Lords Sitting of 4 November 1986

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Ely.

The City: Dealing Deregulation
Lord Campbell of Croy: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what opinion they have formed of the effects so far of the recent fundamental changes upon financial institutions in the City.
The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Lucas of Chilworth): My Lords, it is too early to form a judgment on the effects of the deregulation of dealing commissions and the start of dual capacity in the Stock Exchange which took place only last week, on Monday, 27th October. In the long term, I would expect competition in the financial markets to help investors, industry and commerce.
Lord Campbell of Croy: My Lords, I am grateful to my noble friend for that reply. Does he agree that these changes were essential to retain Britain's position as a major financial centre and serving still industry and investors as efficiently as possible? But are the Government satisfied that the breakdowns which took place last week in screen systems and the delays in settlements were teething troubles only?
Lord Lucas of Chilworth: My Lords, I am grateful to my noble friend for his first supplementary question. Certainly the present changes in the City reflect the response of many of the financial institutions, including the Stock Exchange, in order to keep ahead of competition in the rest of the world. So far as the breakdowns are concerned, my understanding is that apart from the two serious breakdowns in the Topic system early last week, the Stock Exchange has reported no general interruption in the screen service. So far as settlements are concerned, I am informed that a number of Stock Exchange bargains were incorrectly recorded for the purpose of settlement through the Talisman system, but efforts are being made to clear up this backlog.
Lord Bruce of Donington: My Lords, is the noble Lord aware that we concur in his view that it is far too early to form an objective judgment of what the consequences of deregulation are likely to be? Does he agree that nothing that has so far happened is inconsistent with the widely held view that there is still a role for the small stockbroking firm that has not so far been gobbled up by banks and by other very large institutions?
Lord Lucas of Chilworth: My Lords, I am grateful for what the noble Lord has said in his first supplementary question. Certainly there is a role for the smaller stockbroker and the provincial stockbroker, and for the provincial exchanges. Each of the various parts of the financial sector make up the whole in a very important enterprise in London. I am quite sure that the noble Lord will acknowledge the earnings of the City, with some £7,500 million to the British balance of payments in 1985, which is a creditable performance.
Lord Nugent of Guildford: My Lords, is my noble friend aware that there is already a discernible trend for the narrowing of commissions on deals?
Lord Lucas of Chilworth: My Lords, I have heard and read in the press that this is so. This is, of course, to be anticipated since one of the objectives of the change was to increase competition and therefore the opportunities for further business between all the parties involved—industry as well as the smaller investor.
Lord Leatherland: My Lords, may I ask the Minister this question: If a stockbroker loses his livelihood as a result of these changes, will he be eligible for the dole?
Lord Lucas of Chilworth: My Lords, I am not too familiar with the rules regarding the claiming of the dole. But provided that he lost his living in what I might call something that was not fraudulent, I believe that he would be entitled to the benefits that are available to all people in similar circumstances.
Lord Cledwyn of Penrhos: My Lords, is it not the case that in the days following the so-called Big Bang, which really was not a bang at all, there was universal criticism throughout the country and certainly in the media, including the Financial Times, about the way in which the new system was working? Can the noble Lord say whether there was any merit in that criticism, to what extent it is serious and whether one of the criticisms—namely, that it will take at least two years for the new system to find its feet and to work efficiently—is true?
Lord Lucas of Chilworth: My Lords, I am grateful to the noble Lord the Leader of the Opposition for his supplementary questions. I think it is true to say that there was a good deal of criticism in the very early days, and some of that was perhaps justified. The volume of business using the new market system certainly exceeded the exchange's expectations. I think it would be premature to cast judgment now on the reported failures, and I really think that all your Lordships will join me in congratulating Sir Nicholas Goodison and his team on the speed with which the initial problems were identified and dealt with. I have seen reports that it may take two years to make alterations to the system. My understanding is that that is an exaggeration of the facts.
Lord Taylor of Gryfe: My Lords, may I ask the Minister, now that he has created the essential framework through the Financial Services Bill for the changes that are taking place in the City, whether he

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will now turn his attention to the problem of a revival of British industry and wealth production?
Lord Lucas of Chilworth: My Lords, the noble Lord asks an interesting question which is significantly far from the original one on the Order Paper. I shall be happy to answer him if he cares to put down another Question on another day.

Health Education in Schools
2.43 p.m.
Baroness Lane-Fox: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what steps are being taken through school programmes to help pupils not to develop coronary heart disease and other conditions from which they would suffer later in life.
Baroness Hooper: My Lords, the aim of all health education offered by schools is to encourage pupils to adopt healthy lifestyles and to avoid behaviour which may lead to ill-health, including coronary heart disease. The Government have made clear their view that health education is an essential aspect of schools' work.
Baroness Lane-Fox: My Lords, I thank my noble friend the Minister for that reply. Is she aware that the Life Education Centre Scheme devised in Australia by the Rev. Ted Noffs, though primarily against drugs abuse, also provides a great deal of preventive advice against the health conditions referred to in this Question? Is she further aware that the scheme is based on videos and information packs transported in caravans and that a three-month trial is expected to start in January under Essex Education Authority? The scheme is generously supported in this country by the Variety Clubs of Great Britain and others, and the Prince of Wales is taking a very keen interest in the result of the trials.
Baroness Hooper: My Lords, I am aware of the scheme, and even more importantly my right honourable friend the Secretary of State is aware of the plans for this experimental initiative. I understand that details are still under discussion to ensure that the work fits into the overall programmes of health education in the schools concerned in Essex. The Government will watch the outcome with considerable interest. The question of any possible wider application of this type of work must of course await the results of the experiment.
Lord Ennals: My Lords, does the noble Baroness agree that the two most important habits which, if begun at school age, are likely to persist into adulthood and contribute to coronary heart disease are cigarette smoking and a diet leading to overweight? In view of the very high levels of coronary heart disease which, tragically, we have in Britain, is she really satisfied that enough is being done in schools to discourage smoking and to encourage a balanced diet?
Baroness Hooper: My Lords, schools already teach about the risk factors associated with heart disease; for example, about the importance of a healthy diet and the avoidance of obesity; and the importance of exercise and the dangers of smoking and alcohol abuse to which the noble Lord referred. The Government are keeping the matter under review and are encouraging at all possible stages further action such as that referred to in the White Paper Better Schools.
Lord Orr-Ewing: My Lords, is my noble friend aware that there appears among young people to be a greater prevalence of hay fever, asthma and even heart disease? Does she agree that anything which can watch over this and perhaps improve the general health of young people is to be praised and encouraged? If this experiment in Essex is successful, will the Government draw the attention of the local authorities and of the teacher training colleges to its success and therefore help promote it?
Baroness Hooper: My Lords, I shall not rule out anything at this stage. The Government may take more positive steps if it emerges both from the experiment and from the results of the discussion document which is under way that further steps are required.
Lord Ardwick: My Lords, is it not a fact that when we were at school we were able to eat large quantities of steak and kidney pudding and chips, followed by college pudding and custard, and that we could do that with impunity because we were athletic? We were on the go all the time. Does the noble Baroness agree that it is not children who need education in diet but rather that as young people become older and give up their athletic habits they must cease to sow their wild oats or ingest such large quantities of fat?
Baroness Hooper: My Lords, the longevity in your Lordships' House is perhaps proof that many of your Lordships took seriously the form of education that they had at school. As some of the aims and objectives of programmes to combat coronary heart disease include factors such as hypertension and stress, perhaps too much concentration on stress is a mistake.
Lord Rea: My Lords, is the noble Baroness aware—I am sure she is—that there is increasing evidence from the United States that the early stages of coronary heart disease are being found increasingly in children and adolescents? Does she not agree that this has important nutritional implications? Bearing that in mind, will the Government reconsider their 1980 decision to abolish nutritional standards for school meals, particularly now that coronary heart disease appears to be affecting more than it used to do the less well-off sections of our community?
Baroness Hooper: My Lords, I shall ensure that the noble Lord's remarks are brought to the attention of my right honourable friend the Secretary of State. Certainly in this field, as in many others in education, the position is kept constantly under review.
Baroness Macleod of Borve: My Lords, may I ask my noble friend the Minister what steps the Government themselves are taking to update health education in schools?
Baroness Hooper: My Lords, as my noble friend may know, there is a recent HMI discussion document entitled Health Education Iron? 5 to 16, which offers valuable guidance in this area. The Government-funded Health Education Council also has a coronary heart disease prevention programme known as Heartbeat 2000. Furthermore, plans are in hand for a new national campaign of public education generally in this field under the title Look After Your Heart, to be mounted jointly by the DHSS and the Health Education Council. It is to be launched in April next year.
Lord Mackie of Benshie: My Lords, can the noble Baroness confirm that Mrs. Currie is going to be put in charge of this programme?
Baroness Hooper: My Lords, perhaps I should repeat what I said earlier: that at this stage we will not rule out anything.
Lord Harmar-Nicholls: My Lords, is not the most effective way of minimising the effect of heart disease to have the right mother and father in the first place?
Lord Taylor of Blackburn: My Lords, is the Minister aware that many local authorities would like to embark on schemes such as that in Essex, but unfortunately cannot do so because of lack of moneys provided by the DES?
Baroness Hooper: My Lords, as I said earlier, the matter is under constant review. This discussion paper has been published only recently and the results are coming in all the time, and will be until the end of the December deadline. The whole position will be looked at fully then.
Baroness Lane-Fox: My Lords, does not my noble friend the Minister agree that this is an extraordinarily important matter when one takes into account that lessons learnt at school stay with one and will have the effect of saving the National Health Service, in times of great expenditure, a great deal of money later on?
Baroness Hooper: Yes indeed, my Lords. The DHSS as well as the Department of Education and Science is concerned to ensure that preventive measures of this sort can be taken. It is a wide question, because not only does it concern schools but there is the important wider educational effect and the back-up and support of parents in the home environment. However, as the debates in your Lordships' House during proceedings on the Education Bill showed, this matter of health education is very important.

Youth Exchanges: EC Action Programme
2.52 p.m.
Baroness Carnegy of Lour: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what would be the effect of the proposed EC action programme to promote youth exchanges within the Community (Yes for Europe: document 5518/86) on government fundings in this country through the Youth Exchange Centre, the Central Bureau for Educational Exchanges and the new office in Scotland.
The Minister of State, Foreign and Commonwealth Office (Baroness Young): My Lords, discussions on the action programme are at an early stage. I cannot therefore comment on its impact on existing United Kingdom organisations involved with youth exchanges. But we have the United Kingdom organisations interests very much in mind.
Baroness Carnegy of Lour: My Lords, I thank my noble friend for that encouraging Answer. However, does not my noble friend agree that, should the European scheme be implemented at the level presently proposed, the United Kingdom stands to be eligible for some £1.3 million funding for youth exchanges for each of three years, provided the Government respond with pound for pound additionality? Does my noble friend appreciate that this additionality would more than use up the whole of the government funding at present for youth exchanges from this country? As many of the present exchanges are to Commonwealth countries—to countries other than European Community countries—these would have to be abandoned in order to maintain the European commitment.
Baroness Young: Yes, my Lords, I appreciate the point that my noble friend is making. Indeed, we share her concern. In fact, along with several other member states, we have placed a financial reservation on the European Community programme. We are making every effort in the present discussions in Brussels to avoid any damage to our current youth exchange programme.
Baroness Elles: My Lords, is the Minister aware that at present fewer than 3 per cent. of students and young people are working and studying in other parts of the Community? That is a considerably smaller proportion than in the Middle Ages. Does not the Minister consider that it would be of great benefit to the United Kingdom if the United Kingdom presidency could see this programme through and on the stocks before the end of December?
Baroness Young: Yes, my Lords; and I appreciate the point that my noble friend Lady Elles is making. There has been a cautious welcome in principle to these proposals. As I have indicated, however, many member states, including ourselves, have reservations about the scope, size and cost of the detailed proposals.
Lord Bruce of Donington: My Lords, is the noble Baroness aware that the reservations of Her Majesty's Government on this very necessary, but what is termed "non-obligatory" expenditure, is due to the financial constraints placed on EC finances which arise entirely from the uncontrolled and uncontrollable expenditure on the CAP?
Baroness Young: My Lords, I know full well the views of the noble Lord, Lord Bruce of Donington, about expenditure on the CAP, and he knows full well that the Government wish to see the system reformed. The issue before us is in fact precisely on youth exchanges and, as I have said in response to my noble friend Lady Carnegy, at this early stage of the discussions it is difficult to be precise about the financial implications.
Baroness Elliot of Harwood: My Lords, does not the Minister agree that one of the real methods of bringing hack good relations within the EC and interest in the EC is these youth exchanges? They are most important. We should do all we can to strengthen the European Community. These exchanges are one way of doing that, and they should be very much encouraged.
Baroness Young: Yes, my Lords, I entirely agree in principle with what my noble friend says. We have, of course, always recognised the important long-term effect of personal contacts between young Britons and young Europeans. Youth exchanges are an excellent example of co-operation between the people of the United Kingdom and other countries. There are many excellent schemes.
Looking precisely at this scheme, for the reasons I have given we do have some reservations, but we have not reached the end of our discussions upon it.
Baroness Seear: My Lords, does not the noble Baroness agree that in view of our notorious incompetence in foreign languages and the importance of developing people who can speak foreign languages if we are to promote markets in the EC, where we are not doing as well as we should, this would be a very important investment and might merit a little extra cash?
Baroness Young: My Lords, I think we all share the wish of the noble Baroness that more of us spoke other foreign languages. That is absolutely right. I should like to make it quite clear that there are already a number of youth exchanges to Europe. I believe that in 1985–86 the number of young people who came to the United Kingdom totalled 6,620, and 9,368 Britons went to the European Community on such exchanges. I share the view of the noble Baroness that this is important work and it would certainly assist the people of this country to improve their ability to speak foreign languages.

Maguire/Guildford Trials: Review Request
2.58 p.m.
Baroness Ewart-Biggs: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what action they propose to take on the cases of the Maguire explosives and Guildford bombings in the light of Robert Kee's book Trial and Error.
Lord Beaverbrook: My Lords, my right honourable friend the Home Secretary is examining Mr. Kee's book carefully. In the Maguire case, he will want to determine whether it raises any new points which require further investigation or which may affect his earlier decision that he would not be justified in referring the case to the Court of Appeal. In the Guildford case, he is looking at the points Mr. Kee raises in the light of the review which is already under way.
Baroness Ewart-Biggs: My Lords, I am grateful to the Minister for that Answer, as far as it goes. However, does not the noble Lord agree that growing concern from different quarters about the miscarriage of justice warrants a greater urgency? Therefore, in the light of the irrefutable presentation of evidence and facts by Robert Kee, and in order to remove something which has nagged at, and will continue to nag at, the conscience of British justice, will the noble Lord urge his right honourable friend to set up an independent review which will investigate and report on the inter-relationship between the two cases, rather than look at the two cases separately? I am sure the noble Lord will agree that admitting an error would not weaken British justice but, in this instance, enormously strengthen it.
Lord Beaverbrook: My Lords, my right honourable friend has seen it as his duty, having regard to his powers under Section 17 of the Criminal Appeal Act 1968, to consider each case on its own merits. He has not taken the view to date that there are grounds for setting up an inquiry into any of these cases.
Lord Fitt: My Lords, does the noble Lord agree that the case of the Maguire family and the Guildford bombers is unique as regards all the circumstances which attach to it? In view of this latest book by Robert Kee and the degree of doubt that has been expressed by eminent scientists and members of our own judiciary, some representatives of which are to be found in this House, and the fact that 210 signatures are now appended to an Early Day Motion which has received all-Party support in the House of Commons, and in view of the fact that members of the Maguire family have already served their very long prison sentences and are still proclaiming their total innocence of the charges on which they were convicted, will the noble Lord make representations to the Home Secretary, telling him very clearly that this case is not going to go away, however much he may attempt to keep defending the perimeter?
Lord Beaverbrook: My Lords, the whole of this case was looked at carefully following the debate in your Lordships' House in May 1985. No grounds could be found to justify interfering with the convictions, but as I have said, my right honourable friend is nevertheless prepared to look at the case again. The door is never closed on cases of this kind.
Lord Mishcon: My Lords, is the noble Lord aware of the deep concern about this matter among parliamentarians of very high repute, and that among those who have written to The Times recently is a very noble and learned Member of your Lordships' House who has interested himself in this case? In view of that, does the noble Lord think that he ought to go further? Does he remember that I ventured to make a suggestion to try to stop this revolving circle in the very debate to which he referred? I suggested that the Home Secretary should set up a body of independent scientists to advise him whether there was fresh evidence so that he could move under Section 17. Lastly, is the noble Lord aware that his noble predecessor said that he thought that it was a worthy suggestion? Is he prepared to ask his right honourable friend to look into this matter again on that basis?
Lord Beaverbrook: My, Lords, I am most grateful to the noble Lord, Lord Mishcon. Yes, I am aware of the concern that has been expressed by many eminent people, including Members of this House. My right honourable friend has certainly taken careful note of the concern expressed by a number of eminent people about the convictions in this case. As regards the second point that was raised by the noble Lord concerning a scientific committee, my right honourable friend the Minister of State wrote to the noble Lord, Lord Fitt, in January, to say that the Home Secretary could not find grounds to justify such a step. However, I should like to re-emphasise that my right honourable friend the Home Secretary has said that the door is never closed.
Lord Scarman: My Lords, while I welcome the statement on the part of the Government that there is to be a further inquiry. I should like to ask the noble Lord two questions. First, in any review, departmental or otherwise, that may now be undertaken into this case will particular attention be paid to the fact that each individual defendant—and there are 11 in the two cases—has the case against him or her carefully considered separately from the sort of general case that can be levelled against all of them?
Secondly, if significant facts or something that looks like significant facts or considerations of substance appear to emerge after a full consideration of Mr. Kee's book, will the Secretary of State for Home Affairs bear in mind the words of the noble and learned Lord, Lord Diplock, which were spoken judicially in a criminal appeal case, that if there is a reference to the Court of Appeal under Section 17, the Court of Appeal can look into the whole case again in order to ensure that justice, however belated, is done?
Lord Beaverbrook: My Lords, I am most grateful to the noble and learned Lord. There must be some factor for the court to look at other than evidence
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which the courts have already considered. Having said that, yes, my right honourable friend the Home Secretary will look at all these aspects.
Lord Hutchinson of Lullington: My Lords, are the Government concerned that this is yet another example of a possible grave miscarriage of justice which has only come to light through investigative journalism rather than through the judicial process? Does the noble Lord think that the time has come for a thorough review of the limits which the Criminal Division of the Court of Appeal has placed upon itself as to the grounds on which it is prepared to allow an appeal or to order a new trial?
Lord Beaverbrook: My Lords, I think that question goes rather wide. If the noble Lord would like to put down a Question I should be pleased to answer it on another day.
Lord Monson: My Lords, does the noble Lord accept that the concern voiced by the noble Baroness, Lady Ewart-Biggs, is shared by people with widely varying views on Northern Ireland? Concern is by no means confined to one part of the political spectrum.
Lord Beaverbook: My Lords, I have already said that we are looking at the concerns expressed by a number of eminent people who are representative of all parts of the political spectrum.
Baroness Ewart-Biggs: My Lords, in view of the fact that the IRA gang which was arrested in the Balcombe Street siege claimed sole responsibility for the Guildford bombings, can the noble Lord say why the criminals who confessed to the crime at Guildford were not charged with it?
Lord Beaverbrook: My Lords, it is not for me to answer in this matter on behalf of the police, but I must say that I think that confession was largely discounted.
Lord Annan: My Lords, will the noble Lord accept that many who believe that there has been a miscarriage of justice suffered by the Maguire family fully understand the sense of outrage that swept the whole country when the Guildford bombings took place? Will he agree that in that sense of outrage there was very great pressure on the police to find the bombers, and that very understandably the police felt that they had a very good lead to the Maguire family? That having been said, will he further accept that the sole evidence against the Maguire family was the discovery of nitro-glycerine from the parings under their finger nails? Because of that sense of urgency in wishing to bring criminals to justice, which everyone had at the time, is it not possible that some mistake or error ocurred with that particular piece of evidence? If that is not part of the case which can be discussed and properly brought before the Home Secretary, it is very difficult to see how there can be any reconsideration of the case.
Lord Beaverbrook: My Lords, the evidence was placed before the jury and the Court of Appeal, and the Court of Appeal upheld the verdict. All I can say

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is that the Home Secretary has considered all aspects of the case and, as I said, is reconsidering Robert Kee's book. Unless some new evidence comes to light, I must say that it is unlikely that the Section 17 referral will be used.
Lord Diamond: My Lords, in the light of all the exchanges which have recently taken place in this Chamber, is the Home Secretary reconsidering whether there should be an extension of capital punishment to catch people who are found guilty under this heading?
Lord Beaverbrook: My Lords, I think that goes rather wide of the Question.
Lord Cledwyn of Penrhos: My Lords, substantial representations have been made here this afternoon, which have come from very authoritative sources, as I feel sure the noble Lord will agree. If I may say so, he has answered very fairly and clearly; but he has also said that the door is still open. That being the case, will he convey to his right honourable friend the Home Secretary the real concerns about this case which exist across the House today? Will he say to his right honourable friend that many of us on all sides of the House will feel dismayed if he does not give the matter further considerable consideration?
Lord Beaverbrook: My Lords, I am grateful to the Leader of the Opposition. My right honourable friend will of course hear the views that your Lordships have expressed today. I undertake to convey them in the full spirit in which they were expressed to me.

Petition: Deacons (Ordination of Women) Measure
3.10 p.m.
Baroness Seear: My Lords, I beg to present a petition from Deaconesses of the Church of England which prays that your Lordships will support the Deacons (Ordination of Women) Measure currently before Parliament in order that Deaconesses should be accepted into the historic ministry of the Church as Deacons.
Petition presented.

Exeter City Council Bill [H.L.]
The Chairman of Committees (Lord Aberdare): My Lords, I beg to move the first Motion standing in my name on the Order Paper.
Moved, That the Commons message of yesterday be now considered;
That the Promoters of the Bill have leave to suspend any further proceedings thereon in this Session, in order to proceed with the Bill in the next Session of Parliament, notice of their intention to do so having been deposited in the Office of the Clerk of the Parliaments;
That such Bill shall be deposited in the Office of the Clerk of the Parliaments not later than three o'clock
1024
on or before the third day on which the House shall sit after the commencement of the next Session of Parliament, with a declaration annexed thereto, signed by the Agent, stating that the Bill is the same in every respect as the Bill at the last stage of the proceedings thereon in this House in the present Session;
That the proceedings on such Bill shall, in the next Session of Parliament, be pro fOrma only in regard to every stage through which the same shall have passed in the present Session and that no new fees be charged in regard to such stages;
That the Standing Orders by which the proceedings on Bills are regulated shall not apply, in the next Session of Parliament, to such Bill in regard to any of the stages through which the same shall have passed during the present Session.—(The Chairman of Committees.)
On Question, Motion agreed to, and it was ordered that a Message be sent to the Commons to acquaint them therewith.

Harwich Parkeston Quay Bill
The Chairman of Committees: My Lords, I beg to move the second Motion standing in my name on the Order Paper.
Moved, That this House do concur with the orders made by the Commons set out in their message of yesterday.—(The Chairman of Committees.)
On Question, Motion agreed to, and it was ordered that a Message be sent to the Commons to acquaint them therewith.

Housing and Planning Bill
3.12 p.m.
The Parliamentary Under-Secretary of State, Department of the Environment (Lord Skelmersdale): My Lords, I beg to move that the Commons amendments be now considered.
Moved, That the Commons amendments be now considered.—(Lord Skelmersdale.)
On Question, Motion agreed to.

