Criminal Justice Bill [H.L.]

HL Deb 27 October 1987 vol 489 cc460-87

5.45 p.m.

House again in Committee.

Lord Donaldson of Kingsbridge moved Amendment No. 52A. Before Clause 39, insert the following new clause:

("Right of appeal against recommendation made under 1965 Act.

.—(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 the section the Court of Appeal may—

1. (a) quash the recommendation which is the subject of the appeal; and
2. (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: Amendment No. 52A was not grouped with Amendments Nos. 52 and 55 but was fully discussed. It had the most impressive support. There were splendid speeches from the noble and learned Lord, Lord Roskill, and other noble Lords. I am certain that if I put the amendent to the Committee I should carry the Committee with me. However, the noble Earl made a sensible and generous statement, that he would take away all three amendments—even though I have not asked him to take away Amendment No. 52A—and that we shall return to them at Report stage. Therefore I shall withdraw the amendment.

Lord Simon of Glaisdale

Before the noble Lord withdraws the amendment, we must all think about matters before the Report stage. As Amendment No. 52A stands, and as the practice stands, I am bound to say that it appeals to me. However, the noble Earl indicated that there may be some objection to it. With the consent of the noble Lord, Lord Donaldson, will the Minister indicate what it is that he sees as objectionable?

Lord Donaldson of Kingsbridge

I shall be interested to hear the answer to the noble and learned Lord's question.

Lord Campbell of Alloway

Will the Minister take on board the obvious support in the Committee for Amendment No. 52A as it stands, and also the general support in the course of the debate, irrespective of the other larger issues which loom behind it, for the fact that the judges should no longer indulge in the private practice of writing notes to the Home Secretary but should state their reasons in open court so that they may be considered under the provisions of Amendment No. 52A?

Lord Morton of Shuna

In replying, the Minister will no doubt consider that in 1980 this Government gave such a right of appeal to Scottish cases with a recommendation. It seems slightly illogical that there should be that right of appeal in Scotland but not in England and Wales. I fully agree with what was said by the noble Lord, Lord Campbell of Alloway, in respect of private recommendations.

The Earl of Caithness

I am sorry that the Committee is debating this matter when during the debate on the last amendment I said that I would take it away. It seems to me to be wrong for the Committee to protract this matter further. I shall look carefully at what was pointed out to me by the noble Lord, Lord Morton of Shuna, after the last debate and also at what my noble friend Lord Campbell of Alloway said.

In answer to the noble and learned Lord, Lord Simon of Glaisdale, we do not believe that the right of appeal will have the effect that the noble Lord, Lord Donaldson, thought it might. However, as he has not adduced the arguments that I thought he would, I cannot comment further.

Lord Donaldson of Kingsbridge

Before I withdraw the amendment, I reassure the Committee that something of this kind will come from either the Government or from us on these Benches at Report and therefore we can discuss the matter in its proper place. Discussing this amendment without Amendment No. 52 is short of the facts. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Henderson of Brompton moved Amendment No. 53: Before Clause 39, insert the following new clause:

("Statutory minimum standards for penal establishments.

—(1) No person detained in a prison, remand centre, youth custody or detention centre shall be required to share a cell with another person.

(2) Dormitories in prisons, remand centres, youth custody centres and detention centres shall provide a minimum of 60 square feet per person if inmates are confined in them for 10 hours or less per day, and a minimum of 870 square feet per person if inmates are confined in them for more than 10 hours per day.

(3) The Secretary of State shall make regulations prescribing standards with respect to air volume, ventilation, heating, floor space and widow space in cells and dormitories, bathing facilities and sanitary facilities, to which prisons, remand centres, youth custody centres aand detention centres shall conform.")

The noble Lord said: I beg to move Amendment No. 53, and at the same time I shall speak to Amendment No. 287, which is consequential upon it. In the same way as Amendments Nos. 52, 52A and 55, which gave rise to such a notable debate, this amendment also has the support of the Parliamentary All-Party Penal Affairs Group and I hope very much that it will be treated in the same way; namely, entirely in a non-party political fashion.

This new clause proposes minimum standards for penal establishments. It is a remarkable fact that as long ago as 1968 Parliament passed the Agriculture (Miscellaneous Provisions) Act which paved the way for minimum standards for keeping farm animals in custody. That Act gave power to Ministers to prepare codes of practice concerning the welfare of livestock on farms. The provisions of that Act came as a result of public disquiet about the conditions under which calves were kept for veal. Today there is widespread disquiet about the conditions under which prisoners are held in custody, especially where there is more than one prisoner and even as many as three prisoners to a cell, no integral sanitation and what is known as slopping out.

