§ 5.54 p.m.
§ THE LORD CHANCELLOR
My Lords, on behalf of my noble friend Lord Colville of Culross I beg to move that the House do again resolve intself into Committee on this Bill.
§ Moved, That the House do again resolve itself into Committee.—(The Lord Chancellor.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD ALPORT in the Chair.]
LORD GARDINER moved Amendment No. 39:
After Clause 23, insert the following new clause:
§ Conspiracy to corrupt public morals
.—(1) No person shall be proceeded against for an offence at common law of conspiring to corrupt public morals or to outrage public decency or to do any act contrary to public morals or decency in respect of an agreement to publish an article or to have an article for publication or in respect of an agreement to cause an article to be published or to be had for publication.
(2) A person publishing an article or having an article for publication shall not be proceeded against for an offence at common law in respect of such article when it is of the essence of the offence that the article was obscene indecent offensive disgusting or injurious to morality.
(3) In this section the expression "article" shall mean any description of article or anything to which the Obscene Publications Acts 1959 and 1964 apply, and for the purposes of this section
§ The noble and learned Lord said: My Lords, this Amendment is confined within a very much smaller circle than that so ably moved by my noble friend Lady Birk on Monday. If the wording of it seems in places curious, this is simply because it follows, and I think necessarily follows, the somewhat unusual terminology of the existing Act. If I may say a word first about some preliminary objections which the noble and learned Lord the Lord Chancellor intimated that he might have, he suggested first that it was outside the scope of the Bill, and that it was not an Amendment which ought to be moved in the Second House at the end of a Session. I cannot altogether agree with those contentions.
§ The Bill has been described as a rag-bag Bill. It deals not so much, as I think the noble and learned Lord suggested, with evidence and procedure; it deals in the first place with new methods of treating convicted persons, particularly those who have committed less serious offences involving compensation orders, restitution orders, criminal bankruptcies, suspended sentences and so forth. Then in Part II there is an extraordinary collection of miscellanea which, I think, helped to earn the Bill its title of a rag-bag Bill: increases in the maximum punishment for firearm offences; further provisions regarding the possession of firearms by persons convicted of crime; maximum punishment for the unlawful harassment of residential occupiers; extension of the definition of " public place " in the Public Order Act; power of a constable to take 1556 a drunken offender to a treatment center, and about another ten of these. And as to not altering the law, Schedule 3 repeals parts of about 35 Acts dated between 1870 and 1971.
§ The further contention which I understood was going to be announced, or taken, was that this is not the sort of Amendment which ought to be moved for the first time in the Second House. I find that a very strange contention for this Government to advance, bearing in mind that the very next Amendment is a Government Amendment which will change the whole nature and constitution of juries in every criminal trial in the country in future. The Amendment I am moving arises because of the decision of your Lordships' House in Knuller which was decided only on June 14, and therefore had not been reported by the time the Committee proceedings in the other place had concluded. But the Amendment which the Government are next to ask the Committee to approve arises from a report made about eight years ago. I am not criticising their doing it—better late than never—but this could have been put in the Bill from the very start in the other place; and that seems to me a rather curious objection.
§ There is one other point. In Knuller's case the argument—so far as I know an entirely new argument—was advanced by one or more of the noble and learned Lords of Appeal that because Parliament had not acted already to overrule the decision in Shaw's case the judges would assume that that meant that Parliament agreed with it. What I do not want to happen is for judges in future to say that because in connection with this Bill nobody raised the question whether Knuller's case was properly decided, it shows that we approve it.
§ This is a much shorter subject than that discussed on Monday and I shall be as short as I can. Briefly, the story is this. It deals solely with the field of obscene publications. In Shakespeare's time we had no law against obscenity, and there is in Shakespeare a certain amount of rough matter to do with sex; but nothing, I think, which occupies a bigger part in his plays than sex occupies in the lives of men and women. In the rest of the 16th century we had no law against obscenity, and in the 17th century 1557 we had no law against obscenity. It was in the 18th century that Chief Justice Holt declared that we had no law against obscenity; there was no Act of Parliament, there was no Common Law offence. It was only towards the end of the 18th century that the judges began to create Common Law offences in relation to obscenity.
The first Statute we had was the Obscene Publications Act of 1857. That was not an Act under which anybody could be sent to prison for publishing obscene matter. All it did was to provide that the police might seize and destroy obscene matter. The progenitor of the Act was Lord Campbell, then Lord Chief Justice, who introduced the Bill. It was violently attacked by the noble and learned Lord Chancellor, Lord Brougham, and also by Lord Lindhurst, and was only passed on an assurance by Lord Campbell who said:
The measure is introduced to apply exclusively to works written for the single purpose of corrupting the morals of youth.
We know of course by this time that it is always dangerous to accept assurances from Ministers as to how an Act is going to be applied, and it had not long been in existence when another Chief Justice, Chief Justice Cockburn, substituted an entirely different definition of obscenity. Of course, what Lord Cameron told Parliament would apply would apply only to what is normally called "dirt for dirt's sake". If I may repeat them, the words were:
The measure is intended to apply exclusively to works written for the single purpose of corrupting the morals of youth.
But, as laid down by Lord Cockburn, it has since in fact been applied to anything which has a tendency to deprave and corrupt.
After a great deal of public dissatisfaction, the culminating point came really in the 1950s, when the then Director of Public Prosecutions, instead of putting into the dock at the Old Bailey those who published perfectly obviously pornographic matter in paperbacks (very often dressed up to represent historical events in ancient Greece or Rome), did not put into the dock at the Old Bailey the editors of Sunday newspapers who were publishing in those days matter much of which might be thought to be obscene, but did put into the dock at the Old Bailey a
number of perfectly reputable publishers of books which, whatever view one took of some of their contents, were undoubtedly works of serious literary quality. This matter really came to a head in 1959, when Parliament decided to pass an Act which was to contain the whole of our law on obscene publications. In the first place, it provided that instead of, as at that time, the prosecution being able to say to a jury, "Look at these paragraphs or at this page: if you are of the opinion that that is obscene then there must be a conviction", the Act provided that what was to be regarded was the whole of the book. Secondly, it set up for the first time a defence of public good, as follows:
A person shall not be convicted of an offence against section 2 of this Act, and an order for forfeiture shall not be made under the foregoing section, if it is proved that publication of the article in question is justified as being for the public good on the ground that it is in the interests of science, literature, art or learning, or of other objects of general concern
—and then provided that expert evidence might for the first time be produced under that head.
Parliament was evidently a little apprehensive that prosecuting authorities might find some way round this and therefore, although they were advised that it was not necessary, they inserted section 2(4):
A person publishing an article shall not be proceeded against for an offence at common law consisting of the publication of any matter contained or embodied in the article where it is of the essence of the offence that the matter is obscene.
It would, I suggest, be unusual for Parliament to make so plain that this that is in the Act is in future to be the law in this field and that the common law is to be ousted. When therefore in 1962 a prosecution took place in relation to a publication called the Ladies' Directory and the House of Lords, by a majority, upheld a prosecution which had not taken place under the Act but on the footing that there was a conspiracy to corrupt public morals, it was naturally very much criticised in many quarters.
Parliament made it plain that they were In 1968 we had to consider, as many of your Lordships will remember, the question of censorship in the theatre. Here this was all set out in the Act of 1968. But in view of Shaw, here again
not going to have the judges again seeking to inveigh against the obvious intention of Parliament; and Section 2(4) accordingly provided:
No person shall be proceeded against in respect of a performance of a play or anything said or done in the course of such a performance (a) for an offence at common law where it is of the essence of the offence that the performance or as the case may be what was said or done, was obscene, indecent, offensive, disgusting or injurious to morality, and no person shall be proceeded against for an offence at common law of conspiring to corrupt public morals or to do any act contrary to public morals or decency in respect of an agreement to present or give a performance of a play or to cause anything to be said or done in the course of such performance.
Now, my Lords, in June of this year a further case which had been charged as a conspiracy to corrupt public morals came before your Lordships' House in its judicial capacity and to the surprise, I think, of many people, the decision in Shaw's case was upheld by a majority, including the noble and learned Lord, Lord Reid, who had dissented from the judgment in Shaw. Indeed, in his judgment in this case he says:
I dissented in Shaw's case. On reconsideration I still think that the decision was wrong and I see no reason to alter anything which I said in my speech. But it does not follow that I should now support a motion to reconsider the decision.
After discussing that, he ended by saying this:
I think that however wrong or anomalous the decision may be, it must stand and apply to cases reasonably analogous unless or until it is altered by Parliament.
He therefore thought that only Parliament could now deal with the matter before the Committee. Then, as to the undertaking which had been given at the time, he says:
In Shaw's case it was argued that section 2(4) excluded prosecution for the offence of corrupting public morals. The matter is dealt with by Lord Tucker at p. 290. Technically the distinction which he draws is correct but it appears to me to offend against the policy of the Act and if the draftsman of the 1959 Act had foreseen the decision in Shaw's case he might well have drafted the subsection differently. This matter was raised in the House of Commons on 3rd June, 1964 when the Solicitor General gave an assurance, repeating an earlier assurance, 'that a conspiracy to corrupt public morals would not be charged so as to circumvent the statutory defence in sub-section 4.'
That does at least chew that Parliament has not been entirely satisfied with Shaw's case. It is not for me to comment on the undesirability of seeking to alter the law by undertakings or otherwise than by legislation. But I am bound to say that I was surprised to learn that nothing effective had been done to bring this undertaking to the notice of the legal profession. Very experienced senior counsel in this case had never heard of it. It was not said that the course of the present case would have been different if counsel had known of the undertaking. But I cannot avoid an uneasy suspicion that ignorance of it may have affected the conduct of some other prosecution for this crime.
The noble and learned Lord, Lord Diplock, who dissented, after tracing the history of conspiracy from the Star Chamber, where it started, said:
It is suggested that to over-rule Shaw's case would bring uncertainty to the criminal law—a field of law where certainty is particularly desirable. Shaw's case upon the count which charged him with conspiring to corrupt public morals did make it certain that to publish advertisements offering the services of prostitutes was a crime irrespective of whether the advertisements themselves were 'obscene' within the meaning of the Obscene Publications Act, 1959. To over-rule Shaw's case would make it equally certain that it is not. The vice of Shaw's case was that it opened a wide field of uncertainty as to what other conduct was also criminal. Previously it was possible for a citizen to regulate his conduct in the knowledge that if what he was minded to do was not specifically prohibited by a criminal statute and did not fall within any of those equally specific categories of conduct which had already been held to constitute offences at common law, he could do it without risk of incurring punishment even though most of his fellow citizens might be shocked at it as immoral or indecent. As a result of Shaw's case it would seem that any conduct of any kind which conflicts with widely held prejudices as to what is immoral or indecent, at any rate if at least two persons are in any way concerned with it, may ex post facto be held to have been a crime".
With this strange crime of conspiracy to corrupt public morals, obviously its application depends, so far as convictions are upheld or not, on the length of the judge's foot.
He then says:
It is urged that even if the decision in Shaw's case was an improper exercise of legislative power by this House acting in its judicial capacity, it has now been ratified by the legislature itself, because the legislature has allowed ten years to pass without taking steps to overrule it. It seems to me that to infer parliamentary approval from parliamentary inaction is to take an unrealistic view of the pressure on parliamentary time under party government and of the way in which priorities in competing claims for time for legislation are settled. The suggestion that Parliament tacitly
approved Shaw's case by omitting to deal with it when the Obscene Publications Act, 1959, was amended in 1964 has a particularly hollow ring in the light of the disclosure of the assurance given to Parliament by a Law Officer of the Crown in the course of the debates on the amending Bill that a conspiracy to corrupt public morals would not be charged so as to circumvent the statutory defence in section 4 of the Act of 1959—which was precisely what had been done in Shaw's case.
That is perhaps one of the primary objections to the decision in Shaw's case. There are two well-understood and important principles affecting the judges. One is that the judges must do what they are told by Parliament; that it is for Parliament and not the judges to decide what the law is to be, particularly in the field of morality. The other equally important principle is that the judges are independent of the Executive; it is not the function of any Minister to tell the judges what they are to do, nor need the judges pay any attention to what the Ministers say. Here was a case in which Parliament had manifestly intended that the law in this field should in future be conducted according to the provisions of the Act of 1959; and it received assurances that that would be the case. Then it found the judges inventing (if that is the right word) that which it was contended had not previously been the law but in this same sphere.
The noble and learned Lord, Lord Diplock, then said:
Since every private citizen has the right to initiate a prosecution for criminal conspiracy and the executive government has no power to prevent his doing so, it is difficult to see how effect could be given to this assurance except, perhaps, by unprecedented use by the Attorney-General of the power of entering a nolle prosequi after the indictment had been drawn; and no steps seem to have been taken to draw the assurance to the attention of the police authorities by whom prosecutions are generally undertaken in the way in which the case was presented to the jury. The instant prosecutions appear to be in breach of it. Yet it seems not improbable that it influenced Parliament in deciding on the contents of the amending Act.
Later, the noble and learned Lord said:
Your Lordships need have no fear that to over-rule Shaw's case would subject an unwilling public to forced participation in immoralities or exposure to indecencies which are indulged in by a minority in a permissive age.
He then goes on to explain why. I thought it best to use the words of the noble and learned Lord, Lord Diplock, rather than my own in explaining my
objection to the decision—particularly the decision in Shaw's case.
May I conclude by quoting another noble and learned Lord whom I heard delivering a talk only a fortnight ago at the annual general meeting of Justice? The noble and learned Lord, Lord Devlin, was giving an address on "Law in a Restless Society". He said that he thought that the function of law was not really to lead the way in changes in our moral laws. He said:
I do not mean that the law is to be oblivious entirely to changes. I mean merely that it has to wait for them. The law must follow the consensus in morals and customs but it must be in the rear of the movement, its function being to occupy the ground once it is consolidated. It is for the legislator, it seems to me, to decide when the time has come to consolidate new ideas into the consensus and likewise to expel the old because the decision, the right estimation of what that time is, is essentially part of the area of politics.
So I would regret a decision like the celebrated Shaw case which has recently been reaffirmed in the House of Lords. I am not talking about the reaffirmation because that introduced a lot of different considerations.
The function of the Judiciary, I think, is to administer law, not to make it. Of course, in the act of administration, it is sometimes very difficult to avoid some manufacture, but it should be the thing behind the mind of the judge that what he is doing is administering and not making, but because of the Judiciary being the voice of the law, the way in which it makes itself known to the public at large, its role is generally thought to be much more important than, in fact, it is. I think it is just worth exploring that point. Some of the misconceptions, it seems to me, on that is something for which the Judiciary is itself to blame. It has never thoroughly disentangled itself from its old role when judges were servants of the Crown, and men therefore who took that place were servants of the Crown as well as judges. They were, if one goes right back, of course, almost the equivalent of Ministers.
Later, he said:
I think that law and order is a very unfortunate conjunction of words because they signify for this purpose two things that are quite different. The judges are responsible for the maintenance of the law; the Executive is responsible for the maintenance of order. Order may spring from the law, but law and order coupled like that as if one body or one person had to enforce both, gives a wholly misleading idea of what the judges ought to be doing.