COMMONS AMENDMENTS TO LORDS AMENDMENTS
[References are to Bill (145) as first printed by the Lords.]
[Commons amendments are printed in italics.]
The Lord Chancellor (Lord Hailsham of Saint Marylebone): My Lords, before I call the Motion standing in the name of the noble Baroness, Lady David, I should point out that there is a correction to be made in the Marshalled List. Amendment No. 2F should read:
"Leave out sub-paragraphs (6) and (7)".
The figures (6) and (7) have, I understand, been omitted from the list.

LORDS AMENDMENT
1 Before Clause 1, insert the following new clause:
"Exception to the right to buy with respect to dwelling-houses for persons of pensionable age.
.—In Schedule 5 to the Housing Act 1985 (exceptions to the right to buy: certain dwelling-houses for persons of pensionable age), there shall be substituted for paragraph 11—
"11.—(1) The right to buy does not arise if the dwelling-house—

(a) is particularly suitable for occupation by persons of pensionable age, having regard—

(i) to its location, and

(ii) to its size, design, heating system and other major features so far as those have been provided by the landlord, a predecessor of the tenant or a person qualified to succeed the tenant by virtue of Part IV of the Housing Act 1985.

(b) was let to the tenant or a predecessor in title of his for occupation by a person of pensionable age or a physically disabled person (whether the tenant or predecessor or another person).

(2) In determining whether a dwelling is particularly suitable, regard shall be had as to whether the dwelling—

(a) is easily accessible on foot;

(b) is on one level;

(c) being a flat located above ground floor access by lift is available;

(d) has no more than two bedrooms;

(e) has a heating system serving the living room and at least one bedroom.".".

The Commons disagreed to the above amendment but proposed the following amendment in lieu thereof:
2 Before Clause 1. insert the following new clause:
"Exception to the right to buy in case of certain dwelling-houses for persons of pensionable age.
—In Schedule 5 to the Housing Act 1985 (exceptions to the right to buy),for paragraph 11 (certain dwelling-houses for persons of pensionable age) substitute—
"11.—(1) The right to buy does not arise if the Secretary of State has determined on the application of the landlord, that it is not to be capable of being exercised with respect to the dwelling-house.
(2) The Secretary of State shall so determine if, and only if, he is satisfied that the dwelling-house—

(a) is particularly suitable, having regard to its location, size, design, heating system and other features, for occupation by persons of pensionable age, and

(b) was let to the tenant or a predecessor in title of his for occupation by a person of pensionable age or a physically disabled person (whether the tenant or predecessor or another person).

(3) The Secretary of State shall for the purposes of this paragraph disregard the presence of any feature provided by the tenant or a predecessor in title of his.
(4) A dwelling-house which the Secretary of State is satisfied has the following features shall, subject to sub-paragraph (3), be taken for the purposes of this paragraph to be particularly suitable for occupation by persons of pensionable age.
(5) Those features are—

(a) easy access on foot to the dwelling-house, including in the case of a flat above or below ground-floor level access by lift to the level of the dwelling-house;

(b) accommodation on one level;

(c) no more than two bedrooms;

(d) suitable heating arrangements for at least the living room and one bedroom;

(e) reasonably convenient location in relation to shops and public transport.

(6) The Secretary of State may by order vary the list of features in sub-paragraph (5) by adding or deleting features or amending the description of any listed feature; and an order may contain such transitional provision as appears to the Secretary of State to be appropriate.
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(7) An order shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(8) An application for a determination under this paragraph shall be made within the period for service of the landlord's notice under section 124 (notice admitting or denying right to buy).".
(2) The above amendment applies to any decision made by the Secretary of State after the commencement of this section, notwithstanding that the tenant's notice claiming the right to buy was served, or the application for a determination was made, before commencement.'.

MOTION MOVED ON CONSIDERATION OF COMMONS REASON
2A Baroness David rose to move, That this House do insist on their Amendment No. 1 to which the Commons have disagreed, and disagree to Amendment No. 2 proposed by the Commons in lieu thereof.
The noble Baroness said: My Lords, I beg to move that this House do insist on their Amendment No. 1 to which the Commons have disagreed and disagree to Amendment No. 2 proposed by the Commons in lieu thereof.
We return to a subject much discussed in your Lordships' House, the question of the right to buy for elderly people living in houses particularly suitable for persons of pensionable age. Members on all sides of the House have shown the strength of their feelings on a number of occasions when the Housing Act 1980 and the Housing and Building Control Act 1984 were going through the House and again on the first Committee day of this Bill, when we voted what became Clause 1 into the Bill by 117 to 105.
I had hoped that the clear will of the House had at last been recognised by the Government as no effort was made to overturn that decision on either Report or Third Reading. But yesterday at literally the eleventh hour, when our amendments were discussed in another place, the Government used their large majority to introduce their own clause and delete ours.
No one here, I believe, likes going against the will of the elected House, but we have no alternative but to try. The Government's clause makes the present position worse. It is not a compromise, as I shall try to point out.
It seems that the Government object to the removal of the power that the Secretary of State has to make individual case-by-case decisions. Our amendment left the tenant with recourse to the court if he or she felt that the landlord—the local authority—had acted unfairly. The Minister in another place, Mr. Patten, yesterday said that that was a puzzling assertion and continued:
"because decisions taken by the Secretary of State under the present arrangements are in the same way subject to the final jurisdiction of the courts. Therefore, it would he a substitution of the first in line, the local authorities, for the courts, rather than the courts for the Secretary of State. There is no real difference in that respect between what happens now and what the Opposition prepare to propose".—[Official Report, Commons, 3/11/86; col. 691.]
I do not think that that was a fair picture of what happens or is intended to happen under the Government's new clause. With the exception of the elderly, most right-to-buy cases are determined initially by the landlord. That includes the disabled and sheltered and grouped housing for the mentally ill. The challenge is in the county court.
For the elderly, where the arrangements are unique, the Secretary of State has substituted himself as the arbiter and must therefore be challenged in the High Court. The High Court would not substitute its own judgment for that of the Secretary of State; it would look only at questions as to whether the rules of natural justice had been obeyed and whether the Secretary of State was exercising his functions under the Act. It would interefere only if no reasonable person could reach a particular decision.
Our amendment provides an objective test which can be challenged in the county court under Section 181 of the Housing Act 1985. There is no mention of the local authority having to be satisfied, in sharp contrast to the Government's subjective amendment where the decision "shall" be made by the Secretary of State.
Arrangement for the elderly, as I said, are unique. Why should those dwellings be treated differently from the rest? If the Secretary of State feels that a few local authorities are being unfair he has considerable powers under Sections 164 and 170 of the Housing Act 1985 to assist through legal aid or direct legal assistance any person who wishes to challenge the landlord over the right to buy. He even has the right to call in commissioners, but none of those powers has needed to be used since 1981. That fact should be remembered.
What I think helped to covince your Lordships to approve the new clause was not only the length of time that applications for exemption took to be decided but the weight of evidence which showed that cases for exemption which had been submitted to the Secretary of State were being turned down on trivial grounds and not according to the clear criteria and agreements made at the time of the 1984 Act. I quoted a case from Wolverhampton where working surfaces, shelves and so on were not of a special height and where there was no provision for special locks to enable the bathroom door to be opened from the outside. Those facts were cited as reason for refusal. Both come within the last four criteria supposed to be of less import according to the government circular.
The Harrogate survey conducted last year produced a mass of evidence that councils were losing precious houses and flats which they badly needed for the elderly on their waiting lists. One authority had had one case only supported out of 20 determined in favour of the tenant. Another had an application refused because it failed to comply with two minor points—the provision of raised electrical outlets and again suitable locks on bathroom and lavatory doors. That was despite the fact that the council had installed a speech-call system and had already decided to extend the mobile warden service to those dwellings. The ADC has reported a letter from Maldon District Council to the Secretary of State saying that different decisions had been made on applications for two identical bungalows originally built in 1949 specifically as old people's dwellings.
I have here a new questionnaire being used by the DoE West Midlands office dated September 1986. So it is very recent. There are 10 questions asking for replies in great detail. I shall quote just one. It is
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Number 4, where the dwelling is a first floor flat without a lift. It says:
"If this flat is situated at first floor level and is not served by a lift, please let me know (a) the number and height of steps of the entrance to the flat, (b) whether the stairs are fully enclosed, (c) whether there is a turn or bend in the stairs, so that some of the steps become narrow. If so, what is the width of the treads at that point, (d) whether the steps are designed to be non-slip. If so, please give details, (e) if a hand rail has been provided, and if it runs the full length of the stairs, (f) the lighting arrangements for the stairs at night, including the location of the light switches.".
I invite your Lordships to consider the amount of time that officials both in the district council office and in the department must spend in thinking up the queries and answering them
I have said that I consider that the Government clause makes matters rather worse. They have added to the criteria that we listed. The first—it appears as 5(a)—says,
"easy access on foot to the dwelling-house".
That we had, but it goes on,
"including in the case of a flat above or below ground-floor level access by lift to the level of the dwelling-house".
Another, added under paragraph (e) states,
"reasonably convenient location in relation to shops and public transport".
In the case of the first, it seems unreasonable to expect basement and, even more, semi-basement levels in what are perhaps converted houses or any older building, to have a lift. A convenient location for shops or public transport has become much more difficult since the little corner shop has been increasingly squeezed out by the big supermarket. Sub-post offices have been closed and bus services have also deteriorated. This is particularly true in rural areas. We had in our clause:
"is particularly suitable for occupation by persons of pensionable age, having regard to its location".
We also had
"is easily accessible on foot".
I would have thought that those two points covered the situation adequately.
The other element introduced into the Government clause is the right of the Secretary of State to vary, by order, the features taken to be particularly suitable for elderly people's dwellings by adding or deleting features or amending the description of any listed feature. This order will be subject to negative procedure only. That it does not have to be brought before Parliament is not satisfactory. And the total freedom and power that the order gives the Secretary of State to change the goal posts at any moment we dislike very much.
We are therefore asking your Lordships to support our new clause. We have produced ample evidence that the present situation is working badly. We have shown the considerable delays in making decisions, and levels of detail being asked for that are well outside the spirit of the legislation and agreements reached in 1984 and clearly outside the guidance issued in Government circulars. Should the Government say it is unfair that the elderly are discriminated against if they cannot enjoy the right to buy their houses, I would say that the greater good of having an adequate supply of suitable rented accommodation for the

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increasing number of elderly in our population should prevail.
The number of elderly over 75 in the population is expected to rise from just over 2 million in 1981 to just over 4 million in 2001. Of the total of 314,000 elderly people's dwellings, 307,000 are in the public sector—15,000 with housing associations and 292,000 with local authorities. The number of elderly on housing waiting lists was 232,000 in 1985, according to the DoE aggregate of local authority estimates of elderly in need. There is an appalling shortage.
We must allow local authorities to keep a proper supply for renting. We trusted the Government's protestations made in 1980. But 90 per cent. of cases submitted to the Secretary of State had been rejected when the 1984 Bill was up for consideration; and we know what has happened since that Bill became an Act. I hope that we can take the proper action this afternoon and safeguard, at least in part, this very important section of our housing provision. I beg to move.
Moved, That this House do insist upon their Amendment No. 1 to which the Commons have disagreed and do disagree to the Commons Amendment No. 2 proposed in lieu thereof.—(Baroness David.)
Baroness Stedman: My Lords, I should like, from these Benches, to support the noble Baroness. We have had long discussions concerning the sale of accommodation that has been specially built or adapted for the elderly. We had them in 1980, again in 1984, and again during the passage of this Bill and similar legislation for Scotland. The situation today is more urgent than ever before, since the demand for such rented accommodation is growing much faster than ever before. With cutbacks in local authority expenditure, authorities are unable to increase very significantly their stock of this specialist kind of housing. We are also concerned that the arrangements for assessing whether or not to agree to the sale have not been working as we had hoped. Until recently the exclusion rate of cases submitted to the Secretary of State was only 16 per cent, although—surprise, surprise, I suppose—since this Bill started its tortuous passage, the exclusion rate has gone up to 36 per cent. There are still far too many being excluded.
It is still our view that the exclusion criteria are far too stringent. Examples were given at Third Reading, and again today by the noble Baroness, of the attitude of the Secretary of State and the minor issues he was making. Our original amendment from this House had the support of the local authority associations, of the Institute of Housing, of Shelter, of Age Concern and of many other bodies concerned with housing for the elderly. All of them believed that it was right to remove from the Secretary of State to the courts the final decision on elderly persons' exemptions under the right to buy. We have also incorporated criteria from Circular 21/84 to try to prevent the refusal of exemption on minor grounds.
The questionnaire that has been used by the DoE in its West Midlands regional office for a couple of
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months—the noble Baroness referred to this—details a number of minor grounds. I should like to know from the Minister whether the same questionnaire is being used by all councils in all the regions. Or is it only being used by the regional office in the West Midlands? One of the questions asked is, "Is the area surrounding the dwelling hilly?" Does that imply that, if one is old and one lives in a naturally hilly district, no homes for the elderly will be possible, or that they will be all available for resale if wanted?
I have considerable doubts about the Government including in the new criteria the reasonably convenient location in relation to shops and public transport. In many rural areas, housing for the elderly is located in villages that have not only lost but in some cases never had a village shop or a proper bus service. But the elderly still want the ability to remain in what they consider their area. This is not a suitable main criteria for exclusion from the right to buy. All that local authorities want to do, and all we wanted to do by the amendment, was to preserve the stocks of special housing for the elderly, so that when people need such housing it can be available to them.
We believe that the Minister has had a fair chance to show how he would interpret the rules in the light of discussions that we have had on previous occasions. He has had the opportunity to implement the elderly person exclusion arrangements within the spirit of what was agreed by this House and another place in 1980 and in 1984. It was accepted in 1984, as it is today, that the spirit of the legislation and the details set out in circulars have not been adhered to by the Secretary of State. That was the reason for the amendment during the course of the passage of the Bill. It is our view, as it was the view of the House on that occasion, that this part of the right to buy should now operate in the same way as in other aspects, such as sheltered and disabled housing. There have been two periods for the Secretary of State to operate the arrangements. I believe that he has failed to do so in a satisfactory manner and that this amendment, if the House reaffirms it today, will enable a sensible reform to be made in this very difficult area.
3.30 p.m.
Lord Boyd-Carpenter: My Lords, on these two amendments to the Bill your Lordships have to undertake what I think most of us regard as a difficult task; that is, the balancing of two considerations each of which is of a very considerable strength against the other.
The two noble Baronesses who have addressed your Lordships have, naturally from their point of view, put the whole emphasis on the very proper and understandable desire of local authorities to retain a sufficiency of accommodation which will be suitable for elderly persons. But the other side of the medal, and the other consideration, is that what is proposed in both these amendments, though in very different degree, is to deprive tenants of this accommodation of a right which virtually all other tenants have been given: to purchase the accommodation in which they live.
I hope your Lordships will feel that a good deal of weight ought to be given to the feelings of a person,

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very often an elderly person, from the nature of the accommodation, who wants—as millions of our fellow countrymen have shown recently that they want—to be an owner-occupier and finds himself or herself singled out for deprivation of that right because of the nature of the accommodation he or she occupies. I am sure that both the noble Baronesses can well understand the feeling of frustration of those tenants.
I think it is important, when balancing those two considerations, to hear in mind that if the Government's amendment is accepted there can certainly be no very dramatic or immediately very substantial change in the availability of accommodation for elderly people. Given, happily, the steady improvement in the expectation of life in this country, the occupants of those premises are likely to be there for a good many years to come. Therefore we are not concerned with any immediate or drastic cutting off of any substantial supply of accommodation to the local authorities but only to the fact that they would, if the decision went against them, find the supply gradually, slowly and over the years, diminished. Your Lordships may wish to have that fact in mind.
We then come to what seems to me to be the nub of the matter. If a citizen is to be deprived of the right as occupier to buy and to become an owner-occupier, subject to the subsequent decision of the court somebody has to take the first and immediate executive decision. The matter which arises on these two amendments is whether the somebody who will make that decision should be the local authority or the Secretary of State. The local authority are the landlord. It is the local authority therefore who have a special and specific interest in the case. I suggest to your Lordships that on general principles it is not a good thing to make somebody a judge in his own case but that it is better, where interests of this kind are involved, that the decision should be made by somebody, in this case the Secretary of State, who has no direct interest in the property concerned.
Acceptance of the original amendment as it went to the Commons seems to me—I say this with great deference—to have the weakness of making the local authorities in the first case judges in their own cause. In a matter where one has to balance two conflicting interests, both of great importance to the parties concerned, it seems to me that the solution contained in the amendment which went to another place—making the local authority the judge—is less good than that of making sure a decision is made by someone, in this case the Secretary of State, who is clear of the battle and has no direct interest and is therefore in a a better position to make a fair and proper decision. In the light of that, I shall vote for the Commons amendment.
Baroness Denington: My Lords, I should like to deal with only one point raised by the noble Lord: that of the rights of the tenant. I have always found the British people reasonable and understanding. I think that is true of us as a nation.
The bungalows about which we are talking were built by the local authorities. Many of the tenants who are in the bungalows—and my experience is of
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London—were living upstairs in the five-storey walk-up flats where they had been living for many years. As they get older, they find that mounting the 10 flights of stairs—two flights up to each floor—very difficult, especially if they have chest complaints; and in London unfortunately very often they do because of atmospheric pollution. When they are made an offer of a bungalow or an old person's ground-floor dwelling, it is seen as a blessing from heaven, particularly if it is a bungalow at the seaside, or in the countryside in clean air.
Those who have gone there are ordinary, decent people. They know that they have been lucky to be housed in a local authority dwelling, particularly in times when there are many people who are homeless and many who have had to live in rather unsatisfactory private accommodation. By and large they have been lucky. Now they are luckier still. Those people may think, "It would be nice to buy the property because our daughter. Joan, would be able to have it, with her children". However, when they realise, as they do—they read the papers and talk to people—the pressure that exists for this scarce accommodation, I am quite certain that these people will say, "But I have been lucky. I accept that I cannot buy it and when I go another person will be lucky in my place".
Lord Molson: My Lords, I find myself in some difficulty in understanding exactly what the position of the Government is with regard to this amendment. Before I come to the difference between the speeches of noble Lords and members of the Government and the wording of the amendment that we are asked to accept, perhaps I may say that I was interested to note the remarks of my honourable friend the Minister for Housing that he thought the amendments carried in this House,
"smack of discrimination of grounds of age. I never expected to have to accuse their Lordships, of all people, of agism, at least in part, if not in whole."—[Official Report, Commons, 3/11/86; col. 690.]
I take it that that is a friendly reference to the relatively greater age of Members of your Lordships' House as against that of Members of the House in which he sits. Age of course does not necessarily reduce experience or wisdom, and I am sure that that is intended as a friendly reference to the regard that should be paid to the opinions that your Lordships express on all political and other matters.
The speech of the Minister of Housing I thought was of a very friendly kind. He gave various assurances in line with the assurances given by my noble friend the Parliamentary Under-Secretary of State, which I think should go quite a long way to reassuring your Lordships. At the same time, I cannot see how in the wording of his new clause effect is given to them.
First, let me say that I do not attach very great importance to this matter of appeal to the courts. The Government gave us an assurance that the amendment that was carried in your Lordships' House made no difference to the fact that a decision of the Secretary of State was ultimately subject to review by the courts. I find that a little puzzling because I see no actual reference to a right of appeal to the courts in the normal sense of the word; but if it were a matter of judicial review I do not think that any decision given

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by responsible Ministers would come within the scope that was indicated to your Lordships only a short time ago when my noble and learned friend the Lord Chancellor quoted a judgment of the late Lord Diplock. Speaking from memory, it was on the question of whether the courts would intervene if it were contrary to natural justice or completely perverse or ultra vires.
It is not apparent to me (I am not learned on these matters) and therefore in my ignorance I should be glad if the Parliamentary Under-Secretary would explain how it comes about that a decision given by the Secretary of State under the present law, and regardless of the two amendments now under consideration, would come before the courts. I cannot see how they could come within the definition of judicial review as laid down by the late Lord Diplock and reiterated by my noble and learned friend the Lord Chancellor.
I was impressed by the spirit in which the Minister in another place gave what I thought were very encouraging assurances. He said that all decisions taken by Ministers are given in good faith, and I am sure that they are. One does notice that the number of cases where an appeal has been allowed has gone up from 16 per cent. to 36 per cent. It may be that in the exercise of his jurisdiction the Secretary of State has paid some attention to the importance that your Lordships have repeatedly attached to the right of appeal and the importance of exempting suitable houses from the right of purchase.
I pass from that, having noticed with satisfaction that there has been such an increase in the number of appeals that have been allowed—all of them, of course, the earlier and later ones, in good faith.
The tone of the Minister to your Lordships' decision was extremely friendly. He said, as reported at col. 691 of Hansard:
"we are prepared to respond to responsible and constructive criticism on this point".
Later he went on to say:
"we agree that some simplification of the test is necessary and we are prepared to see it. The Government amendment accepts the substance of the Lords amendment on this point".
That is extremely satisfactory, and I ask the Parliamentary Under-Secretary of State to explain how that comes about.
The Secretary of State went on to say, at col. 702 of Hansard:
"The Secretary of State will be able to grant an exemption if the availability of the criteria is marginal or not wholly satisfactory if he is satisfied on the evidence as a whole, taking into account all the criteria. Applications will not fail automatically merely because dwellings are a long way from shops. In the application of the new crtieria, ministerial judgment will come into the matter".
Anyone who compares, as I have done, the wording of the new clause that we are asked to accept with that of the clause that the noble Baroness, Lady David, moved, and your Lordships accepted, will find that the wording is similar and there is no reference there, so far as I can see, to a right of discretion with the Secretary of State under the clause as drafted by the Government as compared with the law as it is at present.
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Where do we find the new flexibility that is intended to go a long way to fulfil the undertakings that have been given by my noble friend the Parliamentary Under-Secretary of State in this House and fully amplified by the Minister of Housing in another place? I ask those questions because it is not apparent in the short time that we have had to compare what is taking place in this House with what has occurred in another place. I therefore ask for enlightenment on this matter as it would certainly have a considerable influence on the way that I shall vote, if I vote at all.
3.45 p.m.
Lord Denning: My Lords, as a legal point has been raised, perhaps I may say that I hope that the amendment suggested by the Commons will be agreed to because it really is much more advantageous in an administrative way. As the Lords amendments left this House, it would open the door to controversies in the courts, many of them and at great expense, perhaps on legal aid. As now amended, with the decision of the Secretary of State being the governing matter, I cannot imagine any application successfully for judicial review.
Judicial review applies only when the Secretary of State has acted contrary to law or has been totally unreasonable in his decision. The courts and the House of Lords judiciary have said often, "We must as far as possible discourage applications for judicial review in order to try and go against a Secretary of State's decision as long as it is fair and honest and reasonable". It seems to me that the Commons amendment will do just what is right. It will enable a fair decision to be made by the Secretary of State and it will discourage any undue recourse to the courts. I hope that the Commons amendment will be accepted by your Lordships.
The Lord Bishop of Southwark: My Lords, I should like to ask the Minister one or two questions which relate particularly to the question of extending or narrowing the grounds on which exemption can be made, rather than dealing with the question on appeal. From time to time the impression is given that there are a large number of pensioners who are waiting to exercise this so-called right to buy, I feel that this cannot be so, since it is normally not possible for a pensioner to secure a mortgage. Therefore, we must be talking about a relatively small group of people who have acquired capital, presumably, since they became tenants eligible to hold property of this kind or they must have relatives in the background who are offering them financial help for the purpose of purchasing this property.
Clearly, some of that group, if they have come into capital suddenly—if they have won the pools, or whatever it may be—would then be in the position to purchase a house on the open market. So we come down to an even smaller group who cannot do that but could purchase a bungalow or a flat, or whatever it may be, because it is purchased at a very heavily subsidised price.
As I listen to this and earlier debates, I find myself trying to weigh up the arguments as between the need to give that very small group of people the right to buy and take out of the market yet more properties

