§ Motion made, and Question proposed, That the clause stand part of the Bill.7.25 pm
§ Mr. James Wallace (Orkney and Shetland)
I oppose the clause and urge the Committee to vote against it. Its purpose is to lower from 17 to 15 the age limit of male offenders upon whom a court martial or standing civilian court can impose a custodial sentence. There appears to be sexism in the clause. We are told that one of the reasons why girls are not included is the absence of a suitable institution for girls in the 15 to 17 age group. The memorandum submitted to the Select Committee by the Ministry of Defence indicated that there was a feeling 404 against the appropriateness of custodial sentences for girls under the age of 17, although at no stage was substantive evidence given to back up that allegation.
One of the main reasons for the clause may be to bring military law into line with the provisions of the Criminal Justice Act 1982. When the matter was discussed by the Select Committee, the civil servants who appeared before it were unable to answer without notice whether the proposal would bring military law into line with Scottish criminal law. I accept that there is merit in bringing military law into line with general civilian law, but in this case the arguments have not been particularly well made out. First, I do not believe that a court martial is necessarily the best place for such a sentence to be imposed. In the Armed Forces Act 1981 power was given to enable a court martial to sentence young service men to detention in a corrective institution. In paragraph 7 of its report on that legislation, the Select Committee queriedwhether a court-martial, in sentencing a young offender … would enjoy as full an understanding of the background to the offender's case as a civil court.
§ Mr. Gerald Bermingham (St. Helens, South)
Does the hon. Gentleman agree that when juveniles—those aged 15 to 17—come before a civilian court, there is a specially empanelled bench trained to deal with such juvenile offenders? Does he also agree that to make a 15-year-old boy appear before a general, a brigadier and a couple of colonels is an obscenity?
§ Mr. Wallace
I share the hon. Gentleman's view. Not only is the composition of the court undesirable for a person of that age, but a court martial is under no duty to have regard to social inquiry reports. The safeguards which are required when young children face sentences in civilian courts are not required in a court martial. It is a retrograde step that military law should impose custodial sentences at a time when there are moves towards greater emphasis on care orders for young people under 17.
In Scotland, almost invariably a young person under 16 will be dealt with at a children's hearing, where the welfare of the child will be paramount. In England, from the time of the Children and Young Persons Act 1969, we have moved towards phasing out custodial sentences for children under 17. There is currently under departmental consideration a report which emphasises moving away from custodial sentences towards the concept of care orders. Therefore, it is wrong that in military law we should be retreating to the era of custodial sentences.
The case put forward by the Ministry of Defence in this regard would have been stronger if it could have proved from experience some need for the power which it is seeking to give to courts martial and standing civilian courts. But, as was borne out in the Committee, the number of cases where that argument might have been used over the past three or four years is minuscule: one in 1983, two in 1982, one in 1981 and two in 1980. We are not talking of serious offences, such as rape, murder, arson or manslaughter. Almost invariably they would lead to the return of the accused person to the United Kingdom to be dealt with by the civilian courts here.
Those who gave evidence to the Committee had great difficulty in postulating circumstances in which the custodial sentence might be appropriate. Indeed, the type of serious offences with which, with some lack of conviction, they eventually came up seemed wholly 405 inconsistent with a custodial sentence which, under the provisions of this clause, would have a maximum duration of 12 months. The other argument put forward was that the penalty available at the moment—a reception order—could result in young people being kept in care until their 18th or 19th birthday alongside children who were in care for purely social reasons and that this mix is apparently undesirable. There is nothing in the clause which takes away the reception order, so we shall still have cases where the two groups of young people live side by side. Certainly no case was ever made out that the one or two exceptions over the past three or four years would in any respect disturb these institutions, and certainly no evidence was ever brought forward to substantiate that.
The other reason why I feel particularly strongly about this matter is that it appears to pay scant regard to the separate provisions relating to juvenile justice north of the border.