Then he said:
Coming back to Shaw's case; it seems to me that it is quite wrong for the judges to think that they are responsible for the moral
health of the community in some way; they are not at all. The law, of course, should be so laid down as to give effect to those moral ideas which are part of the consensus, but having taken the law, they are no more responsible for moral health than a medical officer of health is, or a sanitary inspector. Equally, they take the law and it is their business to see that it is properly applied.
Lord Devlin then referred to suggestions which had been made that the law was an instrument of social purpose, and he said:
I do not believe that either. If one said to anyone that proclaims that the law is the instrument of moral purpose he would say, 'disgraceful; you must be an upholder of Shaw's case'.
And he concluded by saying:
The common law is no longer the right medium, it seems to me, for carrying out either social or moral purposes. Both should be left to statute to create the framework within which society can express and achieve its ends and its purposes.
§ I submit to the Committee that that is the right view. It is unfortunate that there has been this conflict of opinion between Parliament and the judges, but it is for Parliament to decide, and I hope that this Amendment will be approved. The noble and learned Lord the Lord Chancellor indicated on Monday that he had not decided whether on my Amendment he was to deliver what he called his " full speech ". Naturally that is entirely a matter for him. But in case it saves any time may I say that I do not propose to ask the Committee to divide on this Amendment. My reason is this. My main object in moving it is to ensure that no noble and learned Lord, when the next round comes, will say, "We are going to assume that Parliament agreed with our decision in the Knuller case because they have not considered it in the House at all."
§ The reason why I do not propose to press the Amendment to a Division is that I agree with the noble and learned Lord the Lord Chancellor, that it is really the other place which ought to consider a matter of this kind first (this Bill, of course, did not start there), not because this Amendment ought to have been taken there but for another simple reason: that the other place is the elected Chamber and the Government, whatever it is, has to retain the confidence of that Chamber. One is here very much on a question of public opinion. This Cham- 1564 ber is a place in which the Conservative Party always have a large built-in majority. That is an aspect of your Lordships' House which the all-Party Conference on House of Lords reform regretted, in a White Paper which was subsequently approved by your Lordships' House; but it is still the case. The last thing that would be likely to result here is an expression of the view of Parliament as a whole; and while I regret it—and I suspect that the noble and learned Lord the Lord Chancellor also regrets it—however much one says, and however much one totally says, this ought not to be a Party political Bill at all. When the Division bell rings and noble Lords come in from the Libraries it is almost impossible for the Government to lose a Division, unless somebody has miscalculated. I do not think therefore that any useful public purpose would be served by my pressing this Amendment to a Division, but for the reason I gave I propose to move it.
§ 6.23 p.m.
§ THE LORD CHANCELLOR
I am glad to note that the noble and learned Lord is not going to press this to a Division. I think that his self-discipline in this respect may exonerate me from making quite as long a speech as I was proposing to do, and he will therefore acquit me of discourtesy if I do not go into all his arguments. I should like, if I may, to take up his last remarks about this Assembly. If he knew the difficulties which the Conservative Party has in the House of Lords in controlling their own supporters and preventing them from voting against them I do not think he would have said what he did. I say that with a longer experience of this House at one time or another than even the noble and learned Lord and in the memory that in a former incarnation I had to lead it for a time.
I once said in that incarnation that although there was perhaps nothing more Conservative than an independent Peer there was equally nothing more independent than a Conservative Peer. This is one of the things which gives the House of Lords its peculiar characteristic. Certainly on a matter of this kind, which concerns public morals, I would have thought that this House was at least as familiar with the general aspects of life which are covered by the subject of 1565 public morals as even an elected Chamber is capable of being. That at any rate is my experience, based, I am afraid, on a distressing and increasingly long experience of both Houses. I do not think I am at all repentant for having said that this, if pressed to a Division, would have been an inappropriate Act to use as a vehicle for legislation of this kind. It may be I ought to have added penal treatment to my description for the purposes of the Act.
I agree that the Government are going to propose a change in the law affecting juries. This was not originally our intention. It was originally our view that this Act was an inappropriate vehicle for that too, but we intend to do so now partly because it is long overdue, in our view, to give effect to proposals of the noble and learned Lord sitting on the Cross-Benches who reported nearly eight years ago, and partly because a request was made by all quarters in another place that we should swallow our principles in this respect; we were happy to yield to the persuasion to which we were then subjected. As it could not be done in the other place owing to the nature of the Long Title of the Bill we are going to do it, if the House will follow us, here. I will not say any more about that as it would take too long.
I come, therefore, to the main purpose of the Amendment. Here I do find myself in considerable disagreement with the noble and learned Lord as to what the effect would have been had this Amendment been inserted into the law of the land. It would have been on the grounds of my difference from him for this purpose, in a fundamental respect, that I should have advised the Committee to reject it on its merits. The noble and learned Lord began by saying that his Amendment dealt with obscene publications. In my judgment this is not so at all, nor did Knuller, nor did the earlier Shaw or the Ladies Directory Case, as it is sometimes known. In my judgment—and I must apologise for differing from the noble and learned Lord about this—neither the Ladies Directory Case nor Knuller was a case about obscenity at all, and I will tell the noble and learned Lord and the Committee why I think that is so.
There were three points really in the Ladies Directory Case and they ought to 1566 be carefully separated in one's mind. I did make a special study of this case, not because of any natural salaciousness in my mind but because I had to study it in relation to another case, Bhagwan, which I did in the Court of Appeal and which came to the House of Lords two days after my appointment as Lord Chancellor and after I had prepared my argument, which I bequeathed to my son. The reason I say so is this: the three separate points in Shaw are: (1) have the courts still got—at one time they undoubtedly exercised—a residual right to extend the Common Law in the field of substantive offences? I think Shaw decides that they have. This, as the noble and learned Lord said, is a highly contentious point. It may or may not be true that this is over-stepping the bounds of what the Judiciary is about. I personally like a bit of Common Law which is furry at the edges and which has a few growing points. I quite recognise in this field it may be far too sensitive for judicial extension to what has already been decided and the matter ought to be left to Parliament. That was an aspect of the law of conspiracy which we discussed at a little length when the noble Baroness, Lady Birk, was proposing her Amendment on the last occasion when we dealt with this Bill.
The second question in Shaw was whether you ought to label the particular things about which Shaw was concerned with the curious label, "conspiracy to corrupt public morals". In other words, was there an offence on the decided authorities—not about the furry edges or the growing points—but was there on decided authorities an offence which one could label, "conspiracy to corrupt public morals"? Lord Reid thought not; the majority thought, Yes; and Lord Simonds made a very fine piece of judicial rhetoric which I have cited in court with the utmost relish. For the purpose of this discussion that is a totally unimportant point, because it is simply a question of what label to give to an offence if you decide that it is an offence.
Now you come to the heart of what was decided in Shaw. Shaw was not about obscenity in the ordinary sense. Shaw was about a very important question of public policy, about which it is possible to hold more views than one. 1567 As regards the question of public policy, assuming that an advertisement can be inserted in a public newspaper without offending against the law of obscenity in any way, but advertising in fairly concrete terms, but in discreet language, the wares of a professional prostitute, ought that to be an offence against public order, or not? Obviously, as I said last time when I touched on this matter, it is possible to construct a case either way on the merits of that, but it is not a case about obscenity.
May I illustrate what I mean? I took the trouble to send for the actual advertisements in the Ladies' Directory case. Noble Lords will see at once what I mean if I quote one of them. It is the first, as it happens; I have taken them at random. It begins with the words, "Miss Wyplash" and underneath are the words "ex-governess". Following are the words "Strict disciplinarian, telephone Bayswater—". Perhaps I had better not give the actual figures. That is no more obscene than a telephone directory or a railway timetable. It is not about obscenity at all. The question is whether you ought to allow that, as a matter of public policy or of substantive law, to be an offence against the law of the land. There are many countries where advertisements for prostitution are freely admitted into the Press. At the moment, they cannot be admitted into our Press because of the decision in Shaw. But it is not a decision about obscenity but about public policy, which may be right or wrong.
If I come to Knuller, which is the Oz case, noble Lords can see exactly the same principle at work. In that case, by substituting male prostitutes for female prostitutes you had exactly the same principle of public policy. There was an issue about obscenity there, because they were not so obviously harmless as the advertisement of Miss Wyplash, but they were advertisements for and by professional male prostitutes, explaining what their physical attainments were and what their physical conformation was, in order to show how desirable they were or what was required. This was not intrinsically obscene literature in the ordinary sense. The question was whether professional male prostitutes, or their customers, ought to be put in touch 1568 with each other by means of advertisements in the public Press. That was the issue of public policy. It is something about which views may differ, but it is well to get it clear. I am sorry, but I referred to Oz when I meant It; may I apologise both to your Lordships and to Oz for being misleading. It is very important to get clear what the Knuller case was about. It was not about obscenity primarily, but about whether it is desirable for male prostitutes to advertise their wares or to be advertised for.
Again, I want to be perfectly explicit. There was an argument presented by learned counsel on behalf of the publishers, that this was a sort of male homosexual Heather Jenner Bureau. It was not. There was no nonsense about lonely souls wanting to get in touch with one another. It was:Pretty dolly boy wanted for sex and travel by boy, 21. Ample bread.That, of course, means money; then there was a box number. Another advertisement was:Ex French foreign legionnaire, handsome, active, 25, seeks assistance from gentleman of means. Anything legal considered.Then there was another box number. Another was:I'm 23, passive, presentable. Bored with 'teeny' men. Want to meet the 'larg(est)' men….This is the kind of thing which was at issue in Knuller. Do not let us deceive ourselves by talking about conspiracy to corrupt public morals or about obscenity, because it is nothing to do with it. It is a question of public policy whether you want that kind of advertisement to be allowed or not. The reason why I say that this Amendment is wholly inappropriate to a procedural or penal treatment measure of this kind is for some of the reasons, although not all of the reasons, which the noble and learned Lord gave. It is quite unsuitable to insert this in a Bill while the Law Commission is considering the law of conspiracy, when the Commons have not had an opportunity to discuss it. It would have some bizarre results.
In one respect, I may have misled the Committee and in order to redeem my reputation I must now seek to amplify what I have said. The noble Baroness, Lady Birk, said in the previous debate 1569 which we had about conspiracy that the Home Office was rather coy about revealing the nature the other prosecutors for conspiracy to corrupt public morals. I do not know what they were all for. I think there were about 30 between the Ladies' Directory and Knuller. But most of them were for "blue" films and that is about obscenity. That is to say, what I have been talking about hitherto—the desirability or otherwise of prostitutes advertising their wares—has nothing to do with obscenity but is a problem of public policy. But the "blue" films are straight questions of obscenity—people who allow themselves to be photographed copulating in various positions and displays for the purpose of commercial exploitation. There a question of public policy is involved, quite apart from obscenity. Obviously, opinions may differ as to how far this ought to be permitted.
Under the law as it is at the moment—I shall not go into the long history of it which the noble and learned Lord set forth—curiously enough, you can prosecute a "blue" film for obscenity only if it is shown in a private house. This seems bizarre. I did not know this until I had to consider this Amendment. It is one of those curious aspects of criminal law which I had not fully researched. You can be prosecuted, apart from the law of conspiracy, only if you show it in a private house. If you show it in a factory—which I am told is increasing in practice—or in a club, you have to be prosecuted under the old law of conspiracy. Again, whether it is desirable to use conspiracy for this purpose or to make the showing of a "blue" film in a factory or a club an offence, as it is under the law of conspiracy but not under the law affecting obscenity, is a matter of policy which we can all discuss. Simply to remove the law of conspiracy means that you let it in by a side wind. You would simply let in the situation that you would allow "blue" films in a factory or a club but not in a private house, which would seem slightly anomalous.
The end of it all is that we must discuss this again on some other occasion. I should hope that it is discussed in another place. I should think that this is the kind of matter that can best be discussed by the House of Commons after 1570 the Law Commission or the Criminal Law Revision Committee have produced some kind of working paper, because it is highly complex. I personally think that that is the way that law reform ought to be in the future. Had the noble and learned Lord been threatening to divide—which he is not—I was going to beg him not to strangle his own child in this way, but that will be unnecessary. I am afraid that I have been longer than I intended, but I hope that I have made my own position on this subject plain.
§ LORD FOOT
May I ask the noble and learned Lord a question? It arises out of his concluding remarks, when he was saying that there had been about 30 prosecutions, so far as he was aware, between the case of Shaw and the later case, and he thought that most of them had been in respect of "blue" films. He then went on to explain why it had not been possible to take obscenity proceedings in respect of them if they were shown in a public place, as opposed to a private house. But can he give us an assurance that, since the Attorney General said that the authorities would not try to avoid the operation of the obscenity defence by seeking to bring a charge of conspiracy to corrupt public morals, no case where a prosecution for corrupting public morals has been launched has been covered by obscenity?
§ THE LORD CHANCELLOR
I cannot from my own knowledge do so, because I have not been through these cases personally; but I believe this to be the case. As the great majority, of course, were in the period of time of the Labour Administration, it was in the nature of things, I think, a Conservative Solicitor-General who gave the undertaking to which the noble and learned Lord referred. It was a Labour Government which inherited it, and it is now a Conservative Administration which has inherited it from the Labour Government. I have absolutely no doubt in my own mind that all the Law Officers of the **three Administrations have honestly abided by the undertaking which was then given. But I cannot say that I have checked it from any personal view of the files. I believe it to be true, but I believe it because I know the men concerned and believe them to be absolutely honourable.
§ 6.42 p.m.
§ BARONESS BIRK
May I make one or two brief points? The noble and learned Lord the Lord Chancellor was good enough to reply to a point that I raised about the number of prosecutions. I see that I also have got my figures wrong, because, reading the judgment of the noble and learned Lord, Lord Morris of Borth-y-Gest, in another case, I see that he says:We were told that in one period of four years since that time there had been over 30 prosecutions for conspiracy to corrupt public morals. We do not know how many in total there have been …"—That would indicate that there have probably been a great many more. I imagine it is a considerable piece of work, but it would possibly be helpful for future occasions if one could have some breakdown of these cases so that we were all more aware of the position. This covers a period of 11 years; and there were 30 cases in four years.
On a general point (and I do not want to repeat any of the remarks and arguments I put forward the other evening; nor should I like a further set-to and tangle in one week with the noble and learned Lord the Lord Chancellor), I should like to support the Amendment moved by my noble and learned friend Lord Gardiner, because it seems to me that he is dealing in the first part of his Amendment with (although it is a rather narrower aspect of what I was referring to) a specific part of the law of conspiracy. It highlights what is a rather vague and whimsical offence, which brings in what to me, as a lay person, is the most important factor of all; that is, the whole question of uncertainty; of not knowing whether one is going to come in conflict with the law or not. It is clear from what the noble and learned Lord the Lord Chancellor said—he put it extremely clearly—that this question of public policy is one on which many different views are held. I personally take the view on the first example he gave us, of "Miss Whyplash", and then the telephone number, that it is not mandatory on anybody to use that telephone number. On his second case, he says, "Is it desirable that male prostitutes should advertise in this way?" With great respect, I would put it the other way round and say, "Is it so undesirable that people should be able to do this that it 1572 is going to be harmful to the rest of society?"
