Lords Sitting of 19 November 1987

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Ely.): The LORD CHANCELLOR on the Woolsack.

Air Transport: EC Voting System
Baroness Burton of Coventry: 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 whether ratification of the Single European Act has extended majority voting in the European Community to air transport and, if so, what is the position concerning the delayed agreement on air capacity and market access in the Community.
The Parliamentary Under-Secretary of State, Department of Transport (Lord Brabazon of Tara): My Lords, yes. Proposals made under Article 84 of the treaty can now be adopted by the Council of Ministers acting by qualified majority. Consequently, the current proposals on capacity and market access are now subject to this procedure.
Baroness Burton of Coventry: My Lords, in view of that reply can the Minister say whether market access and air capacity will be on the agenda for the next meeting of the transport ministers' council? If so, will they be able to be decided by qualified majority voting?
Lord Brabazon of Tara: My Lords, yes. We believe that the aviation package will be on the agenda on 7th December. The substance of the package was agreed unanimously in June. Intensive bilateral negotiations are continuing with Spain, aimed at resolving the Gibraltar problem. However, it was never the intention that formal adoption of the package should depend on the outcome of bilateral talks.
Baroness Burton of Coventry: My Lords, the Minister did not answer my question about majority voting. Does he realise that this is a very complicated subject for us laymen? Can he tell me whether it is correct that despite ratification of the Act, should the Council of Ministers wish a matter to be decided by qualified majority voting this can be done only if the Commission agrees with what the Ministers wish to put forward? If that is true, does it not mean that it is the Commission which decides these matters and not the Council of Ministers, whatever the Ministers may wish to propose?
Lord Brabazon of Tara: My Lords, no; that is not quite right. The Council of Ministers may adopt a proposal that is before it by qualified majority. Article 149 of the treaty requires unanimity if the council is to amend the Commission's proposals. If the Commission's proposals are not to be amended, they can be decided by qualified majority.
Lord Underhill: My Lords, in the light of the certainty of majority voting, can the Minister say what effect this could have on any United Kingdom policy decisions on air regulation and use of our airports? I ask that in view of the reference by the chairman of the Civil Aviation Authority to the London space being overcrowded. Can any of our policies be affected by majority vote?
Lord Brabazon of Tara: My Lords, I do not think that they could be affected by qualified majority voting. However, on the noble Lord's second point about capacity, the possible effect of liberalisation on the underlying trend towards larger aircraft was taken into account in the 1985 White Paper, Airports Policy. While it is true that liberalisation can tend to increase the number of aircraft used on certain routes without a proportionate increase in passengers, the ratio of passengers per air transport movement has remained stable at Heathrow over the past five years while at Gatwick the ratio has increased by 14 per cent. over the same period.
Lord Graham of Edmonton: My Lords, if majority decisions are in order at this meeting, can the Minister inform the House whether the liberalisation of air fares will be a matter that can also be dealt with at the same time? When we are talking about liberalisation, apart from access we are talking about making the nonsense of the comparison of scheduled air costs which are operated by a pseudo cartel in Europe comparable with the charges made elsewhere.
Lord Brabazon of Tara: My Lords, yes. I tried to indicate that the whole package that was agreed in June by the Council of Ministers but which is held up at present by the dispute with Spain is subject to qualified majority voting now; and that could happen on 7th December.
Baroness Burton of Coventry: My Lords, while I am sure that the Minister is correct, perhaps I may ask whether I correctly understood what he said. If the Council of Ministers wishes a matter to be decided by qualified majority voting, and if the Commission does not approve of the proposal that the Ministers are wishing to put forward, can the Council of Ministers do that and not be overriden by the Commission demanding a unanimous decision?
Lord Brabazon of Tara: My Lords, if the Council wishes to amend the Commission's proposals—which is not the case at present—it can do that only by unanimity. If it wishes to adopt the proposals which have been produced by the Commission it can do that by qualified majority voting.
Baroness Burton of Coventry: My Lords, I am talking about matters proposed not by the Commission but by the Council. I am sorry I was not clear. If the Council of Ministers wishes to put up a matter to be decided by majority voting, and if the Commission does not approve of what the Council of Ministers is putting forward, is it correct that the Commission can overrule the Council and decide that the matter must be decided by unanimity and not by qualified majority voting?
Lord Brabazon of Tara: My Lords, if the Commission has made or approved the proposal, the Council of Ministers can then use qualified majority voting. If, however, the Council wishes to amend or alter the Commission's proposals, that has to be decided by unanimity.
Lord Brougham and Vaux: My Lords, can my noble friend say whether there is any truth in the article I read in the paper yesterday about his right honourable friend the Foreign Secretary's discussions with the Spaniards, saying that the Spaniards would be allowed to use Gibraltar? Has he any further comment to make on the matter?
Lord Brabazon of Tara: My Lords, we have been having intensive bilateral talks with the Spaniards. These are still going on. Senior officials are engaged in intensive discussions and will be talking further next week. The Foreign Secretaries meet together at the end of this month and hopefully in time for the 7th December transport council.
Lord Brougham and Vaux: My Lords, I thank my noble friend for his reply.

Children: Special Health Needs
3.8 p.m.
The Countess of Mar: 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 are the criteria for determining the number of children in need of special provision by each regional health authority.
The Parliamentary Under-Secretary of State, Department of Health and Social Security (Lord Skelmersdale): My Lords, mentally and physically disabled children are one of the Government's priority groups as set out in Care in Action. It is, however, for individual health authorities to determine the level of services provided, taking into account available resources and local needs and circumstances.
The Countess of Mar: My Lords, I thank the noble Lord for that Answer. Is he aware that there are huge disparities over the country between different area health authorities? is he satisfied, in view of the fact that this is a priority area for the Government, with the provision in different areas?
Lord Skelmersdale: My Lords, thanks to the warning given me by the noble Countess, I have investigated this matter. I have been advised that resources for children with special health needs are not at issue in any region of the country.
The Countess of Mar: My Lords, I am sorry to intervene again. Is the Minister aware that there are no beds for respite care in Worcester area health authority, for example?
Lord Skelmersdale: My Lords, yes; that is as I have been advised. But that does not necessarily mean that there is need for those beds within a health authority. Many of those matters, as the noble Countess will know well, are decided on a regional basis.
Lord Ennals: My Lords, can the Minister explain why the Government feel that they do not have any responsibility to suggest target figures? is that not part of their responsibility in providing a National Health Service? Is it not true that there is a very great deal of variation between different regions in the service they provide for the group of disadvantaged children about whom we are talking?
Lord Skelmersdale: My Lords, the noble Lord, Lord Ennals, knows better than anyone that the regional planning system covers all the activities in a region. Those are reviewed annually both by officials and Ministers. I can advise the House that we are currently devising ways to help health authorities to improve their monitoring, which is one of the problems.
Lord Dean of Beswick: My Lords, is the Minister aware that some of the hospitals in the centres of our larger cities, to which people are brought from the outer areas for specialised treatment, continually claim that they are underfunded and cannot carry out such a function? My colleague the noble Lord, Lord Stallard, referred last week to the Manchester Eye Hospital. Will the Minister look into this situation? We believe that such underfunding is grossly unfair.
Lord Skelmersdale: My Lords, with the greatest respect, the Question on the Order Paper is addressed not to acute services but to the requirements of children with special needs. If the noble Lord would like to address a Question to the Government generally on the point that he makes, I or one of my noble friends would be delighted to answer it.
Baroness Masham of Ilton: My Lords, does the Minister agree that the therapy professionals, such as occupational therapists, physiotherapists and speech therapists, are very important in this group and that there is a shortage of these important people in many health authorities? Will he do as much as possible to encourage them to stay in the health service?
Lord Skelmersdale: Yes, my Lords; indeed all the therapies that the noble Baroness mentions are extremely important to children with special needs. The Government are encouraging authorities to raise their recruitment of these specialists. I am advised that that campaign is going well.
Lady Kinloss: My Lords, can the Minister tell me how many children with mental handicap there are in the different authorities, and whether he is satisfied with the provision for them now and in the long term?
Lord Skelmersdale: My Lords, that is a little general at this moment; but I can advise the House that there are no children with mental handicap in hospital in either Somerset or Worcester.
The Countess of Mar: My Lords, will the noble Lord look again at the situation within the Worcester Area Health Authority? I have had a number of parents asking me to raise this matter in the House. They are very concerned that there are no places for respite care. Perhaps the area health authority could be asked to reach parents of children in mentally handicapped groups.
Lord Skelmersdale: Yes, my Lords. I shall certainly take on board the point that the noble Countess has just made.

Iran/Iraq Conflict
3.12 p.m.
Lord Molloy: 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 whether they have conducted any negotiations with any other nation to agree a common policy towards the Gulf conflict.
The Minister of State, Foreign and Commonwealth Office (Lord Glenarthur): My Lords, we have played a leading role in discussions of Iran/Iraq at the United Nations Security Council. The conflict is also discussed regularly within European Political Co-operation and bilaterally with a range of countries.
Lord Molloy: My Lords, I am grateful to the Minister for that reply. I acknowledge that there are formidable practical difficulties in getting full-scale liaison. Does he agree that there seems to be better co-operation from the USSR, and that the British and American naval presence in the Gulf work very well together? Does he further agree that, although the difficulties are enormous, the Government do not regard them as insuperable? Will we try to move more closely towards unified action by all those involved in the Gulf?
Lord Glenarthur: My Lords, there is already wide international consensus on the need to end the conflict in the Gulf—I am sure the noble Lord is well aware of that—and to support Security Council Resolution No. 598. That has been demonstrated best by the Arab support that came forward at the Amman Summit. We have co-operated closely with our European partners since the conflict began and have issued numerous common statements. The important thing is to try to concert and co-ordinate a common line.
Lord Grimond: My Lords, as there is a United Nations policy on this matter, can the noble Lord tell us what success it is having in achieving peace?
Lord Glenarthur: My Lords, we still hope that it will be possible to further the aims of the Security Council Resolution No. 598. That must remain the key. It is also important that we support the freedom of navigation of all waterways such as the Gulf, and that is demonstrated by the presence in the Gulf of
290
naval forces from five Western European Union members: ourselves, France, Italy, Belgium and the Netherlands.
Lord Cledwyn of Penrhos: My Lords, are the Government satisfied that the present ad hoc naval arrangement that we have in the Gulf is working satisfactorily? Can he say a word about the four mine-sweepers and confirm the reports that we have received that they are making a valuable contribution?
Lord Glenarthur: My Lords, I can certainly confirm that the four mine-sweepers are making a valuable contribution. The arrangements for concerting and co-ordinating the approach of the naval forces there is much better done locally than by any other agency. I also assure the noble Lord that that is going particularly well.

Electricity Lines: Underground Replacement
3.14 p.m.
Baroness Strange: 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 whether they have power to direct that electricity lines replacing those which were damaged in the recent hurricane should be laid underground; and if not, whether they will take power to do so.
Viscount Davidson: No, my Lords.
Baroness Strange: My Lords, I thank my noble friend the Minister for his courteous but brief reply. Does he not agree that this might be a splendid opportunity to benefit the environment by removing some of the electricity cables and wires which are blocking out the views of our beautiful countryside like a tangle of old knitting?
Viscount Davidson: My Lords, it is too early yet to reach conclusions on the lessons to be learnt from the damage caused by the hurricane which struck the South-East of England in the early hours of 16th October. However, it is already clear that much of the damage was caused not only by falling trees, which gave rise to faults to overhead lines, but also by roots pulling up underground cables.
Lord Moyne: My Lords, may I ask my noble friend whether a buried cable is not less vulnerable than an overhead one from the point of view of enemy bombardment, terrorist action or future storms?
Viscount Davidson: My Lords, I am sure that my noble friend is right in certain respects, but installing underground cables normally costs between three and 10 times the expense of putting up overhead lines. I have here a list of eight technical reasons for not putting electricity cables underground, but I do not feel that the House will thank me for reading it out now.
Lord Stoddart of Swindon: My Lords, is the noble Viscount aware that I am not quite certain whether his answer, no, was to the first or the second part of the Question, or both? Is he aware that the Government probably do have power to give a general direction if they so desire, but they may not wish to? Does he accept that it could be more environmentally damaging, as well as a lot more expensive, to put cables underground? Does he agree that probably the correct answer is not to put underground all the cables that were brought down on that awful night of 16th October but for all the electricity boards to review their policies with regard to electricity cables which habitually fall during normal winter gales?
Viscount Davidson: My Lords, I am grateful to the noble Lord for that question. Electricity boards are required under Section 37 of the Electricity Act 1957 to take into account any effect that their proposals might have on the natural beauty of the countryside, any flora, fauna, features of special interest, buildings or other objects. Before boards are permitted to place new overhead lines they are required to obtain consent from the Secretary of State for Energy, who before granting consent takes into account any objections received.
Baroness Gardner of Parkes: My Lords, does the noble Viscount agree that cost is a very big factor, in that it goes on to the consumers' electricity account in the end? That is significant and it is another reason why we should not want to put everything underground. I speak as a member of the London Electricity Board, the services of which are entirely underground and did not suffer any damage, but those cables were placed at great cost.
Viscount Davidson: My Lords, I agree entirely with my noble friend. I believe that I said that the cost of installing cables underground is between three and 10 times that of overhead lines. For the higher voltages, lines can be up to 40 times more expensive.
Lady Saltoun of Abernethy: My Lords, is there any danger to underground cables in the event of flooding or if they are broken by a digger or something of that kind?
Viscount Davidson: My Lords, I should have thought that there was considerable danger from the latter.
Lord Ezra: My Lords, for those who live in wooded areas and who have regularly suffered over the years from interruptions in electricity supply, would it not be a sensible long-term policy selectively to put cables underground? I feel that here there is a question of saving money in the short term but incurring much more expenditure in the long term?
Viscount Davidson: My Lords, I agree, but it will be up to the consumer to foot the bill. The House might like to know that for private lines to houses the first 60 feet laid underground is laid free of charge and the balance is paid for by the customer, the cost being a matter of negotiation with the electricity board.
Viscount Thurso: My Lords, is the noble Viscount aware that it is claimed that it is actually harmful to health to live too close to an overhead electricity power cable and it might therefore be safer to have underground cables from a health point of view?
Viscount Davidson: My Lords, it depends on which was there first, the electricity cable or the house.
Lord Stoddart of Swindon: My Lords, is the noble Viscount aware that underground lines also generate heat? They have to be cooled and damage to the environment occurs because they have to have cooling stations above the ground. That can be more harmful than overhead lines.
Viscount Davidson: My Lords, that is one of the items on the list that I have not read out.

Business
3.20 p.m.
Lord Denham: My Lords, at a convenient moment after 3.30 this afternoon my noble friend Lord Brabazon of Tara will, with the leave of the House, repeat a Statement that is to be made in another place on the fire at King's Cross Station.
It may also be for the convenience of your Lordships to know that the Report stage of the Criminal Justice Bill will be adjourned for a period at approximately 7 p.m. and that during this adjournment the Welfare of Battery Hens Regulations 1987 and the Welfare of Calves Regulations 1987 will be taken.

Associated British Ports Bill
3.21 p.m.
Read a third time, and passed, and returned to the Commons with amendments.

Criminal Justice Bill [H.L.]
3.21 p.m.
The Minister of State, Home Office (The Earl of Caithness): My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(The Earl of Caithness.)
On Question, Motion agreed to.
Lord Elton Lord Elton moved Amendment No. 40:
After Clause 36, insert the following new clauses:
("Petty theft to be a summary offence.
. Theft, where the value of the property alleged to have been stolen does not exceed £75, shall be a summary offence and a person convicted of such an offence shall be liable to a fine not exceeding level 4 on the standard scale.")
The noble Lord said: My Lords, in moving Amendment No. 40 I start with two premises. The first is that justice delayed is justice denied. The

293
second is that our magistrates can be trusted to deal justly with the accused who come before them. According to the Judicial Statistics for 1986, page 43, table 5, the average time it takes for a case to be called in the Crown Court is more than 14 weeks in England and Wales as a whole and almost 25 weeks in London. That time of anxious suspense is no shorter for the innocent than it is for the guilty. During that time the anxieties of the accused sharpen while the witnesses' memories fade. It is therefore itself a kind of punishment. It is meted out to the innocent as well as to the guilty and it is a means of reducing the certainty of justice when it is delivered. To reduce it, all other things being equal, must be a good thing.
It is government policy to speed up the process of the courts. The noble and learned Lord the Lord Chancellor, who I quake somewhat to see on the Woolsack, has quite recently stated his commitment to that cause. There are various means available to him but neither appointing more judges nor building more courthouses will achieve that in anything like an acceptable length of time. The process within a law court may be very slow but the process of building one makes it look like greased lightning. If we are to bring significant relief to the system within the next few years we need something else. What I propose will bring that something else from the moment of implementation.
The offence of the petty theft of items of low value at present provides the Crown Court with 10 per cent. of its case load and consumes only a little less of its time. My amendment would simply convert that offence from an indictable to a summary status. In other words, it would transfer the hearing of the case for such offences from the Crown Court to the magistrates' courts. Your Lordships may think that to remove the threat of imprisonment—which is what the amendment does—is to take too light a view of the offence, but let me remind your Lordships of what that offence consists. It is the taking of property without the use of any violence to the person and without the causing of any physical damage to a house or vehicle in the process. This is a non-violent crime and I am increasingly persuaded that we are too free with our sentences of imprisonment for crimes of this nature.
The threat of imprisonment may be a deterrent in many cases but I learnt a sad fact when I had charge of the prison system, first under the noble Viscount the Leader of the House and then under the right honourable Member for Richmond. I am referring to the fact that nothing but nothing makes a person more likely to go to prison than the fact that he has been sent to prison before. Imprisonment is certainly a punishment. It is often a deterrent. But in no sense is it a reliable cure for crime.
The maximum fine I propose is at level 4 on the scale, which is now £1,000. In Committee my noble friend Lord Renton wondered whether that was enough. Both my noble friends Lord Boyd-Carpenter and Lord Renton raised in Committee the questions of aggregation of the values of the objects stolen if several instances were brought simultaneously to trial and of the treatment of second and subsequent offences. I had hoped that in taking my amendment away for consideration Her Majesty's Government
294
would have responded to my noble friend Lord Boyd-Carpenter's suggestion that they should propose a line on this at the Report stage. They have not tabled an amendment of their own and I hope they will at least vouchsafe us the line.
What are the objections to what I propose? They will be very ably deployed, no doubt with devasting effect, very shortly after I have sat down. A principal difference between the Crown Court and the magistrates' court is that in the magistrates' court there is no jury. There are just three magistrates, three Justices of the Peace, or a single stipendiary magistrate. It is argued—and some noble Lords may seek to argue today—that petty theft is an imprisonable offence and that the conviction for an imprisonable offence is such that it ought not to be awarded without the safeguard of a jury. That is wide of the mark because I have proposed to remove the sentence of imprisonment for the crime.
It is worth noting that only recently your Lordships passed in Committee, without a whisper of doubt about its appropriateness, Clause 36 of the Bill, which comes immediately before the new clause that I propose to insert. That provided without a murmur of dissent for magistrates to hand out sentences of six months in cases of common assault and battery. As for criminal damage, an earlier clause now allows them to deal with that on their own up to a maximum value of £2,000. I say that in parenthesis but it tackles the question of stigma which I know will be deployed this afternoon. The stigma of an imprisonable offence does not arise. The question of stigma for dishonesty arises in plenty of cases with which the magistrates deal already.
That might itself give a tiny help to the prison system by keeping a handful of prisoners out of it but the amendment would have an effect on our prisons far greater than that. It would reduce significantly the number of people held in them. One of the most acute reasons for overcrowding in our prisons arises from the large and growing number of prisoners held on remand awaiting trail for offences other than those which we are now discussing. On average there were about 6,000 of them in 1979. By September 1987 there were more than 11,000. They find themselves in some of the worst conditions in the whole prison system; sharing with at least one other a cell designed in the days of Queen Victoria to hold one person. Moreover, they may find themselves in such conditions for about 22 hours a day if the system is not working properly, and during the night time with the chamber pots of all the occupants as well, because there is no internal sanitation.
That is not a pleasant experience and it is not in any sense a force for rehabilitation. It is all that can be provided in most local prisons. I recognise what has been done, what is being done and what it is planned to do in the way of providing new accommodation and improving the old. Nonetheless the remand wings of our prisons are among the most cramped and overcrowded in the whole system. A major factor in the build up of this enormous pressure is the time it takes to bring a remand prisoner to trial in the Crown Court.
I am not sure whether I have even yet put this problem into proper perspective. Perhaps it will help

295
your Lordships if I say that in the south-east region of the prison system no fewer than 22 per cent. of all male prisoners and over 33 per cent. of all female prisoners have not been sentenced to imprisonment or anything else. The vast majority of them are still awaiting trial, and still waiting for the Crown Court to have the time to hear their case. Only Jarndyce v. Jarndyce could look at that with any equanimity.
Why does the Crown Court take so long? It is because it is clogged up with work, and some of that work, 10 per cent. of it, ought not to be before it in any case. That 10 per cent., estimated by the Home Office to consume more than 8 per cent. of its time, could and should be removed from it at once; and that it what this amendment would do.
These are powerful and persuasive arguments. Faced with powerful and persuasive arguments, the Government usually fall back, when all else fails, on the question of money. Proposals which they find admirable in other respects are regretfully rejected because of their cost. I have done it often enough to know. In this case, however, the boot is on the other foot. Costs, as in any change, there would certainly be. Against any savings in the Crown Court there must be set a significant increase in the work done by the magistrates' courts. That would doubtless require a transfer of resources to meet it: 80 per cent. from central government and 20 per cent. from local authorities. But even that would not be a net increase. Roughly 10 per cent. of all cases now sent to the Crown Courts from the magistrates' courts require full committal proceedings. Committal proceedings can be very protracted. We have painful memories (have we not?) of the Jeremy Thorpe case to remind us of this.
The whole of that load of committal proceedings would be lifted from the magistrates' courts by this amendment. Nonetheless, there would be an addition and it would have to be met, as I say, 80 per cent. from central government grant, but that would happily be outweighed by the savings in the prison Vote. Happily again, both Votes belong to the same department.
A remand prisoner has more privileges, costs more to maintain, and lives in greater squalor that any other. The net average cost of keeping him on remand is from £12,000 to £15,000 a year. This is one of those rare occasions where we in Parliament can present to a hard-pressed department almost ready made a chance of making savings in its own programme without adding to the costs of another.
Whatever my noble friend is instructed to say, there must be jubilation, I should have thought, at that prospect in some parts of Queen Anne's Gate, not far from the Home Secretary's office, and even a hint of a smile on the dour face of the Treasury, for once. There must be a sharp drop also (must there not?)—I would ask the Minister whether he could quantify this—in the cost of the legal aid programme since the cases that we have taken out of the Crown Court, if we are wise, will be so much cheaper to pursue.
The noble and learned Lord the Lord Chief Justice spoke strongly for this measure in Committee. He has written since to me to say that he regrets he cannot be
296
here today but he remains in favour of what I have proposed. The noble and learned Lord, Lord Roskill, said in Committee that he wished to support with all the force he could the amendment that I put then. He also has written in support and saying that he has to be elsewhere. I think I have deployed sufficient arguments to warrant a reply. I shall reserve the rest of my powder to reply to the reply. I beg to move.
Lord Mishcon: My Lords, there is a famous English institution which has as a motto, as I recollect, "I mean well". I would wish that that motto be applied to the noble Lord, Lord Elton, this afternoon. There is not the slightest doubt that the purpose that he has is a worthy one; namely, the speeding up of justice, the saving of money to the Treasury, and also economising on the legal aid fund. But before one speeds up justice one has to be sure that justice itself is going to be granted. Looking at matters first of all objectively and then from the point of view of the defendant, may I quickly summarise the reasons why we on these Benches would oppose this amendment.
First of all, your Lordships will appreciate that the penalty for theft in regard to values under £75 would be limited to a fine. Those over that amount would be imprisonable. I ask your Lordships to consider for a moment, if you were sitting as the sentencing judge or magistrate, which would your Lordships regard as the grimmer offence: someone who stole a radio from a Rolls-Royce, the radio being worth more than £75, or the person who stole the last £5 of a widow? I believe I know the answer. In those circumstances I ask your Lordships to consider before you would pass an amendment which would make the stealing from the widow a matter for a fine and the stealing of a radio from a Rolls-Royce possibly a matter for imprisonment.
I turn to the next point. It is not an original one so far as I am concerned but one which I remember was raised in Committee. The noble Lord who raised it will forgive me if I do not remember his name because I would wish obviously to give him credit for it. It was that as you have this amendment before you your Lordships will observe that if somebody keeps on stealing something below £75 and makes sure that his valuation is precise, and possibly can afford to have an official valuer with him on each occasion, it would mean that he could perpetrate 20 thefts of this kind below £75 knowing that when he appears before the friendly and now familiar face of the local magistrate the magistrate will only be able to administer a fine.
I turn lastly to the justice from the point of view of the defendant. The noble Lord, Lord Elton, was quite right to forecast that this point would be made. It is an obvious one but nevertheless a true one. The stigma of theft is one of the gravest that can be put against anybody's character. Not to have the opportunity of being tried by his peers, as for all serious crimes, would be quite wrong whatever the value of the thing alleged to have been stolen, even if it were a bottle of milk.
I wonder whether your Lordships will allow me in conclusion—and I promise in conclusion—to tell you of a case that I shall always remember. I was a young advocate at the time and I was appearing in Bow Street magistrates' court. The case before mine was a

297
case of a tramp who was wandering down Charing Cross Road and was alleged to have stolen somebody's wallet. The magistrate heard the case very quickly. He was a just magistrate. The fact that he heard it quickly did not mean that he was not giving due attention to the case. He heard the story of somebody wandering down Charing Cross Road who was accosted by the tramp, who asked him the time. He gave him the time and tramp hurried away. He thought he noticed that his pocket was touched. He immediately felt in his pocket and found a wallet missing.
The tramp was hurrying away and the gentleman concerned called out, "Stop thief!" After what appeared to be a lapse of time when something could have been thrown away, the tramp was stopped and he was duly arrested by a police officer who came from the nearby vicinity. He appeared in the court and gave evidence and told the magistrate, in my hearing, that he really wanted to know the time and that he had hurried away because he was due to meet a pal somewhere near Trafalgar Square. The magistrate said, "There is too much of this going on. I have heard that story before. Guilty. I want this man remanded for a report".
I then conducted my case, and I was asked by the clerk of the court if I minded being interrupted. I said, "Certainly not". The man, having travelled down Charing Cross Road, reappeared in a flustered condition. He told the learned magistrate that he had been home, had looked at another of his suits and found the wallet inside. He wanted to apologise to the court and to everybody concerned. The magistrate, being the man that he was, said, "Call this man up at once. Of course he will be acquitted. The day's hearing has not yet finished and I can deal with the matter in that way. I must not say again that I have heard this type of case before".
Juries have not heard that type of case before and that is why our system of trial by jury is so valuable in our criminal law.
Lord Denning: My Lords, I should like to support my noble friend Lord Elton most warmly. I am also pleased to hear that the noble and learned Lord the Lord Chief Justice and the noble and learned Lord, Lord Roskill, also support the proposal, although they are unable to be present.
I speak in support of the proposal because of the experience of judges who have had to deal with trial by magistrates and trial by jury. Our magistrates are of first-rate quality. They are the best citizens in the land, intelligent and well able to deal with such cases. They are well aware of the burden of proof: that a man is not to be found guilty unless the case is proved against him beyond reasonable doubt. Trial by magistrates is a first-rate tribunal. I should not like to say the same about trial by jury, although I have the greatest regard for it in all serious and important cases.
Let us think about the matter. As my noble friend said, justice delayed is justice denied. That applies to both sides; not only to the accused but also to the prosecution. If witnesses are to be called, let them be called as soon as possible, while their memories are clear, and not after a delay of 14 months. Delay is
298
advantageous to the defendant; it does not help the prosecution.
In my experience, ordinary, decent folk charged with petty theft—for that is what it is—would say, "Let us get it over with now and decide the matter before the magistrates so that I shall know the worst now". I fear that the right to trial by jury is abused—and I shall say it plainly—by some lawyers representing the accused. They will say that they want to elect for trial by jury because they know what will happen. The case will not be tried for six or nine months, or whatever it may be, until the Crown Court can take it. Mark you, how good for the lawyers! Legal aid will be available, the lawyer will be able to delay the case and, although I think it is wrong, he will hope to have a better chance of getting his client off. In other words, I am afraid that a request for trial by jury is sometimes abused by lawyers defending the accused. There are all the reasons which have been given by my noble friend.
Are the Crown Courts to be filled with what many judges consider to be trivial cases? I agree that they are small cases but important to the individual. But do not let Crown Courts be filled up with such cases. Let the magistrates, a first-rate tribunal, deal with them. I am sure that most defendants would agree with that view. I support the amendment.
3.45 p.m.
Lord Wigoder: My Lords, my experience is much less than that of the noble and learned Lord, Lord Denning. However, perhaps it has the slight compensating factor of being rather more recent. I should like to dissociate myself entirely from the view of trial by jury which has just been put forward. I believe that it flies in the teeth of the evidence. I believe the evidence is perfectly clear; that of every 100 cases which are tried by a jury, selected at random but presided over by an experienced judge who has not been selected at random, 99 cases would have exactly the same result if they had been tried by a stipendiary magistrate or by lay justices.
Of course there is the occasional marginal case where views may vary, just as there would be if the same case were tried by two different courts of lay justices. However, if one looks at the acquittal and conviction rates and at the inquiries that have been made of the views of trial judges of the verdicts in cases where they have presided, one inevitably comes to the conclusion that a jury is a thoroughly dependable part of our criminal system. I am deeply sorry that such a distinguished noble and learned Lord should venture to cast doubts upon the system.
Equally, the noble and learned Lord is not right when he says that advocates elect trial by jury because, to use his words, there is a better chance of getting an accused off. There is not. Advocates elect trial by jury for a simple reason. In a jury trial one has the opportunity to obtain all the evidence of the prosecution in advance, to study it and prepare and plan the answer on behalf of the defence. It is for that reason that lawyers elect for trial by jury and for no other.
In those circumstances, I suggest that that argument—which might be at the back of the minds of some members of the Committee but which is at

299
the front of the mind of the noble and learned Lord—is not a reason for supporting the amendment. Nor was it a reason put forward, if I may say so, in a moderate, clear and well-argued speech by the noble Lord, Lord Elton. I believe that the issues are those of expediency and eventually of principle.
On expediency, it is said that trials might come on more quickly if they are dealt with by magistrates. In the case of contested charges of dishonesty I am not sure that that is right. Today the vast majority of committal proceedings are purely formal. The case is dealt with instantly before the magistrates' court and does not occupy 30 seconds of the court's time. The case will go to the Crown Court in perhaps four, six, eight or 10 weeks—whatever the normal waiting time for a case. I am sure that the noble Lord, Lord Elton, will say that that is too long, and I agree. Nevertheless, the case will be heard in that period of time.
If it is a contested case of dishonesty that is liable to last for two or three days, the same case will take at least the same period of time before being heard in a magistrates' court because of the pressure of work upon them. That applies particularly to lay justices in rural areas, who inevitably find themselves sitting the odd half day or two a week and who find it difficult to assemble together for two or three consecutive days in order to try a case of that nature.
In those circumstances, it is not right to say that cases will necessarily be tried more speedily if we remove them from the Crown Courts. The other argument is that the pressure on the Crown Courts is so great—and there is so little pressure on the magistrates' courts—that it is a way of doing a balancing act. Noble Lords who serve with such distinction as lay justices will know perfectly well that that argument is inaccurate. Lay justices are under the same pressure of time as are the Crown Courts.
One is then left with the issue of principle raised by the noble Lord, Lord Mishcon. Is it right to say that because some offences of dishonesty happen to involve less than £75 they are somehow less serious than other offences which involve a larger sum? It is clear that the alleged theft of £1 may have far more serious consequences for some people than the alleged theft of £100,000 has for others.
The idea that one can fix an artificial limit of £75 is almost indefensible. Let us take an absurd example and suppose the theft concerned a piece of antique furniture. One would have the Gilbertian situation that before the case began the Crown would argue that the so-called Chippendale was worth only £74; but the defendant would argue to the contrary, saying that he would call expert evidence to prove that it was a genuine Chippendale, worth thousands of pounds and that therefore he was entitled to trial by jury. One cannot differentiate between offences of dishonesty on the basis of the sum involved.
I should like to make one final observation which I have made before and which I make no apology for repeating. In supporting the right of a person who is charged with an offence of dishonesty, a conviction for which may affect his whole life, his standing in his family and the community, to have trial by jury, I am
300
in no way criticising the competence or ability of lay justices. Of course it is not a criticism. But if there is a trial by jury and a verdict of guilty or not guilty is given by 12 people who are chosen at random from the community, that verdict is one that the whole community and the defendant himself accept as final. In those circumstances I suggest that the balance of argument is overwhelmingly against this amendment.
Lady Saltoun of Abernethy: My Lords, I wish that I had been able to speak to this amendment at Committee stage. Unfortunately at that time I was on the steps of the Throne and could not speak from there.
I have very great respect for the noble Lord, Lord Elton, and much sympathy with his intention in moving this amendment, but I cannot support it. I could not support it even if the maximum sum involved were only 75p. The noble Lord, Lord Mishcon, emphasised the stigma that is cast on the character of an individual for his lifetime by a conviction for theft however paltry the amount involved. It has not at all the same effect as a conviction for a parking offence or speeding on the motorway.
I wonder how many noble Lords, and especially noble and learned Lords, have any idea of the ease with which one can inadvertently shoplift. I know it is easy because I have done it on two or three occasions. However, I have been lucky enough to get out of the shop without being arrested and, having realised what I had done, quickly returned to pay for the goods that I had with me. On one occasion early in the morning I went into Selfridges to buy an umbrella. Having chosen an umbrella I looked around for a till or an assistant in order to pay but the entire department was empty. I walked through the shop looking for someone to whom I could offer the money but on the way my eye was caught by a rack of belts. Since I wanted a belt, I paused, hung the umbrella over my arm and looked through them. Not finding a belt that I liked, I walked out of the shop, but by then I had completely forgotten the umbrella that was still over my arm. As I was walking down the street a few minutes later it started to rain and I was about to open the umbrella when I remembered that I had not paid for it. I managed to return to Selfridges and pay for it, without being caught.
Such things are all too easy. Just in case any of your Lordships think that such things happen only to middle-aged women, I must tell them that it is not true. I told the story only a couple of days ago to a youngish Peer, who said, "Yes, exactly the same thing happened to me in the local supermarket not long ago". It is only too easy to take goods if one is preoccupied or suddenly distracted, for example, by meeting a friend.
I think that in those circumstances it is quite unacceptable to deny the victim a trial by his peers, however long it may take, and the chance of clearing his name and character.
Lord Hailsham of Saint Marylebone: My Lords, of course I realise that there are arguments on both sides of this matter. I must say to the noble Lady who has just spoken that on the facts of the case that she has