One thing that is welcome is the amendment made in Committee with regard to clause 11(3), which took account of changes in the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985. I am sure that if the Commitee deletes this clause, the Minister will find means in another place of bringing back the two amendments relating to children between the ages of 17 and 21.
In Scotland, there are circumstances in which a custodial sentence can be imposed on a young person under the age of 17, but they are very rare. The sentence would be that he may be detained for a period set by the court and in such a place and in such conditions as are directed by the Secretary of State for Scotland. That would happen only in the rare event of a child having been convicted by the court on indictment. The offence must be of an exceptionally serious character, such as would in any event he sent back to the United Kingdom for trial, or where, for example, an appropriate penalty cannot be imposed by a children's hearing—for example, disqualification for driving. It is certainly not envisaged that children under the age of 16 will regularly be brought before the criminal courts of Scotland. Indeed, the Lord Advocate must give express instructions before that can happen. That safeguard is not present in connection with this clause, under which a custodial sentence can be imposed. Furthermore, the court, before imposing a custodial sentence, must be assured that there is no other satisfactory method of disposal. As far as I can see, that qualification is not inserted here either.
Even then, if a child has been brought before the High Court or the sheriff court and been convicted, the court has power under the Scottish criminal procedure to remit to a children's hearing for disposal. Again, that would not apply. In fact, the provisions imposed by this clause weaken the Scottish input compared with what happens at the moment. At present, after a reception order has been made and a child has been received into care by a local authority in England or Wales nominated by the Secretary of State, if that local authority thinks it more appropriate that the child's case should be dealt with in Scotland, it can send the case, under paragraph 8 of schedule 5A to the Army Act 1955 or the equivalent provisions of the Naval Discipline Act and the Air Force Act, to an appropriate Scottish local authority, where it will be dealt with by the children's panel.
§ Mr. Tam Dalyell (Linlithgow)
Would not a Scottish service man be dealt with far more advantageously under Scottish law? Is it not an exaggeration to say that these proposals are against our law?
§ Mr. Wallace
The hon. Member is right. The whole concept of juvenile justice in Scotland is different from that south of the border. This provision runs wholly counter to the ethos and spirit of Scottish juvenile justice, and, indeed, it weakens what is already there. At present, if there is a reception order, a child of Scottish domicile can end up before an appropriate children's hearing. But if a custodial order is imposed under the new power, that possibility will no longer be available; it will be circumvented.
As a matter of interest, the Judge Advocate General, Mr. Stuart-Smith, at page 56 of the Select Committee report, said:
the policy, as I understand it, and the belief has always been that it is, where possible, generally preferable that people of our own country should be tried according to the system of law which they understand in a language which is their own, and that might perhaps be thought the more preferable if it is a juvenile.
Why should someone who has had no connection with England suddenly find himself subject to an alien system of law? If the clause goes through, it will cut off even the one line back to the Scottish system which now exists. An examination of the Scottish system and what happens to a child underlines the inappropriateness of what is proposed in the clause.
What kind of disposal is meant by imprisonment? Clause 11(3)(i) says:if the offender is a male person who is under the age of 16 years, such place as the Secretary of State may direct".What kind of places are open? Imprisonment is inappropriate for a person under the age of 21. A court may not impose a sentence of detention at either a detention centre or a young offenders' institution on someone under the age of 16. Clearly, the legislature has thought it inappropriate that children under the age of 16 should go to such institutions. If it were to be one of those institutions to which the Secretary of State decided to send him, I submit that it would be an inappropriate sentence. Alternatively, the Secretary of State might direct that the child be sent to a place of residential care, or a list D school, where he could be side by side with other children who are there not for criminal but for social reasons—the very thing that the Ministry of Defence says it is trying to avoid. That only underlines how ill-thought-out and unnecessary this provision is.
Having regard to the trend towards care orders and also the very few cases and the lack of almost any need for this power, I hope that the House will reject the clause.