I would further argue that perhaps one could put forward the case for saying—this is just an example—that it could in fact be helpful that people who want this contact with each other can find it in this way, rather than by going around soliciting unwilling people or making attempts to solicit people under age. I think that in another case the prosecution made it clear that they were not bringing a prosecution under the Sexual Offences Act because, presumably, there was not enough evidence. There is this whole vagueness and a question of wondering, as I said the other evening, where the judicial knife is going to stick in next, which is of great concern to many people—not only judges and not only lawyers, but the citizens of this country.
§ THE LORD CHANCELLOR
I was careful not to prejudge the merits of the question as to public policy which I raised, although the noble Baroness may not be altogether surprised to hear that I do not take exactly the same view as that for which she has now argued. I do not propose to enter into the matter. I would only say, having spent some of my life in the House of Commons, that she will not find in that very acrimonious body unanimous approval for what she has just said.
As regards the rest of the question, it may be that I slightly misled the Committee, because there has since been put into my hands a Question and Answer of the other place, dated June 30 of this year. I notice that the Attorney General answered a Written Question by Mr. Hamling in that House, and his Answer was as follows:There have been 41 prosecutions for conspiracy to corrupt public morals from 1st January, 1960, to date.That is, to June 30 last.Convictions were obtained in 33 of these cases.This is where I got my figureThe total number of defendants convicted was 133."—[OFFICIAL REPORT, Commons; 30/6/72, col. 428.]There were 33 convictions in respect of 133 defendants.
Then a Table is set out, which noble Lords will find in Hansard of the other place for June 30. The table sets out the 1573 names of the convicted defendants, or the names of the cases, from 1959 to 1969. It appears that there had not been any recently. But if the noble Baroness would like any further information I should be prepared to give it if she would put down a Written Question to the Government or if she would write to me specifying the information she wants. I would try to get that information for her, and if she wanted to put down a Question for Written Answer it could of course be published in Hansard in the ordinary way.
§ LORD DONALDSON OF KINGSBRIDGE
Before my noble and learned friend replies, I should like a little clarification. I always enormously enjoy these legal arguments between our two distinguished Front Bench noble and learned Lords. We are getting more and more of them, and in general I understand less and less of them; but I suppose that is the way it goes. My noble and learned friend has produced an Amendment of three subsections dealing almost entirely with articles which are published, which I take it means are written for newspapers. The noble and learned Lord the Lord Chancellor has replied entirely about "blue" films, and has made the clause apply only to some "blue" films and not to others. I am in a state of total confusion. I thought that this was an Amendment to show that prosecutions against obscenity which depended on conspiracy would no longer be valid. Was I right? Are only "blue" films concerned? Could it be spelt out very simply for those of us who are not very good at these matters?
§ 6.49 p.m.
§ THE LORD CHANCELLOR
I will try to spell it out. I think the noble Lord was misled by the fact that he had not read the definition section in the noble and learned Lord's Amendment concerning the word "article". The noble and learned Lord has indulged, I am—I do not know whether to say—sorry or glad to see, in legislation by reference. But if the noble Lord, Lord Donaldson, will look up the Statute to which reference is made in subsection (3) of the noble and learned Lord's Amendment, he will see that "article" does not mean an article in a newspaper 1574 in the ordinary sense; it means anything which is capable of being read or looked at, roughly speaking—I forget the exact language. He will see that roughly speaking it is something which has to be looked at or read.
The reason why I introduced the passage in what I said about "blue" films is this—and perhaps I had better spell it out at greater length. This is what I would have said had I been making a longer speech on the subject. The majority of prosecutions for conspiracy to corrupt public morals instituted since the Shaw decision have concerned the showing of "blue" films. These offences are usually committed in clubs, and sometimes even in factories. The Obscene Publications Act 1959 can be used only if the exhibition was given in a private dwellinghouse. This is because the proviso to Section 1(3) of that Act, provides that the definition of "publication" should not include anything done in the course of a cinematograph exhibition, other than one given in a private dwellinghouse to which the public are not admitted. That is the technical explanation underlying what I said. I was trying to spell it out in plainer language than is perhaps contained in that rather compendious technical passage from my brief. I hope it is now plain to the noble Lord.
§ LORD GARDINER
I do not want to prolong the argument but I should like to add my own explanation in relation to the point raised by my noble friend Lord Donaldson. This question of the "blue" films was dealt with by the noble and learned Lord, Lord Diplock, as follows:Next, it is said that the circumstance that there have been at least 30 successful prosecutions for conspiracies to corrupt public morals following the decision in Shaw's case supplies an additional reason for not overruling it. Your Lordships were informed that most of these arose out of the exhibition of obscene films to members of the public, which is not a statutory offence under the Obscene Publications Acts 1959 and 1964.Then he added this:This conduct too would constitute the well-established common law misdemeanour 1575 of conducting an obscene or indecent public exhibition and a conspiracy to commit it would have been a misdemeanour apart from the decision in Shaw's case.Secondly, may I say that—
§ THE LORD CHANCELLOR
The noble and learned Lord has quoted the noble and learned Lord, Lord Diplock, but I think perhaps he has forgotten the proviso to the section, to which I made reference in replying to the noble Lord, Lord Donaldson. I know that the noble and learned Lord, Lord Gardiner, has a great respect, as I have, for the noble and learned Lord, Lord Diplock; but he was in the minority, and he is not always right.
§ LORD GARDINER
None of us is always right, but I think that he was right on that point.
As to the Law Officers, I hope I did not say anything to place any blame on the Law Officers of either Government, but I think it is clear from the judgments that the difficulty which arose was due to an extraordinary failure of communication between the Law Officers—which I am sure was not deliberate—and those responsible for prosecution. At the end the day the vice of Shaw's case really is this: that prostitution is not, and never has been, however immoral, a criminal offence; and, subject to statutes like the Street Offences Act, there is nothing to stop a prostitute from advertising her services as she likes—unless of course she does it in an obscene article. I should have thought myself—and probably everybody would agree—that one cannot distinguish between Shaw's case and others. I should have thought that both were, prima facie, obscene. The vice is in not prosecuting as Parliament had intended for that, but basing the whole thing on conspiracy. It requires two people to indulge in an act of prostitution and this, however immoral, is completely legal. Yet, two people being concerned, I suppose that one day the judges might support a conviction for a conspiracy to corrupt public morals, holding, no doubt rightly, that prostitution is immoral.
I do not want to pursue the matter further. I rather hope that we shall not have to wait for the 1576 Law Commission to deal with the whole law of conspiracy before Parliament deals with this subject. The whole law of conspiracy is something much more complicated and I apprehend that it may yet be a matter of years before the Law Commission can deal with that. I hope that Parliament, if not in this Session, then fairly soon, will find an opportunity of removing these unfortunate decisions as I regard them. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 6.55 p.m.
THE LORD CHANCELLOR moved Amendment No. 39A:
After Clause 23 insert the following new clause:
§ Qualification for jury service
("23A.—(1) Subject to the following provisions, every person shall be qualified to serve as a juror and be liable accordingly to attend for jury service when summoned under Part V of the Act of 1971, if—
but not if he is for the time being ineligible or disqualified for jury service; and the persons who are ineligible, and those who are disqualified, are those respectively listed in Parts I and II of Schedule (Ineligibility and disqualification for, and excusal from, jury service) to this Act.
- (a) he is for the time being registered as a parliamentary or local government elector and is not less than twenty-one nor more than sixty-five years of age; and
- (b) he has been ordinarily resident in the United Kingdom, the Channel Islands or the Isle of Man for any period of at least five years since attaining the age of sixteen,
(2) A person summoned for jury service shall be entitled, if he so wishes, to be excused from jury service if he is among the persons listed in Part III of Schedule (Ineligibility and disqualification for, and excusal from, jury service) to this Act, but (except as provided by that Part of the Schedule in the case of members of the Forces and others) a person shall not by this subsection be exempt from his obligation to attend if summoned, where the summons has not been withdrawn under section 31(6) of the Act of 1971 and he has not under section 34(2) of that Act been excused from attending.
(3) A written summons sent to any person under Part V of the Act of 1971 shall be accompanied by a notice informing him—
and where a person attends in pursuance of such a summons or of a summons under 1577 section 33 of the Act of 1971 (summoning without notice in exceptional circumstances), the appropriate officer may put or cause to be put to him such questions as the officer thinks fit in order to establish whether or not the person is qualified for jury service.
- (a) of the effect of subsections (1), (2), (4) and (5) of this section; and
- (b) that he may make representations to the appropriate officer with a view to obtaining the withdrawal of the summons, if for any reason he is not qualified for jury service, or wishes or is entitled to be excused;
(4) Where it appears to the appropriate officer, in the case of a person attending in pursuance of a summons for jury service, that on account of physical disability or insufficient understanding of English there is doubt as to his capacity to act effectively as a juror, the person may be brought before the judge, who shall determine whether or not he should act as a juror and, if not, shall discharge the summons; and for this purpose "the judge" means any judge of the High Court or any Circuit judge or Recorder.
(5) If any person—
he shall be liable on summary conviction to a fine of not more than £400 in the case of an offence of serving on a jury when disqualified and, in any other case, a fine of not more than £100.
- (a) having been summoned for jury service makes, or causes or permits to be made on his behalf, any false representation to the appropriate officer with the intention of evading jury service; or
- (b) makes or causes to be made on behalf of another person who has been so summoned any false representation to that officer with the intention of enabling the other to evade jury service; or
- (c) when any question is put to him in pursuance of subsection (3) above, refuses without reasonable excuse to answer, or gives an answer which he knows to be false in a material particular, or recklessly gives an answer which is false in a material particular; or
- (d) being ineligible for jury service under Group A, B or C in Part I of Shedule (Ineligibility and disqualification for, and excusal from, jury service) to this Act, or disqualified under Part II of that Schedule, serves on a jury,
(6) The fact that a person summoned to serve on a jury is not qualified to serve shall be a ground of challenge for cause; but subject to this nothing in this section affects the law relating to challenge of jurors.
(7) In this section "the Act of 1971" means the Courts Act 1971; and that Act and the foregoing provisions of this section shall be construed and have effect as if this section were contained in Part V of that Act.
(8) Any enactment included among those repealed by this Act which would otherwise have any effect in relation to coroners' juries, or a person's qualification or liability to serve on such a jury, shall cease to have that effect."
§ The noble and learned Lord said: Here, to some extent, I have reached a terra incognita for which I must offer my apologies to the Committee. I am in the humiliating position of having to "devil" for my noble friend who is still, 1578 apparently, detained in the Isle of Man. However, roughly speaking, I know what this Amendment is about, and if I am slightly less well-informed about it than I should like to be I hope that the Committee will forgive me. I certainly hope that my learned junior will appear to relieve his leading counsel before the leading counsel is hopelessly found out. As I said in the course of my speech on the last Amendment, this Amendment is really to carry out an undertaking given in another place, and incapable of performance in another place because of the Long Title to the Bill, to introduce and implement the Report of the noble and learned Lord, Lord Morris of Borth-y-Gest, about jury qualification. In passing, I should like to express the gratitude of successive Administrations, and I am sure of the House, to the noble and learned Lord, whom I am happy to see sitting on the Cross-Benches, for the work that he did on that occasion which is the basis of this Amendment, although I think in one respect we have not followed him.
§ There has been one change in the law since the noble and learned Lord reported, and that reflects itself in the terminology of the Amendment which I am now proposing. When the noble and learned Lord reported, the ordinary age of majority for a variety of different purposes, including Parliamentary representation, was 21 and, as the House knows, it has since been reduced to 18. The Government considered carefully whether to reduce to 18 the age for eligibility for jury service, which would simplify the administration of the new laws so that the jurors came straight off the electoral list, but on reflection—and we do not think we have been very seriously criticised on that yet—we thought that human liberty was very important and that people might be a little uneasy if they could have their liberty taken away as a result of a verdict of a jury containing a substantial proportion of those between 18 and 21. We may have been right or we may have been wrong, but I think we have not been unduly criticised about it. Of course if it turns out to be wrong after a period of years we can put it right.
§ My noble friend has just arrived—the relief of Mafeking!—What is at present proposed is that the ages should be a minimum of 21 and a maximum 1579 of 65. I will return to the maximum in a moment. On the whole I think I am right in saying that the noble Lord, Lord Morris of Borth-y-Gest, recommended this precise age bracket although at the bottom end he did not then know that the voting age and the majority age was going to be reduced to 18. But at any rate the upper limit at 65 still stands. For various reasons we have not included coroner's juries, which are selected on an entirely different basis, and we have differed from the noble and learned Lord, Lord Morris of Borth-y-Gest in one respect which I will explain as compendiously as I can to the Committee.
§ At the moment, the jury list comes off the electoral roll, but the householder—as noble Lords will doubtless all know, from having done it themselves—has to put in his own age and the age, if over 21 or 18, of the other inhabitants of his house. Nearly always only the householder is qualified for jury service and he has the letter "J" against his name. When this reform is carried out nearly all the adult members of the household will be between 21 and 65, so that most of the electors on the household electoral list will be eligible for jury service, which means that in principle the letter "J" will not appear against only the householder's name; they will all be eligible.
§ The Morris Committee proposed that each person should be sent a separate questionnaire which would have to be answered and that it would contain all the questions relevant to eligibility: age, I suppose previous convictions, whether a Peer, barrister, justice of the peace, or incapacitated in some way which would exclude them from jury service. A corollary of that would have had to be that if they did not fill in the form at all, or, alternatively, if they filled it in knowingly falsely, they would be guilty of an offence. The forms having been collected, a suitable summons would be sent out for the jury.
§ According to the plan in the Amendment, we have thought it right to retain the duty on the householder to state, in addition to whether the inhabitants of the house are over 18, to the best of his knowledge and belief whether they are between 21 and 65; and this we think will save a number of unpleasant events 1580 which would otherwise inevitably have taken place. If one were to send out, as was originally recommended, a number of questionnaires to a random number of voters—say, 200,000 to produce a panel of 100,000 jurors—one would have found in practice that a number of them went to the very old, the weak or those unable to read, and that a great many questionnaires were not replied to. The next thing would have been that those people would have been summoned to a magistrates' court for committing a statutory offence, after which someone would have had to go round to arrest a proportion of them. That would probably have yielded 10 minor scandals a year, and I think your Lordships will agree that we were well advised not to try that course. I hope that this is generally accepted. If it is not—and there are arguments both ways—at least I have given the reason why we did not follow the noble Lord in this matter, though it was no disrespect for his opinion. I beg to move.
§ 7.3 p.m.
§ LORD GARDINER
I will be brief because we have the great advantage of having with us the Chairman of the Committee, Lord Morris of Borth-y-Gest. We of course congratulate the Government on at length giving effect to the recommendations of that Committee. That should have been done by the previous Government; I am glad to see it being done now. I suggest very tentatively, knowing so much less about this issue than the noble and learned Lord, that while votes at 18 may make it impossible for the recommendations of the Committee to be carried out exactly as the Committee planned, what is now proposed raises considerable difficulties.
As I understand it, the Government propose making each householder responsible for declaring the age of each person resident in the household, so providing a list of 30 million to 35 million people each year, only one in 1,000 of whom will be required. This raises several difficulties. First, lodgers, students and even families will in many cases object strongly to informing the householder or landlord of their ages, and perhaps it is wrong to place the onus on the householder to give this information.