The British public, which is normally and quite rightly concerned with the welfare of animals, is certainly no less concerned about the custody of humankind. If animals in custody deserve to come under statutory codes of conduct, so too do humans. That is my reason for moving this amendment today. This measure is long overdue and indeed has been brought before Parliament on previous occasions.

I should like to read from a speech made by the Home Secretary to Parliament this year, only a day after the Home Affairs Select Committee of the House of Commons had reported, in which he said in the context of prison overcrowding: It is entirely right that there should be wide public discussion of our prisons. Yesterday the Home Affairs Select Committee published a report on prison conditions which will prompt just such a discussion, and the Government will be studying its recommendations". He went on to say: Overcrowded prisons are bad because it is degrading to have three men without sanitation in a cell which the Victorians designed for one, and because in such circumstances discipline and control are extraordinarily difficult to assert and maintain". My final quotation from this speech is: Those of us who actually have to run the system during this present difficult period should not be too proud to listen to advice".

I find that to be a wholly admirable speech by the Home Secretary and I very much hope that, through the noble Earl on the Front Bench today, he will listen to the advice of this Chamber. I should like to place particular stress on that part of the Home Secretary's speech in which he said that overcrowded conditions in prison were bad because, in such circumstances discipline and control are extraordinarily difficult to assert and maintain".

I move this amendment not purely on humanitarian grounds but also on grounds of discipline. I support that second contention and do not wish to dilate on the humanitarian grounds, about which I think we all agree. I support the grounds of discipline as being the unanimous view of those who are concerned with prisons. For instance, in its first annual report in 1982 the prison inspectorate asked for specific binding standards which would serve it as guidelines.

That request was repeated in 1984. Who better than the prison inspectorate to ask for statutory guidelines? The inspectorate says that it is finding difficulty with the adopted criteria of humanity, propriety and value for money and thought it would be useful to have the guidelines provided by the Council of Europe. The prison department therefore would have to take into account something more than just what a reasonable man would regard as proper in the circumstances. It is argued that a set of standards is needed to which inspectors can make reference.

The prison governors have made much the same recommendation. They advocate minimum standards based on the European standard minimum rules for the treatment of prisoners. Then there was the May inquiry in 1979, from which one heard the same kind of recommendation. There are not only the inspectors and the governors but also the Prison Officers' Association, which has repeatedly expressed support for the introduction of a statutory code of standards. Moreover, the annual conference of prison boards of visitors also called for the introduction of such a code. Those recommendations, combined with the Home Secretary's remarks about the difficulty of keeping proper discipline and control in such conditions, must make this an urgent matter for the Government's attention. All those who are intimately concerned with the prison system want this provision and yet we do not have it. I find it very difficult to understand why.

This matter was raised in 1982 when the Home Secretary asked the Prison Department to draw up a code of standards for publication during 1983 as a basis for discussion. That seemed pretty hopeful, but 1983 was nearly five years ago. At that time it was said that the Home Secretary, certainly wishes to invite Parliament to give it full consideration and to express a view of how the work put into it should be carried out".

That proposal was inexplicably abandoned subsequently. So far as I know, all that exists is a Written Answer in February 1986 sent to Reg Freeson in another place, who asked whether the Home Secretary would introduce a code of minimum standards. The reply was that there were no plans to do so. So there were no plans after he had given hope that he would draw up a paper for public consultation and comment.

The publication of an official code has several advantages other than those that I have already listed. The code could form the basis of a planned programme of prison reform in the meanwhile if it is difficult to draw up such a code of conduct straight away. Ultimately it could be given the force of statute.

The Home Affairs Committee of the House of Commons in its report of April 1986 entitled, State and Use of Prisons commented: All our witnesses, other than the Home Office, supported the imposition of legally enforceable standards as a step towards improving prison conditions". I wonder why the Home Office is the one who is out of step? I should like to ask the noble Lord why it is that the Home Secretary's declared intention was abandoned in 1986. I wonder whether the Home Office might not think again and reinstitute the process that was promised as long ago as 1982.

Of course I give credit to the Home Office for making improvements. It must have standards of its own. It could not otherwise build new prisons, for which it should be given all credit. Nevertheless, it is necessary for Parliament to lay down the standards. They should apply to such matters as cell occupancy, integral sanitation, access to work and recreation and food.

