Criminal Justice Bill

HL Deb 21 July 1982 vol 433 cc871-908

4.28 p.m.

Consideration on Report resumed.

Lord Wigoder moved Amendment No. 46: After Clause 28, insert the following new clause:

("Activation of suspended sentence

. In section 23(1) of the Powers of Criminal Courts Act 1973, the words "which have arisen since the suspended sentence was passed" shall be omitted.").

The noble Lord said: My Lords, I beg to move this amendment, and I do so in the knowledge that it is not a self-explanatory amendment. It is the first time that it has been moved and it is necessary very briefly to elucidate the thinking behind it. It deals with suspended sentences; and suspended sentences, it has become clear in recent years, have become a popular addition to the armoury of the sentencer and will become increasingly popular when the partly-effective suspended sentence comes into force. With their increasing use as a form of sentence, three particuar drawbacks have emerged and this amendment is concerned with an attempt to deal with them.

The first problem is that many magistrate's courts and the Crown Courts are tempted on occasion to regard the suspended sentence as something which is just a little bit more effective than a probation order or a conditional discharge. It means there is something hanging over the head of the defendant if he commits another offence: yet he is allowed to leave the court and go free. There is a temptation to pass suspended sentences when, if that form of sentence did not exist as a penalty at all, it would never occur to the court to pass a prison sentence. That is the first problem that arises.

The second problem arises because there are courts which take the view—and, in many ways, it is a very sensible view—that a person on whom a suspended sentence has been passed will leave the court telling himself and his family and friends that he has got away with it. In those circumstances, there is a temptation upon courts to pass a suspended sentence of a very much longer period than they would have passed for an immediate prison sentence, in order to try to compensate for that factor.

The third problem that arises is that there are a number of cases in which a suspended sentence is passed, when the court is not fully aware of circumstances which subsequently come to light. They may be circumstances about a defendant's background, about his home life, about his previous convictions and, very often, about his mental condition, when the courts pass a suspended sentence but would never have thought of doing so if they had been fully informed at that time.

These problems arise, and it is very difficult to see how they can be avoided at the moment when the court is imposing the suspended sentence. It is true that, if the courts follow the procedures correctly, and only impose a suspended sentence having first decided that a prison sentence is necessary and then suspend the equivalent sentence, the first two sets of problems would not arise. But that is being a little unrealistic, having regard to the commonsense of sentencing as it is seen by many magistrates, by many Crown Court judges and, particularly, by many temporary or acting recorders or circuit judges who may not have very much experience of criminal sentencing.

The other aspect, where the facts are simply not available at the time and the court passes a suspended sentence which it would not otherwise have done, clearly cannot be dealt with in any way except, I suppose, by asking for an even more comprehensive inquiry at the point of time when the suspended sentence is passed. One then gets the situation in which for all these various categories suspended sentences are passed, which either ought not to be passed or are passed for terms which are longer than they should be. It is no good saying that the defendant has a right of appeal in those circumstances. It is true that he has, but no defendant that I have ever heard of has gone to the Court of Appeal and complained that a suspended sentence has been wrongly passed upon him and is too harsh, the reason being that, inevitably, the person with the suspended sentence is not troubled about an appeal, because, as I said, he thinks that he has got away with it.

What then happens is this. In some of those cases the defendant commits a further offence. He is then sent to prison for the further offence—quite rightly—but he is also sent to prison for the original sentence for which the suspended sentence was imposed. He is ordered to serve the full term of the suspended sentence and it is made, as it more or less has to be made by law, consecutive to his new sentence. The position therefore arises that, because of the fact that suspended sentences are activated in this way, there are people who are in prison for a longer period than they should be, because of the way in which the system works.

All that this amendment seeks to do is to give the court that is trying to decide whether the suspended sentence should be activated rather more discretion than at present it has. I apologise if this sounds for a moment like a lecture on the law; it is not meant to be. The powers of the activating court, as many of your Lordships will know, are covered by Section 23 of the Powers of Criminal Courts Acts 1973. If the court has to deal with someone who has committed an offence while a suspended sentence is in force, the court has four choices. First, it can order him to serve the suspended sentence in full, consecutive to the other sentence that has now been passed; secondly, it can substitute a lesser sentence, a suspended sentence; thirdly, it can further suspend the suspended sentence and, fourthly, it can take no action at all in the suspended sentence.

But the rub lies in the concluding words of subsection (1) of that section of the Act, which state that the court shall make an order that the suspended sentence shall take effect with the original term unaltered in full, consecutively, unless the court is of opinion that it would be unjust to do so in view of all the circumstances which have arisen since the suspended sentence was passed, including the facts of the subsequent offence. All that this amendment seeks to do is to remove the words relating to the circumstances which have arisen since the suspended sentence was passed".

So the court, in deciding whether to activate a suspended sentence, can look at all the surrounding circumstances, can look at the whole of the defendant's previous history, can look, for example, at information that has come to light subsequently about his previous medical history and matters of that nature. If, having considered all that information, it does not find any special circumstances, then the law will be as it is at the moment, the court will make an order activating the suspended sentence and it is quite right that it should. But, on the other hand, there are cases where the court would want to take into account matters that arose before the suspended sentence was passed, is not allowed to do so under the present law and, as a result of activating suspended sentences, people are going to prison for rather longer than they should be. This is a matter which, I think, is of concern to us all. This small, modest amendment would increase the discretion of the courts in that limited way and enable them to see that justice is done, having regard to the whole of a defendant's previous history. My Lords, I beg to move.

4.37 p.m.

Lord Elystan-Morgan

My Lords, we on these Benches have very considerable support for this amendment and very great sympathy for the reasons underlying it, as those have been articulated by the noble Lord, Lord Wigoder. Inevitably, the passing and making of a suspended sentence involves some element of casuistry on the part of the sentencing court. The task which Parliament has placed upon the court is, indeed, a difficult one. The court, in the first instance, has to consider whether or not the offence that it is dealing with merits imprisonment. Then having decided that it does, and having decided upon the term of imprisonment, the very next second, in theory, that court has to constitute itself into a parole hoard and to ask itself "Is it necessary that that man, whom we have just sentenced to 9 months' imprisonment, should remain in custody a moment longer?" It is a difficult consideration and it is one that cannot be avoided in the context of suspended sentences, which form a very important part of the armoury of the courts.

When it comes to the question of the activation or not of a suspended sentence, in respect of which there has been a breach, again the situation is not free from casuistry, for the court is, of course, enjoined, according to the decision of the Court of Appeal Criminal Division in the case of Ithell in 1969, to consider, first, the offence that has given rise to the breach and what penalty is appropriate in respect of that, and only then, if the words of the Court of Appeal are to be taken strictly, to consider what it should do in relation to the suspended sentence. I apprehend that the noble Lord the Minister will say in reply that the amendment must be rejected, because it would be wholly wrong for the court that is dealing with the breach to constitute itself, in any way, into some type of Court of Appeal that would comment upon or adjudicate upon the earlier sentence. As a basic proposition of law, that must indeed be sound. But that is where theory and practice part company and go in different directions.

As one who spends most of his time in the criminal courts, my feeling is that in practice the courts inevitably look at the circumstances in which the earlier suspended sentence was passed. It seems to me that the Court of Appeal practically admitted that in 1971—in the case of Munday. May I quote the headnote to that report: Though it is not part of the function of a court considering the activation of a suspended sentence in any way to review its propriety, there are cases where justice cannot be done without fitting into the pattern of events leading to the further conviction the facts which led to the suspended sentence. To that extent, therefore, it may be necessary on the second occasion for the court to inform itself of the circumstances in which the suspended sentence was passed in order that proper assessment may be made of the overall position so as to determine the sentence which is to be passed and the grounds on which it is acting". In practice, therefore, it is difficult for even the most clear-minded judge or magistrate to avoid completely some proper consideration of the circumstances in which the first sentence was passed.

Sometimes it is necessary to go a little further, for quite often there will be the question, in relation to the second offence, of a whole spray of offences to be taken into consideration which cover the period in time when the first sentence was passed. Because the second court will not have all the documents before it, there may be great doubt as to whether or not some, if not all, of those were taken into consideration at the earlier instance. It seems to me that the strict wording of Section 23 as it now stands technically precludes the court from that consideration.

In short, therefore, it would seem that, in practice, as the Court of Appeal admitted as long ago as 1971, sentencers do pay limited but proper regard to the circumstances in which the earlier sentence was passed. That being the situation, is it not right and proper that we should now make an honest woman, as it were, of what has existed for so long? It is on that basis that we invite support for this amendment.

Baroness Macleod of Borve

My Lords, the noble Lord, Lord Wigoder, said—and this is to my certain knowledge, too—that if you impose a suspended sentence on one defendant and a fine on another, the man who is given a fine thinks that he is very hard done by, while the man who receives a suspended sentence thinks that he has got off. It is very important that if a person receives a suspended sentence he should realise that it will be activated—and that there will be no two ways about it—if he breaches his suspended sentence. Therefore, I should have thought that the judge who tries the second offence ought to have the opportunity to use his mitigating powers, if he so wishes, and to take into consideration the fact that there is a suspended sentence. It would be very unwise for any court to give the impression to a defendant that a suspended sentence is not going to be implemented. It would be seen to be undermining the opportunity to impose suspended sentences. Therefore I come down against this amendment, because it is very important that suspended sentences should be not only taken into consideration but always activated.

Lord Elton

My Lords, the noble Lord, Lord Wigoder, has raised a matter of considerable significance. I am grateful to him for the opportunity he has provided by his amendment for the issue to be debated. The Act empowers a court which passes a sentence of imprisonment of not more than two years to order that the sentence shall not take effect unless during a period of not less than one year or more than two years the offender commits a further imprisonable offence.

This form of sentence was introduced originally in the Criminal Justice Act 1967 in recognition of the fact that there are many cases where the nature of the offence itself demands a sentence of imprisonment, but where the circumstances surrounding it and the situation of the offender permit it to be suspended, that suspension being contingent upon the offender's future good conduct. Its acceptance as a means of dealing with offenders, many of whom will have committed quite serious crimes, depends upon its being clearly perceived by all concerned that if the offender re-offends and if his new offence is imprisonable, then the sentence for the first offence will be enforced. If that is seen to be in any way unlikely—if the Sword of Damocles is not seen to fall—then the device, as my noble friend Lady Macleod of Borve has said, will get no credence and offenders will not be deterred by it. That is why Section 23 of the Powers of Criminal Courts Act 1973 obliges the court to activate the suspended sentence on commission of a further imprisonable offence, unless it finds justifiable reasons for imposing a lesser period, or extending the operational period, or making no order.

In practice, the suspended sentence is used pretty frequently. About 36,000 suspended sentences are passed annually. In 1980, rather fewer than one-third of them—about 10,300 in all—were dealt with for committing further imprisonable offences. Of these, 7,450 were required to serve the full term of the suspended sentence. In 350 cases, a lesser term was ordered to be served. In 560 cases, the operational period was extended, and there were 1,930 cases where no order was made.

