Criminal Justice Bill

HL Deb 21 July 1982 vol 433 cc908-60

Further considered on Report.

Lord Wigoder moved Amendment No. 49: Before Clause 30, insert the following new clause:

("Remission of sentences

.—(1) The Secretary of State may by order made by statutory instrument vary the amount of remission granted under Rule 5 of the Prison Rules 1964 so that it shall not exceed one-half instead of one-third of the periods specified in the Rules, and may exclude from the operation of any such order such classes of prisoner as may be specified by reference either to the nature of the offence committed or to the length of the sentence imposed.

(2) An order shall not be made under this section unless a draft of the order has been laid before Parliament and approved by a resolution of each House of Parliament.").

The noble Lord said: My Lords, this amendment represents not only a fall-back position, but if one fell back any further one would finish up flat on one's back. It is the barest minimum which I venture to put forward as a proposal to the Government to enable them to take some steps in relieving the vast overcrowding in our prisons, about which so much has been said during the course of both Committee and Report stages.

I do not propose to repeat anything that has been said. The conditions are inhumane for the prisoners and are intolerable for the prison staff. The dangers for the community as a whole of letting those conditions develop are self-evident. There is now little in this Bill—particularly since the previous amendment was defeated—to provide hope of any immediate remedy to this overcrowding situation. There is the executive release proposal, which I believe is recognised on all sides as being undesirable except as an extreme. There is the partly suspended sentence proposal, about which opinions vary as to the likely results. In seeking any other possible remedy, one is forced to look to the question of whether the amount of remission might be increased. All that this amendment provides is that the Secretary of State may by order, and, subject to the approval of both Houses of Parliament increase the amount of remission from the present one-third to whatever amount seems appropriate, to a maximum of one-half—that being the amount which is available in Northern Ireland.

I would accept at once that there may be grounds for going carefully on this matter. It is obviously necessary that any such proposal should be acceptable to the public. Perhaps one ought to remind your Lordships that the view sometimes expressed that the public would find it totally unacceptable to increase the amount of remission appears to be based on the belief that there is no remission at all at the moment. The public accept a situation in which sentences are passed in court, and yet for all prisoners, whatever their crimes and whatever their records, remission of one-third is in practice available provided that they behave themselves in prison.

Not only must such a proposal be acceptable to the public; I believe it must be acceptable also to the judiciary. I say that, not in order to put the judiciary in a separate category or to give them a power of veto, but simply because there is no purpose in increasing the amount of remission if the judiciary as a result are going to increase the length of sentences. Therefore, any such proposal would have to be made in consultation with the judiciary, in order to discover precisely what was acceptable to them.

I believe it may be that the Secretary of State already has the power to vary the amount of remission. What I do not believe he has the power to do is to add to it the possible exclusions which I have indicated in this amendment. One is that, at his discretion and subject to the approval of Parliament, he might exclude from the operation of any such order certain classes of prisoner; for example, those who have committed serious offences of violence. The other is that the Secretary of State might, at his discretion, exclude certain prisoners by reference to the length of their sentence—imposing neither a minimum nor a maximum—as seems to him to be appropriate. The proposal that if there are to be prisoners excluded from any increase of remission, then it should be done by a reference of that sort rather than allowing it to be subject to the discretion of the judge in the individual case (which was the proposal in the previous amendment) may be rather more acceptable to the judiciary. I doubt that they would want the task of trying to distinguish between one case and another. If they were to have that power, it would give rise to a torrent of appeals by prisoners who were aggrieved because in their individual case an order had been made.

This amendment has, I hope, the virtue of being completely fluid and of allowing the Secretary of State time to consider the present situation and to take such soundings and to have such consultations as he thinks fit; then moving on as quickly as he possibly can in the circumstances to increasing the amount of remission, subject to whatever provisos, again, that he thinks fit and subject to the approval of Parliament, in order that at least some steps can be taken in the near future to decrease the burden of overcrowding in our prisons. I beg to move.

Lord Elystan-Morgan

My Lords, this is the last opportunity that the House will have at this stage of the Bill of inserting a provision that will make it certain that machinery has been devised for bringing about a swift reduction in the prison population. I was astounded by the reaction of the noble Lord the Minister in relation to the immediately preceding amendment. May I say, in parenthesis, that I regard it as a pity that one has to discuss these various and alternative proposals individually rather than all together, when one would be able to weigh the merits and demerits against each other and come to some sort of global conclusion at the end.

I was astonished that the noble Lord the Minister was exhibiting such messianic fervour in his condemnation of the proposals in Amendment No. 48. If in fact that scheme is so fallacious, why did the Government consider it for a moment as their main proposal for the reduction of the prison population—as was their policy some nine months ago? What the House is entitled to know is this: when the Government decided upon the partly suspended sentence, did they decide upon it on its own merits, as an institution which would probably find its place in the whole scope of the disposal of criminal cases; or did they decide upon it on the basis that it was, in their view, the most sure way of bringing about a reduction in the prison population? As I understand it, the Government are committed to that end. At the Committee stage of this Bill, the noble Lord the Minister said that he regarded that as being one of the main objectives of this legislation.

If it be that they held up the two plans—the partly suspended sentence on the one hand and the one-third plan on the other—to the light of scrutiny, and said, "We come to the conclusion that on the whole the partly suspended sentence will bring about a greater reduction in prison population", I believe every Member of the House could well under stand that approach to the problem. But I doubt whether any Member of the House would say, on the evidence that one could reasonalby come to that conclusion. It is perfectly clear, of course, that in relation to the partly suspended sentence, putting it at its lowest, there must be a real risk that the uncertainty is not as to the numbers brought about by way of reduction but as to whether there would be an increase or a reduction. What I think the Minister must, with great respect, tell the House is whether that was their approach to the very problem itself. If that was their approach, upon what basis did they come to the conclusion that the ends we all seek to attain would be best achieved by the partly suspended sentence? What were the criteria involved? What were the facts upon which they based their judgment?

If, on the other hand, they say, "It never was like that at all. We considered Section 47 as being something entirely separate, and came to the conclusion that there was every case on merit for it to be included in the range of criminal disposal "—what it means is this: that even though they say the main objective is a reduction of the prison population the Government have not applied their minds to any single plan. They are unable to say that they have weighed the possibilities of one plan against another at all. If that be the case, then, with the greatest of respect, it would not be proper for them to say that they have made a genuine effort to bring about what they say is the main objective of this piece of legislation.

I have no doubt that when the noble Lord the Minister comes to reply he will say that there are really two basic objections to this amendment. One is that the gap between the gross sentence and the net sentence that would in practice be served by the convicted person is too great to maintain credibility between those two, the difference between, let us say, three years sentence and the 12 months actually served. Secondly, they will say that there is the danger that the judges will take that into account and will "up" their sentences, so that it may well he that the actual time served in the end will be longer than under the present system. The first point has already been dealt with by the noble Lord, Lord Wigoder. So far as the second point is concerned, in my submission, there is not the slighest evidence that judges have ever taken remission into account. They certainly did not take parole into account. There is no statistical evidence, as far as I know—and I should certainly welcome rebuttal on this point if that is the case—to show that there was any policy on the part of Her Majesty's judges that reacted to parole in 1967 by upping the level of sentences.

This is not an ideal amendment. The Government have left the House in the position that it is now the only possibility that is left if the main objective of this legislation, as described by Her Majesty's Government, is to be achieved.

Lord Avebury

My Lords, it obviously was not the main objective of the Government to reduce the prison population, or we should not have been left at the end of the day with the partly suspended sentence, which by agreement of everybody who has looked at it does not permit one to predict with any degree of certainty whether, or indeed by how much, the prison population is to be reduced. The noble Lord even failed to see, on the previous amendment, the difference between the Government's solution, which may lead to either a plus or a minus in the prison population, and the supervised release system, which, although subject now to the protection of the public qualification, would have led to some reduction; whether it be as large as the figure of 6,000 quoted by the noble Lord, Lord Hunt, or some lesser figure is a matter for argument and debate, but undoubtedly there would have been a certain and significant reduction in the prison population. Therefore, I say it is impossible to believe that the Government have set out as having one of their main objectives that the prison population should be reduced.

If that had been the desire, I prefer the scheme proposed by my noble friend, even though it has had to be watered down into a permissive power instead of the substantive one that he suggested putting in at Committee stage. Among other arguments, it is a step towards uniformity throughout the United Kingdom, and I believe that is a substantial plus in its favour. As your Lordships know, there has been one-half remission in Northern Ireland for some time. The system works well there, and the Northern Irish will confirm what the noble Lord, Lord Elystan-Morgan, has just said; that when the system of half remission was introduced it did not lead to any discernible change in the sentencing practice of the courts.

My noble friend has taken account of the objections that were raised during the Committee stage, and has now made the concession that the Secretary of State will only have the power to increase remission by any amount up to one-half, and this would accommodate the argument of the noble Lord, Lord Monson, whom I am very glad to see in his place, who said that while he would accept some cautious advance in the remission up to 40 per cent., he did not think that at this stage it was possible to go as far as 50 per cent. So if we can move in steps towards 50 per cent., not getting there all at one time, while satisfying the public and also the judiciary that no harm has been done by increased remission, but that it does lead to a reduction in the prison population, then I think the conservatives would have every reason to be as happy about the amendment as the liberals.

If I may put one final point, it was mentioned on the last amendment that executive release was really a matter of last resort, and I certainly hope that it would be. In the executive release scheme the excluded offences are actually written into the Bill, and there is nothing we can do about it afterwards, in spite of the objections that have been made to that provision. But my noble friend has said that one could have excluded offences as part of his system, but his could be a matter for wide consultation before the Secretary of State decided whether to have excluded offences, and, if so, what they should be. So I am much more inclined to suggest to the Government that this power, which gives them all the flexibility they could possibly want, ought to be the power of last resort rather than executive release, and I very much hope the noble Lord will see it that way and write it into the Bill.

Lord Campbell of Alloway

My Lords, may I say a word in brief opposition to this amendment. I agree wholly with the noble Lord, Lord Wigoder, that it must be acceptable to the public and it must be acceptable to the judiciary. In submission there is no evidence whatever that it is acceptable to the public here as distinct from the public of Northern Ireland. There is no evidence that it is acceptable to the judiciary, and I rather decline to entertain the notion that even if it were not acceptable to the judiciary this would in any way be reflected in sentencing, because I do not think that it would.

So perhaps your Lordships may think that the true emphasis, the real emphasis, is on acceptability to the public. If that is right, the only justification must be to ease the overcrowding situation in the prisons. This, as has already been stated by the noble Lord, Lord Elystan-Morgan, may well involve a weighing of the merits, as he puts it. I agree with that. But surely it will not do to say, "Well, we have a problem of overcrowding" and then to produce an answer which is unacceptable to the public, an answer which indeed, could well affront public opinion, and to entertain, at this stage of your Lordships' deliberations a circuitous consideration of available options. Surely it is too late for that process, and one reverts to the sole question: If this is not acceptable to the public then surely it would be wrong to support the amendment?

Lord Hunt

I should like to make a brief comment on what the noble Lord, Lord Campbell, has just said. He has laid great stress on the importance of this amendment, or perhaps any measure designed to reduce the prison population, being acceptable to the public. I really do question that as being a criterion. It may sound an odd thing to say, but if it had been put to the public—however one addresses oneself to the public on complicated matters like this—as to whether there should be remission of a sentence of one-third. I would very much doubt if they would be in favour of it. My own hunch is that the great majority of the great British public have no idea that remission exists. If it had been put to the public that the middle third of the sentence should be subject to parole—release under certain conditions—I am quite certain that in 1967 the public would not have worn it. So I just do not think that it is right to lay quite so much stress on that aspect. The Government of the day have to give a lead to public opinion and prove by experience that these things work before, in some cases, the public come to accept them.

Lord Monson

I intervene at this stage because I spoke briefly on this subject in Committee as the noble Lord, Lord Avebury, has indicated. I have slightly mixed feelings about this amendment because I fear that there is a tendency among those who might loosely be described as "penal reformers" to become impatient with the attitudes of the general public towards crime and punishment. I think that what we have just heard from the noble Lord, Lord Hunt, illustrates that.

However, in a democracy I contend that the public's voice ought to be heard and I am very glad that the noble Lord, Lord Wigoder, acknowledged that. In my view the public would be outraged if those guilty of crimes of violence were eligible for more than one third remission of their sentences. Certainly my qualified support for 40 per cent. remission did not extend to those guilty of crimes of violence. However, I do not believe that the public have any strong feelings one way or the other about crimes not involving either violence or intrusion into their homes. Therefore, I would have been happier if this amendment restricted itself to crimes not involving violence or vandalism. However, on studying the amendment I see that it is so drafted that both Houses of Parliament would have to approve any order made under the new section, and the fact that the Secretary of State would have the power to exclude certain types of offence from the operation of the order are probably safeguards enough. Therefore, on balance, I support the amendment.

8.24 p.m.

Lord Donaldson of Kingsbridge

My Lords, the noble Lord who has just spoken has not read this as carefully as he should have done because subsection (1) says: may exclude from the operation of any such order such classes of prisoner as may be specified by reference either to the nature of the offence committed or to the length of the sentence imposed". That is not the same as Lord Wigoder's original amendment. But this is a permissive amendment; it does not entirely deal with the point which the noble Lord has just made and I hope that he will agree with that.

As regards the point made by the noble Lord, Lord Campbell, I point out that I was a Minister in Northern Ireland in charge of prisons and penal affairs when our arrangement was made. We were fully aware that we took a risk that the public might object. Noble Lords must realise that the attitude of the public towards crime in Northern Ireland is much more intense than it is of the public towards crime here because there we were talking about terrorists who were killing people.

We came to the conclusion that we had the biggest proportion of our population in prison of any country in Europe and that it could not go on like that. It was doing absolutely no good. It was curing nothing and the situation was becoming unmanageable. It was my business to persuade my boss—of whom I was very fond but who took a hell of a lot of persuading—that something had to be done. He is a brave man. He took the risk and it went through. Two things happened. The first, is that the public as a whole ignored it—a few people objected but as a whole they ignored it. Secondly, because we had a Lord Chief Justice no less powerful and no less imaginative than the one we have here, who told his judges—and of course we consulted him—that this was something that he thought could work if they would play ball, they played ball. I am absolutely certain that, if we did something of that kind, the judiciary, with the Lord Chief Justice, the Lord Chancellor and the Home Secretary saying to them, "We are doing this as an experiment and we want you to make it work and if it does not work we will remove it", would play ball as they always have done. It would work in exactly the same way as the one third remission has worked, which nobody—either judges or public—has ever noticed. It is a most extraordinary thing. There has never been a comment in the whole of the penal history of the last 30 years on the 30 per cent. remission. Yet, in a way, when one comes to think of it, it is a violation of the court's right to sentence. It is something to which the public might easily object, but it never have done so I believe that it is absolutely wrong to suppose that they would do so.

I now come to the real point. We are nearly at the end of this Bill. In many ways it has been a very good Bill, particularly in small matters. We have a lot of small concessions from the Government for which we are very grateful, and I think that the noble Lord on the Front Bench—I was going to say my noble friend—has been flexible on a number of matters and has persuaded his colleagues to meet us.