1581 Secondly, there may be a considerable degree of error. Many householders do not complete the registration forms, and many who do so give inaccurate information. I am told that well over one million people fail to be registered each year. The Government survey of May, 1967, into the accuracy of the register of electors showed that between 3½ per cent. and 4 per cent. of people were not registered. Even on this small survey, of 3,441 inquiries, 25 per cent. refused to state their age group.
Thirdly, it will have an adverse effect on the register of electors, and this is a point which troubles a good many people. Already some people have found that the easiest way to avoid jury service is to refuse to return the registration. With this widening of the field for jury service this practice is likely to increase. The form "A" is already rather complicated and people find difficulty in completing it. Efforts have been made in recent years to simplify it. The proposal we are discussing will in my view put the clock back and there is a fear that the incidence of non-registration will increase considerably.
It may well be that some other alternative to what the Government propose would be an improvement. It seems that to approach between 35 million and 40 million people when one wants only one in 1,000, and to do so in a way which will adversely affect the electoral list by reason of the proportion of people who do not even like giving their age groups and who refuse to give other people's, could cause considerable difficulty. However, as the noble and learned Lord, Lord Morris of Borth-y-Gest, and no doubt other members Of the Committee know very much more about this than I do, I will leave my comments there.
§ 7.8 p.m.
§ LORD MORRIS OF BORTH-Y-GEST
I wish to speak briefly in support of the Amendment, and in doing so to thank Her Majesty's Government for having proposed it and others, and in so doing for implementing the main recommendations of the Committee over which I had the privilege of presiding. I thank the noble and learned Lord the Lord Chancellor for what he said, and for the way in which he explained the matter.
1582 It is of course some years since we were appointed. We were invited to serve in 1963, when the noble Lord, Lord Brooke of Cumnor, was Home Secretary. We reported in 1965, when the noble and learned Lord, Lord Stow Hill, was Home Secretary. Successive Governments have in principle expressed approval of our main recommendations but there has been this—I will not say "delay"—interval of time since we reported until now. I have never, either in your Lordships' House or elsewhere, made any complaint about this. I have always taken the view that if one is invited to undertake some public service, one is always happy to do so and one gives the best advice that one can. But having done that, I have never taken the view that I ought to make it a matter of personal complaint if action has been somewhat tardy in following our Report. Members of a Committee—and I think this applies to the members of the Committee over which I presided—do of course inquire from time to time and many have asked me: "Is anything going to happen?" And members of a Committee, members of the public who give up their time and use their energy in serving on a committee, feel a certain sense of frustration if nothing happens. So I should like on their behalf, although I am not in touch with them at all these days, to thank Her Majesty's Government for introducing these Amendments now.
The fact that they are introduced is very much the result of the efforts in another place of Mr. Edward Gardner, Queen's Counsel, who was a member of the Committee and who, I believe, in another place urged Her Majesty's Government, and had support I think from both sides of the House, that it would be desirable to take some action at the present time. I am very happy to support these Amendments because they will introduce a useful change in our system, in our criminal administration, indeed in the administration of the law, because although there are very few civil juries these days I imagine that these proposals will apply to all juries, though of course juries now are mainly used in criminal cases.
I should think that in all parts of your Lordships' House there would be a feeling that the system that has now 1583 continued for the last 150 years is a system that is inadequate, outdated and no longer one that would conform with our current ideas. We all know that, broadly speaking, those eligible to serve on juries to-day are householders or those on the electoral register who are householders of houses of a certain rateable value. The rateable value is rather low in figure, but the result of having that system has been that if at any time there was a revaluation of rateable values, automatically the number of those eligible for jury service would be vastly increased. I do not think that that is a system that to-day can be justified.
The preponderance of opinion expressed to our Committee—though now some years ago—was that it would be a more rational basis to make the electoral register the general basis for service on a jury. As the noble and learned Lord the Lord Chancellor has said, when we were considering our problem, hearing evidence and when we reported, the age of majority was 21. The top age for jury service was and still is 60. We aid consider what would be a suitable age. I do not think that we gave any consideration, in the nature of things, to reducing the age below 21. There was no reason why we should. There was no contemplation at that time that the age of majority would be lowered. We did give some consideration to the question as to whether it should be a higher age than 21.
As regards the upper age limit, we thought that 60 was much too low and we recommended the age of 65. We might have recommended a higher age and many views were expressed that those over the age of 65 would not only have the experience of life and affairs that would so well equip them to serve on juries but also that they would be likely to have more time available. We thought of all that, but we also thought that, apart from those who are accustomed to sitting for hours on end and day after day concentrating and listening to evidence, it involves quite a strain, and we thought that on the whole there would be many over the age of 65 who would find it rather too tiring to concentrate for several hours a day and for days on end by sitting on juries. So we decided to recommend that the lower age should 1584 continue to be 21 as it is now, but that the upper age should be 65.
Now the age of majority is 18, and in another place I believe one or two Members expressed the view that liability for jury service should be between the ages of 18 and 65. I naturally cannot speak for the members of the Committee, not only because I have not seen them, but also because we did not consider any question of service under the age of 21. I would merely say that my personal view is that Her Majesty's Government have decided wisely in deciding that the age should be from 21 upwards. I do not think that the duties of an elector and those of a juror are to be exactly compared. This may be controversial and others in your Lordships' House may think that at the age of 18 people should serve on juries. But there is a great deal to be said for having a good distribution of ages and certainly for having a quite reasonable proportion of young people, because we have to remember that of the people who are convicted of crimes in the higher courts—and in this consideration of jury qualifications we are considering mainly criminal trials; and I speak now in reference to the year 1963—half of the total were under the age of 25 and two-thirds of the total were under the age of 30. It is rational to hope that a jury should be composed, or capable of being composed, of those coming from a wide range of ages. As I say, my own personal opinion is that I would be content, certainly for the time being, with the age of 21 as decided by Her Majesty's Government. Others, and I think also Mr. Gardner in another place, took a different view.
I do not want to take up too much of your Lordships' time but perhaps I may briefly mention one or two other matters. We thought, and we recommended, that it was only right that those serving on juries should have resided in this country for a period of years. We thought that those who have only recently become citizens should have a period during which they will become familiar with our way of life, and thus will be more competent as jurors if they were called upon to act in that capacity. That forms part of the Amendment which the noble and learned Lord the Lord Chancellor, has moved. We did consider very carefully whether there could be some 1585 tests imposed for service on a jury. This raises a very difficult question indeed. On the whole, we came to the conclusion that it would be difficult to do more than to hope that those serving on juries would be able to read, write, speak and understand the language of the court.
May I just say a word in regard to the matter that the noble and learned Lord the Lord Chancellor has so helpfully referred to; namely, the system of summoning. We did make a recommendation, which is not carried out in these proposals, rather on these lines: we were contemplating an electoral register which would contain the names of people from 21 upwards. For the future I imagine that the electoral register will not be, as it is now, virtually a jury list. At the present time the electoral register has opposite the names of householders who are qualified the letter "J"; over the years the list has been compiled, and any who for the first time seem to be qualified as jurors have sent to them a letter or a form. They, of course, have a right of appeal, but in addition to that they have a form sent to them, and they may be able to show reason why they ought not to be on the list of jurors.
For the future—I hope I am right in saying this—the electoral register will not have this letter "J", and therefore you cannot, by looking up the electoral register, say who will be eligible to serve. I quite see the force of the point taken by the noble and learned Lord, Lord Gardiner; but if administratively it is not going to be too difficult, I can see that there will be advantages in having an electoral register with the information which will enable registration officers to send to the Lord Chancellor's Department the names of those on the electoral register between 21 and 65. The scheme that we had in mind, that we hoped would be of assistance to those compiling the electoral register, was roughly this: we thought, supposing you need 100 jurors, send a letter to 200 who will be on the register (and that means, as we contemplated, those over the age of 21) with a questionnaire so that it may be seen whether they are eligible, whether they are disqualified, whether they wish to be excused. The letter would, of course, go to some over the age of 65, but it could easily be arranged that those over 65 would merely have to say that 1586 and return the form and nothing else would happen.
But there is the change in the situation now, as the noble and learned Lord the Lord Chancellor pointed out. If a letter was sent to those on the electoral register, it would have to be sent to a number of people under 21, and they would also have to return the form and say they were not eligible. I can quite see that it may be very convenient, if the difficulties mentioned by the noble and learned Lord, Lord Gardiner, can be overcome, that the information should be fully available as to those on the electoral register who are between 21 and 65.
That leads me just to ask this one further question: whether, even assuming that the register will be available with information as to ages, it might nevertheless not be helpful to have a preliminary letter of inquiry before sending a summons. Under the scheme as it will now be, as I follow it, a summons will be sent; but with the summons there will be careful information, informing the person summoned that if he is within certain groups he will be ineligible to serve; within another group he will be disqualified; within another group he will be entitled to be excused as of right, and furthermore there may be excusals if good cause is shown. I think it simply comes to this—and perhaps it is a matter of what is best from an administrative point of view: Is it, as the scheme is now proposed, appropriate to send a summons which may then be withdrawn, or will it be more convenient to send a letter of inquiry which might be followed by a summons? A summons is rather a serious thing; all people wish to obey the law, and it can sometimes upset people to get a summons.
Perhaps I am making too much of this point. It may not matter very much which way it is done. I do not know whether it would be possible, if the system as proposed in the Amendments is followed, to have by administrative arrangement some preliminary inquiry. That is merely the point that I raise. Is it desirable in all cases to have a summons which then may be withdrawn, or is it possible to have in some cases a preliminary inquiry which may have the result that no summons is ever served. I have no doubt that those who have 1587 looked into this matter have considered the present scheme very carefully, and if it is thought that administratively it will be satisfactory I do not press this point at all. In short, it is this: could there be some system whereby we avoid having a summons which may be withdrawn; to have some sort of inquiry which would result in no summons being sent?
I am afraid I have spoken rather at length. I would end by again saying that I very much appreciate the fact that these Amendments have been introduced and I greatly welcome them. It was never a term of reference of our Committee to consider the merits of the jury system as such; nor is it now in issue before your Lordships. There might on some occasion be a necessity to consider the whole system. We are not discussing that now. If in general we were considering whether the jury system in criminal cases—and at the moment I only speak in reference to criminal cases—is a desirable and effective system, I would for one claim that it is, and I would think that the general feeling, not only in the legal profession but in the minds of the public, is that our jury system is a desirable one. The reason why I think it has great merit is that it involves all citizens in honouring the law and in preserving and maintaining order. None of us think of the law as something that is imposed by those in authority upon citizens. We think of the law as provisions which are just to all citizens, which are provisions which enable all citizens to have freedom under the law and to enjoy security of person and security of property. In that way I personally think that the jury system has great merit because it involves all citizens of good will in maintaining those standards we think should be maintained.
§ 7.30 p.m.
§ BARONESS ELLES
May I add a word of gratitude to that of the noble and learned Lord, Lord Morris of Borth-y-Gest, and to the noble and learned Lord the Lord Chancellor, for moving this Amendment. This means one more tick on the list of recommendations made by the Cripps Committee. Of course we, in our recommendations, paid tribute to the work done by the noble and learned Lord, Lord Morris of Borth-y-Gest, and 1588 his Departmental Committee. We in no way claim to have made any original recommendations, but we were supporting those made in his Report; and I also, as one of the many complainants since 1965, had a personal word of gratitude. May I say just one word on the consideration of the age limit of 21. At the time when we were studying the proposals of the Morris Report in 1969, the question of the age of majority was being discussed in Parliament. Our feeling was very much that in the field of criminal law those who are under 21 are in any case treated rather differently from those who are over 21. We therefore did not feel it right that should legislation be introduced (which, indeed, it was later) to reduce the age of majority to 18, that people of 18 should be sitting, so to speak, in judgment or in any case in a form of criticism of people who are in fact in a different field of the criminal law.
Another point is that not all of the country has the opportunity (if one could call it such) of reading publications such as It, Oz or the Ladies' Directory. Many people of 18 to 21 remain blissfully innocent of many of the crimes committed by fellow-citizens. We therefore did not feel it was right, especially in the more rural areas of the country, that people from 18 to 21 should be asked to sit on juries and listen to the kind of criminal case that sometimes comes to the courts. The third point we also thought about, especially regarding the age of 18 to 21, was that many people of that age are engaged in full-time educational courses, and whereas one can give some form of financial recompense, however small, to somebody who sits on a jury and who has to leave his business, one cannot recompense a student for hours lost, if indeed they are lost. Therefore we did not feel it was right, even if the age of majority was reduced to 18, that people under 21 should be asked to sit on juries.
I wish to make those particular points and to say how very glad all the women's organisations will be that this Amendment is at last going forward; also, that in an age of participation, which may be a very fashionable word, this course is also justifiable, and in some cases, even desirable. I think that in this particular case women will certainly want 1589 to exercise their rights as citizens. Also it is high time they realised that they have duties and responsibilities as citizens, and that they can take them equally with other citizens in this country.
§ BARONESS WOOTTON OF ABINGER
I have just escaped from a position of silence in time to add a few words on this Amendment. I should like to dissent from the views just put forward by the noble Baroness, Lady Elles, that selection of the age of 21 is still right. I think that 18, which obviously Lord Morris's Committee could hardly have foreseen as a possibility, is now right for three reasons. First of all, it would be administratively very much simplier that those who are old enough to be on the voting list should also be eligible for jury service. Secondly, I would argue that it is quite irrational to keep pretending that people are grown up for some purposes and are not grown up for other purposes. It is true, as the noble Baroness opposite just said, that young offenders who are for instance at an age to be sent to borstal are treated differently; they are subject to different sentences from those over 21. But it is also true that after the age of 17 they appear in the same courts, and that they are tried by juries in the same way as are older people. I would think that when we have decided they are old enough to vote, then that they are old enough to take out mortgages and old enough to marry without anyone else's consent, we should regard them as grown-up persons.
The third reason I would give is that we all know that no jury would be composed entirely of very young persons any more than any jury has been entirely composed of women since women were made eligible for jury service. Women continue to be in the minority, I think, not only because of the householder or ratepayer qualification. One of the arguments which I think was used in another place in favour of lowering the age to 18 was that most crimes are committed by relatively young people and that it is a good idea to have people in an age group who are understanding of the kind of temptations to which their contemporaries are exposed. I think it is now true that the peak age for indictable crimes for both sexes is 17, and I would have thought 1590 there is a great deal to be said for allowing on juries persons who have just passed the peak age for the commission of indictable crimes. For those three reasons, I should like to associate myself with those who believe that if you are grown up you are grown up, and if you are not grown up you are not grown; that we might as well settle for some age that must be arbitrary, and that we might settle for the same age for this purpose as for others.
§ LORD BROOKE OF CUMNOR
I hope your Lordships will forgive me expressing my personal pleasure at being present at to-day's proceedings. I have sometimes wondered whether I would live to see implemented by Parliament the excellent recommendations of this Committee, which reported in 1965, and which I had set up nine long years ago. I have made many mistakes in my life, no doubt, but I do not think I could have made a better selection of a Chairman for the Committee on Jury Service than the noble and learned Lord, Lord Morris of Borth-y-Gest. All my life I shall be grateful to him for undertaking this public service.