§ The Minister of State for the Armed Forces (Mr. John Stanley)
The hon. Gentleman has repeated in Committee of the whole House much of what he said in Committee and he touches on a matter which no doubt the Committee will touch on later when we come to consider the various amendments tabled by the hon. Member for Greenock and Port Glasgow (Dr. Godman) in relation to child care procedures.
As the Committee well knows, in this area of law and in many other aspects of social law, there are differences between the provisions of English and Scottish law. Far be it from me, as a non-lawyer, to adjudicate as to the relative merits of the two. I entirely understand the strength of feeling of Members of the House from Scotland 407 who feel that their law is superior to English law. The dilemma facing the Government is that, as far as possible, they must produce an approximation under the Armed Forces legislation to what is already on the statute book for the civil community.
The Committee will be aware that the clause gives service courts the power to impose custodial orders of up to 12 months on young males of 15 and 16 on the same lines as are provided to the criminal courts under the Criminal Justice Act 1982. That legislation was, of course, carefully considered and approved by the House. When we considered the equivalent situation in relation to this Bill, it seemed right to bring the Armed Forces legislation into line with provisions in that Act.
Although I agree with the hon. Member for Orkney and Shetland (Mr. Wallace) that we are talking about a very small number of cases where young men of 15 and 16 would commit such crimes as might require custodial sentences, the service authorities feel that there should be an appropriate penalty on the statute book. Thus, given the provisions in the 1982 Act, I must ask the Committee to accept that the clause should stand part of the Bill.
§ Mr. Dalyell
Before the Minister sits down, perhaps he could help the Committee. I have no intention of trying to catch him out, and it would not be right to take advantage of a non-lawyer. But this is a real point in relation to Scots law. Is it not reasonable to ask for a letter or comment from the Lord Advocate or the Solicitor-General, as I sincerely believe that what we are doing contravenes Scots law?
§ Mr. Bermingham
I had the dubious privilege of serving on this Select Committee. I put it that way with great sadness but it is a matter of record that I walked out in frustration and annoyance. I have served on many Standing Committees and I have served on a Select Committee since I came to the House. The object of a Select Committee is to investigate. Many of the points that the hon. Member for Orkney and Shetland (Mr. Wallace) raised this evening were put to witnesses in Committee. He, like me, suffered on occasions from the "choke off' system. That is when one is "choked off' in the middle of a set of questions because the majority party felt that those of us who were in the minority party did not have the right to ask such questions.
The Committee was conducted in an absolutely disgraceful way. When the Question was put on whether a witness should be heard, we were outvoted on straight party lines. At that point I decided that I had had enough, and I did not attend a single sitting thereafter. Tonight we shall try again to bring a little sanity to the Bill. We get the chance only once every five years.
I shall keep within the parameters of the clause, because my remarks are pertinent to it. The hon. Member for Orkney and Shetland kindly allowed me to intervene during his speech, when he spoke about incarceration. I tried to make the same point by questioning witnesses and moving amendments. Of course all the Opposition amendments automatically fell. However, as in other Committees, the voice of the Opposition is listened to, and worthwhile points are taken on board, although they may be amended. However, I say to the Minister as kindly as I can that in that Committee it was a waste of time to try to make a point. No matter how reasonable it was, we found that we were not listened to. On clause 11 we had 408 the first of the classic examples of that. We are talking about one or two or perhaps three cases at the most in a year. We are talking about putting children before service courts and incarcerating 15-year-old boys for up to one year. I leave aside the question of girls because there are no places for them. If there were, however, I am sure that this Government would try to incarcerate them. [Interruption.] I hear the hon. Gentleman make a comment.
If he had attended the Committee he would know what we are talking about and he would have heard the evidence against us and the comments we to have put up with. A very important principle is involved here. We are trying to equate in our society the position of the volunteer with that of the civilian. Regrettably, the volunteer in our society is now becoming almost the victim of backwoodsmen-thinking. What is the purpose of seeking to imprison? Of course, if one puts the right to imprison on the statute book some court-martial somewhere will imprison as quickly as it can. It is one more bullet and whereas there have only been one or two cases in the past few years I guarantee that Scots boys of 15 or 16 will find themselves in English detention centres or gaols 'ere 12 months is out.