301
anecdotally recounted, in my experience certainly she would have been acquitted either by a jury or by a magistrate. I do not take much notice of such stories. However, I should like to bring forward one or two factors of which, at any rate at this stage of the Bill, I do not think the House has been informed—although perhaps the House was informed of them in Committee but I was not present on that occasion, for which I must apologise.
The argument has quite a long history behind it. When first I was Lord Chancellor I learned of a case that took up a day and a half of the Crown Court's time. It concerned a man who was charged with stealing not a bottle of milk, as the noble Lord, Lord Mishcon, said, but an empty milk bottle I wonder whether that is really a rational way to conduct criminal justice.
The James Committee, formed under the chairmanship of the late Lord Justice James, came to the conclusion that smaller thefts, at any rate in principle, should be triable by magistrates and that it should not rest entirely with the defendant to say whether or not he should be tried by magistrates. I remind the House that in an appeal against conviction or indeed against sentence from the magistrates there is a complete rehearing by the Crown Court, which consists of again considering the evidence on both sides. My view is that for a case of such a lack of importance that is an adequate safeguard for the burden and standard of proof which is quite rightly demanded in criminal cases.
When the James Committee report ultimately came to be implemented by the then Labour Government, I sat approximately where the noble and learned Lord, Lord Silkin, is now sitting, and the noble and learned Lord, Lord Elwyn-Jones, and the noble Lord, Lord Harris of Greenwich, produced an amendment not very different from that of my noble friend Lord Elton today. It was then my painful duty to have to tell the noble and learned Lord, Lord Elwyn-Jones—and I hope that he will not complain that I have broken a confidence—that I had been informed by the Conservative Whips that, although I supported the amendment of the then Labour Government, it would not go through the House. So, in order not to waste the time of the House the amendment was withdrawn. However, sooner or later we must grasp the nettle, whether or not it takes the exact form that my noble friend Lord Elton has proposed.
I attach a very great deal less importance to the stigma argument than did the noble Lord, Lord Mishcon. Let us take the case of the late Professor Joad, who effectively stole from the railway company (or whatever it was at that time) the money represented by the ticket for a journey between Reading and Paddington—I think it was Paddington. He could only be tried by magistrates. He told a totally untruthful story and he was convicted. However, if he had taken a book of the same value from Woolworth's, with the same dishonest intent, then morally and in the sight of God he would have been neither more nor less guilty than he was when he stole the money from the railway company. The idea is absurd that a stigma attaches to the act of stealing because it is technically stealing in
302
English law but not to stealing from railway companies. The maximum penalty that Professor Joad could have been given and was given by the magistrates was, I think, a 40-shilling fine. But the stigma attached to him was absolutely identical. In fact, it ruined him, because the BBC, who at that time was his principal employer, would not employ him again for ever and a day.
If I were asked myself—and I do not put myself forward as one who would dare cast the first stone at anybody else—would it do me much more harm in the eyes of the public if I were to commit a deliberately cruel act on a dog or steal a book from a railway bookstall, I think it would do me far more harm to be convicted of a cruel act to a dog or neglecting a child. These things are triable summarily only, but I would be entitled to trial by jury if I took the book. I regard this as wholly irrational and we do not want therefore to approach this matter in quite the emotional way that some people are inclined to do.
I remember the very tragic case of Lady Barnett, who was quite a habitual shoplifter, as subsequently emerged. She was quite rightly, in the state of the then existing law—because in the state of the then existing law you were not allowed to know the case for the prosecution, except for the bare allegation—advised by her advisers to go for trial by jury, which of course she had the right to do. I believe that she would have had exactly the same result had she been tried by magistrates, but with this rather considerable difference. The publicity which the delay and the double hearing of committal and trial by jury attracted so affected her that she took her own life. I am quite sure that she would be alive today if the amendment proposed by my noble friend had been the law.
I think that there are very strong arguments on both sides. I took the point—and if he will allow me to say so it was very well made—of the noble Lord, Lord Mishcon. The habitual offender who habitually steals on a small scale is far worse than the person who steals once and rather a lot. My own view, for what it is worth, is that it should rest with the magistrates' court and not simply with the defendant to say whether a case ought to be tried by jury or whether it could be dealt with adequately by magistrates. There are of course cases of very small thefts which raise rather interesting and complicated points of law; and this is a point which has not, I think, hitherto been raised in this debate. I think that they should go to the Crown Court, because a good question of law on a case of theft is rather worth discussing between lawyers, even with legal aid, though it is rather expensive.
But simply as a matter of principle, I must say that having viewed the point more than once in the past 17 years I would side with my noble friend Lord Elton. However, I am not absolutely sure that the way to do it is to reduce the penalty and limit it to a relatively modest fine and not leave it to the discretion of the court to consider whether the seriousness of the facts demands the time, expense, anxiety and delay involved in a jury trial, and whether the case cannot best be dealt with in the magistrates' court, subject of course to the right of appeal by way of rehearing if the defendant feels that he is aggrieved by conviction.
4 p.m.
Baroness Phillips: My Lords, I should like to follow the noble and learned Lord and support the amendment, in so far as it should be right to have summary trial rather than the expensive and long drawn-out procedure of going to a higher court. The only thing that concerns me, as with the noble and learned Lord, is whether you should have a fixed penalty.
As your Lordships know, I work in the field of crime prevention and I can assure the noble Lady that the one-off person who actually makes a mistake is not the person we are dealing with in the courts. It is a group of persons who set out deliberately to steal vast sums of money, which does not cost the shops the money; it costs us, the honest customers. The price is put up because of the losses. So the idea that the shop has to bear the loss is quite ridiculous.
I think that a real villain will work out whether it is worth having a go to steal something worth £75 or over, if he is going to be caught and then fined only a certain amount. It is rather like putting your money on the pools. You make a balanced judgment. So I think that there is great merit in the new clause, but we have to be careful of the fixed penalty.
I feel very often that barristers, counsel, suggest to their client "If you go before a jury you will get off—. I think that is one of the reasons for what happens. Of course they will all deny it, and naturally any Members of your Lordships' House who have to declare an interest will deny it. But to me there is little doubt that there is a good case for saving the time of the higher court in the case of offences which can be dealt with easily and sharply. The only qualification I have is about the question of the penalty.
Lord Hutchinson of Lullington: My Lords, before the noble Baroness sits down, would she agree that the advice a barrister gives to his client on the question of going to trial may depend very much on who is sitting on the Bench?
Baroness Phillips: My Lords, I think that rather makes it worse. I remember that when I was sitting as a magistrate the street traders had got it weighed up. When they came into court in Great Marlborough Street and saw three women—and we were sensible judges—they would pass the bush telegraph out to the others saying "We have got three women in there today. Who is coming up next week?" The answer would be "Oh, so-and-so", to which the reply was "Oh, he is very easy meat". Your Lordships must know that people have their own assessments. Thieves and villains are not idiots. They are only idiots when they are caught.
Lord Boyd-Carpenter: My Lords, my noble friend Lord Elton, when he moved his amendment quite a time ago, referred to a point which I had made when we discussed a similar if not identical amendment on the Committee stage. That relates to the fact that under his amendment as it now stands, and as the amendment stood at the Committee stage, in no circumstances can a sentence of imprisonment be imposed—if this becomes law—in respect of any theft of less than £75.
304
Your Lordships have discussed the matter rather on the basis of one single offence, and you may well think that it is not necessary to consider imprisonment in respect of one such offence. But what is to happen in one of the two following cases, one of which I mentioned on the Committee stage? Suppose that a pickpocket—that is the type of person who commits this kind of offence—robs in the course of a lucrative evening eight or 10 people of money, watches or anything else worth about £60 each. As I understand the amendment, those would be separate charges and in respect of none of them could the person concerned be sent to prison, because he would not have committed any one offence in respect of theft worth more than £75.
The other example is the case of the persistent offender when it is the second, third, fifth, fifteenth, twentieth or thirtieth offence of this kind with which he is charged. There are petty thieves, particularly of the pickpocket type, who, it would seem to me at any rate, should in many cases be sent to prison for a substantial term. They will not be discouraged by a fine. If they are making quite a good living out of minor thefts, even if they are fined quite substantially, they will regard the fine perhaps as nothing more than the tax paid on their earnings. At the present rates of taxation on high earnings, the fine would probably amount to less than the income tax on somebody's high salary.
This amendment is surely incomplete as it stands. I understood my noble friend to admit that when he said that he had hoped that Her Majesty's Government would put down a further amendment to deal with these points. He rightly drew attention to the fact that Her Majesty's Government have not done so. That presents your Lordships with a simple question. Are we prepared to say that, however many thefts are committed either at the same time or in succession in respect of items worth less than £75, the person concerned cannot be sent to prison? If your Lordships do so decide we shall see a substantial increase in the very large contemporary volume of petty thefts. For that reason if the matter stands as it now stands I should feel bound to vote against the amendment of my noble friend.
Lord Paget of Northampton: My Lords, most of us would agree with what the noble Lord, Lord Boyd-Carpenter, said, but it is not on the point of this amendment. The amendment concerns how somebody should be tried. If the effect of that trial means that certain sentences which are passed would be inadequate, it is for the Government to put that right.
Lord Boyd-Carpenter: My Lords, if the noble Lord will look at the amendment he will see that it prescribes that the only penalty for conviction for such an offence will be a fine.
Lord Paget of Northampton: My Lords, if that is so I have not entirely followed the amendment. I am sure that the noble Lord would correct it. On the principle of the thing, I find myself on the noble Lord's side. I was very much involved in the tragic case of Lady Barnett. I was a close neighbour of hers

305
and I knew her very well. She was a beautiful woman, and most intelligent and charming. She did a great deal of public service. She had a charming husband, but a defective son, to whom most of her life was devoted.
When this awful thing was hanging over her one of the people who was loyal to her throughout. and whom I admired enormously for it, was the first wife of the noble Lord, Lord Elton. She was a very loyal friend to Lady Barnett. I feel equally with the noble Lord, Lord Boyd-Carpenter, that if there had not been the hanging about that is involved in a jury trial. Lady Barnett might have got over her difficulty.
On the question of the advantage of a jury trial, I agree that it very rarely affects the result. The result is normally what the judge wants, directs and leaves. But a jury trial has, if I may say so, the effect of enormously improving the behaviour of a judge. Judges without jury are often quite intolerable. They have nobody to play to. It can be a penance to have to conduct a case in front of a judge in those circumstances. If there is a jury, they play to a jury and they are apt to behave themselves.
I put it in that way. But as regards these very small cases the whole emotional build-up to the trial is a weight which I do not think should be put on people who are charged with trivial offences. Of course the pickpocket and the perpetual offender should he liable to a proper penalty but that can be adjusted.
4.15 p.m.
Lord Harris of Greenwich: My Lords, a few minutes ago the noble and learned Lord, Lord Hailsham of Saint Marylebone, referred to the debate that we had in this House 10 years ago on exactly this question. I then, as he rightly said. defended a Bill which contained a proposition of this kind. It was not a question of an amendment being moved but of its being a proposal of the then government. Like the noble and learned Lord, Lord Hailsham, I apologise to the noble and learned Lord who is not able to be with us today, but it is an open secret that the Lord Chancellor's Department at that time was far more enthusiastic about the proposition than was the Home Office.
When this matter came to this House it did so in the context not only of severe criticism of the then government because of the proposal—the figure was then £20 rather than £75—but it met with a storm of criticism in this House. That criticism was led by the late Lord Morris of Borth-y-Gest and the noble Viscount, Lord Dilhorne. I think it is right, in view of the fact that two noble and learned Lords have spoken in favour of this amendment, to remind the House, particularly those Members who were present, what Lord Morris of Borth-y-Gest said, because it comes to the central issue of principle which we are discussing this afternoon.
I quote from Col. 672 of the Official Report of 27th January 1977. The noble and learned Lord was moving an amendment at that time to exclude the particular provision from the Bill. He said:
"Take the case of a man charged with stealing a £5 note. Supposing he says, 'I am entirely innocent, and I want this matter investigated in the way in which it has always been possible for someone placed as I am to have it investigated'. He may say, 'I can well understand
306
that there were circumstances which caused some people to take a mistaken view. I can well understand how it comes about that I was charged, but I am absolutely innocent, and I want to run no risk whatsoever. I want to have this case fully investigated. I want to have the case for the prosecution developed so that I know fully what it is. If I go for trial I will have a professional judge, and there will he 12 of my countrymen who will be deciding whether I am guilty or not. I am convinced that they will, without doubt, say that I am innocent'".
That was what the noble and learned Lord said on that occasion. I am bound to say that I found that and the rest of his speech almost entirely persuasive, and for rather different reasons, as the noble and learned Lord, Lord Hailsham, will recall, did the then Lord Chancellor. He eventually accepted the amendment and it was as a result of that excluded from the Bill.
I remember the briefing I had then from the Home Office on this issue. The research indicates that it does not make an enormous amount of difference whether a trial is held at a magistrates' court or at a Crown Court. because the percentage acquittal rates are remarkably similar. But that is not the central issue. If I may say so, the central issue is the one which the noble Baroness raised half an hour or more ago in relation to a shoplifting charge.
On the rare occasions that I have sat in court and heard cases of that kind being argued I have often found the issue to be extremely evenly balanced. What was the motive of the woman who it is alleged stole some groceries? I think that if that woman feels that her whole reputation is at stake—that is what we are discussing, a blameless reputation—she is entitled to a jury trial if she wants one. She may be mistaken, but in my view she should have the absolute right to insist on a jury trial. It would be a profound error were we to pass this amendment. We should become involved in some absurd discussion regarding the price of the goods involved, whether they amounted to £74 or £76. That is especially so when, as the noble Lord, Lord Boyd-Carpenter, pointed out, there are other implications in the amendment, particularly in relation to the penalties which can be exacted.
I return to the central issue. If a man or woman believes that his or her entire reputation is involved, it would be wholly wrong for us to prevent them facing trial at the court of their choice.
Lord Campbell of Alloway: My Lords, I opposed this amendment, in a slightly different form, in Committee. The amendment has the support of three of the noble and learned Lords on the Cross Benches and of my noble and learned friend Lord Hailsham, and therefore one has to approach the reasoned justification for the amendment with some care. The whole argument in justification, which I propose to suggest is entirely flawed, warrants the most serious and careful attention.
In opposing the amendment, I have much in mind the mild reproof so aptly delivered by the noble and learned Lord, Lord Lane, in Committee, that we should not indulge in "any sort of histrionics". I accept that emotive content ill serves any process of reasoning, and that we must approach this subject, for there are two points of view, on the basis of reasoning and nothing else.

307
I agree with my noble and learned friend Lord Hailsham that the examples given by the noble Lady, Lady Saltoun, would, if she were charged, have resulted in an acquittal in any form of trial. But that, perhaps, is beside the main point of the discussion. This is a matter upon which I feel deeply, but I shall keep my personal feelings out of it. To shorten the matter, I wish to support, for the sake of the record, everything that has been so ably said by the noble Lords, Lord Mishcon and Lord Wigoder, and to accept their process of reasoning which was moderate and closely put together.
What is the justification? In effect, on analysis, there are three heads, the first of which is to relieve overcrowding in prisons. But other means are available, and it would assuredly be possible to limit first convictions for these offences, where the value is under £75, to a fine, even if convicted on indictment before a jury. Therefore, the logic of that argument, I submit, is flawed, and the logic of each head of argument for justification is flawed.
In any event, the amendment is not apt to deal—and this is the crucial point on this form of drafting, taken first by my noble friend Lord Boyd?Carpenter—with a series of similar charges or with the persistent offender when a sentence of imprisonment, albeit suspended, is the only appropriate sentence.
The second justification is to relieve the congestion in Crown Courts. Other means must be found which do not dilute the quality of justice.
The third and last head is the saving in public expenditure in the context of jury trials, which the noble and learned Lord, Lord Lane, tells us cost some £4,000 a day. The noble and learned Lord said:
"On any rational basis, sentiment apart, trial by the justices, with no option for jury trial … seemed to be the obvious answer",—[Official Report, 26/10/87; col. 373.]
but surely if and only if costs are the predominant concern. Again, I respectfully submit that the argument is flawed because in this matter cost should never be the predominant concern. It is understandable if one takes the standpoint that cost is the predominant concern, as the noble and learned Lord did when he referred to jury trial as a luxury. But I do not, with respect, take that standpoint. It is for that reason that I suggest that the argument is flawed. If it is a luxury where the value of the goods stolen is £100, I suppose that it is no doubt an extravagant luxury to have a jury trial where the value of the goods stolen is £75.
In Committee, the noble and learned Lord, Lord Lane, referred to stealing milk bottles and shoplifting a tin of beans. But the value of such matters is no more than £1 or so, and the amendment goes far wide of any such minimal mark. There is no proposal before your Lordships in this amendment, or in any other, to limit the value to, say, £5—a few milk bottles or a tin of beans—or to establish some sort of petty pilfering offence triable by magistrates. That proposal is not before your Lordships and it is not involved in this amendment. Therefore, the reference made by the noble and learned Lord was quite beside the effective mark.
308
I suggest that the rational objection to the amendment rests upon some simple propositions. First, the essence of this offence is dishonest intent in circumstances where a conviction can not only change a man's life but alter his whole way of living and adversely affect his means of livelihood with grave social and other consequences.
Secondly, objection is taken because if it is right, and it is assuredly right, that the essential factor is dishonest intent, must it not inevitably be wrong in principle in such circumstances to treat the value of goods stolen as a determining factor to exclude trial by jury?
I am interested to know the answer when my noble friend replies to each of those objections, which I hope are reasoned objections, and which are not put forward in any emotive vein.
The third simple proposition is that trial by a stipendiary (a single professional) or by a Bench of magistrates on an issue of dishonest intent affords no substitute, in the eyes of the accused, for the safeguards of the composite wisdom of a jury. Other points have been made respectively by the noble Lord, Lord Wigoder, and the noble Lord, Lord Mishcon. They stand on their record. They are valid points and require no repetition.
The last objection to the amendment is that the incidence of the exclusion is arbitrary, haphazard and wholly unacceptable. It is wholly unacceptable that an absent-minded professor who walks out of a bookshop forgetting to pay for a book to the value of £74 has no trial by jury; and if the value is £80 has a trial by jury. In those circumstances, if value is to be the crucial issue determining whether there will be a jury trial, then on the border-line cases one will be driven to a preliminary trial on the issue of value—how absurd, what a waste of time, how arbitrary, how unsatisfactory.
For these reasons, which I hope are sufficiently reasoned for your Lordships, I hope that the House will not accept the amendment.
4.30 p.m.
Lord Donaldson of Kingsbridge: My Lords, in my opinion, the debate has gone on much too long as lawyers' debates tend to do.
As the noble Lord, Lord Campbell of Alloway, said, the noble and learned Lord, Lord Lane, the Lord Chief Justice, described juries as a luxury. They may he. What is real luxury is prison. We cannot afford to send petty offenders to prison on the scale that we do. I have been working all my life to try to stop this—the situation has become steadily worse with crimes getting pettier and pettier and sentences more and more frequent. Therefore, I could not support my noble colleagues by voting against the amendment. The amendment is not correct in my view and needs a good deal of handling, but I shall certainly not vote against it.
The Earl of Caithness: My Lords, when my noble friend Lord Elton raised this matter on Second Reading and in Committee I thought it right to approach it with an open mind. During the Committee debate and again this afternoon powerful arguments have been made in support of my noble

309
friend's amendment and equally powerful ones against it. I do not need to weary your Lordships now by repeating what other noble Lords have already expressed most persuasively. But I have taken very careful note of what has been said.
I sense that there is considerable agreement that by and large minor cases of theft can and perhaps should be tried in the magistrates' court. My noble friend Lord Elton and other noble Lords have drawn attention to the sizeable reduction in Crown Court business and, to a lesser extent, the prison population, which would be effected by the amendment. Other noble Lords, including the noble Lord, Lord Wigoder, have rightly pointed out that there would be a corresponding increase in the workload of the magistrates. I sense that there is somewhat less widespread agreement about whether a tine of £1,000 is the right maximum penalty. Some noble Lords, including my noble friend Lord Boyd-Carpenter, have argued that while this may be adequate for first-time offenders more severe measures are required for persistent offenders and especially the "professional" petty thieves.
My noble friend Lord Elton said that his case was absolutely indisputable
"if all other things were equal".
But of course not everything else is equal in this world.
Where I detect a profound difference of view is in the issue of principle which lies at the heart of the matter: the availability of jury trial for those charged with offences of dishonesty. Many noble Lords have argued—and opinion has certainly not split along party lines—that it would be wrong to remove jury trial from an offence which society views with such seriousness and which carries with it a special stigma; a conviction for theft, albeit a minor theft, is sufficient to destroy a person's good reputation. I should say that I should not myself defend this view with quite the passion which has been elicited by, in particular, the noble Lord, Lord Mishcon, and my noble friend Lord Campbell of Alloway. I think it is right to acknowledge that many offences are entrusted to the magistrates to try, including some which can have a damaging effect on a person's career or reputation. But I am bound to recognise the force with which noble Lords from different Benches in your Lordships' House have opposed the amendment on the deeply and sincerely held belief that it is wrong in principle.
I answer now the question of my noble friend Lord Elton about legal aid savings. We estimate that if 10,000 petty theft cases were transferred from the Crown Court to the magistrates' court, the reduction in legal aid expenditure on those cases would be of the order of £2·8 million. Whether such savings would materialise in any particular year is dependent on whether other cases are brought on earlier.
My noble friend Lord Elton has done the House a great service by raising this most important and difficult matter in a way that has enabled it to be thoroughly analysed and explored in debate. I believe that the issues are finely balanced. I am bound to say, however, that the very strong doubts that noble Lords have expressed and the absence of general agreement on the principle underlying the
310
amendment make me doubt whether it would be wise to add such a provision to the Bill at this stage in its progress. In the clauses that we have earlier agreed, we shall be providing some much needed relief for the Crown Courts. I should prefer to leave it at that. Much though I sympathise with my noble friend's motives in bringing forward this proposal, I therefore hope he will not press it to a vote; and, if he does so, I fear that I could not advise your Lordships to amend the Bill as he proposes.
Lord Elton: My Lords, I am deeply grateful to those noble Lords who have supported the amendment. I am almost equally grateful to those noble Lords who have resisted it, thus bringing into the open the forces that I have to overcome. It is always easier to defend an enemy that one sees.
The noble Lord, Lord Harris of Greenwich, put me in a new position. Members of another place have often been quoted to me but never members of still another place, as the late Lord Morris of Borth-y-Gest now sadly is.
My noble friend Lord Campbell of Alloway—I shall speak only briefly to his speech—said that in making imprisonment available on subsequent offences but not on the first offence we should relieve the pressure on the prisons. Relief of pressure on the prisons will come not from a change in sentence for the offence; but as a result of relief of the load on the Crown Court that will come from converting the offence into a summary offence.
The noble Lord, Lord Wigoder, reminded your Lordships that magistrates too are very busy. It is difficult to give an exact comparison of statistics with those that I have given for the Crown Court. If your Lordships refer to Issue No. 33 of the Statistical Bulletin published this year by the Home Office. they will see in table I that the average time from charge to completion on an indictable offence is 74 days, on a summary non-motoring offence, 54 days, on a summary motoring offence, 71 days and on all offences, 68 days, compared with 98 days in the Crown Court.
A number of your Lordships said that to be charged with this offence is the worst possible slur on a person's character and that magistrates are not up to taking a decision on such matters. In fact, magistrates take a decision whether or not to send someone to prison for six months under the Rehabilitation of Offenders Act and I do not doubt that they do so in other respects. These are relatively minor considerations.
My noble and learned friend Lord Hailsham said that sooner or later we shall have to grasp this nettle. He is doubtful whether we shall seize it in this form. I said at the Committee stage, and I repeated it in my introduction, that I believed that there was room for improvement in this amendment because it did not tackle the question of cumulative offences nor did it tackle the question of the aggregation of values in individual offences tried together. I asked about that at the beginning of this debate. I had hoped that the Government would give us a line on this matter, but they have not. Therefore this is something which I shall have to take on board myself and I cannot do it at this stage.

311
I shall consider coming back to your Lordships at Third Reading, making these provisions and collecting several of my noble friends and the noble Lord, Lord Paget, on the way. I repeat that justice delayed is justice denied. Magistrates' courts deliver justice. When I return, if I do, at Third Reading I shall have no hesitation in running up the flag that the noble Lord, Lord Mishcon, ran up so often in engagements with me in the past by reminding the people sitting behind him, when he makes his points again, that this is not a party political issue and that they should vote according to their views.
Lord Mishcon: My Lords, before the noble Lord sits down, will he kindly remind me of any sentence that I uttered which made this a party issue? Does he remember that the noble Baroness, Lady Phillips, rose in the course of this debate and very resolutely, as is her way, opposed everything that I had said?
Lord Elton: My Lords, reversing the words of the noble Baroness makes it better. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

King's Cross Station: Fire
4.41 p.m.
Lord Brabazon of Tara: My Lords, with the leave of the House, I shall now repeat a Statement which has been made in another place by my right honourable friend the Secretary of State for Transport about the fire at King's Cross Station last night. The Statement is as follows:
"At about 7.40 p.m. last night a fire broke out at King's Cross Underground Station on an escalator connecting the underground ticket hall to the Piccadilly Line platforms. Thirty people have lost their lives as a result of the fire. There has been extensive damage to the station ticket hall.
"The injured have been taken to St. Bartholomew's Hospital, University College Hospital, Queen Mary's Hospital, Roehampton, and the Whittington Hospital. Ten people are still detained.
"I am sure the whole House would wish to join me in expressing our deepest sympathy to the families of those who have died and to those who have been injured.
"I should like to pay tribute to all those involved in the rescue operations, especially the fire service, one of whose members lost his life in the fire, the Metropolitan and the British Transport Police, one of whose officers is seriously injured; and to the ambulance service, the hospitals involved and the staff of the London Underground. They all worked with the utmost bravery in apalling conditions to deal with the casualties and with the large numbers of members of the public who were trapped underground by the smoke and flames. Without their dedication, the numbers of casualties would undoubtedly have been even greater.
"I have decided that a formal investigation should be held into the disaster, conducted under the provisions of the Railway Acts. The evidence will be heard in public. I hope to be able to announce very shortly, after discussion with my right honourable and learned friend the Lord Chancellor, the name of a senior lawyer to head the inquiry. The inquiry will be assisted by a member of the department's railway inspectorate and by an expert in fires and fire prevention. The detailed arrangements for the inquiry will be announced as soon as possible. It will be for the inquiry to establish the causes of the disaster and to make recommendations to ensure that all possible lessons are learnt. Its report will be published.
"London Regional Transport, in collaboration with the police and fire services, is already examining the causes of the accident and its findings will be made available to me and to the formal investigation.
"I understand from London Regional Transport that the Metropolitan and Circle lines through King's Cross are operating normally. Services on the Victoria, Piccadilly and Northern lines were suspended this morning but LRT hopes that they will be resumed later today, although initially trains will not stop at King's Cross station. It is too early to say when normal services will be resumed.
"Every year the London Underground carries over 750 million passengers. I deeply regret that its generally fine record of safety has been marred by this accident. I am sure the thoughts of all honourable Members of this House are with the injured, their families and those who have been bereaved".
My Lords, that concludes the Statement.
Lord Underhill: My Lords, the whole House will be grateful to the Minister for repeating this Statement given by the Secretary of State. Although little of practical value can be said at this stage, it provides an opportunity for the whole House to join with the Secretary of State and the Government in expressing sympathy to the families of the 30 persons who have died and to the many who are injured, some of them critically.
It also provides an opportunity for every noble Lord to join in the tribute which has been rightly paid to all members of the emergency services which were listed in the Statement. It refers to their dedication. This is instanced by the fact that one member of the fire service has lost his life and a member of the police service has been critically injured. I was very impressed, as I am certain were other Members of the House, by the report made during the radio news this morning that all grades of members of the hospital services returned to duty without being recalled to their respective posts.
I am very pleased that there is to be a formal investigation in public and that it will not only establish the causes of the disaster but will also make recommendations. I am also pleased to note that the full report will be published. This will be a vital inquiry. I hope that not only will the causes be looked

313
into but that there will also be investigation into structural factors which may be involved.
I share the tribute paid to the London Transport staff. I hope the investigation will look into the kind of training which is given to the London Transport staff, because they are always the first people who have to be on site when a tragedy of this nature occurs.
The Statement also refers to the excellent record of the London Transport Underground service, and I am sure we all share that view. It also refers to the way in which various sections of the management have endeavoured to return services to as near normal as possible. I am grateful for the Statement and I share in both the tributes and the expressions of grief.
Lord Tordoff: My Lords, from these Benches I also thank the Minister for repeating the Statement. The whole House and the nation will have felt a deep shock at the tragedy which struck last night to people going innocently about their purposes through the mundane job of simply getting home from the office or going for a night out. It is terrible to think that people left their homes and families yesterday morning and that a number of them simply did not return. It is also tragic that a number of them did return but will never be the same again because of the awful injuries they sustained.
Not unnaturally, there is a sense of rage at the casual nature of this tragedy and a sense of impotence that we are unable to do very much about it today. There is a great danger in these circumstances of making instant comments and of coming to instant judgments. There has been a lot of wild speculation in the newspapers. I do not think the press has acquitted itself particularly well today.
We would all like to ask questions; we would like to know something about the adequacy of staffing levels and of training; we would like to know some of the reasons for the rapid transfer of the fire to other parts of the system and about the flammability of some of the materials. These are questions which will be put to the inquiry and will be dealt with by it.
The Government are to be congratulated on the speed with which they called this inquiry into being, on the fact that evidence is to be taken in public and also on the fact that the results of the inquiry will be made public.
I also join in the admiration which has been expressed for the fire, police and ambulance services and the Underground staff. There were undoubtedly many examples of great heroism shown last night. It is something of which those services can be proud. The nation mourns those people who have died. We want the inquiry to find out whether there was any real reason for this tragedy or whether it was a random lightning strike. We all wish to make sure that nothing like this ever happens again. We thank the Minister for his Statement.
Lord Brabazon of Tara: My Lords, I am most grateful to both noble Lords for their reception of the Statement. I join in the tribute to the marvellous
314
work done by the emergency services last night and I am sure that all noble Lords would wish to do that.
The inquiry will be a thorough one. It is required under the Act to investigate the cause of the accident and all the circumstances attending it and to report on these and any other relevant matters. Of course that will include any recommendations designed to prevent a recurrence. I confirm to the noble Lord, Lord Underhill, that that will include the adequacy of training of LRT staff.
With regard to speculation in the press, I agree with the noble Lord, Lord Tordoff. I am not going to speculate about what might have been the cause of the accident; that will be for the preliminary inquiry of the LRT, the fire services and the police themselves, which will then report to the main inquiry. However, if anything is found which needs urgent attention, I give an assurance that urgent attention will be given to it without waiting for the inquiry to report.