I want to add one word from a source which is rather different. I should like to be excused for not having been here at the commencement, but I am not going to raise any controversial issues. I am merely going to say that those of us who were concerned with these problems in another place, and some of us who appeared before this Committee and expressed our views, are extremely grateful to the Government for having introduced this measure. There are of course points which have been raised now which are of a controversial nature in a certain sense, but by and large I think that the recommendations made by that excellent Committee, under the excellent chairmanship of the noble Lord, were entitled long ago, if I may say so with respect, to have their views expressed in the manner they are now expressed in the Amendment before the House. I should like to add my commendation to those already expressed. That applies not only to this Government but to previous Governments.
§ 7.40 p.m.
§ LORD DONALDSON OF KINGSBRIDGE
Could I ask one question on the word "excusable" in Part 1591 III of the new Schedule? I can see that the noble and learned Lord, for example, is ineligible from his position, but it seems to me that as a Peer entitled to sit and vote in the House of Lords, until next October when both he and I will go over the age limit, I am excusable. If I want to serve on a jury, which as a matter of fact I do because I never have, what do I have to do? Do I have to sit tight and hope to be asked and then not disclose the fact that I am a Peer? What is the procedure under "excusable"?
§ THE LORD CHANCELLOR
I am afraid that they know from the jury list that the noble Lord is a Peer. Perhaps I should have said that if the noble Lord wants to serve on a jury and gets leave of absence, the Schedule will allow him for the first time in English history to serve on a common jury. That is what he must do if he wants to serve on a jury before he becomes 65 on October 9 next.
§ BARONESS BIRK
Could I ask a question partly relating to that? The noble and learned Lord, Lord Morris of Borth-y-Gest, talked in his extremely interesting speech on this Amendment about changing the Act and an antiquated and outdated system. He also mentioned "excusable if good cause is shown". It seems to me that to-day, when we are talking about people serving on a jury, while we consider that it is a duty for people to do so, it is also a very important and heavy responsibility. I am rather worried that it should still be considered mandatory that people should serve on a jury, and also be liable to a fine if they evade service. I wonder if it is possible for the noble and learned Lord the Lord Chancellor to enlarge a bit on everyone being excusable if good cause is shown. I would have thought that it would have been better, particularly as the people to be chosen will be from a wider category, that they could be chosen completely voluntarily rather than having to be excused if liable to be called on a jury. The noble and learned Lord said that his Committee was not considering the merits of the jury system and that there are various views on it, but one thing I would have thought important to-day is that people 1592 should not only be eligible but also be willing to serve on a jury.
§ THE LORD CHANCELLOR
I am not sure that I can answer that offhand. Perhaps my noble friend Lord Colville of Culross will be able to do so when we formally propose the Schedule attached to this Amendment. It is true that jury service is a heavy responsibility. My experience is that if anyone had asked me to be a juror at any time of my adult life I think I would have run a mile. Fortunately I have always been ineligible for one reason or another. I am only too glad to think that I am ineligible. Of course, "excusable for good cause" is allowed under Section 34 of the Courts Act, which will continue to apply if this Amendment is passed.
May I come back to the beginning again. Having thanked the noble and learned Lord once more for his lucid and characteristically courteous speech, which was of great assistance to the Committee, I should like to say that obviously the question whether it is 18 or 21 is capable of being argued both ways, and it has been argued both ways. Our experience in discussing the matter among ourselves was that probably 21, for the reasons given broadly by the noble and learned Lord, represents the highest common factor of approval. But I cannot pretend that there is any magic in 21 any more than there is any magic in 18. It is a question of judgment and degree. I would agree with the noble Baroness, Lady Wootton of Abinger, that in some ways the administrative task would be rendered easier if we had only one age for voting and one age for juries.
Coming back to the administrative point, which was the question raised in substance by the noble and learned Lord, Lord Gardiner, I think we have to face the fact that this is going to complicate administration quite a lot, whatever we do. Under the old system, as the noble and learned Lord, Lord Morris of Borth-y-Gest, reminded us, the householder had to fill in his own form and, as very few houses were so low in rateable value as to come below the qualification, virtually every householder in the country was a juryman by the gradual development of property values. The result was that the present system was very much more 1593 simple in many ways than the system we are now introducing.
What we are now introducing is a proposition whereby about 30 million voters will become eligible for jury service unless they are under 21, or over 65, or entitled to some other form of ineligibility, disqualification or excusal. This is a very much more difficult plan to administer. It is quite true, as the noble and learned Lord said, that there are quite powerful arguments on both sides of this question as to which method of summoning you are going to adopt. My office, which in fact I am sorry to say will be responsible for summoning them, very much prefers the method proposed in the Amendment, and very largely I think that is why it is being done.
There are objections on the other side, but I think that the noble and learned Lord will reflect, after he has read Hansard, that most of his objections are applicable whichever method you choose. It is perfectly true that a great number of people do not register now for the election roll. I am afraid that will go on. If they do not register for the election roll, then, probably, they will not get votes and will not serve on juries; and there is a minority of persons who would probably prefer it that way. That would arise whichever way we ran the system. Then there are a number of people who refuse to state their age, but they will not have to state their age under the system proposed. What has to happen under the system proposed is that householders will state whether they are somewhere between 21 and 65.
The noble and learned Lord referred to students. Of course students will have to state their age, anyhow, to decide whether or not they have a vote; otherwise, they will not get one. They have to be marked as " Over 18 ". They may be a very tiny minority which does not at all mind saying they are " Over 18 ", but which is rather coy about saying they are " Under 21 ". I do not know, but I think they will be a relatively small minority. The broad point is that the householder will have to state whether inhabitants of his household are between the ages of 21 and 65, and there will be a separate box in the form to enable him to do so. Sixty-five is conveniently placed, at any rate for males, because it 1594 will probably be known whether or not they are getting an old age pension, or are entitled to one. The householder will not need to state their age, nor will they have to state their own. If they are unwilling to state their age to their own householder, they will probably—at any rate, some of them—be unwilling to state their age to the Lord Chancellor's Office. Therefore, you would be no further on if you did it the other way round.
The reason why we ultimately came down in favour of the system proposed is that we will get a certain number of rather painful incidents every year if we have to send them a questionnaire. It will distress a number of very old people who get a questionnaire, if—as we should have to do—we had to create a summary offence if they failed to fill it in, or intentionally filled it in wrongly. I should certainly like to consider what the noble and learned Lord, Lord Morris, has said about sending a letter before sending a summons. I am told that my Office prefers the method I have announced, but I can tell the noble and learned Lord that we could do what he suggests under this Amendment without any further change, and that we will consider his proposal very seriously.
I was grateful to the noble Baroness, Lady Elles, who served the Conservative Party—and I think the public, too—very well in Fair Shares for the Fair Sex. I was never very convinced that Fair Shares for the Fair Sex really involved doing jury service. It always seemed to me to be a horribly rough experience for the fair sex to make them do it which is what we are proposing, but if that is what they want then that is what they have got. I certainly see no reason against it. I am not myself an enthusiast for serving, but if others queue up I am only too pleased. At any rate, we are very grateful to the noble Baroness, Lady Elles, for the work she has done, and I am delighted to know that she is supported by the women's organisations. I am also grateful to the noble Baroness, Lady Wootton of Abinger, for stating the case on the other side of the 18 to 21 controversy. I cannot get very excited about it myself; but, on the whole, I come down on the more conservative side, as I expect she would expect. I thank your Lordships very much for the friendly way in which this series of Amendments has been 1595 received, and I do not think there is anything more I want to say.
§ On Question, Amendment agreed to.
After Clause 23 insert the following new clause:
§ Electoral register as basis of juror selection
(" .—(1) In Schedule 4 to the Representation of the People Act 1949 (provisions which may be contained in regulations as to registration) the following paragraph shall be inserted after paragraph 2:—
2A. Provisions imposing on registration officers the duty of requiring persons to give information required for the purpose of the officer's duty under section (Electoral register as basis of juror selection) of the Criminal Justice Act 1972";
and in paragraph 12(1) of that Schedule (power to make breaches of regulations punishable on summary conviction), after the words "paragraph 2" there shall be inserted the words "or 2A".
(2) Every electoral registration officer under the said Act of 1949 shall as soon as practicable after the publication of any register of electors for his area deliver to such officer as the Lord Chancellor may designate such number of copies of the register as the Lord Chancellor's officer may require for the purpose of summoning jurors, and on each copy there shall he indicated those persons on the register whom the registration officer has ascertained to be, or to have been on a date also indicated on the copy, less than twenty-one or more than sixty-five years of age.")—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLOR
I think this Amendment No. 39C, could also be regarded as consequential. It affects payments for jury service. I beg to move.
After Clause 23 insert the following new clause:
§ Payments in respect of jury service
(" . In section 1 of the Juries Act 1949 (payments in respect of jury service), the following shall be substituted for subsection (1)—
(1) Subject to the provisions of this Act, a person who serves as a juror shall be entitled, in respect of his attendance at court for the purpose of performing jury service, to receive payments, at the prescribed rates and subject to any prescribed conditions, by way of allowance—
§ On Question, Amendment agreed to.
§ Clause 24 [Increase of maximum punishment for firearms offences]:
§ On Question, Whether Clause 24 shall stand part of the Bill?
§ LORD GARDINER
This clause is the first of the miscellaneous ones and therefore may provide a convenient opportunity, on the Question, Whether the clause shall stand part?, to ask merely one question, which is whether the Government have any plans for at any time providing that complaints against the police are not decided simply by policemen. We shall or may, I suppose, even next Session, have to consider the Report of the Criminal Law Revision Committee. For many of us, the basic question really is: what ought to happen in a police station when somebody goes there at the request of the police? A great deal of course depends, and depends in the public's mind, on their confidence in the police, which has, I am afraid, deteriorated of recent years. Of course, I am not alone in thinking (indeed, there are a great many who think) that this confidence will never really be restored so long as complaints against the police are dealt with solely by policemen. I apologise for not having given the noble Viscount notice of this question, and it may be that he cannot therefore answer it, but if he knows what the Government's intentions are some of us will be very glad to be told.
VISCOUNT COLVILLE OF CULROSS
The noble and learned Lord has said that he had not given me notice. The result is that I am not equipped with an answer to him. I accept what the noble and learned Lord says about the anxiety on this point, but exactly what stage the consideration of this matter has reached at the moment I simply cannot tell him. It is something of which we are well aware, and I know that we are looking into it.
§ Clause 24 agreed to.
§ Clause 25 agreed to.
§ 7.53 p.m.
LORD STOW HILL moved Amendment No. 40:
After Clause 25 insert the following new clause:
§ Fines for use or occupation of certain premises
. In sections 16(6), 22(4) and 27(1) of the Housing Act 1957 (which deal with penalties for offences in respect of unfit premises, and premises subject to a demolition order and closing order) there shall be substituted for the words "twenty pounds" the words "two hundred pounds" and for the words "five pounds" the words "fifty pounds" ".
§ The noble Lord said: I beg to move the new clause which we suggest should be inserted after Clause 25. May I briefly indicate what its object is? The Housing Act 1957 is a consolidation Act. It puts together a whole series of sections which include, among other things, the provisions relating to the closing of premises which are unfit for human habitation. The process can include the making of a closing order; it can include the giving by the owner of the premises of an undertaking that he will carry out certain repairs to make it habitable; it can include the making of a demolition order; and there is also provision for the making of a clearance order.
§ The sections which deal with those various methods for securing that premises which are unfit for human habitation are not used for that purpose are contained in the various sections which are mentioned in the proposed new clause—Sections 16, 22, 27, 45 and 73. Those sections in the Housing Act 1957 also provide for penalties which can be exacted from the owner of the premises if he fails to comply with the orders or the undertaking, as the case may be. The orders and the undertaking include a requirement that the premises which, in the assumed circumstances, are unfit for human habitation shall not be used for that purpose. The penalties which are referred to in the new clause are the penalties ordinarily, though not exclusively sought to be exacted from the owner in the event of his continuing to use those premises for various purposes notwithstanding that they are in that sense unfit. The obvious and immediate purpose which everybody who has concerned 1598 themselves with this topic has in mind is the purpose of letting them to persons who are ready to become lessees of them or tenants of them in exchange for a rent which, as matters have now turned out, enormously exceeds the amount of the penalty which can be imposed for that unlawful user.
§ The new clause proposes that the existing penalty of £20 should be increased tenfold to £200, and that the daily penalty of £5 which now can be imposed should equally be increased tenfold to £50. This is a Criminal Justice Bill, and I do not know whether it may occur to any of your Lordships that it could be open to question whether it is the right receptacle for a clause of this sort. I respectfully submit that it is. We have sought to insert it into Part II, which is headed, "Miscellaneous Provisions"; and Clause 24, which your Lordships have already agreed to, does precisely with regard to various offences therein described relating to firearms what we are seeking to do. If your Lordships would look at subsection (5), for example, it substitutes for the penalty of £20 the penalty of £50; and there are similar substitutions in other cases outlined in the clause.
§ When this Bill was being discussed in another place, the Government agreed in the course of that discussion, at the instance of certain of my honourable friends, to include Clause 26. Clause 26 does with regard to the offence of harassment of tenants with a view to getting them out of premises in order that those premises can be put to a more profitable use by the owner of them, what we are seeking to do: it also increases the penalties. So I hope the noble Viscount, Lord Colville, will agree that we are acting perfectly in accord with the general purpose of this Part of the Bill in seeking to insert this new clause.
§ Your Lordships may next ask: what is the case for it? The case for it is this. The existing penalties of £20 and £5 daily date back, in the case of the penalty of £20, to 1919. That was introduced by Section 32 of the 1919 Housing and Town Planning Act. The daily penalty of £5 was introduced in 1923 by Section 16 of the Housing Act 1923.
My honourable friend, Mr. Cunningham, in another place asked a question
which I think it would be in order for me to summarise, though not to repeat verbatim. His question was directed to this: when last the Department of the Secretary of State for the Environment reviewed the level of the penalty for breaches of a closing order as enacted in 1923, with a view to introducing legislation to raise it to a realistic level in present-day conditions. May I quote the answer given by the Minister, Mr. Graham Page? He said:
The level of this penalty of which the maximum is £20 arid an additional £5 for every day of contravention after conviction has not been specifically reviewed by the Department since its introduction.
I do not know whether that is to be taken literally as meaning that the Department and its predecessor Departments have not addressed their minds to the question as to whether these penalties are realistic in modern circumstances since 1919 and 1923 respectively; but that is what it looks like. I have been furnished with some information as to the increase in the scale of rents since that time. I am told (I cannot vouch for the figures) that between 1920 and 1970 the rents of local authority dwellings have increased by 682 per cent.; the rents for other unfurnished premises have increased by 461 per cent. The penalties have increased by no percentage. I submit that they are really in present day circumstances utterly unrealistic.
§ The proposal that your Lordships have before you emanates from the Islington Borough Council and the Islington Borough Council point out that there is really serious difficulty in preventing what is now a monstrous abuse. A closing order is made or a demolition order is made: the owner of the premises does not take the slightest notice of it; he goes on using the premises for letting purposes. He makes by so letting them a revenue which is wildly out of accord with any penalty that can be imposed on him. The court can impose £20 plus the daily penalty. He can draw in the way of rent by the use of the premises a rental which is many hundred times more than that.