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specially intended for the elderly, as against the very large group of people who are already pensioners, and the even larger group of people who are going to become pensioners, who are going to need such property. We have heard already this afternoon that there is a serious shortage of such property available all over the country, but perhaps specially in some of the rural areas where there is almost no chance of a local authority being able to replace such housing. The amount they will receive for the sale of the existing property will go nowhere towards providing a replacement.
I find it very difficult, considering these points, to see how many people we are talking about. Perhaps the Minister could give us some indication of the actual number of people we are talking about in trying to decide this issue. I find it difficult to extend the right beyond the proposed amendment unless there is a very good case for doing so.
Lord Harmar-Nicholls: My Lords, I do not think that we ought to look at this amendment as though we are at the beginning of the Bill. We are at the end of a very long Bill and I think we ought to take into account the parliamentary interchange between the two Houses. I think on this occasion it is very important that we do that. The noble Lord, Lord Boyd-Carpenter, has correctly pointed out the marginal nature of the difference. The general principle, the general view, that this House included in the Bill in its earlier stages has been generally accepted by the Government. That ought to be taken into account when we come to any final decision on this amendment at the end of the day.
As we have all said so many times in the past, our function is to revise and to give a chance for second thoughts. We have given a chance for second thoughts to the other place. At the end of the day, it is the other place who will have to be responsible as to whether what they do is right or wrong, fair or unfair, to the people of this country. They will have to face that in a way that does not come to this House. I believe that what we ought to satisfy ourselves upon mainly is whether or not the other place have given due, proper and sympathetic consideration to the views which we expressed when we altered their Bill. Considering the way that the other place have accepted so many of our amendments, and have accepted the spirit behind this particular item, I do not think anyone can deny that they have given careful and sympathetic thought to the decision that we thought was right at the time.
If a great gulf remained on the general principle behind this issue, then I think that we would be justified in making speeches such as the right reverend Prelate and some other speakers have made. I do not believe that the difference in principle, which is the real point that ought to concern us, is wide enough for us to give the impression that we are being stubborn despite the fact that we have been met so much on other occasions. I know that we are not intending to be stubborn. I know that the noble Baroness does not intend to give that impression. However, I believe that the difference between the two issues is so slight, that in view of the way so many of our other amendments have been accepted in the other place, if we go to the
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point of pushing this amendment again. I think we shall be losing part of the great reputation that we have earned over this Session, and we shall be giving the impression of being stubborn.
The noble and learned Lord, Lord Denning, who guides us so very effectively on many matters, has removed the one point which would have bothered me. He has made quite clear that in terms of the legal situation, the final court of appeal, that the issue no longer stands up. I bear in mind our role of asking for second thoughts, and that we have satisfied ourselves by the very nature of the amendment itself that the other place have given second thoughts and have given a sympathetic response by the words that they have put in their amendment. In all those circumstances, I feel that we should not produce the arguments again as though we were at the beginning of the Bill, where these differences had not been brought out.
Lord Henderson of Brompton: My Lords, perhaps I may say a few words, following the noble Lord, Lord Harmar-Nicholls. He gave the impression that this was the end of the road. Well, it is not. There is a perfectly legitimate piece of parliamentary machinery for this House to insist on their amendment which the Commons have disagreed to, and then for the Commons to consider that insistence and change its mind or not as the case may be. All that this House is doing by listening to, and perhaps voting on the amendment of the noble Baroness is to exercise the perfectly legitimate constitutional machinery between the two Houses. I think that really disposes of the main argument of the noble Lord, Lord Harmar-Nicholls, if I may say so.
As always, I was very grateful to the noble Lord, Lord Boyd-Carpenter for simplifying the issue. So far as I can recollect—although the noble Lord said it far more eloquently than I can—he said that this was a balance of advantage between, on the one hand, the council having a sufficient stock of houses specially built, or specially adapted, for the elderly to be able to fulfil their duties (some of them statutory), to house the aged just as they have a duty to house the disabled, and the right of the elderly to be able to enfranchise their lease as—I think he said—virtually everybody else has. The word "virtually" was wisely inserted into the remarks of the noble Lord, because those who are excluded from the right to buy should be those categories of persons for whom the local authorities are bound to make provision; namely, disabled persons or the elderly. I have always thought that the noble Lord, Lord Boyd-Carpenter—and I have admired him for this—is the great champion of the ratepayer. I cannot think of a greater waste of ratepayers' money than for these specially built or specially adapted houses for the aged to be subject to enfranchisement so that those houses are lost for the further aged to whom councils have to supply houses when the existing tenants die.
It is very extravagant because the council either has to buy back that house from the elderly person's heirs and successors (who will have benefited far more than the elderly person by the enfranchisement) at no doubt a considerably greater cost, or they will have to build anew. To build new houses is very expensive. Therefore, to use the words of the noble Lord, Lord

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Boyd-Carpenter, the ratepayer is ill-served if the provisions which this House seeks to reinsert in the Bill are not so reinserted.
As regards the other matter, which is important, as to whether the appeal should go to the Secretary of State or to a court, again I should have thought that the instinctively Conservative person was against centralised jurisidiction of that sort. The "gentleman in Whitehall knows best" is something which does not ordinarily appeal to the ordinary Conservative. In this particular case, I should have thought that most people, including Conservatives, would be happier for the decision to be taken by the court instead of by the Secretary of State.
4 p.m.
Lord Seebohm: My Lords, I shall not keep your Lordships long, but I was a very strong supporter of your Lordships' amendment when it was passed at an earlier stage. I have not had a great deal of time—and nor has anyone else—to consider the Lords amendment. However, today I have once more been able to get in touch with Age Concern, of which I am president. I had a talk with the director, and I return to what I said before, that this Lords amendment is the right one.
I listened very carefully to the noble Lord, Lord Boyd-Carpenter, who, as usual, gave a very clear and good exposition from his point of view. He spoke about the balance, and I agree that there is a balance here. However, in his description of the balance, he put very little emphasis on the feelings and the rights of the landlord. Sufficient weight was not given to that.
We know that there is an enormous shortage of rented accommodation for old people, and I believe that unless there are very good reasons anything which diminishes that must be thwarted. In this particular instance we are not really selling the property to the old person; we are selling it to their dependants. I have no doubt whatever that those old people have every intention of staying in that rented accommodation until they die. I believe that this is simply a question of benefiting others than the old people concerned and the tenant. Therefore, I am afraid that I still beg your Lordships to approve the Lords amendment which we passed previously.
Lord Skelmersdale: My Lords, the House will remember that at the very beginning of the Committee stage, your Lordships and I, speaking for the Government, even before the matter came to a Division, agreed that the test of whether houses and flats really were suitable for the elderly and so exempt from the right to buy had not worked well in practice. Although I said that the Government were themselves working towards a simpler and more objective statutory test, the noble Baroness, Lady David, assisted by the noble Baroness, Lady Stedman, and the noble Lord, Lord Hylton, put down an amendment on the Marshalled List which in many respects reflected the Government's own view very closely indeed. I shall get to that in a minute.
The House contended that it was necessary not only to put that test into legislation, but that it should go into primary legislation. As my noble friend Lord Molson has recognised this afternoon, the
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Government accept that contention, and that is why it will come as no surprise to the House that sub-paragraph (5)(a) to (d) is virtually the same as in the amendment passed in your Lordships' House in Committee. This goes a very long way indeed to giving the House what it wants. Indeed, the Government have gone further. As I said at the time, there is one feature which in our view needs to be taken into account in considering whether a dwelling is suitable for the elderly. That is to be found in sub-paragraph (5)(e) of this new clause; namely, that it should be in a reasonably convenient location to shops and public transport. We shall want to consider this point in more detail when we discuss the amendments tabled by the noble Countess, Lady Mar.
Therefore, we have an objective test which will I hope be seen to be fair on all sides. However, until it is up and working no one—neither the noble Baroness, Lady David, nor I, nor the right reverend Prelate the Bishop of Southwark, nor anyone else in your Lordships' House—will know whether it is satisfactory in every particular.
That is why the Government have added power to vary this test by order—to give that very flexibility which I promised and to which my noble friend Lord Molson referred. Again, this is a point which no doubt we shall be discussing later. However, I can give the House a firm undertaking that we would not use that power without first consulting the local authority associations.
There is one aspect of the amendment from another place that differs markedly from that passed by your Lordships. It is this: who should operate the test? Today's amendment follows existing legislation by keeping the operation in the hands of the Secretary of State on the application of the landlord. The House will want to know why, and I suggest that the answer is quite simple. Under the Bill, as it stands, it would be the landlord who would operate the test. It has been put forcefully to us that in fact the test would not be operated consistently in different local authority areas.
The Opposition's Front Bench housing spokesman himself recognised this point in another place yesterday. At col. 704 of the Official Report he said:
"I also accept what the Minister said, in a round about way, about some local authorities being unreasonable. I do not deny that. Some local authorities, given wide discretion, would be wholly unreasonable. There is no doubt in my mind about that".
I am sure the House will agree with me that one thing we cannot afford to happen is that the right to buy for the same sort of dwelling should be accepted in one area and denied in another. That could, I am advised, happen if decisions were left in the hands of landlords.
The general policy of the party of the noble Baroness, Lady Stedman, on the right to buy appears to be one of allowing local discretion not only in respect of the elderly but generally. Her honourable friend the Member for Bermondsey, said yesterday:
"I think that the present example of how unsatisfactory that policy would be"—
Lord Hughes: My Lords, I thought that it was out of order to quote what was said in another place, except in the case of a Minister.
Lord Skelmersdale: My Lords, I apologise to the House. The noble Lord, Lord Hughes, is absolutely right and I shall refrain from so doing. It is true that the Opposition spokesman—and this is not a quotation—went on to say that if tenants felt that they were being unreasonably denied the right to buy by their landlords, they could have recourse to the courts. However, as my honourable friend made clear yesterday, that is not a convincing point. Tenants and landlords already have recourse to the courts against unreasonable decisions by the Secretary of State. It is quite misleading to suggest that from this point of view the rights of tenants would be strengthened by putting decisions in the hands of the local authorities.
The noble Baroness, Lady David, asked at the beginning of this short debate about the Secretary of State's jurisdiction. In effect, the noble Baroness was asking why decisions on the exemption of non-sheltered housing should rest with the Secretary of State when local authorities are left to take their own decisions about the exemption of sheltered housing. It is possible to provide a much more clear cut definition of sheltered housing. We did that in the 1984 Act, and my impression is that there have been few difficulties since. Where there is a clear definition, landlords and tenants know where they stand. Non-sheltered housing presents much greater difficulties. There is not the same basis for a simple objective distinction between types of housing which would give one confidence that authorities would apply the test consistently, or in some cases fairly.
There have been suggestions that there have been cases in which the Secretary of State has refused to exempt property from the right-to-buy even though all the relevant criteria were met. That is an astonishing suggestion and it is simply not true. No specific case has ever been produced by our critics which could substantiate that claim. If a local authority considers that a decision of the Secretary of State under paragraph 11 is wholly unreasonable it can of course challenge the decision in the courts. This is not a procedure to which local authorities are strangers. There are currently three local government cases where local authorities have applied for judicial review of the Secretary of State's decision, and there have been several others in recent years.
Let me make one further point about the criticisms of the Secretary of State's administration of the present test. His decisions are of course subject to judicial review in the courts, a subject about which we have heard quite a lot this afternoon. Local authorities have access to the best legal advice in the land, and they are not in my experience slow to challenge my right honourable friend if they consider his decisions unreasonable. Your Lordships might, therefore, be interested to know that, so far, there has been only one serious attempt to challenge a decision taken by the Secretary of State to refuse to exempt a dwelling from the right to buy, and in that one case leave to apply for judicial review was refused by the High Court. When it comes to the crunch, it seems that local authorities are not prepared to stand up and substantiate these vague charges of unreasonableness.
It has also been suggested that we give no reasons for our decisions. It is true that the decision letter issued by my department does not as a matter of course give
1040
reasons for the decision. But wherever either party subsequently asks for a statement of reasons, one is given in full.
Where there is a question of judicial review, either of a decision of the Secretary of State or of a local authority, this has to be done through the High Court. The opposition amendment that we are discussing now does not produce a wholly objective test. It would be for a local authority to say what, for example, was easy access or suitable heating arrangements, or whatever.
There is no statutory right of appeal from the Secretary of State's decision. An application for judicial review would have to be on the basis that the decision was one that no reasonable Secretary of State could have taken, or that there was a breach of natural justice. But the fact is that on matters of this sort some element of judgment is inevitably involved. There is no hard and fast way of drawing the line. It is therefore important that these decisions should be taken by the Secretary of State and not the landlord.
In fact the proportion of successful local authority applications has been over 27 per cent. for the past 18 months, and over 30 per cent. since October 1985, so I question slightly Lady Stedman's figures on this matter. I have examples proving this, but I do not think it would be in the interests of the House if I read out a whole lot of statistics.
So far as Lady David's point about application to the county court is concerned, there is already a power in Section 181 of the Housing Act 1985 for right-to-buy questions—
4.15 p.m.
Baroness David: My Lords, if the noble Lord will forgive me, I quoted that when I spoke.
Lord Skelmersdale: In that case, my Lords, there is something this afternoon that we can agree on. There is already a power in Section 181 of the Housing Act 1985 for right-to-buy questions to be decided in the county court. This is not the same as judicial review, but it might give a tenant another route to the courts under the opposition amendment. This does not alter the basic point that decisions of the Secretary of State are reviewable, and tenants do not find it easy to go even as far as the county court, a point that your Lordships might well take on board.
Somewhat to my surprise, there has not been a lot of comment, other than a particular construction put upon it, on the remarks of my honourable friend the Minister for Housing and Construction in another place on ageism. There have been several excitable reports in the press this morning, but since the subject has not been raised I do not think it would be appropriate to go into it.
On the other hand, something I should do is answer a question asked by the right reverend Prelate the Bishop of Southwark, and that is the reasonable question: how many tenants of those houses are we talking about? My best estimate, which I cannot at this short notice substantiate, is that we could be denying the right to buy for half a million elderly tenants. I agree with my noble friend Lord Boyd-Carpenter, that that is the issue at stake. It would indeed be age

1041
discrimination if all elderly people were automatically excluded from the right to buy.
I accept that it is not the intention underlying the Opposition's amendment, but I am suggesting, as was my honourable friend last night, that that could be the result. We have to remember that the desire for home ownership among elderly people is often as strong, and certainly as legitimate, as it is among other, younger people, a point that my noble friend Lord Boyd-Carpenter made so strongly earlier. We have, in his words, to strike a balance.
Both the noble Baroness, Lady David, and the noble Baroness, Lady Stedman, quoted a questionnaire used by our West Midlands office, and I can confirm that this is a standard questionnaire. It is difficult to see how we can make a distinction between suitable and unsuitable dwelling without asking questions about a dwelling's physical features. We agree, and I made no secret of it at the beginning of this speech, that the present test is too detailed and requires too many questions to be asked. That is exactly why we are proposing virtually the same simplification of the test of suitability as that proposed by the noble Baroness opposite.
As my noble friend Lord Harmar-Nicholls almost said, if I may put it that way, it is extremely unfortunate in many ways that this amendment, which gives the House so much of what it clearly wants, is the first of three amendments which concerned your Lordships when we last looked at the Bill. On this one the Government have a gone a very long way to meet the wishes of the House. The second concerned the effects of the Pulhoffer judgment and the Government have conceded the point, so there is no need for an amendment on the Marshalled List today. Lastly, we have drafted an amendment to fulfil a commitment that my noble friend Lady Hooper made to the noble Lord, Lord Ezra, on Third Reading, that we would protect those few tenants who on the day of the Hickman case had got well along the road to enfranchising their houses and would have been caught by my noble friend Lord Coleraine's amendment.
That cannot lead any one in the land to the conclusion that these are the actions of a dictatorial government, still less a dictatorial Minister. The issue at the centre of this short debate on the noble Baroness's amendment is of course the question of who should operate the test for exemption. The Government case is a simple one. We seek—and I know the whole House seeks—an objective test which is seen as being fair to both tenants and landlords. Both the Opposition and the Government amendments give this. This can never be so when, as my noble friend Lord Boyd-Carpenter so clearly stated, the local authority, being the landlord, is made judge and jury in its own court.
Lord Boyd-Carpenter: My Lords, would my noble friend also deal at this point, where it is very relevant, with the observation of the noble Lord, Lord Henderson of Brompton, that the granting of permission to sell by a local authority would involve that local authority in considerable expenditure?
Lord Skelmersdale: My Lords, also of course the right to buy releases considerable assets for the local authority, so I would suggest to the noble Lord, Lord Henderson—and I am grateful to my noble friend Lord Boyd-Carpenter for reminding me of the point that the noble Lord on the Cross-Benches made—that there is, even in this case, a balance to be struck.
My noble friend Lord Boyd-Carpenter clearly stated that the local authority, being the landlord, is made judge and jury in its own cause. It is on these grounds and on these grounds alone that, should this matter come to a vote—I sincerely hope, but doubtless in vain, that it will not—I ask my noble friends in all parts of the House to agree with the Commons in their amendment and to join me in the Not-Contents Lobby.
Baroness David: My Lords, I should first like to thank all those who have spoken in my support. They were very effective speeches—more effective than I could make myself. From those who are opposed to my point of view there has come a distrust of local authorities which I am very sorry to hear. It seemed to me very odd that the noble Lord, Lord Boyd-Carpenter, spoke of the local authority being judge and jury in its own case when it came to the right to buy of the elderly, if our amendment is carried; because the landlord, the local authority, already makes the decision in all general cases, such as in sheltered housing, disabled housing, and grouped housing for the mentally ill. For all those, the challenge is in the court. We are asking for the elderly to be treated in the same way.
I should like to take up the figure mentioned by the Minister of half a million people being able to vote. That figure must have surprised the right reverend Prelates as much as it did me, because according to my figure (which is a DoE figure) there are only 307,000 public sector houses for the elderly in the country; so that seems a most extraordinary figure.
The Minister said that they had gone a long way towards having the same criteria as we had in our amendment. But he did not say that they added the fact I mentioned before about the flat in a basement or semi-basement and a reasonably convenient location in relation to shops and public transport, which is very difficult in rural areas, as has been pointed out. He also did not say that there is another subsection added by which the Secretary of State may by order vary the list of features. He can do that by order, and we do not have very much say in what happens when it comes to an order particularly if there is only the negative procedure to go on.
It comes down to whether it is the local authority or the Secretary of State who has the final decision. I can pray in aid the noble and learned Lord, Lord Denning, because he said what I said when I was speaking about the courts. It would have to be the High Court, and the High Court cannot change the judgment. It can only say whether the Secretary of State had conducted himself properly, so at the end of the day the decision of the Secretary of State is unchallengeable. I hope that the House will support me in supporting local authorities and their efforts to provide housing for the increasing number of elderly in this country.
4.23 p.m.
On Question, Whether the House do insist on their Amendment No. 1 to which the Commons have disagreed and do disagree to the Commons Amendment No. 2 proposed in lieu thereof?
Their Lordships divided: Contents, 148; Not-Contents, 124.

DIVISION NO. 1

CONTENTS

Ailesbury, M.

Ingleby, V.

Airedale, L.

Irving of Dartford, L.

Amherst, E.

Jacques, L.

Ampthill, L.

Jeger, B.

Annan, L.

Jenkins of Putney, L.

Ardwick, L.

John-Mackie, L.

Attlee, E.

Kagan, L.

Avebury, L.

Kilbracken, L.

Aylestone, L.

Kilmarnock, L.

Banks, L.

Kinloss, Ly.

Beaumont of Whitley, L.

Kissin, L.

Bernstein, L.

Leatherland, L.

Beswick, L.

Listowel, E.

Birk, B.

Llewelyn-Davies of Hastoe, B.

Blease, L.

Lloyd of Hampstead, L.

Blyton, L.

Lloyd of Kilgerran, L.

Bonham-Carter, L.

Lockwood, B.

Boston of Faversham, L.

Longford, E.

Bottomley, L.

Lovell-Davis, L.

Briginshaw, L.

McGregor of Durris, L.

Broadbridge, L.

Mackie of Benshie, L.

Brockway, L.

McNair, L.

Brooks of Tremorfa, L.

Mar, C.

Bruce of Donington, L.

Milford, L.

Burton of Coventry, B.

Mishcon, L.

Carlisle, Bp.

Monson, L.

Carmichael of Kelvingrove, L.

Morris of Kenwood, L.

Cledwyn of Penrhos, L.

Mountevans, L.

Collison, L.

Moyne, L.

Craigavon, V.

Mulley, L.

David, B.

Murray of Epping Forest, L.

Davies, L.

Northfield, L.

Davies of Penrhys, L.

O'Brien of Lothbury, L.

De La Warr, E.

Ogmore, L.

Dean of Beswick, L.

Oram, L.

Denington, B.

Paget of Northampton, L.

Derby, Bp.

Phillips, B.

Devonshire, D.

Pitt of Hampstead, L.

Diamond, L.

Ponsonby of Shulbrede, L. [Teller.]

Donaldson of Kingsbridge, L.

Elwyn-Jones, L.

Prys-Davies, L.

Ely, Bp.

Rathcreedan, L.

Ennals, L.

Rea, L.

Ewart-Biggs, B.

Reilly, L.

Ezra, L.

Rhodes, L.

Falkender, B.

Robson of Kiddington. B.

Falkland, V.

Rochester, Bp.

Fisher of Rednal, B.

Ross of Marnock, L.

Fitt, L.

Sainsbury, L.

Foot, L.

Saint Brides, L.

Gallacher, L.

Scanlon, L.

Galpern, L.

Seear, B.

Gladwyn, L.

Seebohm, L.

Glenamara, L.

Sefton of Garston, L.

Grey, E.

Serota, B.

Grimond, L.

Shackleton, L.

Hampton, L.

Shannon, E.

Hanworth, V.

Shepherd, L.

Harris of Greenwich, L.

Silkin of Dulwich, L.

Hayter, L.

Soper, L.

Henderson of Brompton, L.

Southwark, Bp.

Henniker, L.

Stallard, L.

Hughes, L.

Stedman, B. [Teller.]

Hunter of Newington, L.

Stewart of Fulham, L.

Hutchinson of Lullington, L.

Stoddart of Swindon, L.

Hylton, L.

Strabolgi, L.

Hylton-Foster, B.

Strauss, L.

1044

Taylor of Blackburn, L.

Wigoder, L.

Taylor of Gryfe, L.

Willis, L.

Taylor of Mansfield, L.

Wilson of Langside, L.

Tordoff, L.

Wilson of Rievaulx, L.

Underhill, L.

Winchilsea and Nottingham, E.

Vernon, L.

Wallace of Coslany, L.

Winstanley, L.

Wells-Pestell, L.

Wise, L.

NOT-CONTENTS

Abercorn, D.

Kimball, L.

Aldington, L.

Kimberley, E.

Allen of Abbeydale, L.

Lane-Fox, B.

Allerton, L.

Lauderdale, E.

Atholl, D.

Layton, L.

Auckland, L.

Lindsey and Abingdon, E.

Barber, L.

Long, V.

Beaverbrook, L.

Lucas of Chilworth, L.

Belhaven and Stenton, L.

Luke, L.

Beloff, L.

Lurgan, L.

Belstead, L.

McAlpine of Moffat, L.

Blyth, L.

McFadzean, L.

Boyd-Carpenter, L.

Macleod of Borve, B.

Brabazon of Tara, L.

Mancroft, L.

Bridgeman, V.

Margadale, L.

Brightman, L.

Marley, L.

