.

When one comes to the words used by the hon. Member the Under-Secretary of State for the Home Department in reply to the hon. and learned Member for Southport (Mr. Percival) who asked him what he felt was the effect of the new wording of the proviso, it will be seen that he said:

"There may be cases under the Clause as amended where, for example, there has been material irregularity in the course of the direction which was relevant, but, nevertheless, at the end of the day the Criminal Appeal Division, looking at the whole of the evidence will say that no reasonable jury properly directed could have failed to convict."

It is those words, used by the Parliamentary Secretary and the Attorney-General which have been drafted into this Amendment. The Parliamentary Secretary continued:

"This, in effect, is what the proviso means." —[OFFICIAL REPORT, 1st July, 1966; Vol. 731, c. 1112. 1139.]

It is the opinion of this side of the Committee that since that, in effect, is what the proviso should mean, that in practice is what the proviso should say. That is why we move the Amendment.

The hon. Gentleman the Member for Runcorn (Mr. Carlisle) who has moved this Amendment has argued with great skill and, if I may use the word, plausibility, about a distinction without a difference. I have difficulty in finding any real merit in the proposed change. As the Bill is drafted, the question which a member of the Court of Appeal is required to ask himself relative to the proviso is, "Has no miscarriage of justice occurred overall?"

The effect of this Amendment would be that he would have to ask the question, "Would a reasonable jury, properly directed, have convicted?" This is difficult and he will always answer these two questions in the same way. I cannot conceive of a situation in which any judge could think of answering one of them in the negative and the other in the affirmative. This is why I feel that the proposed language of the Amendment adds nothing to the Bill.

What it does is to make it an obligation upon the member of the court to place himself, notionally, in the condition of a reasonable and correctly directed juror. But that is a metaphysical exercise, I should have thought, because the moment that he seeks to determine whether a miscarriage of justice has occurred, he is placing himself in the position of his concept of a reasonable juror. By the Amendment, we are calling upon him to carry out a metaphysical exercise closely akin to what would be his duty, anyhow, and introducing an unnecessary complication into the Measure.

I suppose that the debate is as devoid of political content as any debate in this Chamber could be. On both sides, we are seeking to arrive at the right use of language to achieve ends which we all have in common in the administration of justice.

In that position, I am reminded of the French saying,

"Le mieux est l'ennemi du bien."

Very often, in seeking to improve a system which is already working well, one may be driven to analysing language and breaking down current expressions to a degree that one befogs oneself, and the last stage is probably worst than the first. I am not sure that something of that kind has not arisen in this Clause.

I hope that I am not out of order in going beyond the words which we are discussing to consider the wording of the earlier part of the Clause where it was provided that the words "unsafe or unsatisfactory" should be substituted for the existing words in the 1907 Act. That exemplifies the point which I desire to make on this Amendment. In the debate in another place, the noble Lord, the Lord Chief Justice, said that that was precisely the test which the Court of Criminal Appeal had been applying for years, whether or not it was justified by the precise language of the Act of 1907.

Similarly, the debate on this Amendment has been triggered off by the question whether the word "substantial" should be taken out of the old expression in the proviso to Section 4 of the Act of 1907 governing the word "miscarriage". Over 59 years, the expression "substantial miscarriage" has come to have a meaning which every man in the street can perfectly well understand, let alone every lawyer. It is a miscarriage of importance; such a miscarriage as would justify the court in interfering, if there was one, and in saying that it would not interfere if there was not one.

It is because we have sought to break down the language and follow the recommendations of the Committee, that the expression "substantial miscarriage" has come to he analysed in this way. People ask themselves if the word "substantial" adds anything to "miscarriage". If there is a miscarriage of justice, ipso facto it must be substantial. Anyone would have said, as the noble Lord, Lord Pearson, said and as my hon. Friend the Member for Runcorn (Mr. Carlisle) said, that the Court of Criminal Appeal has applied the proviso when there has been any miscarriage, because "miscarriage" means a substantial miscarriage.

The Bill seeks to omit the word "substantial", and so we have to look and see what sort of miscarriage is involved. In putting down the Amendment, my hon. Friends have sought to define what amounts to a miscarriage and what, through all these years, have amounted to a substantial miscarriage.

I do not go along with the hon. and learned Member for Liverpool, Edge Hill (Mr. A. J. Irvine) in saying that it involves the Criminal Appeal Division of the court putting itself in a metaphysical position. All who sit in judgment— judges in civil cases, recorders hearing appeals at quarter sessions—have to put themselves in the position of a jury. It is something which judges do every day. They direct themselves as to the law as judges and they approach the matter in accordance with the direction that they would give to a jury were they assisted by one.

I support my hon. Friend the Member for Runcorn in moving the Amendment as an attempt to define the sort of miscarriage that we all have in mind. Like my hon. Friend, I am not wholly satisfied with the language of the Amendment. I only go so far as to submit it to the hon. and learned Gentleman the Under-Secretary as one possible definition of "miscarriage" which no doubt will require tidying up. For example, I am not at all sure that the word "could" should not be substituted for "would" in the penultimate line.

It is a gallant attempt to define something which it is extremely difficult to define. To that end, it has my support, and I submit it with approval to the Committee.

Despite the persuasive way in which the Amendment has been moved and supported, I must ask the Committee to resist. I do so for two reasons. The first is because it is not needed, and the second is because it contains a serious defect which goes beyond just a drafting defect.

To begin with, may I say something about subsection (1) of Clause 4? The Donovan Committee looked very carefully at the proviso. From the way in which it has drafted its own paragraphs 161 to 166, it does not appear that any of the witnesses who gave evidence before it suggested that the language of the proviso should be revised. The Committee itself suggested cutting out the word "substantial". It said, in effect, that it is extremely well established what the proviso means.

Formerly, under the old Section 4(1) of the 1907 Act there were three grounds for allowing an appeal, with a proviso at the end.

The proviso could not operate on the first ground, because, if the verdict of a jury was unreasonable and could not be supported having regard to the evidence, one could not apply the proviso. There was some difficulty in applying the proviso to the third ground, dealing with a miscarriage of justice. Nevertheless, to some extent the courts did so, because the second ground, dealing with a mistake on the ground of a wrong decision of any question of law, would not cover the case of any serious misdirection of fact, and the court could use the third ground in order to make that a permissible ground of appeal. It nevertheless was very unsatisfactory. It will now be much more satisfactory.

The hon. Member for Runcorn (Mr. Carlisle) mentioned Lord Pearson's doubts, but this point was carefully considered by the Donovan Committee. If I may pray in aid another eminent legal authority, Lord Tucker, who has enormous criminal experience, he said in the House of Lords that he very much welcomed the proposed reform of Clause 4 which, he thought, would very much strengthen the position of the Court of Appeal.