The answer given by David Mellor, who was the Minister of State in another place when the matter was raised under the same Bill in March 1987 before the election, was not good enough. He did not take into account the history, the widespread demand and the necessity for a commitment to reduce the prison population to manageable proportions, which would inevitably arise if the kind of standards that I and all those concerned with the country's prisons seek were put forward as a basic requisite. For all those reasons, I beg to move.

6 p.m.

Lord Renton

The noble Lord, Lord Henderson of Brompton, has done a valuable service in bringing the matter before us. I should like to indulge in a modest amount of personal reminiscence to put the matter into perspective.

In January 1958 I was appointed Under-Secretary at the Home Office in succession to the noble and learned Lord, Lord Simon of Glaisdale, who was appointed Financial Secretary to the Treasury as a result of Mr. Harold Macmillan's little local difficulty. The noble and learned Lord found, as I did, a very worrying situation in the prisons. I speak here of England and Wales; I do not include Scotland. There were prison places for fewer than 40,000 people, and about 7,000 were sleeping three to a cell. It was very worrying. We were lucky that my noble and learned friend went to the Treasury where he was able to be an advocate. As a result, we had what was then the largest building programme this century for prisons, remand centres and so on. Since that time the number of people accommodated in the prisons has about doubled and the number of men sleeping three to a cell has also about doubled. The situation is therefore far worse.

I am glad to say, however, that the Home Office now has the largest prison building programme ever in our history, bigger even than in mid-Victorian times when there was a real attempt to do something about the prison population.

The noble Lord, Lord Henderson of Brompton, has put before the Committee what I can only describe as a counsel of perfection, a new clause containing obviously desirable measures. But, alas, it would take years to implement the provisions that he has put forward even if the prison population did not increase still further. As it is likely to increase, implementation is likely to take still longer.

While accepting the desirability of everything that the noble Lord has put forward in the new clause, I feel bound to point out that we are wasting our time—indeed, we are creating a misleading situation—if we pass laws that cannot be implemented in the reasonably foreseeable future. It is a depressing view to have to put before the Committee but I think that we have to be realistic. Meanwhile, the noble Lord, Lord Henderson, has set out obviously desirable guidelines. We should have what he recommends as the ultimate aim, but I think that it would be misleading if we were to add the new clause to the Bill.

Lord Hutchinson of Lullington

I totally disagree with the noble Lord, Lord Renton. He puts forward a view that is endemic in the Home Office. Unless there is a target and unless the standards are laid down so that everyone can aim for them, one will never start on anything.

Why on earth should one not have standards laid down against which to measure new prisons? We can examine new prisons and consider whether they are being built in line with standards in which we believe. If the standards are laid down, prisons can slowly be refurbished and brought up to modern requirements. In each case, the prison can be measured against the standards. We will never progress until we work out the minimum standards.

The noble Lord says that it is a policy of perfection. It is not perfection that there should be one man in one cell: this occurs in many countries in Europe where, as we know, European standards are laid down. But, once again, we are the black sheep, as we have heard so often in the Chamber recently. We are certainly the black sheep of Europe in respect of prisons.

I urge the Minister to explain why minimum standards—size of the cell, one person to a cell, the amount of light, the amount of air—cannot be laid down so that we have something at which to aim.

Lord Renton

As the noble Lord has asked me a question, may I be allowed to reply? I agree that we should lay down minimum standards. But the new clause purports to do much more than that. It purports to make it a minimum legal requirement that these things should be done, presumably at once. If they cannot be done at once, it is misleading to enact them in that way.

Lord Elton

I should like to add to what my noble friend has said. The clause states: No person detained in a prison, remand centre, youth custody or detention centre shall he required to share a cell with another person. What happens when a person is sentenced to be detained and there is no empty cell to receive him is left to our imagination and administrative resources.

I wish to intervene on a practical point. One cannot consider the provision of accommmodation without considering the regime to be followed in the building in which the accommodation is located. To have a single room to oneself is all very fine, dandy and desirable, provided that one goes there only to sleep and read one's book after the dinner break. However, if the pressure on the prisons and staff is such that one is there for 23 hours a day, for certain people that would be a close approximation to hell.

To say that as an act of kindness to prisoners you should sentence them to isolation with their consciences and imaginations, regardless of their psychological make-up, is a very dangerous thing to do. This does not address the main burthen of the noble Lord's intention but it is a very important side effect indeed. If you are going to give this as a minimum criterion, then you must also have minimum criteria of regime and release from the cell. The two together amount to what I can only describe as astronomical amounts of money, even if the prison population remains at its present high level. Therefore the third consideration that the Committee has to have in mind is the practicalities of implementation of the timescale thereof.