Criminal Justice Bill [H.L.]
4.50 p.m.
Consideration of amendments on Report resumed.
Clause 39 [Amendments relating to committal for sentence]:
The Earl of Caithness The Earl of Caithness moved Amendment No. 41:
Page 27, line 4. leave out subsection (4)
The noble Earl said: My Lords, Amendment No. 41 is consequential to the amendments made in Committee to bring about the introduction of a unified custodial sentence of young offenders. I beg to move.
On Question, amendment agreed to.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 42:
Before Clause 41, insert the following new clause:
("Life imprisonment maximum sentence for murder.
. In section 1(1) of the Murder (Abolition of Death Penalty) Act 1965, for the word "sentenced" there shall be substituted the word "liable".")
The noble Lord said: My Lords, I put my name to this amendment but I was not expecting to speak first on it. However, perhaps I may do so by reference briefly to what I said in Committee.
In many cases in the crime of murder it is quite clear that the offence was not premeditated and that the offender has never offended before and is most unlikely to offend again. Then there are cases of manslaughter, or in Scotland culpable homicide, which become such because of the diminished responsibility rule. Those offenders are far more dangerous to the public than those who may be tried for a murder which involves a family situation. In the dangerous diminished responsibility case, the judge is expected to impose a sentence which can be infinitely variable up to life. For murder, although there may be all sorts of extenuating circumstances, the penalty must be life. That is an inappropriate sentence for certain types of murder and it devalues the life sentence, which should be kept for very serious types of offences.
This amendment alters the Murder (Abolition of Death Penalty) Act. If it commends itself to your Lordships it will be necessary to keep Scotland in line and to make a consequential amendment to the Criminal Procedure (Scotland) Act, but that can be done at a later stage in the Bill. In that short way, I commend this amendment to the House. I beg to move.
Lord Hutchinson of Lullington: My Lords, I must apologise to your Lordships for my delay in speaking to this amendment but I was held up outside the Chamber. Perhaps I may say a few words about it because I moved it in Committee.
I begin, in deference to the noble and learned Lord the Lord Chancellor, by quoting a few words from the noble and learned Lord, Lord Kilbrandon, in the case of Hyam. I do not know whether this has already been quoted. He said:
"It is no longer true, if it ever was true, that murder is necessarily the most heinous example of unlawful homicide".
The majority of murders are committed within the family environment, usually by persons of hitherto good character and often in situations of great deprivation or overwhelming stress. Those cases in no way merit a life sentence and such persons tend to be released at an early stage in their sentence, often giving rise to ill-informed public disquiet and a disruptive sense of injustice within prisons. Surely a sentence should always reflect the incidence of the offence.
Another matter which arises is that artificial ways round a mandatory sentence have grown up and have created a happy hunting ground for criminal lawyers on the scent of doctrines of provocation, self-defence and diminished responsibility in order to reduce such charges to manslaughter. The law is constantly bent, as I am sure the noble and learned Lord the Lord Chancellor well knows, often with the blessing of the judge, the lawyers and the medical witnesses to see that proper justice is done in a case where all concerned are anxious that a verdict of murder should not be registered in that case.
I suggest that this is undesirable and dilutes the deterrent effect of the ultimate sentence. It also puts one type of offender into an impossible dilemma. He who denies the act of killing itself therefore cannot set up a defence of diminished responsibility if in fact he is a person who is in some way mentally affected. If he is convicted, nonetheless, he cannot then receive a psychiatric disposal.
The time served by a life prisoner for murder will at present vary greatly, many being released on licence long before those serving life for more serious offences such as rape, arson or robbery. Many judges on the Bench would strongly welcome an unfettered discretion to sentence appropriately in cases of murder and to be spared the unpleasant and often apparently cruel task of imposing a life sentence on someone who will in fact be released in only a few months.
I am sure that the speech of the noble Lord, Lord Windlesham, made in Committee has already been referred to, but he and a number of his noble friends
316
took the view that this amendment showed a disappointing reluctance to go further and abolish entirely the distinction between manslaughter and murder, having but one offence of unlawful killing. I assure the noble Lord that we are not timid but rather judicious; and surely with this amendment the Government would have no excuse to defer a decision on the grounds that the Law Commission or some other galaxy of lawyers would settle down to gnaw away at this bone for the next two or three years.
In Committee we heard many of those favourite phrases from the Minister, reading his official brief, about "leaps in the dark", "radical upheavals" and "risky courses". I would suggest that none of those is appropriate for this amendment as it stands. If the House accepts this amendment (as I hope it will) it might well be desirable to introduce at a later stage a ceiling on the determinate sentence of, say, 25 years, reserving a life sentence for offences deserving of a penalty in excess of that maximum.
Equally, I would suggest that it might well be wise to implement the suggestion of the all-Party penal affairs group with the introduction also of a reviewable sentence, as recommended by the Butler Committee, for dangerous offenders with a history of mental disorder who do not qualify for compulsory hospitalisation. Those people are at the moment given what is often called a merciful life sentence on the basis that they will be let out when the authorities think it wise to do so. That again perhaps is not a very appropriate way of dealing with them.
The amendment clearly follows a recommendation by the Butler Committee, the advisory council, a substantial minority of the Criminal Law Revision Committee, and most recently the all-Party penal affairs group. I have great pleasure in supporting it.
5 p.m.
Lord Campbell of Alloway: My Lords, perhaps I may briefly record support for the principle of the amendment on the basis of the reasoning that has been advanced without repeating my support for it at Committee stage (at cols. 424 and 425) of Hansard.
Lord Denning: My Lords, I oppose the amendment. Murder is still murder, and the judge who has to decide the sentence for it has a most difficult task. Is it not right—as when it was a capital offence. so now—that the sentence should be declared by the law? The present word is "sentenced", and it should remain.
Lord Windlesham: My Lords, as the noble Lord, Lord Hutchinson of Lullington, has said, I spoke at Committee stage in support of the proposal that life imprisonment should become the maximum rather than the mandatory sentence for murder. I therefore support this amendment.
I do not want to repeat what I said then. What I intend to do today, which I hope will be of some assistance to the House, is to outline in some detail the case for making changes in the way that life sentences are administered. But I think the better place to do that is on the next amendment, Amendment No. 43. In the meantime, I would simply

317
say that this amendment is desirable. As the noble Lord, Lord Hutchinson of Lullington, pointed out, it falls short of the more radical approach towards a reform of the law of homicide, but it is certainly a substantial improvement on the present situation and should be supported for that reason.
Lord Ackner: My Lords, while I have a lot of sympathy with the amendment, it raises only one small part of a very much larger problem. The problem is being dealt with piecemeal, whereas it needs to be dealt with in its entirety. In saying that I refer to the offence of murder.
The present law of murder is in a most perplexing position. The noble Lord, Lord Hutchinson, mentioned R v. Hyam, a case decided some 17 years ago. It has a nostalgic flavour because I was the judge who gave the direction which has given rise to a fair amount of dispute over those 17 years. The problem arises because one part of the ingredient of murder, is not only an intention to kill but an intention to do grievous bodily harm. The case of Hyam was a dramatic case. A discarded mistress, anxious to scare away the woman who had taken her place, poured petrol through the letterbox then put a newspaper through the letterbox, using that as a means of igniting the petrol by setting fire to the newspaper. Her alleged intention was merely to scare away the rival. She drove away having made sure that the house was on tire. The net result was that the rival escaped with one son unharmed. Two children were burned in the fire.
The direction that I gave was that if the defendant knew it was highly probable that she would cause grievous bodily harm to anyone in the house that was sufficient, and the jury convicted by 11 to one.
That was supported in the Court of Appeal and by a majority of three (query four) in the House of Lords. Very recently there was the case of Maloney in 1985. This was an odd case in which a stepfather challenged his stepson after they had been drinking too much to a contest as to who could load and fire a gun first. In obiter dicta in your Lordships' House—it was not necessary for the decision—it was indicated that Hyam had confused intention with foresight. That approach was followed by your Lordships' House in Hancock, a case which noble Lords will remember occurred during the miners' strike when two lumps of concrete were thrown over a bridge. Very recently there was the case of Nedrick (which was a male Hyam) who put paraffin through the letterbox, and then set fire to it resulting in the death of the woman with whom he said he merely wished to level a score. He was convicted of murder, but on appeal manslaughter was substituted.
The law is in an unsatisfactory position. It needs to be reconsidered. As I think my noble and learned friend the Lord Chancellor knows, it was the subject-matter of a very impressive paper given by my noble and learned friend Lord Goff of Chieveley in a lecture in Israel which is about to be reproduced in the Law Quarterly Review. This underlines how necessary it is to consider introducing the words "wickedly reckless" which are used in Scotland and taking out of our law the intention to do grievous bodily harm.
318
I would submit to your Lordships' House that until the offence of murder has been properly considered, to tinker with the mandatory sentence now on the basis that the law is unsatisfactory as it stands because under the cloak of murder so many types of activity are comprised, is a premature activity which should not be undertaken. If the matter is left, it may stimulate what I hope will occur, and that is very necessary: that the Law Commission undertake a review of this offence as soon as possible.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, the Criminal Law Revision Committee, in considering the topic that is the subject-matter of this amendment, said:
"Indeed it is uncertain what sentencing pattern the change would produce".
That is that this particular change would produce.
"we, the majority, think that the adoption of such a course would be a leap in the dark which ought not to be taken especially in the present situation with regard to crimes of violence generally".
I think this shows that, although my noble friend Lord Caithness was accused by the noble Lord, Lord Hutchinson of Lullington, of reading the phrase from the official brief, the truth is that it was not quite as original as that. It had already been used by the Criminal Law Revision Committee, and used carefully, and in the light of a very careful consideration of the difficult problem which this amendment raises.
However cautioned against reading too much from the official brief, I just summarise the position as I should like to put it before your Lordships. One has to remember the history of the matter. As I listened to the debate being opened, I could not help remembering the opening words of the speech of Dean of Faculty Inglis defending Madeline Smith in July, 1857. Your Lordships will remember that he began by saying:
"Gentlemen of the Jury, the charge against the prisoner is murder. and the punishment of murder is death: and that simple statement is sufficient to suggest to us the awful solemnity of the occasion which brings you and me face to face".
I believe that although that was quite a long time ago, the crime of murder is still a crime which has a very special place in the attention of our people. I accept that the circumstances in which people are convicted of murder may vary greatly from occasion to occasion. That point has been well taken by a number of your Lordships. Certain defences have been open: the defence of self-defence—not in order to bring the charge to one of manslaughter but, if successful, to acquittal altogether—and certain defences such as diminished responsibility, which have the effect of reducing the charge to manslaughter.
My noble and learned friend Lord Ackner has pointed out the difficulty which now surrounds the definition of the charge of murder. That difficulty is reflected when one looks at the various circumstances in which people may be convicted of murder. I have had the privilege of seeing both in draft and in its finished product the very interesting and thought-provoking lecture which my noble and learned friend Lord Goff of Chieveley delivered as the Lionel Cohen lecture in the Hewbrew University of Jerusalem in May this year. In my opinion that lecture makes a

319
very important contribution in relation to the development of the law in this area.
I think that simply to introduce this change without doing more would put a tremendous responsibility on our judges. It would do so without any guidance whatever as to how the public regard the various levels of murder that might occur. It would widely be seen as a weakening of the law in relation to crimes of violence at a time when crimes of violence are certainly not on the decrease.
Since the debate in Committee, my right honourable friend the Secretary of State and some others of us have been giving very careful consideration to this subject. There is no doubt that it is an extremely difficult subject and one upon which there are many different and reasonable opinions, and some of them have been manifested in your Lordships' House this afternoon. This being a lawyers debate—having regard to what was said about lawyers—I shall be brief, so I shall not attempt to summarise all the different views that exist. There is no doubt that there are a number of different views, all eminently respectable and held by people with different experience and different authority in this field. All these views merit consideration and I believe they merit very close consideration before any substantial change is made in this area of the law.
The Criminal Justice Bill is a very extensive measure which already contains a good deal of controversial matter as your Lordships' debates at Second Reading, in Committee and on Report show. I venture to suggest that it would not give this subject the prominence that it deserves to attempt to deal with it by way of an amendment now, particularly in the absence of any real consensus developed upon this difficult question. Although I thoroughly understand the arguments put in favour of the amendment. which I see have a great deal of force, there are a great many other arguments in the opposite direction. It would not be right at this stage to pass the amendment. I believe that the law in this area requires review and very serious consideration. The precise machinery of review is a matter on which your Lordships' views would be important. I look forward to hearing what noble Lords have to say about that when the other amendments touching on the same matter are debated this afternoon. I certainly and very definitely suggest that it would not be wise to pass the amendment.
5.15 p.m.
Lord Mishcon: My Lords, we have all listened with great attention and care to what the noble and learned Lord the Lord Chancellor has said. What he said followed a speech from the noble and learned Lord, Lord Ackner to which we also gave great attention. As I understand it, that speech ended with a suggestion, with some urgency behind it, that the Law Commission should immediately examine the very difficult field to which the noble and learned Lord the Lord Chancellor referred and to which the noble and learned Lord, Lord Ackner, and others referred in the past.
Is the noble and learned Lord able to tell the House that at an early opportunity the Law Commission
320
will be asked to deal with this matter with a view to our seeing its recommendations and considering the whole matter, as the noble and learned Lord suggested, in one light?
The Lord Chancellor: My Lords, with leave of the House, I am not in a position at this moment to indicate exactly how this might best be attempted. The Law Commission is an obvious candidate for carrying out such a review. As the noble Lord, Lord Mishcon, well knows, there is also in existence the Criminal Law Revision Committee, which has considered this matter. The best form in which this issue might be taken forward is a matter upon which the Government have not been able to reach any decision. This afternoon I am not able to say precisely what ought to be done. I submit that something ought to be done before the amendment would be regarded as right to pass.
Lord Morton of Shuna: My Lords, as this has almost accidentally become my amendment perhaps I should reply. It seems to me that the noble and learned Lord has managed in a sense to change the question from whether a life sentence is necessarily appropriate for a conviction for murder to whether there should be a radical look at the whole offence of murder and the offence of culpable homicide. As I understand it—although in Committee we discussed the broader question—the amendment is purely on the issue of whether it is appropriate that all people properly convicted of murder should receive a life sentence. I remind your Lordships that among others in Committee the noble and learned Lord, Lord Roskill, was very clearly of the view that this caused considerable difficulty in his experience as a judge. I should have thought that if we are to have a general review it may be encouraged by your Lordships' House voting in favour of the amendment. Therefore, I think it is appropriate that the views of your Lordships' House should be sought.
On Question, amendment negatived.
Lord Hutchinson of Lullington Lord Hutchinson of Lullington moved Amendment No. 43:
Before Clause 41, insert the following new clause:
("Abolition of minimum periods of life imprisonment.
. Section 1(2) of the Murder (Abolition of Death Penalty) Act 1965 shall cease to have effect.").
The noble Lord said: My Lords, rather less breathlessly, I seek to move this amendment. Its purpose is to seek to abolish the power in the court at present to recommend when passing a sentence of life imprisonment the minimum period that should elapse before the offender can be released on licence. The amendment will not require a great deal of further consideration and thought. It is an amendment that should now be accepted.
Since their introduction in 1965, such recommendations have been resolutely followed by the prison authorities and Secretaries of State and in only seven out of 244 cases have prisoners been released earlier than the recommended date. The purpose of the power was described by the Minister in Committee as being to enable the judge at trial to lay down a marker when sentencing in a particularly

321
abhorrent case. That may have been the purpose but the fact of the matter is that this is simply not consistently done and the use of the power over the years has been shown to be both inconsistent and haphazard. Some judges believe in using the power. Some judges believe in never using the power. Each judge has his own subjective criterion as regards the operation of the power.
In Committee the noble and learned Lord, Lord Roskill—a most experienced judge—made an eloquent plea for the repeal of this power which he described as outmoded and outdated. He pointed out that the power was introduced as a political compromise during proceedings on the Murder (Abolition of Death Penalty) Bill. He was supported in Committee by the noble and learned Lord, Lord Hailsham, and by my noble friend Lord Hunt, a former chairman of the Parole Board. It was the noble Lord, Lord Windlesham, as chairman of the Parole Board, who disclosed, much to the astonishment of most noble Lords, that, since the case of Handscomb in the Divisional Court, trial judges in all cases where life sentences are imposed, whether mandatory or discretionary, are now required to write to the Secretary of State expressing an opinion on the number of years the prisoner should serve to meet what are called "the requirements of retribution and deterrence". It is apparently on this period—which, to the distaste of the noble Lord, Lord Windlesham, is called by the officials "the tariff"— that the first review of such a sentence by the Parole Board will be allowed to take place. We know that, as a result of a further political decision made by the former Secretary of State, Mr. Leon Brittan, in any offence of violence no review whatever of such a sentence can take place before 17 years have passed.
The result is that a power to be used in certain serious cases only in relation to the mandatory life sentence—and described by the noble and learned Lord, Lord Roskill, as I have reminded the House, as outmoded and outdated—is now apparently being operated in every single case where a life sentence is passed, and in circumstances where the accused person and his advisers will know nothing about it and will know nothing about the number of years the trial judge decides should be served before that person is considered for release on licence.
In those circumstances, is it not now essential to get rid of this power, whether it is operated openly before the court or clandestinely within the Home Office? I beg to move the amendment.
Lord Hunt: My Lords, I rise to support the amendment extremely briefly because the proposition has been so ably covered by my noble friend. I shall presume to repeat to your Lordships on Report what I told those noble colleagues who were present at the Committee stage. I spoke then of my own personal experience in the early years of the Parole Board when such cases as we are now considering came before it. I said then that this had an extremely inhibiting and indeed almost prohibitive effect on our deliberations on the "merits" of the cases, if that is the right word, and on the favourable circumstances which may well have
322
obtained—and did obtain—a considerable number of years after sentence had been passed.
I recalled to the Committee a considerable number of such cases on which the label of a minimum term had been placed by the sentencing judge but as regards which nevertheless, despite that inhibiting factor, we saw fit to recommend to the Home Secretary after an appropriate interval of time release on life licence. In the six years that I was chairman of the Parole Board I recall only one such case which received release on life licence.
I make that point because we were dealing with all the cases of life sentences for the offence of murder. A number did not have such a minimum recommendation attached to them, yet the crimes as we saw them, considering the nature of the offences and their gravity, were considerably more grave than those on which the minimum sentence had been recommended by the sentencing judge. I concluded by saying that I felt then (and I feel now) that the procedure laid down in the Criminal Justice Act 1967, by which, following a favourable recommendation by the Parole Board, the Home Secretary has by statute to consult with the Lord Chief Justice and the trial judge in making his decision, is totally satisfactory and much fairer than the inconsistent application by some judges to some cases of the minimum recommendation. I am very much in favour of the amendment.
Lord Denning: My Lords, I just wish to repeat the arguments that I have made previously on this point. The judge, in sentencing a man who has been convicted of murder, is expressing public opinion on the matter. The judges should carry public opinion with them. When it is a particularly horrendous murder the judge should express that opinion by saying and recommending that the man should not be let out of prison until after 10, 15 or 20 years, whichever it may be. It is in answer to public opinion that the death penalty has now gone. On the other hand of course it can be reviewed, and I would deplore any private communications by the judge to the Home Secretary or anyone else as to what the length of time should be.
5.30 p.m.
Lord Windlesham: My Lords, I should like to echo what the noble and learned Lord, Lord Denning, has just said as to how we should address ourselves to this subject. We need to accept the public must be reassured that persons who are convicted of murder—the gravest crime in the criminal calendar—are properly punished and are not returned to society too soon.
I want to contend this afternoon that the way the mandatory life sentence has evolved over the past 20 or more years has led to confusion between judicial and executive functions; a review procedure of ever-increasing complexity; and widening opportunities for injustice. I should make clear at the outset that none of this was planned or intended by this Government or their predecessors. It is simply, as is so often the way in our legal history, the way things have turned out.

323
If we go back, as we must, to 1965 when capital punishment for murder was abolished, it then became mandatory, as was explained on the previous amendment, for a person convicted of murder to be sentenced to imprisonment for life. Thus, uniquely, the sentence is not imposed by the trial judge; the sentence for murder is imposed by Parliament. It is simply pronounced by the trial judge. He has no power to vary it.
But the court may, at its discretion, declare the period of time which it recommends to the Secretary of State as the minimum period which should elapse before the Home Secretary releases the convicted person. That proviso is included in Section 1 of the Murder (Abolition of Death Penalty) Act 1965. Therefore we have here the first way in which the judiciary can influence the period of time to be spent in custody, although it is Parliament which has prescribed the sentence of imprisonment for life. As we shall see, successive procedural layers have been added in the years that have followed the legislation in 1965.
The objections we have heard from the noble Lord, Lord Hutchinson of Lullington, and from the noble Lord, Lord Hunt, one of my predecessors as chairman of the Parole Board, are that the practice is haphazard and inconsistent. Some judges use the power; other judges do not. It is generally employed by a sentencing judge to reinforce the denunciation and feeling, of abhorrence of society as a whole towards the circumstances of a particularly grave crime of murder.
However, it is not always so. In the case of the Moors murders—I say this in the presence of the noble Earl, Lord Longford, who has taken such an interest in the case—there was no minimum recommendation. In the case of the murder of Mrs. Mackay by the Hosein brothers, a most notorious case, there was no minimum recommendation. But let us cling on to one central fact: the recommendation is made in open court by the trial judge from the Bench at the conclusion of the proceedings.
The Earl of Longford: My Lords, may I interrupt the noble Lord on one point? Can he tell us whether in fact in the cases he mentioned, and in other cases where there has been no public recommendation until recently, there were private communications and, if so, were they taken note of by the Parole Board?
Lord Windlesham: My Lords, I should like to come to that when I describe the current procedures, including the private advice given by the sentencing judge to the Home Secretary. There has been a long-standing facility—as noble and learned Lords on the Cross-Benches who have tried murder cases will be aware—that at the conclusion of a murder trial the judge can write to the Home Secretary. That facility has become formalised in order to set a date when the case of a life sentence prisoner can first be considered for release on licence.
This difficulty does not arise with determinate sentence prisoners because those who are sentenced to a fixed term of imprisonment have a statutory right
324
under the Criminal Justice Act 1967 to have their sentences reviewed after serving one-third, or a minimum qualifying period, whichever expires the later. This right to be reviewed at the one-third point, and annually thereafter, is not to be confused with the actual release of the prisoner which may, or may not, be granted at any stage between one-third and two-thirds of his sentence.
It has already been pointed out that some of the changes in parole practice which were announced by the then Home Secretary in November 1983 concerned life sentence prisoners. Instead of the timing for the first review being set by a joint Home Office/Parole Board committee, of which I was the chairman at the time (two noble Lords opposite preceded me in that capacity), the Home Secretary declared that he would look in future to the judiciary in the shape of the Lord Chief Justice and the trial judge, if available, for an initial judicial view on the requirements of retribution and deterrence.
When expressed in terms of a period of years that advice becomes the judicial tariff—if we use that word for the purposes of debate—in the case. Some three years before the expiry of the tariff the case is referred to the local review committee at the prison and subsequently to the Parole Board. I come now to the question put to me by the noble Earl, Lord Longford. It is at this stage that the Parole Board becomes aware of the advice on tariff that has been given by the trial judge to the Home Secretary, but not before.
When the Parole Board considers the case it does so primarily, although not exclusively, on the basis of the risk to the public if the prisoner is to be released on licence. If the Parole Board does not so recommend, then the Home Secretary has no power to release the prisoner. If the board does recommend in favour of release, then the final decision remains with the Home Secretary.
Parliament has never agreed that the ultimate decision should he transferred from him, as the Minister accountable to Parliament, to an appointed body. He does not have to accept the advice he is given. It is he who is answerable, and it is he who has the responsibility in the last resort. By law he is also required to consult, before releasing any prisoner, the Lord Chief Justice and the trial judge, if available, before doing so. Under the current procedures, this is the second judicial consultation. The first is to set the tariff, the second, perhaps many years later, is when the actual release of the prisoner is being contemplated. I apologise at this point for the complexity of what I have described. If, as I believe, life sentence procedures are becoming increasingly complicated and unsatisfactory, in this House we have an obligation to try and grasp in outline how they work in practice.
We are not at the end of the story yet. The latest superimposition on a far from straightforward procedure is that, in response to a decision of the Divisional Court in the Handscomb case, the judge is now being asked to write to the Home Secretary in every life sentence case, through the Lord Chief Justice, at the conclusion of the trial giving a view on the period of imprisonment necessary in the interests of retribution and deterrence. This requirement

325
applies irrespective of whether the life sentence was mandatory, in cases of conviction for murder, or whether it was within the discretion of the court, as it is in cases of manslaughter and other offences which carry liability to life imprisonment as the maximum sentence. Noble Lords will be relieved to know that that concludes the descriptive part of my speech.
Where are we now? From 1st October 1987 there is a new situation. In all cases of murder there is the mandatory life sentence, imposed by Parliament, that cannot be varied by the court. As we heard on the previous amendment, this distorts the whole sentencing process. In particular, it throws undue emphasis on the defence of diminished responsibility. Most people who have studied the penalty for murder believe that without diminished responsibility, thrown in as a make-weight in the Homicide Act in the 1950s, the present system could hardly have survived at all. Now, no sooner has the trial judge pronounced the sentence, with or without a minimum recommendation, than he sits down to advise the Home Secretary in his private letter of the minimum period of imprisonment which, in his view, the circumstances of the crime warrant.
By this devious route we have arrived at precisely the position which was rejected in 1980 by the Criminal Law Revision Committee—referred to by the noble and learned Lord the Lord Chancellor—in their 14th Report (Command Paper 7844); namely, that recommendations in every case would inevitably come to resemble a determinate sentence. That is a powerful conclusion with which it is hard to disagree.
My Lords, I believe there is only one way out of the morass in the short term. I am encouraged by what the noble and learned Lord the Lord Chancellor has said about a longer-term review. He has told us that he is prepared to refer the law of murder, and the penalty for murder, for a more thorough and careful inquiry before committing the Government to legislative change. I support that and was pleased to hear what was said.
However, we need a short-term expedient. It seems to me that the right way to approach this, paradoxically, is to preserve the power which Lord Hutchinson's Amendment No. 43 seeks to remove, substituting a public recommendation in open court in all life sentence cases for the private advice which is currently given by the sentencing judge to the Home Secretary. Justice should be as open as possible. Often it is an ideal that is difficult to achieve, but here is a way in which it could be achieved.
I confess to some reservations about the appropriateness of attaching a judicial remedy to what is essentially advice as to how a Minister should use his executive authority. Nevertheless, if we are selecting the least objectionable alternatives and trying to evolve a defensible system until the noble and learned Lords' review can get to work, I accept that there is a case for judicial recommendations in open court to be subject to a two-way appeal to the Court of Appeal. That is the subject of the next amendment, Amendment No. 44.
For those reasons, it does not seem to me necessary to press Amendment No. 43. Indeed, to do so would
326
shoot my fox because I want recommendations on tariff to be made, as I have argued, publicly in court at the conclusion of the trial, rather than privately in a letter to the Home Secretary. On the right to appeal, I am in sympathy with the broad aims of Amendment No. 44.
My Lords, I am afraid I have spoken for some time on this amendment, for which I apologise, but it is a matter of considerable importance.
Lord Harris of Greenwich: My Lords, I welcome the noble Lord, Lord Windlesham, as a supporter of the next amendment, which is in my name. Therefore I have found much of his speech persuasive, certainly as far as the wholly unsatisfactory character of the present arrangements are concerned. The House has now had the advantage of listening to one of my predecessors as chairman of the Parole Board and also my successor. I do not quite know what the collective of Parole Board chairmen should be. Perhaps "a cell" would be the most appropriate. I think that all three of us who have dealt with this matter over a number of years have come to the conclusion that the present arrangements are profoundly unsatisfactory.
I do not share the view of the noble and learned Lord, Lord Denning, who is the only uninhibited opponent of this amendment we have so far heard this afternoon, who finds the idea of making a minimum recommendation extremely satisfactory because in his view it meets public anger, public anxiety, at the time of the trial and at the time of conviction.
That view is extremely difficult to support on the basis of the evidence, part of which was cited by the noble Lord, Lord Windlesham. If your Lordships look at some of the most notorious cases where people have been tried for murder and convicted, you will find that the trial judge did not make a minimum recommendation.
As the noble Lord, Lord Windlesham, rightly said, there was no minimum recommendation in the Moors murder case; there was no minimum recommendation in the Hosein brothers case—the murder of Mrs. Mackay. There was no minimum recommendation in the case of the M.62 coach bomb when Judith Ward blew to pieces a number of service families travelling on a coach. There was no minimum recommendation in the Birmingham bomb case either.
In all four cases there was no minimum recommendation. Yet in other cases which my noble friend Lord Hunt and the noble Lord, Lord Windlesham, will have seen—and I certainly saw— there have been minimum recommendations which attracted far less public concern than the four cases I have cited. The reason for that is as follows. A number of judges will now not make minimum recommendations. A number of previous judicial members on the Parole Board told me that they had not done so, and that they would not do so. Their view was that it was far better to leave the matter to the Home Secretary of the day, acting on the recommendation of the Parole Board. The present legislative situation is wholly understandable in the context of the political situation of 1965 when

327
Parliament passed the Death Penalty Abolition Act. I find it far less satisfactory to have the situation remaining as it is on the statute book.
I do not think that one can exaggerate the effect that the minimum recommendation has on the Parole Board. Before the noble Lord, Lord Windlesham, became chairman, there was a committee of the board presided over by the chairman of the board. The vice-chairman was always a High Court judge and there were also a member of the board, a consultant psychiatrist and two Home Office officials. At about the three year stage they took a preliminary view as to how long a convicted murderer, or life sentence prisoner, would serve. I believe that the procedure was initiated by the noble Lord, Lord Carr, when he was Home Secretary. I think that there was a great deal of advantage in the system and I regret the fact that it was eliminated.
As a result, I must have considered over 800 life sentence cases. The idea that the minimum recommendation cases were by far the worst we considered was a view impossible to sustain. I became increasingly worried about the fact that my colleagues—understandably, in my view—took the view that if a judge had made a minimum recommendation they were bound to take the most serious view of it. Therefore, one had two categories of life sentence cases; those which were looked at upon their merits, and those which were not looked at wholly upon their merits. I think that that situation is unsatisfactory and it is time that Parliament changed it.
Lord Campbell of Alloway: My Lords, with respect, the amendment is not acceptable for two short reasons. First, it would not be acceptable to the general public in the present state of the law, pending a general review. Secondly, as has been explained by my noble friend Lord Windlesham, would it not shoot his fox, which I find rather an attractive fox? That applies particularly to the form of Amendment No. 44 which I supported at the Committee stage. It is another matter if the recommendation is made in open court. I believe that Amendment No. 43 would not be apt. However, I accept the point that in this area there is a case for short-term measures along the lines of Amendment No. 44, pending a general review. I oppose Amendment No. 43.
Lord Morton of Shuna: My Lords, I hope that the noble Lord, Lord Hutchinson, will consider not pressing Amendment No. 43 and pressing Amendment No. 44. If one examines Amendment No. 43, one is saying that a judge should never express a view as to how long a life sentence should be. I believe that there is a difficulty in saying that; and, logically, a judge must be considered to have a view of the appropriate life sentence. The answer should be that all the recommendations which are now made privately should be made publicly, so that the person sentenced can appeal if he is so advised. I hope that that course will meet with the noble Lord's approval.
Lord Simon of Glaisdale: My Lords, I am sure that all noble Lords feel deeply indebted to the noble Lord, Lord Windlesham. I am wholly persuaded. Any recommendation made should be made in open court so that it is understood by the public and the defendant and—although this anticipates the next amendment—so that it is reviewable.
When dealing with the previous amendment, my noble and learned friend on the Woolsack invited comments as to how this matter—which is, at the moment, in a mess—should be reviewed. I am in a difficulty because I think that the Criminal Law Revision Committee has already committed itself to the view that the offences of murder and manslaughter should remain distinct and should not be amalgamated into one offence of culpable or criminal homicide.
In his draft criminal code, Professor Smith, in accordance with his usual practice and the universal practice, has not gone against that latest recommendation. Therefore, the draft criminal code, which is now being examined by the Law Commission, maintains that distinction.
I respectfully suggest that my noble and learned friend on the Woolsack might consider asking the Law Commission, in consultation with the Criminal Law Revision Committee, to look at the problem urgently and immediately and to present an interim report.
Lord Paget of Northampton: My Lords, I am entirely in agreement with what has been said by the noble and learned Lord, Lord Simon of Glaisdale. Having been thoroughly converted by the noble Lord, Lord Windlesham, I find it hard not to be allowed to vote on his amendment and I feel strongly about that.
My noble and learned friend put forward the idea that the sentence should be the subject of comment by the judge, and it would be wrong to say that he should not make a comment and recommendation on it. It is not the judge's sentence; it is Parliament's sentence. The judge has no discretion about the sentence so why should he make a recommendation on a matter which is not his responsibility?
A point which has always weighed on me is that when the matter goes to the committee of the noble Lord, Lord Windlesham, two issues must be considered. First, what was the crime; secondly, what has happened to the man since? Has he changed? How has he changed? The judge's recommendation can only be based on the first question, so one is asking the Committee to accept the worst evidence. It is evidence which is no longer relevant because it comes from a man who has considered only half of what should be considered.
I hope that the noble Lord. Lord Windlesham, will give the House an opportunity to vote on this amendment. I have heard the observation of the noble Lord who sits behind him to the effect that the amendment would not be acceptable to the people. We have seen a certain sample of the people here. Almost all of them have been persuaded by the noble Lord, and I think that we ought to be allowed to express our swing of opinion.
Lord Hutchinson of Lullington: My Lords, perhaps I may be allowed to point out to the noble Lord that on this occasion I am not being led by the noble Lord, Lord Windlesham. If anybody is to give the noble Lord an opportunity, it will be for me to give it to him
Lord Paget of Northampton: I am extremely sorry, my Lords.
6 p.m.
The Lord Chancellor: My Lords, it is perhaps an interesting comment on the difficulty in this area of the law that in support of the last amendment some noble Lords argued in favour of giving a very wide discretion indeed to judges when passing sentence, ranging from small sentences up to life imprisonment in cases of murder; whereas when Parliament gave a discretion to the judges whether or not to declare a minimum period, a degree of uncertainty arose about the uniformity with which the judges exercised that discretion. That is illustrative of the difficulty in this area. but I do not press the point further than that.
In 1965, when Parliament changed the law in relation to this matter, it gave judges the power to declare the period recommended to the Secretary of State as the minimum period which should elapse before he orders the offender's release on licence. That was a discretion whether or not to make a recommendation at all; and then of course, if the court decided to make a recommendation, it was empowered to suggest the period recommended. In 1972 that provision was the subject of consideration in Scotland by a committee headed by the Lord Justice-General—I think it was before he actually took up that appointment—the noble and learned Lord, Lord Emslie. In 1980 during discussions on the Criminal Justice (Scotland) Bill, the Government proposed that the recommendation of the committee headed by the noble and learned Lord, Lord Emslie, should be put into effect and it was noted that as a consequence there would be an obligation upon the judge in every case to state a minimum recommendation. I rather think that that is the line that the noble Lord, Lord Windlesham, is suggesting.
However, the noble and learned Lord, Lord Fraser of Tullybelton, whom I am very glad to see in his place, and other noble Lords in this House raised a question first at Committee stage and then at Report stage about this proposed change in the law following the Emslie Committee's recommendation, and the House voted on the matter. The result was that Parliament decided that there should not be an obligation in every case to declare a minimum recommendation. I am sure that the noble and learned Lord, Lord Fraser of Tullybelton, will remember the eloquent speech that he made at the Committee stage against the imposition of a general obligation of that kind. So we are in a very difficult area in which to make progress by complete consensus.
Lord Windlesham: My Lords, perhaps the noble and learned Lord will forgive me if I ask whether the situation has not been transformed since those earlier debates by the newly introduced practice in which the
330
trial judge is asked to write in private to the Home Secretary in every instance giving an opinion on what should be the period to be served in the interests of retribution and deterrence?
The Lord Chancellor: My Lords, I intended to try to deal with that point. I agree that the development of the practice of correspondence, which has been necessary between the trial judge and the Secretary of State right from 1965—and which, as one would expect, has been entirely accurately described by my noble friend Lord Windlesham—is a circumstance which might well change the situation. Certainly for my part I should have been glad to hear the views of experienced judges upon the matter.
I think that it is at least questionable whether judges could be forced to write in every case and give a minimum recommendation, but in practice, as the noble Lord said, I think they do so. They have always been consulted. The statute required that, before releasing a prisoner who was sentenced to life imprisonment under the Act, the Home Secretary should consult the Lord Chief Justice and the trial judge if he was available. The result was that the trial judge was consulted a very long time after the event. Your Lordships may feel that even the memories of trial judges fade somewhat over such a period of time and that there is an advantage in the more modern procedure under which the trial judge immediately gives a view upon the matter.
The present situation is certainly quite a difficult one but it is not one in which I could advise your Lordships to accept this amendment. It seems to me that this amendment does not do anything to improve the situation. Indeed, despite the view expressed by the noble Lord, Lord Windlesham, with all his great experience, which has persuaded at least the noble Lord, Lord Paget of Northampton, and I am sure many other noble Lords, the amendment should not be accepted if your Lordships accept my submission.
Lord Hutchinson of Lullington: My Lords, it appears from our debate quite clearly that there has been only one voice to support the present procedure. That voice came from the noble and learned Lord, Lord Denning, who suggested that this provision was essential in order that the judge could express the opinions and feeling of abhorrence of the public. I am hound with the greatest respect to ask him: what about a case of diminished responsibility, or a case of arson, or a case of rape, or a case of robbery? In all such cases, when the judge wishes to impose a life sentence, should not that feeling of abhorrence be expressed?
Of course it is and always has been open to the judge at trial to make whatever observations he likes, including expressions of abhorrence and so on, during the sentencing process. No doubt he does that very well, as, with some exceptions, the judiciary usually do in relation to all serious criminal offences and not only in cases of murder, which, as the House has already heard and I think will agree, is very often a less serious form of crime than the others to which I have just referred.