The way in which it will work is that as to the first ground, the proviso would clearly not operate if a verdict was unsafe or unsatisfactory, and clearly one could not then say that there had been a miscarriage of justice. Certainly, the proviso would operate on the second ground of appeal. If there was a wrong decision on a question of law, the Court of Appeal could still say at the end of the day that although there was a wrong decision on a point of law, nevertheless there had been no miscarriage of justice and the appeal would be dismissed.

3.0 p.m.

The Court of Appeal can also now do so on the third ground of appeal as it is phrased, because it is possible for irregularity to occur in the course of the trial. If, for example, a judge has misdirected the jury on a question of fact and has wrongly quoted what the defendant said in court, or if, for example, the judge has asked far too many questions and interfered to far too great a degree, at the end of the day the Court of Appeal can nevertheless, despite those irregularities, say that there has been no miscarriage of justice because the case had been proved up to the hilt and, to use the words which are now suggested, no reasonable jury properly directed could possibly have failed to convict. Therefore, the Clause can easily be given meaning, and I adopt Lord Tucker's view that it strengthens the position of the Court of Appeal.

The Amendment might well mean that the proviso could not operate in the case of the second ground of appeal, because there might well be a mistaken decision of law, and yet, if that was the case, the proviso might not be available for the Court of Appeal if it was drafted as it is at present. It might be that evidence was wrongly admitted but, if it was established, on the drafting of the Amendment it might well not be possible for the Court of Appeal to apply the proviso. For that reason the Amendment would be defective in an important respect. It is not merely a matter of drafting.

Secondly, even if the defect were remedied—this is the other ground on which I resist the Amendment—quite apart from the fact that there would need to be consequential Amendments throughout the Bill, in Clause 10 relating to the position concerning Northern Ireland and in Schedule 1 relating to the powers of the Courts-Martial Appeal Court, why should one change language which, in effect, the Donovan Committee has clearly said is well established? What is the point of making a change if no practical effect is achieved?

For these reasons, I ask the Committee to reject the Amendment. The matter is one to which the Donovan Committee gave careful thought. As to the proviso it is a matter which has been well established in interpretation. Therefore, nothing in particular would be gained by the Amendment.

The Under-Secretary of State for the Home Department has said that the Donovan Committee did not recommend this change. The Donovan Committee did not, however, recommend the change in the body of the Clause—in other words, to change "miscarriage of justice" to "material irregularity".

I cannot think that there is any strength in the hon. Gentleman's argument that the Amendment would not apply to misdirections in law. In the example given by the Under-Secretary, if the Court of Appeal found that evidence had been admitted which should not have been admitted, surely that would be an irregularity at the trial and the Criminal Division of the Court of Appeal would still be entitled to say that although it found that the irregularity had occurred, it was satisfied that a reasonable jury properly directed, which would cover the question of a misdirection at law, at a trial conducted without irregularity, which would cover the question of whether evidence had been admitted which should not have been admitted, could still not have come to any other verdict than guilty.

It still seems to me and to my hon. Friends on this side that although, as the hon. and learned Member for Liverpool, Edge Hill (Mr. A. J. Irvine) has said, this may to a certain extent be a distinction without a difference, we have attempted to put into statutory form the practical effect of the words of the proviso as admitted both by the Under-Secretary and by the Attorney-General on Second Reading.

Although, obviously, not desiring to press the Amendment to a Divison I do not feel that it is right to withdraw it.

I beg to move Amendment No. 5, in page 5, line 16, to leave out subsection (2).

I suppose that this Amendment and the next on the Paper, could be said to be the two which are likely to lead to the most controversy. The hon. and learned Member for Dulwich (Mr. S. C. Silkin) have an Amendment, No. 6, in page 5, line 27, at end add:

(3) Without prejudice to the provisions of section 5 of this Act a substituted sentence shall be deemed to be of greater severity than the sentence passed at the trial taken as a whole, if the maximum possible period of deprivation of liberty which the appellant would or might suffer by virtue of the substituted sentence would exceed that which he would or might suffer by virtue of the sentence passed at the trial taken as a whole."

While mine and his may be said to be controversial I think probably mine is the most controversial of all.

The position at the moment with regard to appeals against sentence is that, under the Criminal Appeal Act, 1907, on an appeal the Court of Criminal Appeal shall if it thinks that a different sentence should have been passed have the power to pass that different sentence. It has, in effect, a completely free discretion with regard to the sentence which should be passed on an appeal. The purpose of Clause 4(2) of the Bill is to inhibit that power to pass a different sentence by limiting it in a way that the Court no longer shall have power to increase sentence; and indeed—and I shall come to this in a moment, because I think the words are very much open to question, as, it is obvious, the hon. and learned Member for Dulwich and one or two of his hon. Friends do, too—it limits the Court in such a way that it cannot vary a sentence which may be said to impose a sentence of greater severity than the sentence originally passed.

I do not doubt that if one reads with care the Donovan Committee's Report it can be fairly said that there are obvious arguments against the present position of the law on appeals against sentence; I do not doubt that there are strong and cogent arguments, as it says, that the law as it at present stands is capricious in that those who appeal may get their sentences put up if they appeal against their sentences, but if they appeal only against conviction they cannot have their sentences put up. I am not standing here to say that the law as at present laid out is perfect, but though there are obvious arguments for doing away with the power to increase sentence, I think the House will accept that there are also arguments why this power should be retained.

The first and most obvious argument of all is the very grave fear, which, I believe, has been expressed on both sides of this House and in another place and by people outside who are interested in matters of appeal, that one of the effects of this Bill, if carried in this form, may be to lead to a great flood of wholly unmerited appeals, and that we may find that anyone now serving a sentence which he considers to be of substantial length will appeal, knowing that he has absolutely nothing to lose and everything to gain by making an appeal. It is the view of this side of the House, while in no way advocating that the power to increase sentence should be one which the court should regularly use, that it is wrong to withdraw that power entirely from the court. It should be remembered that although this was recommended by the Donovan Committee, that Committee also recommended that it should be merely experimental. One would have thought that that experiment was already being carried out by the practice at present used by the Court of Criminal Appeal —in view of what the learned Lord Chief Justice said about increasing sentence—without it needing to be embodied in statutory form in this way.

It is often said that the strongest argument against allowing the power to increase sentence is that one would be punishing a person for making use of his right of appeal. This matter was gone into by the Donovan Committee and although, as I say, it recommended the abolition of this power, it made clear that the power had not been used for the purpose of punishing the appellant. The Act lays down the means by which this power can be used, and the Donovan Committee stated in paragraph 193 of its Report:

"…it may be noted that the statute does not empower the Court to increase the sentence merely on the ground that the appeal is frivolous…. ".

What it does do, on the other hand, is to give to the court power to bring some logic into a sentence when, on looking at the sentence, it believes that it is wholly wrong and is out of accord with other sentences by being far more lenient than it should have been.