Brookes, L.

Massereene and Ferrard, V.

Brougham and Vaux, L.

Maude of Stratford-upon-Avon, L.

Byron, L.

Cameron of Lochbroom, L.

Merrivale, L.

Campbell of Alloway, L.

Mersey, V.

Campbell of Croy, L.

Milverton, L.

Carnegy of Lour, B.

Montgomery of Alamein, V.

Carnock, L.

Mowbray and Stourton, L.

Chelmer, L.

Murton of Lindisfarne, L.

Clitheroe, L.

Newall, L.

Coleraine, L.

Nugent of Guildford, L.

Constantine of Stanmore, L.

Orkney, E.

Cottesloe, L.

Orr-Ewing, L.

Cox, B.

Pender, L.

Croft, L.

Peyton of Yeovil, L.

Davidson, V. [Teller.]

Portland, D.

De Freyne, L.

Rankeillour, L.

Denham, L. [Teller.]

Rawlinson of Ewell, L.

Denning, L.

Reay, L.

Derwent, L.

Renton, L.

Duncan-Sandys, L.

Rochdale, V.

Eccles, V.

Rodney, L.

Eden of Winton, L.

St. Aldwyn, E.

Ellenborough, L.

St. Davids, V.

Elles, B.

Sandford, L.

Elliot of Harwood, B.

Sandys, L.

Ferrers, E.

Sharples, B.

Fortescue, E.

Skelmersdale, L.

Fraser of Kilmorack, L.

Slim, V.

Gainford, L.

Strathcarron, L.

Gardner of Parkes, B.

Strathspey, L.

Geddes, L.

Sudeley, L.

Gisborough, L.

Swinfen, L.

Glenarthur, L.

Swinton, E.

Gray, L.

Terrington, L.

Gray of Contin, L.

Teynham, L.

Gridley, L.

Thorneycroft, L.

Hailsham of Saint Marylebone, L.

Thurlow, L.

Torrington, V.

Halsbury, E.

Tranmire, L.

Hampden, V.

Trefgarne, L.

Harmar-Nicholls, L.

Trenchard, V.

Hesketh, L.

Vaux of Harrowden, L.

Hives, L.

Vivian, L.

Home of the Hirsel, L.

Ward of Witley, V.

Hooper, B.

Whitelaw, V.

Kaberry of Adel, L.

Young, B.

Resolved in the affirmative, and Motion agreed to accordingly.
[Amendments Nos. 2B to 2G not moved.]

LORDS AMENDMENT
3 After Clause 11, insert the following new clause:
"Determination of price for leasehold enfranchisement.
—(1) In section 9(1A) of the Leasehold Reform Act 1967 (determination of price payable for enfranchisement of higher value houses), in paragraph (a) (assumption that vendor is selling subject to existing tenancy) after "no right to acquire the freehold" insert "or an extended lease and, where the tenancy has been extended under this Part of this Act, that the tenancy will terminate on the original term date.".
(2) In section 23(5) of the Leasehold Reform Act 1967 (provisions as to tenancy granted in satisfaction of tenant's rights under Part I), in paragraph (b) (provisions which apply as if the tenancy were granted by way of extension) at the beginning insert "section 9(1) and (1A) above".
(3) The above amendments apply where the tenant's notice under section 8 of the Leasehold Reform Act 1967 (notice of desire to have the freehold) was given after the passing of this Act, notwithstanding that it was given before the commencement of this section, unless the price has by commencement been determined by agreement or otherwise."
The Commons agree to the above amendment with the following amendment:
4 Leave out subsection (3) and insert—
"(3) The above amendments do not apply—

(a) where the price for enfranchisement has been determined, by agreement or otherwise, before the commencement of this section: or

(b) where the notice under section 8 of the Leasehold Reform Act 1967 (notice of desire to have the freehold) was given before the passing of this Act; or

(c) where notice under section 14 of that Act (notice of desire to have extended lease) was given before 5th March 1986.".

4.30 p.m.
Lord Skelmersdale: My Lords, I beg to move that this House do agree with the Commons in their Amendment No. 4 to your Lordships' Amendment No. 3. This amendment concerns a theme that has been running through the operation of the Leasehold Reform Act, ever since 1984 when my noble friend Lord Coleraine asked my noble friend Lord Bellwin, speaking from this Box, whether something could be done about the two methods of assessment for leasehold enfranchisement in the higher rateable value bracket. My noble friend replied that until the matter was tested in the courts, there was nothing that the Government could do about it. It was tested in the now famous Hickman case, which went to the Court of Appeal, which ruled on 4th March this year.
My noble friend Lord Coleraine put down the amendment that we sent to another place and to which your Lordships gave general approval. However, during Report stage and Third Reading, this House was generally concerned—and this concern was expressed (at the last hurdle, as it were) by the noble Lord, Lord Ezra—about when the amendment should begin to bite. The upshot of this was that the noble Lord agreed to withdraw his Third Reading amendment on my noble friend Lady Hooper's promise that the Government would propose an amendment in another place to ensure that no-one who had already got well along the road to enfranchisement by means of first getting an extended lease, should be disadvantaged by the revised valuation assumptions. The route preferred by the noble Lord, Lord Ezra, was that anyone who had applied for an extension lease before the date when my
1046
noble friend Lord Coleraine moved his amendment should be excluded from the new valuation assumptions. This seemed to us to cast the net too wide. However, my noble friend Lord Coleraine indicated during Third Reading that he would be prepared to accept Lord Ezra's formulation if the cut-off date was to be drawn earlier, and he suggested the day after the Court of Appeal's ruling. My noble friend Lady Hooper undertook to consider this matter further. The amendment was successfully moved by my honourable friend the Minister for Housing yesterday in another place and fulfilled this undertaking. I commend it to the House.
Moved, that this House do agree with the Commons in their Amendment No. 4 to the Lords' Amendment No. 3—(Lord Skelmersdale.)
Lord Ezra: My Lords, I should like to express my appreciation to the noble Lord, Lord Skelmersdale, and the noble Baroness, Lady Hooper, for having taken account of the points raised in favour of leaseholders who had made their applications in what they considered to be the state of the law at the time. I should have preferred the cut-off date for those applying for extended leases to be 10th October, which was the date on which the amendment was originally moved. Nevertheless, this is an important concession. I am obliged for it, and I am grateful for the change introduced in another place in accordance with the agreement reached here.
Lord Coleraine: My Lords, I commend the Commons Amendment No. 4 to your Lordships this afternoon. The amendment which I moved was designed to deal in a fair manner between freeholders and leaseholders affected in correcting a valuation anomaly which arose through careless legislation in 1974. I am most grateful to my noble friend the Minister and to my honourable friend the Minister in another place for seeing my amendment through. I should like also to express my gratitude to the noble Lord, Lord Ezra, for raising points in Third Reading in this House which enabled us to see that there was a small handful of tenants whose claim to enfranchise on the old terms was better than the rest. This amendment gives effect to the claim of these few tenants and I think makes the clause a better clause than when it was first put before your Lordships.
Lord Skelmersdale: My Lords, I am most grateful to both noble Lords for their reaction to this Government amendment.
On Question, Motion agreed to.

Deacons (Ordination of Women) Measure
4.37 p.m.
The Lord Bishop of Rochester The Lord Bishop of Rochester rose to move, That this House do direct that, in accordance with the Church of England Assembly (Powers) Act 1919, the Measure be presented to Her Majesty for the Royal Assent.
The right reverend Prelate said: My Lords, I have the honour to move that this Measure be presented for the Royal Assent on Friday next. If, as I hope, your

1047
Lordships pass this Motion you will be doing what 42 out of the 43 mainland dioceses of England desire, what 80 per cent. of the General Synod have voted for, what the House of Bishops has passed unanimously—and that is a notable event in itself—and what was passed last week in another place by 303 votes to 25, the Ecclesiastical Committee of Parliament having found the Measure to be expedient.
The purpose of this Measure is to enable the Synod to provide for the ordination of women as deacons and for existing deaconesses to enter the Holy Order of Deacons. In the Church there are three Holy Orders: bishops, priests and deacons. The Measure would allow women to be admitted to the third of these orders only. I should like to remind your Lordships that in the early Church the diaconate was open to both women and men. It was an order whose members combined a service of caring within the community with a share in the leadership of the worship of the Church.
In the Church of England the Order of Deacons has long been thought of as little more than an apprenticeship to the male priesthood although there have recently been moves here, as there have long been in other parts of the world, towards a distinctive or permanent diaconate. Side by side with male deacons, there has grown up during the last 100 years an Order of Deaconesses not recognised as being within the third of the Holy Orders but whose service has been truly diaconal.
In times past the main focus of a deaconess's work was with women and children, but gradually deaconesses have come to have a substantial share both in the conduct of public worship and in the general life of the Church. I am proud to have 24 of them in my diocese, most of whom have been trained alongside men in theological colleges or in the nonresidential courses. For several years now, like many of my brother bishops, I have regularly ordained men as deacons and women as deaconesses at the same ordination service in my cathedral. Thus the difference of role and function has largely disappeared and a distinction in status is now really entirely without warrant.
It is against this background that the Lambeth Conferences of Bishops in 1968 and again in 1978 recommended to all the Churches of the Anglican Communion throughout the world that the Order of Deacons should be opened to women as well as to men. The Church in Wales and the Episcopal Church of Scotland are among the provinces which have already acted on this recommendation, and I understand the Church of Ireland has the matter well in hand.
It was in 1981, over five years ago, that the General Synod called for legislation to make it possible for the Church of England to do the same, and the present Measure before your Lordships today is the result. It has been endorsed, as I have indicated, by all but two of the diocesan synods, and when it was given final approval in the General Synod in July 1985 the voting was 320 to 81, with more than the necessary two-thirds majority in each of the three Houses of Bishops, Clergy and Laity.
The Measure is a quite short and simple one. Clause 1 confers the necessary powers on the General Synod to make provision by canon for the ordination of women as deacons. Clause 2 confers a like power to bring to an end women being admitted as deaconesses, but preserves the rights of those deaconesses who decide not be made deacon. Clause 3 makes the necessary consequential pension provisions on women becoming clerks in Holy Orders.
I am sure that your Lordships will have noted the categorical statement in Clause 1(4), that
"Nothing in this Measure shall make it lawful for a woman to be ordained to the office of priest."
That is a quite separate issue, which is not before this House today. It could well be that it will be our successors in office who will have to consider that issue on its merits, if and when the time comes.
I should like to tell your Lordships that we have no evidence that the admission of women to the Holy Order of deacon will create any serious problem for our relationships either with the Orthodox Church or with the Roman Catholic Church. Indeed, we know that some of their members, and particularly those in their religious orders, have been watching the long, slow progress of this Measure with considerable interest.
I should like to mention that the Measure makes no change in the Marriage Act 1949, in which Parliament provided that marriages of the Church of England should be solemnised by a clergyman. This expression is defined in the Act as:
"a clerk in holy Orders of the Church of England".
In practice therefore, so far as the secular law is concerned, as a member of the Third Order of Deacons, a female deacon would be a clerk in Holy Orders and thus would be able to officiate at marriages under the 1949 Act.
Your Lordships may like to he reassured that no alteration to the text of the Book of Common Prayer is proposed. All the 1662 forms of service will continue to be availabe for use; but to meet a point that was made in the Ecclesiastical Committee of Parliament an alternative rubric has been added to the ordinal to ensure that when a woman deacon is ordained the congregation will not be invited to pray that she may go on to the higher ministries of the Church. That was raised in the committee by the honourable Member for Staffordshire South, Mr. Patrick Cormack, who has since expressed his complete satisfaction with what has been done to meet this point.
This modest Measure has had a long, slow journey to reach this last important stage of its enactment. It can be said with complete confidence that it has been accorded a consensus of support in the Church of unusually high proportion, and that the vote last Tuesday in another place was without a doubt the largest vote of confidence in the General Synod and its present leaders since the inauguration of synodical government. As one who looks forward immensely to ordaining some fine women to the Holy Order of deacon, as my partners in ministry, I have no hesitation in asking all the Members of your Lordships' House to agree that the same opportunities of service which are accorded to Her Majesty's citizens in Scotland and Wales should now be granted to those

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who live and serve in England. My Lords, I beg to move.
The Earl of Lauderdale: My Lords, before the right reverend Prelate sits down, could he just clarify one point which may not have been raised in the other place? Is it the case that women deacons, becoming now clergy, will therefore be eligible for membership of the House of Clergy? Is it also the case that the size of the House of Clergy will not be enlarged particularly on that account?
The Lord Bishop of Rochester: My Lords, the answer to the question is that they will become clergy. Whether there will have to be an adjustment in the membership of the two Houses I would not know at this stage, but it would not be a very large adjustment in any case to keep the numbers more or less even.
Moved, That this House do direct that, in accordance with the Church of England Assembly (Powers) Act 1919, the Measure be presented to Her Majesty for the Royal Assent.—(The Lord Bishop of Rochester.)
4.48 p.m.
Baroness Seear: My Lords, I shall not detain your Lordships' House very long, as the case for this Measure has been put in such detail and so adequately by the right reverend Prelate and it has already gone through another place with an overwhelming majority. However, I should just like to make two points and restrain myself from saying what I should wish to say about the very limited nature of the advance which is embodied in this measure.
It does at least given recognition to the work that women are already doing in the Church as deaconesses and, by giving them the status of deacons, recognising the work and qualifications which they have had for so long and the work which they have been doing for so long. So from the point of view of the improvement of the position of women, both in the Church and in society in general, this is undoubtedly a step forward which I am sure your Lordships will welcome.
I also wish to welcome it, and to recommend it very strongly to your Lordships' House, because of the support that it will give to the clergy. The clergy in this country are very hard-pressed. Those of us who are familiar with the work of the clergy in the parishes up and down the country know that many of them are keeping the work going—I was about to say that they are keeping the show on the road, but that is not perhaps the right way of putting it—against very heavy odds indeed. They are unable in many cases to do the kind of work which they would wish to do, because they are overwhelmed by the routine duties which they have to perform. This is extremely unfair to the very devoted young men who are filling these positions.
It is all the more unfair because it is so unnecessary and if, by making women deaconesses into women deacons, they are then able to help the clergy in the field, this is surely very much to be welcomed. It is to be welcomed because it will relieve that burden, but also because it will be a much greater encouragement to many very able women who would wish to serve in the Church but who, if they are to serve, need to have their work expanded and its value recognised.
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I have no doubt that this Measure, small though in many ways it is, will be an encouragement to women, who were previously discouraged, to come forward. It will therefore be a much belated step in the right direction of giving women the opportunity to play a much fuller part in the Church, as they wish to do, and to relieve the burden on very hard-pressed clergy. I very much hope that there will be no dissent whatsoever from this Measure.
May I also say that, because of the arrangement of business in other parts of the House, it will not be possible for me to be here throughout the whole of this debate. I make my apologies to the House for that.
4.52 p.m.
Lord Milverton: My Lords, it is with pleasure that I rise to support the Measure before us. We are acknowledging the fact that the order of deaconesses has for a long time been exercising the ministry of the order of the diocanate in its fullest sense. The days of deaconesses having a limited role within the Church of England of a ministry just to women and children are over. Their ministry has extended to the fuller field of pastoral work; for example, visiting the sick, helping those in any need or adversity or assisting in public worship.
They do this with great care and sensitivity. They have shown in the exercise of their ministry a quality and a calibre which deserve honour and respect, and this Measure recognises that their work is far more than a useful extra or second-hand assistance to the Church. It is work that is fully valued, not just taken for granted or used as is most convenient. There are those women within the Church who have shown the highest ability and calibre and, if I may say so, we in this House are well placed to endorse the invaluable leadership which women can give, for we are privileged to know of the wisdom and expertise of the noble Peeresses on all sides of this House.
In the days of the early church, the Order of Deacons—the diocanate—included women. This Measure attributes to deaconesses their rightful place within the life of the Church. We hope that this will give pleasure to many women as a right step forward. Like the right reverend Prelate, I, too, will welcome working with a woman who has been made deacon. I hope that this will give great encouragement to many women and that they will realise that their unproclaimed work has been acknowledged.
4.54 p.m.
Lord Soper: My Lords, in commending this Measure to your Lordships' House, I think I am in a position to say that that measure of approval will receive enthusiastic support within the Free Churches. Such evidence as comes to mind asserts that fact and would confirm that the more we know about it, the more likely we are to think of it as a very good thing indeed.
But it is a domestic Measure and I am bound to refer to the quite widespread opinion, not necessarily considered, that this is the business of the Church and is no business of a House such as this. It might have been in the days when the state and the Church were the obverse and reverse of the same medal of practical

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christianity, but it no longer operates. Were this the occasion, I should try to say something about the necessity of disestablishment, if indeed we were to preserve the integrity of the faith and avoid the danger of hypocrisy in associating the Church with a political institution or indeed a Parliament.
At the same time, I am well aware that being a domestic Measure it is no business of mine as a Free Churchman. But I would declare an interest in that as a Methodist I could claim to have a rather more intimate relationship with this Measure than some other members of the Free Churches. Had the reverend John Wesley been more concerned with speed and less concerned with haste, and had the Bench of Bishops of his day understood what the word "enthusiasm" meant, I might at this moment be a member of a preaching order within the Church of England. That would be my earnest hope, though they will have to be a bit spry, at my time of life, if it is to be fulfilled before I get to the end of this earthly pilgrimage.
Nevertheless, this measure seems to me to be a very important contribution to that increasing awareness, both in the Free Churches and outside the Churches, to say nothing of the Church of England, that it is a piece of heresy bordering on blasphemy to assume that in the higher reaches of divine grace the only appropriate channels are those masculine. This is a piece of nonsense and it is a piece of great hurtful malice, or at least a failure to appreciate that both man and woman have an equal place in the ideas that go with humanity, and are entitled to recognition that one cannot be regarded as superior or inferior to the other in the means and opportunities of grace.
It is in that regard that I welcome this Measure. In particular, I welcome it because of the practical effects, one of which has been very clearly enunciated by the right reverend Prelate the Bishop of Rochester. It is the facility which is now offered to the deacon, as a woman, to counsel those for whom and with whom she will later perhaps be celebrating holy matrimony.
I sometimes think that young celibate parsons, who talk about the difficulties of marriage and who officiate at marriage ceremonies, know very little about marriage. In any case, the problem of marriage, in my experience over a very long time, is much more a problem to face the woman than the man, in the initial stages at least. What an incomparable opportunity it would be for those knowledgeable women who are deacons to counsel those who are about to engage upon this most solemn and complex issue of married life today, especially against the background of the prevailing break-up of the home and the increasing cynicism about marriage itself.
I shall not go into that in detail, except to say that I was much amused and edified, if I may use that word, by hearing the other day in Hyde Park somebody saying that home was the place where you hung around when somebody else had got the car. The more you think about it, the more prescient it is as one of the malaises, probably more dangerous than anything else in the permissive society as we now experience it, and indeed in the affairs which originate for evil over and over again in the broken home. It is for that pragmatic
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reason that I also welcome with enthusiasm this Measure.
But I shall append a caution. I do not believe that this can be in any way a substitute for a much larger Measure, which is not included in but is contradicted by or is deliberately omitted from this Measure, of the ordination of women to the full ministry of the Church. This I believe to be the ultimate purpose which lies behind those who are now endeavouring to provide a greater opportunity for the means of grace to be mediated through women as well as through men.
In that regard I very much hope that this will not be the excuse for calling a halt to that which I believe to be an inevitable prospect of any efficient Christianity in the days that are to come, when we shall regard God not as a man or a woman but regard the Godhead as combining in an ineffable capacity what we cannot fully understand and only partially can even try to put into words: that ultimate reality which does not depend either on sex or on human form, but depends ultimately on the fulfilment of the purpose to which man provides and woman provides his own and her own particular contribution. If this Measure brings nearer that day, then it is all the more to be appreciated and welcomed, and I heartily endorse it.
Lord Beswick: My Lords, I too agree with the Motion and I do so because I agree with the noble Baroness, Lady Seear, that it is a step forward. I have on occasion in this House contested some of the arguments that have been advanced for so-called "steps forward". I have been against the modernity which thinks that we need to rewrite the prayer book. I have thought that they were steps backward. My views on that were strengthened the other day when I heard a reading said to be from the Bible. Reference was made to "looking through a glass with puzzling reflections". I wondered whether through the centuries, a phrase of that kind would have had the same effect as "looking through a glass darkly". I am against that kind of modernity, but I am in favour of this Motion. I should like to think, as was said by my noble friend Lord Soper, that it will help in the future those who hitherto have been reluctant to allow complete equality between all human beings, men and women, in the ordination work in the priesthood.
5.3 p.m.
Lord Boyd-Carpenter: My Lords, it would be almost impertinent for a church warden to venture to congratulate a bishop on his speech, but were it not for that inhibition I should like most sincerely to thank the right reverend Prelate the Bishop of Rochester for his extraordinarily clear and fair exposition of this Measure which I think all your Lordships very greatly appreciated. I was moved to speak though by the very moving and, as always, impressive speech of the noble Lord, Lord Soper, if only to say that with great respect, I differ from him on one point. I am glad that this Measure has to come forward because of the establishment of the Church of England, and I should regret quite enormously what the noble Lord, Lord Soper, appeared to welcome—any question of disestablishment.
I believe that it is fundamental to the quality of life in this country that we remain openly a Christian

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country recognising as our national Church the Church of England and asking it to accept in that character certain of the (sometimes for them) irritating technical and legal restrictions which that involves. To break up the establishment would somehow terminate in the minds of many people the identity and the identification of our country and of the biggest element in our country of the Christian Church. I hope that it may be a very long time indeed before that happens, and that therefore Measures of this kind will continue to come forward to your Lordships' House.
I hope that the reception which this Measure has had will not have given any encouragement to right reverend Prelates to wish to terminate the procedure. Indeed, I think they may well think that it is probably a wholesome thing that a House of laymen should be given the opportunity to express its views on a matter of this kind.
On its merits I welcome the Measure quite enormously. I realise, if only from my connection with a small country parish, what a burden is now placed on the clergy and what a load they carry. Anything that can help to alleviate that load and help them in the devoted work which most of them are doing throughout the country is enormously to be welcomed. This is to be welcomed too as a very proper recognition of the position of women in the Church. I shall not on this occasion wish to stir up controversy, save to say that this is probably only the first of Measures of this kind that in due course your Lordships' House will have to consider. I think that the noble Baroness on the Liberal Benches hinted at the same thing.
If I may venture one sentence, it seems to me a little odd that a Church whose head is a woman, whose bishops are appointed on the advice of another woman, should still jib at the idea of appointing a woman curate. I am perfectly certain that before too many years have passed that anomaly will be righted. But having studied the history of our Church, I recognise that it moves slowly its wonders to perform; it moves majestically but it moves rightly. On this occasion this is a Measure not of revolutionary significance, recognising rather the realities today, but is a good step in the right direction and, as the French say, "C'est le premier pas qui coûte".
Lord Fletcher: My Lords, I should like very briefly to add a few words and to say how very much I welcome this Measure and give it my wholehearted support. I was not entirely happy with one phrase that fell from my noble friend Lord Soper. He seemed to think that this was a domestic matter for the Church of England. I take a different view. I am inclined to agree with the noble Lord, Lord Boyd-Carpenter, that this is not entirely a purely domestic matter for the Church of England. I think it concerns the establishment; I think it concerns society; and I think it reinforces the cherished position which the Church of England enjoys in our national life.
I am glad to think that this Measure has reached this stage, with very little opposition, either in the Synod or in Parliament. I must qualify that remark by adding that, in the Ecclesiastical Committee which had the occasion to consider this Measure at some considerable length before any recommendations were made to both Houses for approval, there was a good
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deal of discussion and some controversy. Part of that controversy led, as the right reverend Prelate has mentioned, to the introduction of a very small verbal change in the Book of Common Prayer inspired, as the right reverend Prelate said, by some observations of Mr. Patrick Cormack in another place. That slight modification in the liturgy should not occasion any concern to anybody who is predisposed to oppose this Measure.
The Measure was opposed in some quarters in the belief that if it were enacted into law it would be a prelude to proposals for the ordination of priests. It would be totally wrong to regard this Measure as any necessary prelude to that step. Steps may or may not be taken in that direction in the near future. If so, they will be considered on their merits. I prefer to think of this Measure—a very modest and limited Measure—as being in the sequence of steps which have been taken over the past century to recognise the important part that women play in our national life.
In all other fields of our national life over the past century increasing recognition has been given to the contributions made by women in various fields—notably in literature, the arts, politics, medicine and in various other branches of our national life. Therefore, I believe that this Measure brings into line the social recognition of the contributions that can be made by women in our national life. I am happy to think that the Church of England has come into line and by this Measure is affording to women an opportunity to play their part as ordained women; as deacons in Holy Orders in the contribution that the Church of England makes to our national life. I cordially support this Measure.
5.11 p.m.
The Earl of Lauderdale: My Lords, I did not intend to intervene in this debate, and I do so for only a moment. In view of one or two comments that have been made I think it only fair that another point of view should be put on record. My noble friend Lord Boyd-Carpenter referred to the Queen as the head of the Church. However, I believe the head of the Church is Christ and the most that the Queen can be is a protector of the Church.
Lord Boyd-Carpenter: My Lords, will my noble friend allow me to intervene? Whatever his theological views, which I greatly respect, as a matter of law he is wrong. The Queen's title is head of the Church.
The Earl of Lauderdale: My Lords, I disagree with that. Defender of the Faith is a title that derives from a book written by Henry VIII defending the faith before he got into trouble and while he was still in communion with Rome.
However, to proceed a stage further, I was very glad to hear the words of the right reverend Prelate in relation to the ordination of women as priests. He said that it is a matter to be decided later, on its merits. I was rather apprehensive lest in this debate an impression should go forward that there is already a certain prejudgment of this matter in the name of progress. I do not want to go into the depth of this argument, but it is only fair to say that whatever