331
It also seems quite clear from the debate that everybody who has listened to the arguments accepts—must they not?—the views of the three distinguished chairmen of the Parole Board, to whom we have had the privilege of listening. I shall not rehearse what they have said, but their various descriptions of the effect of this particular part of the law that we wish to remove in the Bill can be summarised in the words "distorting the whole sentencing process", "a morass", "a mess" and so on. When we know that the noble and learned Lord, Lord Roskill, with all his experience, wishes to get rid of this power of the courts, and after hearing of the effects that this power has on the sentencing process, surely we must conclude that the time has come to abandon it.
To the noble Lord, Lord Windlesham, I say that the view that one would be shooting his fox by getting rid of this power is surely not correct. I am not an expert in shooting foxes; I am or was better with birds. However, surely if we remove this power altogether it leaves the judge at trial in the position of passing a life sentence—full stop and finish. In imposing the sentence he can add anything that he wishes to add, to reflect his view of how abhorrent the particular offence is. He may express the view, which often judges do, that he sincerely hopes that this person will not be released for a very long period. Those observations that he makes in public will be recorded for ever.
He will then be consulted in the normal course of events, as the noble and learned Lord the Lord Chancellor has just said, at the time when it is being considered whether the person should be released. That is surely an advantage, not a disadvantage as has just been said, because by then the trial judge will have had time to see the reports on the person concerned. Moreover, time will have elapsed, public opinion in relation to one offence as opposed to another may have taken a different course and so on, and reading back through the papers and his observations at the time he can, of course, express his view and be consulted.
The present requirement is a purely administrative matter. It is not a matter of legislation; it is a matter of administration which can of course be altered overnight. That is a matter for discussion. That is a matter for the chairman of the Parole Board to raise with the Secretary of State. But in this House at this moment with this Bill before us, we are dealing with legislation; we are not dealing with administration. If there is a mischief going on at the moment—and quite clearly there is— in the relations between the Secretary of State and the judiciary, and it is not due to legislation, then it is no business of ours at this moment when we are discussing this amendment. The first thing we have to do is to get rid of this power, let things get back to where they ought to be and I suggest that the judge imposes a simple sentence of life imprisonment.
Lord Windlesham: My Lords, may I ask the noble Lord before he sits down, if indeed he was about to
332
sit down, whether his final remarks take account of the recent change announced by the Home Secretary in July, and introduced on 1st October, by which all judges are asked when passing a life sentence to write to him through the Lord Chief Justice? That was in response to a decision in the Divisional Court. If the Home Secretary had not made the change on his own initiative the previous system would have continued. It was in response to a ruling of the court. Has the noble Lord taken that point into account?
Lord Hutchinson of Lullington: My Lords, I say in reply that I most certainly have taken that into account, because the ruling of the court in Hanscomb was not a ruling that judges should make a recommendation of this kind or that kind. That is my recollection, but I may be wrong. If the ruling of the court was specifically that judges had to make a recommendation, then I would agree with the noble Lord. Lord Windlesham. But I was under the impression that it was a ruling of the court that the present procedures meant that persons were not having their sentences considered at a time when they ought to be considered, and that something had to be done to see that they were considered at the proper time. As a result of that ruling, this instruction has been issued to the judges which is a very different matter. But in all the circumstances, I am certainly minded to test the view of the House on this matter.
6.15 p.m.
On Question, Whether the said amendment (No. 43) shall be agreed to?
Their Lordships divided: Contents, 54; Not-Contents, 121.

DIVISION NO. 1

CONTENTS

Airedale, L.

Jay, L,

Ardwick, L.

Jeger, B.

Avebury, L.

John-Mackie, L.

Beaumont of Whitley, L.

Kilbracken, L.

Birk, B.

Kilmarnock, L.

Blease, L.

Lloyd of Kilgerran, L.

Bottomley, L.

Longford, E.

Carmichael of Kelvingrove, L.

McCarthy, L.

Carter, L.

Mackie of Benshie, L.

Cledwyn of Penrhos, L.

Mishcon, L.

David, B.

Molloy, L.

Dean of Beswick, L.

Mulley, L.

Diamond, L.

Nicol, B.

Donaldson of Kingsbridge, L.

Paget of Northampton, L.

Donoughue, L.

Perry of Walton, L.

Ennals, L.

Peston, L.

Ewart-Biggs, B.

Ponsonby of Shulbrede, L.

Foot, L.

Ritchie of Dundee, L.

Gallacher, L.

Silkin of Dulwich, L.

Graham of Edmonton, L. [Teller.]

Stoddart of Swindon, L.

Tordoff, L.

Grey, E.

Underhill, L.

Harris of Greenwich, L.

Wells-Pestell, L.

Henderson of Brompton, L.

Whaddon, L.

Houghton of Sowerby, L.

Williams of Elvel, L.

Hunt, L.

Winchilsea and Nottingham, E.

Hutchinson of Lullington, L. [Teller]

Ypres, E.

Irvine of Lairg, L.

333

NOT-CONTENTS

Abercorn, D.

Joseph, L.

Abinger, L.

Kimball, L.

Alexander of Tunis, E.

Kitchener, E.

Allenby of Megiddo, V.

Lane-Fox, B.

Arran, E.

Lauderdale, E.

Atholl, D.

Lawrence, L.

Balfour, E.

Long, V.

Beaverbrook, L.

Lucas of Chilworth, L.

Belhaven and Stenton, L.

Lyell, L.

Beloff, L.

McAlpine of Moffat, L.

Belstead, L.

Mackay of Clashfern, L.

Blyth, L.

Macleod of Borve, B.

Boyd-Carpenter, L.

Malmesbury, E.

Brabazon of Tara, L.

Marley, L.

Broadbridge, L.

Merrivale, L.

Brougham and Vaux, L.

Mersey, V.

Buckmaster, V.

Monk Bretton, L.

Butterworth, L.

Monson, L.

Caccia, L.

Morris, L.

Caithness, E.

Mottistone, L.

Caldecote, V.

Moyne, L.

Cameron of Lochbroom, L.

Munster, E.

Campbell of Alloway, L.

Murton of Lindisfarne, L.

Campbell of Croy, L.

Nelson, E.

Carnegy of Lour, B.

Onslow, E.

Carnock, L.

Orkney, E.

Cathcart, E.

Oxfuird, V.

Coleraine, L.

Peyton of Yeovil, L.

Colnbrook, L.

Plummer of St Marylebone, L.

Constantine of Stanmore, L.

Portland, D.

Cottesloe, L.

Rankeillour, L.

Cox, B.

Reay, L.

Craigavon, V.

Romney, E.

Craigmyle, L.

Russell of Liverpool, L.

Davidson, V. [Teller.]

St. Davids, V.

De La Warr, E.

St. John of Fawsley, L.

Denham, L. [Teller.]

Saltoun of Abernethy, Ly.

Denning, L.

Sandford, L.

Dilhorne, V.

Shackleton, L.

Dormer, L.

Simon of Glaisdale, L.

Dowding, L.

Skelmersdale, L.

Dundee, E.

Somers, L.

Elliott of Morpeth, L.

Stanley of Alderley, L.

Elton, L.

Stockton, E.

Forlescue, E.

Strabolgi, L.

Fraser of Kilmorack, L.

Strange, B.

Fraser of Tullybelton, L.

Stralhcona and Mount Royal, L.

Glenarthur, L.

Goold, L.

Swansea, L.

Grantchester, L.

Terrington, L.

Gridley, L.

Teviot, L.

Hailsham of Saint Marylebone, L.

Thomas of Gwydir, L.

Thomas of Swynnerton, L.

Havers, L.

Trafford, L.

Hertford, M.

Trefgarne, L.

Hesketh, L.

Trumpington, B.

Hives, L.

Ullswater, V.

Hood, V.

Vaux of Harrowden, L.

Hooper, B.

Ward of Witley, V.

Hylton-Foster, B.

Whitelaw, V.

Jenkin of Roding, L.

Windlesham, L.

Johnston of Rockport, L.

Resolved in the negative, and amendment disagreed to accordingly.
Lord Harris of Greenwich Lord Harris of Greenwich moved Amendment No. 44:
Before Clause 41, insert the following new clause:
("Right of appeal against minimum recommendations in murder cases.
.—(1) A person in respect of whom a court has made a recommendation to the Secretary of State under section 1(2) of the Murder (Abolition of Death Penalty) Act 1965 may appeal to the Court of Appeal against the recommendation.
(2) On an appeal under this section the Court of Appeal may—

(a) quash the recommendation which is the subject of the appeal, and

(b) in place of it make such recommendation as they think appropriate;

but the Court shall so exercise their powers under this subsection that the appellant is not more severely dealt with on appeal than he was dealt with by the court below.")
The noble Lord said: My Lords, I beg to move the amendment standing in my name and that of a number of my noble friends. The object of the amendment is fairly simple. It was dealt with in part during our last discussion, when the noble Lord, Lord Windlesham, indicated his own broad support for it.
The purpose of the amendment is to give a convicted person the opportunity of appealing against a minimum recommendation. It does not require a great deal of effort on my part to demonstrate the significance of the minimum recommendation. I dealt with that briefly during the previous debate. However, to make my point I shall rely upon the language of Home Office Circular No. 55 of 1984, which states:
"The expectation is that a prisoner in respect of whom a minimum recommendation has been made will be detained for at least that period unless there are good reasons for doing otherwise."
Successive Home Secretaries and successive Parole Boards have obviously taken that injunction extremely seriously because between 1965, when the provision was introduced, and the end of 1986 there were 244 minimum recommendations. In only seven cases were prisoners released before the end of that recommended period. When I was chairman of the Parole Board there was, I believe, only one such case and in that case a Royal Prerogative issue was involved, which was why the then Secretary of State decided to release that prisoner.
As I pointed out during our debate on the previous amendment when recalling my own experience in considering somewhere in the region of 800 life sentence cases as chairman of the joint committee between the Parole Board and the Home Office, the recommendation by the trial judge of the minimum sentence that a prisoner should serve in prison was decisive as regards the Parole Board. I can think of no case on which I sat where there was any attempt made by any member of the Parole Board to challenge that minimum recommendation. That was partly for the reason that I gave when reading out the contents of the Home Office circular. They also knew, apart from anything else, that if a trial judge had made a minimum recommendation of 20 years, for example, it was highly unlikely that any Home Secretary would choose to ignore it. A Home Secretary would have to be a bold man to ignore the publicly expressed view of the trial judge in a highly publicised case and release that man in defiance of the view of that trial judge. He would need courage to face a possible outburst of public criticism at that stage, and that would of course be followed by even more savage criticism were the offender to reoffend while on life sentence licence. That could bring a Home Secretary's career to an abrupt end. As we all know, that particular post has enough problems at the moment without Home Secretaries wishing to find

335
new ways in which to entrap themselves in painful situations.
That is the background. I can think of very few—indeed no—members of the judiciary with whom I have discussed this matter and who have had Parole Board experience who have not expressed to me their private disquiet about a situation in which there is no appeal against the trial judge's minimum recommendation. That is unacceptable. That situation consigns a prisoner to a term of imprisonment on the basis of a publicly expressed minimum recommendation. It gives that man no right whatever to challenge that decision, despite the fact that it has a decisive effect upon, first, the Parole Board and, secondly, the Home Secretary. That in my view is wholly unreasonable and unacceptable.
I can understand why the House took the decision that it did on the last issue. I think it was a mistake but nevertheless I can understand the reasons for it. However, to refuse to give a man a right to appeal in such a situation as I have described would in my view be wholly wrong. I have, I am glad to say, some substantial support for that view. The Criminal Law Revision Committee, whose views we have discussed this afternoon in relation to other matters, has acknowledged that the power has operated "somewhat haphazardly". That is a pretty substantial English understatement. It has sometimes acted in a fairly bizarre way. The Criminal Law Revision Committee recommended in the light of that view that:
"if the power were retained, recommendations should be treated as part of the sentence; that the provisions applying to appeals against sentence in the case of determinate sentences should apply equally to recommendations; and that a trial judge making a recommendation should state publicly the factors on which he bases his recommendations."
At the moment there is no requirement at all for the trial judge to give any indication of the reason for his recommendation. The giving of reasons might then in such a situation, were the trial judge to indicate the reasons for the recommendation, be of assistance to the defence in deciding whether an appeal should be made, and to the Court of Appeal itself were such an appeal to be heard.
In paragraph 72 of its report, the Criminal Law Revision Committee argued that, if those proposals were implemented,
"the practice of making judicial recommendations is likely to become established upon a more regular footing because the Court of Appeal will, over a period, be able to set out guidelines as to the circumstances in which a minimum recommendation should be made and the level of such recommendations".
That is a powerful argument. It has the authority of the Criminal Law Revision Committee. It is an overwhelmingly sensible view.
There is of course an even more powerful argument as to why that view should be sustained this evening. We have the advantage of having here the noble and learned Lord the Lord Chancellor, who was the Lord Advocate. The recommendation made by the Criminal Law Review Committee for England and Wales already exists in Scotland. In Scotland, as the noble and learned Lord will confirm, the right of appeal against such recommendations was introduced in 1980 (in other words by the present
336
Government) by Section 43 of the Criminal Justice (Scotland) Act 1980. As that provision has been introduced into the law of Scotland and as prisoners in Scotland are entitled to appeal against a minimum recommendation, prisoners in England and Wales should have a similar right. I beg to move.
6.30 p.m.
Lord Boyd-Carpenter: My Lords, there is obviously a good deal of force in what the noble Lord has said in justification of a right of appeal against one of these minimum recommendations. It seems to be a reasonable proposition. However, I am bound to say that I part company with him on the terms of his amendment, and in particular the last three lines, which provide:
"but the Court shall so exercise their powers under this subsection that the appellant is not more severely dealt with on appeal than he was dealt with by the court below".
I can see no reason to insert that provision. I do not see why, if the Court of Appeal thinks that the recommendation was insufficiently firm, it should not say so and substitute its own views. That, after all, follows the general line of these appeals which are a both-way option. If one decides to appeal, believing no doubt, that one has a good case, one has to contemplate taking the chance that the appeal may fail and that its failure may result in the sentence being strengthened. For that reason, I could not support the amendment as it stands.
It is wrong to make the provision merely one way. If one thinks of the matter from a practical point of view, it is of course a standing encouragement for everyone who has a recommendation from the trial judge as to his minimum sentence to go to the Court of Appeal. Such a person stands there with nothing to lose. It is a safe option for him. Your Lordships would find that, if the law were to be so amended, the Court of Appeal would have a substantial amount of wholly unnecessary business forced upon it; whereas, if the Court of Appeal has the option to increase as well as to decrease the recommended figure, then those who advise the convicted man will have to consider carefully whether they have a good and satisfactory case which it is worthwhile taking to the Court of Appeal and using up the court's time. Unless the noble Lord is prepared to drop those last three lines, I shall feel bound to vote against his amendment.
Lord Denning: My Lords, I am nervous about this amendment. In a way, the recommendation is not a sentence by the judge; it is a recommendation which is not in law enforceable, and the Secretary of State is not bound by it. I think that that is expressly set out in the Act. I know that in practice the recommendation has been treated as fairly binding on the Parole Board but, on the other hand, in point of law it is only a recommendation. Therefore, it is not a proper case for appeal.
I wish to make a further point. If a judge is to be subjected to appeal whenever he makes such a recommendation, the great majority of judges will not make any recommendation; in other words, we will obtain the same effect by a side wind. I do not think a judge should be deterred from making a recommendation when it is a particularly horrible

337
case. He can make a recommendation as to the minimum sentence which the person should serve. It is only a recommendation. Like my noble friend Lord Boyd-Carpenter, I do not support the amendment.
Lord Simon of Glaisdale: My Lords, as I said on the last amendment, I am generally in favour of this amendment. If the judge's recommendation has no influence it should not be made, but we know, from what we have been told, that it has some influence. As it has some influence, and as judges are fallible, the accused should have the right to have the recommendation reviewed by the Court of Appeal (Criminal Division).
Like the noble Lord, Lord Boyd-Carpenter, I find the last three lines unacceptable in the present circumstances. I think I know why the noble Lord included them. Although I have forgotten what the measure was, a provision implementing a recommendation of a committee or commission presided over by Lord Donovan ensured that when there was an appeal against sentence, the appellant would not run the risk of having his sentence increased. If I am right in that, and that is the thinking behind this amendment, the matter must be reviewed in the light of the decision that your Lordships took, and which, sitting on the Cross Benches, seemed to be supported overwhelmingly by argument; namely that the prosecution should also be entitled to test the adequacy and propriety of any sentence. If that provision applies to a sentence, it should apply to any recommendation which has the same effect. I hope that the noble Lord, Lord Harris, will indicate that, if the amendment is carried, he will not be averse at a later stage to the removal of the last three lines.
Lord Somers: My Lords, speaking purely as a layman, I wonder whether there is not a slight danger with this amendment. If my memory serves me correctly, minimum sentences were first introduced because of the strong public feeling that many dangerous criminals were being given sentences which were far too lenient. If we quash that power entirely, I wonder whether it will be in the interests of the public, who, after all, deserve the protection of the law.
Lord Windlesham: My Lords, when either the noble Lord on the Woolsack replies to the debate, or one of the noble Lords on the Opposition Front Bench with experience of the Scottish system speaks, perhaps they could tell us if the appeal in Scotland is one way or two way.
Lord Morton of Shuna: My Lords, having been given that invitation, I should say that, on my understanding, the right of appeal is one way only. That is subject to correction. In Section 205(a) of the Criminal Procedure (Scotland) Act, which was steered through by the noble and learned Lord, the then Lord Advocate—no doubt the noble and learned Lord the Lord Chancellor will be able to speak better than I can on his reason for doing so—nothing is to be found to suggest that there is any power to increase the sentence. It is my understanding that there have been five such appeals
338
which have not increased, or indeed decreased, the recommendation.
On the point of the noble Lord, Lord Boyd-Carpenter, I comment with some hesitation as he has more experience than a recent arrival such as myself. If the noble Lord likes Amendment No. 44 apart from the last three lines, I should have thought that there were various steps that he could have taken, and indeed can still take on Third Reading, to put the matter right.
Lord Boyd-Carpenter: My Lords, it is of course open to the mover of the amendment who agrees that there is a defect therein to withdraw it and to table it in an amended form at the next stage.
Lord Mishcon: My Lords, that course is open to the mover of the amendment at this stage, as I am advised, by moving the amendment with the omission of the last three lines, should he so wish. I mention that not as a recommendation but as an indication of what I am advised is the procedure.
6.45 p.m.
The Lord Chancellor: My Lords, the amendment, which seeks to give a right of appeal in respect of the minimum recommendation, obviously has something to be said for it, as my noble friend Lord Boyd-Carpenter observed. However, there is the problem that this minimum recommendation is entirely discretionary. The right of appeal here in question does nothing therefore in relation to those cases in which there is no minimum recommendation.
As I understood my noble friend Lord Windlesham, that is one aspect of the present situation which from the point of view of a completely logical and satisfactory system is somewhat unfortunate. It may be a question whether it is right to add to those cases in which a minimum recommendation is given this additional right of appeal. The result is surely hound to be that there is some further authority; namely, the authority of the Court of Appeal (Criminal Division), in respect of the particular case in which there has been an appeal.
Against the general background that the noble Lord has described, I wonder whether it is right for us to go ahead and make this change to one part of the present system without making changes to the rest of it. It is true of course, as the noble Lord, Lord Harris of Greenwich, pointed out, that in 1980 in relation to Scotland the Government proposed an appeal of this kind. The method used in the legislation was to deem the recommendation part of the sentence and to make it subject to the same rules of sentence which generally provide that it cannot be increased on appeal.
As the noble Lord, Lord Windlesham, said, the other procedures have developed a good deal since 1980 and there is a recognised procedure which has been described by the noble Lord, Lord Hutchinson of Lullington, as an administrative procedure but still a procedure that has been publicly recognised and intimated by the Home Secretary in the light of developments that have taken place. in particular the judgment of the Divisional Court in the Handscomb case. In that situation I wonder whether it is right on

339
the basis of the present system to make this change in isolation. It would be useful to know what those noble Lords with experience of the Parole Board—we are happy and privileged to have the benefit of the presence of no fewer than three of them—may have to say about that.
The point made in relation to the earlier amendment is that the person who is the subject of a minimum recommendation is placed in a special rather significantly different position from others who are the subject of a mandatory life sentence. If some of these are selected as people who have been the subject of consideration by the enhanced authority of the Court of Appeal (Criminal Division), the position is worsened by making such distinct situations even more different than would be the case if there were no appeal. The minimum recommendation is declaratory only, as was pointed out. It is for that reason no doubt that it has not up to now been the subject of a right of appeal in this country. If it was an ordinary sentence, one feels sure that from the beginning it would have been the subject of an appeal. It is not an ordinary sentence; it is something out of the ordinary invented as part of the arrangements for dealing with the abolition of capital punishment and a substitution of a mandatory sentence.
It is a special provision. Your Lordships have already heard just how special it is and how its existence in certain though not all cases makes it more difficult than it would otherwise be for the Parole Board to operate with complete fairness over the whole field with which it has to deal. The same problem applies to the Home Secretary. After all, one has to look at the situation from the point of view of administrative justice as the Home Secretary seeks to develop it. The Parole Board of course has its responsibilities in the same field.
I am not entirely persuaded that to add this right of appeal would necessarily produce a better overall picture of justice either for the Secretary of State or for the Parole Board. In that state of matters, it humbly seems to me that your Lordships might be wise not to pass the amendment. Your Lordships have expressed views that my right honourable friend will be very interested to read and consider. I doubt whether there is sufficient consensus on the best way forward for us to pass the amendment at this stage. I suggest that the wiser course might be not to do so.
Lord Harris of Greenwich: My Lords, for a variety of reasons, not least the point made by the noble Lord, Lord Boyd-Carpenter, and the noble and learned Lord, Lord Simon of Glaisdale, I do not propose to press the matter today. I wish to reflect upon what they said about the last three lines of the amendment. I understand that there is a procedure under which I can tonight withdraw the last three lines of the amendment. I am not sure that that is the most sensible way of proceeding.
The noble and learned Lord the Lord Chancellor has not tonight made one of his most persuasive cases. First, he asked—rather rhetorically, if I may say so—about the attitude of each of the three chairmen of the Parole Board—two past and one
340
present. That has been made absolutely clear. They are in favour of this amendment. I do not believe it creates the immense problems that he perceives are likely to follow for the Parole Board. Otherwise, I do not believe that the three of us would have taken that view.
The noble and learned Lord then says that it will also create hideous problems for the prisoner because he will have to consider whether he is not going to make his position worse by appealing to the Court of Appeal. There is the danger that with the "enhanced authority", as I think he described it, of that tribunal the prisoner would get himself into a worse position. That is a matter which the prisoner and his advisers would have to reflect upon. It is one of the matters they would have to consider before deciding whether to go to appeal in the first instance.
The noble and learned Lord continued by saying there is a third person about whom he is very concerned, and that is the Home Secretary. Why in fact should the position of the Home Secretary be made any more difficult. It is difficult enough already, as I am sure we all accept, in a whole variety of cases. Why should the position of the Home Secretary be more difficult because the Court of Appeal is asked to make a decision? The issue which the Court of Appeal would be determining would not be precisely when the man or woman concerned was to leave prison; it would be deciding only whether the minimum recommendation should be varied.
As to the rest of the argument put forward by the noble and learned Lord, he said quite rightly that the minimum recommendation is a discretionary matter. I think the noble and learned Lord later accepted to some degree that that does not begin to justify saying that although it is in fact entirely discretionary, a man should be debarred from the right to go to the Court of Appeal. As I have indicated, and as the noble Lords, Lord Windlesham, and my noble friend Lord Hunt have agreed, these minimum sentence recommendations are in most cases decisive so far as the Home Secretary and the Parole Board are concerned.
The language of the Home Office circular which I invite the noble and learned Lord to look at, re-emphasises the decisiveness of that minimum recommendation.
The noble and learned Lord, Lord Denning, said that he was fearful that if there was a right of appeal in such cases the majority of judges would be deterred from making a minimum recommendation in the first place. I have already indicated that a very substantial number of judges are deterred at the moment because they do not happen to believe in minimum recommendations.
A number of judges will not, as a matter of principle, make such a recommendation because they prefer to leave it to the Home Secretary. Others sometimes do, giving no reason at the time. Because the matter is (a) decisive in terms of the length of sentence, and (b) unreviewable by the Court of Appeal, it results in a most unsatisfactory situation.
As the noble and learned Lord, Lord Denning, has said, a minimum recommendation is not by itself a sentence. But in only seven cases since 1965 has it in

341
fact not been a sentence. That is a situation which we have to accept. I am deeply troubled as also are a number of members of the judiciary from my own direct personal knowledge. They have observed the character of cases over a number of years as members of the Parole Board. In some cases a minimum recommendation has been made by the trial judge and in others with some of the most notorious criminals coming before the criminal courts, no minimum recommendation has been made. Those two categories of cases are in reality treated totally differently and I can see no justification for such a situation.
I would have undoubtedly pressed this matter to a vote this evening were it not for the issue raised by the noble Lord, Lord Boyd-Carpenter, and the point made by the noble and learned Lord, Lord Simon of Glaisdale.
I hope that the Government will between now and Third Reading, look at this matter again. I certainly would not necessarily fight for every dot and comma on this particular amendment. But the issue of principle is clear. At the moment there are two categories of life sentences; and in one category a prisoner is maybe serving a far longer sentence on the basis of a minimum recommendation which is not reviewed by the Court of Appeal, and in the second, the case will he considered entirely on its merits.
Amendment, by leave, withdrawn.
Lord Donaldson of Kingsbridge Lord Donaldson of Kingsbridge moved Amendment No. 45:
Before Clause 41. insert the following new clause:
("Functions of Prison Disciplinary Tribunal.
.—(1) For the purpose of exercising the functions conferred on it by this section there shall be a body known as the Prison Disciplinary Tribunal.
(2) Notwithstanding any previous enactment, where a prisoner is charged with any serious or repeated offence against discipline for which the awards the governor can make seem insufficient, the governor shall not refer the charge to the hoard of visitors but may, after investigation, refer the charge to the Prison Disciplinary Tribunal.
(3) The Lord Chancellor or the Secretary of State may make rules for the membership of the Prison Disciplinary Tribunal, the proceedings of the Tribunal on charges referred to it and the imposition of penalties by the Tribunal.
(4) It shall be the duty of the Prison Disciplinary Tribunal to inquire into any charge referred to it under rules made under subsection (3) above and, if it finds an offence against discipline proved, to impose penalties as prescribed by those rules.").
The noble Lord said: My Lords, I do not think we shall get through this amendment in five minutes. In those circumstances would it not be better to break for supper?
Lord Denham: My Lords, it is very difficult when one has arranged to have an adjournment at about seven o'clock, to have it before seven o'clock because there may be noble Lords who wish to take part in the discussion. We always adjourn between seven and half-past and that will give the noble Lord a little leeway.
Lord Donaldson of Kingsbridge: I am very sorry to keep noble Lords from their supper hut I have no alternative.
342
There are two amendments here, and with the leave of the House I should like to speak to Amendments Nos. 45 and 46 but to vote on them separately. There are two issues and the first is that disciplinary duties should he removed from the duties of the boards of visitors. That means that something else must be set up to carry out those duties. That is as far as Amendment No. 45 goes.
The second is that any tribunal which is set up to carry out such work should be constituted in a way that it stands as a judicial tribunal and will he empowered to act for all prisoners and thereby maintain consistency in its decisions.
Amendment No. 46 lays down the composition and procedure of such a tribunal which is recommended by the Prior Report. First, I refer to Amendment No. 45. I remind the House why the noble Earl, Lord Jellicoe, and I some years ago and Mr. Peter Prior and his colleagues last year, urged that these disciplinary duties should not belong to or be part of the duties of the board of visitors. The proper duties of the board are to look after the interests of prisoners and staff; to be available to hear complaints; to be easily seen when going around the prison and to do so frequently. It is also its duty to support the governor in his efforts to obtain approval for improvements from the Home Office, and in emergencies to act as a direct line to the Home Secretary. If there is a crisis and it has been allowed to get out of hand, it has a direct line to the Home Secretary and this is an important part of its duties although seldom used.
We think that the board must be seen to be on the side of the prisoners. It must be a group of people to whom the prisoners can turn. We think the disciplinary duties are a real disadvantage towards creating the best atmosphere.
I am not going to say any more about this because it seems obvious. There was a good deal of support for this in Committee. I hope that when we come to vote on Amendment No. 45, noble Lords will find that they can support that amendment whatever difficulties there may be in the Government's view of executing it. That is something which the Government have to sort out for themselves.
As regards this amendment, not only do we have the support of the noble Earl, Lord Jellicoe,who unfortunately cannot be here, but also the support of the Opposition. We have the support of the noble Lord, Lord Campbell of Alloway, and the noble and learned Lord, Lord Simon of Glaisdale. For nearly a year we had the support of the Government, too, from their White Paper last year until the cataclysmic change of heart of the noble Earl on 25th February last when he announced that nothing would he altered beyond the revised disciplinary code. The noble Earl explained to us in Committee that this was because of a lack of agreement as to the type of tribunal to be set up. However, as the Government agree that the combination of friendly help and the issuing of punishments by the same body is unsatisfactory, I hope that the House will at least accept the first amendment and leave it to the Secretary of State to make up his mind as to the form of tribunal required. If that is accepted, we can then