We believe that the retention of this power would not be used as a means of punishing people for appealing but that it would help to get uniformity of sentence, with the Court of Criminal Appeal giving guidance to courts by occasionally having to use its power to increase sentences where it believes that courts have passed sentences which are too lenient. I suggest, therefore, that this power does not have the grave disadvantage which has been attached to it in the past in that it would punish people merely because they have appealed.

Having said that, I must, since I understand that the next Amednment, No. 6, has not been selected, consider what will he the position—

Order. Amendment No. 6 has not been selected so the hon. Member cannot discuss it.

I appreciate that, Sir Eric, and since the Amendment I have moved is designed to delete the whole of subsection (2), perhaps I may be allowed, having made my main point—which is that the power to increase sentence should be maintained—to comment on the position if the subsection is retained. The Clause states that the power of the Court of Appeal shall be limited in such a way that it cannot impose a sentence of greater severity. But what is a sentence of greater severity? Undoubtedly the courts have always had power, and have used it, to vary sentences. The Donovan Report specifically stated in paragraph 206:

"The power of the Court to vary the kind of sentence originally imposed, e.g., by substituting a sentence of borstal training, or a hospital order with a restriction order, should be preserved, even though the latter might carry a liability to a longer period of detention than under the original sentence "

It seems that if subsection (2) remains in the Bill, that will not be possible. Surely a sentence of borstal training, with a period of 18 months detention—with a possible maximum period of two years' detention—is a sentence of greater severity than one of three or six months' imprisonment imposed on a person under 21. If that is so, subsection (2) would not only prevent the increasing of prison sentences as we normally know them, but would prevent the courts from using their power to vary a sentence of the kind they believe should be varied.

3.15 p.m.

One then asks the question that was asked on Second Reading: if a £5,000 fine has been imposed and the Court of Criminal Appeal wishes to substitute for it a sentence of three months imprisonment, is that a sentence of greater severity? Will the court have power so to vary? Again, as we all know, a sentence of one day's imprisonment is a formal sentence by means of which no penalty is imposed. If the subsection remains, will the court be able to substitute a sentence of one day's imprisonment for a financial penalty, or must the passing of a sentence which deprives someone of liberty be looked upon as a sentence of greater severity?

The Under-Secretary of State has commented that to find a precedent for the use of the words "greater severity" we had to look at the 1964 Act. It is quite true that those words are there used, but if we look at the notes made on the Act by the learned author of Halsbury we find the comment that these words are difficult of interpretation. By retaining this subsection we are wholly restricting the powers of the Court of Appeal, both on the general point that it should be entitled to increase sentence, or alternatively should be able to vary it. Although we all know that that power is seldom used, and although we all hope that it will continue to be seldom used, I submit that it would be wrong to retain the subsection and so restrict the power of the court in this way.

Although I appreciate what has been said by the hon. Member for Runcorn (Mr. Carlisle)—and those of us who have been concerned with matters of this description have had to weigh up this position very carefully—I have, as a practising solicitor, come to a different conclusion from what is implicit in the Amendment. I do not think that the hon. Member has quite appreciated the position of the individual who, having committed an offence of a minor or technical nature, is not prepared to accept the severity of the sentence as being satisfactory in the circumstances.

In advising such an individual and weighing up the full circumstances of the case, one finds oneself with the very large responsibility of advising him to appeal —and I am sure that counsel have precisely the same matters to consider—knowing that there is a possibility of another court taking a more serious view of the offence, and imposing a heavier penalty.

One does not want to allow people to escape through the mesh. Nevertheless, we have to weigh up the position and recognise that a judge has come to a decision. A judge has a tremendous responsibility on his shoulders. He may take a different view from another judge about what the amount of the penalty imposed should be, but the fact is that it is a Judge who comes to this decision. I do not say that every judge is 100 per cent. perfect—I do not suppose judges themselves say that—the fact remains that a judge with the qualifications necessary for him to be appointed to the Bench has considered that the penalty is as severe as it ought to be.

I do not know whether counsel or a solicitor would be prepared to say that every other judge would take the same view. We all know in our experience that certain judges impose very severe sentences, much more severe than any of us would regard as reasonable. It is my opinion that the responsibility of advising an appellant is one which ought not to carry with it advice to take a chance on getting a more severe sentence when a judge, whoever he may be, has come to the conclusion that the sentence imposed was sufficient to meet the case.

The judge has heard the whole of the evidence, had the winesses before him, and been in a position to weigh up the circumstances. Someone may reply, "That is all very well, but why in those circumstances not accept the fact that if a judge, who is bound to have these qualifications before he is allowed to sit on the bench, may allow the sentence to be reduced?" There is a question which we should weigh in the interests of the accused person. If other judges in the appeal court come to the conclusion that the sentence was too severe, we may be sure that it was too severe. There may be no question about that.

I ask the hon. Member for Runcorn (Mr. Carlisle) to withdraw this Amendment. On balance, I think the view of my hon. Friends and myself is right in this matter. There is, of course, a possibility of opinions in this House at some time being taken into consideration by judges coming to a conclusion. If that were to occur an additional argument could be used for the purpose of suggesting that our point of view is right. That does not prevail yet, but I should not be at all surprised that one day that point of view may prevail and a judge would be able to take into consideration what prompted hon. Members to come to the conclusion they reached. It is not the law at present, but even as the matter stands it is perhaps an exercise of mercy—we are entitled to take that into consideration—that the opinion of one learned judge about severity ought not to be overruled by increasing the penalty. It is perfectly right that decreasing the penalty when other judges have come to the conclusion that that one judge was wrong in the severity of the sentence should remain.

I agree with the hon. Member for Runcorn (Mr. Carlisle) that the Clause, as drafted, presents a considerable problem of interpretation. A later Amendment in the name of my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin) is directed to that. I also agree with the hon. Gentleman that the burden of his speech was probably the most controversial issue which arises in the course of these debates. I was disturbed to hear the hon. Gentleman advance as the major argument in favour of the Amendment that, if this deterrent were removed, it would open the floodgates to a vast number of appeals. If that principle were accepted, it would be disturbing indeed. In effect, it is saying that an unchallenged right is provided; no one seeks to remove it, but for administrative reasons citizens are deliberately discouraged from exercising it.

This attitude could be applied to a frightening range of activity. Congestion on the roads could be relieved by agreeing that everyone would continue, as at present, to have the right of passage along the highway, but booby traps would be set at intervals of 100 yards so that those unfortunates who fell foul of them, and others, would be deterred from exercising their right. The cost of social benefits could be reduced by providing that one recipient in ten, chosen at random, should pay Income Tax on his benefit at the rate of 200 per cent. This type of argument is frightening. I hope that this principle will not be persisted in or extended.