It was the intention of Parliament that the activation of the sentence should be the normal result of a breach. Those figures also show that in many cases the use of the sentence results in there being fewer people in custody than there might otherwise be. The sentence therefore is worth preserving.

Would it be strengthened by the amendment or weakened by it? If the effect of the amendment is to multiply the number of occasions when the original sentence is not put into effect upon an offender—if it means that the Sword of Damocles falls rather less often—I fear that it may be weakened. But I have another doubt about what the noble Lord proposes, and it is this. At present, only things arising after the imposition of a sentence can be prayed in aid of a decision not to implement it by the court sitting, as the noble Lord, Lord Elystan-Morgan, put it, more or less as a parole board. This is as it should be.

The noble Lord would have us consider also things arising before its imposition—things that were before the court when it considered the first offence. Those things should have been considered before, when the first sentence was passed. If they are things like medical reports, the medical condition of the offender will still be a matter for the court to inquire into on the second occasion.

Baroness Birk

My Lords, I wonder whether I might ask the Minister to consider the case which came the other day before my court of a man who was an alcoholic. I do not think it was realised that he was an alcoholic at the time he was given the suspended sentence. When he came before us he had taken, while drunk, a few cans of beer and run out of the pub. Everybody there knew him and he was caught immediately. This further offence would have meant activating a sentence of six months. The only way to get round it was to order another psychiatric report and a social inquiry. It seems to me to be quite wrong that one should have to get round it in that way. I wonder whether the noble Lord could take that into account in his reply.

Lord Elton

I shall try to do so, my Lords. I take it that what the noble Baroness is saying is that the second offence was so much less grave than the first offence. If it was sufficiently less grave to be a non-imprisonable offence, then the matter would not arise, because it is imprisonable offences with which we are concerned. I take it that whatever he did when he ran out of the pub was something for which he could be imprisoned.

Baroness Birk

Yes, it had to be, my Lords.

Lord Elton

My Lords, it is very difficult to argue particular cases off the cuff, when one has not actually seen them, but I will certainly try to digest what the noble Baroness has said. Perhaps I may return to what I was trying to say, which was that, in reverting to the original circumstances, it seems that what the noble Lord, Lord Wigoder, is doing, is producing a proposal for an element of resentencing between courts of equal status. That is a dubious principle. Doubts about the first sentence should be dealt with not at the same level, but on appeal. If, on the other hand, the doubts are only about the second instance, then it is the circumstances of the second instance which ought to be taken into consideration. I would like to know whether the noble Lord really wants to press this rather doubtful principle of resentencing into the Bill.

Lord Wigoder

My Lords, may I say to begin with that I entirely agree with the noble Baroness, Lady Macleod of Borve, and with the noble Lord the Minister that if a suspended sentence is passed, its effect depends very largely on the degree to which the defendant believes that it is going to be enforced in the event of him getting into further trouble. It is never possible to say to a defendant when one is imposing a suspended sentence, "If you commit a further imprionable offence, you will serve the suspended sentence". The most that anyone can say—and I believe this is the formula that most courts use—is, "You will amost inevitably have to serve the suspended sentence". The reason for that is, first, that the Act itself provides that there are other courses open in certain circumstances; secondly, that the courts have spent a little time trying to get around the situation anyway.

The noble Lord, Lord Elystan-Morgan, referred to the Munday case. Otherwise, I was going to trundle up at this stage the case of Boczkei in 1970, where the Court of Appeal decided that when the sentence is ordered to run consecutively, as it must do in the ordinary way, the court must ensure that the totality is not excessive. To this end, it may adjust either the suspended sentence or the sentence in the instant case. So in both the Munday and the Boczkei case, the Court of Appeal have spent some time in trying to get around the rigours of the existing law, and in effect in accepting the Act as it would read if this amendment were introduced into it.

I am not seeking to weaken the existing Act in any way but perhaps I may simply say this: if the amendment were written into the Act, the section would still read: and a court shall make the order "— that the suspended sentence shall take effect— unless the court is of the opinion that it would be unjust to do so in view of all the circumstances, including the facts of the subsequent offence". It would still be almost inevitable that the suspended sentence would be activated but not quite so inevitable as it is as at the moment.

I take the noble Lord's point that some facts which would be sought to be raised on the second occasion had in fact been raised and considered on the first occasion, but there were facts that were not considered on the first occasion. When I introduced this amendment, I mentioned in particular the case where evidence has come forward about the defendant's mental history before he committed the first offence which was not available when he was dealt with the first time and of which a subsequent court, very properly, would want to take account. To that extent, there must be an element of re-sentencing. There must be in the Munday decision an element of resentencing, as there must in the Boczkei decision. It is a very moderate, limited element, but it is worth recognising, and it is worth legitimising in the present Act. Does the noble Lord, Lord Elton, wish to intervene at this point?

Lord Elton

My Lords, the noble Lord, Lord Wigoder, is the judge of the stage at which I might most profitably do so. Sometimes the pigeons do not fly quite fast enough. What I wanted to say was simply this: two practical considerations have been put to me with which I am not entirely familiar. I have grave doubts about the general principle. Some of the things the noble Lord has said have been extremely reasonable and anyone from the shires will know what I mean when I say that when one gets into the Monday country one has to go very carefully! That being so, and without wishing to raise any hopes in the mind of the noble Lord other than those which might already repose there, it might be a good thing if I considered this a little further before Third Reading. I am giving no undertakings other than that I will do that in the light of the material which has been brought forward. This is a lengthy introduction, and, if the noble Lord has anything else he wishes me to consider, perhaps he could bring it into his peroration.

Lord Wigoder

My Lords, my peroration was going to be that I had no intention of dividing the House on this amendment. I believe completely in the power of persuasion. I was going to invite the noble Lord to reflect between now and Third Reading on whether anything had been put forward which might cause him to reconsider the matter. If he and I can reach some agreement, we will, no doubt, take the appropriate action. I am grateful to the noble Lord for what he said and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 1 [Offences excluded from section 29]:

4.56 p.m.

Lord Harris of Greenwich moved Amendment No. 46A:

Page 67, line 11, at end insert— ("7. Trafficking in Class A drugs.").

The noble Lord said: My Lords, this amendment, which stands in my name and that of the noble Baroness, Lady Trumpington, deals with Clause 29 of the Bill and it relates to the first schedule to the Bill. Broadly speaking, what we are discussing here are the emergency release arrangements which would be brought into operation if there were grave situations developing within the prisons. Many of us believe that, unless fairly early steps are taken to deal with the problem of the numbers in prisons, this particular section of the Act will be activated. In any event, it is obviously highly desirable for us to examine these provisions.

One provision which I am bound to say at the beginning I do not like, as I indicated at Committee stage, is the list of offences excluded from Section 29. They are listed on page 67 and include the offences of manslaughter, rape, kidnapping, assault of any description (the lack of qualification is an important one), riot and affray. What is provided for in this clause of the Bill is that, in the event of the Secretary of State deciding to bring this particular section of the Act into operation, and to release people six months before they would otherwise be released, in order to deal with a grave situation within the prisons, people who have committed the offences I have listed would in fact not be released.

It may be asked by some, not unreasonably in any way, that, if one objects to the principle of this approach, why is one seeking to add another category of offence? The reason is a very straightforward one. It seems to me that, if in our criminal law we are going to provide exceptions of this character, for the first time, so far as I am aware, in the law of this country, and say that, notwithstanding the decisions of the courts, certain people will be released and other people will not be released because of the gravity of their offences, then it is necessary to look at what the offences are.

It is self-evident what the Government have done, and the noble Lord, Lord Elton, said this to me in a letter dated 14th July. What happened was that the Home Secretary and the Home Office Ministers came under pressure when they were in Committee in another place to provide these exclusions. If I may quote from the letter, the noble Lord, referring to the letter I had written to him, wrote: I quite take your point about the seriousness of drug trafficking. The schedule of excluded offences was not, however, intended to be a definition of seriousness. It was, as I am sure you know, added to the the early release provisions of the Bill, specifically in order to meet the concern expressed during the Committee stage that prisoners convicted of violence offences should never be among those released early under the emergency provisions". What I am seeking to add is a new category of people who have been convicted of trafficking in Class A drugs. Primarily, what I am referring to is heroin. I must say to the Minister at once—I am probably pushing at an open door—looking at the precise argument which he advanced, in my view trafficking in Class A drugs is one of the most violent offences in the criminal calendar. What we are talking about here is something far more serious than a single act of manslaughter, far more serious than a single act of violence. We are talking about people who are trafficking in the most dangerous drugs available in this country, mainly heroin, and where we are already in something approaching an epidemic situation.

The House may recall that during Questions a few weeks ago the Minister disclosed to the House for the first time the amount of heroin which had been seized by Her Majesty's Customs and Excise in 1980, in 1981 and in the first six months of this year. I think it is desirable to remind the House of what those figures were. First, in 1981 the amount of heroin seized by the customs increased by well over 100 per cent. In the first six months of this year the amount of heroin seized by customs is already just about equal to all the heroin seized in 1981. We are talking about a business with a turnover of almost certainly well over £100 million a year. We are talking about drugs which kill large numbers of people. The heroin situation in this country is now viewed with extreme gravity within the police service and increasingly within the judiciary. What I am saying is that, if we are going to have excluded categories of offences, it is in my view absolutely essential to have this particular category, dealing as it does with some of the most serious offences being handled in the courts. I beg to move.

Baroness Trumpington

My Lords, the noble Lord, Lord Harris of Greenwich, has put the case most admirably. I really cannot add anything to his words and I am just pleased to be associated in this particular amendment with the noble Lord. It is probably not fair of me to verbally add a further category, which of course I would not expect my noble friend the Minister to give a direct answer on now. But if one is to have this list—and lists are always invidious and can be added to—I would ask him to seriously consider adding arson as a further category. The pattern of behaviour of the arsonist has never been properly discovered; so far as I am aware through conversations with several psychiatrists there is no pattern of behaviour that follows the character of the arsonist. It is an extremely difficult offence to deal with, either legally or from the mental point of view. But, in either case it seems to me that it is worth including arson, if in the future perhaps the Minister will think about this, with the ignoble and really dastardly crime of making profit from the lives of other people.

Lord Mishcon

My Lords, I only intervene because the noble Baroness has indeed raised an interesting point, as to where one goes on with this list and what one ought to delete. If one tries to restrict oneself according to the rules, this is hardly the place to do it, but I would ask, if I may with the permission of the House, that the Minister should look again at the description of "assault of any kind", bearing in mind that this does include an ordinary common assault. Would he not, on reflection between now and Third Reading, care to alter that to grievous bodily harm?

Baroness Macleod of Borve

My Lords, may I agree entirely with this amendment, speaking from the few years' experience I had as a member of the Parole Board. It is very obvious, not only from the figures the noble Lord, Lord Harris, has quoted, but also from one's own knowledge, that trafficking in these very serious Class A drugs is increasing far more quickly than perhaps some of us within this House realise. As the noble Lord, Lord Harris, said, it kills people; a very small amount can kill a great number of people. I wholeheartedly agree that it should be added to the list the noble Lord is proposing.