But the truth of the matter is, as my noble friend Lord Harris said earlier, that we are on the verge of a really serious breakdown. Anybody who says anything from inside knowledge about the prisons, says the same thing. It is intolerable in my opinion that we should have a Criminal Justice Bill which makes no effort whatever to deal with that situation. When I say "whatever" that must be qualified in that the partially suspended sentence is a shot in the dark which could do some good, but which could do some harm. I would have preferred the last amendment but we lost that and so we are concerned with this amendment.

The amendment of the noble Lord, Lord Wigoder, would make a reduction of, I think it is, between 2,000 and 4,000 prisoners if it were adopted. That would make the prison population slightly more manageable in one year and much more manageable in two years. It might save the kind of thing that we think is going to happen. So I beg the noble Lord to take this back as his last chance in this Bill. There is no other chance in this Bill of doing anything which will affect the situation. I beg him at least not just to say, No, but to take it back as the last chance of dealing with an explosion which I prophesy in this House will occur within the next three years.

Lord Elton

My Lords, I am grateful to the noble Lord, Lord Wigoder, for returning to the charge and being able to move this amendment himself at the Report stage, on a principle which has already exercised us. I think I have made it clear already that the Government's view is that any proposal to increase remission equally for all prisoners or any class of prisoner from the present one-third of the sentence to one-half is open to fundamental objections, which I have already outlined in previous debates in relation to supervised release. I do not propose to preface my remarks by going over the ground of the comparison between the partly suspended sentence and the scheme of supervised release. After all, we did that on Amendment No. 48 immediately before dinner. We are now on Amendment No. 49; and as to the basis of the comparison which exercises the noble Lord, Lord Elystan-Morgan, I refer him to the debate on his noble and learned friend's amendment and that of the noble Lord, Lord Hunt, at Committee stage, where I fully described it.

This part passu, if I may so call it, increase of remission would automatically increase the gap between the nominal sentence passed by the court and the effective period served in custody. I stress the word "automatically", because it is that feature of the scheme which goes to the heart of the problem. It is already possible under the parole scheme for a prisoner to be released before he has served half his sentence, but the parole process is founded on the principle of selectivity, and that is why it commands the confidence of both the courts and the public. I endorse what the noble Lord, Lord Monson, said. Certainly in a democracy, and I should have thought in any civilised society, the view of the public has to be taken into account. But a universal reduction is something of which every court must always be aware when setting a sentence, and what they will aim at is the proportion of the sentence that they know will be served; and the scale of reduction now proposed is such that it could not be ignored in the way that the noble Lord, Lord Donaldson, has said that it has been so far.

Lord Avebury

My Lords, the noble Lord has said that the scale of reduction now proposed is anything that the Secretary of State chooses to make it—between one-third and one-half.

Lord Hutchinson of Lullington

My Lords—

Lord Elton

My Lords, we are not in Committee. If the noble Lord, Lord Hutchinson, will be brief, I will give way to him, but after that I must stick to my irons.

Lord Hutchinson of Lullington

My Lords, I will be brief; but to hear the noble Lord, Lord Elton, say that a judge takes into account the amount of remission that is to be awarded is absolutely against all principles of sentencing. No judge in this country ever takes into account the amount of remission. He is trained not to do so. It is nothing to do with him whatever. I really would ask the Minister to think again before he makes an observation of that kind.

Lord Elton

My Lords, I am obliged to the noble Lord for that interruption and for his brevity. I observe, of course, that on occasion judges recommend that life sentences should have a minimum period to run and I was under the impression that judges were concerned about the length of time a prisoner remains in prison. But if the noble Lord corrects me, I stand corrected. As I made clear at the Committee stage, we are certainly not opposed in principle to extending the benefits of parole to a wider range of prisoners, provided that the principle of selectivity is not undermined.

I think that I must also repeat that we welcome the movement towards shorter prison sentences, to which the courts, under the guidance of the Lord Chief Justice, are committed. But, again, the essential feature of that strategy is that it is left to the discretion of the courts to determine the shortest sentence that is compatible with the nature and the seriousness of the crime. An increase in remission imposes a blanket reduction in sentence lengths. That would work against the grant of judicial discretion and, therefore, run the risk of jeopardising what we firmly believe to be the best prospect of achieving a sustained reduction in the prison population; namely, the policy of encouraging and reinforcing the movement towards shorter sentences in appropriate cases. The blanket reduction is an approach which we do not think is justifiable in principle or in practice.

I do not think that it is counter to the arguments that I have adduced against an increase in remission to suggest that certain categories of prisoners could be excluded. First, as the noble Lord, Lord Harris, pointed out in the debate in Committee, to have a scheme under which different prisoners, perhaps within the same prison, are subject to different rates of remission is likely to aggravate tensions. But, more crucially, it does not overcome the arguments about the need for any reduction in effective sentence lengths to be on individual and selective bases if the sentencing discretion of the court is not to be affected. The seriousness of an offence is determined primarily by its category. It is by the length of sentence passed by the court; and if remission were increased for certain categories of sentence length the courts might respond by increasing overall sentences within the range affected.

But if the noble Lord, Lord Wigoder, and the noble and learned Lord, Lord Elwyn-Jones, and others who have spoken in favour of this amendment are not swayed by these considerations—and I do not detect that they are in the mood to be swayed by anything that I say, even if I could say it more cogently and mellifluously than I am now attempting to do—then I must refer them to Section 25 of the Prison Act 1952, because that already enables the Secretary of State to vary the amount of remission to any extent he chooses by amending Prison Rule 5, which is contained in the amendment of the Prison Rules 1964, and to differentiate between the classes of offender according to the length of sentence, but not by the category of offence. What is more, he can do so by the negative resolution procedure, whereas the noble Lord's amendment would require the affirmative procedure. In other words, the change that he proposes would just marginally increase the difficulty of doing what the noble Lord wants done and which can already be done. The opportunity that he seeks to create already exists.

If he was looking for an amendment, it would be a question—though I am not sure that it would be advisable—of considering whether the differentiation that already exists might be by category of offence as well as by length of sentence. But what he asks for he already has on the statute book. I know that this is disappointing to your Lordships, because the noble Lord, Lord Donaldson, in particular feels that this is a great cornucopia of relief of tension in prisons which can somehow be magically unleashed. But if it is, it is in the statutes already, and if it is not a cornucopia it is not worth pursuing, so I hope that he will not press his amendment.

Lord Donaldson of Kingsbridge

My Lords, before the noble Lord sits down, am I right in understanding that as things stand at the moment the Home Secretary could announce that the remission would be increased from one-third to two-thirds or a half? Is that what the noble Lord has said?—because, if so, it is something I did not know, and if it is true it makes a very great difference to this amendment.

Lord Elton

My Lords, it is and it does.

Lord Elystan-Morgan

My Lords, before the noble Lord is deemed to have sat down, may I say that the noble Lord has said very fairly that the Government wish to see in principle the benefits of parole extended to a wider community. Of course, the noble Lord has said at an earlier stage—as, indeed, has his ministerial colleague in another place—that a review is now taking place with regard to the powers that might be taken under Clause 30 of the Bill.

Lord Elton

My Lords, by leave of the House, if the noble Lord would be kind enough to give way, may I point out that this is the Report stage and I do not think that the noble Lord moved this amendment, which does not give him a right of reply, and he appears now to be making a second speech. I am very ready to be corrected if I am wrong, but I think that he is probably out of order. Is that not right?

Lord Elystan-Morgan

My Lords, I certainly would not wish to be out of order, and if the Minister does not wish to deal with that particular matter there is no way that I can take it up.

Lord Elton

My Lords, it is not a question of my wishing to deal with it or not. Both the noble Lord and I have now used up our ration of speech at the Report stage.

Lord Elystan-Morgan

My Lords, I accept that.

Lord Wigoder

My Lords, leaving aside the last altercation, I still find these proceedings faintly baffling. We have just heard the Minister say why the amendment that I have moved is totally undesirable. It is totally undesirable because it might lead to a blanket reduction; it is totally undesirable because the judges might want to compensate for it in the sentences that they pass; and not only is it totally undesirable, but the Secretary of State already has the power. The logic of the Minister's argument is that he should table an amendment himself to repeal that power, because he clearly regards it as so totally unacceptable.

I only want to make one or two comments on the very interesting debate that we have had. First, I deal with the point made by the noble Lord, Lord Campbell of Alloway. I entirely accept that any such proposal would have to be acceptable to the public. That is right. At the same time, one must bear in mind that the public have accepted the parole system. They have accepted that in certain cases there can be an increase, in effect, in remission—people can be let out before they have served two-thirds of their sentence. Without wishing to be too dramatic about it, I am not at all sure whether the choice, so far as the public is concerned, is not going to be whether they find an increase in remission acceptable or prison riots acceptable. It may be as stark as that. I therefore venture to think that this is a matter of considerable urgency.

I think that the noble Lord, Lord Elton, has misread the amendment. He spoke about its being quite unacceptable that there should be an increase in remission of one-third to one half. That is not proposed. It is one-third to any amount not exceeding one half. It could be 35 per cent. as a start. I find it difficult to think that that, for example, would be unacceptable. The noble Lord spoke about the effect on the judges. I can only echo what the noble Lord, Lord Hutchinson, has said; judges are trained not to take account of that, and I think never have. Certainly if there were a modest increase now in the amount of remission I am certain that the judiciary, if their views were taken on this, would say that of course they would find that entirely acceptable and not seek to compensate for it by longer sentences.

The noble Lord repeatedly used the words "a blanket reduction in the length of sentence served". But that is what we have: the one-third remission is a blanket reduction. All I am suggesting is perhaps a slightly larger blanket would have a beneficial effect. I accept, as I indicated in the course of my original observations, that the Secretary of State already has a similar power, although not quite as extensive as in this amendment. I wish there was some indication that the Secretary of State had reflected carefully as to whether he might exercise his present powers under the section of the Prison Act to which the noble Lord referred.

I think in the circumstances that the proper course here is not to seek to divide at this stage; it is to ask to withdraw the amendment, but in the hope that the noble Lord the Minister of State will reflect upon the position between now and Third Reading and may be able to offer by then some gleam of hope that the Secretary of State has been reminded by this debate of his existing powers and will actively consider engaging in consultations with all parties, including the judiciary, to see to what extent he can implement them in the near future. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

8.43 p.m.

Baroness David moved Amendment No. 50: After Clause 31, insert the following new clause:

("Days of imprisonment

(1) A court which passes a sentence of imprisonment of not more than 12 months for any offence, or fixes a term of imprisonment for failure to pay any sum of money shall express the sentence or term of imprisonment imposed by reference to the number of days for which the offender is committed to custody, and that number shall be specified in the warrant of commitment.

(2) This subsection applies to any enactment or subordinate instrument which as regards any offence makes a person liable on conviction to imprisonment for a term not exceeding a specified number of months, not being more than a total of 12 months.").

The noble Baroness said: My Lords, this is a quiet and simple amendment. It is simple in its aims and in its language. I hope it can easily be understood. I should like in that way to contrast it with the Government Amendment No. 52 which comes shortly. This is an amendment that asks for prison sentences of 12 months or less to be expressed in days. Sentences are normally expressed in years or in months and rarely in days, although there is nothing in any Act to prevent sentences being expressed in days, and that I accept.

This means that a sentence of a month or X months is of variable duration according to the time of the year it is passed, since it starts from the month in which it takes effect plus any subsequent months. A defendant sentenced to one month in February would serve 28 days or 29 in leap year, and a defendant sentenced in April, June, September or November would serve 30 days, and any other of the seven months 31 days. Passing shorter sentences of imprisonment in days would have the following advantages. The unfairness which arises through sentences being expressed in months by reason of the variable length of sentence would be removed. Offenders would know more precisely the period for which they were committed to prison.

Sentences expressed in days would be welcomed by the prisons. It would be easier when calculating the proportion of the sentence to be served and suspended for the purposes of a partly suspended sentence under Section 47 of the Criminal Law Act 1977. It would help courts to think in terms of multiples of seven or 10 days rather than months, and this is likely to encourage courts to pass shorter sentences of imprisonment. A sentence of 50 days is just as likely to be as effective as one of two months, or 100 days as one of four months. There would be greater flexibility. The upshot, we hope, would be marginally shorter prison sentences and marginally fewer people in prison. This is a simple amendment. I beg to move.

Lord Sandys

My Lords, I find myself in the position of supporting the objectives underlying this amendment, but having to say that we should not legislate to achieve these objectives in the way that the noble Baroness has suggested. Of course, we want to encourage shorter sentences—and I think this is common ground between us—of imprisonment where this is appropriate. But of course we should build on the now widely aknowledged proposition that it is the first days or weeks of a sentence which have the most salutary effect on offenders. And, of course, we should ensure so far as practicable that all offenders are treated equably. This is a point that the noble Baroness made, among other points she raised.

As regards the question of ironing out the vagaries in the calender, we are up against a particular point here. It is of course a fact of life that there are very many circumstances in which the inequalities in the length of our months cause some inequalities in the treatment or entitlements of individual people. But, as demonstrated by this amendment, if one tries to tackle the inequalities caused by calender months an anomaly is immediately created between sentences of up to and including one year and those longer than a year. The inequality of calendar months is not the only factor which may produce unequal terms of imprisonment. Where a prisoner is due for release at the weekend or on a bank holiday, the practice is for him to be discharged on the nearest preceding weekday. That results in prisoners with identical sentences serving different periods. It is therefore impracticable to give absolute equality of treatment. Such inequalities as do arise, however, from unequal calendar months are reduced by the effect of remission.

Then, if it is agreed that there are advantages in shorter sentences, it is open to the courts to pass such sentences within the present framework. They can, and do, sentence in days, weeks, months or years as appropriate to the particular case. But to oblige the courts in all cases, where a sentence of 12 months or less is involved, to express the sentence in days seems both an unnecessary interference with their discretion and lacking in principle if the idea is thereby to induce shorter sentences. And there can be no certainty that it would achieve that result. Indeed, on what basis can we assume that a sentence of, say, three months would be rounded down to 90 days? Would not 100 days—a much rounder figure—become the norm, increasing rather than decreasing sentences overall?

There would be uncertainties in the administration of sentencing law. The noble Lord, Lord Hutchinson, referred to this. Many inter-dependent parts of sentencing legislation rely on calendar months. Take for example the provisions relating to partly suspended sentences in Section 47 of the Criminal Law Act 1977. They now apply to sentences of not less than six months and not more than two years. If a court was minded to pass a sentence of the minimum term to which partial suspension may apply, but was required to sentence in days, it would need either to compute the exact number of days in the period concerned, which in this example of six months can vary from between 181 and 184 days, or take 180 days and add on four days in all cases in order to ensure that the sentence was valid. This is a mathematically straightforward proposition, but it does appear to be totally contrary to common sense.

I can point to other examples when confusion might arise—the limit of six months' imprisonment available to magistrates' courts for a single offence; the minimum term of six months for the application of a suspended sentence supervision order. And there would also be implications for parole eligibility and many aspects of prison life. Those examples demonstrate that we could not adapt a measure along the lines which the amendment suggests in isolation. We should need to carry out a comprehensive review of all provisions relating to sentences.

I think I have said enough to indicate the Government's view that, far from being a very straightforward and simple amendment, there are many wide complications which stem from both the vagaries of the calendar and problems of administration, and I hope the noble Baroness will feel able to withdraw the amendment.