Lord Donaldson of Kingsbridge

The noble Lord is of course right. Without altering the behaviour in prisons on all sides, the proper accommodation would be unsuitable. The intention of my noble friend Lord Henderson—and if he has not put it quite rightly it can easily be altered—is that the Home Office will say, "We are perfectly clear that this is what we ought to aim at. We not only cannot do it at once. We cannot even begin until at least the year after next. But we are going to have a programme, week by week, in our 120 prisons, so that in 30 years at least prisoners in this country can be shut up in a way which is decent, instead of in the way that they are shut up now which is indecent". The words "decent" and "indecent" may exaggerate. In my opinion, they do not.

However, that is not the point. Nobody defends what is happening. The Home Secretary does not defend it and the noble Earl does not defend it. But what we are saying is that something must be done about it. This is an effort by my noble friend Lord Henderson. Do not let us say that he has got it wrong. Let us help him to get it right.

Lord Campbell of Alloway

The problem about this amendment is that it does not aim at setting minimum standards. It ordains them and requires their implementation at once. It would in those circumstances, as my noble friend Lord Renton has just said—and I use his term—be wholly unrealistic to expect any government to accept this amendment today on either the humanitarian ground or the discipline ground, although on both grounds— and I concede it at once—the spirit of the amendment is entirely well founded.

In the situtation as it is today in the prisons, it is idle to pretend that any government could in practical terms accept and implement this amendment. However desirable this code of statutory standards is, it could not be implemented today or in the foreseeable future, as I understand the position.

The noble Lord, Lord Henderson, has done us all a proud, valuable service in moving this amendment, if only in the hope that one day—and perhaps one day not too long away—the spirit of minimum standards of prison reform generally may be carried into legislation. No one who has not served a sentence of imprisonment, even an indeterminate sentence, as was once my lot, can hope to understand the stresses and the sub-cultures of prison life, and one must tread very warily in this area.

I am not only concerned with slopping out, which would come under subsection (3) of Amendment No. 53. I am also concerned in particular with subsection (1) of Amendment No. 53. Stripped down to its brass tacks a sentence of imprisonment should never be permitted to involve, encourage or allow sexual molestation, such as a requirement to share a cell may well involve, and if we are talking of minimum standards that, by my book, is the bare minimum.

6.15 p.m.

Baroness Ewart-Biggs

Perhaps I may say a few words in support of this amendment as I have my name down to it. I think that it is not the objective of the noble Lord, Lord Henderson, or myself to press for the wording of this amendment, but it is a fact that over a very long period of time there has been a lot of support from many different and varied quarters for this minimum standard to be laid down.

This was started when there was not the highly critical position that there is in our prisons today, but even then it was thought right from a humane point of view and from the point of view of doing what is correct. Now the noble Lord, Lord Henderson, is saying that it is not only a case of doing what is humane and correct. It is critically important to do something about the conditions within our prisons to avert the catastrophe which quite clearly is menacing many of them. So I should like to support this amendment most strongly.

How can we ever expect prison staff to carry out that important care of people in prison, that important rehabilitation of offenders which must start early on in their prison sentence? How can they carry on this work when the conditions within our prisons are so appallingly bad? I always find it very difficult to understand why we impose certain conditions on other institutions, such as schools and hospitals—the noble Lord, Lord Henderson, mentioned animals, too, in the early days—yet we do not feel that we should impose the same conditions on an institution of enormous importance, such as a prison, where the work that goes on is of critical importance to the whole community in ways of bringing down reconviction rates and in all sorts of other practical ways, quite apart from the humane side of the matter.

So I hope that the Committee will not just brush this amendment aside as being impossible. That would be being most defeatist towards something which has been supported over the years. The noble Lord, Lord Henderson, referred to the fact that the noble Lord, Lord Elton, said in 1982 that there must be a document from the Home Office which we should all discuss. What has happened to it? It disappeared and did not come. It has now become even more vital that it should be discussed. We see this amendment as a beginning of the discussion, which is very important and which, we hope, will end in an agreement on minimum statutory standards within our prisons.

Lord Hylton

I speak as someone who has visited all the prisons in Northern Ireland and a fair few of those in England. I say in parenthesis that, through a strange chain of circumstances, the standards in Northern Ireland are infinitely superior to the standards in England. However, what I should like to do now is to thank my noble friend Lord Henderson and the noble Baroness for bringing forward this amendment. I hope very strongly that the Committee will accept it, because if it is accepted it will concentrate the mind of the Government on reducing the prison population to manageable proportions.