Lord Hutchinson of Lullington

My Lords, may I ask the noble Lord the Minister to be extremely careful of adding offences to a list. The trouble about lists of offences is that everybody always thinks of the most serious case. In the criminal law you can have the most trivial examples of serious cases. For instance, there is here rape. People do not appreciate that all rape is having sexual intercourse with someone against that person's consent, and in many cases of rape it is a very marginal question as to whether the girl agreed or did not agree. Sometimes it is only just on a matter of balance, and the judge does not send the person to prison as a result, because he takes the view that it was a very fifty-fifty situation.

Equivalently, in an offence such as mentioned by the noble Baroness, arson. Arson can be burning down a garden shed; it can be a trivial little matter, which arises often with young people who are psychologically disturbed, and may not involve imprisonment at all. It would be a thousand pities if decisions are made by descriptions of offences which keep people in prison longer than they should be.

Lord Wigoder

My Lords, may I make one short comment on Lord Mishcon's point about assault, which of course is very often an extremely trivial matter. In order to come within the provisions here at all, it would have to be an assault which had merited a sentence of imprisonment of at least six months.

Baroness Phillips

My Lords, I am beginning to be astonished at some of the utterances of noble Lords who have spoken. It is said it may be just a trivial assault. I recall a case in court where a boy attempted to snatch a handbag, and this is just what we were told by the counsel. Those who have ever had the experience of having another individual lurch at them, even if not actually attack them, certainly do not regard it as trivial.

I was rather astonished to hear the noble Lord say manslaughter was only one death. That is one death too many. Surely we must be very careful before we trivialise these offences. It is all too often said that there is petty crime, and particularly when talking about the minor assaults. I feel that any attack on the person should be regarded as serious whatever the end effect. While I support the amendment, I am sorry that we appear to be trivialising some very serious offences.

Lord Elton

My Lords, perhaps I could start by putting this in context. What we are discussing is a schedule which describes those people who may not be released under the emergency provisions, where the Secretary of State is empowered to release people before the full term of their sentence has expired. We are not weighing different matters delicately in the balance of justice. We are seeing who should actually get an unexpected bonus at the end of their sentence. That said—I may repeat it in other words—the schedule was inserted into the Bill in another place to take account of the concern expressed there that prisoners convicted of violence should never be among those released under the emergency provision for the early release of prisoners set out in Clause 29—that is what I was referring to.

Problems of definition are bound to arise in drawing up such a list and I stress that we do fully accept that such an approach does not provide a definitive measure of seriousness in relation to individual offences. That is best provided by the length of sentence and the noble Lord, Lord Wigoder, made a very relevant indication of the importance of that. Your Lordships will recall that Clause 29 restricts the use of the early release power to those prisoners with no more than six months of their sentence left to run, and where the expedited procedure is followed, no more than one month of their sentence left to run.

The purpose of the list in Schedule 1 is to exclude prisoners convicted of violent offences completely from eligibility for early release under the scheme. Thus we deliberately confined the list in Schedule 1 to those offences where violence on the part of the offender is an inherent element of the offence. I think I am right in saying that the assault, to which the noble Lord, Lord Mishcon, referred as being trivial, is one that one would not expect to find imprisonable for six months. The noble Lord will correct me if I am wrong. That is the reason for the present exclusion of drug trafficking. The reason is not that is does not represent a serious offence in the Government's eyes. Indeed, the Government have every sympathy with the intention behind the noble Lord's amendment. Those who traffic in hard drugs are clearly a deep menace to society and are often responsible for more deaths than the individual murderer or person who commits manslaughter.

The amendment as it stands is technically defective. But if your Lordships are content, and if the noble Lord, Lord Harris of Greenwich, will agree to withdraw it, I will undertake to return at Third Reading with an amendment which will give effect to what this amendment seeks to achieve and in the process I shall look with a good deal of hesitancy at what my noble friend has said about arson, because there are dangers in extending lists—

Lord Elystan-Morgan

My Lords, I am most grateful to the noble Lord the Minister for giving way. While accepting everything that has been said in relation to arson, would he bear in mind, however, the next offence—that is, aggravated arson, arson with intent to endanger life, which is in a rather different category?

Lord Elton

My Lords, I think that the noble Lord will find that arson with intent to endanger life, arson endangering life, is already covered by the schedule. However, I will keep all this on board while I look at the noble Lord's amendment between this stage and the next one.

Lord Mishcon

My Lords, before the Minister sits down I should like to make one point because he kindly invited me to comment on his remarks on assault. Therefore, with the leave of the House, may I just say that I cannot conceive of a case where there could be an ordinary assault and one had a term of imprisonment of six months. I was only trying to be realistic in saying that it must be a case of grievous bodily harm because otherwise the charge would be wrong.

Lord Elystan-Morgan

My Lords, I apologise to the noble Lord the Minister; he is quite right. That offence is, in fact, included. I am sorry for wasting the time of the House.

Lord Harris of Greenwich

My Lords, I am obliged to the Minister for meeting the point in this amendment and, with the leave of the House, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.15 p.m.

The Earl of Longford moved Amendment No. 47: Before Clause 30, insert the following new clause:

("Reference of cases of prisoners serving life sentences to preliminary review committee.

Parole for prisoners serving life sentences.

.—(1) Before the end of the period specified in subsection (2) below the Secretary of State shall refer to a preliminary review committee the case of any prisoner serving a life sentence whose case has not previously been referred to the Parole Board or reviewed by a local review committee; and the preliminary review committee shall consider and report to the Secretary of State on the suitability of his case for review by a local review committee.

(2) The period referred to in subsection (1) above is the period of ten years from the date on which the prisoner was sentenced, less any period by which, if he had been sentenced to a determinate sentence, the length of that sentence would have been treated as reduced under section 67 of the Criminal Justice Act 1967.

(3) Before a preliminary review committee considers a prisoner's case under subsection (1) above a member of the committee shall interview the prisoner if he is willing to be so interviewed.

(4) In this section—

• "local review committee" means a local review committee established under section 59(6) of the Criminal Justice Act 1967;
• "the Parole Board" means the Parole Board established by section 59(1) of the Criminal Justice Act 1967;
• "preliminary review committee" means a body of two or more persons nominated for the purposes of this section by the Secretary of State; and
• "prisoner serving a life sentence" means a prisoner serving a sentence of imprisonment for life or custody for life or sentenced to detention during Her Majesty's pleasure or for life.").

The noble Earl said: My Lords, I beg to move Amendment No. 47. The House is naturally preoccupied in discussing this Bill with the fortunes of young offenders and short-term prisoners. I must ask leave once again to turn for a while to long-term prisoners, including specifically the 1,500 or more life prisoners. For all such prisoners, by common consent, the Bill does nothing and I am afraid that the public on the whole is anxious to forget about them.

I do not underestimate the degrading conditions under which thousands of short-term prisoners are serving their sentences. But as I have remarked previously, long-term prisoners are degraded still more, particularly when, in the case of life prisoners, they are so often left without hope. The prisoners concerned arouse little public sympathy. In discussing prisoners as a whole, we often refer with a rather sweeping gesture of dismissal to those convicted of grave crimes as though they were beneath our Christian consideration. But in fact they share one thing in common with Members of your Lordships' House; they are all members of the human race.

I am glad that the right reverend Prelate is here because he will confirm one translation anyway of the sayings of the founder of the Christian religion when He said: "I have come to call not respectable people, but outcasts" and this amendment is pre-eminently concerned with outcasts. I represent, I hope, a small step in the direction of showing justice and mercy towards them in the spirit of the Christian Master, the great Jewish teachers and the great teachers of humanist philosophy.

I moved an amendment at the Committee stage which provided that after 10 years, at the outside, life prisoners should have a right to be considered by a local review committee—that is to say, they should have a right to enter the parole process. The works of the historian Lecky are, I know, familiar to the noble Lord, Lord Elton, because I attribute all culture to him in a general sense—that is his prerogative as a Minister at the Home Office. At any rate I must not invoke his father's name again because that was done last night and the noble Lord rather felt that it was hitting him below the belt. I will not do that again. At any rate, the great historian Lecky said of the Act of Union between England and Ireland that the whole unbribed intellect of Ireland was opposed to that measure. It is not for me, perhaps, to use quite that language here, but I can say that my amendment on the last occasion was supported by the Labour Party, the Liberal Party, the SDP and some distinguished independents, including the noble Viscount, Lord Ingleby. However, it was defeated by the noble Lord, Lord Elton, and his faithful cohorts.

I am trying again today with a much emasculated version, a version so timid that I am rather ashamed of it myself because it does not express my full feelings in anyway at all. On the last occasion the noble Lord, Lord Hunt, was unfortunately absent, although he sent a message of support. It may be that if he had been present, we would have prevailed. It may be that, after today and after I have consulted with him, I may feel it better to return to the earlier amendment at the next stage, because there are certain unsatisfactory technical features—difficulties of drafting—involved in the present amendment. However, we shall see how we get on.

My present amendment, of course, does not go anything like as far as the last one. It simply says, in effect, that life prisoners, after not more than 10 years, would be allowed a personal interview with the committee that plays a crucial part in deciding their fate. Strictly speaking, this committee—three members of the Parole Board and two members of the Home Office—would make a recommendation to the Home Secretary, but we can take it that nearly always this recommendation would be decisive. All that I am asking is that a prisoner, after he has been in prison for more than 10 years, should be allowed to meet these people face to face.

Your Lordships may ask whether this does not happen at present. There was little argument last time as to whether members of the Parole Board met prisoners and whether they descend on prisons. I do not think that anyone doubts that they descend on prisons. But if your Lordships ask whether they have personal discussions, one to one discussions with prisoners, then my experience is that they do not do so. I cannot say that they never do, but my experience is that they do not, and I have met many life prisoners in recent years. For example, one life prisoner who has been in prison for 17 years had a personal interview with the noble Lord, Lord Hunt, 15 years ago. But during the last 15 years this particular prisoner has never been conscious of having had a personal interview with any member of the Parole Board or with one of the members of this committee. Of course, one may say that one could have an interview with a member of the Parole Board without knowing who the person was, and that is just possible, but I think that most prisoners are well aware of who the noble Lord, Lord Harris, was. Whether they would know who the noble Baroness, Lady Macleod, was, I do not know—perhaps she took them unawares.

However, speaking broadly, I am simply saying that life prisoners do not see the people who decide their fate. They can be there for years and years and as far as they are concerned, their fate is decided by someone with whom they have never had a conversation. So I am making a very small request that that should now be available to them.

I must not take up too much time today, although this happens to be a subject on which I feel all too strongly. But there was one major objection raised by the noble Lord the Minister last time. The noble Lord, Lord Elton, in effect said that a proposal such as the one I brought forward in Committee was not kind to prisoners, that it was not in their true interests. To me that argument is utterly bogus; it is really rather disingenuous. I am afraid that I must view this a little through the eyes of prisoners and their families, and their legal representatives, who, one may say, would be slightly dispassionate. I cannot imagine that, if one took that group, or any section of it—the families, the prisoners or the representatives—they could be persuaded to agree that the Home Office plan of not letting them see these mysterious individuals who would decide their fate was in their true interests. Therefore, to repeat myself, I regard that as a bogus argument which I hope we shall not have trotted out again today.