I make this plea from the heart to the Minister. Let not once again deafness reign in the Government ranks. For once may the voice of the Opposition and the comments we have to make be listened to. Many will be made from long experience. Perhaps then we shall get some movement on this Bill. What we have had to date on clause 11 and other matters has been almost contempt for the voice of the Opposition.
§ Mr. Dalyell
I thought it might be useful, before the Bill goes to the Lords, to get some comment from the Lord Advocate.
§ Mr. Stanley
All I can say to the hon. Gentleman is that the drafting of these provisions was carried out in close consultation with the Scottish Office and it is wholly familiar with these provisions and this reflects the collective position of the whole Government.
§ Question put, That the clause stand part of the Bill:—
§ The Committee divided: Ayes 134, Noes 68.410
|Division No. 132]||[7.47 pm|
|Alexander, Richard||Carttiss, Michael|
|Amess, David||Chapman, Sydney|
|Ashby, David||Chope, Christopher|
|Atkins, Robert (South Ribble)||Colvin, Michael|
|Atkinson, David (B'm'th E)||Conway, Derek|
|Baker, Nicholas (Dorset N)||Cope, John|
|Batiste, Spencer||Couchman, James|
|Bellingham, Henry||Dicks, Terry|
|Bennett, Rt Hon Sir Frederic||Dunn, Robert|
|Bevan, David Gilroy||Eggar, Tim|
|Biggs-Davison, Sir John||Eyre, Sir Reginald|
|Blackburn, John||Fairbairn, Nicholas|
|Body, Sir Richard||Favell, Anthony|
|Bottomley, Peter||Finsberg, Sir Geoffrey|
|Bottomley, Mrs Virginia||Forth, Eric|
|Bowden, Gerald (Dulwich)||Fox, Marcus|
|Braine, Rt Hon Sir Bernard||Fraser, Peter (Angus East)|
|Brinton, Tim||Freeman, Roger|
|Brittan, Rt Hon Leon||Galley, Roy|
|Buck, Sir Antony||Gardiner, George (Reigate)|
|Carlisle, John (Luton N)||Garel-Jones, Tristan|
|Carlisle, Rt Hon M. (W'ton S)||Gregory, Conal|
|Griffiths, Sir Eldon||Pollock, Alexander|
|Griffiths, Peter (Portsm'th N)||Powell, William (Corby)|
|Ground, Patrick||Rowley, John|
|Gummer, Rt Hon John S||Raffan, Keith|
|Hamilton, Hon A. (Epsom)||Rifkind, Rt Hon Malcolm|
|Hamilton, Neil (Tatton)||Roe, Mrs Marion|
|Hampson, Dr Keith||Rossi, Sir Hugh|
|Hargreaves, Kenneth||Rowe, Andrew|
|Harris, David||Ryder, Richard|
|Haselhurst, Alan||Sainsbury, Hon Timothy|
|Hawkins, C. (High Peak)||Shaw, Sir Michael (Scarb')|
|Henderson, Barry||Shepherd, Colin (Hereford)|
|Hind, Kenneth||Silvester, Fred|
|Hogg, Hon Douglas (Gr'th'm)||Sims, Roger|
|Holt, Richard||Smith, Tim (Beaconsfield)|
|Howarth, Alan (Stratf'd-on-A)||Speed, Keith|
|Howarth, Gerald (Cannock)||Spencer, Derek|
|Hubbard-Miles, Peter||Stanbrook, Ivor|
|Hunter, Andrew||Stanley, Rt Hon John|
|Jackson, Robert||Stern, Michael|