The only other argument which appears to have been advanced in favour of the Amendment is that, if it is just that a sentence which is too high should be reduced, it must equally be just that a sentence which is too low should be increased. The force of this argument must be immediately accepted. However, if this procedure is to be applied consistently, the method of applying it should be to give the prosecution an automatic right of appeal against sentences which it considers to be too low. If one is not prepared to apply the principle over the whole range of sentences—arid most hon. Members would shrink from such an application—it is wrong to apply it arbitrarily merely to those who have the temerity to appeal.

There is one other rather worrying aspect of administration of the provision as it now exists. I refer to the way in which the court is led from time to time to give leave to appeal knowing full well that what it has in mind is that the sentence is too low, but without warning the appellant that that is what is in the court's mind. Again, the court cannot be blamed for this, because if this course were not adopted the existing power to increase a sentence would be of no effect. If appellants were warned at the outset, all that they would have to do would be to withdraw their appeals.

However, it is a frightening thought that the court should have to proceed in this way. It does not commend the public relations of the legal profession. On Second Reading my hon. and learned Friend the Member for Lincoln (Mr. Taverne) used the word "guile" in describing this procedure and was the subject of a warning from the hon. and learned Member for Ruislip-Northwood (Mr. Crowder) that this might be construed as a reflection on the court. In fact, my hon. Friend's choice of words was complimentary language in comparison with the language used in the Donovan Report, which contains a reference to the court setting a trap and comes to the conclusion that this

"is not an edifying spectacle."

That is in paragraph 198. The principle itself is a worrying one. The way in which it has to be applied is even more worrying in my submission, and by far the fairest way to deal with this is to introduce what is obviously the intention of the Bill as now drafted but, one would have hoped, with some reconsideration to the actual draftsmanship.

One cannot listen to a debate of this kind, or to the hon. Member for Leicester, North-West (Sir B. Janner) who deployed his argument with all his customary humanity, without being strongly influenced by the arguments against the present position. I make that point at the beginning of my speech because I support this Amendment and the continuation of the present position.

I agree at once with the hon. Member for Leicester, North-West that on the face of it there is something inhuman, something which seems almost like the setting of a trap, to say to all those who are convicted in criminal courts, "You may go to the Court of Criminal Appeal to appeal against your sentence" and then, when they get there, subjecting them to the risk of having the sentence, far from being decreased, increased. I shall not refer to the numbered paragraphs of the Donovan Committee Report, but that is the argument which finally prevailed with the Donovan Committee in recommending the abolition of this power in the Court of Criminal Appeal.

I am developing my argument now as to why I think the power should be maintained, and I cannot agree with the hon. Member for Rowley Regis and Tipton (Mr. Archer). I cannot quote his exact words, but the note that I made while he was speaking was that the morality of this is not all one way. There would be a case in the abstract for leaving this power with the Court of Criminal Appeal, quite apart from practical considerations, because in the abstract it is a power which tends, at any rate, towards some measure of consistency in sentencing and consistency in sentencing is something which the whole of the legal profession and, I think, public opinion today has very much at heart. It is shocking to informed public opinion when it finds that man A receives in court B a heavier sentence than man C, having done very much the same thing, appearing in Court D.

Of course, we all know that what appears when reported to be a very similar case may in its substance be a very different case. Nevertheless, there is a case for some measure of consistency in sentencing.

I am obliged to the hon. and learned Member for Solihull (Mr. Grieve) for giving way. I agree with him, of course, as I am sure we all do that consistency is desirable. If one follows that to its logical conclusion, would he not agree that it would result in the right being given to the prosecution to appeal against an inadequate sentence? If one does not want to follow it to its logical conclusion, what is the reason for singling out the man who has appealed?

Could not the Court of Appeal in its criminal jurisdiction achieve the consistency it desires to achieve in such cases simply by saying, "We dismiss the appeal. In our view the sentence ought to have been much bigger"?

I agree entirely with the substance of the hon. and learned Gentleman's intervention. I was making the point as a very subsidiary one in supporting the continuation of the present power in the new criminal division of the Court of Appeal. I do not regard it as an overriding one by any means.

In another place, the Lord Chief Justice dealt with this matter and said that the operation of the power was extremely capricious. He gave certain figures, pointing out that over ten years there had been

"a quarter of a million sentences imposed at assizes and quarter sessions. During those same ten years, there resulted 17,200 applications for leave to appeal involving sentences". —[OFFICIAL REPORT, House of Lords, 12th May, 1966; Vol. 274, c. 838]

In how many cases over that same period were sentences increased?—in 30. So the power is, in fact, very little exercised. We all know why. The first reason is that, if a sentence is likely to be increased, the legal advisers of the appellant—in the end, they nearly always have legal advice—will make plain that the appeal should be abandoned. Very often, the Court of Criminal Appeal itself gives a hint in advance that it is likely to happen. Further, the Court of Criminal Appeal as it now exists neither increases nor decreases sentences except when it comes to the conclusion that the learned judge has erred in principle. This meets the point made by the hon. Member for Leicester, North-West in saying that one judge may take one view of a proper sentence and another judge will take another view.

This point is made in paragraph 187 of the Donovan Report:

"It is not surprising therefore that the Court"—

that is the Court of Criminal Appeal—

"has formulated its policy on this matter in the following words, taken from R. v. Ball, 35 Criminal Appeal Reports. page 164:

In the first place, this Court does not alter a sentence which is the subject of an appeal merely because the members of the Court might have passed a different sentence. The trial judge has seen the prisoner and heard his history and any witness to character he may have chosen to call. It is only when a sentence appears to err in principle that the Court will alter it. If a sentence is excessive or inadequate to such an extent as to satisfy this Court that when it was passed there was a failure to apply the right principles, then this Court will intervene'."

It appears, therefore, that there is an argument from what I may call the morality of consistency in sentencing for keeping the power, but I do not base my argument for keeping it on that. The quotation I have just made and the figures I have given show that it is exercised, in a sense, so capriciously that that would not be a very good reason for keeping it. But, on the other hand, the figures show also that it is very little exercised, that a man appealing has, in fact, very little to fear. It is clear from the figures that it is very rarely done. Second, if it is done, it is done only as a matter of principle. Third, although I quite agree that one advises with great caution in matters of this kind, a man's legal advisers, if he is taking legal advice, will say, perhaps, "We think that you have a reasonable chance of having your sentence reduced and there is very little chance of it being increased". That is as far as legal advisers generally go, but it will indicate the position.

The reason why I come down in favour of keeping the power is the practical one, which was put by my hon. Friend the Member for Runcorn (Mr. Carlisle) as the kernal of his case, that the Court of Criminal Appeal has been flooded with applications for leave to appeal. I shall not detain the Committee by giving the figures. The Lord Chief Justice has spoken on a number of occasions lately about the flood of work going into that court. Anyone who has experience of quarter sessions has seen how over recent years the number of appeals from justices to quarter sessions has been increasing. The tendency is for these appeals to increase enormously.