There was one rather sinister implication in the remarks made by the noble Lord, Lord Elton, last week. I suppose that I cannot ask him to repudiate it because remarks are not usually repudiated by Ministers between the Commitee and Report stages. However, perhaps I may refer him to something he said on 1st July at column 356 of Hansard. He said many things, but he said this: If this amendment went through …"— and that was the amendment which I was proposing— what would happen would be that a judge would sentence a notorious and dreadful villain"— that is quite emotive language for a Minister and I do not like a Minister using that particular language, but those are the words— to a life sentence which society would expect to be served. Are we taking a new attitude to long-term prisoners? We know that the average sentence served by a life prisoner is perhaps fewer than 10 years, but are we beginning to accept that in future quite a few life prisoners will serve the whole of their lives and die in prison? To the best of my belief that approach has never been adopted up till now. We had capital punishment and we got rid of that—it is one of the few real advances that has been made in penal reform in my lifetime. But are we to substitute this—an almost equally barbarous idea? The noble Lord may have used that expression without very much reflection, but if that is to be the objection to my amendment—that people of this kind must expect to spend their whole lives in prison—it would mean putting back the clock 100 years.

Therefore, I shall give way to other speakers. The noble Lord, Lord Avebury, said that my last proposal was moderate, and this can only he described as timid. But heaven forbid that any Government in this country—which I would still call Christian, and I know that the noble Lord's Christianity is as strong as mine—should reject a timid little amendment of this kind because we want to keep some of these people in prison all their lives. I beg to move.

Lord Avebury

My Lords, I am very glad that the noble Earl, Lord Longford, has returned to this subject again because I think that your Lordships need to consider the situation that has arisen in the last decade when the life sentence population of our prisons has, in fact, increased enormously. I refer to the excellent Home Office Research Study No. 51, Life Sentence Prisoners, which was published in 1979, where it was shown that the life-sentence population of the prisons in England and Wales was only 133 prisoners at the beginning of 1957 and that by the end of 1977 that had increased to 1,353—more than a ten-fold interest in 21 years. As the noble Earl, Lord Longford, said in his remarks, that has now gone up again to over 1,500. So this is a serious and growing problem of the number of long-term prisoners in England and Wales, and the question is whether or not any additional consideration should be given to feeding those cases into the parole system.

Just by way of preliminary, may I say that the increase to which I have referred does not have anything to do with the abolition of capital punishment, as has been suggested in some quarters. If one looks at the figures, between 1956 and 1964—the date of abolition—the number of executions did not exceed five in any one of those years, and in the last three years it did not exceed two. So we must look to other causes for the major increase in the number of long-term life-sentence prisoners, and that may be something which we should debate on another occasion.

Here, as the noble Earl has said, we are considering an extremely modest proposal for having an additional review of long-term life-sentence prisoners at the end of the first 10 years of their sentence. When the noble Lord, Lord Elton, replied to the debate on the previous occasion, he said that the system already provided a much more civilised alternative than was proposed by the noble Earl, Lord Longford, because the first review of the life-sentence prisoner was carried out by a joint committee of the Parole Board and the Home Office within three or four years of a man being sent to prison. He said that if the joint committee does not consider that it is yet time for a date to be fixed at which the case may be referred to the LRC, then it asks for the case to be put before it main at some future date, and, as I understand it, that process continues more or less ad infinitum until the committee finally considers that the case ought to appear before the LRC or the man dies, whichever is the sooner.

I must emphasise that what the noble Earl, Lord Longford, proposes is in addition to these reviews: it is not in substitution for them. He is not suggesting—and he did not suggest on the previous occasion—that the three- to four-year process outlined by the Minister should be cancelled in favour of the 10-year process that he was suggesting, but that this is an additional consideration that would be given to the cases of the long-term prisoners at the end of 10 years.

So the noble Lord, Lord Elton, was quite wrong when he assumed that the noble Earl, Lord Longford, was trying to cancel the existing three- to four-year reviews for the sake of his argument, as he did on 1st July. In a particular case, about which the noble Lord, Lord Elton, knows, it was emphasised that fresh minds ought to be brought to bear on the consideration of parole for a particular individual. I think it reasonable and sensible that another opinion should be sought. If a man is seen by a different governor, a different wing officer, chaplain or welfare officer if may help to secure better consideration of his case. So why does not the same principle apply to the next stage of the process where the reports of those officals are considered? A 10-year period is a very substantial chunk out of any man's life, and it is proper that after being in prison for that length of time he should have his case examined by a new agency other than the special joint committee of the Parole Board of the Home Office which, as we have heard, has already been looking at his case for the last six or seven years.

The other important feature of the noble Earl's amendment, and I am glad he emphasised this, was that the prisoner would have a chance of appearing personally before the persons nominated by the Secretary of State to consider these cases. It is well known that many prisoners are not good at expressing themselves in writing and are therefore unable to take advantage of the right they are supposed to have to make representations either to the local review committee or indeed to the special joint committee which the noble Lord mentioned on a previous occasion. However, they might well be able to advance considerations of material importance to their case if they were able to appear before such a body in person, as this amendment suggests.

As the noble Lord, Lord Elton, knows, I am particularly worried about the position of non-English speakers in our prisons. We came across a case the other day where the noble Lord was good enough to tell me that there was no Spanish welfare officer in the Isle of Wight and therefore the Minister was prepared, in the circumstances of the case, to agree that a Spanish-speaking prisoner in, I think, Parkhurst, should be transferred to Maidstone where he might have better facilities for communicating with other prisoners and staff.

We have had Arabic-speaking prisoners, again on the Isle of Wight, who were totally incapable of communicating with the rest of the inmates and the staff. It seems likely to me that among the 3,500-odd foreign nationals in the prisons of England and Wales there will be many lifers who would need a great deal of help if they were to present any sort of a case in writing to the special committee. But if they could appear before this prelimiary review committee, as the noble Earl suggests then obviously they would have a right to interpretation, as they are supposed to have in disciplinary proceedings before the governor and the board of visitors. This is a modest proposal but one that would give some hope to lifers of an additional stage in the consideration of their parole, and therefore it would hold out some hope to them of a fairness in the system which they do not see at present.

5.33 p.m.

Lord Hunt

My Lords, my reason for rising in this discussion is mainly because I was so extensively quoted by the noble Earl, Lord Longford, during the Committee stage when he presented a different shaped amendment, that I thought I could not with honour sit here, having been a kind of disembodied voice on the previous occasion, and disclaim what was said on my behalf. I can, and gladly do, confirm that what the noble Earl said that I felt about his amendment is in principle correct. But I am not entirely happy—and I have told the noble Earl this—about the method that he is proposing. He has acknowledged that the method may have to be thought about again. The point here is that the preliminary review committee to which the amendment refers, as the noble Lord, Lord Elton, knows very well, is an informal and unofficial body which is in the business, and has been since 1973, of looking at all cases of lifers to see whether and if so at what appropriate point of time, their cases should be put into the formal review process. I question whether in a statute it would be proper to make reference to an informal and unofficial body of that kind, and whether the Home Secretary could be required to give instructions to such an informal and unofficial body.

That is really by the way, because I strongly believe in the principle behind this amendment. It is right that the formal process of reviewing life prisoners should begin at about the 10-year mark, if it has not begun, at the instance of that informal and unofficial body, earlier. I believe that is absolutely right—of course, without prejudice to the views in the formal process of the local review committees and of the Parole Board, to say nothing of the views of the trial judge and of the Lord Chief Justice. It is a long-drawn-out and lengthy process, and it is right that it should be a long-drawn-out process.

I also believe that, as happens in parole for determinate prisoners, the life prisoner, when his review takes place, as I think it should at, if not before, the 10-year mark has been past, should have the right to refuse to have his case considered. He should have the right to opt out. This is a proper safeguard which places the onus on the prisoner to risk disappointment if, as is almost certain to be so in a few cases of particularly heinous crimes, no recommendation for release is going to be made following that 10-year review. It may well be that the view of the Parole Board, the recommendation to the Home Secretary of the Parole Board, is that the case should not be reviewed again for perhaps three or as much as five years. At least that will have been the risk taken by the prisoner in allowing his review to go forward and not refusing to have it looked at. That is better than oblivion.

I believe strongly in the principle of the amendment, which is to ensure that a life prisoner has a milestone ahead to look forward to. Having read Hansard, I am well aware that the views of my noble friend Lord Harris in this matter, and from a similar experience, are quite different from mine. I have visited life prisoners. I could list to your Lordships the eight or nine prisons I have visited, where I have spoken to life prisoners. In all cases I can say that they live on hope. Whatever one may feel about the heinousness of the crimes they committed—and they are not all criminals, in the sense that they did something once that was dreadful and maybe they would not think of doing such a thing again—the one thing they have a right to expect is to have some hope rather than to deteriorate (which, if they have not got hope, there is a grave danger of their doing)—into vegetables.

There are perhaps some of your Lordships who will say that that is no less than they deserve. I can only say that I profoundly differ with such a view. Only yesterday I spent a considerable time, the whole afternoon, with a probation officer who until recently had served four years in the lifers' wing at Maidstone Prison, her responsibility being to do social work among those prisoners. She confirmed absolutely the views which I am now expressing from an inside view, from a human contact view with human beings. I can only say that that strengthened my belief that the principle of this amendment is right, and I support it.

Baroness Birk

My Lords, I should like to support the amendment moved by my noble friend and to which I have my name. Most of the arguments in favour of the amendment have already been used and explained. The main resistance to the amendment moved by my noble friend at Committee stage—and he referred to it—was that it was cruel to give hope when that hope would not be realised. But, together with other noble Lords who have spoken in favour of the amendment, I believe that it is far more cruel to feel ignored, isolated, and forgotten.

Whether the vehicle that my noble friend has chosen is quite right or not—and I listened with great attention to what the noble Lord, Lord Hunt, said, and it is right that in a statute a statutory body should be written into it—what attracts me about this particular amendment, although it is rather more mild or, as my noble friend said, more timid than his previous amendment, is the opportunity, if the prisoner is willing, that he should be interviewed by a member of whatever committee it is, a local review committee or another sort of committee which could be incorporated in the statute.

This point of the opportunity for contact with another human being is absolutely essential. If the answer is to be, "What is the point of that if the prisoner will be told that it is useless our talking about him getting parole for the next unimaginable number of years?" The fact that it is spoken about and that the person is able to hear it from another human being is very important. He knows in his own mind often the hopelessness of his case, certainly in the short and medium term. Nevertheless, the fact that there is contact—personal contact, not something just considered by a committee removed from him—makes all the difference. Having many years ago worked as a prison visitor at Holloway and having there dealt with some very long-term prisoners, I am convinced that this human contact on a one-to-one basis is of the greatest importance, and therefore I support the amendment.

5.41 p.m.

Viscount Ingleby

My Lords, I too support the amendment from the point of view of maintaining hope and allowing personal contact with a member who will make the recommendation.

Lord Donaldson of Kingsbridge

My Lords, I supported this amendment in its stronger form and I support it in its lesser form.