|Jenkin, Rt Hon Patrick||Stewart, Andrew (Sherwood)|
|Jessel, Toby||Stradling Thomas, Sir John|
|Jones, Gwilym (Cardiff N)||Sumberg, David|
|Kellett-Bowman, Mrs Elaine||Taylor, John (Solihull)|
|King, Roger (B'ham N'field)||Taylor, Teddy (S'end E)|
|King, Rt Hon Tom||Tebbit, Rt Hon Norman|
|Knight, Greg (Derby N)||Temple-Morris, Peter|
|Knight, Dame Jill (Edgbaston)||Thompson, Donald (Calder V)|
|Lang, Ian||Thompson, Patrick (N'ich N)|
|Lawler, Geoffrey||Thorne, Neil (Ilford S)|
|Leigh, Edward (Gainsbor'gh)||Thornton, Malcolm|
|Lennox-Boyd, Hon Mark||Thurnham, Peter|
|Lilley, Peter||Tracey, Richard|
|Lloyd, Peter (Fareham)||van Straubenzee, Sir W.|
|Lyell, Nicholas||Viggers, Peter|
|McCurley, Mrs Anna||Waddington, David|
|MacKay, John (Argyll & Bute)||Waller, Gary|
|McNair-Wilson, M. (N'bury)||Wardle, C. (Bexhill)|
|Major, John||Watts, John|
|Malone, Gerald||Whitfield, John|
|Marland, Paul||Wilkinson, John|
|Mather, Carol||Wolfson, Mark|
|Mellor, David||Wood, Timothy|
|Miller, Hal (B'grove)||Tellers for the Ayes:|
|Moate, Roger||Mr. Francis Maude and|
|Newton, Tony||Mr. Tony Durant.|
|Adams, Allen (Paisley N)||Haynes, Frank|
|Alton, David||Hogg, N. (C'nauld & Kilsyth)|
|Atkinson, N. (Tottenham)||Howells, Geraint|
|Bennett, A. (Dent'n & Red'sh)||Hughes, Robert (Aberdeen N)|
|Bermingham, Gerald||Kirkwood, Archy|
|Brown, Gordon (D'f'mline E)||Lamond, James|
|Brown, N. (N'c'tle-u-Tyne E)||Litherland, Robert|
|Brown, R. (N'c'tle-u-Tyne N)||Livsey, Richard|
|Buchan, Norman||Lloyd, Tony (Stretford)|
|Caborn, Richard||Loyden, Edward|
|Campbell-Savours, Dale||McNamara, Kevin|
|Carter-Jones, Lewis||McWilliam, John|
|Clarke, Thomas||Madden, Max|
|Clay, Robert||Marshall, David (Shettleston)|
|Cocks, Rt Hon M. (Bristol S)||Maxton, John|
|Cook, Frank (Stockton North)||Meadowcroft, Michael|
|Cook, Robin F. (Livingston)||Michie, William|
|Dalyell, Tam||Millan, Rt Hon Bruce|
|Deakins, Eric||Morris, Rt Hon A. (W'shawe)|
|Dewar, Donald||Nellist, David|
|Dixon, Donald||Owen, Rt Hon Dr David|
|Dormand, Jack||Park, George|
|Eastham, Ken||Parry, Robert|
|Edwards, Bob (W'h'mpt'n SE)||Patchett, Terry|
|Fields, T. (L'pool Broad Gn)||Pike, Peter|
|Fisher, Mark||Powell, Raymond (Ogmore)|
|Flannery, Martin||Redmond, Martin|
|Freeson, Rt Hon Reginald||Richardson, Ms Jo|
|Godman, Dr Norman||Robertson, George|
|Golding, John||Short, Ms Clare (Ladywood)|
|Gould, Bryan||Skinner, Dennis|
|Thompson, J. (Wansbeck)||Young, David (Bolton SE)|
|Wardell, Gareth (Gower)||Tellers for the Noes:|
|Wigley, Dafydd||Mr. Alex Carlile and|
|Wilson, Gordon||Mr. David Penhaligon.|
§ Question accordingly agreed to.
§ Clause 12 ordered to stand part of the Bill.