If the new division of the court of appeal is not to be flooded with frivolous applications is there not a case for keeping this power—not as a power which is much exercised, for it should be plain that it has not been exercised, and not as a power which is designed to deter the appellant who has a strong case for getting his sentence reduced, but as a power calculated to deter the frivolous appeal.

There were a number of other things which I wanted to say, but I have already taken up a considerable amount of the Committee's time this afternoon and I do not want to pursue these matters any further than I must. The argument will not be improved for being elaborated. I believe it to be a real argument of substance based on the facts of life as all those of us who practise the law will know them to be. I have been much influenced by the argument of the hon. Member for Leicester, North-West and others who have pressed the contrary arguments on me in the past, but I come down in support of my hon. Friend who moved the Amendment.

I am in total disagreement with my hon. Friends and strongly in agreement with the Amendment moved by the hon. Member for Runcorn (Mr. Carlisle). Most hon. Members on both sides of the Committee have expressed the opinion that there will be something wrong in the right of the prosecution to be able to appeal against an over-lenient sentence. I come down in favour of that, and my complaint is that the Amendment does not go far enough.

At a time when we do not seem to be able to control crime, we find that misguided leniency in sentences seems to have influenced many judges into passing sentences, many of which are quite inadequate. One must not refer directly to cases, but there were cases, which I am sure my hon. Friend the Member for Leicester, North-West (Sir B. Janner) will recognise, in which derisory sentences were passed by the judge.

I cannot think that the administration of justice will be greatly improved by the removal of this power and I agree with the hon. and learned Member for Solihull (Mr. Grieve) that the work of the Court of Appeal, as it will be constituted, will be greatly hampered, especially in view of the already large number of appeals, if people, influenced by this tendency towards leniency, are encouraged further and further to lodge appeals in this way. Clearly if we remove the deterrent of the possibility of an increase in sentence the court of appeal will be faced with a very difficult problem.

I recognise that some hon. Members feel that there is something repugnant in the idea of a person being entrapped into appealing only to find that his sentence is increased. The proposal which I put forward is much more logical—that there should be a right of appeal against the sentence at first instance. The least we can do is to keep the existing system and have to this extent consistency of judgment, which means not merely the reducing of over-severe sentences but surely a levelling up of sentences which are too lenient. We must do that to bring about consistency in sentences.

I find it rather incongruous that I should support an Amendment moved from the opposite benches, but I hope that the Under-Secretary of State will not lightly dismiss their arguments. Quite clearly the present situation is not very satisfactory, but in the absence of a more drastic revision I am afraid that it is probably far better for the existing law to stand than for it to be amended in the way proposed in the Bill.

I will not lightly dismiss the Amendment, although I must ask the Committee to reject it. This is one of those arguments where there is a great deal to be said on both sides. The balance of argument is delicate. The matter has been thoroughly examined in another place and exhaustively considered by the Donovan Committee, so do not wish to add a great deal to what has been said.

I concede that there is great danger of the Court of Appeal being flooded. I have considerable sympathy with the point made by my hon. Friend the Member for Rowley Regis and Tipton (Mr. Archer) that one does not want to set unnecessary booby traps. One can extend the argument in all sorts of unfortunate ways but one has to take account of practical reality and that is why we have not ended the power to direct, in the case of an unmeritorious appeal, that the period spent waiting for the appeal shall not count towards sentence.

On the other hand that danger can he overstressed. It is significant that the person mostly concerned with the business of the Court of Criminal Appeal—the Lord Chief Justice—is in favour of this reform so I think that one need not pay too much attention to that danger.

Secondly, I concede that it is sometimes just to increase an inadequate sentence and that inconsistency of sentencing is undesirable, for it leads to a sense of injustice. But when it comes to the measure advocated in the Amendment there is no prospect of introducing consistency. The figure has been quoted of 0.17 per cent. of cases where sentences have been increased, and this shows how impossible it is to achieve consistency of sentencing. One of the only ways of doing this is by allowing the prosecution a right of appeal, because if the prosecution were allowed the right of appeal against sentence some such provision could be found. But that would be contrary to our tradition, which is that the prosecution is not concerned with the sentences awarded,

It may be that it could be done by some general review power but we are:1 long way from that and it is not something that we could contemplate in the Bill. There are some who want it and it would have to be carefully examined. I should not like to see the Home Office reviewing every sentence with a view possibly to directing some sort of appeal. It is hard to see how one can achieve this kind of consistency of sentencing. In another place, Lord Dilhorne said that some improvement might be achieved by allowing an increase of sentence on any appeal, even if only against conviction. But that would affect only 10 per cent. of all sentences. It would put much additional work on the court without achieving the object desired.

I see the strength of the point that if the court only had power to increase sentences in a few cases, we still would not get consistency with cases which had not come forward on appeal. But would not the hon. and learned Gentleman agree that the publicity attaching to increased sentences in the Court of Appeal would inevitably lead to consistent sentences because, through the publicity, other judges and chairmen of quarter sessions and recorders would know the views of the Court of Appeal about certain offences.

I would not be dogmatic on this, but the sort of case in which the court has interfered is usually that in which the sentence has been out of line with those generally given for that offence. Presumably, the sentences given in such cases were already widely known. There is something in the point put by the hon. Gentleman but it is not conclusive or one of the more telling points. If one did want to increase the scope for the increase of sentences by applying it to appeals against conviction as well, it would have the further disadvantage of possibly discouraging certain meritorious appeals.

The Donovan Committee very carefully considered this, but felt in the end that the undesirable features outweighed the possible benefits of the power to increase sentence, and I hope that hon. Members will not differ from the conclusions of the Donovan Committee. Power to increase sentence involves the g setting of a trap, is an unedifying spectacle and is a deceptive procedure. The appeal may have been made because counsel has wrongly advised, or other legal advisers have been incompetent. Anyway it would not produce overall consistency. For those reasons, I believe that the Donovan Committee was right and that the undesirable features outweigh the possible advantages of keeping the power and for that reason I ask the Committee to reject the Amendment.

I was asked to comment on the use of the word "severity". Of course the language of the Bill produces difficulties, because it will always be difficult for a court to decide whether one sentence in one case was of greater severity than another sentence in another case. I conceded that, but the fact is that this is a difficulty which the courts have had to face before. It is a difficulty which the courts have had to face not only under the 1964 Act, but even under the 1907 Act. Section 5(2) of the Criminal Appeal Act, 1907, says that where there are convictions on several counts and one of the counts is dismissed, the court must again direct its mind to the question of not imposing a new sentence which is a sentence of "greater severity".

These are words which have been used before and I do not see any way of making a more specific provision, short of drawing up a most elaborate chart to show when certain sentences are more severe than others. It may be that in certain cases the court will be in a particularly difficult position when it is minded to substitute a sentence of borstal training and the original sentence was less than six months. It may feel unable to do so, because the result of a sentence of borstal training is that it may be for any period between six months and two years.