Lord Auckland

My Lords, I intervene with some trepidation, not being a member of the legal profession. I seem to recall that, in Scottish law, 60 or 90 days is often awarded by the sheriff court for an offence like poaching salmon, which is always a far more serious offence in Scotland than in England. In the courts-martial system, 120 or 140 days' detention is awarded and, so far as I am aware—I speak as a complete layman here among some very distinguished lawyers—that does not have a very deleterious effect on the defendant. Having examined the amendment, I hope the Government will look at it again, whatever period of time is imposed—be it in weeks, months or days; there must be certain difficulties with any of them—because days imposed for short sentences would appear to result in a provision of greater clarity.

Baroness David

My Lords, I am grateful for that support from the noble Lord, Lord Auckland. I never heard such a lot of flannel as came from the Minister; just words, words, words. There are such things as calculators nowadays if one wants to work out how many days, weeks or months are involved. I should have thought this was a simple proposition. Of course, I shall not press the amendment, but I must ask the Minister if he will look at the matter again because his answer was totally unsatisfactory and stupid.

Lord Sandys

My Lords, my honourable and learned friend Mr. Patrick Mayhew, Minister of State, raised two interesting, points on this matter on 25th March in Standing Committee when, at column 803, he put the situation much better than I have: Certainly the Magistrates' Association, which has been in favour of the idea"— the idea of expressing days rather than months— is aware of our view that sentences expressed in days can provide a finer sentencing tool, and in so far as the approach may lend itself to shorter sentences, there are cases in which that is to be welcomed. But that does not mean that I believe we ought to legislate to require courts to adopt that approach. There are difficulties in such a requirement which oblige me to advise the Committee not to accept the new clause". He put the situation very fairly; that to legislate to require this to happen would be unsatisfactory.

Baroness David

My Lords, I shall read again the lengthy first speech of the Minister and decide what to do at the next stage of the Bill, but for the moment I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 34 [The standard scale of fines for summary offences]:

The Lord Advocate (Lord Mackay of Clashfern) moved Amendment No. 51: Page 35, line 33, leave out ("contained in an Act passed after this Act ").

The noble and learned Lord said: My Lords, Clause 34 establishes a standard scale of maximum fines for summary offences and provides that enactments which specify maxima by reference to levels on the scale shall be construed as meaning the scale with the values as shown in the clause or whenever those values are altered by order. The amendment is merely a drafting correction to ensure that this meaning applies to any enactment. I beg to move.

On Question, amendment agreed to.

Clause 35 [General increase of maximum fines for summary offences under Acts of Parliament]:

Lord Mackay of Clashfern moved Amendment No. 52:

Page 36, line 27, at end insert— ("(3A) An enactment in which section 31(6) and (7) of the Criminal Law Act 1977 (pre-1949 enactments) produced the same fine or maximum fine for different convictions shall he treated for the purposes of this section as if there were omitted from it so much of it as before 29th July 1977 had the effect that a person guilty of an offence under it was liable on summary conviction to a fine or maximum fine less than the highest fine or maximum fine to which he would have been liable if his conviction had satisfied the conditions required for the imposition of the highest fine or maximum fine.").

The noble and learned Lord said: My Lords, this is a somewhat technical amendment to ensure that Clause 35, which abolishes enhanced penalties on second or subsequent convictions, will operate correctly on certain enhanced penalty provisions affected by the Criminal Law Act 1977. I could, if necessary, give a fuller explanation of the necessity for the amendment, but perhaps what I have said may suffice. I beg to move.

Lord Elwyn-Jones

My Lords, this is the most perfect example of gobbledygook the House has confronted for a very long time. It is worth reading aloud: An enactment in which section 31(6) and (7) of the Criminal Law Act 1977 "— and then for some reason which is not absolutely apparent to me, there appears in parenthesis: (pre-1949 enactments)". Whether that is a state of historical fact or whether it is relevant to some important legal principle is not immediately apparent. It goes on: produced the same fine or maximum fine for different convictions shall be treated for the purposes of this section as if there were omitted from it so much of it as before 29th July 1977 had the effect that a person guilty of an offence under it was liable on summary conviction to a fine or maximum fine less than the highest fine or maximum tine to which he would have been liable if his conviction had satisfied the conditions required for the imposition of the highest fine or maximum fine". This measure will be applied in magistrates' courts and Crown Courts throughout the country. It does not begin to make sense. May we plead that this should be sent back to the draftsman with our best wishes and prayers that he can produce clarity out of gobbledygook?

Lord Mackay of Clashfern

My Lords, I am sure the draftsman would be the first to acknowledge any help that the noble and learned Lord might have thought fit to offer him on an improvement of this matter, but the problem with which the provision deals is, as I said, rather technical. I think it might be possible to read the amendment in a way which would convey its sense even better than the reading that the noble and learned Lord, Lord Elwyn-Jones, was able to do for us, but I fear that in Hansard it might look the same as his reading, so I will not attempt it.

The problem is that in 1977, the provisions that were introduced to modify existing penalties, without modifying each statutory provision which contained penalties, had to work on a fairly broad brush principle, and in particular it had to operate on provisions in which there was a different fine for the first offence from the fine for the second offence. When one sees how they operate, one sees that in some cases—because of the provisions here referred to, and the part in brackets to which the noble and learned Lord referred is intended simply to state the sidenote for the sections—these sections have the effect that the first offence and the later offence would have the same penalty. If we operated now only on the second part, we should have two levels of penalty for the different offences, according to whether they were the first or second offence, and the policy of the Bill is to get rid of the enhanced penalties for the second offence. That is the rather difficult problem which this provision addresses, and so far I have not seen anyone suggest anything better than this form of words to deal with that problem, but naturally we shall be glad to receive any suggestions for its improvement.

Lord Mottistone

My Lords, is my noble and learned friend saying that what he is trying to do is to put right the complications of the Criminal Law Act 1977, which presumably was passed by your Lordships' House when the noble and learned Lord, Lord Elwyn-Jones, was Lord Chancellor, so he is therefore trying to straighten out what went wrong before?

On Question, amendment agreed to.

Schedule 3 [Maximum fines to be increased by more than the general increase]:

9 p.m.

Lord Mackay of Clashfern moved Amendments Nos. 53 and 54: Page 71, leave out lines 29 to 31. Page 73, leave out lines 26 and 27.

The noble and learned Lord said: My Lords, with the leave of the House, I should like to deal with these two amendments together. They delete from Schedule 3, which secures special increases in maximum fines, the entries relating to the Cinematograph Act and to Section 106 of the Food and Drug Act 1955. These provisions have now been catered for respectively by the Cinematograph (Amendment) Act 1982 and the Food and Drugs (Amendment) Act 1982, and therefore are no longer necessary. This at least is a fairly simple series of amendments. I beg to move.

On Question, amendments agreed to.

Baroness Gardner of Parkes moved Amendment No. 54A:

Page 73, line 34, at end insert—

("Housing Act 1957 (c.56) Offence under Section 27(1) (Permitting unfit premises to be used in contravention of a Closing Order).

Section 27(1)

£100 and £20 per day following conviction.

£1,000 and £50 per day following conviction.")

The noble Baroness said: My Lords, in moving the amendment, I should like briefly to explain its significance. I brought this matter forward earlier at Committee stage. At that time it was slightly different, in that I included a proposal about a continuing penalty which was then not acceptable to the Government. However, I think it very important that I should bring back the matter again. The Government have accepted two amendments which I earlier put forward and which are now included in the Bill between lines 28 and 34, on page 73, relating to the Housing Act. If a person uses premises that are declared unfit for human habitation because a demolition order is placed on them, or because there has been a contravention of an undertaking, the penalty would be £1,000. With regard to the manuscript amendment, in view of the fact that the column headings are not shown, I should like to make clear that the £100 and £20 per day following conviction refer to the existing maximum penalties. If one goes on using a property on which there is a closing order, there is a maximum fine of £100, which is quite different from the other penalties for similar offences, which now go up to a maximum of £1,000. So I should like the inconsistency to be rectified by adding what is proposed in the amendment.

It should also be appreciated that in some areas there is a problem where people secure closing orders on properties simply to have the tenant rehoused by the local authority, which then has an obligation placed on it. Having got rid of the tenant, the owner is then quite free to relet the property with a risk of only £100 fine, which is not a sufficient deterrent.

So I move the amendment on two grounds. One relates to the present gross inconsistency. The other ground is based on my view that it is wrong that people should be rehoused in this way, taking priority over everyone else on a housing list, only for the property to become empty and then re-used in a way that was not intended in the first instance, the closing order having been imposed because the property was unfit for human habitation. I should like to emphasise that the London Boroughs Association and the Association of Metropolitan Authorities are both very anxious to see the penalty brought into line with the other penalties that have already been accepted and are now part of the Bill. My Lords, I beg to move.

Baroness David

My Lords, from these Benches we support the amendment.

Lord Mackay of Clashfern

My Lords, the problem with regard to amendments of this kind is to know to which other offences one should relate them. However, in the very particular circumstances, and awaiting perhaps a more general review of offences in this area, I would be prepared to accept the amendment.

Baroness Gardner of Parkes

My Lords, I thank the noble and learned Lord very much.

On Question, amendment agreed to.

Schedule 4 [Special increases of maximum fines]:

Lord Mackay of Clashfern moved Amendment No. 55: Leave out Schedule 4.

The noble and learned Lord said: My Lords, this is a drafting amendment. I beg to move.

Lord Elwyn-Jones

My Lords, for the leaving out of a schedule to be described as a drafting amendment is to me at the moment incomprehensible, but I am sure that it is right.

Lord Mackay of Clashfern

My Lords, I am not sure whether the noble and learned Lord means that the schedule is incomprehensible to him, or the explanation is incomprehensible. At the Committee stage amendments were made in the interests of simplicity to take into Schedule 3 all the special increases in maximum fines specified in Schedule 4, with the result that Schedule 4 became unnecessary. Therefore I think it is reason- able to describe the deletion of Schedule 4 as a consequential drafting amendment.

Lord Elwyn-Jones

My Lords, I was not disposed to shed tears about the loss of Schedule 4; indeed I am quite happy to see it go.

On Question, amendment agreed to.

Lord Mackay of Clashfern moved Amendment No. 56: After Clause 38, insert the following new clause:

("Byelaws relating to the burning of straw or stubble.

. Any byelaws relating to the burning of straw or stubble made by a local authority under section 235 of the Local Government Act 1972 (byelaws for good rule and government and suppression of nuisances) may provide that persons contravening the byelaws shall be liable on summary conviction to a fine not exceeding £500 and, in the case of a continuing offence, a further fine not exceeding £5 for each day during which the offence continues after the conviction thereof; and any such byelaw in force at the coming into force of this section which specifies £200 or any smaller sum as the maximum fine which may be imposed on summary conviction of an offence under any such byelaw shall have effect as if it specified £500 instead (but with no change by virtue of this section in the maximum daily fine, if any, for which it provides).")

The noble and learned Lord said: My Lords, I think that this amendment will, to your Lordships, have an appearance of similarity. In speaking to the main amendment, Amendment No. 56, I should like to take also Amendments Nos. 57 and 123. These amendments flow from the undertaking given in Committee in response to my noble friend Lord Stanley of Alderley to consider applying the new maximum fine of £500 for offences connected with straw and stubble burning directly to the relevant local authority by-laws, instead of only to the primary legislation by which they are empowered.

As was explained in the Committee, the general approach in this Part of the Bill is to affect maxima in primary legislation, but to leave the penalty provisions in subordinate legislation for revision under these powers when the relevant instruments are re-made by the authority responsible for the subordinate legislation. However, in the light of my noble friend's reasoning that it was particularly important in this instance to preserve consistency in maxima in all by-laws relating to straw and stubble burning, and since the Criminal Law Act 1977 achieved that by applying the then maximum directly to the by-laws, we have agreed to adopt a similar approach. The amendments that I now ask the House to accept, therefore, provide a new clause for this purpose in substitution for Clause 39, and make a consequential repeal in Schedule 15. My Lords, I beg to move.

The Deputy Speaker (Lord Aberdare)

My Lords, the Question is, Whether Amendment No. 56 be agreed to. As an amendment to this amendment I call Amendment No. 56A, Lord Monson.

Lord Stanley of Alderley

My Lords, if it is in order to speak on No. 56 first, before we go on to the amendment to the amendment, I should like to thank my noble and learned friend for tabling this amendment. I am not in order?

The Deputy Speaker

No, my Lords. Amendment No. 56A has been called.

Lord Monson moved, as an amendment to the amendment, Amendment No. 56A: Line 6, leave out ("£500") and insert ("£1,000").

The noble Lord said: My Lords, I beg to move Amendment No. 56A and, with the leave of the House, I shall speak at the same time to Amendment No. 56B, which is consequential. First, I should like to thank the noble and learned Lord the Lord Advocate and the Government for the partial concession that they have made; but we do not think it goes far enough. The purpose of these amendments is to raise the maximum permissible fine to £1,000 from the £500 proposed, and I stress that it is a maximum. Of course, the average fine imposed in practice would almost certainly be less.

Some of your Lordships may remember that many of us spoke in favour of broadly similar amendments in Committee, but we did not press them at the time because the Minister promised to give the matter further consideration. Following the Committee stage, the noble Lord, Lord Elton, was kind enough to write to me at considerable length setting out the reasons why, in the Government's view, they did not favour raising the maximum fine to £1,000. Both I and other noble Lords to whom I sent copies of the Minister's letter have studied it with the greatest care, but, with respect, we find it difficult to accept the Government's arguments.

In Committee I gave instances of other offences in the Bill, seemingly of lesser gravity, or at any rate of no greater gravity, where the Government had nevertheless thought it right to fix a maximum fine of £1,000—double that proposed for the straw and stubble burning offences. The first instance I cited concerned selling a car with a defective reflector or reflectors, bearing in mind that both this and irresponsible stubble burning can occasionally cause road traffic accidents. In his reply the noble Lord, Lord Elton, suggested that the latter—that is to say, selling a car with a defective reflector—was a deliberate offence, whereas straw and stubble burning offences were accidental. I am bound to say that I find this rather hard to accept, given that replacement reflectors will almost certainly cost less than one half of 1 per cent. of the value of the second hand car being re-sold. It would hardly be worth a trader's while to omit to replace them deliberately. As for straw burning offences, the effects, of course, may be accidental, but the motive quite often is not. To be blunt, there is money to be made.

Another instance cited where the Government propose in this Bill to raise the maximum fine to £1,000 concerns tree-felling offences under the 1967 Forestry Act, which hardly seemed to me more serious than straw burning offences. However, the Minister replied that the forestry offences affect the promotion, establishment and maintenance in Great Britain of adequate reserves of growing trees, with serious long-term economic and environmental consequences for the country as a whole". I am bound to say that this seems more appropriate to the age of Queen Elizabeth I than Queen Elizabeth II. It may well be that we need more men o'war—indeed, that is what the navy lobby are claiming—but men o'war nowadays tend on the whole to be iron-clad or even aluminium-clad; they are no longer built of stout English oak. But I do not want to go any further down the path of the 1967 Forestry Act except to point out that there are no laws to ensure the establishment and maintenance of good agricultural land or to preserve it from the depredations of developers.