Lord Elton

My Lords, let us start by looking at what now happens—and with two eminent ex-chairmen of the Parole Board and one probably silent chairman present, I shall be corrected if I am wrong. As I explained at an earlier stage, when a life sentence prisoner has been detained for three to four years—and in some cases it may be earlier—the joint committee meets to consider the facts of the case and all the reports that have been made on the prisoner during his detention so far. It then either recommends a date when the case should be referred to the local review committee or, if it is clear that he could not be released for several years, or not immediately clear how soon he might be released, asks to see the case again after a specified interval.

Although the joint committee may not immediately recommend a date for the review and ask to see it again, the great majority of cases are referred to the local review committee well before the prisoner has been detained for 10 years. Even where it is apparent that the prisoner will not be released for many years, the joint committee follows a working rule that it will always look at his case again after he has been detained for 10 years. So it is not a question, as the noble Earl, Lord Longford, claimed, in Committee, of the file being brought out and some officials sitting round and deciding not to look at that particular file again for some time.

The Earl of Longford

The Minister seems to be saying that I got something wrong, my Lords. May I ask him to say what I got wrong? So far as I am concerned, the procedure he has described is the one. I have been denouncing.

Lord Elton

My Lords, I am trying to establish whether what the noble Earl is denouncing is what I am describing, and he has now confirmed that it is. As was made clear more than once in the debate, officials are in a minority on the joint committee. Senior members of the Parole Board, including the board's chairman and vice-chairman, form the majority, and it is right that that should be so because the committee is, in effect, winnowing the cases to be presented to the local review committee and the full board so as to present to them only those cases with at least some prospect of success.

The review process is elaborate and thorough and it would be wrong for the whole of it to be put into action in every case and at short intervals where there is no prospect of doing anything but consuming the time of free men and dashing the hopes of the prisoners; and the noble Lord, Lord Hunt, referred to the importance of not dashing the hopes of the prisoner and giving him the opportunity of opting out of the stress of that process if he feels that suits him.

In the relatively small number of cases where a prisoner has been detained for 10 years and no date has yet been set for his case to be referred to the local review committee, the case will have been seen by the joint committee at least twice. I do not know whether the noble Lord, Lord Hunt, regards that as a milestone, but it is not 10 years languishing with one's case unconsidered; nor, as the noble Baroness, Lady Birk, suggested, is the prisoner ignored, isolated and forgotten.

Lord Hunt

My Lords, perhaps I may make it clear that the fact that the case has been looked at twice up to the 10-year mark by an unofficial and informal body gives no knowledge to the prisoner concerned as to the outcome of those two reviews. Therefore, he or she will not know what the outcome is going to be, or will have been, until the formal review process has been gone through.

Lord Elton

My Lords, I am obliged for that comment because I am anxious to learn. What the noble Lord, Lord Hunt, is saying is wanted is an indication to the prisoner of the progress of what I might call his case, and that did not seem to me to be the principal object of the amendment. I am informed that the prisoner knows at every stage of the review—and I see the noble Lord, Lord Harris, a more recent occupant of the hot seat, nodding his head. That being so, I think what Lord Hunt has advanced is somewhat weakened.

I was referring to what the noble Baroness, Lady Birk, referred to as the prisoner being ignored, isolated and forgotten. He is in fact interviewed very frequently indeed by people skilled in doing that—governors, probation officers, chaplains and so on—and their considered reports are before the joint committee for their consideration. Apart from the Parole Board's psychiatrists, who may interview a prisoner on behalf of the board—but that is rarely done—it is true that the present members of the joint committee are not necessarily skilled in interviewing.

We must accept that in prison we have not only people who, some of us feel, perhaps are there only by mischance and who are straightforward and honest people in other respects, but also people who are consummately skilled in misleading those to whom they talk. The judge of course has skills, and the chairman of the board may very well have those skills too, but it is not the training of other people, and interviews on behalf of the local review committee about the prisoner's representations are, I think, the appropriate point at which the prisoner has contact with this procedure.

Lord Avebury

My Lords, the point I make about representations is that many prisoners are not able to communicate in writing and that foreigners would not be capable even of communicating in the English language, whereas if they could appear in person before the special committee—which the noble Earl, Lord Longford, advocates—they would make verbal representations with an interpreter present.

Lord Elton

My Lords, it is difficult to deal with such views put in one after the other. Noble Lords are saying that there should be personal contact, and the noble Lord, Lord Avebury, is saying that where the person is a foreigner, it is better that the translation should be done verbally than on paper, so the point he makes is the same as the point other noble Lords are making. I have to be advised in these things, and when I look at the annual report of the board for 1977 I see that personal hearings, while they might work to the advantage of the sophisticated criminal, could "disadvantage the unsure and the inarticulate". I am quoting the Parole Board, in its report—and I should have thought that the members of the board are the people with the most direct experience. Then: There is much to be said for the view that the good documentation by the people with knowledge of the prisoner over the years is the best method of guiding those who have to decide whether parole should be granted". It is a difficult case. In the light of the weight of the advice that I have quoted—the views of the noble Lord, Lord Harris, support what I have said—it appears that your Lordships are asking for something which appears so simple, but which I do not feel will in fact amount to what you would expect of it. I hope that before he comes to a final decision, the noble Earl will consider very carefully his amendment, which he has himself said he finds not altogether satisfactory.

The Earl of Longford

My Lords, to put the noble Lord out of any anxiety, I say at once that I shall not today be dividing the House on this question. This is mainly for the reason mentioned by the noble Lord, Lord Hunt, which has already occurred to me—that it is not a very satisfactory amendment. However, it is a straight issue of principle affecting a number of human beings. Last night we rightly discussed a question of principle affecting one woman and one child. It was rightly considered that that raised a great question of principle.

Life prisoners might in the past have deserved badly of society, but they are now among the most agonised and vulnerable people. Our whole approach to them raises a question of principle, which should be very carefully considered. I shall discuss the matter with the noble and learned Lord, Lord Elwyn-Jones, the noble Baroness, Lady Birk, the noble Lord, Lord Hunt, and the noble Lord, Lord Avebury, who, over such a long time, has taken such enormous interest in prisoners. I shall discuss with them all the question of what is the most suitable amendment to put down, but I shall certainly put down something—

Lord Elton

My Lords, before the noble Earl sits down—

The Earl of Longford

I am not sitting down quite yet.

Lord Elton

My Lords, I am an optimist. I wonder whether the noble Earl will be kind enough to give some indication whether it is the frequency or the formality of the review with which he is principally concerned; or is it the immediacy aspect?—that is the personal interview, which the noble Lord, Lord Avebury, has rather emphasised might be the main concern. If the noble Earl would give such an indication, I would be clearer about the focus of his intentions.

The Earl of Longford

The noble Lord will be clearer about my intentions before the next stage, my Lords, since I gather that the Government are allowing several months for all of us to think over these matters; I do not suppose that we shall again be going into the question yet awhile. But I should like to try to answer the noble Lord's point. Certainly I consider that it is monstrous that the prisoner should not be seen by a member of the committee. That principle is accepted in the case of the local review committees. It is argued that a member of the local review committee—a local bank manager, for example, as it may well be—is not capable of interviewing a prisoner. To be told that the noble Lord, Lord Harris, with all his immense abilities, is incapable of interviewing a prisoner, is not acceptable. The same would apply in relation to the noble Baroness, Lady Macleod of Borve, or the noble Lord, Lord Windlesham. Such eminent people command the attention of your Lordships whenever they speak; yet we are told that they cannot interview a humble prisoner, that it must be left to someone more skilled. That is what we were told just now—

Lord Elton

My Lords, as it happened, I specifically exempted the chairman of the board. It is a small point.

The Earl of Longford

I see, my Lords. Well, it is a funny sort of board, with about 50 members, if only the chairman is capable of interviewing. That argument is quite absurd; I can say that without giving offence. It is asked, who can interview the prisoners? The noble Lord says that they can be interviewed by governors and other people on the spot who know them well. Well, let us accept that arbitrament. I must not go into detailed cases, but I know of more than one case where the prisons collectively are entirely on the side of the prisoner being sent forward for parole. We know who has been standing in the way of that. If it were said, hand over the matter to the prison, there would be many prisoners known to me who tomorrow—I would not say that they would be out—would pass to the review process. The argument there, I am sorry to say, is far removed from reality. However, let us leave it there. To use the noble Lord's expression, I have to be advised; and I hope that he will be advised better next time. If he is not, I feel that it will not be for want of other people, as well as his own official advisers, trying to help him. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.55 p.m.

Lord Hunt moved Amendment No. 48: Before Clause 30, insert the following new clause:

("Supervised release scheme

.—(1) Subject to subsection (2) below, a person who after the commencement of this Act is sentenced to a term of imprisonment of less than 3 years shall be released on a supervised release licence when he has served one third of his sentence or one month; whichever is the longer; or such later date as may be necessary to take account of any forfeiture of remission.

(2) Where a court considers that it is necessary for the protection of the public, it may order that an offender who is sentenced to a term of imprisonment of less than three years shall not be released on a supervised release licence under subsection (1) above.

(3) A person subject to a supervised release licence—

1. (a) shall be under the supervision of a probation officer, and
2. (b) shall comply with such requirements, if any, as the Secretary of State may specify in his licence.

(4) For the purpose of this section consecutive and concurrent terms of imprisonment shall be treated as a single term.

(5) A person whose sentence is reduced by the operation of section 67 of the Criminal Justice Act 1967 (reduction of sentence of imprisonment by reference to periods spent in custody on remand) shall for the purposes of this section be treated as if any period taken into account under that section were included in his sentence.

(6) A person shall remain subject to a supervised release licence until he has served two-thirds of his sentence, with the addition of any period for which he may have forfeited remission unless the licence is revoked under subsection (7) below.

(7) A person subject to a supervised release licence who fails without reasonable excuse to comply with a requirement imposed under subsection (3)(b) above shall be guilty of an offence and liable on summary conviction to—

1. (a) a fine not exceeding £200;
2. (b) a sentence of imprisonment not exceeding 30 days.

(8) Where a person subject to a supervised release licence commits an offence punishable with imprisonment, a court may order his return to custody for a period not exceeding—

1. (a) the outstanding period for which the supervised release licence would otherwise be in force, or
2. (b) 30 days,

whichever is the longer").

The noble Lord said: My Lords, in rising to move Amendment No. 48, I would remind your Lordships that we had a very good debate on the matter in Committee on the evening of 28th June, when, unfortunately, only very few of your Lordships were present. I withdrew the amendment, saying that I would bring it up again, which is what I am now doing. I am well aware that Ministers' main hope of reducing the grossly-overcrowded prison population rests on Clause 28, and on what I call the crisis measure embodied in Clause 29. I realise, too, the inclusion of my amendment in the Bill would possibly add to the difficulties of the courts. The Government have stated firmly that they have already made their choice in the two clauses.

We—and in saying "we" I am talking about that much referred to body, of which I shall give only the initial letters, so as not to spell it out again: APPAG—feel that the issue is much too crucial for such finality of judgment. We have no confidence in the measures embodied in the other two clauses. That is why I am now persisting in the proposals which I shall briefly outline once more to your Lordships, assuming, rightly or wrongly, that you may not have read Hansard of 28th June.