343
discuss Amendment No. 46 which deals with the legal machinery recommended by the Prior Committee.
Noble Lords must remember that the penalties concerned can be very severe. The maximum loss of remission was 180 days, but I am glad to say that it has now been reduced, with the Government acceptance of one of the Prior recommendations, to 120 days. However, that amounts to a sentence of an extra three months' imprisonment. Remission, of course, is a privilege but one which can only be forfeited by proved misconduct and it is utterly wrong that sentences of this kind should be handed out without the proper judicial supervision.
I repeat what was said in Committee. This tribunal has the support of all people professionally concerned in this field with the exception of the majority of boards of visitors; but, curiously enough, there is an Association of Visitors Boards which supports the amendment. It is also supported by the Magistrates' Association, the Law Society, the prison governors' branch of the Society of Civil and Public Servants, the Prison Officers' Association, our own, parliamentary All-Party Penal Affairs Group, NACRO, the Howard League and the Prison ReformTrust. When one backs this up with two very careful reports, one chaired by the noble Earl, Lord Jellicoe, and the other by Mr. Peter Prior—10 years apart but very nearly making the same recommendation—one is certainly confronted by what appears to be an obstinate refusal.
Kai Lung, that very good adviser, once said:
"A prickly mimosa is defence enough for a naked man armed only with a just cause."
Our cause is just but we are naked against the in-built majority on the other side, and the Home Office protection of the Minister is certainly prickly enough. This is a non-party issue. What may and, I am afraid, will happen is that a number of strange faces who have not listened to the argument will come into the House and support the Government in their determination not to put right what is admitted to be unsatisfactory in a sphere which is increasingly tense and difficult.
My own belief and the belief of my colleagues and the other people who support this amendment is that one of the provisions which can do most to ease the tension in a prison is a really effective board of visitors. We believe that unless at least Amendment No. 45 is carried and, preferably, Amendment No. 46, the possibility of strengthening the position of prison governors will be missed. I beg to move.
Lord Simon of Glaisdale: My Lords, I do not know whether it is convenient to intervene at this moment and whether it interferes with the dinner arrangements, but I hope noble Lords will indicate if they are becoming hungry and would rather that the debate was adjourned at this point.
I would have put my name to these amendments were it not that I had misgivings about the drafting and the machinery; but as to the principle, I confess I have no doubt at all. Where the liberty of the subject is concerned and he is liable to imprisonment it seems to me that he is entitled to a tribunal with a legally
344
qualified chairman. The noble Lord, Lord Donaldson, has deployed all the arguments which I shall not repeat. Having indicated a generally favourable view in Committee, I am grateful to the noble Earl for having written me a long letter setting out his views. The noble Earl must have worked fantastically hard between Committee and Report and it is a matter of regret, under those circumstances, that I was not persuaded by his letter. I only desire to say that it is many years since I had responsibility for prison administration, though of course when I went on assizes, like other judges on circuit, I invariably visited the local prison. However, even so, my experience is long out of date.
We had a rather similar problem in the Percy Royal Commission on mental health of which, I suppose, I am the last surviving member. There was a question of the liberty of persons who were compulsorily detained on the ground that they were considered to be of unsound mind. There again, there were visitors who visited the mental hospitals. I do not, for a moment, equate that with the prison visitors but there is that parallel. We discussed this matter at great length and came to the firm conclusion that a mental health review tribunal should be set up, legally chaired, and that was accepted without demur when the Mental Health Act 1959 was passed.
If it was necessary in that case—the liberty of the subject being a concern—to have an independent tribunal, legally chaired, it seems even more necessary in the present case for the reasons given by the noble Lord, Lord Donaldson.
I thought that the recruitment argument that was put forward by the noble Earl in his most helpful letter was overdone. I do not believe that if we managed with the Mental Health Review Tribunal we would really have any difficulties in this field. I therefore support the amendment.
Lord Mishcon: My Lords, on behalf of the Opposition let me say at once that we support this amendment, as the noble Lord, Lord Donaldson, indicated. Possibly the power of our support may be measured by the brevity of my speech.
In those circumstances perhaps I may merely emphasise the following points. The board of visitors at the present moment—a body whose main function is regarded as being one of listening to complaints from prisoners and seeing whether they are justified—has the power to impose up to 180 days' loss of remission. If they happen to be consecutive offences that limit of 180 days can obviously be exceeded. It seems transparently obvious that it is the wrong body to be able to do this, to have the respect of the prisoners or to carry out its proper objective functions. That is the first point.
Secondly, this is not the view of some Members of your Lordships' House who have decided to put some revolutionary amendment down at Report or any other stage on this Bill. As the noble Lord, Lord Donaldson, pointed out, this was the view of the committee chaired by the noble Earl, Lord Jellicoe. The previous Home Secretary, Mr. Leon Brittan, set up a committee which was chaired by Mr. Peter

345
Prior. This is the very recommendation—as the noble Lord, Lord Donaldson, said, with very little difference—put forward by the Prior Committee and the Jellicoe Committee.
The third point is that everybody seems to agree with this proposal except the Home Office administration at the moment. I say "at the moment" because I am hoping that there will have been a change of mind over the last few minutes, having heard the speech of the noble Lord, Lord Donaldson, the noble and learned Lord, Lord Simon, and myself—I cannot think of a more convincing trio! I hope therefore that the noble Earl will have changed his mind.
However, the only other people who have put forward any doubt about how to form an alternative body, or to suggest that an alternative body should not be formed in the way mentioned in this amendment, are the boards of visitors. I have an idea that they may feel that there is some reflection on the way in which they have dealt with these matters in the past. That is not so, and one would have thought that their objection at the moment—which I understand may be fairly active but not very active—was the only reason for this amendment not being passed.
When I said that there was no objection to the procedure before, l must tell your Lordships, without wearying you with the cases involved, that there have been a couple of cases—a recent one before the Divisional Court—where the rights of prisoners were very definitely looked at and where what had happened in regard to procedure was frowned upon by the court, and indeed certain principles were laid down.
We now have the opportunity of carrying out the recommendation of two responsible committees. One never knows why committees are set up by Ministers unless they intend to give very serious consideration to their recommendations. We have that opportunity now; the noble Earl has it. I hope that he will take advantage of the opportunity.
The Earl of Caithness: My Lords, these amendments afford us a further opportunity to consider the prison disciplinary system. As I understand the noble Lord, the two new clauses he has tabled are intended as alternatives. One, identical to the one we discussed in Committee, is intended broadly to implement the Prior Committee's proposals for a new Prison Disciplinary Tribunal, with a circuit judge as president, legally qualified chairmen and lay members. The other, as I understand it, is intended in effect to implement the proposals in the White Paper on the prison disciplinary system (Cmnd. 9920) for a new lay body, which would be separate from boards of visitors, to deal with the more serious breaches of prison discipline.
7.15 p.m.
Lord Donaldson of Kingsbridge: My Lords, they are not alternatives. They can be alternatives but they can both be passed. If noble Lords pass the first you leave open the exact construction of the tribunal. If noble Lords pass the second, you fill that in.
The Earl of Caithness: My Lords, I am delighted that the noble Lord has been able to correct me there. In that case I should say "and/or". I explained in some detail in Committee why the Government had decided not to proceed with the White Paper proposals for this new lay body. I also explained, however, the steps we were planning to take to improve the existing adjudication arrangements, principally by accepting in large part the Prior Committee's recommendations for a new code of discipline and various procedural changes and by providing hoards with the assistance of court clerks or solicitors. I recognise that these plans do not go as far as some people would wish, but I believe that they hear a close scrutiny as serious and worthwhile improvements to the present adjudication arrangements—improvements which, I may say, will involve a lot of hard work to put into effect.
As anyone who studied our White Paper of October 1986 will know, we gave careful consideration to the Prior Committee's proposals for a new disciplinary body. At this stage I should like to emphasise to the noble Lord, Lord Mishcon, that we did give serious consideration to the proposals. I am sure that he would be the first to agree with me that it is for the Government in some cases to institute these committees but it is for Parliament to decide at the end of the day which of the proposals it would like to see implemented and not necessarily to accept the committee's proposals carte blanche.
We also looked, as we were bound to do, at other possible options, in particular the use of magistrates and their clerks, and the option which the White Paper actually favoured, that of separate lay panels, assisted by qualified clerks. As the White Paper made clear, we recognise the arguments in favour of a tribunal of the kind suggested by the Prior Committee, but in the end we were persuaded, and remain persuaded, against such a tribunal because it had, in our view, serious disadvantages.
First, we consider that a tribunal system with a circuit judge as president and legally qualified chairmen (barristers or solicitors of not less than seven years' standing) would simply be too weighty a body for the business with which it would have to deal. It would certainly be more weighty than the magistrates' courts but it would be dealing with behaviour which, even if it corresponded with a criminal offence, would not in fact be serious enough to merit referral to the magistrates' courts.
Secondly, although the new clause to implement the Prior tribunal talks disarmingly of no fewer than four legally qualified chairmen, let us be quite clear that, as the Prior Committee itself recognises, bearing in mind the number of cases (about 3,500 a year) and the geographical spread of our 120 or so establishments, we should need in the region of 80 part-time appointments. The pool from which these appointments would have to be made would be the same one from which circuit judges, and other judicial officers, principally recorders and assistant recorders, are appointed. The depletion of that pool by the number of appointments in question would be singularly unwelcome to my noble and learned friend the Lord Chancellor, particularly at a time of growing pressure on the Crown Court.

347
Thirdly, an essential ingredient of an effective prison disciplinary system is the ability to arrange adjudications speedily, ideally not more than three to four weeks after the alleged offence. We have very serious doubts about our ability to convene panels chaired in the way the Prior Committee envisaged as quickly as would be desirable, and this was a factor which we thought it right to take into account.
Finally, I refer to a point on which the new clauses are silent. The Prior Committee suggested that its proposed tribunal would need its own administrative backup, regionally based. Our estimate was that this would require some 25 additional staff, plus accommodation and support services. Moreover, this estimate was based on the assumption—as the White Paper pointed out, a questionable assumption—that there would be no need for these staff to act as clerks at adjudications.
As I have indicated, we looked at two other options. We concluded that, taking all factors into account, the Prior tribunal was not the right way forward, and that the option for separate lay panels, assisted by clerks, was.
However, this solution gathered very little support. The proponents of the Prior tribunal saw it as inadequate, while the opponents at best were unenthusiastic. We listened to, and took note of, these views. We wanted to proceed by agreement, but that agreement was not forthcoming. We decided therefore, that if progress was to be made on the non-structural aspects of Prior we should have to forgo the idea of separating the adjudicatory and watchdog functions. I acknowledge candidly that this was a pragmatic response. I have to say also that as I became more familiar with the work of the prison department and indeed the work of boards of visitors, the more I became convinced that boards could cope and were coping very well with their adjudicatory functions. Far from being undermined by judicial review, the existing adjudicatory arrangements have both stood up well to the test of judicial review and have benefited from the guidance which has emerged from judicial review. I have also become convinced that the benefits to be obtained from the separation of the watchdog and adjudicatory functions are largely theoretical, and that they would have a serious practical cost in terms of the upheaval they would cause. In this connection, I have to say that we could well face serious difficulty in securing the services of sufficient numbers of suitable lay people to meet the requirements of both a new adjudicatory system and the important existing watchdog role which boards of visitors discharge.
While I have the highest regard for the legal profession—my regard is even greater having taken the Bill through its stages to date— and, indeed, for the noble and learned Lord, Lord Simon of Glaisdale, as a Minister in the department reponsible for the magistrates' courts I cannot accept that the importation of legally qualified chairmen is essential to achieve fairness. We have a proud tradition of summary justice administered by laymen and women, assisted, of course, by professional clerks. This is the model that we consider to be appropriate for the prison visiting system. I would go further and
348
say to the noble and learned Lord that there are a number of magistrates on boards of visitors. Of the 1,529 members of boards of visitors, 628 are serving justices of the peace. My maths, fairly elementary as it is, calculates that to be some 41 per cent. of boards of visitors. I repeat to the noble and learned Lord, Lord Simon of Glaisdale, that we shall be giving the boards legal advice from now on. That is one of the recommendations of Prior that we have accepted.
There is another point which was not raised at Committee— I should have raised it and I apologise to the House. We await, and are about to receive, the thematic review of the outgoing Chief Inspector of Prisons on grievance procedures. This will provide an opportunity to look comprehensively at the way in which prisoners' grievances are handled. This in its turn has implications for the role of boards of visitors.
Since the last stage I have discussed at great length with members of boards of visitors, both for and against, and other members of the prison service what their attitudes are to our decision, given what was said by your Lordships in Committee. They have all said that we are right to be doing what we are doing. Perhaps some of them do not like it, but in the present circumstances they believe that the Government have taken the right decision.
Let me conclude by saying this. First of all, I am grateful to the noble Lord for having given us this further opportunity to discuss the prison disciplinary system. Secondly, while the Government are grateful to the Prior Committee for the valuable work it did and for the many recommendations we are pursuing, we do not think that it got it right with its proposed tribunal. Thirdly, we accept that our proposed lay panels do not command sufficient support. I see no prospect of finding acceptable new structures in the foreseeable future.
I did not differ from the noble Lord, Lord Donaldson of Kingsbridge, when he said that the boards of visitors must be effective. I believe that they are effective and will continue to be effective with the proposals which we have in mind and which we have discussed tonight. I hope that the noble Lord will accept that, while we differ on whether or not the new machinery is necessary, he and I share the objective of improving the disciplinary system and I therefore hope too that he will be able to accept my argument this evening.
Lord Donaldson of Kingsbridge: My Lords, we concluded in Committee that I was unlikely to agree with the noble Earl and I do not think he expects me to do so today. I am disappointed because I carefully raised two amendments so that if the noble Earl found, in his rather delightful phrase, that he could make only a pragmatic response to my request to set up a tribunal—a pragmatic response meaning a reasonably stated excuse for doing nothing about it—he could take the first amendment and say, "We have already told you that we agree that these disciplinary matters should be separated from the caring or friendly duties of boards". They mentioned this in the White Paper and he has twice half said and half withdrawn it (I believe this seriously). The noble Earl could have given us some encouragement to pass

349
the first amendment and then told us what the Government could do in the form of a makeshift system. He could have said, "We will see that there are at least three magistrates on every board"—if there are 41 per cent. that means that there are jolly nearly two already—and could have said, they shall sit separately and have a separate function to deal with such cases." That would have gone some way in the right direction, although not as far as I had hoped for. To give one absolutely nothing at all, except that there is to be a disciplinary code to be administered by the same people—people whose administration of it we object to anyway—is a poor response.
The noble Lord spoke of the Prior suggestion as being too weighty. Conditions in prison are not the same as conditions outside. Ordinary magistrates' courts can deal with a three-month prison sentence, which is what we are talking about under the new code. It is a very big sentence for the man already serving it, who is expecting to get out on a certain date. It needs a weighty tribunal to satisfy him and his colleagues.
Lastly, if it is true that the Prison Governors' Association and the prison officers staff have told the noble Earl that what has been decided is absolutely splendid, in spite of it not being what they want, that is not the kind of response I have received.
For the reasons I gave in my opening remarks we shall not win this because the people who will be voting have not listened to the argument, do not know anything about it and are treating it as a party matter. I shall display that by putting the matter to the vote.
On Question, Whether the said amendment (No. 45) shall be agreed to?
Their Lordships divided: Contents, 31; Not-Contents, 65.

DIVISION NO. 2

CONTENTS

Airedale, L.

Hutchinson of Lullington, L.

Ardwick, L.

Jay, L,

Avebury, L.

John-Mackie, L.

Blease, L.

Kilbracken, L.

Buckmaster, V.

Lloyd of Kilgerran, L.

Carmichael of Kelvingrove, L.

Longford, E.

Carter, L.

Mackie of Benshie, L.

Dean of Beswick, L.

Mishcon, L.

Donaldson of Kingsbridge, L. [Teller.]

Morton of Shuna, L.

Ponsonby of Shulbrede, L. [Teller.]

Ennals, L.

Graham of Edmonton, L.

Silkin of Dulwich, L.

Harris of Greenwich, L.

Simon of Glaisdale, L.

Henderson of Brompton, L.

Stoddart of Swindon, L.

Hooson, L.

Ullswater, V.

Houghton of Sowerby, L.

Underhill, L.

Hunt, L.

NOT-CONTENTS

Abinger, L.

Caldecote, V.

Allenby of Megiddo, V.

Cameron of Lochbroom, L.

Arran, E.

Campbell of Croy, L.

Atholl, D.

Carnegy of Lour, B.

Balfour, E.

Carnock, L.

Beaverbrook, L.

Coleraine, L.

Belstead, L.

Colwyn, L.

Brabazon of Tara, L.

Cottesloe, L.

Brougham and Vaux, L.

Davidson, V. [Teller.]

Caithness, E.

Denham, L. [Teller.]

350

Dormer, L.

Mersey, V.

Dundee, E.

Monk Bretton, L.

Elliot of Harwood, B.

Mountevans, L.

Elliott of Morpeth, L.

Murton of Lindisfarne, L.

Elton, L.

Nelson, E.

Glenarthur, L.

Orkney, E.

Goold, L.

Romney, E.

Grantchester, L.

Saltoun of Abernethy, Ly.

Hesketh, L.

Skelmersdale, L.

Hives, L.

Somers, L.

Hooper, B.

Stanley of Alderley, L.

Hylton-Foster, B.

Strange, B.

Joseph, L.

Strathclyde, L.

Kitchener, E.

Thomas of Gwydir, L.

Lane-Fox, B.

Thomas of Swynnerton, L

Lawrence, L.

Trumpington, B.

Long, V.

Vaux of Harrowden, L.

Lucas of Chilworth, L.

Ward of Witley, V.

Lyell, L.

Whitelaw, V.

Macleod of Borve, B.

Windlesham, L.

Malmesbury, E.

Wise, L.

Marley, L.

Wyatt of Weeford, L.

Merrivale, L.

Resolved in the negative, and amendment disagreed to accordingly.
[Amendment No. 46 not moved]
The Earl of Arran: My Lords, this may be the appropriate time to adjourn the Report stage. I suggest that we do not resume before 8.35 p.m. I beg to move that further consideration on Report be now adjourned.
Moved accordingly, and. on Question Motion agreed to.

Welfare of Battery Hens Regulations 1987
7.35 p.m.
The Parliamentary Under-Secretary of State, Ministry of Agriculture, Fisheries and Food (Baroness Trumpington)The Parliamentary Under-Secretary of State, Ministry of Agriculture, Fisheries and Food (Baroness Trumpington) rose to move, That the draft regulations laid before the House on 6th July be approved. [2nd Report from the Joint Committee.]
The noble Baroness said: My Lords, I beg to move. With your Lordships' permission, it would be convenient to discuss together both instruments standing in my name on the Order Paper.
The battery hens regulations implement a European Community directive which lays down minimum welfare standards. I ought to say straight away that the Government welcome the principle of Community safeguards for animal welfare. The directive means that there will now be welfare standards in all member states. For the first time there will also be statutory rules with the force of law behind them, which will be a new development in the United Kingdom and elsewhere.
The regulations are being made after full consultation with interested parties and follow the provisions of the directive pretty closely. They fall into two parts. General requirements, such as cleaning and proper daily inspection, are contained in the schedule and will apply to all cages from 1st January 1988. The more specific standards, such as the minimum floor area and cage height, are laid down in the main body of the regulations. These more exacting provisions will come into effect from 1st January next year for new cages. But for existing

351
cages a generous phase-in period had been provided, so that producers will not need to comply until 1st January 1995.
To many people the most important provision is the minimum space allowance per bird, and here we have taken the figure of 450 sq cm contained in the directive. The Government said at the time that we were disappointed with this figure but that it was the best we could get in Brussels. We would have preferred to get Community agreement on 600 sq cm, but that was not possible. With one exception, therefore, we have kept the directive's figure of 450. The exception concerns cages with small numbers of birds. Most cages contain four, five or six birds and this provision will not apply. But where there are only one, two or three we believe it is right to allow them each more space. This is because birds in larger numbers can to some extent share each other's space. Such sharing is not possible when there are only small numbers.
The directive contains a provision for a scientific review in 1993. The idea is that the Commission should come forward with a report on developments and possible amendments to the directive for discussion in the Council of Ministers. My department will keep in touch with the welfare societies, the egg industry and those engaged in R&D over the next few years so that we can be fully prepared to take part in those discussions. We would expect them to include both welfare and industry concerns.
My department has had representations from the egg industry about the effect of these regulations on the so-called A-frame cages, which make up about a third of all cages in current use. These cages have an inward-sloping back and therefore have limited headroom. The effect of the directive's provision on cage height, combined with our own rules on floor space, is that some producers might have to take several birds out of the cage to make it comply fully. We accept that this is a problem for a minority of producers, although even these people would not need to change until 1995. In view of their concern we are prepared to keep the position in the industry under review over the next few years. If there is still a significant problem by the time the directive comes up for review in 1993, we shall consider seeking an amendment to it. or possibly to our own regulations, to deal with it.
To conclude on battery hens, I know that there is a wide spread of opinion as to how stringent these rules should be. The Government have to strike a balance. We believe that these regulations—which set statutory standards for the first time—will help to protect the welfare of the birds. If we find that they create a continuing problem for the industry, we shall undertake to see what further action we can take.
I should now like to turn to the Welfare of Calves Regulations, which are intended to ban veal crates. The veal crate is the most intensive form of husbandry used in the cattle sector, and consists typically of a narrow high-sided individual box, in which the animal is unable to turn round. The system is coupled with a diet which is low in iron and which contains no roughage. This can distort the
352
development of the rumen and increase the risk of digestive problems, as well as causing the calf to become anaemic.
There has been widespread and long-standing concern about the welfare of calves in crates. This was raised as long ago as 1965 by the Brambell Committee, which looked into intensive livestock systems. The welfare code for cattle, first published in 1971 and revised and strengthened in 1983, makes several recommendations which are breached by the crate system. When the code was revised, the Government hoped that it would mean the end of veal crates; but this has not happened. We have therefore decided that the time has come for legislation.
The regulations will apply to all calves kept in single pens or stalls. They will set conditions which effectively rule out the features associated with crates. Other rearers of calves in single pens will have no difficulty meeting these provisions. First, we shall require the width of all such pens to be not less than the height of the animal at the withers—a precise point at the top of the shoulder. We shall also require the calf to be able to turn round without difficulty. These two measures will deal with the problem of confinement.
On diet, the regulations will require sufficient iron in the daily ration to maintain the calf in full health and vigour. Calves over 14 days old will also be required to have access to enough digestible fibre so as not to impair rumen development.
I know there is concern that, although we are banning crates here, we still export calves which will go into crates on the Continent. We are anxious to see similar rules applied in other member states, and are pleased to be able to report that the European Commission is already working on a calf directive. We are helping them with their preparatory work and will certainly support a Community-wide measure as soon as it is tabled.
Finally, my Lords, I can assure you that the calves regulations are being introduced for sound welfare reasons. Producers using them have already had several years of official discouragement, and there are other systems available. We said at the end of last year that we would phase them out over three years, and the regulations will come into effect on 1st January 1990. I beg to move.
Moved, That the draft regulations laid before the House on 6th July be approved. [2nd Report front the Joint Committee]—(Baroness Trumpington.)
7.45 p.m.
Lord John-Mackie: My Lords, we are delighted that the noble Baroness has brought these regulations forward for discussion. There is no question, particularly so far as concerns the battery production of eggs, that there is a lot of feeling one way or another and I think that these regulations should help to give some succour to the people who feel that battery egg production should be banned altogether.
Whatever one may think of battery egg production there is no doubt that it produces cheap eggs. I looked at the egg stall in a supermarket no later than this morning and found that half a dozen eggs, which

353
I am pretty certain were all battery-produced eggs, were 56p a half dozen and free range eggs were 79p for half a dozen. They were No. 4 size eggs. That makes a tremendous difference of 46p a dozen between eggs produced by battery production and by free-range production, and somebody told me that they did not think that free-range farmers were making much of a profit even at those prices. Whether of course the supermarkets are taking too much profit on them I do not know, but that is the difference. We have to look at that side of it when discussing the abolition of battery egg production altogether. To be fair to these figures, the smaller the egg the difference is not quite so great.
Over the years there has been the development of different batteries, which the noble Baroness mentioned, and fresh regulations. As regards the regulations, I have been handed the Joint Committee on Statutory Instruments report on these regulations, and I must admit that it is pretty hard on them. No doubt the noble Baroness has had pointed out to her what it says. It is a little vague. It says:
"Most of the requirements in the Schedule seemed to the Committee to be extraordinarily vague. Given that the breach of these requirements would constitute a criminal offence, the Committee inquired whether it would not have been possible to tighten up the terms of the Directive rather than reincorporating them virtually wholesale?"
When one reads some of the regulations—particularly the one on the angle of the floor—they are difficult to understand. They make a point of what exactly eight degrees means as against 14 per cent. The committee gives a sketch which explains it to a layman, but I think that the noble Baroness should take note of these matters.
The other point I want to raise on the regulations is the question of:
"'laying hens' means adult female domestic fowls which are kept on agricultural land for egg production".
Does that cover a battery on cement at the back door of some smallholding, or a private house where somebody has a bit of land? I presume it does, but there are these things in the regulations which are, as the committee says, a bit vague. Because they will be criminal offences they will need to be cleared up a bit.
As I said earlier, and as the noble Baroness said, there have been changes in the design of batteries and these regulations create a problem. I understand that the alterations that the Danes made a few years ago have been much to the loss of the Danish farmers who have lost a great deal of business to the Dutch because the regulations were so hard.
We welcome what the noble Baroness proposes to do about the A-frame battery, which is a good battery in that it allows the droppings to drop clear of the other cages, and also one can see the birds much better. From a husbandry point of view the birds are much easier to see because there is light coming in from the top on every layer of cage whether there be three or four. I think that these regulations could create the following situation. I gather that if they were carried out to the letter they could reduce the number of hens in an A-battery by up to 60 per cent., and that would mean a considerable loss to the farmer.
354
I do not know how long batteries last. I installed a battery just after the war. It certainly lasted 10 or 12 years; I sold it, and I think it is still going. It may seem a long time to 1995 but it passed very quickly. I think that the noble Baroness mentioned that in 1993 they would look at the regulations again so that they could do something by 1995.
As we all know, there is tremendous competition in the EC in the egg market. Anything that would put our farmers at a disadvantage would be most unfair. Therefore we welcome the point that the noble Baroness made.
On the question of the calves, of course nobody likes the veal calf system at all. We know the reason for keeping them from turning round of course: for control. The food had no roughage, but nowadays one cannot buy food without the proper fibre and so on.
I wonder whether the noble Baroness has any thoughts about whether the regulations for calves should deal with the fact that veal calves are always kept in darkness. There is no word as to whether we ought to stop keeping them in the dark.
On the question of calves in general, I was brought up in Aberdeenshire where it will now be an offence to tie up any animal. I left Aberdeenshire and have not been on a beef farm for a long time, but my noble kinsman may know of a whole host of cattle tied up in what we call byres that are well looked after and perfectly happy.
In Denmark I saw sows tethered in wide stalls and bedded on straw. One could not have seen a better bit of husbandry than that. We need to look closely at the suggestion that farmers in the North-East are being cruel to cattle by keeping them tied up in byres.
With regard to the regulation about the height and the width—the height being the height up to the wither—I think it would be much better to take an average size calf and give a figure. I can imagine a joiner coming along to make some calf pens, trying to catch a calf to measure its withers and then deciding how wide to make the pen. I feel that is a little vague.
However, we welcome these new regulations to help the situation in animal husbandry, particularly intensive animal husbandry. Apart from the points that we have made, we give them our blessing.
Lord Mackie of Benshie: My Lords, we, too, from these Benches welcome the regulations. I must say that I welcome them much more wholeheartedly than my noble kinsman. I should hope that the regulations would not only improve the temper of the critics but would do something for the hens as well. As a farmer I detest the battery system. I know that it produces eggs and, as my noble kinsman said, they may be cheaper; but free-range eggs would certainly be worth half as much again as eggs produced in a battery. The system is widely abhorred.
Another kinsman of mine shows many schoolchildren round his farm. They go into the calf house and the the milking parlour which are very modern. They go into the piggery. They are extremely interested. However,when he takes them into the battery house a hush falls on the children. I think that this is universally felt.