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women deacons there may have been in the early Church, the fact is there were no women priests. Christ did not choose women to be priests or apostles; and that was in an age when the surrounding religions all had priestesses. I mention that for the record.
Having said that, I join with all that has been said in welcoming the ordination of women as deacons as a proper and right step. However, I do not regard that—and I hope it will not be regarded—as implying in any quarter any sort of commitment that the entirely different step of ordaining women as priests must be undertaken. I believe that would be a disaster. However, that is not the subject of tonight's debate, and I support this Measure in the terms in which it has been proposed.
Lord Underhill: My Lords, after all the speeches that have been made, all of which are in support of the Measure, there is very little more to be said. I echo the grateful thanks to the right reverend Prelate for the excellent way in which he outlined all the details of this Measure and its importance to the Church.
It would be wrong for me to give the impression that I am a regular participant in church activities, because for various reasons I am not. However, I acknowledge the position of the Church and the need for parliamentary approval of this Measure. It was in that spirit that I readily accepted the request of my colleagues to speak in support of this Measure. Small as it may seem, it is an important step forward.
I also echo—though not in the same words—the views of my noble friend Lord Soper, that we ought to take into account the views of the Church. We have heard from the right reverend Prelate that without any doubt all the authoritative bodies of the Church are overwhelmingly in support of this change. Nobody could fail to be impressed by the views that he expressed, echoed by others, on the work at present carried out by deaconesses and also the fact that they undergo the same training in the theological colleges.
Rules prevent me from quoting verbatim what has been said by a Back-Bencher in the other place. However, in the recent debate one Member said that this Measure will end a glaring injustice, that it will end an illogicality and that it will end a position which is indefensible. It is in that spirit and the fact that I know all the authoritative bodies of the Church support this Measure that I also commend it to your Lordships.
Lord Sefton of Garston: My Lords, I apologise if I now rise in the wrong place but I understand that it is convention, if one's name is not already on the list of speakers, to interpose between the last speaker and the reply to the debate. That is why I am speaking now.
I did not intend to speak in this debate but I am somewhat puzzled because the noble Lord, Lord Boyd-Carpenter, expressed his desire that this should remain a Christian country and that we certainly should not move towards the disestablishment of the Church of England. I see a contradiction there. Although I am an atheist I claim to have certain high moral values. Therefore, I do not believe that we would necessarily move towards being a country that is not Christian if the same privileges given to the Church of England were given to other Christian religions within our community.
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On the other hand, if we persist in saying that in some way the Church of England is entitled to be more privileged than, say, the Roman Catholic religion, that will not help in removing the bitterness and the crimes committed in the name of Christianity in certain parts of the United Kingdom. Neither will it lead to a situation where Christians see the brotherhood of man as an immediate achievable object.
I say that arising from the debate. It is not important, because it is only an expression of view by an atheist who in my opinion has no right to be here determining the future of the Church of England. That is the way the law goes. That is what the Church accepts. Therefore, I am here. What a farcical situation it is when we talk about the one most important thing in life—that is, the whole of creation and the moral attitudes of people—and that kind of situation can be created.
Frankly, I am in favour of the disestablishment of the Church of England. Religion and moral values and spiritual values should spring from the individual himself. That brings me to what is, in my opinion, the only important reason why I am speaking now. Did I hear an intervention?
A Noble Lord: My Lords, someone coughed.
Lord Sefton of Garston: My Lords, I thought that a noble Lord had made a snide remark to which I should want to reply.
I should like to put one question to the right reverend Prelate who moved the Motion. What are the principles, values, rules or regulations that until now have prohibited women from being accepted into the Church in this high office? I do not know what they are and I am asking purely for information, because it is possible that I may intend to go through the Division Lobby, if there is a Division. Are those principles, values, rules, or what have you, being weakened by this present Measure? If they are not being weakened by this present Measure, in the name of commonsense why on earth can the Measure not be extended to priests and bishops?
5.20 p.m.
The Lord Bishop of Rochester: My Lords, I am extremely grateful to all noble Lords who have taken part in this brief debate, and in particular to those who have supplemented what I said in my opening speech. Many of them have touched on matters on which I was careful to be restrained or discreet but I was very glad to hear their contributions to the debate. I was glad also that the noble Baroness, Lady Seear, was the first speaker to follow me and I was delighted to hear that in this "small Measure", as she described it, she acknowledged that the work that is already being done by women in the Church was being given recognition. I am also grateful to the representative of the Opposition who spoke, and to the noble Lord, Lord Boyd-Carpenter, to whom I am always ready to listen when he speaks as a churchwarden.
I think that in his own inimitable way the noble Lord, Lord Soper, broadened the whole question into a matter of disestablishment, and other noble Lords followed his lead. I must confess that for me the

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strongest argument in favour of disestablishment is the prospect of having the noble Lord, Lord Soper, in some kind of Anglican order.
A noble Lord: A preaching order, my Lords!
The Lord Bishop of Rochester: However, my Lords, I do wonder whether the noble Lord, Lord Soper, and others perhaps really want to revive talk of disestablishment, which would mean a public disavowal of the Christian faith. Some of us on these Benches so much prefer to work toward a broadening of the establishment, and I believe that there are those in the Free Churches, who would be happy to recognise the sovereign as Supreme Governor, as we do.
The noble Lord who spoke last asked me what rules and regulations have restrained the Church from taking this step before. It has been a slow, evolutionary process. This Measure carries the process forward; certainly in no way does it put it back. As other noble Lords have indicated tonight, there are many people who wish to take it still further and expect to do so before long.
I am grateful to those who have recognised the pressure under which the clergy work in many places today. It is true to say that they are already being helped very considerably by those of their women colleagues who, as either deaconesses or licensed lay workers, assist them in the parochial ministry of our Church. I am also very grateful to all noble Lords who have contributed to this debate. I think that there will be people in some places who will be surprised that we have had such warm and unanimous support for this Measure during its presentation to this House.
On Question, Motion agreed to.

Parole
5.24 p.m.
The Earl of Longford The Earl of Longford rose to ask Her Majesty's Government whether it is not time that the principles on which parole is granted or refused should be clarified.
The noble Earl said: My Lords, I rise to ask the Question standing in my name. I am particularly happy to think that the noble Lord, Lord Beaverbrook, will reply to it. When I first entered this House 40 years ago there were giants on the Opposition Front Bench. There are giants there today of course, if perhaps not so many this evening. But there were giants then and there are giants now. I am thinking in particular of the noble Marquess, Lord Salisbury, the noble Lord, Lord Beaverbrook, and the grandfather of the noble Earl, Lord Swinton.
The noble Marquess, Lord Salisbury, as some old-timers will remember, rendered unique services to this House and, incidentally, was immensely kind to me. However, he could not suppress the grandfather of the present noble Lord. On one occasion when there was a dispute over the American loan, the noble Marquess, Lord Salisbury, was rash enough to say about the noble Lord, Lord Beaverbrook, who was sitting beside him. "Fortunately for him, the noble Lord is well
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endowed with this world's goods"; and the noble Lord, Lord Beaverbrook, in an accent that I shall not try to reproduce, was heard to mutter, "I thought the House of Salisbury was pretty well off". The Conservatives did not consider that to be very good form, and for one reason or another the grandfather of the noble Lord did not come back very often. I always assumed that he had been frozen out. At any rate, he was a great figure and I am sure that as he looks down from wherever good Presbyterians go, he is happy to see that his grandson is handling this debate tonight.
Six years ago—indeed, three years ago also, to go no further back—I opened a debate on the working of the parole system. I expressed then a profound dissatisfaction, which I still feel at least as strongly, and I described myself as an unrepentant supporter of the principle of parole. I suppose in a way I had a psychological vested interest. I have one still. I was chairman of the Labour Party committee which reported in 1963–64 on the prevention and treatment of crime. We were the first body to recommend parole. Six members of that committee held office in the Labour Government that followed, including the Lord Chancellor and the Attorney-General. I am not sure who suggested parole, but I am ready to give the credit to the noble and learned Lords, Lord Gardiner and Lord Elwyn-Jones, or to the noble Baroness, Lady Serota, or indeed to someone else. At any rate, parole was suggested and parole was carried into law by the subsequent Labour Government. I still feel that that was something of which to be proud.
The whole history of parole would take far too long to recite now, but what the noble Lord, Lord Harris of Greenwich, who will take part in this debate, has described as "the most profound change in parole policy since the parole system was introduced" took place in 1983. The noble Lord, Lord Harris, and other noble Lords spoke in scathing fashion about those changes. It may well be that he will repeat those denunciations tonight. Certainly I joined him then and I join him this evening, but tonight I shall approach matters rather differently and from what I call a more interrogative angle—not in an academic spirit and, if I may say so to the noble Lord, not in a particularly kindly spirit. I am sorry about that. The unkindness is not directed at him but at those who guide the Government's policies.
I must begin by asking why we want a parole system at all. The report of the Parole Board for 1984, which was the first year after the regrettable reforms mentioned earlier, began with the statement:
"The Parole Board wishes to put on record that the principal concern in all its deliberations is the protection of the public".
That is a shift of emphasis, shall we say? No one can deny that the protection of the public is, as it always has been, of the utmost importance. However, when parole was first introduced it was intended as a measure which would humanise the penal system. It was not regarded as a measure to protect the public, though it was of course introduced especially with that consideration in mind. However, as time has gone on certain themes have emerged and I am exploring one element of those themes tonight; namely, that there has been a shift. The idea that the parole system is intended to make our penal system more humane seems rather to have been lost sight of.
I always believed, and still believe, that the supreme value of the parole system is that it holds out a moral inducement to prisoners to improve their characters. Another argument for parole which I do not underestimate about which we hear a great deal now is that it provides a measure of supervision for prisoners before they secure their final release from their sentence. They come out of prison and they are under supervision for a while. However, I am sure that parole would never have been introduced for that reason. Its primary reason was to give prisoners hope while in prison to lead them to improve their behaviour and ultimately their character.
In recent years another argument for parole has loomed much larger than when it was first suggested. We have seen the gross overcrowding of our prisons. It is now very much worse than it was 20 years ago when parole was introduced. That gross overcrowding has led many people to favour parole as a way of cutting the numbers in prison. That is an entirely laudable object, which I support strongly, but it was not the original object in introducing parole.
Between 1980 and 1981, the noble Viscount, Lord Whitelaw, attempted to persuade the judges to reduce sentences. According to those who examine these matters statistically, there was some reduction in the length of sentences. There would have been a steady fall in the prison population if the noble Viscount had had his way. Unfortunately, he went to the 1981 Conservative conference and received what can only be called the "bird". After that, the poor man had to abandon his role as a penal reformer. He did not become an anti-penal reformer, which was the role adopted by his successor. The noble Viscount had a bad time.
Party conferences can be awkward. I do not say that is true only of Conservative or Liberal conferences. I do not know about the SDP. Even the Labour Party has had its troubles in the past and more recently. The Conservative Party has trouble with law and order debates. I wish the present Home Secretary, the much respected Mr. Hurd. nothing but good; but I was pleased to see that he was the only Minister who did not receive a standing ovation. I am sure that on the last day that will be counted as righteousness. When they say to him, "Well, did you do much good down there?" He will be able to say, "I refused to pander to the conference. I was the only one who did not receive a standing ovation." However that was something of a divergence. I wish the noble Lord, Lord Beaverbrook, many standing ovations in the course of his life but not one at the Conservative conference. I hope that that is a charitable wish. An attempt to reduce the prison population was made by the noble Viscount, Lord Whitelaw. His successor reversed the policy. The present Home Secretary is holding the line with difficulty.
For a dispassionate and thoroughly expert discussion of the parole system, I turn—and I respectfully advise others to turn—to a learned book by Professor Nigel Walker called, Sentencing: Theory, Law and Practice, which was published in 1985. That is to say, it was published after the introduction of the sad reforms that I mentioned earlier.
In a six-page appendix, Professor Walker sets out the Parole Board's revised criteria for ordinary parole as confirmed at its annual meeting on 27th February 1984, again, as I said, after the reforms that I mentioned. There is one aspect only upon which I have time to concentrate. I shall give one quotation from Professor Walker. I have given the noble Lord the opportunity to see this in advance. The quotation from Professor Walker will make my point clear:
"It is clear that likelihood of reconviction is not always the foremost consideration. The Parole Board has taken the view that it may properly make its own assessment of whether the time served has been sufficient penalty for the crime committed."
That is Professor Walker's interpretation of the Parole Board. He continued:
"the parole scheme requires the general support of public opinion and this must be an element in the Board's consideration of the particular case".
Professor Walker then said:
"The sincerity"—
of this argument—
"is slightly doubtful because the appeal to public opinion is always a sign that what one has in mind is not genuine justice but voters' justice."
That is what in my crude way I would call mob rule, but those are my words and not Professor Walker's. He points out that we must accept that the Parole Board regards the retributive factor—a decision as to whether a person deserves to be in prison for so long—as something which may take precedence over everything else. Another important factor is what the public will say, and whether the Parole Board's credibility will be damaged if it makes an unpopular decision. In other words, the Parole Board occasionally feels it necessary to pander to public opinion.
When we talk of the public's attitude to prisoners in general or any particular prisoner, we cannot overlook the disgraceful exploitation of public anxieties by the tabloid press. I cannot believe that there is anyone in the House who is not disgusted by the way many of the tabloid newspapers treat such matters from time to time. They set out deliberately to exploit understandable public fears and stir up hatred against prisoners. We talk about public opinion—what the man in the public house would say if you went up to him. He would probably say what a taxi driver said to me the other day when I asked him how to treat prisoners. He said, "Hang the bastards". That approach is Satanic but many of the tabloids do their best to stir up that reaction.
Does the Minister consider that the Parole Board, under present arrangements, is in any way qualified to pass a verdict which dominates a prisoner's whole life? I say that in the presence of the Chairman of the Parole Board. He knows of my high regard for him, and he knows that I disapprove of some of the steps that he has taken.
The Parole Board is a quango of quangos. It is far removed from any kind of judicial body. The prisoner is not represented before it by lawyers and is not seen by it. The Parole Board relies on massive reports and, among other factors, on elaborate computerised calculations. I said "among other factors" because the Parole Board occasionally seems to be influenced by political considerations in general or in a particular case.
If there were time I should like to dwell on how the Parole Board can operate. I do not say that it does so every time. I shall give an example of a life prisoner, although I realise that we are talking about release on licence. If I am allowed to proceed, the House will see that I am making a general point. A prisoner who had served 20 years and who, for many years was accepted as not being dangerous at last, under the machinery provided, went before a local review committee. It was the first time that this particular prisoner had been considered by an independent body. As usual, expert knowledge was supplied by the governor of the prison who sat on the board. The prisoner was recommended for parole and was indeed congratulated by the chairman of the committee for the manner in which he had spent his years in prison. The prisoner then came before the parole Board, which knew nothing whatever of him at first hand.
In its wisdon, or lack of it, the Parole Board not only decided to refuse parole, not even to treat it as a doubtful case, but announced that it would be another five years before the prisoner, passed by the local review committee, could be considered for parole. That is a brutal and indefensible decision that I can only put down to political influence. I hope that the Minister will not say that this example concerns a life prisoner and that the situation is different in regard to those serving determinate sentences. The question that I raise is the same in each case. Is the Parole Board going to be governed by considerations of risk as to whether it is dangerous to let such a person out? Or are these other mysterious factors allowed to come in?
A number of noble Lords have strongly expressed the view in the past that the Parole Board should give reasons for refusing parole. I side with anyone who says that reasons should he given. We shall perhaps hear that view again tonight. I shall not, however, return to the subject myself at this time. In my estimation, much is hidden from us. It may be argued that in using the words "my estimation", I do not know what I am talking about. I have nevertheless been watching the situation for a long time and I have seen the impact on many lives. I can at any rate only give my own estimation. In my estimation, one reason why the Parole Board is so anxious not to give reasons for refusing parole is that in some cases they are reasons that it would not care to disclose. It does not want to come into the open. It has never said that a person is not being given parole because public opinion would not like it. That may be the reason, but it does not give that reason. It does not want to do so. That is one explanation why reasons are withheld. No doubt, however, that is not the only element in its attitude.
It is now 18 years since parole was brought into operation. It is time to take a look at it and to set aside the smokescreen around the principles that govern it. I sum up my remarks with some questions of which the noble Lord has had notice. Is it or is it not the case that the Parole Board today accepts a role of deciding whether a man deserves to be sentenced for a certain period of time, in view of the original crime, whatever is likely to be his behaviour on release? Cannot this fairly be described, as it often is by commentators, as resentencing? In any particular case does the Parole
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Board weigh up the possible effect of release on its credibility with the public? In other words, does it take into account its own popularity or unpopularity in trying to decide whether a particular man should be released? Finally, does the Parole Board take into account the views of the government of the day in reaching its conclusion about a particular prisoner?
Whether or not those questions receive an answer today—the noble Lord and, through him, the Government have had plenty of notice of them—they will not run away. They will always be in the minds of people, particularly those who see the suffering inflicted by some verdicts. An important book described by Adrian Speller as A Christian Critique of Criminal Justice, with a foreword by the Archbishop of Canterbury, reaches this conclusion:
"A quite different rationale for parole is now needed or its replacement by a fairer system for early release".
There is a great deal of force in those words.
Before closing, I should like to put my thoughts into a wider perspective. These are hard times for penal reformers. I am glad that the Prison Officers' Association has, in my view, come out strongly as a penal reformer. So the cause of penal reform is not dead. But it is struggling. At a time of immense increase in crime, public hostility, whipped up by the press, will make it always very hard to do what enlightened people know is the right thing.
There has been much progress in thought about prisoners and crime. But today there is a bigger gap than ever between enlightened and unenlightened opinion in regard to crime, punishment and prisoners. I hope and pray that the noble Lord and, through him, the Government will always take the enlightened side.
5.46 p.m.
Baroness Macleod of Borve: My Lords, it is, as usual, a privilege to follow the noble Earl, Lord Longford, especially on what may perhaps be described as his hobby-horse. It is born of his great interest not only in the prison service and the work of the Parole Board but also those within our prisons. I congratulate the noble Earl on being a member of the government, as he told us, that introduced the parole system. That system has been extremely effective and helpful. I congratulate the noble Earl on the part that he played at that time.
I should also like to welcome the chairman of the Parole Board. It is a very arduous job, as I think I am in a position to know. It is a privilege to have the chairman with us. I should perhaps declare an interest, not a present interest but a past interest, having been, perhaps for my sins—I cannot think of any other reason—for 25 years a magistrate, chairman of a juvenile court at Tottenham, sitting also in the adult court and in Crown courts. I was then invited to be a member of the Parole Board for the statutory three years, following which I was asked whether I would stay on for a further year. I have therefore had experience on what I might describe as the other side of the bench from all those noble Lords, I believe, taking part in the debate. This does not mean that my interest in helping the magistracy, the judges and everyone trying to decide whether a defendant is guilty or not guilty is any less than theirs.