The amendment as it now appears has been slightly modified. Its purposes are two-fold: first to reduce the present prison population to within manageable, safe, and morally acceptable limits; and, secondly, to enable many more prisoners, both within and below the present threshold of the parole scheme, to benefit by support and supervision in the community before the end of their sentences.

Subject to directions by the courts—which are contained in subsection (2) of my amendment, as modified from the previous amendment at the Committee stage—that the full period of the sentence, less, of course, remission, should be served in prison, offenders sentenced to periods ranging from three months to under three years would serve the middle third of their sentences non-custodially, but under a supervised licence. Unlike partly-suspended sentences, the second part is intended, as with parole, to be a positive and rehabilitative period, with advice and support from a probation officer.

The proposal is not new, but it is a new concept of sentencing, possibly with wider implications in the future for all determinate sentences. The idea was put forward by the Home Office itself in its review of parole in England and Wales, published last year. Explaining that proposal in the House of Commons on 23rd July last year, Mr. Patrick Mayhew, the Minister of State said, at col. 694 of the Official Report: I … take this opportunity to emphasise that what is envisaged would not be a reduction in sentence lengths as such. Rather it would be a question of restructuring the nature of sentences so that part of the sentence is served in custody and part under supervision in the community". If I may say so, I think that the Government Minister put it very well.

The proposal received favourable comments from, among others, the Lord Chief Justice himself. However, in later references—this was really unfortunate—it became known as automatic parole, regardless of the discretion given for the courts not to apply the non-custodial part of the sentence. In my submission, that power makes the use of the word "automatic" both misleading and quite inappropriate.

Apart from the primary purpose of making a very significant reduction in the prison population, which is of crucial importance, the proposal has the merit of important savings in the parole assessment procedures in respect of 3,500 prisoners serving sentences of under three years but more than 18 months. That advantage would enable the Parole Board, and, before it, the local review committees, to concentrate on the more difficult cases of those serving longer sentences for more serious offences. In saying that, I am not in any way underrating the seriousness of any offence which commands a lesser sentence.

I would stress again the importance we attach, from parole scheme experience, to contacts with and help from supervising probation officers, even for short periods of down to one month. That, under this proposal, will include, I believe, something in excess of 4,000 prisoners, and it will certainly include many recidivists, who need that kind of help most. Again, under a partly-suspended sentence they would not get it, and that fact accounts in no small measure for many failures to survive in the community without re-offending on release when suspended sentences have been imposed in the past.

As regards the potential saving of the number of people in prison at any one time, the Home Office gave an optimum figure of 7,000 to the scheme they adumbrated in their review of parole, but on the basis of a threshold of six months. My amendment proposes a lower threshold of th ee months, and that should add up to another 1,000 prisoners. Of course, this potential (if your Lordships have done your mental arithmetic correctly, as I am sure you have) of 8,000 does not take into account the numbers who might be disallowed by the courts under subsection (2).

But bear in mind these facts: first of all, that these prisoners serve shorter sentences for the less serious range of offences; secondly, that prolonging imprisonment certainly does not deter most offenders, and certainly does not enable recidivists to survive and go straight; thirdly, that the rate of re-offending while on parole has been consistently within 5 per cent.; and, finally, that all within my bracket will, within a matter of months, return to the community, if the middle third of their sentences is disallowed by the courts, with no support and no strings attached. Bearing all these facts in mind, I would not expect more than a quarter, 25 per cent., to be so disallowed by the courts. I am therefore confident of a reduction in the prison population of some 6,000 places.

This amendment is bound to be called a radical step, but so was parole when it was being considered in your Lordships' House and in the other place in 1967, when the Criminal Justice Act of that year was passed. There were serious reservations about it, including (and I am glad to mention them) the National Association of Probation Officers, who, incidentally, are expressing misgivings about this amendment now. But, as we all know, parole soon came to be looked upon as a great leap forward in penal reform. It is now an established feature in our criminal justice system, and there is clear evidence that parole supervision has reduced the rate of offending. I can see no reason why this proposal should not come to be accepted by everyone as another important advance in enlightened penology.

I do not believe for a moment that the judges would increase the length of sentences if this proposal found its place in the statute book. Nor do I doubt that probation officers, if it becomes law, would make a success of it, as they have of parole. If further resources are needed for the probation service—and they may well be—I say with emphasis that this, too, is a positive and desirable step. It would be offset, and more than offset, by savings in the prison establishments and savings in the enormous cost of keeping so many individual prisoners inside. In moving this amendment, which I now do, I repeat what I said in Committee. The nettle of prison overcrowding must be grasped. It was the Home Office itself which initially gave the lead, but they retreated from it. Now, I submit, is the time to advance again. I beg to move.

Lord Elwyn-Jones

My Lords, I rise to support this amendment so admirably moved, if I may say so, by the noble Lord, Lord Hunt. This Bill has been much criticised for its major deficiency in failing to contain a provision which would be sure of substantially reducing the prison population. We have many times canvassed and described the intolerable conditions in our prisons, and I think that about that there is substantial agreement on all sides of the House. But the problem that we have endeavoured to grapple with is by what means we can, for instance, get somewhere near the report of Her Majesty's Chief Inspector of Prisons, proposing the progressive reduction of the present prison population from 44,000 to 37,000. We have the further recommendation of the Prison and Borstal Governors' Branch of the Society of Civil and Public Servants, calling for a reduction to 32,000. Our fear is that what the Government have proposed in their proposals will come nowhere near achieving that result, and the horrid conditions of prisons, especially local prisons, will continue in spite of all our endeavours.

As the noble Lord, Lord Hunt, has explained, the new clause provides for the introduction of an automatic, supervised release scheme for prisoners serving sentences of less than three years, but with the proviso that a court may exclude an offender from automatic release on supervision where it considers that this is necessary for the protection of the public. That proviso meets the objection which the judges, and in particular the Lord Chief Justice, had previously in respect of automatic supervised release. Your Lordships will recollect the speech of the noble and learned Lord the Lord Chief Justice in this House in April of this year, when, referring to this proposal, he said: The judges suggested that there should be power to non-apply that rule in specific cases particularly where the public require protection. That suggestion was turned down flat. But if that suggestion were adopted I would respectfully agree with the noble Lord, Lord Hunt, that there is no possible objection to the scheme. So one has there a backing for the scheme from perhaps the most responsible judicial source, and certainly the most authoritative.

My Lords, whether or not the Minister agrees with the precise estimate of the figures given by the noble Lord, Lord Hunt—that is, whether or not he agrees that the proposal for this concept of a new kind of sentence (which has been termed a custody plus supervision sentence) will produce the precise reduction the noble Lord has indicated—we feel it will indeed be a very considerable reduction. What I think is significant is that there is now clear evidence from Home Office research that release on parole licence, which combines supervision by a probation officer with the deterrent effect of recall to prison for misbehaviour while on licence, for which the amendment moved by the noble Lord, Lord Hunt, provides, does reduce the offender's likelihood of re-conviction. So we believe that there are powerful arguments in favour of this scheme, combining the impact of a short period in custody with controls over an offender's future behaviour of the kind contained in a parole licence. It is a new initiative; we believe it is a responsible one, and I hope that at this stage the Government will accept it.

Lord Donaldson of Kingsbridge

My Lords, I merely want to add to the very thorough exposition so far that the only reason of a substantial kind that we have ever been given for not adopting this system is that the courts would not accept it. We now have the word of the Lord Chief Justice that he, at least, would accept it with the proviso in subsection (2), so I think the case against it is really totally demolished. We have spent I do not know how many days on this Bill, but I believe that this is very much the most important thing in it that we have discussed. I hope that we shall get some change which will save the inevitable disaster which is facing us in the prisons if we do not.

The Lord Bishop of Lincoln

My Lords, I should like to support this amendment. We have a prison in Lincoln which I visit from time to time, so I am well aware of what has been described as the conditions of overcrowding in our prisons, and of the extreme seriousness of that. For that reason alone I should want to support this amendment. I had prepared a few words, but the points that I had in them have already been made very clearly and cogently by Lord Hunt and Lord Elwyn-Jones, and there is no point in going over things which have been well put already. I should have thought that this new venture would also provide the sort of space in which those likely to be responsive to rehabilitation may find some sort of encouragement, and again that is something to be in favour of. For those reasons, I support the amendment.

Lord Avebury

My Lords, a person sentenced to three years may be released after one year if he qualifies for parole and receives the full one-third remission of his sentence, so that he is released after 12 months. But a person who is sentenced to 18 months in prison may still be released after one year because he does not qualify for parole. It is absurd that a person serves the same actual length of sentence when the courts have thought fit to impose a difference of two to one in terms of the length of sentence given. They finish up by serving the same length of time as a result of the inoperation of the parole system on short sentences.

Earl Fortescue

My Lords, I should like to speak against the amendment. I know that the Magistrates' Association is against the proposal for several reasons. First, it would drastically reduce the sentencing power of magistrates' courts to, I should like to say, a ridiculously low level. The maximum sentence of imprisonment available to a magistrates' court at the moment is six months. If you deduct one-third of that for the automatic one-third remission and then this proposal would knock off another two months, the maximum term of custody that a magistrates' court would be able to impose would be a net two months.

The second reason is that it must put a considerable extra burden on the probation service. I am rather doubtful whether they are ready at the moment for that additional burden. Having said all that, one would not object to such a proposal if this early release under supervision had to be earned. I understand that parole has to be earned. If the threshold of parole could be lowered to sentences of six months, then I think this release under supervision would be acceptable. Being automatic, it is not acceptable. If magistrates' courts are going to have the power to imprison at all, a net of two months is totally inadequate.

Baroness Birk

My Lords, I did not intend to speak because everything seems to have been said. But I felt that I must do so in view of the contribution from the noble Earl, Lord Fortescue. I am also a member of the Magistrates' Association, but disagree with them. I was not aware that they came out officially against this. I am not sure they have. It may be just a view expressed by a number of the members of Magistrate's Association.

Earl Fortescue

My Lords, they have come out officially against it.

Baroness Birk

My Lords, on the other hand, the Justices' Clerks' Society is for it. One of the points that the noble Earl, Lord Fortescue, made, was the unwillingness of the probation officers. The Conference of Chief Probation Officers has repeatedly welcomed this proposal. When the noble Lord said that two months was not a deterrent, I would take issue with him. It is generally accepted at the moment that it is the first few weeks or days in prison which act as a deterrent before the person gets used to it and is institutionalised. With great respect, if one has not been in prison—and most of us have not—it is probably impossible to judge the effect of this. I think that two months is a deterrent, but this provision would also be helpful in emptying the prisons.

Lord Swinfen

My Lords, this is a subject about which I know very little. My instinct tells me that there is a great deal of merit in the amendment. I should like to support it. However, with regard to Clause 7, why should a man who fails to comply with the requirements of his licence not be made to go back and serve the rest of his sentence? If he has to serve an additional sentence of only a maximum of 30 days, he may end up with less sentence than the courts gave him in the first place, although having broken the terms of his licence.