355
Therefore I welcome the small step forward in the regulations. I am not unaware of the fact that in this kind of case we must protect our producers who are driven by commercial factors to produce in this way, as against our comrades on the continent.
I hope that the Government will take a lead in pushing for further regulations. I thought it delightful that the cage is sloped in such a way that the droppings fall clear. I have no doubt that that is absolutely admirable, but why should the bird have to bend down every time it wants to defecate? It appears to me to be most cunning, but it is still not at all a good system. Therefore, I hope that the Government will work towards getting it abolished throughout the EC. We shall then have far better eggs. The hens will take up some of the land that at present is used to produce surplus food. We should produce from that land something worthwhile and worthwhile eating. While paying due regard to the competitive nature of the industry, I do think that this is a step forward.
In the case of the calves I do not think that there is anything with which to quarrel. I cannot see that the colour of the veal that we eat should be obtained by depriving the calf of any vital element in its growth, particularly as calves may be intended for veal but given fodder at a later stage.
I can assure the noble Baroness that from these Benches I welcome the regulations. I recognise the practical difficulties of the industry. However, I hope that the Government will push for regularisation of the position on batteries inside Europe and progress to abolishing them altogether.
8 p.m.
Lord Elliot of Morpeth: My Lords, I seek to take part in the discussion on the regulations which are before us, mainly because in another place in the parliamentary session 1980 to 1981 I chaired the Select Committee on Agriculture and with 11 of my colleagues in another place spent an entire parliamentary session looking into the conditions in which eggs, meat from pigs and meat from veal calves was produced. Our inquiry was a natural follow on to the Brambell Report which my noble friend mentioned in opening this evening. It was also very much in response to a great deal of public disquiet at that time about what had become known as factory farming. I believe that there is a great deal of public disquiet about factory farming today, as the noble Lord, Lord Mackie, who has just spoken, has indicated.
I was interested in his comments about schoolchildren being taken round a farm. I can fully understand the reaction of young people in seeing hens particularly in their natural condition in a farmyard and then seeing them in the battery system.
Back in 1981 my committee produced our report and our recommendation for battery hens was that Community agreement should be sought to obtain through regulation a minimum of 750 square centimetres per bird in battery cages. We also very strongly recommended that 550 square centimetres was the absolute minimum that could possibly be reasonable.
356
I therefore welcome, belated as they are, Recommendations (1)—(3) which are before us tonight. I regret very much that birds in cages of four should just have 450 square centimetres. My committee further recommended that agreement should he sought in the European Community on a statement of intent, that after a period of five years egg production should be limited to approved methods which would not include battery cages in their present form.
The date of that report which I signed was 2nd July 1981. The new regulations represent, as the noble Lord, Lord Mackie, has suggested, a modest step forward on the humane front. The new regulations representing this modest improvement in welfare are not effective until 1st January 1995—food for thought for those of us who sat on that committee those years ago. My colleagues and I on that Select Committee were fully aware of the economic consequences of our recommendations. Throughout our report— as those of your Lordships who have read it will note—we appreciated that regulation must be on a Community basis if the United Kingdom producer was not to be disadvantaged. The point was made by the noble Lord, Lord John-Mackie, speaking for the Opposition. However, we did not hesitate in our conclusion. The report summed up our feelings, and I should like to quote from paragraph 149:
"Despite the conflicting arguments our conclusion is clear: we have seen for ourselves battery cages, both experimental and commercial, and we greatly dislike what we saw. We think that, provided that a move away from them was carried out over a reasonable period of years, and provided that it was made in concert throughout the Community, then so far as can be estimated at present the economic consequences would not be prohibitive, the likely price increases need not he unacceptably large, and consumers would adapt to them as they have to much else".
Since the production of our report—since I wrote that paragraph- progress has been deplorably and abominably slow. I hope that our strong recommendation, made at the time of the report, that research into alternative, more humane methods of egg production will continue.
What is happening with regard to the hopeful work which was being carried out at that time at Gleadthorpe on the aviary system or the work at Celle in Germany on the get-away cage system? The noble Lord, Lord John-Mackie, spoke of the use of land. I remember that during the course of our inquiry in 1981 a witness stated that the straw yards system—which was a reasonable system and certainly more humane than the battery system—was at a disadvantage because it would take precisely five times as much land as the battery system. We are now looking for alternative uses for land so perhaps it may not be too had a thing if the straw yard system were to be considered once again.
I believe that public opinion has moved with regard to battery and free-range produced eggs. Free-range produced eggs are now more freely available than at the time of the production of our report. I live in the heart of Northumberland where we can obtain free-range eggs easily. When I am in London I live in the heart of the metropolis, as my noble friend knows, because we are neighbours. I have no difficulty in obtaining free-range eggs here and I think that it is an improving trend. There is, however, no

357
doubt— and we would be foolish if we did not recognise it—that a caged system of some kind will continue for a long time to come. The economics of the situation still demand it.
I hope that more research will be undertaken and that in the near future further steps will be taken. I regret that action since the production of a report, on which 12 Members of another place, including myself, did a great deal of work has been so long in coming. During the course of that we experienced a great deal of distress at what we saw. I hope that it will be not too long before we have a further step forward.
I welcome the requirements laid down in the draft regulations as regards veal calves. The Select Committee's recommendation that, above all else, a calf should have the ability to turn round is met. That is a good thing, whether it is measured by the withers or in another way. It will now be possible for a veal calf to turn round and that is an enormous step forward in the name of humanity. It was a deplorable sight to see rows and rows of calves unable to turn round in the full period of their short lives. Considering the deplorable conditions in which we saw them kept, one felt a certain amount of relief at knowing that their lives would be short. I welcome the new regulations but I regret that they will not come into force until 1990.
The committee strongly recommended that the production of loose housing for veal calves should be given full consideration by the government of the day. I hope that the advantages of loose housing are still being borne in mind by Her Majesty's Government.
As the past chairman of a Select Committee which looked into the subject closely and carefully, I welcome the recommendations, but with the reservation that they have been too long in coming and that they are much too modest.
Lord Somers: My Lords, I welcome the recommendations in the sense of welcoming not half a loaf as being better than no bread but a single crumb. The regulations have a few things to recommend them but I think that they may be harmful in confirming to the public that the Government approve of intensive farming. I do not disapprove of intensive farming merely from a humanitarian point of view. I dislike it also because of the danger to the consumer. The animals, which live an entirely captive and unnatural life, become delicate and subject to all kinds of disease. They have to be injected with antibiotics and, as everyone knows, calves must also be injected with hormones. It is that which makes the meat eaten by the consumer unnatural and possibly even dangerous.
It is a pity that the regulations were not prepared in English. For those noble Lords who do not understand European, I should like to point out that 1,000 sq. c. equals a rectangle of approximately 19½ in. by 7½ in. It could be a different measurement but it is a small space in which a hen must spend its entire life.
On the other hand, I am glad that the food for calves has been improved. It is much better than the food they are given in France. There they are made
358
anaemic because the French public demands white veal. I am thankful to say that we in this country are not quite so particular.
The noble Baroness said that the regulations are put before us in order to keep in step with European standards. Why on earth should the European Commission dictate to us as regards our domestic affairs?—on international affairs most certainly, and one can understand that. But it seems to me that our domestic regulations are entirely beyond its business and I cannot understand it. However, I dare say that I am one of those old-fashioned people who like England to be England.
I do not like the regulations. I do not like intensive farming but, on the other hand, they might he a great deal worse.
8.15 p.m.
Lord Houghton of Sowerby: My Lords, at the risk of being tedious, I shall complain once again about the indiscriminate way in which important business is raised during what is supposed to be a break for supper. I hope that the Procedures Committee will look very closely at the convention to see whether something better cannot be arranged.
I think that this debate reflects matters of much greater importance than the regulations themselves would suggest. I find it extremely congenial to be in the company of those who are interested in this subject, but I deplore the fact that the majority of noble Lords go to join in the social life available at Westminster, while some Members remain behind to do what they believe to be their duty. One day I shall become so impatient that I shall do something rash. I shall bring in my own sandwiches and have my own working supper. It will shame all those who are enjoying the amenities of Parliament to a greater extent than are those now present in this Chamber. I shall leave the matter there.
Of course the draft regulations are welcome, but they are 22 years behind the times. The Brambell Committee, which has already been referred to, began the analysis of the new development of intensive animal husbandry. The committee was set up by a Conservative Government in the summer of 1964 and reported in December of the following year when a Labour Government was in power.
At this point I must say that I deeply regret that the Labour Government in 1965 was so shamefully weak that they did not do something much more positive then. I share the responsibility for that, and I can only offer in extenuation the political circumstances in which the Brambell Report was received. At the beginning of 1964, the Conservative Government made a very generous farm price settlement. I am sure that they had no ulterior motive for doing so. When the Labour Government took office later that year and had to deal with the Farm Price Review in 1965 (of which body I was chairman) something had to be done to curtail the rising costs of agricultural support. But with a tenuous majority in the Commons, it was difficult to follow one unpopular measure with another. When the then Minister of Agriculture, my noble friend Lord Peart, who I very much regret is unhappily unable to be with us on these occasions, was going round the country to meetings of the National Farmers' Union, he had

359
dead chickens thrown at him on account of the discontent with the Farm Price Review of 1965.
We should have grasped the nettle then, but we never have our time over again. These regulations are of the same type (though in some respects not as good) as those recommended by the Brambell Committee 22 years ago, which shows just how long it takes to make progress. People say that one cannot stop progress, but my experience has been that it is hard to get it going, and in this particular connection it certainly has been difficult.
We are now in the European dimension whereas in 1965 we were not. In 1965 we were masters in our own house although, admittedly, the rivalry in prices and production between agriculture in this country and Europe was still present. However, at least it was not governed by the disciplines and laws of the European Community. I was strongly in favour of Britain joining the EC as I realised that it would mean entering a new dimension and bring a new discipline that we should have to accept in the interests of the common advancement of policies throughout Europe. Today we are confronted with one of those policies.
One of the traits that I so much deplore in the human species is the way in which we treat animals. Our attitude seems to be that animals are either for slaughter, for domestication or for imprisonment. We put them behind bars, and when it comes to intensive animal husbandry living creatures stay behind some very small bars indeed. I make no apology for referring first of all to calves, which have probably suffered most. The Brambell Report recommended some quite positive conditions under which veal calves should be kept. The consumer fad for white veal is an abomination because we make the calf do its own bleaching by the manipulation of its food intake, by keeping it in darkness and not allowing it reasonable room for movement. There is not the slightest doubt that when we see a regulation about prevention of cruelty, cruelty is exactly what we mean. Cruelty, whether it be cruelty to animals to children or whatever, is of itself an evil thing. We have raised it to the level of a criminal offence in our statute law. It appears again in these regulations. This is the first time that regulations of this kind in respect of either poultry or calves appear in statute. Up to now we have relied upon voluntary compliance with a code of practice.
I am not a person to decry the nobility of response to voluntary effort and compliance with agreed standards which may not have the backing of statute law but have a strong moral influence behind them. Nevertheless, we now have these regulations, which appear 22 years after Brambell, to deal with calves. We are dealing with calves because the deterioration in the treatment of calves during the intervening period has been more than public opinion can take. I believe that that is another aspect of the situation in which we find ourselves at the present time. The mood of the consumer— which is expressing itself more and more in disquiet and distaste for many of the methods used in the production of animals as food—lies behind these regulations, welcome as they are. The deepest worries are aroused in the consumer
360
by the amount of doping that goes on, the hormones that are pumped into animals, and the whole range of laboratory techniques used in the treatment of animals in confined areas.
With the decline in the need for intensive arable production in our farming industry there will be a strong demand that some of the land should be used to give more space to animals that are now kept in cages, crates and other confined spaces. That will be a good thing. As for cost, one of these days we shall have to preach the doctrine that the animals come first, and if they cannot be produced at the cost that one wants to pay, they will have to be produced at the cost that one cannot afford to pay. We shall then see what your priorities are. The public has not really been tested on its priorities. We have kept food prices low; we have kept rents low; we have kept everything essential low, in order that many disposable incomes can rise for use in many directions less desirable and less needful than those which should come first in domestic expenditure.
By 1993 or 1995—I do not suppose for a moment that I shall be here to see it—something will be moving in this field which it will be impossible to disregard, and all these square centimetres, inches, slope of the floors and slats will be going out of animal production. I sincerely hope that it will.
On calves we have practices which have grown up and become intolerable, and which are now to be made unlawful. We are creating criminal law tonight in the supper break and I think we should understand that that is so. I welcome that. Even so, looking at the draft order on calves, I find some difficulty in satisfying myself that charges will stick and convictions will be made under such loose phraseology as we have in the regulations. This is the reason why, unwelcome as it may be sometimes, it is necessary to prescribe fixed dimensions and precise conditions to which conduct can be related.
If you look at the regulations, there are one or two conditions for keeping a calf which—I do not know—may be somewhat difficult to prove. They read:
"the calf is free to turn round without difficulty".
How difficult should it be for a calf to turn round without difficulty? Your Lordships know what the lawyers make of the construction of words in statute law when they get busy, and the absence in the draft regulations of something more specific about space and room for calves is to be regretted.
I am not part of the indiscipline that has kept us running late with our supper break; and I am not feeling constrained by any suggestion that we have an informal timetable on this debate—we have not. The House cannot resume on the Criminal Justice Bill until we have finished. I think that we should finish in our own time. It is important to assert our right, if we are to discuss matters during the supper break, to extend the supper break to fit our feeling of discharging our duty, which is what I am doing.
I once described the battery hen, as the most miserable being in the feathered world, and I think that is still true. Here we have more specific regulations on space to be available. The nub of the problem about the regulations for the battery hen is

361
the difference between the standards that we wanted and those which were obtainable, and the extent to which the regulations alter the directive of the EC on minimum space. That is really what is bothering the industry and is probably perplexing other people, too.
This arose when we knew of the directive of the EC earlier this year. I remember commenting on the fact that we should receive an EC directive on a lower minimum standard than we were asking the industry to provide under the voluntary code in this country, and a great many producers have sustained their business on a higher standard of space than that provided for in the EC directive. But the draft regulations depart from the EC minimum in the case of cages containing a smaller number of birds.
It is interesting to bear in mind that Brambell recommended that no cage should contain more than three birds. Now we are talking about one, two or three as if they are the smaller fry. The real business of keeping poultry today is with five and six in a cage—a sort of flock—so that they can use each other's space. The trouble about using each other's space is that you get in each other's way and that leads to all sorts of bad habits in all species. Even human beings crowded together can scarcely behave themselves in a decent fashion. It is not a hit surprising that we get cannibalism and other malpractices from one bird to another.
But the industry is saying what the regulations, as drafted, require them to do in the future, not now—and this is another feature of these regulations which we must remember. It is a phasing-out and a phasing-in process which could last a long time. For calves it is two years. For poultry it can be seven years, with a review to begin before that so that the period might not be extended unless absolutely necessary.
But it will be in the law, it will be in the regulations, and they will have the force of an Act of Parliament. The industry will have to adjust itself to the prospect that when that time comes these regulations may become fully effective. This may give rise to problems of relationships with production costs in Europe and other matters related to the EC.
But one of the things we must require in the interval is some evidence of compliance—enforcement, indeed—of the EC directive in some of the countries in Europe. We may think that 450 cm2 is a bit on the low side, and it is; but countries that have no minimum standards will have to comply with the EC regulations or should do. We want to be very clear that that is likely to be possible.
Altogether I think that this is a much more auspicious occasion than one would have realised. It is the first time that we have put in the statute law conditions in these two fields of intensive animal husbandry. That itself is a notable step. Secondly, it is the first time that we have standards set out in a European Convention. We are now part of the European dimension and that we have done for the first time and lent our influence as best we could in the European discussion.
Therefore I think I can chide the Government with having no idea how to celebrate their
362
achievements—certainly not in the supper break. There ought to have been something much more notable in the reception given to these regulations than has been possible in the rather secondhand shop conditions in which we are debating this matter at the present moment. But it is an achievement and the Government have to be commended on that. Here we have something on which to build, and bring the future consideration of this problem into the pool. I sincerely hope that this is the beginning of the next phase in the treatment of birds and domestic animals and will set in motion not an extension of this system, but a departure from it and to embrace much more civilised conditions for keeping our animals in the future. A country that cannot treat its animals decently is not worth much in the estimation of posterity. We might as well make up our minds that if we cannot be great at least we can be civilised.
Lord Wise: My Lords, before my noble friend replies I wish to follow on one point which was made by the noble Lord, Lord John-Mackie, regarding agricultural land. Why is it necessary for those words to be included in the regulations? It could be because a number of battery hens are kept on land which is not agricultural land. There could also be a few calves which are kept in back gardens and therefore not covered by these regulations. I think that they should be covered by the regulations.
8.30 p.m.
Lord Hives: My Lords, at the risk of a cold supper I must say a few words about the battery hen. I have kept hens all my life under every different system. I started off with free range hens then I progressed on to straw yards and dropping pits. I have tried all the different systems and I ended up with the battery hen system. In my experience hens which are kept in well run batteries are happier and better looked after than hens which are kept under other systems. They are also very productive.
In the case of a straw yard there is always the worry of rats, which are very difficult to keep out of straw yards. Farmers tend to drop eggs on the straw. Perhaps they do not pick those eggs up and they may get picked up the following day. All those problems are involved. There is also bullying among the hens.
The ideal way to keep hens is to have about 10 hens and a cock in a farmyard where they all have room to spread. That is fine and lovely but once one starts to increase the number the hens begin to fight and bully. The hens get miserable and some get their bottoms pecked. If one puts them into cages in a well run battery house, anyone who walks into that battery house, who knocks on the door before he goes in and walks down the rows quietly finds that the hens will talk to him. They are as happy as Larry. They produce lovely eggs.
The nigger in the woodpile as regards eggs is when they reach the shop. More damage is done to eggs when they get into the shop than ever happens to them on the farm. The first thing people notice when they enter a shop is that the eggs are stuck in the window. The sun pours in on them and they are subject to evaporation. If people want a decent egg they should get it as soon as they can from the hen

363
and keep it in the right conditions, with the right humidity and with the appropriate ventilation. If it is kept under those conditions and sent straight to the customer the customer will get a beautiful egg and he will never be able to tell the difference between an egg that has come from a battery hen and one that has come from the outside. However, if that egg is taken into a shop, is warmed up and then cooled down, the customer will get a horrible egg. I agree that such an egg is horrible. There is a very noticeable difference between a really fresh egg and one which has been battered about.
My speech may have meant that we shall have our supper a little later but I had to say something about the battery hen.
Baroness Trumpington: My Lords, this debate has certainly reflected the level of interest and concern that is expressed by a wide cross-section of the public on these subjects. As I am deeply concerned about any cruelty to animals, after listening to the powerful pleas by the noble Lord. Lord Houghton of Sowerby, and the contrasting remarks of my noble friends Lord Hives and Lord Wise, I feel like a rather battered old bird myself. I shall try to answer as many points as I possibly can as fast as I can.
I am very grateful for the welcome by the noble Lord. Lord John-Mackie, for the regulations. The vague drafting that he talked about is the result of having tried to follow the directive as closely as possible. As regards agricultural land, which the noble Lord mentioned in the context of drafting. the definition comes from the enabling Act, the Agriculture (Miscellaneous Provisions) Act of 1968 which applies to all commercial farmers and smallholders. As regards calves being kept in darkness, the Government's welfare code requires that calves have suitable lighting. I hope that that is reassuring.
Lord John-Mackie: My Lords, the darkness provision is in a code, not a regulation.
Baroness Trumpington: My Lords, I see. With regard to the height of calves' withers the code was deliberately designed that way to cover animals of different breeds and sizes. I imagine that one would take the largest calf and choose its wither height.
On the question of A-frame cages, at the industry's request we have already obtained an important concession from the Commission that the directive's height requirements should apply only over the minimum cage area. Without that A-frame cages would have been ruled out. We shall keep the position in the industry under review.
My noble friend Lord Elliott of Morpeth, whose work as chairman of the Select Committee was widely respected, brought up several points and spoke about the time lapse. I shall return to that in a minute.
364
I am sorry that the noble Lord, Lord Somers, does not approve of these draft regulations because they are certainly aimed at improving the lot of just those animals and birds about which he worries and for which he suffers. He brought up the question of hormones. They are banned in poultry and calves. I hope that that will reassure him. The Community ban is on the way for other classes of livestock.
The noble Lord, Lord Somers, raised the question of government support for intensive farming. The risk to consumers is no greater than that from other foods. Intensive systems produce clean, good food, which most people want. People can buy alternatives if they wish to. They can even become vegetarians.
The response to the Brambell Report, which was mentioned by the noble Lord, Lord Houghton of Sowerby, was that the Government passed legislation, which was the Agriculture (Miscellaneous Provisions) Act 1968. We set up the advisory committee, which is now the Farm Animal Welfare Council. I am sure that the noble Lord knows that we started the work on welfare codes.
As regards the enforcement of regulations, my department's veterinary staff will be responsible for that. They will use their clinical judgment. If need arises we shall prosecute.
My noble friend Lord Elliott of Morpeth and many other noble Lords would like to see cages banned, but most eggs are produced under the battery system and no practical substitute has yet appeared. Free range and other systems have their place but they involve greater costs and hence greater prices, which most consumers seem unwilling to pay. The free range system in particular requires a considerably higher quality of stockmanship than is generally available.
Alternative systems are unlikely to take over from the battery system and there is no realistic prospect of a ban on cages. We are of course supporting research in this country and in other EC member states into alternatives to the battery cage. At our own farm in Gleadthorpe we are carrying out a trial into the aviary system. Early results have given some encouragement. There is a long way to go but that work and the work at Celle must continue.
I can assure the noble Lord, Lord Mackie of Benshic, that we shall continue to press for improved measures of care within the EC. as we have always done in the past. As regards enforcement in other member states, the directive specifically sets up the procedure for the Commission to check up on national arrangements. If others fall short. we shall pursue the matter in Brussels.
The noble Lord, Lord Houghton, hit a nail on the head when he spoke of the past. The Government have a delicate balance to maintain when helping animals; in other words, it is the art of the possible. The noble Lord and my noble friend Lord Elliott, as I said, deplored the length of time that it has taken to arrive at this stage. I remind your Lordships that we have the opportunity to progress even more through the review of the Community directive in 1993.
On Question, Motion agreed to.

Welfare of Calves Regulations 1987
8.40 p.m.
Baroness Trumpington: My Lords, I beg to move the motion standing in my name, That the draft regulations laid before the House on 15th July be approved. [2nd Report from the Joint Committee].—(Baroness Trumpington.)
On Question, Motion agreed to.

Criminal Justice Bill [H.L.]
Consideration of amendments on Report resumed.
Clause 41 [Life imprisonment for certain firearms offences]:
[Amendment No. 47 not moved.]
The Earl of Longford The Earl of Longford moved Amendment No. 48:
After Clause 41, insert the following new clause:
("Parole Board review of life prisoners who have served ten years.
The following subsection shall be inserted after section 61(1) of the Criminal Justice Act 1967—
"(1A) Without prejudice to his earlier release under subsection (1) of this section, the Parole Board shall advise the Secretary of State on the release on licence of every person serving a sentence of imprisonment for life after he has served ten years of his sentence and thereafter at intervals not exceeding five years".")
The noble Earl said: My Lords, I do not think that anyone will complain that up to now I have taken up too much of the time of the House and, therefore, I hope that I shall be allowed to open this amendment slowly. I emphasise that I am speaking on behalf of the All-Party Penal Affairs Group, unless I am told otherwise.
Noble Lords: Yes!
The Earl of Longford: My Lords, subject to the views of any of the members of that group who happen to be present, I am speaking on behalf of the All-Party Penal Affairs Group, which is a solid body. I do not want anyone to think that this is a personal whim of mine. My old friend Evelyn Waugh, 20 years or more ago now, when Harold Wilson was forming his Cabinet, wrote to the mother of the noble Lord, Lord Donaldson—
Lord Donaldson of Kingsbridge: My Lords, my wife!
The Earl of Longford: My Lords, I see that the House is in a boisterous mood today, and that is good. Evelyn Waugh wrote to the wife of the noble Lord, Lord Donaldson. He said that he was glad that I was not going to be Home Secretary because otherwise we should all have been murdered in our beds. There is the danger that noble Lords might associate me with that position. I shall make certain that this is considered to be a solid amendment by reading a passage from the report of the All-Party Penal Affairs Group. It is long, but the noble Earl, Lord Caithness, is accustomed to hearing speeches much longer than any that I shall make. One of the report's conclusions was:
"(a). A life-sentence prisoner's 'consideration for review' should always take place when he or she has spent three years in custody. It
366
should be carried out by a joint committee of representatives of the Home Office and of the Parole Board, in consultation with the judiciary".
I am not concerned with the details. But:
"(b) If the 'consideration for review' does not fix an earlier date for review by the local review committee and Parole Board, the prisoner should first be reviewed"—
I come to the point of the amendment—
"after 10 years in custody, and should subsequently be reviewed at least every five years, with more frequent reviews whenever appropriate".
There now comes a point that I have just mentioned to the noble Earl, and he may not have had time to consider it. It is important:
'Reviews should be in two parts—first, a decision on whether the prisoner can be given a date for release; and, secondly"—
I emphasise this point—
"an examination and consideration of the prisoner's condition and 'career plan'."
It is not just a question of saying that the prisoner should or should not come out after 10 years and be placed on parole or licence. Consideration of the prisoner's future is to be part of the task. It then states:
"The prisoner should be informed of the reasons for the review's conclusions".
which of course we have demanded many times in the House.
I suppose that I have been associated with parole for as long as anyone here. I have been involved with it in a pre-natal position. That takes me back many years. The committee of which I was chairman led to the establishment of parole. I have always defended the principle of parole and always will. That does not mean that I have been inhibited from criticising it.
I recommend the book of the noble Lord, Lord Windlesham, to everyone. That is free publicity. He may do the same for me on some occasion. It is an impressive book, not that I agree with most of it, of course. However, it is well worth reading. He was in charge of the Parole Board. We have all these other chairmen of the Parole Board. They make an impressive collection of witnesses. I support the Parole Board. That does not mean that I am incapable of criticising it. I shall do so again. I am not concerned tonight with general criticisms of the Parole Board. I am thinking only of life prisoners.
Life prisoners present a problem for even the most convinced and idealistic supporters of parole. There are many reasons for parole, including control of the prisoner after he comes out. It is usually said that its main attraction is that it holds out hope for the prisoner. I think that there is a little more to it than that. It holds out to the prisoner the prospect of earlier release as his moral character improves. It is a tremendous inducement to the improvement of the moral character of these fallen brothers—those who have gone wrong. That I think is a tremendous moral argument for the parole principle.
Parole of course conflicts with the idea that judges should have the last word. When a man comes up for some awful offence, they say that he should serve so many years, and that cannot be altered. Parole provides that after a certain number of years, the prisoner's moral behaviour will affect his release. That is a tremendous argument for parole. However,

367
with life prisoners it is not easy to say at what moment parole should be considered. It is easy enough if a man is a train robber, although 30 years ago the parole system had not come in. However, let us take the train robbers. Their 30-year sentences were cut to little more than one-third. It is easy enough to do that with long sentences.
There is undoubtedly a problem with life prisoners. At what moment is it right to consider them for parole? That matter can be gone into in great detail. No dispassionate person hearing our earlier discussions could think that the parole system was satisfactory. We are told that it is entangled, in a mess and so on. However, I am not concerned with that point now.
There are about 2,000 life prisoners. How can we do justice to them and treat them in a Christian way? When I say "Christian", I am using the term broadly. We all remember Lord Attlee's reply when, towards the end of his life, he was asked whether he was a Christian:
"I accept the Christian ethic. Can't stand the mumbo-jumbo"
I am interpreting the Christian ethic. Some people call it the Judaeo-Christian ethic. It is a basic system of humane treatment. It is treating people, even the so-called outcasts, as all part of the same human race as ourselves. Anyone who starts from that premise, is on the right path. I am not just thinking of the courts. I defer to the great judges who sit sentencing people to life imprisonment. No doubt they do it quite correctly, I am sure from high motives. I submit a thought in passing to any high judges present in the Chamber that anyone who sentences a person to life should look him up some years later to see how he is getting on. I think that judges would pass rather different sentences if they made closer contact with the prisoners whom they had sentenced. However, that is an irrelevance.
We have then the sentence and we have the prisoner, a man who has probably done something absolutely awful. Many years later, what hope is held out to him? I should say that the very least hope that one can hold out to him is that after 10 years his position will be looked at and considered dispassionately. I do not count it as dispassionate consideration if some Home Office official looks at his papers and reports to the Home Secretary that there is nothing much to be done about him at the moment. There should be a dispassionate consideration; the local review committee would start there and then would come the machinery of the Parole Board. All that must come at some time; the question is when.
There is no magic in the figure 10. If anything, I think that 10 years is rather too long. I am trying to be conciliatory. A society cannot possibly call itself Christian even in the broadest sense if after 10 years it is not prepared to look at a human being whom it has sentenced to life imprisonment. I therefore plead for this as a minimum.
It may be said that it is bad luck on the prisoner and is not very kind to him if he gets a rebuff. I always suspect that argument. I think that it is like the people who say that for a prisoner to remain in prison is in his own interests. On that subject I think that one
368
must consult the prisoners. As to whether prisoners would be ready to take their chance of not being released for many years but at the same time being considered for parole, I am sure that 99 out of 100 would wish to be considered for parole. I stress one point that I made earlier: under the proposals of the all-party group, a look would be taken at the prisoner and consideration would be given as to how he would be treated in prison.
Those are the main arguments in favour. The noble Lord, Lord Hunt, is more qualified to speak on the matter. I have had this long experience of prisoners. I have listened to the high legal luminaries who understand the legal process so much better than I do, but one's mind goes to the prisoners, the people serving these long sentences. I implore the House to make provision for more humane treatment. I beg to move.
Lord Hunt: My Lords, I am happy to support the amendment of the noble Earl. He has spoken in moving terms about the human aspect of the matter. While I am entirely in sympathy with the case that he has made, I wish to say a brief word about the practical angle of the matter. I speak of the matter of management of life sentence prisoners in our prisons. Anyone who has served in a disciplinary capacity, in a social welfare capacity, indeed, in whatever capacity, in one of Her Majesty's prisons containing lifers—Kingston Prison at Portsmouth contains only lifers—will endorse what I say when I tell your Lordships of the difficult job that they have to manage men and women serving life sentences. There may be a lack of co-operation, there may be violence and there may be misbehaviour of one kind or another borne of sheer despair in their situation. In some there may be deep depression and apathy. I am not trying to express undue sympathy for people who have committed appalling crimes when I say that this creates serious management problems.
To that one must add the human aspect of the matter expressed to your Lordships by the noble Earl. The two together cannot be coped with adequately without keeping hope alive. On that one essential there is unanimity throughout the prison service. The governor grades, the main grades of the prison service, the prison medical service, the probation officers and the social workers who work in the prisons are unanimous on the problem and on the need to keep hope alive.
Your Lordships may forgive me if once again I drag in my own experience, which I know is that of my noble friend Lord Harris of Greenwich as erstwhile chairman of the Parole Board. This goes back a long time. When I became the first chairman 20 years ago, there were a great many such forgotten men. That is the key expression: "forgotten men". Their files lay piled up in the office of a certain senior Home Office official—this is ancient history—and they were forgotten. That is the background of which I dare say the noble Lord, Lord Windlesham, is aware.
I went to the then Home Secretary with my vice-chairman, the noble Lord, Lord Rothschild. We persuaded the Home Secretary to set up a joint committee of officials of the Home Office and members of the Parole Board to clear up the backlog

369
and deal efficiently and logically with the cases of life prisoners. It had a remarkable effect on the morale of the people serving life sentences in our prisons. I say that only from the practical point of view. It made the difficult task of the prison staffs and everyone working in the prison context that much easier. That committee has since been abolished. As my noble friend Lord Harris of Greenwich said earlier in other words, more's the pity. But that is water under the bridge.
There is no question, in my view, that markers need to be set down for men and women who have committed no matter what dreadful crimes. They need markers to which they can look forward. I think that it is right that they should be looked at the first time and know that they will be looked at 10 years later. It may well be that the Parole Board will ask for another formal review earlier than five years ahead. That is another marker put down. These people will then know where they stand and will look forward to that next occasion.
I respectfully disagree with the Minister, who in Committee said that it was cruel to keep them in this kind of uncertain situation. Of course they are in an uncertain situation if they are serving an indeterminate sentence. They need landmarks of hope to help them look forward to the next stage. It may be that in the long run very few will come to terms with the fact that it will be a very long time, if ever, but at least for the time being they will work and hope for their eventual release. Quite apart from the humane aspect, it is the practical aspect that I wish to emphasise. I am one of those who believe that the destruction of hope should have no part in the otherwise perfectly proper element of retribution in our criminal justice system.
Lord Morton of Shuna: My Lords, I support the amendment. My noble friend Lord Longford and the noble Lord, Lord Hunt, have said in terms more eloquent than I can what is to be said in favour of the amendment.
The Scottish Parole Board has been very critical of what might be called the moving of the goal posts. It is clear from the recent troubles in Scotland that the changing of the rules about parole and the abolition of hope for prisoners on long sentences has been a factor, though not perhaps the decisive one, in the trouble in prisons in Scotland, of which there has unfortunately been too much recently.
9 p.m.
The Earl of Caithness: My Lords, listening to the debate this evening some of your Lordships may have gained the impression that the Home Office did not have a structured organisation to deal with this particularly important matter. It might be helpful if I set out the present situation.
In every case the present practice where a formal review date is set for several years ahead is that full reports are submitted by the prison to the Home Office at least every three years so that the prisoner's case can be considered. In addition, prison governors are asked to report at any time any special circumstances or exceptional progress made by the prisoner. At all stages, if reports suggest that there
370
might be grounds for bringing forward the review date, this will be carefully considered by my right honourable friend the Home Secretary.
When a prisoner has been detained for 10 years the prison reports are always considered by a Home Office Minister. I do not think that this careful process could be described as throwing away the key. In fact it ensures that the cases are fully considered and indeed more frequently than the noble Earl's amendment envisages.
The noble Earl would substitute for this system—or graft on to it, I am not sure which—a system whereby the case would be automatically referred to the Parole Board after 10 years of sentence and at least every five years thereafter. I do not think that that would improve the prisoner's prospects of release one iota. The system of regular reports from prisons and the referral to Ministers at the 10-year point is very well able to determine whether there is a realistic prospect of early release. If there is, consideration will be given to bringing forward the formal review date.
If there is absolutely no prospect surely it is positively damaging to the prisoner and to his family to institute a formal review. I know that the noble Earl and the noble Lord, Lord Hunt, have reconfirmed their view today that they do not share this view. I do not expect to be able to persuade either of them tonight. I strongly believe it because of the many letters I receive from the families of prisoners who have been formally considered for release on licence but turned down.
The noble Earl said in his Committee speech that to deny hope to long-term prisoners is a grievous sin. I do not quarrel with that. I think it is wrong to encourage hopes which are not firmly pinned to reality. If the release of a prisoner cannot even be contemplated after 10 years' imprisonment that is hard for him to accept. But it is better that he should be under no illusions about it. That applies even more strongly to his family, who will quite understandably grasp any ray of hope. It is bound to cause distress if an unrealistically early review is put in train.
We have to recognise that the abolition of capital punishment would inevitably mean that some prisoners will serve very much longer sentences than people have normally experienced in our penal system. That is a price which has to be paid. However painful and distressing it may be to some people, we must bear in mind that our society expects to be protected by its parliamentary representatives on this matter.
To answer the specific point raised by the noble Earl when he mentioned the All-Party Penal Affairs Group's recommendation about the review of a life-sentence prisoner's conditions and career plans, these are factors which are bound to be taken into account in the consideration of such cases by the Parole Board. I do not believe that they can be sensibly looked at independently of the question of release. It seems to be bound to be an empty exercise if release is not foreseeable in the near future or where there is not a reasonable prospect.
The noble Earl has pursued this matter with patience and persistence for many years. Indeed this