Lastly, the Minister pointed out that the fine proposed was unusually large for a by-law offence. This is quite true; we should not wish to deny that. But although it is not the case that there has always to be a first time, it is true that there is no reason why there should not be a first time if circumstances demand it. Suchrespected bodies as the National Farmers' Union, the Country Landowners' Association and the Association of County Councils all believe that circumstances now demand it. None of these organisations has any enthusiasm for drastic punishment as such, but they do believe that a £1,000 maximum fine is necessary as a deterrent in view of the profits that can be made by a small minority of rogue farmers in the absence of such a maximum. I beg to move.

Lord Stanley of Alderley

My Lords, I seem to have started a little early last time. I should like to thank my noble and learned friend for tabling the first amendment, and I hope he will not think me ungrateful because I am asking for more. I am only following a good Tory principle of trying to do better. I would have preferred that the habitual offender was banned. I was not able to get that so I am supporting the £1,000 maximum fine. I would ask the Government whether it is possible for them to publicise the merit of these straw-burning by-laws to local authorities. There are still local authorities in straw-burning areas in the South and East who have no by-laws. I know it is not the Government's job to tell local authorities what to do but perhaps they could publicise it for it would be very helpful for all in straw-burning areas to have by-laws so that we were all equally treated if we offended against the straw-burning code. I hope that the Government will accept this amendment of £1,000 maximum fine. If they cannot do that, then I ask that they give the House a categorical assurance that by the harvest of 1983 the maximum fine will be raised to £1,000 for contravening the by-laws.

Lord Walston

My Lords, I should like to support this amendment. It may seem peculiar that somebody who is probably, without boasting, one of the largest straw burners in East Anglia should support an increase of fine over that which the Government propose; but I think—the National Farmers' Union with whom I frequently disagree, also think—that it is of enormous importance that the public should come to realise that responsible farmers are just as aware, if not more so, of the dangers and damage done by indiscriminate straw burning as is the ordinary urban or rural dweller who is not a farmer. I think it important the farmers should be made to realise their responsibilities with regard to straw burning. These days, it has become an essential part of many farming systems. We cannot ban it altogether. I hope it will never come to that. But in order to prevent a universal ban it is necessary that farmers exercise proper control over their burning.

I do not agree entirely with the noble Lord, Lord Monson, when he talks about the profit which comes from straw-burning. It is a convenience. Farmers do not burn carelessly in order to increase their profits. They do it because they have got to get on with the job. For example they say: "I cannot be there myself. I have to carry on somewhere else with the combine. I will leave it to the boy to do it. We cannot plough round properly because there is not time to get the tractor out". It is the sense of urgency which comes at harvest time which is understandable. Unless it is very clear that this is a serious offence that attitude will continue. The best way of bringing to farmers the seriousness of the offence is by having this very substantial fine. Therefore, I hope that the Government will accede to this amendment and will raise the maximum fine from £500 to £1,000.

Earl De La Warr

My Lords, I should like to say that I think the Government have it about right as they have it now. I agree with my noble friend Lord Stanley that local authorities ought to be notified of this so that they can all put themselves in the same position to deal with the rogue in the same way. I am glad that the noble Lord, Lord Monson, was taking to task for using the word "profit" in connection with straw burning. That is not why any of us do it. I am not as big a straw burner as the noble Lord, Lord Walston, but I am one who, like him, does it with great care—with youngsters, it is true, but well supervised. I hope that the Government will give no undertaking to my noble friend Lord Stanley about what they will do in future. Let him be satisfied with the tact that they have gone a long way to meet his point. It seems that they have it right. Let them leave it at that.

Lord Elystan-Morgan

My Lords, I speak on this not only as a countryman but on behalf of my noble and learned friend Lord Elwyn-Jones and my noble friends Lady David and Lady Llewelyn-Davies whose enthusiasm on this matter knows no bounds. The support that was given on a previous occasion was explained by a careful examination of all those substantial arguments in favour of the higher penalty. We remain utterly unrepentant in relation to those matters and utterly unremitting in our attitude.

9.18 p.m.

Viscount Ridley

My Lords, I should like also to support this amendment. I confess to being an unrepentant straw burner and hope to be able to go on doing so. Like my noble friend Lord De La Warr, I cannot burn as much as does the noble Lord. Lord Walston, but I intend to do my best in the forthcoming harvest and consider it important. I am afraid that the conservation lobby, if this thing gets out of hand, will achieve a total ban on straw burning. This is the danger we face. The deterrent has got to be realistic. Had the noble Lord, Lord Monson, put down £2,000, I should have supported it; I think that £1,000 can mean little to a farmer of the standing of Lord Walston.

My Lords, we have to make this a serious offence if we are to get across to irresponsible farmers the importance of it. I speak sometimes on behalf of county councils. They are the fire authorities responsible in the arable areas of England, if not the metropolitan areas. As I am sure my noble friend on the Front Bench knows only too well, they are very keen that the penalty should be realistic and they have made repeated representations to Government that the penalty must be increased to £1,000 and more as inflation goes on. They again today have confirmed that they feel very strongly that we should, if at all possible, keep the penalty as high as we can.

Baroness Sharples

My Lords, I should like to support this amendment. We have been careless in the past with straw burning. The penalty was not a strong enough deterrent. I entirely support my noble friend in the figure of £1,000 and perhaps more.

Lord Mottistone

My Lords, I am no farmer, but I have gazed through Schedule 3 and I find no logic in the maximum penalties newly allocated for various offences. Therefore, its seems to me that the Government can readily agree to this amendment without being inconsistent with the other factors in Schedule 3.

Lord Mackay of Clashfern

My Lords, listening to some of the speeches in connection with the amendment, I am reminded of someone who in your Lordships' House told me the other day that they had been pressing hard for the enforcement of the speed limit in a particular locality, and not long after they pressed successfully for that they were the first to be prosecuted.

I am not suggesting that that would happen to anyone who has spoken here; but it is a fact that the penalty is being raised from £200 to £500, which is a considerable advance on the existing position. Secondly, it has to be remembered that these offences are by-law offences concerned essentially with negligence in carrying out an activity which is not in itself unlawful and which as my noble friend was saying he would like to see continuing in that category. They are concerned specifically with the provision of fire breaks, observance of the times allowed for burning, supervision of the activity and, in some by-laws, notification of the fire brigade. They cannot therefore be placed on a par with more serious offences triable by the magistrates' courts where the maximum fine available is generally £1,000.

Some of your Lordships have argued that other offences were subject to maxima of £1,000; but all of those quoted are in Acts of Parliament not by-laws which are of a selective, local application at the local authority's discretion, as indeed has already been emphasised.

Thirdly, where a farmer can be shown to have failed in the duty imposed on all employers and self-employed persons to conduct his operations so as to ensure that those not in his employment are not exposed to risks to their health and safety, he may be prosecuted for breach of Section 3 of the Health and Safety at Work Act 1974, the maximum penalties there being £1,000 on summary conviction and two years' imprisonment or a fine at the discretion of the court, or both, on conviction on indictment. That provision has successfully been invoked in cases where, for example, road accidents have been caused by smoke from straw burning.

It is clear therefore that the general laws that may be used against farmers for the consequences of their failure to exercise proper control over burning are serious. We should not duplicate the general law by upgrading the by-laws to try to cover offences with which they are not designed to deal.

Finally, the new maximum of £500 made available for by-laws relating to straw and stubble burning under Section 235 of the Local Government Act—like all summary maxima in enabling powers—once the Bill receives Royal Assent, will be subject to increase by order to take account of changes in the value of money. My honourable and learned friend Mr. Mayhew has already indicated in another place that the order-making power to increase maximum fines will be exercised as early as practicable next year. The timing will be affected by a number of factors, but that is the way he has put the matter. There is every likelihood, on the basis of the calculations which have been made, that the appropriate factor by which this fine will be multiplied will be two so that, on the basis of what has been said, the likelihood is extremely strong that fairly early next year this particular maximum will be increased to £1,000 in the primary legislation.

I hope that, in the light of these explanations, although I well appreciate what has been said by so many of your Lordships about this particular offence, your Lordships will feel able to agree that this amendment should not pass and the Government amendment should stand on its terms. The Government have moved a considerable distance in this matter and I hope the House will recognise that by accepting the amendment as the Government have proposed it.

Lord Melchett

My Lords, I hope the House will not. I really do not think the noble and learned Lord is right to suggest that an increase from £200 to £500 is significant when all of us who are involved in farming—along with other noble Lords, I am a farmer who also burns straw—know perfectly well that there is a very real possibility that straw burning will be banned altogether. Against that background, an increase from £200 to £500 is not adequate at all, and that view has quite clearly been expressed from all sides of the House both tonight and during the Committee stage.

The noble and learned Lord also mentioned the penalty available under the Health and Safety at Work Act. It seems to me that argument could go both ways. If somebody could be fined under one piece of legislation for a particular offence, there is surely some merit in suggesting that similar fines should be available under other legislation which applies to very similar activities. That seems to me to strengthen the case for suggesting a fine of £1,000, as proposed by the amendment.

The noble and learned Lord then went on to talk about the automatic uprating which will occur some time next year. He was not able to give us any guarantee—I must say I did not think that he would be—about the precise timing of that. It is, of course, crucial if next year's harvest and straw burning is going to be affected that the increase should take place before that. In any event it seems to me that the job of your Lordships' House tonight is to make a decision about the level that is suitable for this offence in relation to other penalties in existence at the moment. As the noble Lord, Lord Monson, said, it is quite clear that £1,000 is certainly not too high a penalty for the sort of consequences that can arise from the unsafe or irresponsible burning of straw for whatever reason—whether carelessness, profit or whatever it may be. As we heard at the Committee stage from a number of noble Lords, the consequences can be very serious indeed and can lead to serious accidents and loss of life.

Finally, the noble and learned Lord tonight, as did the noble Lord, Lord Elton, at Committee stage, has suggested that this is not really suitable for a by-law. It seems to me that your Lordships' House can perfectly well decide that the right penalty is £1,000. If the Government then decided that the right offence is not a by-law but is some other one, the Government are free to take action and amend the Bill in a suitable way. What we are being asked to decide tonight is that £1,000 is by no means too high a fine for irresponsible and careless straw burning, and I hope the House will do decide.

Lord Monk Bretton

My Lords, I do think we must get this matter right for harvest 1983. The Bill will be too late for harvest 1982. It is really a question of whether the by-law fines will be in time or not for the harvest of 1983.

I do not feel entirely satisfied that my noble and learned friend has been able to give an assurance that is quite adequate for this purpose. Most definitely, we need to get this matter under proper control in order to avoid a total ban on straw burning, which might follow if we do not. A total ban on straw burning would be most regrettable economically and we should avoid it if we can. There is no doubt that the farming industry must be made to get this situation under control, in order to avoid a total ban which, nationally, would be most costly. In view of all this, I must support the amendment of the noble Lord, Lord Monson, because we must be sure of getting things right for 1983, whatever other consequences might arise there-after.

Lord Monson

My Lords, may I say how very grateful I am to the many noble Lords in all quarters of the House who were kind enough to support this amendment. I am sorry if it appeared to one or two noble Lords that I was suggesting that there were enormous profits to be made from straw burning. All I meant to say was that it was often less unprofitable to contravene the by-laws than to obey them. I think that the noble Viscount, Lord Ridley, put that very well. I feel strongly that the maximum penalty for this offence, whatever it is, ought to go more or less hand in hand with the maxima fixed for the other offences which I cited, both in Committee and this evening, such as selling a car with a defective reflector, or offences under the 1967 Forestry Act.

I should like to thank the noble Lord, Lord Melchett, in particular, for dealing more than adequately with the arguments put up by the Government. I think it is right that we should test the opinion of the House and, at least, give the other place a chance to look at these amendments. If, after due consideration in October, when I gather they are going to look at our amendments, they reject them, all well and good, but I think we ought to have the opinion of the House tonight.

9.32 p.m.

On Question, Whether the said amendment (No. 56A) to the amendment shall be agreed to?

Their Lordships divided: Contents, 63; Not-Contents, 30.

DIVISION NO. 3
CONTENTS
Abinger, L.	Killearn, L.
Ailesbury, M.	Llewelyn-Davis of Hastoe, B.
Airey of Abingdon, B.
Auckland, L.	Lloyd of Kilgerran, L.
Avebury, L.	Lucas of Chilworth, L.
Birk, B.	Mackie of Benshie, L.
Bishopston, L.	Massereene and Ferrard, V.
Blease, L.	Melchett, L.
Brougham and Vaux, L.	Monk Bretton, L.
Chelwood, L.	Monson, L.—[Teller.]
Cledwyn of Penrhos, L.	Montgomery of Alamein, V.
Colville of Culross, V.
Cork and Orrery, E.	Mottistone, L.
Cranbrook, E.	Oram, L.
David, B.	Peart, L.
Davidson, V.	Penrhyn, L.
Donaldson of Kingsbridge, L.	Pitt of Hampstead, L.
Elliot of Harwood, B.	Ridley, V.
Elwyn-Jones, L.	Rochester, L.
Elystan-Morgan, L.	St. John of Bletso, L.
Faithfull, B.	Sharples, B.
Ferrier, L.	Stanley of Alderley, L.—[Teller.]
Fortescue, E.
Gardner of Parkes, B.	Stone, L.
Glanusk, L.	Taylor of Gryfe, L.
Hall, V.	Teviot, L.
Harris of Greenwich, L.	Torphichen, L.
Hatch of Lusby, L.	Underhill, L.
Hives, L.	Vernon, L.
Houghton of Sowerby, L.	Vickers, B.
Irving of Dartford, L.	Walston, L.
Kagan, L.	White, B.
Kemsley, V.	Wigoder, L.
NOT-CONTENTS
Abercorn, D.	Lyell, L.
Avon, E.	Mackay of Clashfern, L.
Beloff, L.	Marshall of Leeds, L.
Campbell of Alloway, L.	Mersey, V.
Craigmyle, L.	Murton of Lindisfarne, L.
De La Warr, E.	Orkney, E.
Denham, L.—[Teller.]	Portland, D.
Elton, L.	Rochdale, V.
Glenarthur, L.	Sandys, L.—[Teller.]
Grimston of Westbury, L.	Skelmersdale, L.
Harvington, L.	Stodart of Leaston, L.
Henley, L.	Trefgarne, L.
Hornsby-Smith, B.	Trenchard, V.
Kinnaird, L.	Trumpington, B.
Long, V.	Vaizey, L.

Resolved in the affirmative, and amendment to the amendment agreed to accordingly.

9.39 p.m.

Lord Monson moved, as an amendment to the amendment, Amendment No. 56B: Line 12, leave out ("£500") and insert ("£1,000").

The noble Lord said: My Lords, I beg to move Amendment No. 56B, which is consequential upon the amendment I have just moved.

On Question, amendment to the amendment agreed to.

Lord Mackay of Clashfern

My Lords, the Government show their generosity by moving Amendment No. 56, notwithstanding the fact that Amendments Nos. 56A and 56B have been carried. I beg to move.

On Question, Amendment No. 56, as amended, agreed to.

Clause 39 [Bye-laws relating to the burning of straw or stubble]:

Lord Mackay of Clashfern moved Amendment No. 57: Leave out Clause 39.

The noble and learned Lord said: My Lords, this amendment is consequential, and I beg to move.