The Earl of Onslow

My Lords, there is one small thing. Obviously, I support this amendment. I have my name to it. My noble friend Lord Fortescue says that it will put an extra strain on the probation service. Even if there is an extra strain on them, the probation service have said they like the idea. The lack of strain or the release of strain on the prison service will outweigh any extra strain that might be put on the probation service.

Lord Elton

My Lords, at the Committee stage the noble Lord brought to the House a proposal for a scheme for supervised release which my noble friend Lord Campbell of Alloway showed to be mandatory and in which the element of discretion was entirely executive. After much discussion, he prudently took it away and he has now, as he threatened, brought it back. It has undergone a certain amount of surgery in the interval with the result that the court now does have a discretion. In what the noble Lord sees as the normal way of things, an offender would still leave custody, under supervision, after only the first third of his sentence has run but in what are, I suppose, intended to be exceptional cases the court will have the power to disapply that decision and the noble Lord has sought to quantify the number of occasions when that would happen.

So it may be, my Lords, but the discretion is important in more than one respect. The discretionary measure may have mitigated one of the features to which the judiciary have taken exception but at the same time it has opened the arrangement to one of the objections which the noble Lord and his friends, apparently have to the alternative scheme, at present in the Bill, of partly-suspended sentences. We were told, were we not, that the benefits to the prison system of that scheme—our scheme—were uncertain, since no one could tell how the courts would choose to use their power? To the extent that this discretion meets the objection that the courts must be free not to apply supervised release, it becomes open to the objection that the numerical benefit to the prison system is uncertain and potentially small.

Now that is not an academic consideration, because the noble Lords opposite—and not only opposite, either—have sent up a very great cry at several critical junctures that what this Bill lacks is any certain impact upon the excessive number of people in prison. If the concession the noble Lord claims to have made is a real one, this measure now joins those others whose effects are uncertain. If it is not, his gesture to the judiciary is a hollow one and will not serve to commend his proposal to them.

Lord Donaldson of Kingsbridge

My Lords, I must intervene on this answer. The argument about the suspended sentence is that the range is from plus-4,000 to minus-4,000, roughly speaking. You have a figure of 6,000 in the figure here, which may be reduced by a percentage. If it were reduced by 100 per cent., you still have nought. There is absolutely no question of its going widely the other way, and the analogy is quite false.

Lord Elton

My Lords, I do not know that the analogy is false, but I am merely using the arguments in exactly the same circumstances that the noble Lord has used them himself against my discretionary scheme. I was told that the scheme that we have in the Bill is discretionary and will not therefore certainly reduce the prison population, whereas the scheme produced in the amendment when it came to this House at Committee was automatic and it would not reduce the prison population. That was the principle reason that it was commended to your Lordships. Now your Lordships opposite have introduced the discretionary element and if you had done so in an unfettered way, as it is in our arrangements, then the noble Lord's amendment is open to exactly the same objections as what is in the Bill. If, on the other hand, he had not, then it does not meet the objections of the judiciary which it claims to do.

I noted with interest the arguments of the noble and learned Lord, Lord Elwyn-Jones, that release on parole reduced the likelihood that an offender would reoffend and be reconvicted. But that surely is an argument for selectivity in the parole process, and to the extent that this is a mandatory scheme that is lost. So, what he is arguing for is selectivity and not automatic release.

What I have said so far merely places the noble Lord's proposal at the same level for consideration as what is already in the Bill. That alone would not be enough to persuade your Lordships to prefer the Government's plan to theirs. But is not, of course, the only consideration, and the Government are acutely conscious of this because the debate which now occupies your Lordship's House is to us a very familiar one. It has already been argued within Government itself when we ourselves faced the choice between a discretionary scheme of partly suspended sentences and a discretionary scheme of supervised early release.

What commends our scheme to us, my Lords, is that first that it is ready to hand. The power existed in the Act as we implemented it. Secondly, that it secures, where suitable, an even greater reduction in sentence lengths (to a quarter of the sentence as against one-third); and thirdly, there is the not inconsiderable matter of cost. If, as the noble Lords' opposite hope, their scheme was widely used and rarely disapplied, the actual volume of supervisory work would be very considerable indeed. That would cost money and that is always a consideration for Government. It is a consideration, of course, that must be carefully and even willingly gone into where there are certain or even hopeful benefits perceived. But the regrettable fact is that the benefits of supervision in this case are very much less indeed than certain.

The comments that the Government received upon the likely benefits from schemes of compulsory supervision over short periods of unwilling clients make us despondent of any great benefit—particularly so since prominent among those with grave doubts was the probation service itself—and the noble Lords who have advanced the case of supervised release with such conviction this evening had better remember the even greater conviction with which they told me on Monday that it was irresponsible to fly in the advice of exactly that service upon professional matters.

Lord Harris of Greenwich

My Lords, as the conference of chief probation officers is taking place at this moment I should be interested to know exactly to whom he is attributing these views.

Lord Elton

My Lords, I am attributing them to the probation service, who run this. What we are offered—

Lord Harris of Greenwich

My Lords, if the noble Lord says the probation service, I am asking him specifically what is the view of the conference of the chief probation officers. The noble Baroness, Lady Birk, said something wholly different on that point, and the noble Lord is appearing to contradict her and then when challenged he is saying that he is not prepared to specify to whom he is referring.

Lord Elton

My Lords, I shall burrow into the background of my information and revert to that, as is my habit. What we are offered in place of our scheme—and it is a choice; I really do not think that we can have both in the Bill although the noble and learned Lord, Lord Elwyn-Jones, has not put down an amendment to remove what is now in the Bill, the two would sit very oddly side by side—one that could be made to work only at the expense of an elaborate and costly supervisory effort provided by a probation service that is already exceedingly hard worked, and that appears to be profoundly sceptical of its benefits, and if the scheme really did combine genuine discretion and the prospect of a greater reduction in the prison population, it might be worth preferring it to a partly suspended sentence, despite the disadvantages. But it cannot provide a significant element of discretion without eating equally significantly into the expected benefits to the prison system. What we would have is a scheme not perhaps dramatically worse than what we already have but something, nonetheless, that really is not as good and to be had only by much trouble and great expense. But it would be a deception to think that discretionary supervised release can conjure up a reduction in the prison population which is not available through partly suspended sentences. It is quite simple: the existing sentencing powers give the courts discretion to fix sentences no longer than the seriousness that the case demands. That is what the courts do. The Lord Chief Justice has made that clear to this House himself. The power to suspend all or part of a sentence enables the courts to reduce the amount of the sentence which the offender actually serves. Discretionary supervised release will achieve no more than that—indeed, given that the proportion of the sentence to be served would be fixed at a third of or two thirds, it offers less. There is no reason to suppose that the courts should find it possible to use this early release power more frequently than the power of partial suspension. By definition, a discretionary scheme could not compel the courts nor should it. On any basis, it is they who fix the lengths of sentences.

I had hoped to reply with chapter and verse to the noble Lord, Lord Harris, but I am not sure that I can pursue it through the index. I admire the aspirations of noble Lords opposite. I am not sure that I admire the way in which they deplore that fact that the Government have considered this matter at considerable length and as a result of their reflection have changed their mind as though that is an improper result of reflection. I think that a Government which cannot change their mind is likely to be in very great trouble. Nonetheless, I admire the aspirations of noble Lords opposite. I admire their ideals and their evident philanthropy but the hard fact is that what they have put before your Lordships is less flexible to the courts (because the discretion is all or nothing) and less welcome to the supervisory service (because an unwilling short-term clientele is the least treatable and rewarding to work with and the least likely to benefit).

My Lords, I have now been told that the answer to the point raised by the noble Lord, Lord Harris, is that I was referring to the National Association of Probation Officers.

Lord Harris of Greenwich

My Lords, I am much obliged to the noble Lord, He will, of course, appreciate what he said: he referred to the probation service, implying a unanimity of view. He has now indicated that it is one part of the probation service that he was referring to. It is a point of substance, as I think he may agree.

Lord Elton

My Lords, yes, it is a point of substance; but it is a prestigious body involved in this work. Your Lordships told me to ignore their advice at my peril only two days ago. I quote their advice in support of my case and I do not see why I should be denied that pleasure. I was saying that it would be less welcome to the taxpayer because that same supervisory effort, though of limited and doubtful benefit, will give rise to certain and inescapable costs. I think it will be less welcome to the prisoner, who would stand to serve a slightly larger portion of his sentence. Those various counts all add up to a great many discontented customers. I hope that your Lordships, too, will feel discontented and will follow me to the left below the Bar if the noble Lord presses this to a Division.

Lord Harris of Greenwich

My Lords, I do not think it would be right to pretend that this decision was in any way an easy one for the Government to take. I say that at the outset. In the middle of last year I was consulted by Home Office officials, at the request of the Home Secretary, on his own proposals. On that occasion I ventured to give a number of opinions. I was only giving a personal reaction at that time, and the first important point I put forward was that I hoped this was not going to be called "parole", because it was not. It was, in fact, an early release system; there was no qualitative judgment on the individual cases coming before anything approaching an institution like the Parole Board itself. It was in fact an early release scheme and there was a principle of automaticity. There are problems about automaticity and about imposing a form of supervision on people who do not want to be supervised. I accept that at once. Though I do not object to the Government's changing their minds, the warm agreement being expressed by the noble Lord, Lord Elton, on this point disguises the fact that it was his Government who were putting forward the proposal in the first place.

Lord Elton

Exactly, my Lords.

Lord Harris of Greenwich

My Lords, the noble Lord has just made the point that the Government have changed their mind, and asked: should they be censured for that? No, of course they should not. But I think that a number of us are concerned about the character of the new decision. I do not believe there is any serious comparison at all between the partially-suspended sentence and what is proposed in this amendment.

First, as to the numbers concerned, the claims made by the enthusiasts for the partially-suspended sentence are pretty modest and, as my noble friend Lord Donaldson has pointed out, it is possible that there will be an increase in the size of the prison population rather than a reduction. I do not propose to become involved in that argument all over again, but that is the real situation. On the other hand, my noble friend Lord Hunt has pointed out that, as far as this amendment is concerned, we could be facing an increase in the number of people subject to supervision by the probation service in the community of somewhere in the region of 6,000. If I may say so, that demon- strates the very substantial differences that exist between two schemes.

Of course the Government were faced with a very difficult position at the end of last year. We know there was some opposition from some members of the judiciary. I do not want to become involved in the argument as to who were consulted, but it would not be right to suggest that all members of the judiciary were consulted on the matter, because that is not so. The problem undoubtedly was that there was some significant judicial opposition to what was proposed, and there was opposition from the Magistrates' Association and also from the National Association of Probation Officers. I would not dispute that. I believe there was dispute about that, just as there was over the original parole scheme itself, as far as the National Association of Probation Officers was concerned; and I do not think they were too keen on community service either, so far as I can recall. I make this point because it is right to recognise that the Government did face a genuine difficulty. But the problem we face in this matter was not really dealt with at all by the noble Lord, Lord Elton, because, as he well knows, the problem is one of what is to happen in the prisons.