371
evening he put his case with deep personal conviction. His commitment to the cause is not in doubt. Your Lordships will have the pleasure in some 28 minutes' time of seeing that for yourselves on television. He will be there to show your Lordships. I am equally persistent and I regret to say that I oppose him on this matter.
The Earl of Longford: My Lords, I am very grateful to the noble Earl for the splendid tone which I have always encountered from him. I gave him hardly any notice. I suppose I might have hoped at the back of my subconscious that his department would have examined carefully the report of the All-Party Penal Affairs Group. I doubt whether that has been so. There was the idea that the review should include an examination and consideration of the prisoner's conditions and career plans. That is something of which the noble Earl certainly has not had very much notice. Therefore I do not expect him tonight to deal with it thoroughly.
As General MacArthur said, "We shall return", and quite often and quite strenuously, to these ideas. I do not know that tonight there is much more for me to add. If the noble Earl really wonders whether prisoners would like to take the chance of coming before the review board and possibly bring turned down more than once, all I can say is let him put it to the test. I know the answer that he will get and it will not be the answer he has given to the House this evening. However, we shall come back to these matters. Now I can do no more than ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Henderson of Brompton Lord Henderson of Brompton had given notice of his intention to move Amendment No. 49:
After Clause 44, insert the following new clause:
("Reduction in eventual custodial sentence.
. At the end of subsection (6) of section 67 of the Criminal Justice Act 1967 shall be added the words "except for such periods of time as his liberty has been restricted under section 21A of the Child Care Act 1980".")
The noble Lord said: My Lords, it might be for the convenience of the House if, before formally moving the amendment, I ask the noble Earl whether he can say that his Amendment No. 113A is substantially the same as Amendment No. 49. If that is so, I will not move my amendment and he can deploy his arguments when we come to Amendment No. 113A.
The Earl of Caithness: My Lords, I am happy to confirm that.
[Amendment No. 49 not moved.]
Lord Harris of Greenwich Lord Harris of Greenwich moved Amendment No. 50:
After Clause 46, insert the following new clause:
("Annual parliamentary approval for holding prisoners in remand or in penal establishments.
.—(1) Subject to subsection (2) below, where a person is in the custody of a constable whose duty it is to take him to a prison, remand centre or young offender institution in which his detention is authorised by law, the person may not instead lawfully be detained overnight in the custody of a constable unless it is impracticable by reason of distance or weather conditions to take him to the prison, remand centre or young offender institution until the following day.
(2) The secretary of State may by order made by statutory instrument provide that subsection (1) above shall not have effect in an area specified in the order for a period not exceeding twelve months.
(3) No order under subsection (2) above shall be made unless a draft has been laid before and approved by resolution of each House of Parliament.").
The noble Lord said: My Lords, this is an issue which we debated at the Committee stage. I said then that we would certainly come back to it and that is what we are doing now. This amendment raises major questions of principle and I propose to deal with the matter in some detail. The background of this problem can be set out fairly briefly. I dealt with it in Committee, but nevertheless I think it is right to remind the House of the background of the problem.
It was very nearly unknown for prisoners, whom I will describe as Home Office prisoners, to be kept in police custody before the time when the noble Viscount, Lord Whitelaw, became Home Secretary. There were a few occasions when women prisoners from, say, rural parts of West Wales might have been kept overnight in police custody for obvious operational reasons but, by and large, it did not happen.
The noble Viscount was then confronted with a dispute organised by the Prison Officers' Association. He asked for the co-operation of the police, which he secured, in making police cells available for Home Office remand prisoners. Indeed, the situation was in some respects so serious that in some parts of the country chief officers of police were asked in certain circumstances to take control of a local prison if prison officers walked out. They undertook to do that and in my view it was right for the Home Secretary to ask for that degree of co-operation and for the police to respond in the way they did. So much for the period of office of the noble Viscount.
We then come to Mr. Brittan. We still had Home Office remand prisoners in police stations for a variety of reasons. By now it was not an industrial relations problem. The situation was caused by the chronic overcrowding in local prisons. I shall not burden the House or, indeed, the noble Earl, Lord Caithness, by reminding him of the terms of Mr. Brittan's celebrated article. We can very nearly quote it verbatim. It was an article by Mr. Brittan in The Times newspaper in January 1984 when he proudly announced that there would be no more remand in police custody save in the most exceptional circumstances. As we all remember, and there is some dispute as to whether it was within 24 or 48 hours, Home Office remand prisoners were soon back in police custody. That pledge from Mr. Brittan lasted for a remarkably short time.
This situation has continued until the present day. The number has gradually increased, month by month, with some periods when there was a check in the numbers and, indeed, sometimes a small reduction. When we last discussed this matter, it was in the midst of, or very nearly at the end of, a further industrial relations dispute involving the Prison Officers' Association, which had withdrawn co-operation. I cannot remember the precise phrase used to justify its wholly unacceptable behaviour. Nevertheless, as I made clear in the House on the last occasion, I do not believe that there was the slightest

373
justification for the campaign then waged by a number of local branches of the POA. They were, in my view, disgracefully irresponsible and caused nothing but grief to prisoners and their wives.
Therefore, on that issue I have total sympathy with the Government's view. I believe that the Government were then right to ask for the co-operation of chief officers of police, which they secured—not only of the Metropolitan Police but a large number of chief officers in police forces in other parts of the country.
The Wandsworth dispute then came to an end and we all welcomed that. Indeed, we can see from the numbers that when the dispute ended it had an immediate effect. That is true. Unhappily, although that dispute at Wandsworth ended, accompanied as it was by a number of disputes at other prisons including Wormwood Scrubs, the numbers in police custody remained astonishingly high.
That situation is disclosed in a Written Answer given to me by the noble Earl today which presumably will appear in Hansard tomorrow. Incidentally, I am grateful to his officials for having secured a prompt answer to this question. I realise that they inconvenienced themselves considerably and as the result is not altogether helpful for the Government I am even more grateful. It was a very honourable course. My question asked for the number of people kept in police custody since 1st September this year. The reply shows that the number peaked on 20th October this year at 1,320 men—a staggering figure—and 15 women kept in police custody.
The House should be aware of what being kept in police custody means. It means that London remand prisoners were being sent to Cleveland, County Durham and South Wales. One can just imagine—and the noble Lord, Lord Mishcon, who is here will I am sure agree—the problems facing a legal adviser trying to construct a defence in those circumstances. However, as I have indicated, that was the problem which in my view, was brought about by the action of the POA. As soon as that dispute came to an end there was a sharp reduction in numbers.
However, the numbers of men in custody now are more than twice as high as they were on 1st September this year. On 1st September this year there were 315 males in custody. On Tuesday this week, 17th November, there were 753 in custody—an increase of about 140 per cent.
The noble Earl and I had a slight exchange in Committee when we discussed the number of women prisoners. He said that at one stage they had fallen to zero, and indeed the figures show that that is true. But, unhappily, on Tuesday the figure was not zero; it was 57. That number of 57 is the highest for the last three months. As I indicated in Committee, many of these women prisoners, as we know perfectly well, are seriously disturbed and distressed women who are being kept in custody because courts have absolutely no idea what else to do with them. In many cases reports are being requested from psychiatrists and others and these women are being kept in conditions which the metropolitan police have disclosed are wholly deplorable. We have had the position where,
374
as I indicated in Committee, divisional commanders and others in the metropolitan police have been inviting the press and television to look at the conditions in which remand prisoners are being kept in their police stations. Cells intended for use for prisoners for perhaps seven or eight hours are now being used for periods of three, four or five weeks—in one case a man was kept in custody for 41 days—and the conditions have been described both by the police and by members of the boards of visitors as really disgraceful.
I repeat the point. Conditions are not only as I have indicated, but they are being experienced by people who have been convicted of no criminal offence whatever. It would be no excuse if they had been convicted, but the fact that they have not been, and many of them will not be, convicted, or, if convicted, will not be sentenced to a period of imprisonment, makes the situation even worse.
I have dealt with the position with regard to the living conditions of the prisoners. I have also indicated the amount of indignation caused to many chief officers of police at the deplorable misuse of police resources. Police officers are being taken off the streets in order to act as gaolers. I do not think it is possible to exaggerate the degree of indignation felt by a number of chief officers who have expressed their feelings to me. They do not have the slightest doubt that they are being asked to do other than run a permanent second prison system. It has now continued for four years and to many of us it is beginning to look remarkably permanent.
There is then the second point with which I dealt a few moments ago of the situation confronting many lawyers. We are talking primarily, although not wholly, about remand prisoners. There have been a number of cases where sentenced prisoners have been kept in custody as well, but by and large it is a remand prisoner problem. I raised the question with the noble Earl, as he will remember, during the Committee stage of the Bill. I spoke to his private office on 5th November. Once again they were extremely helpful to me. I asked them to assist me by giving me the answer to the question that had been raised by the Law Society; namely, why was it that its members were constantly trying to find out where their clients were, and finding great difficulty in getting through to the prison department of the Home Office for its answer to that question? I may say that they made no complaint—quite the reverse—about the courtesy with which they were treated when they eventually got through. However, the problem that they encountered in simply getting someone to answer a telephone was remarkable.
This is what the noble Earl says in his answer to me in a letter dated 9th November, dealing with a number of other matters:
"As you probably know, the Metropolitan Police provide a public enquiry line at their B11 base to supply information on the whereabouts of prisoners in their custody. This ad hoc arrangement, never intended to be permanent, comprises one operator, one telephone and one computer terminal. It does get very busy"—
says the noble Earl. I am sure that that is true—
"sometimes making contact difficult. But given that all concerned are striving to end the use of cells, the police are understandably reluctant to make any further investment of equipment or manpower for this

375
temporary facility. As the numbers drop the difficulties you have described should ease".
As I have indicated, that is said in the context of the easing of a problem described by the noble Earl in which there has been a 140 per cent. increase in the number of remand prisoners and nine times more women prisoners being kept in custody than there were on 1st September this year.
I do not blame the Metropolitan Police for the attitude they are adopting, because why should they add to their manpower and resource problems for what is in reality entirely a Home Office problem? I do not believe that it is right—and I am sure it was not the intention of the noble Earl—to stand behind the cover of the Metropolitan Police to explain why members of the Law Society cannot get through on the telephone for a simple answer to the question, "Where is Mr. X, a client of ours who has been remanded in custody?". In my view it is clearly the responsibility of the prison department of the Home Office, as I am sure the noble Earl will, on reflection, agree.
The complaint made by the Law Society is not against the Metropolitan Police. It is the sheer problem of getting through on the telephone to the officials who are dealing with this problem in the prison department. These people are overwhelmed, I am sure, and why should they not be given this astonishing increase in numbers? People are being remanded constantly for relatively short periods of time and they are being moved often from police station to police station, as chief officers of police have confirmed to me.
In short, I look forward to hearing from the noble Earl when he replies to this debate—quite apart from all the other considerations we are talking about—why this problem still continues to cause so much anxiety to the Law Society and to many solicitors in London. What does he propose to do about it?
The purpose of the amendment is clear cut. It permits the use of police cells in any future problem arising from an industrial relations crisis in the prison department by the use of the affirmative resolution procedure. In fact the Home Secretary would be enabled to act in an emergency situation of the kind faced by the noble Viscount, Lord Whitelaw, at the beginning of his period of office and by the present Home Secretary only a few weeks ago. Secondly, it permits the use of overnight accommodation in police stations where it is clearly necessary to use that for operational reasons. That is as it should be. It is the only way of guaranteeing that we do not face a problem should this method become a permanent feature of our penal system.
The only answer for the noble Earl—I had better not say the "only answer" because he was courteous enough to deal with a number of other issues on the last occasion—but the only argument of substance used by the noble Earl on the last occasion was when he asked, "What is the point of having the affirmative resolution procedure because Parliament would never deny the Home Secretary powers of this kind?". I tried to point out to him—I shall deal with
376
this matter fairly briefly—that this has not been the experience in similar use of the affirmative resolution procedure. One only has to look at the very special situation—and special it is—of the Prevention of Terrorism Act to see the number of inquiries that the Home Office has instituted to allay parliamentary anxiety before the renewal of those annual resolutions. We only have to consider the inquiries of the noble Lord, Lord Shackleton, the noble Earl, Lord Jellicoe, and the noble Viscount, Lord Colville of Culross, all of whom were asked to look into the situation in order to deal with anxieties expressed in Parliament. If we were to get anything of this kind on to the statute book Home Office Ministers would be far more concerned to allay parliamentary anxieties than is the case at the moment.
Finally, I must make it clear that if we do not start to take in Parliament a much tougher line on this whole range of issues, the problem of people being kept in squalid conditions in police cells will become a permanent feature of our prison system, a system in which there is no independent oversight of what is going on and no boards of visitors of the kind that exist in normal prisons to deal with the problems of remand prisoners. The Government should also face the fact that not only is there deep disquiet among many Members of this House but there is also growing anger in the police service about what it is being asked to do. No soft words expressed by Ministers will turn away that wrath. I beg to move.
Lord Mishcon: My Lords, it is distressing that at this hour and in a not too crowded House a matter of such importance is being discussed. Because of the lateness of the hour all I shall say is that I have listened attentively to the noble Lord, Lord Harris. From these Benches I wish to support what he has said and I re-echo the words that he used in regard to the anxiety of members of the Law Society as to the position in which they are continually being put as a result of these matters, the hardship that it entails and the injustice, very often, that is entailed too.
Lord Donaldson of Kingsbridge: My Lords, I feel that this is such a serious matter that I must rise to say that I agree with what my noble friend has said. It is a deteriorating situation and that is always frightening. I do not want to be difficult with the noble Earl, who is as fully aware as we are of the troubles. I want him to realise that for better or worse matters are becoming too serious to be left. We shall have to come back again to this. We shall watch it very carefully. It cannot be allowed to go on as it is. I very much hope that the noble Earl will have something to say to comfort us but I am not at all clear what that could be.
9.30 p.m.
The Earl of Caithness: My Lords, the noble Lord, Lord Harris of Greenwich, gave notice in Committee that he would return to the matter of prisoners in police cells. I know that this matter greatly troubles him and other noble Lords and I fully understand and sympathise with the arguments he has put forward so persuasively both in Committee and today. For his part, I hope that he accepts, as I have

377
always sought to make perfectly clear, that the Government do not consider, and never have considered, that it is right and proper to put sentenced or remand prisoners into police cells.
In regard to police cells, we have a prison governor on permanent duty with the B-11 branch of the Metropolitan Police at Lambeth. While prisoners are in the hands of the police, however much we might wish it otherwise, surely the police are in the best and in fact the only position to provide the information as to prisoners' whereabouts.
When speaking to his amendment in Committee the noble Lord put forward a memorable argument, which I hope he will not mind my quoting here. He said:
"I believe that were there to be a requirement of this kind on the Home Office it would have the most remarkable effect in terms of concentrating minds in that department of state".—[Official Report, 27/10/87; col. 521.]
That caused more than a little surprise in the prison department where minds have been greatly concentrated on this issue for some time.
I mentioned in Committee the bold measures taken earlier this year, including the opening of a temporary prison in an army camp and the reduction of some 3,000 in the prison population as a result of the change in remission rules for short-sentence prisoners. They had been preceded by and were succeeded by continuing efforts by management and officials to squeeze the last measure of capacity out of the prison estate.
It is a process I have supervised very closely but in the end we are faced with facts like this: our local prisons and remand centres are holding over 21,000 prisoners in accommodation designed for fewer than 15,000. The amendment slightly gives the impression that this is a problem which could be solved if only there were the will; that if we only pulled the magic lever our police cells would be empty tomorrow. I do not think that the noble Lord, Lord Harris, really believes that, but perhaps I may be permitted to set this debate in the context of the long-term issues of the prison population.
We must be clear that we are not talking about a new or short-term problem. The prison population has been growing fast since the end of the war. Our prisons are now holding twice as many inmates as in the late 1950s. Recent years have seen unprecedented growth. In 1982 we were planning what we would do if the unthinkable happened and the population were to reach 46,000. In July this year we had over 51,000–4,000 more than the previous year.
Recent years have seen even bigger surges than that. Between 1984 and 1985 the population leapt by 5,800. My right honourable friend the Home Secretary's measures on remission in August this year reduced the population by 3,000. It has increased by 1,000 since then. And what of the future? Our projections of 1,100 a year based on long-term trends are nowadays looking decidely optimistic. We could be facing increases of 3,000 to 4,000 annually. How does one deal with numbers like that? Your Lordships might be forgiven for wondering why we do not have even more prisoners in police cells than we do now. The fact that we do not is entirely due to
378
the supreme efforts which this Government and the prison department have been making to find room for the relentlessly soaring population.
We have implemented one change after another in ingenious ways of making the best use of all available space. At this moment for example we are in the process of converting a youth custody centre in the north of the country to serve as a remand centre providing places at Risley and Manchester which will enable police cells to be cleared in the North. In the South we have drafted more staff into Ashford Remand Centre, and 171 extra places are now becoming available. We are creating new places at Brixton; we are squeezing the last measure of capacity out of our prisons in the South East. We have been moving prisoners from one part of the country to another. We are leaving no stone unturned in our efforts to meet the demands placed upon us by the courts.
At the end of the day the only way in which to cope with more prisoners coming from the courts is to provide more prison places. That is why we have embarked on the biggest building programme in history. With the new additions announced this year we shall have 18 more prisons in six years' time than we have now. We are looking forward confidently to reaping the fruits of our major investment in prisons. The first fruits have already been plucked. Others are ripening on the vine. Four new prisons will open next year at Little Hay, the Mount, Swaleside and Garth, providing nearly 2,000 places. Full Sutton has recently opened, and there are others on the way.
Our efforts are of course not confined to providing more prison places. We must attack the problems of remand in particular in other ways. That was pointed out in Committee by several of your Lordships, including the noble Baroness, Lady Seear, who spoke about the need for more bail hostels. I referred then to the serious effort my right honourable friend the Home Secretary and I were making in this area, and I am pleased that I can now tell your Lordships the outcome of our endeavours.
My right honourable friend the Home Secretary has been able to secure additional provision for both bail hostels and hostels run by voluntary organisations in the after-care field. Taking bail hostel provision first, my right honourable friend the Home Secretary has decided to expand the existing network of probation and bail hostels by creating nine new bail-only hostels in the next three years. Currently there are 102 hostels providing 1,861 places. The majority are available to people on bail. They handle about 3,500 a year. When complete the new hostels will add about 200 places to those currently available, and if, as we confidently expect, the new hostels can match the occupancy level of existing hostels, it should mean that about 900 people a year who might otherwise have been remanded in custody will be able to remain in the community, albeit under supervision, while they await their trial.
I have described some of the substantial measures the Government are taking for the long term and the short term to attack the problem of prisoners held in police cells and the growing prison population more generally. Perhaps I may now invite your Lordships to consider what contribution this amendment would

379
make. The procedure it proposes would be both unproductive and unnecessary. It would be unproductive because it would not contribute in any way to solving the problem of overcrowding which leads to the use of police cells. It would not provide one single prison place. All it would achieve is to provide an additional opportunity for Parliament to debate the issue at intervals. But it is not necessary to secure legislation for that. Your Lordships do not lack the ingenuity to secure a debate on such an important matter.
The noble Lords, Lord Harris and Lord Donaldson, referred to the fact that the subject would be brought before your Lordships again. I find the idea of an annual set-piece debate a supreme irrelevancy in the present difficulties. The amendment raises, but does not offer a solution to, some considerable difficulties.
The noble Lord's amendment acknowledges the need to use police cells to hold the occasional prisoner overnight where the court is some distance from the prison establishment or where weather conditions prevent the offender from being moved until the following day. That only meets part of our difficulties. We have seen how quickly events such as industrial action on a limited scale can lead to a build-up of prisoners outside prison. The recent industrial action took its toll. During the Recess, it would not have been possible, short of recalling Parliament, to lay a statutory instrument.
I must put this question to your Lordships: what would we be expected to do with prisoners whom we could not get into prison nor hold in police cells? I find no answer in his amendment. We are in the business of finding answers. We are working very hard at it. The noble Lord and I are working to the same end. This amendment wills the end but it does not will the means. The Government are resolute about providing the means.
Lord Harris of Greenwich: My Lords, obviously I welcome the announcement which the noble Earl made. Indeed, it was not an announcement; it was a re-repetition of the Statement made by the Home Secretary the other day in relation to bail hostels. I welcome that. I remember that one of the first decisions I made in the Home Office was to increase the number of bail hostel places. The then government inherited a difficult problem so far as bail hostels were concerned and acted fairly expeditiously in dealing with it. Certainly there is nothing between the present Government and ourselves on that. Inevitably one can make the point that it could possibly have been done some substantial period of time ago; nevertheless it is welcome and I do not in any way wish to diminish the importance of the matter.
The noble Earl's speech was, I am afraid, a totally despairing performance because at least in January 1984 Mr. Leon Brittan did indicate that he was actually going to stop this practice totally. He wrote his article with the full authority of the Home
380
Secretary. However, the speech made by the noble Earl tonight is an indication, that this practice is now becoming very nearly a permanent feature of our penal system. He made no suggestion, no prophecy, no indication whatever, that this burden was going to be removed from the police. Has he told the Association of Chief Police Officers that this is the position of the Government? I do not think he has. I think a number of chief constables, were they to read the noble Earl's speech and note the general language used in that speech would be extremely apprehensive about how long this problem was going to continue. So much for that.
Secondly, the noble Earl asks, "What can we do?" We could presumably do something about Rollstone Camp, using that just as an illustration. No doubt the noble Earl can tell me subsequently by correspondence. He announced at the time of the Wandsworth crisis that something was being done at Rollstone Camp to take some of these prisoners. I do not know whether that has been proceeded with or not.
The Earl of Caithness: My Lords, I can clarify that. Rollstone Camp was opened on a temporary basis, as the noble Lord knows, for about three months. It took category C prisoners. It is not suitable for taking remand prisoners. My Lords, we have been able to disperse those category C prisoners around the other establishments. Therefore, Rollstone Camp has now been closed and the staff have been distributed elsewhere. Some have been distributed to Ashford, which I mentioned would take 171 prisoners.
Lord Harris of Greenwich: My Lords, if this power had been on the statute book, I suspect that Home Office Ministers would have found it possible to make Rollstone Camp a remand prison. It would have taken them some time to achieve it but it would not have been as difficult as the noble Earl suggests. However, he and I can continue that argument in the future. We face the problem that the noble Earl's response is to deny the assertion that this amendment would concentrate the minds of Home Office Ministers more thoroughly than would be the situation were it not to be passed.
If the noble Earl and his right honourable friend had to come to Parliament once a year and justify a continuance of this wholly disgraceful situation, both he and his right honourable friend know perfectly well that fairly dramatic steps would be taken to alleviate the problem. It may well be that the Treasury would also be in a more accommodating mood. However, the noble Earl informs the House that this debate would be an annual set-piece irrelevance. As Miss Mandy Rice-Davies said on a celebrated occasion: "He would say that, wouldn't he?" I beg to move. We propose to vote on this matter.
9.42 p.m.
On Question, Whether the said amendment (No. 50) shall be agreed to?
Their Lordships divided: Contents, 13; Not-Contents, 44.

DIVISION NO. 3

CONTENTS

Airedale, L.

Houghton of Sowerby, L.

Bonham-Carter, L.

Hunt, L.

Carter, L.

Longford, E.

Donaldson of Kingsbridge, L.

Mishcon, L.

Harris of Greenwich, L. [Teller.]

Morton of Shuna, L.

Ponsonby of Shulbrede, L. [Teller.]

Henderson of Brompton, L.

Hooson, L.

NOT-CONTENTS

Arran, E.

Hives, L.

Atholl, D.

Hooper, B.

Balfour, E.

Joseph, L.

Beaverbrook, L.

Kitchener, E.

Belstead, L.

Long, V.

Boardman, L.

Lucas of Chilworth, L.

Brabazon of Tara, L.

Lyell, L.

Brentford, V.

Mersey, V.

Brougham and Vaux, L.

Monk Bretton, L.

Caithness, E.

Morris, L.

Caldecote, V.

Napier and Ettrick, L.

Cameron of Lochbroom, L.

Nelson, E.

Carnock, L.

Romney, E.

Davidson, V. [Teller.]

Saltoun of Abernethy, Ly.

Denham, L. [Teller.]

Simon of Glaisdale, L.

Dormer, L.

Skelmersdale, L.

Dundee, E.

Stanley of Alderley, L.

Elliot of Harwood, B.

Strathcarron, L.

Elton, L.

Trafford, L.

Goold, L.

Trumpington, B.

Gridley, L.

Vaux of Harrowden, L.

Hesketh, L.

Windlesham, L.

Resolved in the negative, and amendment disagreed to accordingly.
9.15 p.m.
Lord Henderson of Brompton Lord Henderson of Brompton moved Amendment No. 51:
After Clause 47, insert the following new clause:
("Tighter criteria for prison sentences on adult offenders.
.—(1) Where a person aged 21 years or over is convicted of an offence, the court may not pass a sentence of imprisonment on him unless it is satisfied—

(a) that the circumstances, including the nature and the gravity of the offence, are such that a sentence of imprisonment is appropriate; and

(b) that he qualifies for a sentence of imprisonment.

(2) An offender qualifies for a sentence of imprisonment if—

(a) he has a history of failure to respond to non-custodial penalties and is unable or unwilling to respond to them; or

(b) only a sentence of imprisonment would be adequate to protect the public from serious harm from him; or

(c) the offence of which he has been convicted or found guilty was so serious that a non-custodial sentence for it cannot be justified.

(3) Where a court passes a sentence of imprisonment on a person aged 21 years or over, it shall be its duty—

(a) to state in open court—

(i) that it is satisfied that he qualifies for a sentence of imprisonment under one or more of the paragraphs of subsection (2) above;

(ii) the paragraph or paragraphs in question; and

(iii) why it is so satisfied; and

(b) to explain to the offender in open court and in ordinary language why it is passing a sentence of imprisonment on him.").

The noble Lord said: My Lords, I beg to move Amendment No. 51 and ask the leave of the House to consider with that Amendments Nos. 52 and 53. They are not at all dissimilar—in fact, they are very alike—and Nos. 52 and 53 are only minor variants of No. 51. I attach very great importance to this amendment, and I most sincerely hope that the noble Earl will be able to give some comfort at the end of the debate on this amendment when he comes to reply. I do not propose to speak for long, but I hope to persuade him that this amendment is merely the culmination of a process which has been going on ever since 1982.
The new clause seeks to lay down tighter criteria for imposing prison sentences on adult offenders, and they are very similar to the criteria already contained in Clause 114 of the Bill in relation to young offenders. I should like to substantiate what I said a moment ago about this being a continuation of a process which has been going on since 1982.
The truth is that in 1982 the Government themselves brought in a provision for restrictions on courts on sentencing juvenile offenders to prison. When the Bill came to this House, the noble Baroness, Lady Faithfull (and I am very glad to see she is in her place) expanded on the original content of the Bill and made it into what is now Section 1(4) of the 1982 Act. That has, I think, been welcomed by all and sundry as a very remarkable step so far as juvenile offenders are concerned.
I should like to give just one illustration. An editorial in the journal Justice of the Peace welcomed the clause and said that they found it much clearer and that it was,
"an emphatic and structured approach to the task in hand. one which we would guess the courts would find easier to operate".
It has proved to be easier to operate and in the interval the All-Party Penal Affairs Group has worked hard on providing material for what is now Clause 114 in this Bill. As I said, it is substantially the same as my Amendment No. 51 for adult offenders.
The first question which I should like to ask the Minister is this. Why, if it is appropriate to have Clause 114 in the Bill, it is not also appropriate and logical to extend the same terms to apply to adults? If he would only agree to do that, perhaps not in the very wording which I have proposed here, then I think he would be extending in a perfectly logical and progressive way a provision which was initiated by a Conservative administration in 1982, has been expanded in Clause 114 of this Bill, and would logically extend to adults by accepting an amendment such as I propose. That is the historical approach that I hope will appeal to the noble Earl.
So far as I can recall, when this matter was raised in Committee the main objections of the noble Earl were that this was the kind of thing that was being done already and that it was not necessary because,
"We should prefer to give emphasis to the guidance of the Court of Appeal on the sparing use of custody and on the energy and imagination of the probation service in developing demanding alternatives to custody and ensuring that the courts are fully aware of their existence".
Those are impeccable sentiments with which I of course agree but none of them should preclude what I am proposing. They are not strictly alternatives.

383
They are all reinforcing each other. I am proposing another development which would help to reinforce those sentiments, together with the proposals that the noble Earl detailed in Committee, and fewer adults would be sent into custody.
Here I must recall the words of the noble Lord, Lord Elton, with his experience as Minister of State in the Home Office. At the beginning of the proceedings today he said:
"Nothing—but nothing—is more likely to send a person to prison than the fact that he has been to prison before".
One of the great effects of this amendment would be that the courts would have to be very chary of sending particularly first offenders to prison. They would have to give their reasons for not doing so. So this is yet another means of sending fewer people to prison and therefore helping to ease the current very serious prison population problem. On those grounds too I should have thought that this is yet another tool in the hands of the Government and of the courts to proceed with the process which we all wish to see proceeded with from all different angles: from the court itself, from the probation service and from anyone else concerned with the offender.
As regards matters of detail, the noble and learned Lord, Lord Denning, said in Committee that it was not proper to give instructions to the higher judiciary, as this clause seeks to do. I would not of course presume to give any instruction to judges as regards what sentences they pass. That would be quite improper but it is proper—on reflection I would hope that the noble and learned Lord would agree—for Parliament to lay down in statute the overall powers of sentencing in courts and, if they see fit, to lay down statutory guidelines governing the use of those powers.
Out of deference to the noble and learned Lord I have put down Amendment No. 52, which only applies to magistrates' courts and not to the higher courts. If that was the only objection that the noble and learned Lord, Lord Denning, had I should be very happy to see Amendment No. 52 incorporated instead of Amendment No. 51.
I have purposely taken only a short time to move this amendment because I very much hope that if none of these three variants on the theme which I am proposing is agreeable to the noble Earl he can go away, think about it and come back with a government amendment of his own on Third Reading. I beg to move.
Lord Hunt: My Lords, I am very glad to give support to my noble friend Lord Henderson of Brompton in moving this and the related amendments. Any part that this Bill can be made to play in addressing the most chronic problem in our penal system, which is the excessive resort to imprisonment and the excessive length of prison sentences, is bound to be welcome. These amendments are aimed at that end through statutory guidelines, which should impose constraints on resort to imprisonment for adult offenders. It is logical that the same criteria applied to juvenile courts, already agreed by the Government, should be applied when considering disposal by the courts of adult offenders.
384
The other important point about the amendment relates to consistency. In Committee the noble Earl admitted, in mild terms that consistency of sentencing by magistrates' courts leaves a little to be desired. That is masterly understatement. We must take the opportunity provided by the Bill to do something about the use of imprisonment by the courts and not merely think in terms of building more custodial establishments to cater for the courts' decisions.
The Bill is proceeding with little so far having been conceded to that end by the Government. If we fail to put something into the Bill effectively to deal with the problem, we shall be seen by history to have failed to take the opportunity. I therefore support the amendments.
10 p.m.
Baroness Faithfull: My Lords, I support the noble Lords, Lord Henderson and Lord Hunt. I moved an amendment to the Criminal Justice Bill 1982 which recommended stricter and more consistent criteria for custodial care. That has proved to be a success. There has been a drop in custodial sentences from 7,900 in 1981 to 4,500 in 1986. That is a drop of 3,400. If we could have a drop of 3,400 in those in custodial care in our prisons it would greatly help us.
I shall make two points from a social worker's point of view. Prison officers, social workers and probation officers consider that there are a number of people who should not be in prison and who could be dealt with outside prison. That is something that must be thought about.
I shall take up the point about consistences made by the noble Lord, Lord Hunt. I have talked to my colleagues in different parts of the country, and they say that the criteria by which custodial care is meted out is different in different parts of the country. That gives rise to a great feeling of injustice, especially if prisoners from different parts of the country are put in the same prison. For those three reasons, I support the amendment.
Lord Morton of Shuna: My Lords, from these Benches I also support the amendments. The history of advice coming like confetti to instigate magistrates to use compensation orders is an illustration of how such advice does not work and how it has been necessary to introduce legislation. It is also common sense to have guidelines. Guidelines are laid down by the Court of Appeal in England. We do not have sentencing guidelines in Scotland.
It is remarkable that we sentence more people to imprisonment than any other country in the democratic world. We are the only English-speaking country which is not undertaking a review of sentencing policy. This is a small measure. I hope that it is one that the Government can accept. I also hope that they may be able to indicate that a general review of sentencing policy instead of a sporadic increase in sentencing powers will be the Government's policy in future.
The Earl of Caithness: My Lords, as your Lordships are aware, the Government are not persuaded that restrictions of the kind proposed in the amendments are as effective as some of your Lordships have argued. During the course of the Criminal Justice Bill 1982, we accepted amendments introduced by my noble friend, as she said, relating to restrictions on the sentencing of young offenders. I cannot agree that those restrictions should be extended to those over 21 years of age.
Of course the argument for avoiding a custodial sentence where possible applies to all offenders, but I think your Lordships recognise that it must apply with special force to young offenders. That is why we were able to agree to the provisions in the 1982 Act which are now extended and developed in the Bill. That is the crux of the difference between us. We think that it is important to put an extra spotlight on young offenders. We should lose that if we were to accept the amendment.
I turn to Amendments Nos. 52 and 53. I understand the noble Lord's reasoning for singling out magistrates' courts to receive the guidance that he envisages. However, I am not at all convinced that Amendment No. 52 would achieve the consistency that he desires. I certainly share the noble Lord's objective that we should be seeking a greater consistency in approach to sentencing, but I cannot see how the amendment would help in that regard. Much valuable work is already being carried out by magistrates. This is something that concerns not just your Lordships tonight; to their credit a number of magistrates are looking at their own practices and consulting locally to try to ensure a more consistent approach to sentencing. That must surely be the right way to tackle this. I do not believe that a statutory framework is either necessary or desirable.
Amendment No. 53 deals with those who have not previously received a custodial sentence. I agree entirely that the Government should reflect carefully before sending someone to prison for the first time. I am sure that this is what already happens. Each case must be looked at individually. It is very important that the courts should not be fettered in their discretion to deal with each offender as the circumstances demand.
Your Lordships will be aware that the law already contains one statutory restriction on the use of custody for adults. That is in the precise area with which Amendment No. 53 deals. The noble Lord, Lord Henderson of Brompton, stressed what my noble friend Lord Elton said earlier, and indeed the noble Lord, Lord Morton of Shuna, referred to guidelines. I refer both noble Lords to Section 20 of the Powers of Criminal Courts Act 1973, which precludes the imposition of a prison sentence on a person who has not previously served a sentence of imprisonment,
"unless the court is of the opinion that no other method of dealing with him is appropriate".
I cannot see that it is necessary to add to this in the way that the noble Lord, Lord Henderson of Brompton, suggests. The law already recognises the special position of those who have not previously
386
been to prison. I am satisfied that Section 20 of the 1973 Act deals adequately with this.
I appreciate the strength of feeling of the noble Lord, Lord Henderson, on this issue. I assure him that I understand the motivation behind the amendments and agree with him in principle. However, I believe that the provisions of the 1973 Act already meet one of the amendments and that there is a difference in the principle that we are employing between young offenders under 21 and adults.
Lord Henderson of Brompton: My Lords, can the noble Earl spell out what that difference of principle is? That is what I find difficult. I cannot see why what is effective for young offenders cannot be effective also for adult offenders.
The Earl of Caithness: My Lords, we are all very concerned about anyone going to prison for the first time and we are particularly concerned about those under the age of 21 who might be sent to prison for the first time. We therefore thought that it was right to accept the amendments of my noble friend to the Criminal Justice Act 1982 which put the extra spotlight on young offenders in order to keep in the minds of us all that they require something a little special. Some of the spotlight that we have put on them would be dimmed if we were to extend it to adults also. That is the difference. It is for that reason that I am not persuaded that either of the changes are required or that the steps which the noble Lord has proposed will be the right ones to meet our objectives.
Lord Henderson of Brompton: My Lords, I still do not see that there is any principle stated. If one extends the purport of Clause 114 to adults it is suggested that one would somehow dim the spotlight which is on young offenders. It does not seem to me to dim it in the very least. It seems to me to be really a logical progression to move from the original 1982 provisions to Clause 114 and then to extend it to adults as I have suggested.
The noble Earl, very kindly referred to my feelings or my motives. It has nothing to do with me. The expression of opinion has come from all around the House, including from the Benches behind the Minister. This is not a personal matter and it is not a party matter. It is something which has been considered by the All Party Penal Affairs Group. The group considers it to be a reasonable progression of a slow process which has been taking place since 1982. It would be well for the Government to accept the thinking on these lines and to carry on the process which the group initiated. It has facilitated the spread of this way of thinking and this is an opportunity for taking one step further.
I very solemnly ask the noble Earl if he will read again what has been said tonight to see if he can conceivably try to persuade his right honourable friend the Secretary of State to think again about this matter and to extend these criteria to adult offenders. It is late at night and I do not intend to divide the House. I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 52 and 53 not moved.]
Clause 55 [Increased periods of imprisonment for default]:
Lord Harris of Greenwich Lord Harris of Greenwich moved Amendment No. 54:
Page 35, line 25, at beginning insert—
("(1) In the Tables in section 31(3A) of the Powers of Criminal Courts Act 1973 and paragraph 1 of Schedule 4 to the Magistrates' Courts Act 1980, for the entries relating to amounts not exceeding £10,000 there shall be substituted—