§ The difficulty is that the staff of local authorities available for the purpose of checking in the case where closing orders and demolition orders have been made 1600 whether an offence has been committed by a continuance to use the premises for the purposes of letting, is too small to be able to conduct a really effective check as to whether there are offences being committed. In Islington, apparently, at the present time there are approximately 570 closing orders in force and they are being made at an annual rate of about 100. The number of contraventions reported has increased over the past seven years and if it were not for the fact that there were these staff shortages which make it impossible to carry out effective checks no doubt the number would greatly exceed those which have come to notice.
The Islington Borough Council cite a case in which, to use the language of the document they have put before me:
… a house recently was let at a quarterly rental of £205. Within three months of the original tenants having been rehoused by the council, magistrates imposed the maximum fine of £20.
Compare a quarterly rental of £205 with the penalty of £20 which was the maximum penalty that could be imposed! The Islington Borough Council is one borough council. The Association of London Boroughs in 1967 had to consider a letter from the London Borough of Hackney. I will not read that letter, but may I cite from what I think, if I correctly understand the document before me, is an extract from it? The extract reads:
Shortages of staff prevent closed premises from being kept under continual surveillance. A contravention may have existed for a long time before discovery. In one case a room was occupied for 14 months after a closing order had become effective during which time the gross income from the re-letting amounted to £285. Proceedings in respect of the contravention of the order resulted in the imposition of a penalty of £20.
The result of that was that the housing committee of the Association passed a resolution that the penalty should be increased.
I have in my hand also a letter from the Association of Municipal Corporations. It is signed on behalf of the Association of Municipal Corporations, and if I may I will quote shortly from it. The passage to which I should like to direct your Lordships' attention is as follows:
The Association in 1967 and 1968 expressed the view that these penalties should be
increased. I am therefore confident they would support your Amendment. I have written to the Department in the hope that the Government will give sympathetic consideration to this matter. I feel that the reasons for the Amendment are self-evident. However, I understand the problem is particularly acute in London, Whereas it is relatively easy to deal with the situation where the whole of the property is subject to a closing order, there are an increasing number of cases where only part of the property is closed. In these circumstances it is difficult to prevent the continued use of that part of it as a dwelling and the only effective remedy is recourse to the courts and the sanction of a substantial penalty.
The whole problem has been thrown greatly into relief in recent times by the enormous increase in the values of real property; the enormous scaling up of rents. It is now well worth the while of an unscruplous owner of premises to snap his fingers at what is really in modern terms a rather derisory penalty. It is well worth his while to undergo a conviction even if he has to pay the daily penalty as well as a maximum penalty of £20, if by committing an offence he can draw revenue—by letting those premises which are subject to a closing order or a demolition order—many times in excess of the maximum penalty, including the daily penalty, which could be imposed on him.
§ The problem is accentuated by the fact that there are so many people who want premises. I think experience shows that a number of them, hoping that they will be rehoused by the local authority, are only too ready to go into unsuitable premises, underground, damp, wholly unfit for human habitation, hoping that by so doing at long last they may be rehoused by the local authority. That is the experience that is being met. One is dealing with a section of population which is among the most unscrupulous possible. They batten on the fact that accommodation is limited and expensive, and that people must have somewhere to live under a roof. They take advantage of other people's misfortune to make grossly inordinate revenues for themselves. I submit that that is conduct with which no Member of the Committee could have the least possible sympathy. That is the case for this Amendment. I submit that it comes plumb within the purposes of that part of the Bill, to which I have referred, which has already been adapted for the purpose of increasing penalties 1602 in appropriate cases. That is the case I seek to deploy on its behalf. I beg to move the new clause.
§ 8.10 p.m.
VISCOUNT COLVILLE OF CULROSS
The noble and learned Lord, Lord Stow Hill, has made a very powerful speech. On the other hand he himself will recall that when he was Home Secretary there was such a thing as departmental legislation. He will remember that the Home Office had a certain jurisdiction and areas where it dealt with matters, and that there were many other matters with which it did not deal. I am bound to say that in a moment there is to be an Amendment moved by my noble friend Lord Derwent which comes within the jurisdiction of the Home Office and which, unless they are violently against it, I shall advise the Committee to accept. It is Home Office matter and one entirely within our knowledge. It is a matter which has been discussed in your Lordships' House on many occasions and one which we think could with advantage be put into the Bill.
The noble and learned Lord, Lord Stow Hill, is here dealing with about five of a very large number of penalty clauses in the Housing Acts. Incidentally, I am obliged to the Town Clerk of Islington for ringing us up this afternoon; but, with respect, had he telephoned the day before yesterday it would have been slightly more helpful. However, suppose one accepts that there is a case for this Amendment, is this Bill the vehicle for it? It is true that in Clause 24 there are some increases in some penalties for firearms offences. That is a Home Office matter.
In Clause 26 there is an increase in the penalties for harassment. This is the direct fulfilment of an undertaking given by this Government to implement part of the Francis Committee Report at the earliest possible legislative opportunity. On the other hand the noble and learned Lord, Lord Stow Hill, has told us that the penalties to which he is referring have stood since 1919 and 1923. In practice I think he was right to concentrate on the occasion where a closing order has been made because in the case of the other provisions to which he referred the housing authorities have powers to enable them to demolish a property and 1603 recover the cost from the owner if the order they have made in relation to the property is not complied with.
With regard to closing orders, I see that there may be a point. But in 1967 the Government of which the noble and learned Lord was an ornament—I cannot remember whether he was at that time still Home Secretary; he had just finished his most distinguished tenure of that Office—the Government of which he had just recently been a Member had carried out a Whitehall-wide survey of penalties which resulted in an enormous number of increases of the most diverse character in a Schedule to the Criminal Justice Bill of that year. In 1969, if my memory serves me aright, the same Government introduced a fairly large Housing Bill. On either of those occasions, I submit, it would have been possible to deal with the point which the noble and learned Lord has now raised, and to do so in a context which would have been really apt.
In the first place, in 1967 it would have been part of the absolutely overall survey which took place then and which the noble and learned Lord, Lord Gardiner, no doubt, will remember. I expect that he contributed to it greatly. I remember him being very much involved in the Bill during its passage through your Lordships' House. In 1969 the Government would have been able to deal with it in the context of the overall position under the Housing Acts. Now here we are with a Criminal Justice Bill, and while the proposition put forward by the noble and learned Lord may be very powerful it is linked up with a very large number of other provisions in the Housing Acts which are the responsibility of the Department of the Environment.
I have, of course, discussed it with the Department, and the advice I am given is that it would be a mistake to deal with a certain small, selected number of the criminal parts of the Housing Acts in isolation from everything else. I can tell the noble and learned Lord that the Department of the Environment were aware—after having listened to the speech of the noble and learned Lord they will be even more aware—that this is something they ought to look at. They were already looking at it. But we say firmly to the Committee that despite the 1604 exceptions which may appear on the face of the Bill the proper way to do this is in the Housing Act context and not by putting yet another anomaly in this Criminal Justice Bill.
I am sorry to say this to the noble and learned Lord, but if one tries in a Bill to fulfil the sort of undertaking given about housing which the noble and learned Lord mentioned; if one tries to increase penalties in what one considers to be very serious offences like firearms offences in order to show how gravely Parliament considers these offences, I submit that this cannot be an opportunity to carry out, completely haphazardly, an overall sweep of the Statutes imposing criminal penalties and then if one happens to come on what appears to be a good case, to put it in the Bill as a new clause. I suggest that is not good government. This is not the proper context and, with the greatest regret, while offering the further consideration of the Department of the Environment and the possibility that they will deal with this when housing legislation comes up, I cannot recommend this new clause to the Committee.
§ LORD STOW HILL
I listened to that reply, I must confess, with rather less pleasure than I experience when I listen to the noble Viscount, Lord Colville of Culross, in general. I always think, if I may say so, that he prepares his arguments with the greatest prudence and delivers them with the greatest clarity. Perhaps the noble Viscount will be able to tell me that the Department of the Environment will, within a short time, introduce legislation covering the points which I have been putting to the Committee, and the other points which apparently they have in mind and which were mentioned by the noble Viscount. If he is telling me that will happen, that legislation is well on the way to being prepared and shortly will be introduced to Parliament, I should feel perfectly content.
I do not know whether the noble Viscount is able to give an affirmative answer to that. If he is not I must ask him: can he really maintain the ground he has chosen, saying that this is not strictly Home Office; that he accepts—as I think he does by implication—that there is a strong public requirement for this and that I have put my finger on 1605 something which is a grave public mischief and which enables a lot of thorough rascals to batten and prey upon unfortunate people and to make money which does not belong to them? Does he accept all that and simply say, "I am sorry but this is not a Home Office matter."? I may tell him that if any of my advisers had asked me to advance an argument of that sort when I was at the Home Office I should have made myself rather difficult with them. I do not think that is an adequate answer when one is faced with public need.
What is the public going to think when it hears that there is something which urgently requires treatment by way of legislation but that it so happens that the Home Office have a general supervision over this Bill and do not feel that this is really within their province? The Home Office have only to see the Minister in charge of the Department of the Environment and discuss it with him. Surely it cannot come to them as such a surprise that this sort of thing goes on? I think I am right in saying that the Association of London Boroughs and the Association of Municipal Corporations had resolutions to this effect, or in this general sense at any rate, way back in 1967.
§ LORD STOW HILL
This is not something which has burst on them out of a clear firmament. All that has happened is—
VISCOUNT COLVILLE OF CULROSS
I wonder whether the noble Lord would forgive me if I just said that they did, and the Government which preceded this one had a Housing Act in 1969. Had the matter been considered to be as urgent as all that, I think, with the greatest respect to the noble Lord, that the matter would have been dealt with by that Government then. To deal with it piecemeal now, I would suggest, would not be appropriate.
§ LORD STOW HILL
It is not very satisfactory for people who are affected by legislation which goes through Parliament to be told that they have to continue to put up with their grievances because they were not remedied in 1969. Three years have passed and a good deal has 1606 changed in those years. Prices have rocketed. We are now in a period of grave inflation and people could perhaps have afforded to be bled rather more easily in 1969 than in 1972. I am not for one second arguing that it should not have been done in 1969—I dare say it should have been; but that really is not much of a consolation to people who are being bled by these rascals.
I would hope that the noble Viscount would be able to tell me that if I asked the permission of the Committee to withdraw this Amendment he would go and discuss this matter with his right honourable friend in another place, the Secretary of State for the Environment, and that he will, after discussion with the Minister, come back on Report with something in the way of an Amendment which is designed to meet this mischief. There really cannot be much difficulty about that. This must have been a matter under consideration not for months but for years, for the reasons that I have given. It has become vastly more urgent now because of the rocketing of prices, rents, the prices of real property and the general pace of inflation. It is more urgent now by a long short than it was in 1969. I do not wish to use pejorative terms, but for the public to be "fobbed off" with the answer that a particular Department does not feel inclined to deal with this, I do not really think is very satisfactory.
I hope that the noble Viscount will be able to tell me—and I will accept his assurance at once without the least qualification—that if I ask the Committee's permission to withdraw this Amendment he will have a serious discussion with his right honourable friend and will do his level best to come back with something on Report, or at least to communicate with me indicating what his intentions are about this matter. I hope he does not think I am being cantankerous or unreasonable, but that he will agree with me that it is not satisfactory from the point of view of Parliament to leave the matter where it is. Of course, heaps of things ought to have been done earlier, but human judgment is subject to error. It is the easiest thing in the world to say, "Why did you not do this, that or the other?" Perhaps we ought to have done it. Lots of people should have put their hands to it; but it has become much 1607 more urgent now than it has ever been before, and I really do make an earnest plea to the noble Viscount. I do not want to flatter him or to say this in a way which would embarrass him, but he is a man of the greatest possible judgment and discernment and I am sure he must feel the difficulty in which I suggest he finds himself in having to advance the sort of argument that he has advanced in reply to this Amendment.
VISCOUNT COLVILLE OF CULROSS
I do not think that the noble Lord, Lord Stow Hill, has done me justice and I am not really very ashamed. I will of course do what he says. I will again—and I stress the word "again"—consider this question with the Department of the Environment. Why the noble Lord should suggest that I have not already seriously done so, I cannot imagine. I have told him what has happened; I have told him that I have consulted the Department of the Environment and that the advice I have been given is that it would be a mistake to single out five of the particular penalties which appear in the Housing Acts, and deal with them alone on the basis of increasing the penalties, without looking at all the others. I should have thought this was a perfectly respectable point of view, because, after all, the Housing Acts, although complicated, hang together. It is true that the 1957 Act was a consolidation Act and that there have been some Amendments added since then; but they are part of the consolidated code, and if I am told by the Department of the Environment that they think the penalties ought to be looked at over-all rather than piecemeal, it may very well be that what the Department has in mind is that there are cases other than the ones about which the noble Lord has so eloquently argued which should be looked at as well.
I cannot promise the noble Lord that legislation is being prepared to deal with this matter. What I do suggest to him is that there is a Housing Act context which is relevant and should not be dissociated from the particular items that he has selected. The noble Lord has made a powerful case; there is a new approach from the London Borough of Islington, and it may be that they are very hard done by, for the reasons given 1608 by the noble Lord. I will certainly go again to the Department of the Environment and I will tell the noble Lord what happens; but I am bound to say that I cannot promise that the result of this visit will be an Amendment from us on Report. I think that is as far as I can possibly go this evening, for the reasons I have explained. Having heard the noble Lord's speech, I will certainly do that; but I must do it without any commitment as to what might happen.
§ LORD STOW HILL
I cannot ask for a commitment, and I do not. I think the noble Viscount is endeavouring to be reasonable in his reply. He says he cannot understand why I feel a little upset about the seriousness of his discussions with his right honourable friend. I can give him the answer to that easily: I should have thought that if they had been serious discussions the answer would undoubtedly have been "Yes"—but the answer has not been "Yes". That is what caused me some slight hesitation. Perhaps that is an unjustifiable conclusion. I am a little disconcerted by the use of the words "may be" and "possibly". However, I do not want to prolong the controversy. The noble Viscount has gone as far as I can reasonably ask him to go, and I am sure that he will take this matter seriously and do his best. That being so, I should like to ask the Committee's leave to withdraw this Amendment.
§ Amendment, by leave, withdrawn.
§ 8.28 p.m.
LORD STOW HILL moved Amendment No. 41:
After Clause 25 insert the following new clause:
§ (" . In section 15 subsection (1) of the Civic Amenities Act 1967 (which provides penalties for offences in relation to tree preservation orders) for the words 'two hundred and fifty pounds' there shall be substituted the words 'five hundred pounds'.")
§ The noble Lord said: I move this Amendment with rather a sinking heart in view of the fate that was accorded the last effort I made. This is a very similar Amendment and I cannot pretend that it is as urgent as the previous one. However, I will make a case for it, if I may. It is susceptible, I suppose, to the same sort of answer that we received last time 1609 —I cannot remember whether or not it was a Home Office perquisite.
VISCOUNT COLVILLE OF CULROSS
Again this is very much the concern of the Department of the Environment.