The right reverend Prelate the Bishop of Lincoln was discussing conditions in one of the grieviously overcrowded local prisons in this country: Lincoln. When I last went to Lincoln Prison just after the POA dispute, the Governor told me there was a great possibility of breakdown in that prison. What did he mean by that? He meant that the main services and the whole of the sewage system could basically bust up as a result of the sheer pressure of numbers in that institution. That is what we are talking about when we refer to prison over-crowding. It is not simply a question of discomfort—though, heaven knows!, there is plenty of discomfort—but the real problem is one of an imminent breakdown of the service. This has been dealt with by the former first independent Inspector of the Prison Service, the late Mr. Pearce, in his first annual report. Those of us who go to prisons are aware of the great concern of the entire prison service about what is now happening.

What is the Government's approach to this? We have Clause 29. I believe that will one day be implemented. I must say to the Minister—and I apologise for coming back to a point which a number of us made on Committee stage—that of all the possibilities the Government have examined, the least attractive option of all is the executive release system which is set out in Clause 29 of the Bill. It is now even worse because of the exceptions which have been made—this is the view of many experienced prison governors—which will cause widespread unrest if it is ever implemented. I repeat that there is a high degree of likelihood that it will have to be implemented because, if it is not, we shall have a total breakdown of the prison system.

That is the problem the Government faced, and although I recognise only too well the difficult character of the decision they had to make, I fear they have made the wrong decision. I think the proposal of my noble friend Lord Hunt answers the difficulties and, if I may say so to the noble Earl, Lord Fortescue, when he said that the powers of magistrates would be dangerously reduced, there is in fact a power to dis-apply, so that the magistrates, as the Crown Courts, also, would have to make a judgment in each case as to whether they were going to dis-apply or not. To come back to the point that was made by everybody who has spoken on this debate, there are a series of choices and I think that this is by far the most sensible way of dealing with it. I think there would be a greater degree of public sympathy and support for this approach, certainly as compared with the executive release scheme which, in my view, will cause widespread public anxiety. I will gladly give way to the noble Lord.

Lord Elton

My Lords, the noble Lord was good enough to give way so that I might intervene. I now have before me the submissions of the National Association of Probation Officers, the Conference of Chief Probation Officers and the Central Council of Probation and Aftercare Committees, all of whom express grave reservations. I think it right to put that on the record. The noble Lord was then addressing himself to the overcrowding, which we are all aware of; but what your Lordships have to accept is that we want a method that will produce certain results, and this method is no more certain than what we propose and it has certain disadvantages.

Lord Harris of Greenwich

My Lords, I accept that. When the noble Lord mentions reservations, of course there are reservations among many institutions which have been consulted. The question, however, is whether they opposed the Government's proposal in principle or whether they did not. We all have reservations on virtually every possible scheme we have been considering. There are painful and difficult choices in this matter. I believe the Government have taken the wrong decision and that, if this amendment is not carried and not added to the Bill, we shall be driven into the executive release scheme, which I believe will be a profound error and will cause widespread public anxiety and further trouble in the prisons.

Lord Hunt

My Lords, I am grateful to my noble friend Lord Harris for making an admirable summing-up speech, which saves me from making one myself. I do not think it would be the wish of your Lordships that I should go into the argument again. I valued enormously the contributions made in the debate on my amendment, and I should particularly like to say how much I valued the intervention of the right reverend Prelate. There is only one point which I am in duty bound to clear up. The noble Earl, Lord Swinton, referred to subsection (7) of my amendment, and asked why a person who infringed his licence should not come back and serve the whole balance of the sentence. If he looks at subsection (8), he will see that there are two conditions in which a person could be recalled; one for breach of his licence and the other for committing a further offence. The breach of his licence may be for not keeping appointments with a probation officer on a number of occasions. It is the much lesser offence, although to be deplored, and not the criminal offence, in any sense, that is catered for in subsection (7). Therefore, I hope that the noble Earl will not feel that that is wrongly drafted.

Your Lordships have listened to a very interesting interchange between what I had to say at the beginning and what the noble Lord the Minister said at the end. Late on 28th June, when I made a slightly longer speech, I was not sure whether I would be meeting in the semi-final today the noble Lord, Lord Trefgarne, or the noble Lord, Lord Elton and which encounter I looked forward to most. I enjoyed enormously what the noble Lord had to say and I hope that he has not taken personally any remarks that I made; for instance, about the Government changing their minds. I change my mind very often, on reflection. All we are asking the Government to do is to have the courage to change their mind again.

I should like to mention one point, about which there has been a lot of discussion; that is, the attitude of probation officers. It is perfectly true that the Conference of Chief Probation Officers has expressed reservations about having adequate resources. But subject to that, they have welcomed this and I know that that is the attitude of the Central Council of Probation and After-Care Committees. As regards my friends, the National Association of Probation Officers—and I was their president for something like seven years—I would only say to them that, whereas on many occasions they reflect correctly the attitudes and concerns of the probation officers, they being the professional body and trade union, I believe that they are quite wrong on this occasion, as they were wrong in 1967 in not opposing, but expressing strong doubts about, parole. I do not believe that those strong doubts, which they believe to be in the best interests of probation officers, are shared by many probation officers in post around the country.

There is nothing more that I need to say, except that I propose to divide the House, because I believe that this amendment puts down a marker for those of us who will not accept that, with more than 44,000 prisoners in establishments whose certified normal accommodation is 37,000, we can go on as before, with the courts putting away offenders for ineffectually long periods in prison, as opposed to non-custodially out of prison—many of them in the scandalous conditions of local prisons—and notwithstanding the time required, to say nothing of the cost, to build more establishments to contain those prisoners.

I put it to your Lordships that we should not rely on the proposition of the partially suspended sentence, or on that sentence alone, with all the reservations and doubts which have been expressed about it and which were aired during the Committee stage of this Bill. Suspended sentences have largely failed, because they have failed to support those on whom they are imposed. Nor do I, with my noble friend Lord Harris and others, believe that we should await a breakdown in the administration of our prison system, and wait for a crisis to arise, before resorting to the early release proposal, which it is suggested the Home Secretary should have as a power of last resort, in a crisis. That is quite the wrong way to approach the prison problem. Something more effective and more continuous in its effects must be introduced into this Bill, and I suggest that this amendment does it.

In conclusion, this really is not a measure which is put forward by "wets", unless your Lordships like to consider me in that category, nor by people who have scant regard for law and order. We are moved as much by pragmatism as by considerations of humanity. We are convinced that law and order are better served in this way. So having given an all-party lead to an amendment which I believe can be fitted in, in addition to the partially suspended sentence, although it creates more difficulties, I urge your Lordships—and I wish that I could be heard in the Bars and lounges—to give a non-party lead by coming into the Division Lobby in favour of this amendment.

6.46 p.m.

On Question, Whether the said amendment (No. 48) shall be agreed to?

Their Lordships divided: Contents, 70; Not-Contents, 89.

DIVISION NO. 2
CONTENTS
Ardwick, L.	Kennet, L.
Avebury, L.	Kirkhill, L.
Aylestone, L.	Lincoln, Bp.
Banks, L.	Llewelyn-Davies of Hastoe, B. [Teller.]
Barrington, V.
Beaumont of Whitley, L.	Lloyd of Kilgerran, L.
Bernstein, L.	Longford, E.
Birk, B.	Lovell-Davis, L.
Bishopston, L.	Mackie of Benshie, L.
Blease, L.	Mayhew, L.
Boston of Faversham, L.	Melchett, L.
Briginshaw, L.	Mishcon, L.
Brockway, L.	Molloy, L.
Cledwyn of Penrhos, L.	Onslow, E.
Clifford of Chudleigh, L.	Peart, L.
Collison, L.	Pitt of Hampstead, L.
David, B.	Ponsonby of Shulbrede, L.
Davies of Leek, L.	Rochester, L.
Denington, B.	Ross of Marnock, L.
Diamond, L.	Stedman, B.
Donaldson of Kingsbridge, L.	Stewart of Alvechurch, B.
Elwyn-Jones, L.	Stewart of Fulham, L.
Elystan-Morgan, L.	Stone, L.
Evans of Claughton, L.	Strauss, L.
Foot, L.	Swinfen, L.
Gladwyn, L.	Taylor of Gryfe, L.
Hall, V.	Underhill, L.
Hampton, L.	Vernon, L.
Harris of Greenwich, L.	Wallace of Coslany, L.
Hughes, L.	Walston, L.
Hunt, L. [Teller.]	Wells-Pestell, L.
Hutchinson of Lullington, L.	White, B.
Ilchester, E.	Wigoder, L.
Ingleby, V.	Winstanley, L.
Jenkins of Putney, L.	Wynne-Jones, L.
Kagan, L.
NOT-CONTENTS
Abercorn, D.	Cockfield, L.
Auckland, L.	Coleraine, L.
Avon, E.	Colville of Culross, V.
Bellwin, L.	Colwyn, L.
Beloff, L.	Cork and Orrery, E.
Bethell, L.	Craigton, L.
Blake, L.	Cranbrook, E.
Brougham and Vaux, L.	Crathorne, L.
Caithness, E.	Dacre of Glanton, L.
Campbell of Alloway, L.	Davidson, V.
Cathcart, E.	De La Warr, E.
Chelwood, L.	Dilhorne, V.

Drumalbyn, L.	Merrivale, L.
Duncan-Sandys, L.	Mersey, V.
Ellenborough, L.	Monk Bretton, L.
Elles, B.	Montgomery of Alamein, V.
Elphinstone, L.	Mottistone, L.
Elton, L.	Murton of Lindisfarne, L.
Fortescue, E.	Northchurch, B.
Gainford, L.	Polwarth, L.
Gardner of Parkes, B.	Portland, D.
Glanusk, L.	Renton, L.
Glenarthur, L.	Ridley, V.
Glenkinglas, L.	Rochdale, V.
Gridley, L.	St. Davids, V.
Grimston of Westbury, L.	Sandford, L.
Hailsham of Saint Marylebone, L.	Sandys, L. [Teller.]
	Sempill, Ly.
Harmar-Nicholls, L.	Sharples, B.
Henley, L.	Skelmersdale, L.
Hives, L.	Stanley of Alderley, L.
Holderness, L.	Stodart of Leaston, L.
Hylton-Foster, B.	Strathclyde, L.
Killearn, L.	Strathcona and Mount Royal, L.
Kimberley, E.
Lane-Fox, B.	Terrington, L.
Lauderdale, E.	Teviot, L.
Long, V. [Teller.]	Thomas of Swynnerton, L.
Lucas of Chilworth, L.	Thorneycroft, L.
Lyell, L.	Torphichen, L.
Mackay of Clashfern, L.	Trefgarne, L.
Macleod of Borve, B.	Trenchard, V.
Mancroft, L.	Trumpington, B.
Mansfield, E.	Vickers, B.
Marley, L.	Young, B.
Marshall of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

6.55 p.m.

Lord Sandys

My Lords, at this stage I think that it would be suitable to discontinue our consideration of the Report stage of the Bill in order to take further business and to return for further consideration on Report at eight o'clock. I beg to move.

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