The present size of the prison population is unmanageable and I suggest that we are in a position from which we cannot escape simply by building, given the length of time that it takes from a proposal to build a prison to getting it actually open. What is needed is a major reduction in the population as it stands and a vastly increased use of non-custodial sentences. This will of course entail greater expenditure on probation, on community service orders and the like, but that is what we shall have to have.

Lord Mishcon

Before this debate is concluded, I should like to make a couple of observations which I hope will be of use. The first one is that people inside prisons regard us—we are supposed to be the voice of authority—as being the people who are responsible for the conditions in which they are expected to live.

We are the authority. Parliament is the authority that has decided that they have broken the law. The judge and the court have decided that but it is Parliament that has laid down the laws. When they are in prison it is establishment that is responsible for the conditions; it is authority which is responsible for the way in which they are expected to live. With that thought we should not wonder too much at the unfortunate figures of recidivism which we have heard before in this place and which are so depressing.

How can we hope to turn out from prison when they have finished their sentences people who have some respect for society when society seems to be content that they should be incarcerated in the conditions that have been described in the course of the debate. There are no politics or party questions involved. It is a shame that all noble Lords bear, irrespective of the part of the House in which they sit.

Having said that, it was absolutely pertinent for the noble Lord, Lord Hylton, to refer to some of the matters which could at least alleviate the number of people who are incarcerated and therefore enable us to come nearer to conditions which we might call civilised. That is no party point. It is something that the Government and all of us must remember when we come to parts of the Bill—we have already passed some of them—where we seem to be inclining with some amount of lightheartedness towards increasing sentences and imposing more sentences that should carry with them a custodial penalty. I do not mean that we act in a lighthearted way but that is the reaction of some of us.

I mention lastly the practical side of all this. I agree, as the Committee would expect me to, with everything that my noble friend Lady Ewart-Biggs said. From the practical point of view we must do something when we come to discuss an amendment of this kind. One of the things that it would not be very practical to do would be to say that this shall be an enactment which is operative as from the passing of the Act, because if we do that we are doing something completely nugatory, which produces no result.

I am hoping, and I think everyone who has spoken is hoping, that the code of practice, the code of minimum standards, that was promised in 1982 should—I am addressing myself to the Minister when I say this— now be the subject of a direct promise to Parliament. It must be produced roughly along the lines of the matters contained in the amendment. We must have that as the visible target of minimum standards at which we must aim. But having aimed at that we must, whether on the basis of a reform of our remand procedures, the people we place on remand or the places where remand prisoners go, see that custodial sentences are given only when they constitute the right answer to the crime. If we have both the promise of the code of practice and a policy to keep the number of the inhabitants of prisons down we might achieve the result that everybody in every part of the House wants to see.

Baroness Ryder of Warsaw

I support the noble Lord, Lord Henderson of Brompton, the noble Baroness, Lady Ewart-Biggs, and all the other noble Lords who have taken part in the debate up to now. I can only stand here and say with great humility that I have been a social worker and that since 1945 I have visited thousands of non-German prisoners in German prisons.

We talk a lot about European prisons and their standards. Holland is of course particularly splendid in that respect and so are Norway and Sweden. It would be negative to mention tonight the severity that still continues in the East German and West German prisons. I am witness to that because I spend sometimes 12 hours or more of a day or a night in them. I have seen the way in which those prisons went about overcoming the problem of slopping out. As the Committee knows, each state in Germany is autonomous. Some states led in their reform of prison conditions. It was interesting to note the money that was poured in as long as 20 years ago by the different state parliaments to improve conditions in the cells.

There used to be up to five or six people in a cell that was meant for two or three men. I am going back to Germany quite shortly and I can state that in certain parts of the country there are still up to three people sharing a cell. That applies to the non-German prisoners as well as to the Germans. That of course is not the case in all the prisons, of which there are more than 200, but that situation still exists. However, the slopping out problem has been overcome in all but two of the states by pouring in money. I do not see what we can do to alleviate our prison problems on a down-to-earth basis but we must have aims. It has been said that we must have aims and targets. Nothing in life is achieved without targets.

It may be impractical now to initiate an enormous new prison building programme as the Government may not have the resources or whatever. However, in my humble opinion it is a great pity that the problem was not tackled 25 years ago before the prison population increased to such a vast number. But we must also remember that we are not alone in this. We call ourselves members of the European Community but there are other countries which also have bad conditions. That sounds negative but it is true. I would not wish on anyone what I have seen in some of those places.