On Question, amendment agreed to.

Clause 44 [Power to alter sums]:

Lord Elton moved Amendment No. 58:

Page 42, line 30, at end insert— ("(fa) paragraph 11(2) of Schedule 5A to the Army Act 1955 and to the Air Force Act 1955 and Schedule 4A to the Naval Discipline Act 1957 (compensation orders); (fb) paragraph 14(1) of those Schedules (recognisance from parents and guardians);").

The noble Lord said: My Lords, it may be for the convenience of the House if I speak also to Amendments Nos. 82, 84A, 106, 117 and 127 together with Amendment No. 58. These amendments deal with changes in the armed forces Acts, such as the Army Act 1955, et cetera, which are necessary in consequence of the changes made in this Bill. The powers of armed forces tribunals—the court martial and the standing civilian court—are usually kept broadly in line with the powers of the criminal courts in England and Wales. The main amendments are Nos. 82 and 84A, which together set out a schedule of changes to the armed forces Acts.

In consequence of Part I of the Bill, these amendments abolish imprisonment for offenders aged under 21 and replace it with custodial orders and custody for life. There is provision for service offenders to be allocated to appropriate institutions in England and Wales, as if they had received sentences under Part I of this Bill. The powers of the standing civilian court when imposing financial penalties on a juvenile are amended to bring them in line with the changes made in Clauses 25 to 27. Amendment No. 58 makes changes in line with Part III of the Bill, to increase and inflation-proof the financial penalties available to those tribunals. The whole purpose of these amendments is to bring the armed forces provisions into harmony with the provisions we are making in the Bill. I should like to give notice now that it might therefore be necessary to make further small changes to account for amendments made to the Bill as it goes through this House. I hope that your Lordships will bear with us if it proves necessary to bring forward such amendments to do that on Third Reading. I beg to move.

Lord Elwyn-Jones

My Lords, the only matter that puzzles me a little is this: those who have to enforce the Army Acts, armed with the manual of military law, will not have the benefit of having the Criminal Justice Act with them. How will these important matters, which will obviously affect the armed forces (and I am not querying the content of what is proposed but merely the procedure), be wedded into the Army Act? On a consolidation I can quite understand its happening, but I am a little puzzled at the moment as to why we see these Army Act and Air Force Act amendments appearing in the Criminal Justice Act. I may be missing the obvious, but it is not very clear to me at the moment.

Lord Elton

My Lords, I would never expect to leap at once on something which the noble and learned Lord, Lord Elwyn-Jones, did not find obvious. Incidentally, I regret that he did not receive the document I hoped he might have had, which explains some aspects of this matter, but not the aspect to which he applies. Plainly, the effects of this Bill will be carried into the legislation with which the noble and learned Lord is concerned, and I imagine that the manuals will be updated. This is an important matter and I will find out the machinery by which it is actually achieved and will write to the noble and learned Lord at the first opportunity. I can tell him that the provisions are now scattered throughout the armed forces Acts and that they will probably be consolidated in 1986. The noble Lord is anxious, no doubt, to know how justice will be conducted in the armed forces between now and 1986, and I shall try to enlighten him.

Lord Elwyn-Jones

I am most grateful to the noble Lord.

On Question, amendment agreed to.

Lord Mackay of Clashfern moved Amendment No.59:

Page 42, line 33, at end insert—

1. ("(ga) the Table in section 31(3A) of the Powers of Criminal Courts Act 1973;
2. (gb) section 8(1)(b) of the Armed Forces Act 1976 (maximum fine awarded by Standing Civilian Courts);
3. (gc) paragraph 22(1) of Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982 (various offences relating to sex establishments);
4. (gd) paragraph 23(2) of that Schedule (permitting persons under 18 to enter sex establishments and employing persons known to be under that age in the business of sex establishments);
5. (ge) section 7(4)(a) of the Cinematograph (Amendment) Act 1982 (using premises without licence);").

The noble and learned Lord said: My Lords, Clause 44 lists the provisions which are affected by the power to alter maximum fines and certain other sums by order. The amendment merely adds to the list the table of maximum periods of imprisonment in default now applicable to Crown Courts by virtue of Clause 60, the maximum fine available to standing civilian courts under the Armed Forces Act 1976, the relevant provisions of the Local Government (Miscellaneous Provisions) Act 1982 which provide maxima higher than £1,000 for offences relating to the licensing of sex establishments, and the similar provision in the Cinematograph (Amendment) Act 1982 relating to the licensing of cinemas. I beg to move.

On Question, amendment agreed to.

Clause 45 [Fines for certain offences under Merchant Shipping Acts and Prevention of Oil Pollution Act 1971]:

Lord Mackay of Clashfern moved Amendment No. 60.: Page 43, line 36, after ("(fa) "insert ("shall").

The noble and learned Lord said: My Lords, it may be convenient to take Amendments Nos. 60, 61 and 62 together. Amendments 60 and 61 are merely drafting corrections to the provisions in Clause 45 on fines under Merchant Shipping and Oil Pollution legislation. Amendment 62 simply makes provision for different categories of persons to be guilty of an offence under regulations and to be subject to maximum fines according to those categories. I beg to move.

Lord Wigoder

My Lords, it is getting a little late and I am obvoiusly getting tired. I cannot at the moment understand these amendments at all. In line 36, if we put in the word "shall" after "(fa)" we shall make it two consecutive "shalls"; so it will read: nor paragraph (fa) shall shall be substituted for". Then if we go to line 37 it will read: shall be substituted for paragraph (f) shall".

Lord Mackay of Clashfern

My Lords, I think this is a matter I can look at further. I do not believe it is right to delay the House at this point to try to explain this further.

The Deputy Speaker (Baroness White)

My Lords, does the noble Lord wish to withdraw the amendment?

Lord Mackay of Clashfern

No.

Lord Donaldson of Kingsbridge

My Lords, can we agree to this which says, "shall shall"? Surely not. It does not make any sense. We have to treat the thing seriously. I think the amendment should be withdrawn.

Lord Avebury

My Lords, the noble Lord the Minister is just as capable of reading what it says on the Marshalled List as anybody else in the House, including my noble friend. Either my noble friend is right and the amendment does cause the Bill to read "shall shall", or my noble friend is misreading the amendment and the Bill as amended would make perfectly good sense. It is a simple matter on which I would have thought the noble Lord would have no difficulty in making an immediate reply.

Lord Mackay of Clashfern

My Lords, I thought it might be easier for me to explain this later to the noble Lord, Lord Wigoder, but if your Lordships wish me to do it now I certainly shall—and that is the third "shall". If your Lordships look at line 36 you see that what is provided there is: in the words following paragraph (g), and then there is a quotation neither paragraph (f) nor paragraph (fa)", and that ends the quotation and then it goes on "shall be substituted for". What this amendment is doing is putting a "shall into the quotation; and there is nothing wrong in saying the quotation ending with "shall" shall be substituted for paragraph (f). So the matter is by no means a nonsense. But I would hope that perhaps I would avoid delaying your Lordships by explaining that. The same explanation applies to the next amendment.

On Question, amendment agreed to.

Lord Mackay of Clashfern moved Amendment No. 61: Page 43, line 37, at end insert ("shall not").

On Question, amendment agreed to.

Lord Mackay of Clashfern moved Amendment No. 62: Page 44, line 28, after ("regulations,";") insert— ("(bb) that, in such cases as are prescribed by the regulations, such persons as are so prescribed shall each be guilty of an offence created by virtue of paragraph (b) or (ba) of this subsection;").

On Question, amendment agreed to.

Clause 47 [Variation of instalments and means inquiries.:

9.52 p.m.

Baroness David moved Amendment No. 63:

Page 46, line 7. at beginning insert— ("( ) Section 85 of the Magistrates' Courts Act 1980 shall be amended by inserting after the words "under section 82(5) above" the words", or where the offender is serving a term of imprisonment or detention in a detention centre, or a sentence of youth custody,"").

The noble Baroness said: My Lords, this amendment deals with the matter of fines outstanding when a defaulter is in prison and it is necessary because of a judgment in the House of Lords. In Forrest v. Brighton Justices the House of Lords held that a magistrates' court was not authorised by Section 82(5) of the Magistrates' Courts Act 1980 to issue a warrant of commitment against an offender serving a sentence for default in payment of sums ordered to be paid, without giving prior notice to the offender and giving him an opportunity to be heard. Moreover, the Lords have emphasised that the issue of a commitment warrant under Section 82(5)(b) is a judicial act to be performed only at a hearing of which notice has been given.

The effect of Section 82(5)(b) of the Magistrates' Courts Act 1980 is to enable a magistrates' court to issue a warrant of commitment against a defaulter who is in prison without any necessity for holding a means inquiry at which the defaulter is present. One reason why Parliament did not require a means inquiry to be held in such circumstances was, presumably, that the majority of defaulters in prison would have no money, so that the inquiry would be futile. Another reason might have been that any period of imprisonment for default would generally be ordered to run concurrently with the sentence which the offender was already serving, so that its length would have little practical effect. An offender will always welcome a commitment warrant for a concurrent term being lodged because it means that it will wipe the slate clean, and he will come out of prison no longer owing fines.

Many magistrates acknowledge that while the lodging of a commitment warrant for a concurrent term means an offender is being let off his fines, it may, nevertheless, help to encourage him to make a fresh start, and avoid the possibility of his being returned to prison a few weeks later for unpaid fines. From the court's point of view, this arrangement has the advantage of writing off the books of the court, fines which might otherwise prove difficult to recover after the offender's release.

Before the decision in Forrest v. Brighton Justices, it was the policy of most magistrates' courts to lodge commitment warrants for unpaid fines, generally for concurrent periods, as a matter of routine practice. Since that decision, a notice of hearing must be given whether a warrant of commitment is to be issued for a concurrent or consecutive term, and a hearing before at least one justice must take place. With the advent of the court hearing there is some evidence to suggest that, having given notice to the defendant, magistrates are scrutinising the question of lodging a warrant more closely and the incidence of consecutive terms being ordered has increased. If this tendency were to be reflected nationally it would have an adverse effect on the prison population.

In busy magistrates' courts, a dozen or more warrants will need to be lodged every week. The procedure that must now be followed adds significantly to the administrative work of the courts, and, we suspect, to that of the prison service. In return, there is no real benefit or gain in the majority of cases where warrants for concurrent terms are ordered.

We accept the reasoning behind the House of Lords decision, that the rules of natural justice require a notice of hearing to be given before a consecutive term of imprisonment is ordered, but the decision is wasteful of public resources for the majority of cases where the court is content to order concurrent terms. With a view to simplifying the procedure, we propose that as an alternative to lodging a commitment warrant, a magistrates' court should have power to remit a fine, on being satisfied that the offender is detained in prison. The power to issue and lodge a warrant of commitment after notice of hearing had been given, should remain for those cases where the court considered a consecutive term should be ordered. We believe, however, that in most cases courts would adopt the simpler procedure of remission and not wish to consider ordering consecutive terms. If this amendment were accepted, it would save both the courts and the prison service time, and the defendant would emerge from prison with a clean slate and the opportunity of a fresh start. I beg to move.

Lord Sandys

My Lords, I have listened with care to what the noble Baroness has said, and although the Government have every sympathy with proposals which might relieve the judical and administrative burden, to which she has referred, falling on magistrates' courts, they cannot support the amendment. It is readily accepted that the decision of this House in the case of Forrest v. Brighton Justices, to which she has referred, requires courts to go through procedures which place a burden on them and which end up with what is, in effect, very much the same result as would be achieved if this amendment were accepted and brought into effect. That is to say, at present the court will frequently lodge a warrant in default of payment of a fine which requires a term of imprisonment concurrent with the imprisonment the defaulter is at present serving, so that he effectively serves no extra term and leaves prison with outstanding fines wiped off the slate, as the noble Baroness mentioned. But there is an important point of principle here. The very issue of a warrant of commitment in default is an expression of the court's displeasure that the offender has failed to fulfil his duty to pay the fine which was imposed upon him. Whether the displeasure should extend to ordering a term of imprisonment in default to run consecutively to or concurrently with the term the prisoner is at that moment serving is rightly left to the judicial discretion of the court.

The power to remit a penalty which is contained in Section 85 of the Magistrates' Courts Act 1980—the section which this new clause would seek to amend—is rather special. It allows the court to interfere with a penalty it has previously imposed if at a subsequent inquiry the court discovers that the offender's circumstances have changed since his conviction and if it forms the view in consequence that it would only be just to set aside the whole or a part of the fine originally imposed upon him. Its essential purpose is to protect the individual who has been fined from unjust enforcement of the fine if he subsequently falls on particularly hard times—he might have become unemployed through no fault of his own or becomes ill and unable to work because of that. But the present new clause would equate the mere fact of imprisonment with such circumstances, and remission of any outstanding fines would quickly become seen as an entitlement for persons who are sent to prison, regardless of whether or not they still have means which would allow them to meet those outstanding liabilities.

What is proposed in the present amendment would come into effect only when a person had committed an offence for which he was fined and thereafter had defaulted in payment of the fine and, what is more, been convicted of a further offence for which he had been imprisoned. By the operation of a provision along the lines of this amendment, that person would then be placed at a distinct advantage over the offender who paid his fine immediately and he would be placed on a par with a person whose circumstances have changed so much since his conviction and sentence that it is only just that the fine be set aside by the court. I cannot agree that that should be the position.

Baroness David

My Lords, I thought that this was a suggestion which would save the courts a great deal of time, and I think that the prisoners would benefit from it and come out with a clean slate. There would still be the opportunity for the courts to impose fines and get the money if, in fact, they thought that the prisoners were being treated too generously. I do not think that it would prevent that from happening. However, I shall, of course, read what the Minister has said, and if I am not convinced, as I feel I am not convinced at the moment, I can come back at the next stage. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10 p.m.

Baroness Birk moved Amendment No. 64: After Clause 48, insert the following new clause:

("Attachment of earnings orders

.—(1) The Attachment of Earnings Act 1971 shall have effect subject to subsections (2) and (3) below.

(2) If it appears to a court by which a sum has been adjudged to be paid by a conviction that the offender is a person to whom earnings fall to be paid, the court may, after inquiring into his means, make one or more attachment of earnings orders.

(3) A court shall not make an attachment of earnings order under subsection (2) above unless the offender has defaulted in payment of the sum or consents to the making of the order.").

The noble Baroness said: My Lords, this clause, which has the support of the All-Party Penal Affairs Group, would enable the courts to make an attachment of earnings order at the time a fine is imposed, provided that the offender consents. At present the offender may apply for an attachment of earnings order to be made at any time, including the time the fine is imposed, but unless he himself takes the initiative and applies for an order to be made, the court has to wait until he has defaulted in payment before it is empowered to make an attachment of earnings order.

We went over this ground on Committee, so I shall not go into the argument that then took place. It was evident that it was not clear. The noble Lord, Lord Elton, accepted the point that there was a difference between saying to the offender, "Are you willing to have an attachment of earnings order?" and the offender saying, "Are you going to ask me to do so?". The noble Lord, Lord Campbell of Alloway, said that he had been a recorder for over 18 years and did not know that this existed that way round.

It ended with the Minister saying that he agreed that it was desirable for a provision of the kind contained in the amendment to be included in legislation if it was felt that it was not clear, and he agreed to take advice on the best way of clarifying the courts' powers in this regard. As an amendment has not yet been put down, we have put this down again and hope now to get a positive response from the Minister. I beg to move.