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This evening I understand, we are asked to redefine the principles on which the Parole Board comes to conclusions. As the noble Earl has so rightly and aptly said, we door did in my day four years ago—keep in mind first the protection of the public. The second consideration is to minimise the risk of reoffending. The third was to ask ourselves whether a man could complete his period on licence without reoffending. Those were the principles—apart from consideration of the man as a person—that we took into consideration and that guided most of our decisions. I believe in fact that these principles were part of the Parole Board set-up at its inception 18 years ago.
The task of the members of the board, of whom there are now 55, is one of the most difficult in the country. The board has responsibility not only to the public but to the prisoner. The qualifications of the members of the board are very wide indeed if one studies, as I am sure all noble Lords will have done, the report of the Parole Board.
There are now eight members of the judiciary, eight psychiatrists, probation officers who are nearly always heads of their areas, magistrates, and other people all of whom, if one reads their CVs, have great knowledge in depth of people and the way they behave. They are giving of their services. I have not dared to ask how much the financial reward has gone up but I doubt very much whether it has increased by more than a pittance. I think that we received expenses but not very much more. It is very hard work indeed. If any noble Lord asks any of the judges who sit on the Parole Board whether they are willing to continue for more than the two year period for judges they say, "It is such hard work that I shall he glad to get to the end of it." However they each say how interesting the work is. Each case is separate and different; each case is considered on its merits.
Perhaps I may, give your Lordships figures from four years ago, although times have changed and the figures also. In 1982 the Board considered about 5,000 cases including the determinate and life sentence prisoners and the recalls. But in 1985, as the noble Earl has told us, it had jumped to 8,500 cases being considered by a panel from those 55 people. In 1986 I am reliably informed that it is likely to reach 10,000. However in 1985—the year of this latest report—23,477 cases of prisoners serving determinate sentences were eligible for parole. I submit that that is a very great number out of the present prison population. Of that number, 565 refused to be considered for parole.
Noble Lords will know that the parole system starts with a local review committee. There is such a committee in every prison in our country. The committee consists of people who are hand picked but who give a very great deal of their time to what is a very hard job and I should like to pay tribute to all that they do. In 1985 they considered 22,912 cases which were able to be examined. Of those, 14,886 were found suitable to send forward to the Parole Board, and 8,026 were unsuitable. As noble Lords will know, one member of each LRC interviews the prisoner. Noble Lords will also know that the Parole Board members do not have the opportunity of seeing the prisoners. Whether that is right/correct I still do not know. For 25 years I had been so used to seeing a
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defendant across the court that it was very difficult simply to read about him and never to see the face of a man in prison. However, I was very reliably told—and in the end I agreed—that it was not possible to interview every single prisoner in the 28 cases that we dealt with at every Parole Board which sat four to five years ago.
The Parole Board are given papers which we have to study. I say "have to" because there is a certain feeling that, "If you make a mistake, then I shall pull you down." There is a certain amount of competition to present one's case as well as possible in the light of the very hard work involved. Every time I sat on the Parole Board I used to spend the whole of the previous weekend with hardly any food. However, the papers that we are given are in very great depth. That is why in the end I came to the conclusion that it was not absolutely necessary for us to see the prisoners themselves.
The papers are from prison officials—the assistant governor, medical officers of all kinds, prison welfare officers—and local probation officers who are not in the prison but who visit the homes. It is very important indeed that the homes should be visited. If only the wives of prisoners realised how important they are to the welfare and perhaps the happiness of the prisoners then I think that they would stand by them to a greater extent than some now do.
The Earl of Longford: My Lords, may I interrupt the noble Baroness for one moment? Will the noble Baroness tell us whether the local review committee has information which then goes to the Parole Board? Does the central board—the Parole Board—have further information which is not at the disposal of the local review committee?
Baroness Macleod of Borve: My Lords, I do not think that I can say this categorically, never having been a member of the local review committee. My information is that the Parole Board have the papers that are brought before us by people within the prison because they obviously have more up-to-date knowledge than the people on the local review committee can possibly have. So far as I know, all the papers are gathered by the prison officials in which the prisoners are serving. I think that information is correct.
The papers that are given to the members of the Parole Board in my view are adequate. Whether the decisions made by four, or sometimes five, good men and women true are always correct is of course open to argument. But the fact that so few prisoners come before us again on recall I think speaks very well for itself. In 1985, 803 prisoners—224 serving less than two years, 579 serving two years and over—had their recall licence revoked, either because they had failed to meet the requirements of the Parole Board, which are written down, or that they had reoffended. That meant either that the licence was revoked, or in some cases that the Parole Board said they would be all right, gave them another chance and sent them back on their own parole.
The recent legislation has made it possible for more offenders to receive a suspended sentence or, if committed to prison, to serve their sentence with parole often granted earlier. However, release on

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parole means that they are still liable to recall. I think that this should be emphasised more than it is. Therefore, until parole is finished, they could be—they are not always—brought back to prison. It depends on the misdemeanour.
This is a very interesting debate. I have been interested in all parts of law and order in this country for many years. I feel tonight that I know very little about the subject so I am looking forward to hearing the other speakers.
6.1 p.m.
Lord Donaldson of Kingsbridge: My Lords, I should like to begin by saying how nice it is to have a new face opposite us. We are a gang of penal reformers who come pretty regularly, and to have our average age reduced to something well under 60 is very nice for all of us. I welcome the noble Lord, Lord Beaverbrook, and I hope that he will enjoy the good-tempered but extremely serious discussions that we have from time to time, at which, I may say, we get attendance from almost all of us except Her Majesty's judges, which is a pity. I want to put that on record.
I wish to give one piece of old man's advice to a newcomer. The noble Lord will find that his advisers are excellent. They are good, straight, honest, caring, agreeable, hardworking and admirable people. There is of course a "but", which is that they very much prefer saying no to yes; so the noble Lord should watch out for that because to get anything done through the Home Office, almost always for the best reason, is very nearly impossible.
Having said that, I must now say that I am grateful to my noble friend for raising this matter. He is, in a spiritual sense, so to speak, my godfather in penal reform. He pitched me into it fairly hard about 30 years ago, and I have been trying to swim ever since. It does not mean that I agree with him either always or tonight.
I thought that his speech was so critical of the Parole Board that he failed to convey the admiration that I know he feels for its remarkable achievements over the past 20 years. The noble Baroness, Lady Macleod, quoted some figures. I have figures that are not exactly the same, and which I will not quote. However, I hope that the noble Lord, in answering, will be able to tell us the failure rate over two or three fears of people who are recalled from parole. The noble Baroness gave some figures, though they are always changing. They consist, so far as I remember, of about 10 per cent. after two years, of which 5 per cent. only recommitted offences, nearly all of which were trivial offences. Perhaps the noble Lord can confirm that. I really think that the noble Earl cannot feel very doubtful about the value of the Parole Board, even though there may be certain things in it to which he objects.
Things have changed a good deal since my right honourable friend Roy Jenkins introduced parole, post if not propter the suggestions of the noble Earl, in the Criminal Justice Act 1967. Then it was thought that after a certain time prison, which was expected to do some good, ceased to work very well and there might come an ideal moment when men could be released safely. Nowadays nobody thinks that prison
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does any good at all. I have yet to meet anyone who has studied the subject who does, beyond the fact that it acts as a retributive punishment which society still demands, I think with reason. It acts as an example to colleagues. As long as the man is shut up, he cannot hurt anyone. It also gives some kind of satisfaction to the slightly vengeful attitude of the public, who are determined that crime should not go free. That is what prison does today.
We nowadays think that, as prison does more harm than good, if there is ever a moment when a man should be let out without further danger to the public, this is a moment to seize. If prison, however necessary it is, does do harm of this kind—after all, it separates a man from his family; it stops his income; it associates him entirely with people who are also in trouble and one way and another, I think, it can do a great deal of harm—the sooner one can get him out, the better. That is the main point.
The very, existence of parole gives a man hope in prison, and hope is an important issue. Quite apart from that, it gets a very large number of people out of a bad condition and into a better condition. This seems to me something that we can all he entirely satisfied with, proud of and glad to help. It did not altogether suit the judiciary when it was first brought in, hut I think that, after 18 years, the judiciary is fairly solidly behind it. I think that the general principles of parole should appeal to the noble Lord almost as much as they do to the judiciary, and I hope that in due time he will feel better about it.
There are two additional reasons beyond the fact that it gets people out of prison, which in itself is very important. The first is that they are given supervision—and I regret that I cannot now remember the second. It is very important for parole to be earned. If a man wants to earn parole, he must behave properly to prison officers. That means that the prison officers tend to behave properly to him, which may lead to better things. Later on, after he comes out, it could even lead him to think that it may be just as good to try to live a conforming life as an unconforming one.
As a result of parole, as we have seen on my figures—and the noble Lord who is to answer will confirm them—there is a reoffending rate of about 5 per cent. The reoffending rate of the average male prisoner is, I understand, 58 per cent. Therefore the Parole Board, which takes so much trouble, is achieving a most extraordinary and most satisfactory result because, whereas the average rate for reoffending is 58 per cent., average in the case of parole is something like 5 per cent. This is very convincing.
I wonder what the objections are. We can all agree that the main consideration must be the considered judgment that the subject under discussion is unlikely to offend again if released. There can never be certainty over this judgment, which is why the parole system is slow and cumbersome, involving local and central committees. I too have sat on a local committee. My view is that the local committee has before it almost exactly what the Parole Board has before it. No doubt the Minister will clear this matter up. There is also the computerised categorisation of certain factors that tends to suggest more or less

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likelihood of offending, which I think is very important.
This is where we come to the rub. The board has always considered it a duty also to take into account the seriousness of the offence. It has always been more reluctant, and certainly slower, to recommend parole in cases of physical violence, rape and suchlike, considering that, even if the prognosis over reoffending was good, it must be very careful not to inflame the potential backlash from sections of the public that are bent on vengeance and despise mercy in such cases. This is really the centre of the noble Earl's complaints. The noble Earl thinks—and he will correct me if I am wrong—that the Board should have a duty to recommend parole where the prognosis as to reoffending is good, irrespective of the heinousness of the crime.
The Earl of Longford: My Lords, perhaps I may interrupt. The heinousness of the crime would be part of a man's record and would obviously be a factor in trying to weigh up the chance of reoffending. However, the idea that they should actually say that this man deserves to be in prison because of what he has done, as distinct from dangerousness, was never part of the original conception as I understood it, or as it has been explained to me in these debates over many years.
Lord Donaldson of Kingsbridge: My Lords, I do not think that we are very far apart on that particular point. The noble Earl complains, and he has just more or less done so, with some reason that for an arbitrarily appointed board to make judicial judgments as to the length of punishment deserved by one kind of crime as opposed to another, is to usurp the function of the courts.
Ideally, the proper course would be for the judge who gave the original sentence to review every case at the time of eligibility for parole, and make his own decision. However, administratively this would be impossible. Instead, the Board, very carefully chosen and always containing one or more practising or retired judges, is given this duty. From the prisoner's point of view he is at least as likely to get parole from such a body as from the judge who sentenced him in the first place.
I really do not see what more can be done, if you agree that that must be taken into account. If you do not agree, and think that somebody who throws acid at a girl that he has been jilted by, and ruins her face for life, gets a 10 year sentence and can be released on parole after three and a third years because the prognosis is good, then I think that this is an unrealistic view. I do not think the public would tolerate the worst kind of crime being treated as well as that. I think the public keep a very careful eye on how lax and how gentle the sentences are that are passed on people who commit violence. I do not think it is any good pretending this is not the case. Whether the personal view of the noble Earl, or the Chairman of the Parole Board or the noble Baroness or myself is this, that or the other, in the end the laws of England follow the public and the public view. If they go further than that, they change. I really believe that we have got to accept this.
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The noble Lord, Lord Hunt, who was first Chairman of the Parole Board, confirmed that from their earliest days the Parole Board has always thought that it had a duty to take into account the seriousness of the offence. The noble Lord would have told your Lordships' himself this afternoon but he has just had an operation—successful, I am glad to say. I am sure all in your Lordships' House will join me in wishing him a lazy and delightful convalescence. His successor as Chairman of the Parole Board, the noble Lord, Lord Harris, has checked with him and will pass onto your Lordships the views of the noble Lord, Lord Hunt, on the Question.
In my own mind, I am clear that crimes of violence are in a different category from crimes against property. It would be a very long philosophical discussion to decide just how different. I would be prepared to enter into that discussion on another day.
I think that it is right that the Board should continue to take into account the seriousness of the crime in their selection of suitable candidates for parole. The point really is that parole is a bonus and not a right. There are suggestions that parole should be changed in various ways. My noble friend Lord Hutchinson is going to put forward one way which we have considered in our Committee. I shall not go into that now. I think it is something which should be fully supported by us all.
Perhaps I may conclude by saying that the good achieved by the Parole Board is obvious and continuous. The criticisms of the noble Earl are based on individual cases where there will always be differences of opinion. I reject his objection on principle to the board's taking into account the seriousness of the offence. I am certain somebody has to do this and any change might be for the worse. However, the fact is that he wants to see the Parole Board do more, not less. Therefore, we can still regard him as one of its convinced supporters.
6.15 p.m.
Lord Beaumont of Whitley: My Lords, we are all indebted to the noble Earl, Lord Longford, for raising this subject with us once again. If anyone has earned the right to speak to us on this subject, by his long sympathy and involvement with all concerned, both criminal and victims, the noble Earl has earned that right.
We are sorry that this evening we are not going to hear the noble Lord, Lord Windlesham, who is no doubt embargoed by the MacNaghten Rules—or is it Lord Addison? I knew insanity came into it somewhere. Tonight I am joining the select band which, as the noble Lord, Lord Donaldson, said, come up from time to time in the same order in the same debates. Although I have spoken on this subject before in your Lordships' House, I do not normally do so. I put my name down this evening partly because I had a brief from the Church of England's Board of Social Responsibility when it was expected that no bishop would be present. I am now rather abashed to be here when there is a bishop sitting on the Bishops' Benches. I am delighted that the right reverend Prelate is here, and I hasten to assure him and your Lordships' House that I do not speak in any way on behalf of the Church of England. However, I have been briefed and have

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been given a certain amount of background knowledge by the Board of Social Responsibility, for which I am grateful.
This evening, during the speeches we have heard of the various reasons which the Parole Board takes into consideration, and which are set out in the accounts of its work. The protection of the public always seems to head the list, whereas it should be an overriding presumption rather than one of a list, and certainly rather than the first of a list of aims of the board.
Among these reasons, the noble Earl, Lord Longford, talked about the need for an inducement to reform, as did other noble Lords. That is the keynote of the work of the Parole Board. The noble Lord, Lord Donaldson, spoke of the value of prisoners conforming and the effect that this has on the prison staff, which was a very good point. Also, a point which we should never lose track of is the value of hypocrisy, as Oscar Wilde pointed out in that wonderful short story of his where a man wears a virtuous mask for so long that his face grows to fit it. If you act as if certain things were good for long enough, your motives behind the mask will almost certainly change in the course of proceedings.
One of the many worrying things is that during the history of the Parole Board there has been pressure on the whole system, not just on the Parole Board itself but on the whole legal system, to make changes, mainly because the pressure of numbers inside our prisons is becoming intolerable. Obviously if the pressure becomes intolerable then we have to do something, but one of the things that should be done is quite clearly to spend more money on our prison system, and not to regard it as one of those subjects which must be swept under the carpet and upon which no government can defend the necessary expenditure. I am delighted that this Government at any rate have expressed their willingness to proceed a certain length along this path of absolutely necessary reform.
It seems to me that the Church also has a particular job to do in this field. We are told by the Gospel that it is our job to visit those in prison. Visiting those in prison, which is an injunction taken most seriously by the noble Earl, Lord Longford, is a difficult task and an unpopular one. The idea has been muddled to some extent by Amnesty. I would not wish to say a single word against that organisation, which does such wonderful work, but there is one unfortunate side effect, which is that we now have reached a stage when men and women of good will tend to think that their responsibilities under this heading are discharged by care and help only for those who do not deserve to be in prison.
The Christian ethic is entirely different. The Christian ethic says that those people should be cared for but also says that those who deserve to be in prison should be cared for too. It seems to me that we have to carry out a job of public education to make this effective.
I live in a parish which in living memory, though not in my time, has had a public row about a remand home being sited there. The good people of the parish raised a frightful stink about a remand home being located among them, saying that it would lower the
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value of their houses and otherwise bring down the neighbourhood, and make it into a den of vice and crime; so much so that the councillors who were deemed to be responsible were, against all odds. turned out at the next election and it was some time before they got back in again. I am delighted to say that one of them is now my churchwarden.
I am not saying that Christians in the parishes are not among these people who protest and who fight in this kind of way. They are, and it is a great pity. However, it is very important that the Church should be seen and Christians should be seen—whether as members of the Church or as distinctly working anonymously in lay life—to be on the side of compassion and reform. The lead must be given.
The noble Earl, Lord Longford, asked the Government three questions. One was what their attitude was towards the Parole Board taking on a quasi-judicial role. Here I take the side that is implied in the question which the noble Earl asked. However, the next two questions that he asked were whether the Parole Board took the unpopularity of its actions with the general public and the views of the Government into consideration. Here I have reservations about the point which I imagine the noble Earl was implying. I think, as has since been said by other speakers, that the Parole Board has a duty to take public opinion into account. As the noble Lord, Lord Donaldson, said, in the last resort the enforcement of law and order lies in the will of the public at large. However, the Church and all men of good will have a duty to carry out a job of education on all of us who are legislators, and incidentally all who are journalists on the tabloid papers. The latter often raise dreadful campaigns about individual people without knowing sufficient of the facts about the individual and quite often without caring as long as it makes the headlines. Such a job of education on the public will enable the Parole Board to take those steps which, for other reasons, it thinks it ought to take. We must move the whole of the penal and parole system that way.
Lastly, very briefly, and most importantly, it has not been mentioned very much—it has just been touched on but I think it ought to he underlined once, twice and again—that this debate is occurring within a penal system which makes no sense and which has been starved of money. No one really knows the purposes of many of the penalties, and whether or not crimes could be dealt with in other ways. It is not until some government—and let us hope again that they are stimulated by informed public opinion—take the whole of that problem by the scruff of the neck and ensure that the penal system is reformed that we shall be able to take steps to see that this particular part of the system also works properly.
6.26 p.m.
Lord Hutchinson of Lullington: My Lords, I should also like to express my gratitude to the noble Earl for initiating this debate because the question that he raises, as is so often the case with the questions he raises, goes straight to the very centre of the parole process. It gives rise to many issues, many of which we have debated here over the years and many of which have already been raised in this debate tonight. They are: Are the criteria right? Are they clear? If so, why

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cannot the LRCs and the Parole Board spell them out where there is a refusal, and spell out the criteria which have not been met? If they can do that, why cannot that information be conveyed to the prisoner? Are the criteria so clear that they can be applied consistently throughout the country by all the LRCs? Do these discretionary decisions lead to disparity and so cause prisoners to believe that the grant of parole is arbitrary or irrational? Is the quality of those who serve on the LRCs such that they exhibit a robust independence, or does the governor or the assistant governor of the prison wield too much influence on their recommendations? Those are the sort of questions to which I suggest the Parole Board should he constantly addressing itself.
I am much relieved to know that the noble Lord, Lord Windlesham, is not subject to the McNaghten Rules, because if he did not know the nature and quality of his decisions, or, if he did know them, he did not know that they were right, and our debate would have to be very much longer tonight. However, with some apprehension I say that sometimes on reading the somewhat anodyne Parole Board reports one senses a slight air of complacency—a profile so low as to be almost invisible, and the open and questing approach in the days of my noble friend Lord Hunt and later, in the days of the noble Lord, Lord Harris, has largely gone.
Although I may make some critical observations in what I have to say, as the noble Baroness, Lady Macleod, has already said, I should like to pay a sincere tribute to those who give so much of their dedicated time to working on the board, and particularly to working on the LRCs. They have coped with the Section 33 cases, as they are called—the flood of cases which have come in as a result of lowering the threshold to six months—in a quite remarkable way. In round figures there were 11,000 cases considered in this area; 8,500 recommended, and almost all those paroled without any further consideration by the board. Under 3 per cent. recalled for reoffending. That is a remarkable achievement.
I agree with the noble Earl in his unease about the proclaimed predominant concern of the board being the protection of the public, as it is put in the latest report in 1985. If this means the public interest, then of course it is self-evident: early release, supervision, less likelihood of reoffending, reduction of overcrowding, must be in the public interest. But if, however, it means that the board has embraced the philosophy of this particular Government, then the fear expressed by many at the inception of the parole idea that a parole board might so easily become a mere arm of the Home Office will in fact have been realised.
The parole system at its inception was heralded quite differently by Roy Jenkins as,
"A significant contribution to the reform of the criminal law. A milestone in social reform. A new measure of treatment of offenders."
It was regarded as a continuation of the custodial situation by other means.
The Leon Brittan alterations—the removal of the board's discretion in the excluded offences—and the destruction of the joint committee of the probation board and the Home Office, were accepted by the
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board without demur, and that acceptance that so shocked my noble friends Lord Hunt and Lord Harris and many others of us was, I fear now, an example of the board's "predominant concern". At a stroke the board's criteria in regard to this first band of serious offences became overnight broadly irrelevant. They may only be applied,
"in wholly exceptional circumstances and with the most compelling reasons"—
that is, compelling upon one man, the Secretary of State. To the prisoner they are quite meaningless.
In the statement of the Parole Board of 27th February 1984, in which is set out the present criteria, the board says, rather pathetically,
"In these cases there is a strong presumption against parole".
If one looks closely at the report, out of 990 such cases it appears that the board managed to convince the Home Secretary in the huge number of 13.
We have come a long way from 1968 when the board, in its report, said:
"The type of crime ought not to override all consideration of the offender as an individual."
Later:
"No category, of crime excludes a prisoner altogether from consideration for parole."
That was reversed by those reforms, so called.
Therefore we are left with four other categories of offender as set out in this 1984 statement on criteria. The statement sets out the six matters to he addressed when considering parole, and these six are all unexceptionable. Apart from the Leon Brittan exceptions I see nothing in those categories about the seriousness of the offence and the amount of time that should be served. With all respect to the noble Earl's reference to the quote from Professor Walker, the person's record, behaviour in prison, the medical background, the home circumstances and the supervision prospects clearly are matters which should be considered. It is in the guidelines that follow those six requirements that the application of the criteria seems to lie. It is here that I should have thought that clarification is certainly required in certain areas.
The first category is "grave offences outside the Brittan exceptions". Seriousness of the offence is referred to only in the context of the reoffending. That is the danger that any new offence would be of a similar kind to the original one, and therefore a grave offence. The board refers, sensibly in my view, to the carefully calculated risk of balancing this danger against the fact that parole under supervision may diminish that very risk itself. Safety, it is pointed out, where there is doubt, may be found by giving only a short period of parole.
This safety net raises a point which perhaps should be explored in greater depth. If you give parole of a week or two at the end of a medium or long sentence you run little risk of any reoffending in the period, and you can proudly claim a high success rate. Indeed, if any of your Lordships looks at the table on page 45 of the last report you will see that it discloses that over 60 per cent. of licences are for periods less than six months, and 95 per cent., if I am right, are for under 12 months. Perhaps the board would enlighten us a little further in their next report under this head.

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The next category is the "less grave offences"—often what are described as the one-off crimes. Here mention is made of the notorious case, or those arousing serious local concern, as a reason for refusal. This is a matter touched on by my noble friend Lord Donaldson. This worries me, and I would suggest requires much deeper thought bearing in mind that the prisoner will inevitably rejoin the community on a finite date in any event.
Suppose man A commits an indecent assault on a child and gets four years, and man B defrauds a bank and gets six years. Is the fraudsman to receive parole before the sex offender because the latter has aroused the emotions of the community, although the judge in sentencing these two men made it perfectly clear that he thought the offence of fraud was the worst of the two? A subjective view of the public's emotional engagement surely cannot be a valid criterion for a decision affecting the liberty of the individual. The sense of public condemnation surely should be reflected in the original sentence and not at the time of supervised release.
The third category is "the inadequates"; the repeated petty offenders. Here the basic consideration appears to be the prisoner's behaviour in prison. His failure to co-operate should, it is said, involve a forfeiture of parole, otherwise there is a presumption in favour of early release. Again I sense an inconsistency here. Clearly failure should be one consideration in discussing whether parole should be advised, but incarceration in the squalor and despair of some local prisons may engender ultimate non-co-operation, whereas in good conditions and with imaginative management in another prison co-operation may be quite easily given. This, I would suggest, requires further consideration.
Finally there are the Section 33 cases, to which I have already referred. Here it is said that there is a clear presumption in favour of parole—a presumption that I personally would like to see extended to all categories. But here, maybe because of the presumption, the system appears to have worked very well; yet the judiciary, as my noble friend Lord Donaldson has pointed out, are finding it hard to adjust to this vital lowering of the threshold. The judges have discovered that it gives rise to anomalies. But parole inevitably gives rise to anomalies. Mr. Justice Waller, a great supporter of parole, pointed this out many years ago, that at the 12-month threshold a prisoner serving three years and another serving 18 months might well be released on the same date. Now it may happen with sentences of 12, 15 or 18 months. Further anomalies arise because time on remand in custody counts for remission but does not count for parole. Other difficulties arise in activated suspended sentences.
I hope that the Home Secretary will stand very firm on this. Judges should get around, get into the prisons, see the conditions there, study the statistics of successful parole and, indeed, perhaps sometimes participate in our debates here and pass shorter sentences. I read only last week that no judge, incredibly, has visited Holloway Prison in the last ten years.
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If the judges continue to complain, the Secretary of State could consider the introduction of what one calls the quasi automatic supervised release scheme which was canvassed by the Home Office in 1981 and supported by the All-Party Appeal Affairs Group. This means that all short term prisoners, unless exempted by the trial judge, would serve one-third in custody, one-third under supervision on parole and have one-third, as at present, remitted. Time on remand on custody would count and each part of a suspended sentence would be treated as a separate sentence. This would iron out most of the anomalies about which the judges complain.
I end by reverting to two short matters and asking the noble Lord who will reply for the Government a few questions. The first concerns the quality of the LRCs, the local review committees. How are these members recruited? The noble Baroness, Lady Macleod, has spoken about members of the board; but how are the LRCs recruited? What qualifications do the members have? Is there compulsory training? How many come from ethnic minorities? Does the chairman and/or the governor recommend? Is there any feed-back or follow-up to assist members of these committees in assessing whether the criteria they apply are correct?
The other matter I wish to refer to concerns bureaucratic delay. I understand that extra personnel have been added to the parole unit in the Home Office. I ask the Minister: have they been able to sort out and reduce delays? How many parolees are still without information on their eligibility date? Is the delay between local review and consideration by the Parole Board still in excess of 10 months, as it was some time ago? The Minister will know that I have been concerned in a case where the delays and confusions were so horrendous that the Ombudsman has investigated and reported on the whole matter.
Although, as I have said, I admire profoundly the efforts of all those who work so hard to make parole a success, the system surely and the criteria which are at the centre of the system, must be constantly examined, reassessed and improved and the Parole Board should be shown to be doing so. Until the public, and indeed all Members of this House, are entirely convinced—I am sad not to see the noble Lord, Lord Boyd-Carpenter, in his place—that parole is in a real sense an exercise in crime prevention, as well as having the attributes referred to by the noble Earl, it cannot be deemed a success. Above all, it still has not yet won the full confidence of prisoners themselves and that, too, must always be a vital measure of its real achievement.
6.45 p.m.
Lord Harris of Greenwich: My Lords, I begin by thanking the noble Earl, Lord Longford, for having raised this Motion. He initiated a similar debate in 1983 and it is valuable that we have the opportunity from time to time to discuss the work of the Parole Board and to thank the many members from the different disciplines for the admirable work they carry out, as do the members of the local review committees. This debate gives us an opportunity to discuss not only parole but some of its wider implications on criminal justice policy.