Once one rejects the idea that a court will have power to increase sentence, one is inevitably left with this kind of difficulty. All one can do is to give general guidance and leave it to the court to decide in all the circumstances of the case and to direct its mind to whether the new sentence would be harder on the appellant than the old. I cannot see that one can do more.

If one rejects the right to increase sentences, this is a difficulty which one must face and it is the only alternative to drawing up a most elaborate table or chart which would be quite unsuitable in the Bill.

I beg to move Amendment No. 7, in page 5, line 27, at the end to add:

(3) The criminal division of the Court of Appeal shall receive new evidence if that evidence is relevant and credible and if a reasonable explanation is given for the failure to place it before the jury.

With this Amendment can be discussed the new Clause"—"Power to admit fresh evidence"—

In the exercise of their powers under section 9 of the 1907 Act the Court of Appeal shall not be prevented from receiving any evidence by reason only of the fact that such evidence was, or could with reasonable diligence have been, available at the trial.

We have had an amiable and useful debate, but the time has now arrived for the Under-Secretary to make a concession to the Committee. The Amendment and the new Clause have a similar effect. Up to this point we have discussed all the Amendments with great amiability and we now hope that as we approach the end of these debates for today—which must come in a few minutes—the Under-Secretary will send us all away for the weekend happy and contented that we have had a concession from the Government which will please hon. Members on both sides of the Committee. The hon. Member may say that there is something wrong with the drafting

indicated dissent.

I am reassured. For the first time this afternoon I am given an indication that there is nothing wrong with the drafting. There was nothing wrong with the drafting of Amendment 5, of course—but that was just "leave out subsection (2)". I am most relieved to hear that the drafting of my Amendment is in order. In that case there is no excuse for the Under-Secretary being unable to accept this Amendment.

As the Committee will know the position is that the right of the Court of Criminal Appeal to hear fresh evidence is laid down at the moment under Section 9 of the 1907 Act. This Section gives the court what appears to be an unfettered discretion. If it thinks that it is necessary or expedient in the interests of justice, it may order any witness who would have been a compellable witness at the trial to attend and be examined, whether or not they were called at the trial. I am cutting my remarks because of the time and because I hope that we shall get a concession before we finish this at 4 o'clock.

The Court of Criminal Appeal, not wanting to be turned into a court dealing with the matter de novo laid down regulations for the admissibility of fresh evidence. These included the provision that the new evidence, if it is to be admissible, must not have been available at trial and must be relevant to the issue and credible. The main difficulty arises from the fact that the court usually regards any evidence which was known and which could have been produced with reasonable diligence as being evidence available at the trail.

Difficulties have undoubtedly arisen, as is pointed out in the Donovan Committee Report, when legal advisers seem to have been mistaken, in retrospect, in not calling evidence. In the Queen v. Kelly reported in 1965 the situation seems to be getting better. Evidence was not admitted there because it was regarded as not credible and the general issue was not fully dealt with save by obiter dicta. The Donovan Committee, at paragraph 136 recommended that new evidence should be admitted in the exact terms of my Amendment, that new evi dence should be received if it is relevant and credible and if a reasonable explanation is given for a failure to place it before the jury. We follow the Donovan Committee's recommendation here and I would like to hear the Under-Secretary say that he will accept my Amendment or the new Clause, both of which are sound good sense.

May I congratulate the hon. Member for Colchester (Mr. Buck) on the official endorsement of his draftsmanship? I am quite happy to ask leave to withdraw my new Clause, subject to one matter. Before doing so I would like to make sure that the court would be expected to accept as a reasonable explanation of failure the fact that an accused who was unrepresented had failed to grasp some essential point or, if he was represented, that his counsel had made a mistake. In the interests of the clients of all of us who are members of the Committee, it is important that this matter should be in the discretion of the court and that it should not be inhibited by the interpretation of "a reasonable explanation".

All that I have time to say is that I regret that I cannot accept the Amendment moved by the hon. Member for Colchester (Mr. Buck). I concede that the drafting of it is unexceptionable, except that it involves consequential Amendments in the First Schedule relating to criminal appeal courts and will also involve consultation with Northern Ireland to see whether the same powers would be desired for the Northern Ireland Court of Criminal Appeal which the hon. Member is seeking to give to the Court of Criminal Appeal Division and the Court of Appeal here.

I am not sure that I agree with the hon. Gentleman that a failure to provide anything of this kind was, as he suggested on Second Reading, a failure to implement the Report of the Donovan Committee, because the Report is not clear and paragraph 136 suggests that the Committee regarded this as a flatter which should be altered in practice—

In view of the fact that the Bill has been acted upon, and the hon. Lady the Minister of State for Commonwealth Relations has been to the Republic celebrations, it is rather impolite to the people of Malawi and to Dr. Banda—

In May, 1965, my hon. Friend the Member for Hitchin (Mrs. Shirley Williams) in an Adjournment debate raised the question of the whole functions of the play group movement and the provision of nursery schools. In the reply to the debate and in subsequent contributions that were made, some confusion was shown as to the registration and the responsibility of both nursery schools and play groups, the confusion being as to which Ministry was responsible for them, and what their actual function was.

During the course of the debate my hon. Friend made three points which I want to bring up again and develop a little further. The request was made that a grant should be given to the National Association of Pre-school Play Groups in order that they could further the development of facilities for the under-fives. I am happy to say that, since then, a substantial grant has been made by the Department of Education and Science to that organisation.

Furthermore, a request was made that education inspection of play groups by the Department of Education and Science should take place and also that local authorities should be encouraged, if not compelled, to set up training courses for unqualified people who are running these facilities for the under-fives. Up to the present, those last two requests have not been adhered to.

In 1960, a circular was issued, which most people in the play group movement are very much aware of, making it impossible for a local authority to open any more nursery schools or nursery classes. Since then, that has been amended to allow such a provision to be made so long as it results in the release of teachers into the teaching profession.

I have checked the number of nursery schools or classes that have been opened to meet that need. They are not considerable in number. The main point which I wish to make is that on the relaxing of those conditions, the provision of those nursery schools or classes is made not in the interests of the children but in the interests of getting more teachers back into the teaching profession.

As far as one can judge from literature and the considerable research which has been done into provision for the under-fives, it appears that about 2 per cent. of all children under the age of five at nursery schools attend schools which are under the control of a local authority. Far more than this number attend play groups or organisations registered under the Nurseries and Child-Minders Regulation Act, 1948, which very often are run by unqualfied people but are not under inspection by the Department of Education and Science. Thus we have what seems to me to be the ridiculous situation that establishments which are run and staffed by fully qualified people are subject to inspection by the Department and are subject to its code of standards, yet the considerably greater number of those which are not run by qualified people are not subject to inspection by the Department.