Baroness Faithfull

My Lords, I should like to support this amendment, because the amount of time that the police spend on collecting and dealing with fines is out of all proportion to what needs to be done. I have never known anybody ask for an attachment of earnings order. They have never known that such a thing exists.

Earl Fortescue

My Lords, in my experience a lot of court time is wasted in dealing with fine defaulters. Unfortunately, I am not too well acquainted with the details of the Attachment of Earnings Act 1971. If a man is brought before the court for failing to pay a fine and he is in employment, by far the easiest way of getting that fine paid is to make an attachment of earnings order.

The court on which I sit is close to a Royal Air Force base. Many of the people who are fined are members of the Royal Air Force. But for some extraordinary reason, the employer has to consent, and in the case of this particular Air Force station—I do not know whether it is general in the Air Force—they will not accept an attachment of earnings order. I do not know whether that helps in this present discussion. I apologise if this is rather like a Second Reading speech.

Lord Donaldson of Kingsbridge

My Lords, I do not think that an employer can refuse to accept an attachment of earnings order. I do not think it has anything to do with him. The person who has to accept it is surely the employee.

Lord Elton

My Lords, perhaps I can start by saying—and this will illuminate the last two exchanges—that in most instances an attachment of earnings order is very much a soft option for the offender. When such an order is made, all the duty for making regular payments to the court which settle the fine passes away from the offender on to the shoulders of the employer. I imagine that if the employer is the Crown, the employer stands in rather a different relationship to the court than if he is a private person or a corporation. The offender, when the order is made, is relieved of any need to discipline himself to make the payments, although of course he loses the money. Therefore, it has certain attractions from the offender's point of view.

May I come back to the main ground of the discussion. There are two things here which concerned us last time. One was the question of where the initiative lay and the other the question of whether anybody at all knew that the initiative was there to be taken. May I summarise the first issue as follows. The difference between the present situation and what the noble Baroness would have is that her amendment would mean that the courts would have to say, "Do you mind if we make an order?", and as things now are they have to say, "Do you want us to make an order I think that when we said, when we were last discussing this matter, that it was a question of semantics, that was right.

I am very much seized of the point that there is not the knowledge of this arrangement that perhaps there should be. Noble Lords will be aware that Government departments are extremely reluctant to give guidance to the courts which would appear to be interpreting the law. However, I am satisfied in this particular case that some advice could and should be given to the courts in an appropriate manner, and we shall seek an opportunity to do so. That opportunity may arise fairly soon, as the department is at present considering how it should follow up the report of the Working Group on Magistrates' Courts which, among other things, makes a number of suggestions as to ways in which fine enforcement could be improved. The report has already been sent to the courts. Once they have had time to consider it, we have it in mind to draw their attention to particular ways in which fine enforcement methods could be improved, and we would certainly include mention of this point. As in everything except the detail of what the phrase is at the moment that the decision is taken to make the initiative, I hope the noble Baroness finds that that meets her concern.

Lord Donaldson of Kingsbridge

My Lords, we shall probably have to accept that, but I think it is fearfully halfbaked. What one wants to happen is for the court to be able to say to the man it is fining, "How much do you earn?" and if he replies, say, "£40", the court should then be able to say, "Your fine is £50. We can give you an attachment of earnings order of £5 for 10 weeks. Would that be satisfactory?" At present that cannot be done. The court can only say, "If you ask us to do it, we can do it". That is on the periphery of silliness, and the law should not be silly. The law should be straightforward and right. But it is not worth while keeping the House over this point now.

Lord Elton

My Lords, I am not sure which of us is being silly. It seems to me that the court is in a position to do exactly what the noble Lord wants; it is just a question of the mood of the verb in which it is expressed. Perhaps he can discuss it with me afterwards, but the substance of what the noble Baroness wants is there to be had.

Baroness Birk

My Lords, if the Minister is saying that in the guidelines to the courts this will be spelt out and it will be made clear to them that the initiative will lie with them, then, from my point of view, I should find that satisfactory, and my noble friend probably would as well. But we wait to see the wording. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 49 [Power to alter certain fines and other sums]:

Lord Mackay of Clashfern moved Amendments Nos. 65 and 66: Page 48, line 32, leave out ("of this Act"). Page 48, line 37, leave out from ("section 289B(6)") to end of line 41 and insert— ("of this Act;

1. (b) section 289G(2) of this Act;
2. (c) section 407(1A) of this Act;
3. (d) section 435(e) of this Act;
4. (e) section 453(3) of this Act;
5. (f) section 7(4)(a) of the Cinematograph (Amendment) Act 1982;
6. (g) paragraph 19(3) of Schedule 2 to the Civic Government (Scotland) Act 1982.").

The noble and learned Lord said: My Lords, these amendments add to the list of sums which can be altered to take account of changes in the value of money regarding summary fines which have been provided for offences under the Cinematograph (Amendment) Act 1982 and paragraph 19(3) of Schedule 2 to the Civic Government (Scotland) Bill. In these respects they achieve for Scotland what Amendment No. 59 achieves for England and Wales.

On Question, amendment, agreed to.

Clause 50 [Revision of penalties for summary offences and of certain other sums]:

Lord Mackay of Clashfern moved Amendment No. 66A: Page 51, line 1, after ("the") insert ("fine or").

The noble and learned Lord said: My Lords, this is a drafting amendment. I beg to move.

On Question, amendment agreed to.

Lord Mackay of Clashfern moved Amendment No. 67: Page 51, line 10, leave out from first ("the") to end of line 11 and insert ("commencement of this section.").

The noble and learned Lord said: My Lords, with permission, I should like to speak also to Amendments Nos. 68 and 72. These amendments replace references to the passing of the Criminal Justice Bill with references to the coming into force of the relevant provisions in the Bill. They are designed to ensure that the Bill has the correct effect on enactments passed between the date on which the Bill is passed and the date on which the fines provisions are brought into force.

On Question, amendment agreed to.

Lord Mackay of Clashfern moved Amendment No. 68: Page 51, line 22, leave out from ("before") to (";and") in line 24 and insert ("the commencement of this section").

On Question, amendment agreed to.

Lord Mackay of Clashfern moved Amendment No. 69: Page 53, line 12, leave out from ("in") to ("any") in line 13.

The noble and learned Lord said: My Lords, in moving Amendment No. 69, with the permission of your Lordships I should like to speak also to Amendments Nos. 70 and 71. These are purely drafting amendments. I beg to move.

On Question, amendment agreed to.

Lord Mackay of Clashfern moved Amendment No. 70: Page 53, line 13, leave out from ("enactment") to ("to") in line 14.

On Question, amendment agreed to.

Lord Mackay of Clashfern moved Amendment No. 71: Page 53, leave out from beginning of line 15 to ("shall") in line 16.

On Question, amendment agreed to.

Lord Mackay of Clashfern moved Amendment No. 72: Page 53, line 45, leave out from ("before") to end of line 46 and insert ("the commencement of this section.").

On Question, amendment agreed to.

Lord Mackay of Clashfern moved Amendment No. 73:

Page 54, line 17 at end insert— ("(8) Where an enactment to which subsection (5) above applies confers a power such as is mentioned in subsection (4)(a)(ii) above, the power shall be construed as a power to make a person liable to a fine or, as the case may be, a maximum fine of the amount corresponding to the level on the standard scale to which the enactment refers by virtue of subsection (4) above or of a lesser amount.").

The noble and learned Lord said: My Lords, this amendment achieves for Scotland what Clause 42(2), as inserted at the Committee stage, achieves for England and Wales; that is, it confers upon the makers of subordinate legislation the discretion to provide in their subordinate legislation fixed fines or maximum fines of an amount less than that specified in the relevant enabling power, even where such discretion is not currently conferred by the enabling power itself. I beg to move.

On Question, amendment agreed to.

Clause 52 [Schedules 7A to 7D to the Criminal Procedure (Scotland) Act 1975 and Schedules 7 and 8 to this Act]:

[Amendment No. 74 had been withdrawn from the Marshalled List.]

Lord Mackay of Clashfern moved Amendment No. 74A: Page 59, line 32, leave out ("Subsection (3) above does") and insert ("The amendments provided for in Schedule 8 to this Act, other than paragraph 4 thereof, do").

The noble and learned Lord said: My Lords, in moving Amendment No. 74A, with permission I should like also to speak to Amendment Nos. 74B and 75. These amendments are designed to make it clear that the district court can impose fines of up to £500 for common law offences in respect of which proceedings have been instituted after Schedule 8 comes into force, even if the offence were committed before that schedule comes into force. This is desired because the increase effected by Schedule 8 in the district court's sentencing powers for common law offences is in the nature of a jurisdiction change, rather than an increase in criminal penalties. I beg to move.

On Question, amendment agreed to.

Lord Mackay of Clashfern moved Amendments Nos. 74B and 75: Page 59, line 34, leave out ("it") and insert ("that Schedule"). at end insert— ("(5) The amendment provided for in paragraph 4 of Schedule 8 to this Act shall not apply in relation to proceedings commenced before the coming into force of that provision; and for the purpose of this subsection, proceedings shall be taken to have been commenced on the day on which the petition or complaint is served on the accused.").

On Question, amendments agreed to.

Schedule 7 [Schedule to be inserted as Schedule 7D to the Criminal Procedure (Scotland) Act 1975]:

Lord Mackay of Clashfern moved Amendment No. 76: Page 80, leave out lines 28 to 32.

The noble and learned Lord said: My Lords, this amendment is consequential. I beg to move.

On Question, amendment agreed to.

Lord Mackay of Clashfern moved Amendment No. 77:

Page 81, line 24, at end insert—

("PUBLIC HEALTH (SCOTLAND) ACT 1945 (c. 15)
. Section 1(5) (contravention of regulations as to treatment and spread of certain diseases).	For "one hundred pounds" substitute "level 5 on the standard scale".	£100 and £50 per day during which the offence continues.	£1,000 and £50 per day during which the offence continues.").

The noble and learned Lord said: My Lords, this amendment effects an increase in the penalty for offences under Section 1(5) of the Public Health (Scotland) Act 1945, similar to that which is effected by Schedule 3 in the penalty for the corresponding offences in England and Wales under the Public Health Act 1936. I beg to move.

On Question, amendment agreed to.

Lord Mackay of Clashfern moved Amendments Nos. 78 to 81: Page 85, line 2, column 4, leave out ("£200") and insert ("£500"). Page 85, line 4, column 2, leave out ("3") and insert ("4"). Page 85, line 9, column 4, leave out ("£200") and insert ("£500"). Page 85, line 12, column 2, leave out ("3") and insert ("4").

The noble and learned Lord said: My Lords, with your Lordships' permission, I should like to move Amendments Nos. 78, 79, 80, and 81 en bloc. These amendments increase the penalty for offences under Sections 98(2) and 132(2) of the Rent (Scotland) Act 1971 to a fine not exceeding £500. This increase is in line with the increase effected by Schedule 3 in the penalty for similar offences under the Landlord and Tenant Act 1962. I beg to move.

On Question, amendments agreed to.

10.15 p.m.

Lord Elton moved Amendment No. 81A: Before Clause 53, insert the following new clause:

("Her Majesty's Chief Inspectors of Prisons.

.—(1) The following shall be inserted after section 5 of the Prison Act 1952—

"The Chief Inspector of Prisons

Appointment and functions of Her Majesty's Chief Inspector of Prisons. 5A.—(1) Her Majesty may appoint a person to be Chief Inspector of Prisons. (2) It shall be the duty of the Chief Inspector to inspect or arrange for the inspection of prisons in England and Wales and to report to the Secretary of State on them. (3) The Chief Inspector shall in particular report to the Secretary of State on the treatment of prisoners and conditions in prisons. (4) The Secretary of State may refer specific matters connected with prisons in England and Wales and prisoners in them to the Chief Inspector and direct him to report on them. (5) The Chief Inspector shall in each year submit to the Secretary of State a report in such form as the Secretary of State may direct, and the Secretary of State shall lay a copy of that report before Parliament. (6) The Chief Inspector shall be paid such salary and allowances as the Secretary of State may with the consent of the Treasury determine.".) (2) The following shall be inserted after section 6 of the Prisons (Scotland) Act 1952— Appointment and functions of Her Majesty's Chief 6A.—(1) Her Majesty may appoint a person to be Chief Inspector of Prisons for Scotland. (2) It shall be the duty of the Chief Inspector to inspect or arrange for the inspection of prisons in Scotland and to report to the Secretary of State on them. Inspector of Prisons for Scotland. (3) The Chief Inspector shall in particular report to the Secretary of State on the treatment of prisoners and conditions in prisons. (4) The Secretary of State may refer specific matters connected with prisons in Scotland and prisoners in them to the Chief Inspector and direct him to report on them. (5) The Chief Inspector shall in each year submit to the Secretary of State a report in such form as the Secretary of State may direct, and the Secretary of State shall lay a copy of that report before Parliament. (6) The Chief Inspector shall be paid such salary and allowances as the Secretary of State may with the consent of the Treasury determine. (7) In this section references to prisons include legalised police cells within the meaning of section 14(1) of this Act.".").

The noble Lord said: My Lords, this amendment concerns the post of Her Majesty's Chief Inspector of Prisons. As many of your Lordships will recall, the Committee of Inquiry into the United Kingdom Prison Services, which reported in October 1979 (the May Committee), recommended that there should be a system of inspection of the prison service distanced as far as may be practicable from the prison department. It recommended that there should be constituted within the Home Office an independent department called the Prison Inspectorate, with a senior rank. When the post of Her Majesty's Chief Inspector was first created following this, it was agreed that the appointment should be made by the Crown on the advice of the Home Secretary in order to emphasise its stature and the holder's special relationship with the Home Secretary.

The appointments of the first Chief Inspector in England (the late Mr. W. H. Pearce) and the Chief Inspector of Prisons in Scotland (Mr. D.A.P. Barry) were made in anticipation of legislation with the agreement of the Palace, the Civil Service Department (as it then was) and the Civil Service Commission on the understanding that legislative cover would be sought at the next opportunity. This amendment is in fulfilment of that commitment. The amendment provides, separately for England and Wales and for Scotland, for a Chief Inspector to be appointment by Her Majesty. It sets out briefly the duties of the Chief Inspector, and arranges that he should, as the May Committee recommended, produce an annual report which the Secretary of State is to lay before Parliament.

In moving this amendment perhaps I could pay tribute to the way in which the first Chief Inspector, Mr. Pearce, discharge his duties in this important new post. His untimely death was a great tragedy both for the inspectorate and for the prison service, whose work he subjected to such searching and careful scrutiny. I am sure that his work has done much to establish the Inspectorate as an important and useful feature of our constitutional arrangements for prison matters.

However, it is also my pleasure to take this opportunity to announce, on behalf of my right honourable friend the Home Secretary, the appointment of Mr. Pearce's successor. Her Majesty's next Chief Inspector of Prisons will be Sir James Hennessy, and his appointment will take effect from 1st September this year. I am sure that other noble Lords will wish to join with me in wishing good fortune to Sir James, who has an experi- enced career in the diplomatic service which may well stand him in very good stead in this important and exacting post. I beg to move.