§ LORD STOW HILL
I am much obliged. Let me just make a case for it anyhow, because I think it is a case which will attract general sympathy and I hope that the noble Viscount will be able to include it in the general indication which he promised to give me on the previous Amendment.
The situation is one which arises regarding tree preservation orders. I hope I do not speak in terms of sentiment when I ask your Lordships to think of the beauty and majesty of our great trees, some of which have stood for a thousand years, and of their nakedness and weakness in the presence of the profit motive of developers who can make an enormous amount of money in these days by not taking too much notice of what the law tells them to do. The position is that the 1962 Housing Act enabled tree preservation orders to be made under Section 62(1). Then, the Civil Amenities Act, which was passed in 1967, provided in Section 15(1) that if the offence against the tree preservation order consisted in lopping down or wilfully destroying a tree, or topping or lopping a tree in a manner which is likely to destroy it, the fine should be £250 or the value of the tree, whichever is the greater, instead of the fine of £50 which was imposed by the 1962 Act.
I seek a very modest amendment of that provision in the hope of preserving some of our very lovely trees. I seek to increase the figure from £250 to £500. I hold in my hand a letter sent to me by The Arboricultural Association which says that in their view the present £250 fine is seriously inadequate and is an insufficient deterrent on sites subject to development where the current high values of land are applicable. The letter says:The figure of £500 is, in our view, more appropriate.I am the more encouraged to cite the view of that Association when I look at its very distinguished membership. Its President is the noble Earl, Lord Jellicoe. Its Vice-Presidents are my noble friend Lord Kennet, the right honourable 1610 Duncan Sandys, and Mr. John Parker, M.P. Those are people whose judgment and concern in these matters should influence us if we are not already sensitive to the immense pleasure we derive from the wonderful foliage and trees that we enjoy and can look on in this country. A property developer, because the value of land has risen, is able to say, "I do not care two hoots for a tree preservation order; I can make a lot of money and pay £250 over and over again without even noticing it out of my profits", and he should be discouraged from doing so.
The noble Viscount has indicated that the answer he gave on a previous Amendment he would wish to give me on this Amendment. There is no point in my taking more of the Committee's time if that is his answer. But I think he probably would also be ready to include this proposal in the discussions which he has said he will be having with his right honourable friend. If the noble Viscount is able to indicate that by nodding his head I shall be quite content to accept his undertaking and not press him to go further, and I shall ask the Committee's permission to withdraw the Amendment.
§ VISCOUNT HANWORTH
I should like to support the noble Lord, Lord Stow Hill, on this Amendment. I think that it is well known that the fine simply does not deter contractors from removing trees which they should not remove. We can distinguish this Amendment from the previous one. In the first place it stands alone; I would have thought that there was no question of other offences of a similar nature being considered, or being interlocked with it. The second point is that I do not think that this is something which will be altered for a number of years unless the Government are going to have some convenient legislation in the near future. Perhaps the Minister can tell us whether some legislation in which this penalty could be increased is somewhere near the Statute Book. If it is not I feel that it is an insufficient reason to say that this provision may be inappropriate in this particular Bill. One knows that civil servants like to keep things tidy, but there are occasions where one should press forward where there is a clear need and there are no reasons against it other than administrative convenience. I feel that unless the Minister can produce a better reason against the 1611 Amendment, other than pure administrative convenience, it would be better to take this matter into the Division Lobby.
§ 8.35 p.m.
VISCOUNT COLVILLE OF CULROSS
I hope that the noble Viscount, Lord Hanworth, will not persist in that view, having listened to the way in which the noble Lord, Lord Stow Hill, moved the Amendment. Perhaps I was rather aggravating on the previous Amendment; that being so, the noble Lord, Lord Stow Hill's remarks seemed to me a model of moderation, which I very much appreciate. The noble Viscount, Lord Hanworth, though he is as keen as I am regarding the preservation of trees, is a little faulty in his recollection. The history of this matter is that the power to make a tree preservation order has existed for a long time. This legislation was consolidated in 1962. The Civic Amenities Act 1967, which has now been repealed and consolidated into the Town and Country Planning Act 1972, increased and varied the powers of local planning authorities to deal with those who offended against tree preservation orders. The previous Administration in 1969 introduced, a wide-ranging and profound review of the whole of the town and country planning legislation in the Act which was passed in that year.
The noble Viscount, Lord Hanworth, said that so far as he knew there was no cognate material which would go with this; but I would ask the noble Viscount to consider for a moment the whole question of listed buildings where we have an extraordinarily similar state of affairs, and where all the penalties and all the machinery for enforcement, listing and everything else, were completely overhauled in the 1969 Act. That has now been consolidated again in the 1972 Act. Therefore, once again we are in a field of amenity where I personally am very much at home, because I used to practise at the Bar in this field. I did so for a very long time. We are in the field of amenity which has a very large number of different aspects to it, all of which carry financial penalties.
Having said that about trees and listed buildings, I ask your Lordships to consider the question of penalties for failing to comply with enforcement in this matter. Somebody builds a house or 1612 carries out some other development which they ought not to have done without planning permission. An enforcement notice is served upon them, it is finally upheld and the matter goes to the magistrates' court. Does the noble Viscount, Lord Hanworth, really say that the tree situation is totally different from the case where somebody builds a bungalow for himself, refuses to pull it down when the Minister upholds the enforcement notice, and then goes before the court? If he does, then I suggest to the Committee that the noble Viscount is wrong. The whole of the area of the enforcement of town planning and amenity hangs together. In exactly the same way the penalties hang together, too. The noble Viscount shakes his head, but I must suggest that this is so. It was considered in 1969 and this matter goes a good deal wider than trees.
Having said that, I have enormous sympathy with the noble Viscount's point of view. But does the Committee recall that in Section 62 of the consolidation Act of this year we have a penalty for cutting down trees. If you cut down or dig up a tree the great pity is that you cannot put it back again. It is fatal. The same situation arises if you knock down an historic building: you cannot build it up again because you have probably broken it to such an extent that, if even you could collect all the materials, you could not put them back together, and even if you could do so the building would not be the same. Under the existing legislation the local planning authority can require the offender to plant another tree, but of course it takes a very long time for the tree to grow.
The noble Lord, Lord Stow Hill, said that he had had certain representations made to him. We have carried out consultations and we have taken the noble Lord's Amendment seriously—we do not lightly brush aside Amendments from the noble Lord, or treat them as if they had no effect at all. There is no indication that we have been able to obtain from local planning authorities, who are the people who have to enforce the legislation, that the penalties are inadequate. It is perfectly true that this is a matter of judgment. It is not primarily a matter for my judgment or for the judgment of the Home Office because this is a matter for the Department of the Environment.
1613 The noble Lord, Lord Stow Hill, asked if I would consider the matter again. The noble Lord has my sympathy here, and of course I will consider it again. But I cannot say with any degree of encouragement that I shall be able to come back to the House at the next stage and tell him that we can deal piecemeal and in isolation with just one of the penalties under the Town and Country Planning Acts. But I will consider this again in conjunction with the matter under the Housing Acts, and I will write to the noble Lord and tell him the result of the further consideration. I hope that this will be enough to satisfy him. I would be grateful for a copy of the letter to which he referred so that we may look at that as well. If the noble Lord is satisfied on that count he may be inclined to withdraw the Amendment, and I hope that the noble Viscount will not wish to divide on it after the explanation that I have given.
§ VISCOUNT HANWORTH
I am afraid I do feel that the Minister's statement on this Amendment is not satisfactory. It appeared to me that the only point he made was that bungalows and houses were on all fours with trees, and I maintain that they are a completely different thing altogether. If you knock down a tree or cut its roots the results are irreversible. In the case of a house or a bungalow that is put up where is should not have been, there is an obvious remedy.
VISCOUNT COLVILLE OF CULROSS
The noble Viscount has not done my argument justice. What about listed buildings? The same matters apply to listed buildings as to trees. If you pull down a fabulous house, Grade 1 on the list, you cannot put it up again.
§ VISCOUNT HANWORTH
I think there is a strong difference. You are very unlikely to be able to get away with pulling down a listed house. It is only too fatally easy to cut the roots of a tree or to cause it to die in one way or another. Nobody is going to get sufficiently "het-up" to take any action. I consider that these arguments are not on all fours. I am not convinced either by the argument that the local authority has not complained. This is an argument that one hears very often. Not 1614 everybody complains about everything all the time. This is Lord Stow Hill's Amendment, and as strongly as I feel and as unsatisfactory as I must say I think the Minister's reply is, I personally would not wish to divide the Committee unless the noble Lord, Lord Stow Hill, wishes to do so.
§ LORD STOW HILL
I am grateful for what my noble friend has said. I feel that on balance—and I say this with great respect to the noble Viscount—that the general interests would be best served if we asked him to fulfil the undertaking he kindly gave to consider this point further and discuss it, although he has perfectly fairly said that he does not wish to be encouraging in this matter. He is a persuasive Minister, and if he has persuaded me, as he has, I have confidence that he will not have great difficulty in persuading his colleagues. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 26 agreed to.
§ 8.42 p.m.
LORD DERWENT moved Amendment No. 42A:
After Clause 26 insert the following new clause:
§ Increase of penalties under Part IV of Shops Act, 1950
. In sections 59(1), 64 and 67(5) of the Shops Act 1950 (which impose penalties for certain offences of trading or carrying on business on Sunday) for the words 'five pounds' and 'two pounds' (wherever occurring) there shall be substituted the words '£50'; and for the words 'twenty pounds' (wherever occurring) there shall be substituted the words '£200'".
§ The noble Lord said: This Amendment seeks to alter the penalties under Part IV of the Shops Act 1950. Part IV is that Part of the Act which deals with Sunday trading. Some of your Lordships know what I feel about Part IV. I have been almost as rude about it as have the courts. The fact remains that it is the law of the land and has been since 1950; therefore it has to be enforced. To make it enforceable it must have adequate penalties for those who break the law. Your Lordships have already agreed to this Amendment in the Sunday Trading Bill which I introduced last Session. There was a good deal of opposition to certain aspects of the Bill, 1615 and your Lordships amended the Bill very heavily and considerably improved it.
§ One of the few matters which even the opponents of the Bill agreed with—even Her Majesty's Government agreed at that time—was that the penalties as they exist at present are absurd and should be altered. The penalties at present for breaking the Sunday trading laws—and, believe me, the wise boys have got very busy lately in trying to find ways around these laws—with one exception which I will mention, are £5 for the first offence as a maximum, and a maximum penalty of £20 for the second and every subsequent offence. Supposing you are an antique dealer and not allowed to trade on Sunday; supposing you sell Rolls-Royces from your showroom on Sunday which you are not allowed to do, what does a fine of £5 matter? You make that in ten minutes over one deal, and you might make dozens of deals. It is really no penalty at all. Exactly the same argument applies with the £20 penalty for the second and every subsequent offence, because it is really worth while trading on a Sunday when it is possible to make many times £20 very quickly. Your Lordships agreed that the penalties, which are over 20 years old (probably because they are over 20 years old) are quite inadequate.
§ The other penalty I would mention—I am not an expert on this matter—in Part IV is a penalty of £2 for the first offence in the case of Scottish barbers and hairdressers. I do not know why that is the maximum penalty for the first offence, because for the second offence the penalty is also £20. The Scottish Office advise me that the reasons for that now no longer exist and they wish the barbers of Scotland to come into line with the other traders. When your Lordships passed this Bill it was agreed that the new penalties should be £50 for the first offence and £200 for the second and every subsequent offence. These are maximum penalties. For technical reasons, it is the usual thing for a warning to be given the first time.
§ I would only add that at the present time the penalties are so absurd that in many cases the enforcing authorities are unwilling to prosecute; they do not think it worth it. To have a law enforced 1616 in that way is absurd. Finally, may I thank my noble friend Lord Colville of Culross for having my original drafting of Amendment No. 42 put into proper order. That is why the Amendment is now 42A. I beg to move.
VISCOUNT COLVILLE OF CULROSS
I hope that the noble and learned Lord, Lord Gardiner, will not consider that there is any political partiality in this if I advise the Committee that there is a certain amount of merit in this Amendment. In the first place, it is self-contained. So far as I know, it is connected with no other serious penalties of the law in any fashion which might, even by me, be thought to be relevant—pace the noble Viscount, Lord Hanworth. Secondly, your Lordships have already expressed your opinions upon it and expressed opinions in its favour. Therefore adding the third thing, which is that it is matter within the ambit of the Home Office, I would have no objection if the Committee were to accept it.
§ LORD GARDINER
I would certainly not accuse the Government of any political partiality in accepting this Amendment. All I would do is to say how much I regret that they never accept any Amendments from this side of the House, which is quite another matter. The Government have been extraordinarily unaccommodating throughout the Committee stage of this Bill. Hardly a single Amendment has been accepted so far. I hope that Wednesday may show a different attitude.
VISCOUNT COLVILLE OF CULROSS
Does the noble and learned Lord not recall an Amendment moved by the noble Baroness, Lady Wootton of Abinger, which I happily accepted? I gave him the draft.
§ LORD GARDINER
I did not say none at all. After all this is the third or fourth day we have had innumerable Amendments and practically none has been accepted. I am not blaming the Minister of State. We all know that the Home Office is the Home Office and that, in a sense, is disadvantageous to whichever House does not have the Minister in it. If the Minister is not there, there are marching 1617 orders which may have to be obeyed. I am not blaming the Minister of State. Considering that it was generally said that this is not a Party-political Bill the Government have so far been extraordinarily unaccommodating in accepting practically no Amendments.
§ On Question, Amendment agreed to.
§ Clauses 27 and 28 agreed to.
§ 8.51 p.m.
LORD STOW HILL moved Amendment No. 43:
After Clause 28 insert the following new clause:
§ Parole Board
.—(1) If a person who is undergoing a sentence of imprisonment of not more than three years duration makes an application in that behalf to the Parole Board, the Parole Board may make a recommendation to the Secretary of State that instead of undergoing the remainder of that sentence or such part of the remainder of that sentence as seems appropriate to the Parole Board, such person should comply with the terms of such a community service order as the court by or before which he was convicted would have been empowered to make against him under the provisions of section 14 of this Act, and the Secretary of State shall have power to give effect to such a recommendation, with or without such modification as he may think appropriate, and if any person with regard to whom such a recommendation is made and given effect as aforesaid, fails without reasonable cause to comply with the terms of such an order, he shall undergo the sentence of imprisonment imposed upon him, subject to such remission if any as the Secretary of State, after consulting the Parole Board, may determine.
(2) The Parole Board in making any such recommendation as aforesaid, shall include in such recommendation the terms of any such community service order as they think, appropriate in the case of that person.
§ The noble Lord said: I am quite sure that the noble Viscount will agree that this is as Home Office, Home Office, Home Office, as it could conceivably be.
§ LORD STOW HILL
I am glad that I have his assent at least to that. A meritorious feature of this Bill is Clause 14 which provides for the making of community service orders, the maximum number of hours for which can be up to 240. I do not know how it is intended that this system should operate, but I suppose that so many hours would be worked in a day and therefore the total of 240 could extend over a fair period 1618 of time. I suppose it is envisaged that the individual who is subject to such an order would reside at his home and that he would perhaps do his ordinary work plus so many hours towards the 240, or whatever the number might be under the community service order. I would have thought that that was an admirable scheme and I would wholeheartedly support it. It is designed to do those things which we all think are extremely important; to prevent families being broken up, to prevent the prisons being overcrowded and to give someone who has transgressed against the law in a sense which he may regret, but who has some good in him, a chance to pull himself together before he comes to real harm. That is admirable.