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The noble Earl began by referring, quite rightly, to the work which he and his colleagues carried out in the period 1963–64, when he was chairman of the Labour Party committee which made a recommendation which led directly to the creation of the present parole system. They made their recommendation just before the election. and Frank Soskice, subsequently Home Secretary, accepted that proposal. It eventually formed part of the Criminal Justice Bill 1967, introduced by Mr. Jenkins. In 1968 the board began its work. It is right to say that, in the light of the fact that there have been some fairly partisan exchanges in the House in the last few weeks about the system, it owes a great deal of its strength to the fact that it has had a substantial element of bi-partisan support. In 1967, the scheme as introduced by Mr. Jenkins in the House of Commons, took the form of providing for recommendations by Home Office officials being made nominally to Ministers and Ministers acting upon those recommendations.
The noble and learned Lord, Lord Hailsham, then leading for the Conservative Party in the House of Commons, made a powerful and persuasive speech in which he said he thought it would be preferable to have an independent Parole Board. So persuasive was his speech that Mr. Jenkins accepted that view and government amendments were introduced at Committee stage in the House of Commons. Therefore the scheme as we now have it is, in the fullest sense of the term, a bi-partisan scheme.
My noble friend Lord Hunt, who was the first chairman of the board, is unhappily unable to be with us today. As my noble friend Lord Donaldson said, he is unwell and we all very much hope he will he back with us very soon. But in those early days he was supported on the board both by a number of notable figures from outside the judiciary and by individual judges. The present Lord Chief Justice was a member of the Parole Board in its early days, as was the noble and learned Lord, Lord Roskill. It is right to draw attention to that background in the debate today when we are looking, after a substantial period of time, at what has gone right, and in a number of respects, what, clearly, has gone wrong.
I agree with much of the speech of the noble Earl. However, he will not be astonished to learn that there were one or two points with which I did not agree. I shall come to them in a moment. I start with the quotation which he gave from the views of Professor Nigel Walker. My noble friend Lord Hutchinson of Lullington dealt with this point as well. The noble Earl quoted Mr. Walker in saying that the likelihood of an offender's reconviction is not always the board's foremost consideration. As a former chairman of the board, I say say that it is indeed a most important consideration, but it is not always the foremost consideration.
Let me give some illustrations as to why I believe that is right. I know of no great body of opinion on the board when I was chairman who differed from this view. They came from all parts of the political spectrum, but I can never remember deep concern being expressed on this aspect of our work.
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Let us take the case of the IRA man or woman who comes to this country and tries to blow up a substantial number of people but does not quite succeed and no one is killed. He or she, therefore, in normal circumstances does not get a life sentence, but they get a substantial prison sentence. Is it to be argued that the only consideration applied at that, perhaps, first review on a 12-year sentence—that is, after four years—should be whether that person is likely or is not likely to commit another offence? I think that people have to ask themselves the question whether an attitude of that sort would commend itself to public opinion. We cannot totally pretend that public opinion does not exist. Of course, we must not take a cowardly view, being frightened of being attacked by the Daily Express, the Daily Mail or even the Sun; but it is right, I think, for us to have a decent regard for the anxieties of our fellow citizens. I believe that that is the job of the Parole Board, and I think it right in a case of that sort that it has to take that into consideration.
The Earl of Longford: My Lords, yes, let us take the IRA and, of course, I am Irish. I have denounced the IRA more often than most. But if you take the case of the IRA person who gets only 12 years, it cannot have been like the case of the gentleman who got 45 years the other day. At any rate, he gets 12 years. Is that much worse than the man who attempts murder and gets 12 years? There is more public feeling about it; but does that mean therefore that you should keep him in longer?
Lord Harris of Greenwich: My Lords, I believe, obviously, that every case should be considered on its merits which is why I was very critical of the approach made by Mr. Brittan—and I shall be coming on to that in a moment. But just to deal with this point, I consider, at a time when this country has been exposed to a high level of terrorist violence, the idea that the only consideration which the board should take into account is the likelihood of reoffending to be quite unacceptable. I must make that absolutely clear.
I was going to develop other similar examples, but because of the time I shall move on. Mr. Walker, having made what I believe to be not a very powerful point, then went on to say that the Parole Board took the view that the scheme required the general support of public opinion and that this had to be an element in their consideration. He was obviously rather critical of that view because he said that it meant that what the board had in mind was not genuine justice but voters' justice.
As I have already made clear, I do not accept this view. I did not do so as chairman and I certainly do not do so now. It is simply, I believe, silly to pretend that when the public is alarmed the board should totally ignore their views. But, as I have indicated already, the board is looking the whole time at a whole range of exceedingly difficult cases. It is dealing with a whole mass of sex offenders—to take one particular illustration mentioned by my noble friend Lord Hutchinson of Lullington—perhaps four or five a day; for that is the level of the work load. I am going back now three

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years in my recollection but I cannot recall people saying, "My goodness, what will happen if we are attacked by the press on this one?"
You have to take a look at the man's or woman's previous convictions, at what is believed to be the likelihood of their committing a further offence. You have to look at the prison reports and, particularly in the case of a sex offender, the home circumstances. What sort of background is he going to be injected into on his return to the community? I know it sounds extremely complacent always to say this but, I think that, by and large, the Parole Board, dealing with hideously difficult cases and always facing the prospect of being attacked either in this House or elsewhere when they do get it wrong—and, of course, periodically a misjudgment is made—do their job remarkably well.
The noble Earl said that the Parole Board is a quango of quangoes: it consists of a large number of men and women but they do not, it is said, have any particular qualifications for their job. Maybe they do not: but they represent to a significant degree a cross-section of the community. I think that, broadly speaking, one of the most helpful developments in the last few years is the fact that, despite the present argument with the judiciary—and argument there is—about sentences at the lower end and the implication, as far as that is concerned for the parole system. I believe that it has created a substantial degree of confidence with the judiciary, which is extremely important. If there had not been that degree of confidence by the judiciary, there could have been even more unattractive consequences as far as general sentencing policy is concerned. If the noble Earl believes (as he appears to believe and, as I suspect, others believe) that there would be something to be said for prisoners having the opportunity of meeting the board in formal session or being represented by counsel at such sessions. I am bound to tell him that I would view that with the deepest scepticism.
I have seen this done. I saw it in Wisconsin, a good, liberal, Democrat state with civilised views on how offenders should be treated. They took the view that it would he a good idea to have inmates given the opportunity of meeting what was in a reality a panel of the Parole Board. I was pretty shocked by it. Certainly, they had the opportunity of going into the room and sitting down. If they were incoherent it was a most embarrassing session, and we have to accept the fact that many of the people concerned often would find such an experience deeply intimidating and that those who were more verbally fluent would obviously feel more at ease. But at the end of it all they were brought back and told that they had either got a recommendation or that they had not; and they were given it in formula terms. They were given a reason, but on the basis of Reason A, B, C, D, E or F. It was read out to them. One of them delivered himself of some very rigorous opinions about the quality of the board and the quality of the judgment, and I am bound to say that I had some sympathy with him. Although the intentions of that panel had been admirable, fair-minded men and women as they were, I did not
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believe that they had anything approaching the degreee of information that a panel of the Parole Board would have had in dealing with a comparable case in this country.
That, I repeat, is not a question once again of complacency. It is simply looking at another system, comparing it with our own and coming to the conclusion that perhaps there is something to be said for our own. Lastly, before I move on to territory where he and I are in agreement, there is one other point which the noble Earl raised and that is the belief, the suspicion, that he appears to have that there is some form of political influence exercised on the board.
With my noble friend Lord Hutchinson of Lullington—and, if I may, I will adopt this choice of language because I thought it was admirable; he applied it to local review committees and I should like to apply it to the Parole Board—I am a strong believer in robust independence. I believe that if the Parole Board ever were to become a creature of the Executive it would be a dismal business indeed. But I must tell the House that I had the opportunity of working for (or, shall I say, working with) two Home Secretaries of different political persuasions, Mr. Merlyn Rees and the noble Viscount, Lord Whitelaw. On no occasion was I subject to any political advice, direction, guidance or anything of that character. Indeed, I know both gentlemen well enough to know that they would have known how I would react, and I know them well enough to know that they would never put me in that position in the first instance. I can reassure the House that I should certainly have taken the most substantial objection to any attempt at pressurising in terms of dealing with an individual case. I can inform the House, that that certainly did not happen and, I am quite sure, does not happen now.
The Earl of Longford: My Lords, may I interrupt? In my submission, it works in a much more subtle way than that.
Lord Harris of Greenwich: My Lords, it may be that I was being given guidance of such subtlety that I was never able to understand it, in which case we probably got very upset with one another!
I should like to raise one or two specific questions with the noble Lord who is to reply to this debate. First, may I say on behalf of my noble friend Lord Hunt, who is absent tonight, that he was concerned, as was my noble friend Lord Hutchinson and as I am myself, about the references in the 1985 report of the Parole Board to delays which have taken place in the system. I am deeply perturbed by suggestions that, as my noble friend Lord Hutchinson said, a number of cases were not considered until after the parole eligibilty date. That is, quite frankly, disgraceful. It means that men and women did not have their cases considered at a time when Parliament had decided that they should be so considered.
I am concerned about that, but of course I understand one of the reasons for it. In the 1985 report

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of the board we are told of the substantial increase in the number of parole reviews of inmates serving sentences of two years and over. They say that in 1983 there were about 10,000; in 1984 some 12,500; and in 1985, 13,750. That creates a massive workload. All your Lordships on all sides of the House must recognise this too: if there is going to be a massive increase in the workload there have to be more people to do the work.
That is one of the problems, because many of us remember the speech of the noble Earl, Lord Gowrie. I use that as an example. He has not been with us for some little time but I am quite sure that his views will not have changed and therefore I am sure I am in no way doing him an unjustice. He took the utmost pride in telling us of the reductions there had been in the size of public service manpower. I said, both when I was a Minister in a Labour Government and afterwards, that I believed the public service had become swollen and unmanageable, particularly in a country like our own which has had such a remarkable lack of success in managing its economy. That is undoubtedly one reason: we have not managed our economy particularly well and this huge burden has been imposed upon it. However, if we are going to increase the burden of work as we have, it is ludicrous to do so without making resources available for officials to be in place to carry out that work.
It would be folly for the Government to try to pretend that they were taken wholly by surprise. We all know perfectly well how the prison population of this country has been escalating in recent years, and therefore they knew perfectly well that there was going to be an expansion of the number of parole cases coming to the board. They should have made the resources available but they did not, and therefore I am afraid they must accept a very high measure of responsibilty for what has happened.
Secondly, I want to come back to an issue I raised in 1983. I hoped then that I was going to get a satisfactory explanation from the noble Lord, Lord Elton, who was winding up. I know that I am undoubtedly going to get a more satisfactory one from the noble Lord, Lord Beaverbrook, three years later, and so I will try the same questions again and hope, as I say, for a more satisfactory explanation. What have the Government done following the report by the committee of the Parole Board of which Mrs. Susan Baring was chairman? Following the report of that committee, which was duly considered by the Parole Board, I wrote to the noble Viscount, Lord Whitelaw, expressing the board's views on the various matters that had been raised. It was dealt with as long ago as 1980 in the board's report for that year.
Mrs. Baring's committee raised a number of issues, and, in particular, one I should like to identify. It was touched on earlier, I think by the noble Earl. The question was whether or not more cases should be considered by the Parole Board itself. The position at the moment of course is that if a local review committee is unanimously against giving parole and the offender has a high prediction score—namely, 50 per cent. or more—that case does not go to the Parole
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Board. I have pointed out on a number of occasions that this is extremely unjust, and there are a number of reasons why I take that view. First, how is the prediction score itself calculated? In the first place, it is calculated on the basis of research that was carried out in 1965, over 20 years ago. When that prediction score is calculated a number of factors are taken into account: home stability, employment prospects and so on.
I remain seriously concerned about cutting out cases for consideration by the board solely on the basis of such a calculation. Not all my colleagues took that view. We were a large board and the board is now even larger. A number of people had different views on the matter but I consider that turning people down for consideration by the Parole Board solely on the basis of that prediction score is quite wrong. I hope very much that we shall hear tonight that the Government are prepared to look into that particular question.
Then there is the issue of the shorter-sentence prisoner. The present dispute, referred to in the Parole Board's report for 1985, indicates that a considerable amount of judicial concern had been expressed about it, and in particular about the situation of 10–18 months' offenders all being released after six months despite the different lengths of sentence imposed.
I think we all understand the character of the problem but of course Parliament knew perfectly well what it was doing. We discussed all these matters on the Floor of the House when the Bill went through, and the higher judiciary certainly knew about it, because they were consulted. When so many complaints are constantly made about what has been done in this respect, it is very rarely pointed out that senior members of the judiciary were consulted; so obviously it does not lie in their mouths to complain now when the system about which they were consulted was implemented.
Secondly, it is only fair to say that I think a case can be made out against it. It is a very rough and ready approach compared with the more detailed work done by the Parole Board in regard to longer sentences. The reason is that the information available to the local review committee for shorter-sentence prisoners is often of an extremely brief and sketchy character. That must be true, and there are problems about that. We all know why it has been done. The reason does not simply concern the parole system: it is a reaction to the crisis of prison numbers. If that is in fact our principal concern then almost certainly it would have-been better to adopt a different approach altogether and to have some degree of automaticity of release so far as shorter-sentence prisoners were concerned, with of course additional resources which would have to be made available to the probation service in order that it could carry out the appropriate degree of supervision.
We shall obviously come back to this argument when we deal with the criminal justice Bill in the next Session of Parliament; but I repeat that, as long as the present debate on shorter-sentence prisoners is to continue, those of us who want to reduce the size of the prison population will undoubtedly want to support the Home Secretary. But certainly when we get to the

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Committee stage of the Bill next Session, I think that a number of us will want to come back to this question of automaticity, which, in my view, it would have been far better if the noble Viscount, Lord Whitelaw, had accepted. I hope very much, despite some of the political problems involved in the fact that we are approaching a general election, that that will be done.
Lastly, I come to the point on which the noble Earl and I are agreed—that is, the decision made not so long ago by the last Home Secretary on the parole and life sentence systems. It was without doubt the most substantial change made since it was introduced in 1967. Mr. Brittan announced this policy, not in Parliament but, appropriately at a Conservative Party Conference. No doubt the applause that he received gave him pleasure; but I wonder now whether he is not rather embarrassed by this whole episode.
What Mr. Brittan then did was, first, to announce that there were to be two clearly defined categories of life sentence prisoners, one of which would serve at least 20 years and one of which would not. That is now the policy. There are now also two parole systems. In one, cases are considered on their merits; and in the other, they are not. Let me just go over the examples I gave in 1983 again, because they indicate the folly of allowing party conferences to make, in reality the judgments on these matters.
How can it possibly be right to have a system whereby—I am now dealing with the policy of life sentence prisoners—the driver of a getaway car after a robbery, during which someone is shot, should serve at least 20 years, whereas the robber who bursts into the home of an elderly couple and beats them both to death is not covered by that policy? What conceivable principle underlies that approach? I asked the noble Lord, Lord Elton, on the last occasion; and he was quite unable to defend the policy, because although it made sense at a conference it was quite incapable of being defended on rational grounds in Parliament. I hope very much that the noble Lord, Lord Beaverbrook, will have a rather better brief today, but I have a slight doubt whether that will be so.
Secondly, let me deal with the determinate sentence prisoner, the prisoner who gets over five years' imprisonment and is caught by the new parole concept. How can it be right that a person who is sentenced to five years three months should, almost automatically, serve a longer sentence in prison than the man who gets seven years, solely because the five year man was sentenced for robbery, whereas the seven year man has merely systematically stolen the life savings of a large group of old age pensioners? In the first case, the robber will have his case rejected by the Secretary of State whatever may be the view of the Parole Board, save in the most exceptional circumstances, whereas the seven year man will get parole if the board so recommends; and of course without the Home Secretary taking the slightest interest in the case. What I find so surprising is that this policy was introduced entirely on the basis of the Home Secretary's discretionary powers.
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Faced with the criticism from a number of us that he had chosen to ignore Parliament, he said that if we felt so strongly about it the 1967 Criminal Justice Act should have been drafted so as to avoid any Home Secretary ever having had the opportunity of doing what he, Mr. Brittan, had done. But of course one has only to look at what happened subsequent to 1967 to see the fallacious character of that argument, because it is quite inconceivable that such a policy would have been introduced by Mr. Callaghan when he was Home Secretary, by Mr. Maudling when he was Home Secretary, by the noble Lord, Lord Carr, when he was Home Secretary, by the noble Viscount, Lord Whitelaw, or by Mr. Douglas Hurd. Only one Home Secretary would have contemplated taking action of this character and that was Mr. Brittan. That is the painful legacy that he has now left his successors.
How are we to escape the clutches of this disastrous policy? It may be that this country's reputation will still be saved once again by the European Court of Human Rights. I very much hope that it will, because I believe that this policy is damaging to the interests of justice, it is damaging to the whole credibility of the parole system and it is a major destabilising influence in many of the high security prisons in this country. I have never met so much anxiety as has been expressed to me by experienced prison governors, about what are the implications for them of the introduction of this policy on which they were never consulted. At no stage were they asked by Mr. Brittan for their views on this matter.
One has to recognise that it is probably idle to expect radical change before the election because too many people have been trapped by their own rhetoric. But I hope that there will be radical change after the election. Otherwise, I fear that the damage to the parole system could be very deep indeed.
7.16 p.m.
Lord Mishcon: My Lords, the noble Lord, Lord Harris of Greenwich, has, I am sure for good reason, sentenced the House to a long term of imprisonment, but I hope that in the remarks that I shall make to your Lordships I shall grant you parole. To turn to the noble Earl, Lord Longford, I think the House would agree with me if I were to say that he so often beckons us, with that very sincere and much-loved voice, down several alleyways of philosophic thought and mercy. Sometimes it is wise to follow him right the way down the path. Sometimes it is wise to follow him only part of the way down that path. But it is never wise to ignore him completely and I am sure that we are all very much indebted to him today, not only for his speech but for introducing to the House this Question, which has been so very well debated.
I too should like to say how glad I am that the noble Lord, Lord Windlesham, is with us. It must irk him very much to have to remain silent under whatever rules it may be, but I know that he will have listened to this debate with the greatest of care and respect.
It is very suitable that the Question comes before the House at this particular time, and I too welcome the fact that the noble Lord, Lord Beaverbrook, will be

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answering for the Government on this occasion. He has as a colleague a young Minister of State, and possibly the House can pray that two young Ministers with their enthusiasm and a fresh young look—I am not going to say a juvenile look, by any manner of means—at the very severe problems that face us in regard to the general matters of prisons, reform, the parole system and so on, will have the courage to do more than their predecessors could do in effecting necessary reforms.
As I said, it is at a very apposite time that we are debating this matter. I say that for two reasons. First, we are told that there is to he a criminal justice Bill very shortly and—I offer the funereal words so often said at about this time in your Lordships' House—it is not proper to anticipate the gracious Speech. But there is to be such a Bill, and I hope that the Home Office will take advantage of the opportunity of this debate to do something in the Bill about the whole of the parole system and about so much that worries us in our prisons at the present time.
There is another reason, and that too joins up with the first one. I refer to the Weeks case before the European Court of Human Rights. I wonder whether I may pause for a moment only to tell your Lordships, I hope very shortly, something about that case because it shows—and I am not going into the merits of Article 5 of the convention which is before the European Court—at least one example that must put a query in our minds as to the whole way in which we have gone in regard to penal affairs.
Weeks was 17 years old in December 1966 when he pleaded guilty, among other offences, to armed robbery. The robbery concerned 35 pence and had been committed with a starting pistol which was loaded with blank cartridges. There was medical evidence before the court which said in its expert terms that this young man was not of such mental instability as would justify sending him to a mental institution. The learned judge thought that the most merciful thing to do for this young man of 17 years of age—your Lordships may have sons or grandsons of that age; and one knows the very formative time that that age happens to be—was to give him an indeterminate sentence. The judge's view was upheld by the Court of Appeal, so the whole machinery of licence and parole and the Home Secretary's discretion could be exercised in his case. Weeks was granted parole for the very first time 10 years later.
It will not surprise your Lordships I suppose that, having had 10 years of treatment of that kind, the conditions of the parole were broken and this was the history thereafter. So far as I know, he is still in prison. In an example of that kind the United Kingdom is respondent in a case before the European Court dealing with the question of whether or not there should be reasonable periodic reviews, and so on; matters into which I shall not go. Whatever that young man did at 17 years of age are your Lordships satisfied that a debate of this kind should not take place where questions are asked of the Home Secretary: is all right with the parole system; is all right with our prison policy? I repeat that it was a case involving 35 pence and a starting pistol with blank cartridges.
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I say at once that I have the greatest sympathy for the Parole Board. I say that because it is not just the tabloid press that attacks some of the decisions of the Parole Board. We have had those attacks in this House. The Parole Board has been told, or it has been implied by questions at Question Time, that it has been utterly reckless because of what has happened after a few instances—and only a few instances can ever be quoted—where things have gone wrong and offences have been recommitted; and dangerous offences of that kind. I shall not mention any names because at least one noble Lord is not present in his seat. I think it would be wrong of me to mention any names in that context. But it is not just the tabloid press. It is also responsible parliamentarians who sometimes weaken the respect that ought to be given to the Parole Board. Then of course one gets the attacks the other way round; that the Parole Board is obviously not exercising mercy where it ought to he exercising mercy and it is not acting in the way that it should.
In what I regard as the discipline that is put upon me to be comparatively brief. I do not want to pose arguments at this stage. My noble friend Lord Longford has dealt with many points that I know the Minister would want to deal with, and so have other speakers who have spoken with such effect in this debate. I want to put matters before the Home Secretary and before the noble Lord who represents him in this debate so that they may be considered properly when, as I said, the Criminal Justice Bill comes forward or when fresh thoughts on the parole system take place.
There is no doubt that there is an impression abroad—I shall put it no higher—that the parole system works in too arbitrary a fashion. The impression undoubtedly is that the categories with which it has to deal are too arbitrary. A judge imposes a sentence of six years, possibly realising or not realising what it means when it is six years, or over six years or under six years. But once he does that (and it can be a matter of sheer chance as to whether somebody comes before a certain court and the sentence is six, seven or five years) a whole atmosphere, a whole series of conditions, a whole set of circumstances change from the point of view of the powers and the abilities of the parole system.
There is also doubt about the life sentence prisoners, a feeling that they will not come any more before a judicial body or before the judges, but will be in the hands of the system of the Parole Board. Reference has already been made to the serious administrative delays that were referred to in the last report. I shall not repeat what has been said. The matter is before the Minister now by virtue of what has been said in this debate. The number of life sentence prisoners is possibly going to be increased by the Criminal Justice Bill because the Home Office, as I understand it, has expressed a view that those who are psychopathic prisoners may well come within the category suitably of life sentence prisoners. So this is another section that may for all we know come within the purview of the Criminal Justice Bill. If that is so, and if that is the normal way in which psychopathic offenders are to be dealt with, the whole question of how life sentence

