Serious Crime Bill [HL]

Lord Elystan-Morgan Excerpts

Monday 16th June 2014 Lords Chamber

[Lord Elystan-Morgan (CB)]

My Lords, in dealing with the Second Reading of yet another miscellaneous provisions criminal Bill, there is a sneaking temptation to have a tour d’horizon of the contents of the Bill and, indeed, to repeat a point that I have sought to make probably half a dozen times over the past eight or nine years—that is, that the legislative fecundity of the Home Office for such Bills should in some way or another be curbed. It may be that the only humane way of doing that is to have a written constitution with a Bill of Rights and to see to it that the Home Office is limited to no more than one Bill of that nature per annum.

On this occasion, however, I want to take a totally different course and concentrate completely on one single matter in the Bill: Clause 62. As the House knows—it has already been referred to by noble and learned Lords and by the noble Baroness—that clause deals with two amendments to Section 1 of the Children and Young Persons Act 1933. The effects are limited. One is to see to it that that which may well have been implicit in the original wording of the measure is now made explicit—namely, that it should refer not only to physical but to non-physical consequences. The situation was somewhat complicated in 1981 when this House dealt with the matter of Sheppard. In relation to the situation of children, it held that Section 1 of the 1933 Act should not in any way deal with spiritual, educational, moral or emotional matters but only with physical ones. That decision, arrived at by this House, was a heavy gloss, which has now been undone by including psychological harm with physical harm. We will, no doubt, discuss whether the term “psychological harm” is wide enough to incorporate all the other, non-physical, matters at a later stage.

The other part of the amendment deals with the exclusion of Victorian verbiage which describes certain situations that are illustrative of child cruelty, and it is entirely proper to take that attitude. However, although these two amendments are entirely meritorious and proper, they fall very far short of what the aims of a progressive society should be, on the issue of child neglect, in the 21st century. As the House well knows, and as many people better qualified than me can testify, it is one of the most massive problems of the present day. Neglect leading to cruelty is often at least as serious as physical or sexual abuse of a child. In many ways, it may be more sinister as it is more difficult to identify and reveal. It is very broad in its possibilities and may range from failure to give a child the food and clothing it requires to the other extreme of failure to show a child the love and affection that one would wish every child to receive.

Many people are extremely well versed and have campaigned in this field. In particular, I note the contribution of the noble and learned Baroness, Lady Butler-Sloss, in this matter. Many come to the conclusion that as many as 10% of our children suffer some form of substantial neglect. We should look at this provision against that template. We are not ungrateful to the Government for their initiative, but it falls far short of what is necessary in the circumstances. I appreciate that this is Second Reading but, since I am challenging the Government’s fundamental approach, it is right to argue at this stage that a totally fresh approach should be taken. Why is this? The 1933 Act is 80 years old but its provisions are much older as they were taken, word for word, from Section 37 of the Poor Law Amendment Act 1868.

That Act was passed in very special circumstances, to deal with a sect called the Peculiar People. They were very genuine people who were very firm in their religious beliefs, to the effect that if a person—particularly a child—was ill, one should not for a moment think of a cure or of approaching a doctor, or giving medicine. Instead, one should resort to prayer. If the child died, so be it: it was the act of God. To go contrary to this was seen as utterly blasphemous. As a result, many persons charged with manslaughter on the death of a child were found not guilty because of their innate—but utterly unreasonable—genuineness. It was for that purpose that that particular provision in Section 37 of the 1868 Act was passed. Much of that verbiage is still in Section 1(1) and (2) of the 1933 Act.

I am not arguing that just because there is Victorian verbiage one should get rid of it. I have lived as a lawyer for many years with the Offences against the Person Act 1861. I suspect that many generations of lawyers still to come will do exactly the same. It is a splendid Act and most of its provisions work really well. In this case, however, we are dealing with the cobwebs of a Victorian attitude which is utterly irrelevant and inappropriate for the problems that we seek to beat in relation to this matter. For example, even if the amendment is carried—and I have no doubt that it will be—the whole concept of child neglect and cruelty will turn on the question of whether the person who is perpetrating such conduct is doing it wilfully. To many lay people, magistrates, police officers and jurors, “wilful” means something that a person does deliberately. Conceptually, however, “neglect” is essentially a matter of omission. Lawyers understand the difference, but intelligent lay people do not find it so easy to make the distinction.

In addition, there are five ways in which the offence can be committed. First, we have a wide range of offences of assault, including common assault and sexual assault. Nothing needs to be said about that. Secondly, we have “ill treatment”, but apparently nowhere is it defined in the law, in statute or elsewhere, comprehensively. Thirdly, we have neglect, but that begs the whole question of the difficulties that we are talking about. Fourthly, there is abandonment. I suggest that that part of the law has fallen into desuetude: the last prosecution was in 1957. Fifthly, there is exposure. That has fallen into even greater desuetude: the last prosecution was in 1910.

These matters have to be tackled. I salute the efforts of Action for Children and other similar progressive bodies in this regard. A Bill has been drafted which concentrates essentially on defining the offence as maltreatment—which is an excellent expression—but it also refers to maltreatment that either causes or raises the danger of causing significant harm. What is the beauty of that? Significant harm is the essential core and kernel of harming a child under the Children Act 1989. Therefore the suggestion made by progressive societies, and the measure introduced in the House of Commons a year ago by Mr Mark Williams, the MP for Ceredigion, who is also my MP, would mean that for the first time the civil law and the criminal law would look at child cruelty in exactly the same way and according to the same definitions. Social workers and police officers would read from the same brief.

There is much more that one could deliberate on, but this is not the time to do it; we will have a full opportunity for that in the coming months. Knowing that the Minister is resilient to such appeals, I urge him to consider carefully that this is a glorious opportunity to erase completely a great deal of cobwebbed complication and that we can start afresh. Let us define this all-important aspect of the criminal law in such a way that it best serves the needs of our children. I give the Minister notice that we shall plumb the illimitable depths of his good will in this matter, and I very much trust that we shall not find him wanting.