One of the odd features is that if people wish to run a play group or to register under the Nurseries and Child-Minders Regulation Act to look after a considerable number of children, the registration is not of the person, but of the premises. The person and his or her qualifications are apparently of secondary consideration.

I want to make it clear that I am in no way critical—far from it—of those who have banded together to try to fill the gap in the provision of facilities for the under-fives. The country owes a great dial to the development of the play group movement, which has done a magnificent job, particularly when it has been run by committees and parents, in trying to fill the gap. There are, however, some contradictions which need to be examined.

We also have the situation under the Nurseries and Child-Minders Regulation Act, 1948, which was mentioned on the last occasion when this subject was raised. Premises are registered under that Act with the local authority. According to the amount of space and the extent of their sanitary facilities, it is decided how many children they may have in their care. That Act, however, covers a person who may have three or four children or who may have as many as 10, 15 or 20 children. I submit that a person who has in his or her care for a considerable part of the day a large number of children is doing much more than merely minding them. He is conducting an establishment which has a relationship with education. This also must be considered by the Department with a view to the setting up of a code of standards and standards of equipment, as well as, if not insisting upon qualifications for the people doing the work, at least providing the facility for them to be trained, at any rate by a short-term method, in ways in which to deal with very young children.

In my constituency, we have had many complaints. I recently spoke to a lady who had been running a play group for about 15 children in her home. Complaints were received from neighbours on the ground of interference with the amenities of the residential area; the children made a noise and the neighbours disapproved. One has sympathy with them. On the other hand, here was a person—in some instances it might be a group of people—who, because we prevent the local authority from doing so, does her best to make this facility available to very young children because nothing else is available to them.

With the shortage of halls and suitable play space for children, many individuals try to do this work in their own homes, where it is not a money-making venture but is usually non-profit-making, but they have had to close because of the lack of suitability of their premises.

People who do this work successfully, particularly those who operate through the National Association of Pre-School Groups, could all speak of the number of children who turn up week in and week out but who have to be turned away because the provision which they are able to make is inadequate to cope with the numbers.

I should like also to ask my hon. Friend to reflect on the way society i:, going in its whole attitude to the under-fives. The Education Act, 1944, included in its provisions for primary education the field of nursery schools. It said that nursery schools should be provided by the local authorities for all children between the ages of 3 and 5 who needed to go to them or whose parents wanted them to go to them. As we all know, this has never got off the ground, and now we have gone backwards and in fact arc prohibiting future development of this provision.

When one looks at the way in which society is moving in relation to all sorts of buildings we are putting up one sees we are putting up blocks of flats where it is only out of the goodness of the heart that a local authority may decide to provide some sort of play space. In general, play space, is lacking, and so, if we are to believe—and I do believe—the considerable amount of research which has been done on this question, we shall find young children are suffering from isolation from playmates, and we shall find mothers, too, being affected because they are cooped up with young children whose demands and needs they are not able to meet in very small flats.

Also we have reached the utterly ridiculous situation where now a local authority is obliged to provide a garage for a car, but not obliged to provide any sort of facilities for young children. In fact, in many blocks of flats which I know, where there was play space used by young children, it is now impossible for them to use it, because it is blocked by cars.

There is something else which I have not seen mentioned in much of the literature on this subject, and that is the way in which the whole development of our housing is going. We now put young children in blocks of flats—and they are not allowed to keep pets. So there again, the role which pets played and which playmates played in the development of a young child is gradually being taken away from the child, simply because we have not the space—or the imagination, or sufficient sensitivity to the needs of young children—to incorporate these facilities in our general building programme.

I should like the Minister to have some liaison or discussion with local authorities and with the Ministry of Housing and Local Government in order to see that play provision in large blocks of flats is absolutely compulsory upon the local authorities when they decide to build them, and to see that they are manned by trained people. in order to supervise the play of small children. We have the situation, too, of houses in multi-occupation where, again, large numbers of young children are not allowed to use the gardens, cannot play in the streets, and are now cooped up in one or two rooms, and have no contact or any relationship with other children till they start school.

Bearing in mind, too, that large numbers of children are not starting school until after their fifth birthday, I should have thought there to be an even greater need in society today to recognise that an economy of this nature. at the bottom of the scale, is not in the long run going to be economic, but is probably going to face us with far greater problems, in the field of children's development, that we sensible enough and had enough foresight to see the dangers into which we were would have been faced with had we been running.

We all have our priorities, and a great deal of attention has been paid by the Department and by this House in the past to the needs of specialist groups, and I suppose it is very difficult to measure the needs of one group against those of another, but when this was last raised in the House I know the expression was used, "The Department agrees in principle with the needs which have been expressed for some sort of educational recognition for the play group movement and the other changes being suggested"; but much investigation has gone on into the needs, for example, of our elderly citizens to find the best ways in which we can adapt our building schemes to meet the needs of those who occupy them, and we all of us have given much support to those ideas.

As I say, to measure one priority against another priority is a very difficult thing, but one of the things I would ask the Minister to do, if it is within his power, is to hold an inquiry into the whole field of the needs of, and of the facilities available for, the under-fives. This has not been done officially, although it has been done by many individuals and groups. The play group movement has tried to bring to public attention the needs of the modern child and the absolutely deplorable state of the facilities which are at present provided. So much public attention is now being focused on this matter that something must be done, particularly since the problem will get worse, and not better, if action is not taken. If we do not soon begin to face up to the problem we will build up insurmountable difficulties which will be impossible to remedy.

Much is being done these days to encourage married women to return to work. Unless we do something to solve the problems about which I have been speaking, we will see a great many more unregistered child minders. Local authorities experience difficulties in tracing the unregistered child minder and little, if any, check can be kept on the children who are farmed out to these people. It is the responsibility of this House in general and the Department in particular to see that it is made possible for adequate facilities to be provided.

If we held a public inquiry into this subject and went into the matter in considerable detail, followed by a close examination of the problem and the making of recommendations, we would be going part of the way towards doing justice to our younger citizens who are at present severely deprived.

I am sure that the whole House will join with me in commending my hoi. Friend the Member for Eton and Slough (Miss Lestor) for bringing this matter to our attention once again. We appreciate that she speaks from personal experience of these problems and has a commendable degree of enthusiasm for a subject which, I assure her, we appreciate is a matter of the utmost importance.

My hon. Friend's remarks reflect the increasing pressure that is coming from many quarters for a substantial increase to be made in the provision of nursery schools classes, day nurseries and preschool play groups for children under five years of age. She rightly said that this pressure partly stems from the demands and needs of married women who wish to take up employment. It also stems—and this must be given paramount consideration—from the realisation that many children, particularly but not only those living in high flats or areas of social deprivation, need more by way of companionship and facilities for play than their home environment can provide.