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prisoners come up before the Parole Board is obviously of great concern.
Baroness Macleod of Borve: My Lords, perhaps I may intervene. All life sentence prisoners go before the Home Secretary. The Parole Board will have discussed the cases first, but they always go before the Home Secretary individually.
Lord Mishcon: My Lords, I appreciate that point and I am most grateful to the noble Baroness for reminding us of it. But as she rightly says, they go before the Parole Board and then have to go before the Home Secretary. I am therefore saying that without any judicial step, without any step before judges, those people (who are about to be increased in number if the psychopathic offenders join with them) will be subject to the Parole Board procedure together with the review and the final decison of the Home Secretary. Therefore, as I said, this whole system must be looked at very carefully.
I, too, had intended to speak about the suggestion made in regard to short-term prisoners—one-third sentence in custody, one-third under supervision and one-third released under the normal arrangements by way of remission. That has already been dealt with during the debate. I hope very much that the Home Secretary will take this suggestion on board and see whether something can be done about it.
I also want to express my regret, in my closing words, at the Home Secretary's announcement on 11th October 1983. If ever there was a retrograde step taken it was on this question of removing discretion from the Parole Board and laying down a mandatory system that in regard to certain offences, whatever they may be, prisoners would not be considered unless 20 years had passed. That was more than a retrograde step. In my judgment it is something that a Conservative Home Office will have to live with, with shame, unless it has the courage now to alter what was announced on that date.
It has been an interesting and informative debate. I believe that the House ought not necessarily to expect promises tonight, because 1 imagine that the noble Lord the Minister is not—let us face it—in a position to make promises in regard to suggestions, though I am sure he will do his very capable best in dealing with the questions that have been put to him. This debate has been important enough for the Secretary of State, together with his junior Ministers, to consider carefully the matters raised in the Question that was so well, and in such a timely way, put forward by my noble friend Lord Longford.
7.32 p.m.
Lord Beaverbrook: My Lords, I am delighted to be answering on behalf of the Government this evening the Question put down by the noble Earl. I am sure we are all grateful to the noble Earl, Lord Longford, for
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initiating this debate on a public issue of great importance. His long interest in the operation of the parole scheme is a matter of record. Others in the House—in particular the noble Lords, Lord Hunt and Lord Harris of Greenwich—have direct experience of its operation and the House will have listened with particular interest to the contribution of the noble Lord, Lord Harris, to this debate. The Question asked by the noble Earl directs us to the principles on which decisions whether or not to grant parole are based. He suggests that they need clarification. I believe they are clear, but this debate provides a welcome and helpful opportunity to restate them.
As the noble Earl, Lord Longford, has acknowledged, strictly speaking parole is granted only to prisoners serving determinate sentences. Release on life licence is subject to different procedures and turns to some extent on different considerations. When a prisoner is granted parole he is still serving the sentence of the court. He is not free. He has exchanged the constraints of prison walls and the supervision of prison officers for the constraints of his parole licence conditions and the supervision of probation officers. If he breaches the licence conditions he can soon find himself back inside the prison walls. But, as the noble Earl has rightly reminded us, the parole scheme exists because Parliament has acknowledged that a prisoner may derive more benefit from serving part of his prison sentence in the community under the direct supervision of the probation service than from serving the whole sentence in custody; and, if the prisoner benefits from parole, so in the long term may the community. Few in this House would, I think. disagree with that commonsense assumption, which holds as good today—perhaps even better, given the deplorable overcrowding in our prison system—as it did in 1967, when the scheme was introduced.
But there is—and always has been—another side to the equation. Against the possible benefit to be derived from the grant of parole in an individual case has to be set the risk to the public of releasing a sentenced offender into the community earlier than would otherwise be the case. The protection of the public is one of the objects of a prison sentence. It is true that a prisoner given a determinate sentence must be released eventually. Whether or not parole is granted, the public is only protected for a fixed period. But where the risk to the public would be high whenever the prisoner was released the public have the right to be protected against the offender for as long as possible. So long as such a prisoner is serving his sentence, he should be serving it in custody, not in the community; and of course it is against offenders who commit the most serious offences of violence that the public have the most right to be protected.
So there are really two potentially conflicting principles underlying the decision whether or not to grant parole: the possible benefit to the individual and the community on the one hand; and on the other hand the need to protect the public. In the end a pragmatic assessment of the balance of benefit and risk has to he made in each individual case.
It follows that, so long as both sides of the equation—benefit and risk—have to be taken into

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account, parole must be a selective process. That means that there must be time, following the passing of a prison sentence, for observation, reporting and selection to take place. And that means in turn that there has to be a minimum qualifying period after sentence before the decision whether or not to grant parole is taken. That is now either six months or one-third of the sentence, whichever is the longer. Thus, over half of all sentenced offenders still do not qualify for parole. Nevertheless, the decision in 1984 to reduce the minimum qualifying period for parole from 12 to six months has increased the numbers of prisoners eligible for parole each year from around 10,000 to about 23,000.
The noble Lord, Lord Hutchinson of Lullington, referred to Section 33 prisoners. I take this opportunity to stress that parole for short sentence prisoners under Section 33 of the Criminal Justice Act 1982 is not automatic, as has been suggested in some quarters. The same principles apply to the selection procedure. It remains an assessment of the balance of benefit and risk. In I 985 around one in four prisoners serving sentences under two years who were eligible for parole were not granted it. Nevertheless, the Government are conscious of the concern that has been expressed by members of the judiciary about the operation of this aspect of the parole scheme. The Parole Board referred to this concern in its annual report for 1985.
The decision to reduce the minimum qualifying period represented, as I have said, a major extension of the parole scheme. New procedures were introduced. They have only been in place for just over two years; and we have been reviewing them in the light of some of the concerns that have been expressed. We have identified certain improvements which can be made. These are being actively pursued. In particular, we believe that the documentation available to local review committees can be improved so that they are in a better position than they have been to assess the nature of the original offence in these cases. We are also looking again at the guidance currently given to local review committees about the criteria for selection for parole in these cases. On reflection, we think this guidance could be clarified to stress more clearly the need to balance in these cases the same principles as apply in all other cases—the principles of benefit and risk to which I have already referred. I believe that these improvements will strengthen the parole scheme by reinforcing the selection process which lies at its heart.
Although it is possible to define in very broad terms, as I have done, the principles underlying the parole decision, each individual case has to be treated on its merits. A difficult, sensitive judgment has to be made, and Parliament has said that, although the final discretion as to whether or not to release a prisoner on parole should rest with the Secretary of State, who is directly accountable to Parliament, he should not be able to act without the advice and recommendation of a body capable of assessing the risk of early release. That body is of course the Parole Board, which brings together both professional expertise and lay opinion. The board is independent of the Home Office. Home
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Office Ministers must answer not for the advice which they get from the board but for the way in which they act on that advice. But, as the noble Earl has said, the board looks at cases on the basis of published criteria. These indicate that the main factors which the board takes into account in its assessment of whether parole should be granted are the nature of the offence, the prisoner's criminal and other history, his prison behaviour, medical considerations, his home circumstances and his general prospects on release and likely response to supervision.
Generally speaking, the Parole Board sees the same documents as those seen by the LRC. I think that the noble Earl, Lord Longford, asked what documents were available to the board. The board will also see the LRC recommendations with reasons. It will see the judge's sentencing remarks and, if applicable, the Court of Appeal papers. Also, the Parole Board may call for further reports, such as psychiatric reports, if it so desires. It weighs these factors and then decides, as I have said, whether the possible benefit of release on parole outweighs the potential risk to the public. The noble Earl spoke of the board perhaps slightingly as a quango of quangos. I believe that it is wholly sensible that we should look to a body composed not only of those with a particular expertise—judges, magistrates, criminologists and probation officers—but of ordinary members of the public to carry out this assessment. I am delighted to see my noble friend Lord Windlesham, who is chairman of the Parole Board, in his place this evening and I am sure that noble Lords will acknowledge the hard work of the board.
The noble Lord, Lord Donaldson of Kingsbridge, asked how many prisoners have their licences revoked. I believe that the record speaks for itself. Only 803 prisoners had their licences revoked in 1985. That represents 5·6 per cent. of the number recommended for parole. The number of prisoners serving sentences of under two years who had their parole licences revoked was 224, which represents 2·6 per cent. of the number recommended for parole. The fact is that today there are around 6,000 offenders serving their sentence in the community who, were they not on parole licence, would otherwise be in prison. That speaks well for the selection process at the heart of parole. It is a tribute to the Parole Board and to those who serve on the local review committees, on whose recommendations, with the agreement of the Parole Board, many decisions are based.
However, as I have said, there is a duality in the parole selection process. The final decision rests with the Secretary of State. I can do no better than to quote the words of the noble and learned Lord, Lord Scarman, when giving judgment in the case of Findlay et al which was brought before the House of Lords:
"Neither the Parole Board nor the judiciary can be as close or as sensitive to public opinion as a Minister responsible to Parliament and to the electorate. He has to judge the public acceptability of early release and to determine the policies needed to maintain public confidence in the system of criminal justice. This must be why Parliament saw as necessary the duality of the parole system: without the advice and recommendation of a body capable of assessing the risk of early release the Secretary of State was not to act; but, having received such advice and recommendation, he was to authorise early release only if he himself was satisfied that it was in the public interest that he should".

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It is against that background—above all, the need to pursue a policy in relation to parole which maintains public confidence in the criminal justice system—that my right honourable friend the Home Secretary is following the practice of his predecessor in exercising his discretion restrictively in cases involving the most serious offences of violence and drug trafficking. Each case is still considered on its merits, but because of the need to protect the public from the worst, violent offenders and because of the need to ensure that the principles of retribution and deterrence are not undermined, parole is granted in such cases only in exceptional cirumstances or for a few months at the end of the sentence where the likely benefit is clear. The same principles apply—the principles of benefit and risk—but because of the nature of the cases involved the scales are more heavily weighted against release.
It is important to distinguish between the principles on which the parole scheme is founded and its operation. That is where I believe the noble Earl's analysis to be flawed. The underlying principles have not changed, but, as I have emphasised, they are potentially conflicting. At different times over the years since the inception of the scheme the board and successive Home Secretaries have given more weight to one side of the parole equation—benefit and risk—than the other. On the one hand, as confidence in its operation gained, and on the advice of the Parole Board and after consulting the judiciary, the parole scheme in this country was extended. Section 35 of the Criminal Justice Act 1972 was one such extension. By enabling the Secretary of State to release less serious offenders on parole licence on the recommendations of the local review committees it increased the scope for the Home Secretary to refer cases found unsuitable by local review committees to the Parole Board for a second look. It increased the numbers granted parole without increasing the failure rate or the relative demand made on resources by the selection process. Section 33 of the Criminal Justice Act 1982 extended the parole scheme to shorter sentenced offenders, again without any sacrifice of principle and without increasing the failure rate or significantly increasing the total resource costs. The result is that more people than ever before are now eligible for parole and are granted it.
However, there is nothing immutable about the selection rate for parole. In the early days of its operation the proportion of prisoners granted parole was comparatively low. Greater weight was given then to the risk factor than to the possible benefits of release. In returning to a more restrictive policy in relation to the most serious offenders, present Ministers are in an important sense only turning back the clock. An increasingly more tolerant approach in such cases has been reversed. The nature of the offence and the likely gravity of any reoffending have always been significant factors in parole decisions. The Government now wish to give them more weight in the most serious cases as part of their policy of maintaining public confidence in the criminal justice system.
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As the noble and learned Lord, Lord Scarman, has said, the parole scheme allows for such an approach. It is entirely proper for the Parole Board also to put greater weight on these factors, if it chooses, in making recommendations to the Home Secretary; in other words, to take account itself of the policy which it knows will be applied provided, as remains the case, that it continues to consider each case on its merits. That is not resentencing. It is a firm application of the principles on which all parole decisions have always been taken. The Government believe that after 19 years the parole scheme remains an effective means of selecting on a pragmatic but principled basis those prisoners whose early conditional release under supervision might be of long term benefit to the public and to themselves.
The release of a life sentence prisoner is also at the discretion of my right honourable friend the Home Secretary, subject to a favourable recommendation by the Parole Board, after consultation with the Lord Chief Justice and, if he is available, the trial judge. Again, my right honourable friend is not bound to accept a recommendation for release by the Parole Board; nor is he bound by the views of the judiciary, though he naturally attaches great weight to them. But there is a fundamental distinction between the consideration given to the cases of prisoners serving determinate sentences and to those of life sentence prisoners. As I have said, a determinate sentence prisoner must be released at the end of his sentence. The main consideration is whether he can be released earlier than in the normal course, to serve the balance of his sentence under supervision in the community. With a life sentence prisoner, the main consideration is whether he should be released at all.
There are two essential ingredients to the decision whether a life sentence prisoner should be released. Has he been detained for long enough to satisfy the requirements of retribution and deterrence for the offence; and is the risk to the public acceptable? My right honourable friend looks primarily to the judiciary for advice on retribution and deterrence and to the Parole Board for advice on risk. The public safety is always the pre-eminent factor whenever the release of a life sentence prisoner is under consideration. Even if a lifer has been detained for long enough to satisfy the requirements of retribution and deterrence, he will not be released if the risk is thought to be unacceptable. On the other hand, there will be cases where the sheer heinousness of the offence demands a very long period of detention on grounds of retribution and deterrence even though the individual prisoner may be thought not to pose any undue risk to the public.
That is a crucial point and one which I believe has led the noble Earl, Lord Longford, to give a distorted picture of the role and current practice of the Parole Board in life sentence cases, though I do not wish to go into the circumstances of the particular case that he has mentioned. As I have said, although my right honourable friend the Home Secretary looks primarily to the Parole Board for advice on risk, consideration of risk to the public is not the Parole Board's exclusive concern in reviewing life sentence cases. The board has itself made this clear in its annual report. In arriving at

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a decision whether or not to recommend the release of an individual life sentence prisoner, the board must have regard to all relevant factors, including not only the risk to the public but whether that prisoner has been detained for long enough to satisfy the requirements of retribution and deterrence for the offence. Ever since it was brought into the life sentence review process in 1968, whenever the Parole Board has considered the case of a life sentence prisoner it has always been aware of the views of the Lord Chief Justice and the trial judge, if available, on the retributive and deterrence element of the sentence; and this has been one of the factors which the board has taken into account in arriving at its recommendation.
Under the revised arrangements for the review of the cases of life sentence prisoners announced in November 1983, the Parole Board will now normally only review a case when a prisoner has already served a period which takes account of the views expressed by the judiciary about the requirements of retribution and deterrence; in other words, where the issue at stake is likely only to be the risk to the public of releasing the offender, but that will not always be the case. Under the present procedures, for example, the Parole Board will review all cases at the 17-year point regardless of whether the requirements of retribution and deterrence have yet been satisfied. It is bound in such circumstances to take account of the requirements of retribution and deterrence. The board's function in this respect has not changed, as the board itself pointed out in paragraph 12 of its report for 1984.
As I have said, I cannot answer for the Parole Board, and nor should I. But to sum up, I would answer the specific questions put to me by the noble Earl, Lord Longford, in the following way. First, and this is fundamental. I am sure that the board continues, as it always has done, to consider each case on its merits, taking account of all the circumstances—a point emphasised by my noble friend Lady Macleod. Secondly, in considering all the circumstances of cases involving life sentence prisoners the hoard is bound to take account, as it always has, of the requirements of retribution and deterrence, whatever its assessment of risk. In doing so, it will no doubt take account of any view expressed by the judiciary or by the Home Secretary, but it is certainly not bound by them, and in no sense is it resentencing such an offender, who is after all serving a sentence of life imprisonment.
Thirdly, if the Parole Board refuses to recommend parole in the case of a prisoner serving a determinate sentence it is not resentencing him to a further period of detention. It is refusing to recommend that the executive should change the basis of his detention. Parole is a privilege, not a right. Particularly in the most serious cases involving violent crime the board is bound to have regard to the original offence and the response of the court as reflected in the sentence passed. In such cases, the risk to the public of any repeat of the original offence is obviously a very significant factor. The board will always be conscious that the public is protected from the offender by the sentence of the court. Still, in each such case the Parole Board will weigh the possible benefits of parole. In some it will, and does, recommend parole. But it may,
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and often does, conclude that in view of the nature of the original offence the public should continue to be protected from the offender.
Fourthly, there is inevitably a link between individual parole decisions and the maintenance of public confidence in the criminal justice system. A bad failure on parole is bad for the parole system and bad for the criminal justice system; and of course such considerations affect the assessment of the balance of benefit and risk in the cases of the most serious offenders. The maintenance of confidence in the criminal justice system is a primary responsibility of the Home Secretary. In the exercise of that responsibility he is applying a more restrictive policy on parole of violent offenders. The Parole Board has agreed to take account of that policy and is doing so. But the application of a more restricted policy still requires an assessment of the benefit and risk in each individual case; and the board continues to make its independent judgment in each case.
It is important to keep in mind that the greater caution being exercised in the granting of parole to the most serious offenders is only one side of the balanced approach which the Government are seeking to bring to the parole scheme as to all other aspects of their criminal justice policy. The fact is that over the past 30 months the number of prisoners eligible for parole has more than doubled. More prisoners are benefiting from early release and from a period under the supervision of the probation service than ever before.
I shall now turn to some of the more detailed questions that were asked by a number of your Lordships. The noble Lords, Lord Harris of Greenwich and Lord Hutchinson, asked about parole delays. Due to an increase in the relevant portion of the prison population, the number of prisoners serving sentences of two years and over who qualify for parole reviews has risen from about 10,000 in 1983 to over 13,500. That has placed a considerable strain on the parole review machinery and regrettably resulted in an increase in the number of prisoners learning the decision on parole after the parole eligibility date.
This increase has occurred in the category of more serious cases which fall to be considered by the Parole Board. Extra resources have been made available to the Parole Board. In particular, a number of extra staff have been allocated to it. That has enabled us to contain the problems imposed by the increased case load, and inroads are now being made into the backlog of cases. My right honourable friend the Home Secretary has given a public assurance that provided there is no unforeseen surge in the workload there is every likelihood that parole delays will have been eliminated by the end of the year.
There are now over 2,200 life sentence prisoners in prison. The number of life sentences in the community has also placed a strain on the resouces of the life sentence section. That has led to increasing delays in processing life sentence cases, with the result, as the noble Lord said, that the normal time taken between consideration by the LRC and the Parole Board had increased to an average of 10.5 months by the end of 1985. There has been an increase in the staff

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complement of the life sentence section. It is hoped that that, coupled with the resetting of priorities in relation to the other work of the section, will reduce the average to nearer six months in the not too distant future.
I have been asked why reasons are not given for a refusal of parole. The noble Lord, Lord Harris of Greenwich, made many relevant points. I know that many of your Lordships will be aware that a good deal of sympathetic consideration has been given over the years by the Parole Board and successive governments to the possibility of giving reasons for the refusal of parole. The practical difficulties raised by pursuing that possibility have been considerable.
Parole panels, which usually consist of four or five members, may be unanimous in their recommendations against parole but may not agree on the reasons for refusing it. There will be considerable difficulty therefore in producing an acceptable compromise statement of the various reasons for the outcome. Since that would have to be done in many thousands of cases a year where parole is refused, it would not he feasible. Because of that, experiments have been conducted by the Parole Board and the LRCs to see whether, in each case, reasons might not be selected from a stereotype list of appropriate causes for concern.
There is no doubt such a procedure, although not without problems, could more readily be adopted, but the experience of those overseas parole schemes which have done that shows quite clearly that stereotype reasons give prisoners little satisfaction and inevitably give rise to demands for further elaboration; in other words, reasons for the reasons.
It would be difficult to institute such an arrangement without making it possible for prisoners to appeal against the reasons they have been given. This would lead inevitably, we are assured, to the involvement of the courts and the disclosure of the confidential reports made on the prisoners as part of the present parole system. It would represent a significant shift in the concept of parole from being a privilege to being a right. It would also require legislation and the setting up of a new type of parole scheme. The demand on resources would be high, and it is doubtful whether the end result would be that more prisoners were granted parole.
A question was asked about the membership of LRCs. By statute, they consist of the prison governor, one member of the board of visitors, one probation officer and two independent members. The board of visitors' member is nominated by the board of visitors itself and the probation member by the local chief probation officer. The independent members are recruited by various means but the aim is to get as wide a cross-section of society as possible. Age, sex and occupation are all taken into account. Ministers insist on two names for each vacancy to allow choice. I should like to emphasise that many ethnic minorities serve on LRCs and training is always provided for new members.
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The noble Lord, Lord Harris, drew as an example the driver of a getaway car in a shooting incident compared to the person who bludgeoned an elderly couple to death. I can only repeat what my noble friend Lord Elton said in response to the same question in 1983. Surely, the latter deserves as much punishment as the former or more. Indeed, he may so deserve. I would refer to a statement by the then Home Secretary, that other members outside these categories may merit no less punishment to mark the seriousness of the offence.
Lord Harris of Greenwich: My Lords, does the noble Lord not realise that the difference between these two cases is that the first cannot now be considered on its merits because of the new policy, while the second can be? What is the possible, conceivable argument for the introduction of such a policy when such a clearly absurd situation arises?
Lord Beaverbrook: My Lords, the noble Lord would accept, I believe, that there has to be a certain category of offence that is considered by the LRCs alone and perhaps other categories that are not. The noble Lord, Lord Harris, also raised the matter of the reconviction prediction score. It has recently been revalidated by a full and thorough Home Office study that will be published in the not too distant future.
The noble Lord, Lord Mishcon, mentioned the European Commission's report in the Weeks case. It was by no means unanimous and the Commission itself decided to refer the matter to the European Court for final ruling. Its decision is awaited and there is nothing I can add at this stage.
Lord Mishcon: My Lords, I am sure that the noble Lord will forgive me if I interrupt. I especially did not go into the issues, and said so, that were before the European Court. I am obliged to him for saying that a decision has not been made and, indeed, he would not want to comment on it. I shall not ask a question but, purely for the record, I referred to the facts of the case as showing something dreadfully wrong with our penal system when this matter concerned a young man of 17. I shall not repeat that portion of my speech. I am however obliged to the noble Lord for what he said about the European Court.
Lord Beaverbrook: My Lords, I am grateful to the noble Lord. I accept what he says about not mentioning the details of the case.
This has been a valuable and interesting debate, with a number of weighty contributions. I am most grateful to all noble Lords who have taken part. The issue of the release on licence of men and women held in our prison establishments merits such debate. It touches the lives not only of the individuals concerned but of their families and of the communities to which they may return. The principles underlying the decision-making process are, I believe, clear and soundly based. Individual cases are considered carefully on their merits. It is right that the operation

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of the parole scheme and of life licensing should be kept under review by Parliament. I can assure your Lordships that my right honourable friend the Home Secretary will take careful note of all that has been said in the debate.
House adjourned at five minutes past eight o'clock.