Lord Elwyn-Jones

My Lords, I am sure the House will wish to join in the expression of thanks to the late Chief Inspector, and to wish good fortune to his successor.

Lord Donaldson of Kingsbridge

My Lords, I should like to join the noble and learned Lord in what he has said, but I should like to add that the proceedings during this Bill have not indicated that the Home Secretary is taking much notice of the very grave and serious warnings which Mr Pearce gave in his report.

Lord Wigoder

My Lords, may I also welcome the appointment of Sir James, and wish him every possible success. This is an important new clause, which I certainly welcome, even if it is brought forward at a comparatively late stage of this Bill. Purely in order that we may ensure that in due course the Long Title is correct, would the noble Lord the Minister be kind enough to indicate on what basis he says that this is in fact relevant to this Bill?

Lord Mottistone

My Lords, if I could perhaps strike not quite so happy a note, in view of the history that my noble friend gave us, why is this coming forward as an amendment at Report stage instead of being part of the original Bill? It seems quite extraordinary.

Lord Elton

My Lords, the processes by which this sort of legislation is generated are complex and slow, and it was not apparent until a latish stage that it would be possible to have it ready for your Lordships in time for this Bill.

However, in the light of the fact that we had given this undertaking and in the light of the fact that we now had an appointment to make, it seemed proper to create the statutory provision in time for the appointment of the new incumbent. This is a purpose connected with the other purposes set out in the Long Title of the Bill.

Lord Wigoder

My Lords, with leave, would the noble Lord be good enough to say which purpose?

Lord Elton

My Lords, the Long Title of the Bill—and I will not read it out in full because the noble Lord has it before him—at the end says: and for connected purposes". This is one of the purposes that is connected to the other purposes.

Lord Wigoder

My Lords, which purpose is it connected to?

Lord Donaldson of Kingsbridge

My Lords, I think it is connected in the sense that the warnings of the prison inspector are essential to the proper running of the prisons and are not at the moment being taken notice of.

Lord Melchett

My Lords, it is just as connected as the amendments which aim to reduce the number of people who may be sent to prison by reducing the number of things which are subject to criminal law. I hope that the noble Lord, Lord Elton, will agree with that.

Lord Elton

My Lords, the purpose of the Bill is to try to reduce the population of the prison, which is what everybody is urging us to do. The noble Lord, Lord Donaldson, has taken my right honourable friend to task for not having sufficiently acknowledged the crucial rôle which the reports of Her Majesty's Chief Inspector play in this purpose. The appointment is central to what the Bill sets out to do.

Lord Wigoder

My Lords, with leave—and I am sorry, but I am trying to be persistent for it will affect matters later in the Bill—there is nothing in the Long Title of the Bill about reducing the prison population or anything to do with that. How can this be a connected purpose to that?

Lord Elton

My Lords, the Long Title and the Bill itself are about the sentencing and treatment of offenders and the Inspector of Prisons inspects the treatment of offenders.

Lord Wigoder

My Lords, this is the last time. With respect, it is not about the sentencing and treatment of offenders but about the power of the court with regard to the sentencing and treatment of offenders. The appointment of the Inspector of Prisons can have nothing to do with the powers of the court in relation to sentencing and treatment of offenders.

Lord Elton

My Lords, this can go on for ever. It seems to me that, where you have courts with a power to sentence to institutions inspected by an inspector, there is a close connection between the court and the inspector; and that is the person of the prisoner and the building of the prison.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 82: Before Clause 53, insert the following new clause:

("Courts-martial and Standing Civilian Courts.

. Schedule (Courts-martial etc.] shall have effect in relation to offenders who come before courts-martial and Standing Civilian Courts.").

The noble Lord said: My Lords, I spoke to this amendment with Amendment No. 58. I beg to move.

On Question, amendment agreed to.

[Amendment No. 83 had been withdrawn from the Marshalled List.]

Lord Melchett moved Amendment No. 84: Before Clause 53, insert the following new clause:

("Cautioning.

.—(1) Subject to subsection (2) below, where a person who has not previously been cautioned for or convicted or found guilty of an offence admits that he has committed an offence, he shall not be charged with the offence but shall instead be cautioned by a police officer.

(2) No person shall be cautioned under subsection (1) above if it appears to a police officer not below the rank of inspector that his offence was so serious that a caution would not be justified.").

The noble Lord said: My Lords, I beg to move this amendment, which on the face of it really is quite clear. I do not intend to detain the House by expanding on it. I would say that in a number of debates on amendments to this Bill at the Committee and Report stages, and during Second Reading, it has been clear that the major concern of this House is the number of people who end up in prison. It is also clear that once a person has embarked, as it were, not on a criminal career but on a career through penalties, starting maybe with a conditional discharge or a fine and progressing through more serious penalties to institutions, it is extremely difficult to stop. We have heard repeatedly about the extraordinary high percentage of people, young and old, but particularly young, who are sent to some institutional penalties and who are reconvicted within a comparatively short time

Therefore, it seems to me that in looking at the way the courts are able to treat offenders one of the priorities should be to try to do our utmost to keep offenders from getting on to this career through penalties. By far the most effective way in doing that is to increase the use of the police caution. This is widely used in some areas but much less widely used in others, and one of the arguments in favour of the amendment seems to me that it may lead to more standardisation of practice between different police forces in the use of the caution. More important, I hope that by laying down a criteria of the kind that I have in the amendment it will lead to a considerable increase in the use of cautioning in circumstances where I do not believe anybody could possibly object to its use, and that would be a considerable benefit.

There is a great deal of evidence that young people or first offenders who are cautioned are no more nor less likely to re-offend in a given period than anybody subjected to any other penalty. They are a lot less likely to re-offend than people who are put in custody of any sort. That seems to me to be an extremely powerful argument in favour of the amendment, which I hope the Government will able be to accept and send us all home to bed in a good mood. I beg to move.

Baroness Faithfull

My Lords, if this amendment were accepted, I should be grateful to know whether in the case of a child's or a young person's cautioning, it would be put down on the police record.

Lord Donaldson of Kingsbridge

My Lords, I shall not answer for the noble Lord, Lord Melchett, but I think it certainly should not. What we want is that the police should feel more ready to use a caution than they are today, and the evidence is that a large number of young people are charged who have never been cautioned. This is a very important amendment and I hope that the Government will be sympathetic to it, because if does not seem to be subversive or awkward in any way but to be the first item in the Bill that will have some influence on the number of people who go to prison.

Lord Campbell of Alloway

My Lords, I wish to say one word in opposition to this amendment. Again, your Lordships are faced with a problem of overcrowding in prisons, so your Lordships are invited to endorse this innovative experiment which puts far too great a degree of discretion in the power of the police. It is, in my submission, something which should not be accepted.

Lord Melchett

My Lords, before the noble Lord sits down, can he tell me what is innovative about this? The procedure of cautioning offenders is extremely widely used by police forces throughout Great Britain. The idea that there is anything new in this is, if I may say so, quite ridiculous.

Lord Campbell of Alloway

My Lords, I am fully alive to the system that is operated at the moment where there is a degree of discretion in the police which, to the general satisfaction of everyone, so far as I am aware, operates and is accepted publicly. If the purpose of this amendment is to achieve anything further, it is objectionable for the reasons that I have given. If it is merely to state in this form what in practice happens already, it is otiose and irrelevant to the problem of overcrowding the prisons. There is, in my submission, absolutely no merit in this proposal at all.

Lord Elton

My Lords, I am always anxious to provide the noble Lord, Lord Melchett, with an agreeable nightcap; but perhaps his prospect of getting it would be better in the bar than in the Chamber. Nonetheless, I do not think that we are very far apart—at least in what we wish to achieve. The new clause would require that a caution be issued to a first-time offender who admits the offence, save in the case of serious offences. It would thus remove from the police and others who want to bring criminal proceedings against first-time offenders for non-serious offences the discretion to prosecute. It has a number of clear technical deficiencies and would give rise to a number of perverse results. I shall not go over these; I will come straight to the issues of principle which the noble Lord has raised.

Cautioning itself is a non-statutory procedure, and the circumstances in which a caution should be issued do not, of their very nature, lend themselves to statutory form. Guidance issued to chief officers in the case of juveniles lays down certain criteria for the issue of a caution. These criteria are generally followed in the case of adults: the evidence must be available to support a prosecution; the offender must admit the offence; and the offender (for a juvenile, his parents or guardian) must agree to the issue of a caution.

If all these criteria are met the decision then turns on the circumstances of the offender, the nature of the offence and the attitude of the victim or aggrieved person. The noble Lord's new clause, however, goes beyond laying down criteria for the issue of the formal caution; it puts on the police an obligation to issue a caution, rather than to initiate criminal proceedings in certain circumstances. It is a long-established principle that the police should have discretion in deciding whether to bring criminal proceedings or deal with an offender by some other means. I do not believe that it would be right for this House to remove that discretion, nor for the police to be prevented from bringing criminal proceedings in the case of all first-time, self-confessed, minor offenders.

None of this is to say that the Government do not recognise the important part the formal caution has to play in the criminal justice process, particularly in the case of young offenders. It allows the police, taking account of all relevant circumstances, to give a self-confessed offender, a formal warning and to give that person the opportunity to mend his ways; the need for criminal proceedings, which might have effects on the offender and his family beyond all proportion to the seriousness of the offence (and I think this is what the noble Lord has in mind) can be avoided.

The Royal Commission on Criminal Procedure noted the considerable variations in the use made of the formal caution by different police forces and recommended that it should be put on a more consistent footing. But, as the Royal Commission itself observed, some of these variations can be explained by different social and geographical factors in different areas. Nonetheless, there is a greater degree of variation than that would allow for. My right honourable friend the Home Secretary does fully accept the case for seeking to reduce these variations so far as possible. The Home Office is at present discussing the issue with chief officers of police, and we hope that these discussions, which will be aided by research findings, will show whether there is scope for a reduction in the variations and how this might be achieved. We do want the same thing. We are setting about it in a rather different manner. I hope the noble Lord will be able to reflect upon that peacefully upon his pillow, because we are trying to finish up in the same place.

Lord Elwyn-Jones

My Lords, will the noble Lord say whether the criteria are published, and will the new criteria be published when they are decided and agreed upon? We are very grateful to see the sympathetic approach to the process of cautioning the first offender who has confessed to his offence.

Lord Elton

My Lords, it is the sympathetic approach of my noble friend that I have to wait upon before I can reply to the noble and learned Lord. The answer is that they are not published but they are not secret. If the noble and learned Lord thinks it would be helpful to have them available either to his noble friend or otherwise, I will discuss that with him, if that would be helpful.

Lord Melchett

My Lords, I am very grateful for my noble and learned friend's intervention. I think it would be very helpful indeed for him to discuss it with the noble Lord. Also, it might be possible for me to see the criteria.

I tabled this amendment at the Committee stage, and, unfortunately, was not able to be in your Lordships' House when it was eventually reached. But, since then, there has been a television programme, which some noble Lords may have seen, where a number of people concerned in the criminal justice process, including chief officers of police and, I think, my noble and learned friend as well, were involved, where this subject was discussed and the grounds on which a caution might be used were put to the test. It seemed to me that, although in the programme, all those involved decided that somebody charged with a first offence of possession of cannabis would actually end up with a caution, the reality in a great deal of the country is very different indeed from that.

It seemed to me to support very strongly what the noble Lord, Lord Elton, said, that there is a very wide variation in the use of the caution between different areas and that must be undesirable and unfair to individuals. It is not right that whether they ended up with a criminal record or a caution depended on which side of a county boundary they were when they were arrested. It is a more serious matter than that. So I very much welcome what the noble Lord said about attempting to draw up some new criteria, and it would be very helpful, in reaching a decision about whether or not something should appear in statute about this before we come to the Third Reading of the Bill, to see what exists at the moment.

Finally, if I may just answer the noble Baroness's question, I think I am right in saying—I stand to be corrected by people who know more about this than I do—that the police force would obviously keep a record of those who were cautioned, because it would be necessary to know, if somebody was re-arrested, whether or not he had already been cautioned. But the process of receiving a caution would not give somebody a criminal record for the purposes of employment, and all the other things which are very seriously affected by a criminal record. That is one of the things which makes it such a very important and attractive procedure. I am grateful to the noble Lord, Lord Elton. I hope that we can have an exchange of information before the next stage of the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10.37 p.m.

Lord Elton moved Amendment No. 84A: Before Schedule 9, insert the following new scheduler—

("SCHEDULE

COURTS-MARTIAL ETC.

1. Section 71A of the Army Act 1955 and of the Air Force Act 1955 and section 43A of the Naval Discipline Act 1957 (powers of courts in relation to juveniles) shall have effect subject to the following amendments—

1. (a) in subsection (1), for "17" there shall be substituted "21";
2. (b) the following subsections shall be inserted after that subsection—
• "(1A) Where a person under 21 years of age is convicted of murder or any other civil offence the sentence for which is fixed by law as imprisonment for life, the court shall sentence him to custody for life unless he is liable to be detained under subsection (3) below.
• (1B) Where a person aged 17 years or over but under 21 years of age is convicted of any other offence for which a person aged 21 years or over would be liable to imprisonment for life, the court shall sentence him to custody for life if—
1. (a) it is of the opinion that no other method of dealing with him is appropriate; and
2. (b) it considers that a custodial sentence for life would be appropriate.
• (1C) For the purpose of determining whether any method of dealing with a person to whom subsection (1B) of this section applies, other than sentencing him to custody for life, is appropriate, the court shall obtain and consider information about the circumstances, and shall take into account any information before the court which is relevant to his character and his physical and mental condition";
3. (c) subsection (2) shall be omitted; and
4. (d) in subsection (5)—
1. (i) after the word "of", in the first place where it occurs, there shall be inserted the words "custody for life or"; and
2. (ii) after the word "detention", in the second place where it occurs, there shall he inserted the words "and to a sentence of custody for life".

2. In section 71AA of the Army Act 1955 and the Air Force Act 1955 and in section 43AA of the Naval Discipline Act 1957 (custodial orders)—

1. (a) in subsection (1)—
1. (i) for the words "instead of so punishing him" there shall be substituted the words "subject to subsection (1A) below"; and
2. (ii) for the words from "maximum" to the end there shall be substituted the words "period to be specified in the order not exceeding the maximum period for which he could have been sentenced to imprisonment if he had attained the age of twenty-one years.";
2. (b) the following subsections shall be inserted after that subsection—
• "(1A) The court shall not make a custodial order in respect of a person unless it is of the opinion that no other method of dealing with him is appropriate.
• (1B) For the purposes of determining whether there is any appropriate method of dealing with a person other than making a custodial order in respect of him the court shall obtain and consider information about the circumstances, and shall take into account any information before the court which is relevant to his character and his physical and mental condition.";
3. (c) in subsection (6)(a) the following paragraphs shall be substituted for paragraphs (i) and (ii)—
1. "(i) if the period specified in the order is four months or less and he is male, a detention centre, and
2. (ii) in any other case, any place where he could have been detained under section 11 of the Criminal Justice Act 1982 if he had been sentenced to youth custody for the period specified in the order;";
4. (d) the following subsection shall be inserted after that subsection—
• "(6A) Section 15 of the Criminal Justice Act 1982 (supervision of young offenders released otherwise than on licence) shall apply to persons released from a term of detention under a custodial order as it applies to persons released from a term of detention under a detention centre order or a term of youth custody."