I should like to tell the Committee what those who are associated with me in this proposal have in mind. They and I wonder whether it would be possible to go a little further in a practical sense and to move along the road towards the objectives which I have just described, which all noble Lords in this Committee, wherever they may sit, have deeply at heart. I envisage a man who has been sent to prison for a term of not longer than three years. I shall assume that he is a man who has good in him, who is capable of being re-established in society, who is far from being anything like a sworn enemy of society, who has character and who, if given the requisite opportunity, could pull himself up.
Like the noble Viscount, I have spent many hours in many prisons. I am sure that he and many other noble Lords with the same experience feel that the bad effect of prison is that it loosens a man's will. Decisions are made for him. He is terribly humiliated. He drifts further and further away from being able to get a grip on himself and to say, "Yes, I will do this," or "No, I will not do this." He slides into a position in which he is progressively less suited to be re-integrated into society. Every noble Lord who has had experience of prisons will agree that that is the effect. I know there is no substitute for prison, although we all support the endeavour in this Bill to try to find some other forms of punishment, notable among them being the community service order.
We have the Parole Board and the Amendment seeks to enable the Board 1619 to make a recommendation with regard to a prisoner who is of that sort, and who has been sentenced to a term of imprisonment not in excess of three years. The proposal is that he should be allowed to serve part of his term not as a prisoner in prison, but working under a community service order. The objective would probably commend itself to the noble Viscount. He would probably agree that there is feasibility and that it would conduce to the sort of objectives I have described in keeping a prisoner's will solid, so that he could build up when he came out of prison.
I take the case of a prisoner who is earning his ordinary remission of one-third of his sentence for good conduct. He is well behaved and co-operative and would accordingly, in all probability unless something goes wrong, earn his one-third good conduct remission. But he is of the type who might be considered by the Parole Board to be suitable for the extra one third period of parole. The Parole Board might take the view either that he should have the whole extra year on parole, or, if they are not quite so confident as to go that length, they might be disposed to say that when he has done his first year they will give him a chance of doing community service. That is to say, at some time during the first year or the second year—probably, it would not arise in the third year—instead of being a prisoner he would go back to his home, rejoin his wife, be re-united with his children, relatives and friends, go back to work at his job, but should set aside a certain portion of each week to work under the terms of a community service order.
The noble Viscount has been kind enough to discuss this with me and advise me and I am conscious of the great burden that there is now upon the Parole Board. Every noble Lord feels that we all as a nation owe a great debt of gratitude to the noble Lord, Lord Hunt, and his colleagues for the admirable work that they are doing in the general endeavour that society is making to achieve the objectives which I ventured to describe earlier in my speech. We have framed this new clause in the hope that by making this suggestion we are not unduly burdening the Parole Board. I would go so far as to say that this work 1620 is so important and that Lord Hunt and his colleagues are doing so much good, that society should endeavour to make available more staff and facilities if they are needed because the reward in terms of human advantage would be so overwhelming. With the present staff, I hope that it would not place an unreasonable burden upon the Parole Board if, when they have before them a prisoner who seeks the year's parole, they could also ask themselves whether they should, in addition to acceding to his application or as an alternative to his application, resort to this new remedy under the new clause, and recommend to the Secretary of State that this prisoner should, either at the end of the period of imprisonment which they think he ought to serve, or in lieu of a period of imprisonment, or however they frame it, and subject to whatever conditions within the scope of Section 14 they feel appropriate, undergo a community service order.
That is the proposal. If it means—and I hope it does not mean—putting an intolerable extra burden upon the noble Lord, Lord Hunt, and his colleagues, I do not think we should want to put it forward. We have thought about it very carefully and we believe that it probably should not do so. We would hope that the noble Viscount would agree in principle that, even if it does somewhat enlarge the burden on the Parole Board, it is highly desirable that, if possible, extra facilities in the way of staff, and whatever is necessary, should be made available to the Board because it is so important that they should achieve their obiective. That is the proposal. But of course that proposal cannot stand without more. One has to take into account the situation in the event of the prisoner's showing himself unworthy of the trust which is reposed in him and failing to comply with any order that the Secretary of State may think it appropriate to make on receiving the Parole Board's recommendation. Well, that is not difficult to deal with. If the prisoner fails to comply with the terms of the order, then the new clause provides that he shallundergo the sentence of imprisonment imposed upon him, subject to such remission if any as the Secretary of State, after consulting the Parole Board, may determine.Then the next subsection provides that the Parole Board are to include in any 1621 recommendation they make any conditions or any qualifications which they think appropriate to embody in it.
That is the proposal, but unfortunately I am afraid that I personally have not discussed this matter with the noble Lord, Lord Hunt, who I think is abroad at the moment. But he was so very kind as to write a letter to my noble friend Lord Donaldson of Kingsbridge, in which he expressed views which (I think I correctly construe his words) I am authorised, with my noble friend's assent, to read to the Committee. Lord Hunt uses the words, "You may certainly mention that if you wish". The letter states:I have not had a chance to discuss your proposal with my colleagues, but I thought it might be helpful to give you my personal, off-the-cuff views about it. You may certainly mention that if you wish. In practical terms it should certainly be possible for the Board under present arrangements to consider the suitability of prisoners who are eligible for parole and whose cases are referred to the Board to undertake community service work during the period of parole licence. You are well familiar with the system of referring such cases to the Board but I should remind you that a considerable number of cases which are not recommended by local review committees do not reach the Board. It would clearly not be practicable for the Board to consider applications of any prisoners regardless of the length of sentence they are serving to undertake community service.The new clause limits, of course, the period to three years service.Moreover, another clause in the current Bill would result in a considerable number of cases of parole-eligible prisoners being granted parole without their cases having been referred to the Board at all. In such cases it should presumably be feasible for local review committees to make the relevant recommendations. I have purposely not gone further than to speak about the practical aspects but I am very happy to add a personal view that it would not seem fair to have some applications for community service considered by one body and others by another body.If I may respectfully say so, that last comment seems to me to be very valid, and it might be that we who propose this new clause should think again in order to try to embody in it some proposal which would meet the point that the noble Lord, Lord Hunt, makes in that last paragraph. We should be very willing to do so. Clauses such as this are not easy to draft. There are a whole number of points one has to foresee and consider. This is one of the points which comes straight from the mouth, 1622 after all, of the greatest expert we have among us on this human public problem.
I have sought to explain the general purpose of the new clause and how it would work. I think I have the noble Viscount's agreement that it would be useful. The big question is: Is it practicable? If it needs change, I, and I am sure those associated with me in this proposal, would certainly be only too glad to endeavour to incorporate any change which the noble Viscount thinks ought to be embodied in the new clause. But we have put it forward at least for consideration; and the noble Viscount always gives serious consideration to these human matters relating to human frailty and the endeavour which we commonly make to try to regain our citizens as friends and co-operators, instead of enemies of society. With that general objective I put this Amendment forward and ask the Committee to consider it.
§ 9.6 p.m.
VISCOUNT COLVILLE OF CULROSS
The noble and learned Lord, Lord Stow Hill, has done us a service in making this suggestion. If I am a little discouraging about it, it is not because I do not think that this is potentially a very promising idea. What I think the Committee would like to bear in mind—and this is something which I have stressed fairly earnestly before in answering, for instance, the noble Lords, Lords Wells-Pestell and Lord Hamilton of Dalzell—is that the community service orders are an experiment. We hope they will be a highly successful experiment. But one has also to bear in mind that, as envisaged in the Bill and in the experimental form that they there take, they are to be the alternative to a prison sentence altogether. This is the whole concept that underlies them. Not only are we using them to keep people out of prison, as a non-custodial treatment, but we are using them because we think that those concerned can do better if they do not go to prison at all, and that that is to their advantage and to the advantage of the community and everybody else.
That being so, unless this concept is wrong, there is a philosophical difficulty about combining community service with a prison sentence. Until we know how this is going to work, until we know 1623 whether this is really going to be an adequate substitute for a prison sentence, I do not think that any of us is in a position to say that community service following a prison sentence is as good as, or better than, the ordinary parole licence system which operates anyway. I do not think any Member of the Committee would be able to say one way or the other whether this is so. Therefore, I would suggest that this is a development of the system that we ought to await while we assess how the thing works. That means that it is something that we shall have to bear in mind, but over a rather longer term than between the Committee and the Report stages of this Bill, because we shall not have community service in operation yet.
The practical difficulties which arise on these Amendments really are substantial. The noble Lord, Lord Stow Hill, has spoken of the burden on the Parole Board. The Committee will see that in Clause 29 we are attempting to relieve that burden by allowing certain suitable and rather less difficult cases to be dealt with by the local review committees, which have adequately proved themselves. The problem of the Parole Board, if I may suggest this to the noble and learned Lord, Lord Stow Hill, is not one of staff; it is not even one of membership, although membership is a difficult problem and one which is of the greatest importance. It is a matter of uniformity of decision.
I think that were he here the noble Lord, Lord Hunt, would say that underlying Clause 29—and this is certainly the view of the Government—is not the suggestion that the Parole Board could not be manned and made big enough to deal with an even larger number of prisoners, or to experiment on new sorts of prisoners for parole. The difficulty would be that if we had more than the existing number of panels there would be the danger of getting out of step with each other, and if there is one subject, which I know even from my short experience of dealing with prisoners, that causes the maximum nausea among the prison population it is what they consider to be an unfair distinction between one case and another when parole is or is not given. I think there is a certain amount to be said for keeping the Parole Board of the highest 1624 possible calibre, as it is now, and small enough to be able to make sure that all its members are thinking along the same lines.
This Amendment refers to prisoners who are sentenced to a term of imprisonment for up to three years. In an average year there are something of the order of 35,000 such prisoners. Under the terms of this Amendment each and every one of them would have to be considered by the Parole Board at the proper stage of his prison sentence. Frankly, this is utterly and totally impossible. In the first place the numbers are absurd and simply could not be dealt with by the Parole Board, and there is an obvious limitation there. But even more important, if I may respectfully suggest it, is the way in which the system would work.
If one looks at a parole case, as I not infrequently do, one cannot fail to be impressed by the series of reports which have been prepared on the offender, both before he went to prison—that is the probation report and social inquiry report—and since he has been in prison. One of the most valuable sources of information which enables the local review committee and the Parole Board—and indeed, if it comes to that, myself, and my right honourable friend the Home Secretary as well—to decide whether a person is worthy of parole are the reports prepared on him in prison.
If somebody goes to prison for three months and is covered by this clause, in the first place he probably will not get to his final prison within the first month. Can the Parole Board or the local review committee really be expected to assess him for an immediate release on community service at the very moment he arrives? Even if that is considered to be an absurd case is it really going to be possible for them to deal with perhaps a slightly smaller number who have not been in prison long enough for the full reporting process to take place? It is this which is vital, I suggest to the Committee, before they can say whether or not the person is suitable for parole.
Indeed I rather suspect—and the noble and learned Lord, Lord Gardiner, may be able to remember it—that this is why a minimum period was included in the 1967 Act, before which parole was not even considered. It was during that 1625 period that the prison officers and the other people concerned—the medical officers, the probation, after-care officers and the prison welfare officers and the chaplains—could assess a person and see whether he was suitable to go up for parole, and so that the local review committee could examine the case.
The burden under this Amendment is such that the Parole Board and local review committee could not deal with it. The time scale is such that even if they had the numbers, they would not have the information. I appreciate that this is disappointing for the noble and learned Lord, Lord Stow Hill, but I think he will recognise the practical difficulties I have mentioned and will, I hope, be comforted by the thought that the principle of his argument is something which I do not in any way reject. I am not sure that I can say at this moment whether one would be right to combine community service with a parole or instead of a parole set of conditions. However, I see no reason why one should definitely say not at this stage. It is a practical and encouraging point to look at as the scheme develops and I assure the noble and learned Lord that we will do this.
We will assess the way in which the community service progresses to see whether this sort of combination is the way in which it can be used. If it is, then it will probably mean legislation. That is not certain but probable. I think that the conditions of licence of parole would probably not include the full rigours of community service orders with the implication that the person would be taken back to court rather than back to prison, as occurs now. If the noble and learned Lord will take my earnest assurance that we are interested in this, and would like to see how it would progress when we know more about the structure under Clause 14, perhaps he will not press the matter, but will take it as a positive contribution that I should look earnestly at what he has suggested and that I should thank him very much for bringing it to the attention of the Government.
§ LORD DONALDSON OF KINGSBRIDGE
Being conscious of the clock, I allowed the noble Viscount to reply first, so that I would duplicate as little as possible. He has already said more than I expected and I regarded his 1626 comments as broadly favourable. I suggest that the way in which the matter is put forward in the Amendment is by no means the only way of dealing with it. It is not my choice and I have discussed the subject at length with my noble and learned friend.
If the C.S.O. and day training centre perhaps equally, being parallel, were treated as alternative forms of prison, it would become an administrative problem whether a man went to an open or closed prison or, on the governor's recommendation after four or five months, was let out on a C.S.O. This would be a more practical way of dealing with the matter and it is the way that I would like to see it done. Every governor has a list of perhaps 30 people whom he would love to get rid of, so to speak, and whom he would guarantee. I appreciate that this might not be within the time scale of the Bill, but I suggest that it could be looked at from the point of view of an alternative.
The Parole Board members who retired after three years have issued a memorandum, which doubtless the noble Viscount has seen, in which they point out that the least satisfactory aspect of their work is the number of people in prison who ought not to be there. That I suggest would be a quick and neat way of getting some people out and I do not believe that it need necessarily be done through the Parole Board.
§ LORD STOW HILL
In view of the noble Viscount's reply, I should be most unreasonable if I were to ask your Lordships to divide on this matter. I am grateful to the Minister and it is obvious that he intends to consider this matter carefully. I have only one proposal to make, after which I will seek leave to withdraw the Amendment.
My proposal is that one could frame a clause, bearing in mind the difficulty of obtaining fresh legislation, in such a way as to make it come into operation on a day to be decided by the Secretary of State. That would give ample time in which to consider the kind of proposal which my noble friend Lord Donaldson of Kingsbridge has just made, and to weigh carefully the obviously serious administrative difficulties to which the noble Viscount referred. If the clause were drawn in sufficiently wide terms so 1627 as to comprehend anything which could be feasible, it could provide that it should not come into operation until a date to be decided upon by the Secretary of State—namely, a date when he has been thoroughly able to consider with the noble Viscount all the administrative aspects and the ways of going about it. So long as the clause were drafted in such a way, being sufficiently comprehensive within reason to include whatever ultimate scheme was decided upon, then without further legislation it could be brought into operation by the Secretary of State deciding the day when it should take effect. Having made that suggestion, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 29 agreed to.
VISCOUNT COLVILLE OF CULROSS
This might be an appropriate moment for us again to pause on this Bill, and I beg to move that this House do now resume.
§ Moved accordingly, and on Question, Motion agreed to.
§ House resumed.