I think that discipline is lacking in the prisons of Britain compared to those of other countries. Brutality can never be condoned. The discipline of work under decent conditions and with no overcrowding is something we must aim for, both now and in the future. If we continue to tolerate, as I suppose we shall have to until the new prisons are built, the fact that there are three and four people to a cell, as I know from being with them daily and sharing their lives, prisoners will learn bad habits and wicked ways from the people they share cells with.

I crave the Committee's pardon for rising and prolonging this particular debate. I plead that we should have targets although it may seem impossible to reach them at the moment. We may not see them reached in our lifetime. But how can we, as the noble Lord has suggested, expect people to go out from prison as better people? They go out worse people, in my opinion. We must do something about that.

6.30 p.m.

The Earl of Caithness

I too am grateful to the noble Lord, Lord Henderson of Brompton, not only for raising this very important subject but for bringing me back on to a territory where I am on slightly firmer ground than I have perhaps been in some of our earlier debates.

As the Committee may be aware, the Government are not persuaded that enforcing a code of minimum standards would itself contribute to improving life and conditions in prisons. However, there is nothing between the noble Lord, Lord Henderson of Brompton, and those of the Committee who have spoken in favour of this amendment and the Government in the aspirations of the amendment which the noble Lord has moved. We prefer instead to tackle directly the heart of the problem: that is the shortage of prison places and inadequate facilities in many prisons. A code would not help in this. That is why we have our current massive programme of building and refurbishment, which is unprecedented in scale. I think it is worth reminding the Committee that in the last financial year we spent more on refurbishment than we did on new capital projects, despite the massive scale of those projects.

My right honourable friend the Home Secretary announced a further expansion a few weeks ago. As a result, the programme now embraces plans for in excess of 20 new prisons as well as improvements to existing establishments. We have refurbishment schemes in 100 out of 125 establishments or thereabouts. Altogether this will provide over 21,000 new places. I have listened carefully to the views of the Committee. But I do not believe that the case for a code of minimum standards has yet been made out. I can, however, reassure the Committee that this does not mean that we are resistant to the idea of standard-setting within the prisons. Prison rules are, for example, quite specific about the minimum requirement of exercise for prisoners.

Turning to subsection (3) of the amendment, there are already standing orders which set out a variety of standards, including standards of heating. Although immune from the enforcement provisions of the Health and Safety at Work Act 1974, the Crown is nevertheless bound by the main provisions of the Act. Perhaps more directly relevant to this new clause, we published in 1984 a summary of design standards used in relation to new prisons. The design briefs for new prisons are based closely on these standards, which cover cell area, workshop space and provision for physical recreation, libraries and medical facilities.

The distinction which is thereby made between new prison accommodation and the existing estate highlights the point I am making. The noble Lord, Lord Donaldson of Kingsbridge, has said that we must be clear what our aims are in new prisons. We are clear. We can and do meet satisfactory standards in new prisons. But for the existing accommodation, much of which dates back to Victorian times, the only solution is replacement or rebuilding and refurbishment on the lines we are undertaking. If the regulations which the new clause requires the Home Secretary to make provided for standards which all existing prison accommodation could in practice meet, they would have to be set at a low level, and it is hard to see what purpose they would serve.

Lord Donaldson of Kingsbridge

Will the noble Lord forgive me? He agreed with me when I said that we must refurbish properly, or words to that effect. Surely we cannot do anything without having a standard. Why can that standard not be expressed? That is what worries us. We know perfectly well that chairs with three legs are not accepted in prisons unless they are meant to be three-legged chairs. Wrong things are not accepted on purpose. Why can that not be stated? Why can we not say, "We have a vet y long way to go but we want each cell to be like this and in due course it can be made so"? That is all we ask.

The Earl of Caithness

I understood that the noble Lord was highlighting the fact that he differentiated the refurbishment of existing premises, given the size of cells or dormitories, which very much curtails what can be done. Some of the Victorian cells are larger and some smaller than the specific standards laid down by the noble Lord, Lord Henderson of Brompton. In some prisons there are both larger and smaller cells in the same establishment. As I recall, what the noble Lord, Lord Donaldson, was speaking about specifically was new prisons. That was the point which I emphasised. We have the standard set out in the design brief for new prisons.

Lord Mishcon

Perhaps the noble Earl will permit me to interrupt, only because one is anxious to get something constructive out of the amendment, which deserves to be treated seriously. In old premises one cannot, in the foreseeable future, get the standard one wants. What I believe all sides of the Committee are asking for is this. It may be that in some cases we shall not reach what the noble Baroness, Lady Ryder, whom we were also delighted to hear this evening, called a target. We must have a target. It may be a target which we shall not be able to reach for five years or, in some cases, 10, 15 or 20 years. What we want is the target and we want it to be a civilised target which is agreed by the Home Office as being the eventual aim with every reasonable excuse understood as to why that aim cannot be reached in a few years' time. It may take much longer.