3. In section 85 of the Army Act 1955 and the Air Force Act 1955 (powers of different descriptions of Courts-martial)—

1. (a) the words "or make an order committing a person to be detained under section 71AA of this Act for a period exceeding two years" shall be inserted at the end of subsection (2); and
2. (b) the words "or detention under section 71AA of this Act for a period of two years" shall be inserted at the end of subsection (3).

4. In section 145(1)(b) of those Acts (forfeiture of pay for absence from duty), for the words "Borstal institution" there shall be substituted the words "youth custody centre".

5. Paragraph 10 of Schedule 5A to the Army Act 1955 and to the Air Force Act 1955 and Schedule 4A to the Naval Discipline Act 1957 (custodial orders) shall have effect subject to the following amendments—

1. (a) in sub-paragraph (1)—
1. (i) for the words "instead of so punishing him" there shall be substituted the words "subject to subsection (1A) below"; and
2. (ii) for the words from "for" to the end there shall be substituted the words—
1. "(a) if the order is made by a court-martial for a period to be specified in the order not exceeding the maximum period for which he could have been sentenced to imprisonment if he had attained the age of 21; or
2. (b) if it is made by a Standing Civilian Court, for a period of not more than six months.";
3. (b) the following sub-paragraphs shall be inserted after that sub-paragraph—
• "(1A) The court shall not make a custodial order in respect of an offender unless it is of the opinion that no other method of dealing with him is appropriate.
• (1B) For the purposes of determining whether there is any appropriate method of dealing with an offender other than making a custodial order in respect of him the court shall obtain and consider information about the circumstances, and shall take into account any 955 information before the court which is relevant to his character and his mental and physical condition.";
4. (c) the following sub-paragraphs shall be inserted after sub-paragraph (3)—
• "(3A) Where a Standing Civilian Court makes a custodial order in respect of an offender, it shall state in open court the reason for its opinion that no other method of dealing with him is appropriate.
• (3B) A Standing Civilian Court shall cause a reason stated under sub-paragraph (3A) above to be specified in the Custodial Order and to be recorded in the proceedings.";
5. (d) in sub-paragraph (6)(a) the following paragraphs shall be substituted for paragraphs (i) and (ii)—
1. "(i) if the period specified in the order is four months or less and he is male, a detention centre, and
2. (ii) in any other case, any place where he could have been detained under section 11 of the Criminal Justice Act 1982 if he had been sentenced to youth custody for the period specified in the order;";
6. (e) the following sub-paragraph shall be inserted after that sub-paragraph—
• "(6A) Section 15 of the Criminal Justice Act 1982 (supervision of young offenders released otherwise than on licence) shall apply to persons released from a term of detention under a custodial order as it applies to persons released from a term of detention under a detention centre order or a term of youth custody."

6.—(1) In paragraph 11(2) of those Schedules (compensation orders) for "£400" there shall be substituted "£1,000".

(2) Sub-paragraph (1) above has effect only in relation to offences committed after this paragraph comes into force.

7. The following sub-paragraph shall be substituted for subparagraphs (1) and (2) of paragraph 13 of those Schedules (imposition of fines on and making of compensation orders against parent and guardian)—

1. "(1) Where—
   1. (a) a civilian under 17 years of age is found guilty of any offence for the commission of which a fine may be imposed or a compensation order may be made under paragraph 11 above; and
   2. (b) the court is of the opinion that the case would best be met by the imposition of a fine or the making of such an order, whether with or without any other punishment,
   it shall be the duty of the court to order that the fine or compensation awarded be paid by any parent or guardian of his who is a service parent or guardian, instead of by the person himself, unless the court is satisfied—
1. (i) that the parent or guardian cannot be found; or
2. (ii) that it would be unreasonable to make an order for payment, having regard to the circumstances of the case.
2. (2) An order under this paragraph may be made against the parent or guardian if—
   1. (a) he has been required to attend in the manner prescribed by Rules of Procedure under section 103 above or, as the case may be, by an order under paragraph 12 of Schedule 3 to the Armed Forces Act 1976 to attend the court, and
   2. (b) he has failed to do so,
   but, save as aforesaid, no such order shall be made without giving the parent or guardian an opportunity of being heard.".

8.—(1) In paragraph 14(1) of those Schedules (recognisances from parents and guardians) for £50 there shall be substituted "£500".

(2) Sub-paragraph (1) above has effect only in relation to offences committed after this paragraph comes into force.

9. In paragraph 15(3) of those Schedules (scale of punishments and orders)—

1. (a) in the Table, in paragraph 3, in the second column, for the word "imprisonment" there shall be substituted the words "custody for life"; and
2. (b) in paragraph (i) of the Note following that Table for the word "imprisonment" there shall be substituted the words "custody for life".

10.—(1) In section 8(1)(b) of the Armed Forces Act 1976 (powers of Standing Civilian Court to fine and sentence) for "£400" there shall be substituted "£1,000".

(2) Sub-paragraph (1) above has effect only in relation to offences committed after this paragraph comes into force.").

The noble Lord said: My Lords, I spoke to this with Amendment No. 58. My Lords, I beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 85: After Clause 53, insert the following new clause:

("Applications to Crown Court for bail by persons remanded in custody.

.—(1) In section 81 of the Supreme Court Act 1981—

1. (a) in subsection (1) (which lists cases in which the Crown Court may grant bail) at the end of paragraph (e) there shall be added "or
• (f) who has been remanded in custody by a magistrates' court on adjourning a case under—
  1. (i) section 5 (adjournment of inquiry into offence);
  2. (ii) section 10 (adjournment of trial);
  3. (iii) section 18 (initial procedure on information against adult for offence triable either way); or
  4. (iv) section 30 (remand for medical examination),
  of the Magistrates' Courts Act 1980;";
2. (b) the following subsections shall he inserted after that subsection—
• "(1A) Where the Crown Court grants a person bail under subsection (1)(f) it may direct him to appear at a time and place which the magistrates' court could have directed and the recognizance of any surety shall be conditioned accordingly.
• (1B) The Crown Court may only grant bail to a person under subsection (1)(f) if the magistrates' court which remanded him in custody has certified under section 5(6A) of the Bail Act 1976 that it heard full argument on his application for bail before it refused the application.".

(2) In subsection (6)(a) of section 5 of the Bail Act 1976 (supplementary provisions about decisions on bail) after the word "Court", in the first place where it occurs, there shall be inserted the words "or if it issues a certificate under subsection (6A) below".

(3) The following subsections shall be inserted after that subsection—

• "(6A) Where in criminal proceedings—
1. (a) a magistrates' court remands a person in custody under any of the following provisions of the Magistrates' Court Act 1980—
   1. (i) section 5 (adjournment of inquiry into offence);
   2. (ii) section 10 (adjournment of trial);
   3. (iii) section 18 (initial procedure on information against adult for offence triable either way); or
   4. (iv) section 30 (remand for medical examination),
   after hearing full argument on an application for bail from him; and
2. (b) either
   1. (i) it has not previously heard such argument on an application for bail from him in those proceedings; or
   2. (ii) it has previously heard full argument from him on such an application but it is satisfied that there has been a change in his circumstances or that new considerations have been placed before it.
   it shall he the duty of the court to issue a certificate in the prescribed form that they heard full argument on his application for bail before they refused the application.
• (6B) Where the court issues a certificate under subsection (6A) above in a case to which paragraph (b)(ii) of that subsection applies, it shall state in the certificate the nature of the change of circumstances or the new considerations which caused it to hear a further fully argued bail application.
• (6C) Where a court issues a certificate under subsection (6A) above it shall cause the person to whom it refuses bail to be given a copy of the certificate.".

(4) In section 30 of the Legal Aid Act 1974 (scope of legal aid) the following subsections shall be inserted after subsection (1)—

• "(1A) Legal aid which may be ordered to be given to any person for the purposes of any proceedings by a legal aid order under section 28(2) above, whether or not in the circumstances mentioned in section 29(1)(c) above, shall include, in the event 957
  1. (a) of his being remanded in custody in those proceedings; and
  2. (b) of the court issuing a certificate under section 5(6A) of the Bail Act 1976 (refusal of fully argued bail application),
  legal aid for the purpose of proceedings in connection with an application for bail to the Crown Court.
• (1B) Notwithstanding anything in subsection (1) above, legal aid in connection with an application for bail to the Crown Court shall not include representation by counsel except in a case where by virtue of subsection (2)(a) below legal aid ordered to be given for the purposes of the proceedings before the magistrates' court included representation by counsel.".").

The noble Lord said: My Lords, this new clause fulfils an undertaking which the Government gave at the time of the Bill's passage through another place. Its intention is to provide that defendants who are refused bail by a magistrates' court after a full application will have a further avenue of application to the Crown Court. It also provides that legal aid will be available for the purposes of such application. Legal aid will be provided by an automatic extension to existing legal aid orders; there will thus be no need for the defendant to make a separate application for it.

The avenue of application will be available where the magistrates' court adjourns a case for a later hearing before the same court, and where it refuses bail to the defendant after hearing a full application for bail from him. In such a case, the magistrates' court will be required to issue a certificate to the effect that it has refused bail after a full application and the Crown Court's power to grant bail will be limited to cases where such a certificate has been issued. Noble Lords will note that I have emphasised that the avenue of application will be available only after a full hearing. Your Lordships will be aware of the effect of the case of Regina v. Nottingham Justices ex parte Davies, which was that, where a magistrates' court has taken one full application for bail, then its decision on that occasion should bind the court, which would not have to hear further applications unless it could be shown that there had been a change in the circumstances of the defendant since the date of the first application. It is not intended that a court's decision that there has been no change in circumstances, and that it therefore need not hear a full application, should be capable of appeal to the Crown Court. The essential purpose of the new clause, therefore, is to allow the defendant to secure a review of the magistrates' court's substantial decision that, given the full range of circumstances existing at the time of his application, bail should be refused. The Government hope that this new clause will assist defendants to pursue their applications for bail at a rather more convenient forum than the High Court at present represents. My Lords, I beg to move.

Lord Elwyn-Jones

My Lords, the Minister has indicated that this amendment is in response to the proposals in another place concerning the position of the applicant for bail in the Crown Court who has been remanded in custody and who has to function without legal aid. The provision of legal aid in those conditions is of very great importance. The House will be grateful to the noble Lord for what is proposed. It has long been pressed for. There was an attempt to introduce a similar provision in the Supreme Court Bill. But better late than never.

On Question, amendment agreed to.

Lord Sandys moved Amendment No. 86: After Clause 54, insert the following new clause:

("Social inquiry reports on persons who have not previously served prison sentences.

The following section shall be inserted after section 20 of the Powers of Criminal Courts Act 1973— Social inquiry reports for purposes of s. 20. 20A.—(1) Subject to subsection (2) below, the court shall in every case obtain a social inquiry reports for report for the purpose of determining under section 20(1) above whether there is any appropriate method of dealing with an offender other than imprisonment. (2) Subsection (1) above does not apply if, in the circumstances of the case, the court is of the opinion that it is unnecessary to obtain a social inquiry report. (3) Where a magistrates' court passes a sentence of imprisonment on a person of or over twenty one years of age on whom such a sentence has not previously been passed by a court in any part of the United Kingdom without obtaining a social inquiry report, it shall state in open court the reason for its opinion that it was unnecessary to obtain such a report. (4) A magistrates' court shall cause a reason stated under subsection (3) above to be specified in the warrant of commitment and to be entered in the register. (5) No sentence shall be invalidated by the failure of a court to comply with subsection (1) above, but any other court on appeal from that court shall obtain a social inquiry report if none was obtained by the court below, unless it is of the opinion that in the circumstances of the case it is unnecessary to do so. (6) In determining whether it should deal with the appellant otherwise than by passing a sentence of imprisonment on him the court hearing the appeal shall consider any social inquiry report obtained by it or by the court below. (7) In this section "social inquiry report" means a report about a person and his circumstances made by a probation officer.".").

The noble Lord said: My Lords, this amendment meets the undertaking which we gave in Committee to the noble Baroness, Lady David, that we would bring forward a provision to require a court, unless there are reasons to the contrary, to obtain and consider a social inquiry report before imposing a first sentence of imprisonment on an adult offender. The amendment is modelled on the similar provisions of Clause 2 relating to young offenders and brings Section 20 of the Powers of Criminal Courts Act 1973 into line with them. I hope that the House will accept this amendment. I beg to move.

The Deputy Speaker

My Lords, I understand that there is a manuscript amendment, in the name of the noble Baroness, Lady David, Amendment No. 86ZA, which is an amendment to the proposed amendment, Amendment No. 86.

Baroness David moved, as an amendment to the amendment, Amendment No. 86ZA: At end insert ("or by a social worker of a local authority social services department").

The noble Baroness said: My Lords, first I should like to thank the Minister for having produced this new clause, which is in accordance with the promise made at the Committee stage. We are very grateful. There is a very small amendment to it which I have had the courage to add. At the very end of the new clause, subsection (7) says: In this section 'social inquiry report' means a report about a person and his circumstances made by a probation officer". My amendment adds "or by a social worker of a local authority social services department". I have been bold enough to put down this amendment, because the Government Amendments Nos. 96 and 97 to Schedule 12, which is about community service orders, make a similarly worded amendment, which again was almost promised at the Committee stage. Although this is possibly for older defendants, there are still families who are involved with the social services, and the social worker may be in a better position to make the report than perhaps a probation officer. This would save everybody's time and a certain amount of expense. I hope, therefore, that the Government will be minded to accept this amendment as they have accepted it in Schedule 12.

Lord Sandys

My Lords, I fear that the encouragement given by our acceptance in principle of a number of the matters which the noble Baroness raised on the provision of social inquiry reports may have given rise to a degree of over-enthusiasm in this particular instance. We are dealing with the new clause introduced by the Government Amendment No. 86, with the requirement that social inquiry reports are to be provided in the case of offenders who have attained the age of 21. The responsibility for the preparation of such reports on adult offenders is solely in the hands of the probation service. There is no share or division of the responsibility with social workers, as may be the case with offenders under the age of 21. Where there is a shared responsibility, it is of course appropriate to include in the definition of the social inquiry report a reference to social workers as well as probation officers. That is achieved in Clause 2(9) and will be achieved by Amendment Nos. 96 and 97 in relation to the community service orders to which we shall come later.

Such a reference is inappropriate in relation to reports on offenders for which, as I have said, the probation service takes sole responsibility. Where, however, a social worker has relevant information on an adult offender, the probation officer, in the preparation of his report, will obviously liaise closely with him. Social workers are concerned with offenders under the age of 17 and not, as in the case of Amendment No. 86, adult offenders of 21 years of age. In the light of what I have said I trust that the noble Baroness, Lady David, will feel able to withdraw her amendment.

Baroness David

My Lords, I shall have to accept what the noble Lord says, although, as I said, I am aware of social workers who are involved with whole families and have a great deal of information which they can provide. No doubt that information will be shared with the probation officers. I beg leave to withdraw the amendment.

Amendment to the amendment, by leave, withdrawn.

On Question, Amendment No. 86 agreed to.

Lord Denham

My Lords, I believe we have now reached a part of the Bill where we might well adjourn. I beg to move that further consideration on Report be now adjourned.

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