An amount not exceeding £50

5 days

An amount exceeding £50 but not exceeding £100

7 days

An amount exceeding £100 but not exceeding £400

14 days

An amount exceeding £400 but not exceeding £1,000

30 days

An amount exceeding £1,000 but not exceeding £2,000

45 days

An amount exceeding £2,000 but not exceeding £5,000

3 months

An amount exceeding £5,000 but not exceeding £10,000

6 months

(2)")

The noble Lord said: My Lords, this is a matter which we debated at the Committee stage. On that occasion the noble Earl began his speech by saying that there was nothing between us on the issue. Although at the end of that debate it looked as though there was a chasm between us, I am glad to say that there has been a bridging of the gap. As I understand it the Government are now not proposing to oppose this amendment. Indeed, they intend to support it.
Perhaps I may briefly give the background to this matter. As I said during the Committee stage of the Bill on an amendment not precisely in the same terms as this—
Lord Denham: I wonder whether the noble Lord will give way. I understand that my noble friend is accepting this amendment. It is quite late in the evening and I am wondering: is it really necessary for the noble Lord to speak to this if it is going to be accepted?
Lord Harris of Greenwich: I propose to speak briefly to it. It is essential for the record to point out when the Government make a concession which has an effect on the prison population. It is necessary to explain why we have now reached this degree of agreement. I will be brief but I intend to make the case to explain why it is we attach great importance to this question. These are important matters and it is right that they should form part of the permanent record.
The situation is that the average number of fine defaulters in prison on any day last year was 511. That amounted to somewhere in the region of 11 per cent. of those in prison serving six months or less. I think it is generally accepted by all of us that it is essential that there should be as a final penalty a prison sentence for those who wilfully decline to pay their fines. That, indeed, is what we said on the last occasion and I emphasise that particularly in the context of some of the debates earlier this afternoon.
The Home Office indicated in a letter to me, signed by the noble Earl, that it believes this amendment would have the effect of reducing the average daily prison population by about 150 and the effect would be greatest in the local prisons where overcrowding is at its worst. I believe that this is a modest but useful amendment and I am grateful to the noble Earl for being so accommodating. I beg to move.
The Earl of Caithness: My Lords, as the noble Lord said when he started his speech, there is nothing between us.
On Question, amendment agreed to.
10.15 p.m.
Lord Stanley of Alderley Lord Stanley of Alderley moved Amendment No. 55:
After Clause 61, insert the following new
clause:
("Amendments to Game Act 1831.
In the Game Act 1831—

(1) In section 30 (penalty on persons trespassing in the daytime upon lands in search of game, etc.) for "level 1" there shall be substituted "level 2" and for "level 3" there shall be substituted "level 4".

(2) In section 31 (trespassers in daytime in search of game, etc., may be required to quit the land) for "level I" there shall be substituted "level 2".

(3) In section 32 (penalty in case of five or more persons found armed in daytime in search of game, etc.) for "level 1" there shall be substituted "level 4".").

The noble Lord said: My Lords, in Committee I moved an amendment to give magistrates and police greater powers to deal with poachers. Although I received support from your Lordships, and sympathy from my noble friend, I accepted that my amendment was not quite right and might involve police officers chasing lurcher dogs round the countryside.
However, where I failed the noble Lord, Lord Irvine, succeeded for me when he moved his amendment to Clause 59 in Committee on the problem of lack of powers of forfeiture by the magistrates. I am pleased to note that his concern is being dealt with tonight in Amendments Nos. 57 and 58, to which my noble friend Lord Caithness has put his name. In fact, Amendments Nos. 57 and 58 would solve 90 per cent. of the problems I raised in Committee concerning lurcher dogs.
I ask my noble friend, who kindly wrote to me, to explain either now or on Amendments Nos. 57 and 58, why he felt it best to deal with my problem in Amendments Nos. 57 and 58. In particular, I wonder if my noble friend could explain why in his interpretation of the Police and Criminal Evidence Act a dog is an "anything" and a field or a wood is a "premises".
I repeat my thanks to the noble Lord, Lord Irvine, and indeed to the Government for dealing not just with the problems of the noble Lord, Lord Irvine, but also mine. Despite my noble friend's concession, I suggest that this tidying Amendment No. 55 is necessary and I ask your Lordships to give it your consideration.
The amendment increases the fines that the magistrates' court can impose. I propose that for a number of reasons. First, Sections 30, 31 and 32 of the Game Act 1831 are totally out of line with corresponding legislation. For instance, while the 1831 Act allows only level 1 fines, which must be under £50, the Night Poaching Act decrees level 3 fines of £400. The Firearms Act imposes level 4, and, indeed, imprisonment. The Public Order Act imposes levels 3 to 5 and imprisonment, and the Deer Act imposes level 4, imprisonment and confiscation. I could continue but I shall not further delay the House.
If my noble friend does not like my amendment I should be particularly interested in his reasons as to why the Deer Act allows the magistrates so much greater latitude as regards punishment. Secondly, by setting the lowest level of fines for those offences, the result is that the prosecution try to catch an offender under another Act; for example, Section 20 of the Firearms Act or, indeed, Sections 4 or 5 of the Public Order Act. Indeed, I suspect that my noble friend Lord Caithness may produce these Acts as a reason for not accepting my amendment. So be it. However, I ask the Government to bear in mind that that puts these poaching offences, which should be dealt with summarily by the Bench, into the Crown Court. That, if I can use an agricultural phrase, is an extremely bad thing to do, and it is extremely bad law. For instance, it delays the operation of justice by putting it into the Crown Court, it costs the taxpayer a lot more and it overloads the courts. I am sure noble Lords will agree that the magistrates' court is the correct place for these offences to be dealt with.
Section 30 of the Game Act, about which I am talking, allows fines up to the level 3 but only if five or more are trespassing. I totally fail to understand why, if only four appear, it is reduced to level 1. Why, if they are carrying a gun, and they are charged under Section 32, can the offender, or offenders, again be charged only up to level 1? All in all, I think it is a fairly marvellous mystery.
Finally, I repeat that poaching today is not what it was in 1831 when the 1831 Act was enacted. It is now organised crime for profit, sometimes large profit. It destroys the peace of the countryside, and that of my sheep, causes cruelty and often leads to rustling and other crimes. I hope that noble Lords will agree that the magistrates should be given more latitude in dealing with these offences, as suggested in my amendments. I beg to move.
The Earl of Caithness: My Lords, I share my noble friend's concern about poaching which has prompted this amendment. I know that there are a lot of people in the countryside who come onto farmers' land, search for game and often behave in a threatening manner when approached. Obviously the law must give sufficient protection against the worst excesses of their behaviour, and I think it does. Nevertheless I think I can advise your Lordships to accept only part of my noble friend's amendment.
The first two parts concern Sections 30 and 31 of the Game Act 1831, which deal with offences of trespassing on land with intent to search for game and failure to give a name and address to an authorised person. Trespass is not in itself a criminal offence. I do not condone the activities of trespassers in these situations, but these sections do not deal with the chief mischief which concerns us all—the taking of game. The law already provides a higher penalty of £400 under the 1828 Night Poaching Act and, as my noble friend will also know, it is covered in the 1862 Poaching Prevention Act. Sections 30 and 31 of the Game Act deal with less serious matters and I do not think an increase in penalties is either necessary or desirable. For those reasons I ask your Lordships to reject the first two parts of the amendment.
390
The third part concerns those who are armed with a gun and use threatening or intimidating behaviour while trespassing in search of game. Threatening anyone with a firearm is a most serious offence, as I am sure the House will agree. I am sure that all noble Lords are aware of the strength of the Government's determination to crack down on firearms. In practice the police and courts are already able to deal with armed trespassers under Section 20 of the Firearms Act 1968, with penalties of a fine up to £1,000 and/or three months' imprisonment. But as a general principle it must be right that all offences in the statute book should attract an appropriate penalty, and for this reason I am able to accept the third part of the amendment in principle. If my noble friend is content to withdraw his amendment today I should be happy to discuss with him between now and Third Reading a form of words to give effect to the third part of it.
I should like to deal quickly with the additional question posed by my noble friend. During the Committee stage my noble friend raised the question of the power of the police to seize dogs or vehicles belonging to or in the control of persons apprehended on suspicion of poaching. The discussion touched upon the question of the police powers, given under Section 19 of the Police and Criminal Evidence Act 1984, which enable them to seize items needed as evidence. My noble friend asked whether the power extended to fields or woods, and also whether dogs could, where appropriate, be seized. It may be helpful to your Lordships if I briefly clarify the position on those two points.
First, there is the question of the place where seizure may occur. Section 19 of the Police and Criminal Evidence Act 1984 refers to the powers of seizure of "premises". The word "premises" is defined in Section 23 of the Act as "any place". I am assured that this definition allows seizure in fields or woods; in fact anywhere a poacher may be.
Secondly, there is the question of seizure of a dog. Section 19 of the 1984 Act empowers a constable to seize "any thing". It will not surprise my noble friend if I say that "any thing" means just that and it allows a poacher's dog or dogs to be seized in appropriate circumstances. I hope that this brief explanation will he helpful and reassuring. I fully appreciate the concern of my noble friend that the powers of the police to deal with this should be adequate and I am satisfied that they are.
Lord Harris of Greenwich: My Lords, will the noble Earl deal with one point? I welcome the fact that he is not attracted by subsections (1) and (2) of the amendment, which I think many of us would have found difficult to support. I do not wholly understand why he is endorsing an approach which leads to this extraordinary increase from level 1 to level 4 in the last subsection of the amendment. Will he deal with that point?
The Earl of Caithness: My Lords, with leave of the House, perhaps I may respond to the noble Lord. I thought that I had covered that. We wish to discuss that with my noble friend between now and Third

391
Reading on the basis of the general principle that it must be right that all offences in the statute book should attract an appropriate penalty. As we are dealing with firearms—we consider it to be a very serious matter when somebody goes equipped with a firearm to commit any crime, whether it be trespass or going for game—we believe that a suitable penalty should be in the statute. At the moment we do not consider the penalty to be adequate. That is why I wish to consider this part of my noble friend's amendment.
Lord Stanley of Alderley: My Lords, I thank my noble friend for accepting the last part of my amendment. I am disappointed that he cannot look at the other two parts.
To answer the noble Lord, Lord Harris, the concession that my noble friend has given me is no more than I could obtain from Section 20, Part II of the Firearms Act, which no doubt the noble Lord knows better than I do. It is not really a concession and I am rather surprised that the noble Lord asked that question.
I graciously accept the concession that my noble friend has given but—
Lord Harris of Greenwich: My Lords, the reason that I asked the question was that if there is a provision in existing legislation there is obviously no need for the amendment.
Lord Stanley of Alderley: My Lords, I wish that we could pass the whole amendment, as the noble Lord will realise. Unfortunately my noble friend can give me only a little, but a little is better than nothing, I suppose. That is all the more reason why we should consider the other two points. I know that my noble friend is very busy between now and Third Reading, but I hope he will look again at the points I have made. I am trying to give the magistrates more power and taking work off the Crown Court. However, bearing that in mind, I beg leave to withdraw the amendment in the hope that my noble friend will bring something forward at Third Reading.
Amendment, by leave, withdrawn.
Lord Monson Lord Monson moved Amendment No. 56:
After Clause 61, insert the following new
clause:
("Causing death by reckless driving—increased minimum disqualification period.
. In section 93 of the Road Traffic Act 1972 the following subsection shall be inserted after subsection (1)—
"(1A) Where a person is convicted of an offence under section I of this Act, the court shall order him to be disqualified for such period not less than two years as the court thinks fit unless the court for special reasons thinks fit to order him to be disqualified for a shorter period or not to order him to be disqualified." ").
The noble Lord said: My Lords, three weeks ago in Committee I moved an amendment to raise the minimum period of disqualification for persons convicted of causing death by reckless driving from one year to three years. The amendment attracted a good deal of support, and the view was expressed that, if anything, three years was too short a period for disqualification for an offence so catastrophic in its consequences.
However, there were contrary objections both from the Government and the main Opposition Front Benches, who argued that a three-year minimum was too long. I therefore reluctantly withdrew the amendment with a view to coming back with a compromise amendment designed to attract the widest possible consensus and support. This is the amendment we are discussing now.
The two noble Lords who spoke against the amendment three weeks ago argued that a three-year driving ban was too long for those convicted individuals whose jobs depended on driving; for example, heavy goods vehicle drivers or commercial travellers. Although that is a somewhat difficult proposition to agree with, I have tried to meet the objectors half-way by reducing the minimum disqualification period to only two years. We are, after all, talking about a very serious offence. We are not talking about death caused by mere careless driving. We are talking about drivers, whether drugged, drunk or stone cold sober, who have killed a fellow human being or human beings by driving recklessly. In other words, we are talking about manslaughter in all but name.
Most of us would agree that non-suspended custodial sentences are nearly always justified for this kind of offence, and possibly longer sentences than have generally been awarded hitherto. The important point is that those whose reckless driving has produced such appalling consequences should be kept off the road for as long as possible. It seems quite wrong that such a serious crime should attract a minimum period of disqualification no longer than one applicable to a very much less serious offence.
The objections raised against my amendment three weeks ago were essentially based on the argument that a longer period of disqualification would be unfair to those "killer drivers", as the tabloids would describe them, whose jobs necessitated the use of a car or commercial vehicle. But even supposing that people in that position were lucky enough to escape prison, they would still have to find a non-driving job anyway, given that the law as it stands at present requires them to be disqualified for a minimum period of one year.
I submit that to be kept away from a steering wheel for an additional 12 months hardly constitutes an unacceptable hardship in the circumstances. I beg to move.
10.30 p.m.
Lord Brougham and Vaux: My Lords, I should like to support the amendment of the noble Lord, Lord Monson, and in doing so say that my society, RoSPA, is also fully behind the amendment. RoSPA has openly expressed its concern on more than one occasion.
There are many cases of drivers causing death by reckless driving and in most cases the driver gets a fine and a ban, but only occasionally a prison sentence. The longest prison sentence on record for reckless driving is two and a half years. In many hundreds of cases each year where death has resulted from irresponsible behaviour at the wheel of a car, the degree of culpability is such that if any other

393
weapon had been used—such as a gun, a knife, a broken bottle or even bare hands—the killer would have been charged and convicted of murder or manslaughter, for which the maximum penalty is life imprisonment. When the weapon is a car, however, the most horrendous acts of violence go virtually unpunished. It is as though a killer with a motor vehicle has become an acceptable form of homicide.
It is imperative that penalties imposed by the courts should reflect the severity of the crime. In June 1984, the Lord Chief Justice, the noble and learned Lord, Lord Lane, stated that the courts were treating the crime of reckless driving as less serious than it was, than Parliament intended it to be and than the public regarded it. I hope that if my noble friend cannot accept the amendment tonight he will seriously consider it before Third Reading.
Lord Houghton of Sowerby: My Lords, I shall not delay the House more than one minute. I want to make one single point. I have never understood why those whose livelihood depends on driving and who are convicted of reckless driving on killing a person expect leniency from the courts. Surely anyone who is dependent on driving for a livelihood should bear this in mind all the time he is driving. They cannot afford to take reckless risks; still less can they afford ever to kill somebody on the road on that account. I have no sympathy for those who look to the courts for leniency when they are convicted when what is needed is more care by those who face the greatest risk of losing their livelihood.
Lord Harris of Greenwich: My Lords, I very much agree with what the noble Lord, Lord Houghton, has said. We are very much in debt to the noble Lord, Lord Monson, for having put down this amendment, albeit in a slightly different form from one that appeared at the Committee stage of the Bill. Parliament, politicians, journalists and many others have for a long time—and indeed sometimes judges too—had an over-relaxed attitude towards people who kill others while driving cars, and even when they are sometimes very nearly insensibly drunk at the time that they do so.
The reason why politicians of all parties tend to talk about taking "a tough line" when it comes to firearms offences and many others is often the fact that they do not see themselves in the position of ever being involved in an armed robbery or anything of that kind. But they do see themselves all too often in the position of being the driver of a car who might unfortunately kill someone.
To be frank, most of us know perfectly well—those of us who drive cars and drink, and I would imagine that most of us are in both those categories—that from time to time we have driven a car when we have been dangerously near the limit, putting it as delicately as possible. It seems to me that these double standards have applied—double standards which have been increasingly causing public concern.
We have had this tragic spectacle of this gentleman and his children sitting down in Downing Street after the death of the mother of the family. We have had increasing public disquiet expressed both in the
394
newspapers and on television recently. We have had a major campaign in the United States on exactly the same issue. The least we can do where a driver deprives somebody else of his or her life is to say that they should be disqualified for a period of two years save in special circumstances where the court believes that it is right to apply a lesser sentence. I think that is the right way to approach this, and I very much hope that the Government will accept this amendment.
Lord Mishcon: My Lords, I rise only to make two points, and that quickly. The first point I would make is that I would disagree with the noble Lord, Lord Harris, fundamentally if the view were taken as a result of his speech that Parliament either in this House or in the other place has ever taken a lenient view of drunken driving. In my judgment whenever there has been a discussion in your Lordships' House or elsewhere people have risen from all sides of the House to condemn it, to point out its dangers and to say that people who do it are criminal.
I do not know what the activities are of the people on the Alliance Benches, for whom I have a great respect. But talking on behalf of my own Benches, and I hope on behalf of others Benches in this House. I do not think that it is the common practice for Members of your Lordships' House or of another place to imbibe and then drive afterwards. I hope we have a more responsible view of our public position. If that is not too pompous I now pass on to my next point, which I hope is not pompous at all. What is pompous to the noble Lord, Lord Harris, is not necessarily the way in which we would define pomposity in the rest of the House.
So far as my second point is concerned, it can be equally brief. I think that your Lordships may be misled. I tried to make this point at the Committee stage when this amendment was before your Lordships. Your Lordships may be misled into thinking that "special reasons" are reasons advanced on behalf of the party's individual circumstances. They are not. The court cannot in regard to special reasons take into account that the accused earns his living by driving.
Special reasons are defined by the courts as meaning special reasons relating to the offence itself and not in regard to the individual who perpetrates it. I thought that your Lordships ought to know that, and therefore know that, regardless of any point that may have been made perfectly properly in this debate about the individual circumstance of the accused, your Lordships may feel that, once you have the safeguard that mitigating factors in regard to the offence itself can be taken into account, it is quite proper to pass this amendment.
The Earl of Caithness: My Lords, this is an emotive issue and I am sure that we all have sympathy with the intentions behind the amendment. As the noble Lord, Lord Monson, has said, his amendment would increase from one to two years the minimum period of disqualification for the offence of causing death by reckless driving. He rightly argues that this is a serious offence and that the courts should deal severely with those who commit it. I would not argue

395
with that, but I have to say that I agree with the noble Lord, Lord Mishcon, that there really is no evidence that the courts are not taking these matters seriously.
I shall turn in more detail to disqualification in a moment. First, I should remind your Lordships that disqualification is not the only penalty available for this offence. The maximum penalty on conviction on indictment for causing death by reckless driving is five years' imprisonment. In 1985, 95 people were sentenced to immediate imprisonment for this offence. Of those 95, 35 received sentences of between one and two years; one received a sentence of between two and three years; and five received sentences of between three and five years.
The courts have also used their powers of disqualification to the full. One year is the minimum period of disqualification, yet nearly 90 per cent. of those people disqualified were disqualified for more than two years and over 30 per cent. were disqualified for more than five years. So the evidence indicates that courts do take a serious view of this offence.
This is a difficult area in which we would be reluctant to interfere with the discretion of the courts to sentence as they see fit. I took note of the remarks made in Committee when this issue was raised on an earlier occasion and I have thought very carefully about it since. I have also listened with great care to what your Lordships have said this evening. I find the argument that there should be a difference in the maximum penalty for reckless driving and for causing death by reckless driving persuasive and I am swayed by the strength of the opinions expressed. I am prepared to accept Lord Monson's amendment.
Lord Monson: My Lords, that is a most gratifying reply. I should like to say how grateful I am to noble Lords in all quarters of the House who have spoken in favour of the amendment and to the noble Earl and the Government for accepting it. I think that the general public, who have recently demonstrated such anguish and concern over this problem, will also be very grateful to the Government. Once again, I thank the noble Earl and all those who have supported the amendment.
On Question, amendment agreed to.
Clause 62 [Forfeiture—general]:
The Earl of Caithness The Earl of Caithness moved Amendment No. 57.
Page 41, line 17, at end insert ("and").
The noble Earl said: My Lords, I beg to move Amendment No. 57 and to speak to Amendment No. 58. These amendments remove from Clause 62 the link between the value of the item to be forfeited and the maximum fine the court could impose for the offence.
I accept the argument put forward by the noble Lord, Lord Irvine of Lairg, in Committee that the link is not necessary or even an altogether desirable one, and that the magistrates' power to make a forfeiture order should not be restricted in the way envisaged in the clause.
The purpose of the provision is to deprive the offender of the tools of crime or of unlawfully held property. That may be a right and proper course to take even if the value of the property forfeited exceeds the maximum fine for the offence. Indeed, as the noble Lord pointed out in Committee, the connection between the offence and the forfeited property may in some cases be indirect. When we debated this matter in Committee I was concerned that unless some restriction was retained, we might see excessive forfeiture orders being made. However, on reflection, I find the noble Lord's arguments the stronger. I therefore brought forward these amendments. I beg to move.
Lord Morton of Shuna: My Lords, I should like to say thank you on behalf of my noble friend Lord Irvine whose arguments in Commitee appear to have been persuasive.
Lord Stanley of Alderley: My Lords, I should also like to say thank you.
On Question, amendment agreed to.
The Earl of Caithness The Earl of Caithness moved Amendment No. 58:
Page 41, line 21, leave out from ("making)") to end of line 28.
On Question, amendment agreed to.
[Amendments Nos. 59 to 61 not moved.]
Clause 82 [Compensation.]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 62.
Page 61, leave out lines 16 to 30.
The noble Lord said: My Lords, I should like to speak to Amendment No. 62 in the name of my noble friend, and also speak to Amendments Nos. 63, 64 and 65. The amendments raise the question of what happens when there is an acquittal by a jury or on appeal after a forfeiture order has been made.
The Government's position is that there should be no power for compensation unless there has been serious default by the investigating or prosecuting authorities. I suggest that that is mean-minded and misguided. The amendments are directed to removing that barrier. If, in the end, the person is acquitted, it is a necessary consequence that the law regards them as innocent. It is wrong that an innocent person should suffer loss at the hands of the Government for something for which he is not responsible. For that reason Amendment No. 64 provides for the case where a defendant, although acquitted, brings suspicion on himself and allows the court to deprive him of compensation. Short of that, I suggest that an acquittal is an acquittal and it should be recognised as such. That is the purpose of the amendments. I beg to move.
The Earl of Arran: My Lords, the noble Lord's proposition is that anyone who is acquitted and has suffered loss as a result of the processes of justice should be entitled to the opportunity of seeking compensation. But the Government do not believe it would be in the best interests of justice to adopt this radically new approach to the issue of compensation. The noble Lord is saying that any acquitted person

397
deserves the chance of compensation. We are saying that an acquittal is an acquittal and let no one doubt it.
Lord Morton of Shuna: My Lords, if the noble Earl will give way, I am not saying that any acquitted person is entitled to compensation. We are saying that any acquitted person who has had his property taken possession of by the Government is entitled to compensation.
The Earl of Arran: My Lords, I thank the noble Lord for clarifying that point. But we do not accept the proposition that all acquitted persons should be able to secure compensation from public funds. We do not think it right that the person whose prosecution failed on a technicality should be entitled to benefit in this way, nor the person who by his actions brought prosecution upon himself. This is why Clause 82, like the Drug Trafficking Offences Act before it, establishes the test of "serious default".
I wonder whether the noble Lord does not in fact accept that case at least in part, for his amendments would seem to suggest so. They suggested that there should be a general entitlement to compensation, but that this should be qualified by a power of the High Court to refuse or reduce compensation if someone has invited prosecution by bringing suspicion upon themselves. I should like to pause for a moment on the implications of this. The danger, it seems to me, is that it will put the High Court in the quite unacceptable and invidious position of distinguishing between classes of acquitted person. The High Court could be drawn into having to pass judgment on the judgment of the court which acquitted the defendant. An advantage of the "serious default" criterion is that it avoids this wholly undesirable situation. It concentrates the High Court's attention, properly, on the issue of whether the prosecution, through recklessness or error, was responsible for a state of affairs which should never have been allowed to happen. It does not make the High Court address the question whether someone really deserved to be acquitted or not.
The second point concerns "substantial loss". It would be for the High Court to say what is "substantial", but it is not the intention to exclude losses which are relatively small but have a serious effect on the loser. However, we think it important to exclude minor and wholly opportunistic claims and that is the purpose of the word "substantial".
Against that background I believe that the present criteria in Clause 82 are the right ones. They ensure that there is an opportunity for compensation where something has gone seriously awry with the investigation or prosecution causing substantial loss, but they do not extend to other cases. I hope that the noble Lord will accept that on this matter there is a difference of view between us and that we think it would be wrong to depart from the established principles. Nevertheless, I hope that he will feel able to withdraw the amendment.
Lord Morton of Shuna: My Lords, the established principles, of course, were established as far back as 1986 in the Drug Trafficking Offences Act. This is
398
rather like saying, "This tradition will start from tomorrow". But if the noble Earl considers that my amendment will give difficulty to the court, what does he think about serious default? Does he not think that any lawyer worth his salt would have tremendous fun in court wondering whether the fault of the prosecution was serious or trivial? Lawyers would have great fun with that. However, on the basis that this may be a matter to which we shall return on another day, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 63 to 65 not moved.]
Lord Mishcon Lord Mishcon moved Amendment No. 66:
After Clause 96, insert the following new
clause:
("Compensation for miscarriage of justice.
. The Secretary of State shall make provision for the payment of compensation to any person who has by a final decision been convicted of a criminal offence and whose conviction has subsequently been reversed, or who has been pardoned, on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.").
The noble Lord said: My Lords, I can be very brief and say to your Lordships that we are now dealing with a rather different matter from the preceding amendment, however meritorious that amendment might be. We are dealing with the question of miscarriage of justice, in which there has been a final conviction and thereafter as a result of an inquiry or new evidence it has been found that the person concerned was completely innocent of the alleged crime of which he was convicted. We are asking in justice that compensation should be available in those cases. At this late hour I very much hope that this very reasonable amendment can be accepted, so that we can terminate our proceedings on a happy and proper note. I beg to move.
Lord Monson: My Lords, I put my name down to this amendment because it expressed a feeling that I have had for some time. I wonder whether the Government would consider the provision of a modest—and I stress the word "modest"—degree of compensation to all those who are wrongfully arrested or detained and not only to those who are wrongfully convicted. That would reconcile the public to the greater number in toto of wrongful arrests and detentions that take place today as an inevitable consequence of greater police and Customs and Excise activity, which is itself an inevitable consequence of the more dangerous times that we live in compared, for example, with the 1950s.
The Earl of Caithness: My Lords, the noble and learned Lord, Lord Elwyn-Jones, moved an identical amendment to this one in Committee. I indicated then that the Government would be willing to look sympathetically at the case for an amendment for these purposes and on that basis the noble and learned Lord was willing not to press the matter. The purpose of such an amendment, as is the purpose of this one, would be to enact the provisions of Article 14(6) of the International Covenant on Civil and Political Rights.

399
The speeches made in Committee made fully clear to me the strength and urgency of your Lordships' feelings on this matter. I am therefore ready and able to give the undertaking sought from me at that time and can confirm that the Government will bring forward an amendment for the purpose of enacting the provisions of the article to which I have referred.
There was a further undertaking that I believe your Lordships sought from me, which was to introduce an amendment before the Bill left this House. I regret to say that I am not optimistic that this can be achieved. I alluded to the difficulties during Committee. Essentially they are that the drafting of a suitable amendment will be more complex than might appear to be the case from the noble Lord's amendment, and will require discussion with a variety of interests within government.
We need to give careful consideration to the meaning of the words—I quote from the article—"final decision" and to the making of detailed arrangements, which, in the amendment before us, are not addressed as directly as they would need to be. I believe your Lordships will accept that for an amendment of this nature and with the purposes envisaged it would not be appropriate simply to make general provision for the payment of compensation. We must consider carefully exactly how that provision should be made.
I therefore think it unlikely that the amendment can be ready by Third Reading and I am sorry that this should be so. I can however assure your
400
Lordships that we shall definitely bring forward the necessary provision in another place and, if it is adopted, there will, of course, be an opportunity for your Lordships to consider it when the Bill returns to this House. I am sorry that I cannot go further than that, but I hope that on that relatively happy note the noble Lord, Lord Mishcon, will be satisfied.
Lord Mishcon: My Lords, relatively happy is the right term and I readily thank the noble Earl for his courtesy in the way he has dealt with this amendment, which was originally moved, as he rightly said, by my noble and learned friend Lord Elwyn-Jones. We look forward to the possibility of the Government's amendment being available by Third Reading, but if that is not so the undertaking is perfectly satisfactory and I am obliged to the noble Earl. I beg leave to withdrawn the amendment.
Amendment, by leave, withdrawn.
Lord Denham: My Lords, I beg to move that further consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.

Felixstowe Dock and Railway Bill
Brought from the Commons; read a first time, and referred to the Examiners.
House adjourned at four minutes before eleven o'clock.