The Earl of Caithness

Our target is the amount of money that we are putting towards the problem. Under the last Labour Government, who actually reduced the amount spent on prisons, a sum of money that was regrettably heinously low resulted in a backlog. It is by spending money on the problem and by doing refurbishments within the existing constraints of the building that the problem will be tackled. Perhaps I may continue.

If, however, provision was made, as I imagine is intended, for standards to which we ought to aspire as a policy target, we should be specifying standards to which we knew existing establishments did not conform and which would require considerable additional resources (on top of the massive resources now being injected) and, indeed, time to implement. With great respect to the noble Lord, Lord Henderson, that does not seem to me to be a sensible way of setting about the improvements which all agree are necessary.

My noble friend, Lord Campbell of Alloway, hit the nail on the head when he pointed out that the amendment ordains minimum standards rather than simply setting targets. What happens if the ordained standards simply cannot be met? I should say that it is far better to work steadily towards the improvement in conditions that we all seek. Ordained standards seem bound to create inflexibility and impede rather than assist progress, because our efforts would then be distorted to meet standards rather than to raise standards all round.

The noble Lord, Lord Henderson of Brompton, says to the Committee that our prisons are overcrowded. Once again I must say to the Committee that not all our prisons are overcrowded. Under half of our prisons are overcrowded. Of those that are not overcrowded, I should say, having had an extensive trip to America, that our prisons are as good as the best that I saw in America and our worst prisons are by no means as bad as anything they can produce. I think that that confirms what the noble Baroness, Lady Ryder, said when she stated that she had seen worse on the Continent.

One thing which has struck me concerning the situation in the overcrowded sections of our prisons is the way that we treat our remand prisoners in comparison to the sentenced population. It is the remands who seem to suffer most from overcrowding.

Turning specifically to cell-sharing, our aim must be to reduce the sharing of cells, which I entirely accept is an unsatisfactory state of affairs. Our building plans have that in view. But I doubt if we shall ever eliminate cell-sharing altogether. Not all cellular accommodation is for single occupation, and some inmates prefer to share. My experience is very much the same as that of my noble friend Lord Elton when he went round the prisons.

Lord Campbell of Alloway

Would my noble friend give way? I am very much obliged to him. It is perfectly all right if people want to share: what is not right is the requirement that they shall share. I wonder whether my noble friend the Minister can possibly take that on board as one of these targets; it is something we might seek to avoid.

The Earl of Caithness

That is indeed the difference but, as I was going to say, my experience was very much like that which my noble friend Lord Elton experienced that regardless of the unsatisfactory situation these people are in at the moment, they would prefer to share a cell than to be moved further away. We are talking about remands who have the extra privileges of visits every day. Notwithstanding the difficulties which sharing a cell sometimes creates, they would prefer to do that than be moved to a prison further away in the country where they could have a cell to themselves.

Lord Elton

I apologise for interrupting my noble friend yet again, but as he has prayed me in aid I should say to my noble friend Lord Campbell of Alloway that of course I and, I am sure, my noble friend understand the predicament of some people who are harassed and exploited sexually if they are forced to be in cells with people of a particular cast of mind and nature. There are provisions within the service already for them to apply to be kept separately, for their own protection. It does not follow that that is very agreeable accommodation to be in, but the problem is recognised and I am sure my noble friend recognises it.

The Earl of Caithness

My noble friend expresses that point better than I could and I agree with him on the point which he made about regimes and the better regimes which one can produce. Indeed, one of the aspirations of Fresh Start, which is now in over half our prisons, is to provide a better regime for inmates, including those in remand centres. I have seen one at Manchester, where Fresh Start is working most satisfactorily and producing a better regime. Even if we had a perfect match between accommodation and population I doubt if it would be sensible to have as rigid a requirement as in subsection (1), which goes further than the corresponding provision in the European standard minimum rules.

The noble Lord, Lord Hylton, said that the adoption of this amendment would help to reduce the prison population to manageable proportions and this would improve matters. I do not think that would help, because I agree much more with the noble Lord, Lord Mishcon, it is on the question of remands that my right honourable friend the Home Secretary and I are spending so much time at the moment, trying to improve the situation for remands.