I hope that my hon. Friend will not think that I am being tediously repetitive when I give her my sincere assurance that my Department is sympathetic to these needs and fully accepts that nursery education, at least for part of the day, is beneficial to the majority of children and can be of special value to particular groups, including some handicapped children and the children of immigrants.

This is a sphere in which, as my hon. Friend acknowledged, other Departments are concerned; the Ministry of Health, in connection with health and welfare of all children below school age, and the Ministry of Housing and Local Government, in connection with the provision of facilities for young children in high flats. It is perfectly true that under Section 8 of the Education Act, 1944, local authorities must

"…have regard to the need for securing that provision is made for pupils who have not attained the age of five years."

It has to be acknowledged, regrettably that, in practice, the shortages of buildings and, more especially, of teachers, have made it impossible for my Department to authorise a general expansion of nursery provision.

Priority for scarce resources has had to be given—and, unfortunately, will for some time have to continue to be given—to children of compulsory school age and other developments in this sphere of education. The general policy, consolidated in Circular 8/60, has been to maintain nursery provision at the existing level but, as my hon. Friend fairly acknowledged, in 1964 Addendum No. 1 to that circular authorised a minor extension of nursery class provision where authorities could see that this would enable married women to return to the service.

Addendum No. 2, issued in December 1965 allowed local education authorities further to expand their nursery provision on condition, broadly, that at any given time the number of married women teachers thereby enabled to teach at maintained schools was at least twice the number of qualified teachers employed in nursery schools and classes.

I think that my hon. Friend is aware that by January 1966 a total of 53 new nursery classes had been established by 33 authorities. I frankly acknowledge that it is not a wholly satisfactory response and only touches on the fringe of the subject, but one is gratified to find some measure of response, and we hope that the effect of the further relaxation allowed by Addendum No. 2, which will not be known until the next annual review in 1967, will give further cause for gratification. Although these classes must give priority of admission to the children of married women teachers, there is a substantial margin of places for general use.

Alternative provision for young children may be made in day nurseries run by local health authorities, in hospitals, and in factories for the benefit of the employees. These are not provisions for which my Department is directly responsible, but they make some contribution to the needs of the situation. Because these arrangements have been directed to meeting the increasing demand both from women who want to go back to work and those who want their children to have nursery education for its own sake, there has been in the last few years a notable increase in private arrangements for looking after young children. These may take the form of private nurseries, child minding and pre-school play groups, and such arrangements come within the province of my right hon. Friend the Minister of Health who is responsible for the administration of the Nurseries and Child Minders Regulation Act, 1948, which gives the local health authorities certain powers of inspection of such arrangements. I know that some public concern has shown itself recently about the standards of care of some child minders, and I hope that my hon. Friend will feel some measure of relief in knowing that my right hon. Friend the Minister of Health is currently giving consideration to this matter.

My hon. Friend referred to the preschool play groups, in particular, most of which are run by parents on a self-help basis, and a few in areas of social need by the Save-the-Children-Fund. These are not within the scope of the Education Acts, because they usually do not take any children of compulsory school age, and are therefore not covered by the definition of independent school. Many of them could not meet the minimum staffing and accommodation requirements for registration under Part III of the Education Act.

Nevertheless, I agree with my hon. Friend that the best of them compare favourably in aims and achievements with a good nursery. and the National Association of Pre-School Play Groups, which was formed in 1962, has been pressing for them to become a recognised part of the education system. I must point out that this would require legislation. However, my Department has been in fairly frequent touch with the National Association, and has recently agreed, as my hon. Friend acknowledged, to make it a grant not exceeding £3,000 a year for three years, to enable it to strengthen and enlarge the service to its constituent groups. I acknowledge that this grant was not made on the basis that it should be subject to any inspection of the constituent groups. That, however, was not possible because the power did not exist to make any such arrangements. Nevertheless, one of Her Majesty's inspectors is available for discussion with the Association and has given it a good deal of help and advice.

—Pre-school play groups within the scope of the Nurseries and Child-Minders Regulation Act, 1948, are already open to inspection by local health authorities under that Act, but local education authorities have no powers in relation to pre-school play groups. A number of them have shown that they are prepared to allow their own inspectors to give practical help and some have used their further education powers to provide training courses for play group leaders. My Department is willing to help the Association as far as possible, but it has to be appreciated that any substantial change with reference to inspection would nevertheless require legislation.

My hon. Friend referred to the lack of facilities for children living in high flats. I acknowledge that there is justification for concern about the problems which arise from this modern development of multi-storey blocks of flats, particularly in regard to children and young children especially. As she will appreciate, this is mainly the concern of the Ministry of Housing and Local Government, but I have taken note of the point she made and I will consider it further. Because of the divided degree of responsibility, there might be some discussion and consultation with local housing authorities and with the Ministry of Housing and Local Government on this aspect.

Already where local education authorities are proposing to extend their nursery provision under the authority given by addendum No. 2 of Circular 8/60, they are given advice on matters of accommodation. We are ready at all times to assist local authorities in that regard. The question of the provision which ought to be made for children under 5 is being studied by the Central Advisory Council for Education which is also considering various aspects of primary education in general. It is likely that the Council's representations which are expected to be submitted later this year will contain recommendations on this point.

It will be necessary, of course, for the Secretary of State to study these recommendations both on their own merits and in relation to the other recommendations which the Council no doubt will be making and to consult other Government Departments concerned before reaching any conclusion on what changes of policy, if any, are desirable in the light of available resources.

It may well be that this would be the appropriate point in time at which further consideration could be given to my hon. Friend's suggestion that a specific inquiry over this field might be undertaken. To that I shall certainly pay attention and I shall bear it in mind. I express the gratification which I am sure the whole House feels to my hon. Friend for raising this matter and assure her that although I have not covered all the points to which she alluded she can acquit me of any intentional discourtesy or negligence and can accept the assurance of my personal sympathy in this matter.

In the meantime, I hope that local education authorities will make the maximum use of the concession given by addendum No. 2 of Circular 8/60 allowing them to establish new nursery schools. I join with my hon. Friend in hoping that resources may become more lavish to enable us to meet what both of us would earnestly desire in the expansion: of this field of activity.

I add my voice to the plea for an inquiry, because I do not think that much of this is entirely a matter of finding the money. Of course when the Minister says, "In the light of available resources" all of us understand very well the great pressures on primary education and other social services, but I wonder whether it is entirely a matter of resources.

For example, my hon. Friend the Member for Eton and Slough (Miss Lestor) raised the question of how it is that motor cars are allowed to he parked in areas which were normally available for young children to play in. Here is a situation where the Government I think could intervene meaningfully without any additional cost. In these cases what instructions have been given to the police? It seems utterly wrong that places which formerly were available for young children to play in should, without any consultation, be turned over to car parks. I, therefore, ask that an inquiry should be made into all aspects of this problem.