There is considerable work being carried out which I hope will come to fruition in the not-too-distant future which I shall be able to announce to the Committee and which I believe will be a better and much more satisfactory way of tackling this problem. We all have the same aspirations; this has thwarted governments over the years.

I know that the noble Lord, Lord Donaldson, has been very keen on this. He has tried, my noble friend Lord Elton has tried, my right honourable friend the Home Secretary and I are trying at the moment. I hope we shall be in a position shortly to announce some further measures to alleviate this very serious problem. In all honesty, I do not believe that the amendment of the noble Lord, Lord Henderson of Brompton, will help, and I hope there are better and more efficacious ways of doing this.

Lord Henderson of Brompton

I have listened carefully to the Minister's reply but he has not answered the specific questions which I asked him. Those were: why was it that after 1982, Lord Elton, then Parliamentary Under-Secretary of State for Prisons, announced that the Home Secretary would draw up or cause to be drawn up by the present department a code of practice, a code of standards for publication during 1983 as a basis for discussion? Why was that not drawn up after we had been promised that it would be?

6.45 p.m.

The Earl of Caithness

I am sorry if I did not answer that point directly: I thought it was contained within my answer. Of course, in 1984 we produced a summary of design standards. There are the existing prison rules which cover much of what the noble Lord contains in his amendment but as the noble Lord knows a well as I do, what has thwarted us in many respects is the temendous increase in the remand population. There are 1,000 more in our prisons than this time last year. We believe that instead of laying down some standards which could not be achieved in any foreseeable future, spending a lot of time and energy of members of the department working out suitable minimum standards on which some of the reform groups have spent quite a considerable time, the right solution is to get round to spending the money which my right honourable friend the Home Secretary has been able to obtain on the refurbishment programme, so as to relieve the problem in a practical way.

Lord Henderson of Brompton

I am very grateful to those who have taken part in this debate and in particular to the noble Baroness, Lady Ryder of Warsaw, who lifted the standard of discussion very high. I also thought that the noble Lord, Lord Campbell of Alloway, spoke from experience and gave a new dimension to the debate. I feel, listening to those who have been intimately concerned with imprisonment and either were themselves subject to it or have witnessed it closely, that the others who took part in the debate ought to feel somewhat humble in the light of what they have had to say.

I myself have just been reading of Primo Levi and his bitter experiences during the war. Quite frankly, I find the kinds of comments that came from Lord Elton were hopeless and chilly in the light of what we heard from the noble Lord, Lord Campbell, and the noble Baroness, Lady Ryder. I think Lady Ryder said quite rightly that nothing is achieved without targets: that is what we are after. I have been asking about targets and I have been answered with remands. It is like asking a question about apples and receiving an answer about oranges—it is simply not relevant.

Of course, I know that remand is very important, that is where the tripling of people in cells bites most, but it is not an answer to what I am saying. Does the noble Lord wish to intervene?

Lord Elton

If my noble friend will forgive me, I do, because in reply to what the noble Lord has said about myself I should point out that I was addressing the point in his amendment. It was an immediate enforcement of a standard which cannot be met and one which I think either would be wholly disastrous to the administration of the prison system or else could not be implemented for the foreseeable future.

The noble Lord is now addressing something quite different, as did other noble Lords, and the noble Baroness—that is, having targets. There the Committee is entirely with him, I think, and I would imagine that the first thing the Committee would like to do is to look at the design brief for new prisons, which I understand is published and could be put before your Lordships. It is in itself exactly the sort of target which the noble Lord is looking for.

Lord Henderson of Brompton

I thank the noble Lord very much. I am most grateful for that constructive response. Frankly, I should like to admit that the first part of my amendment is defective. I agree that it is inappropriate to ordain in a statute, as my amendment does in subsections (1) and (2).

On the other hand, to be fair, subsection (3) provides for the Secretary of State to make regulations prescribing standards in respect of other matters. I think that is how the matter ought to go forward. I agree with the criticisms of the noble Lords, Lord Renton and Lord Campbell of Alloway, about subsections (1) and (2); they are not desirable and I shall therefore not seek to press this amendment.

However, I see that the way forward is more in the terms in which subsection (3) is expressed. After this interesting debate, which I hope the noble Earl will take seriously and report back to the Home Secretary, I ask leave to withdraw the amendment, but on the assumption that I may come back to the House with an amendment of a rather different sort drafted on the lines of subsection (3) of this new clause.

Having said that. I now beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Henderson of Brompton moved Amendment No. 54: Before Clause 39, insert the following new clause:

("Removal of Crown immunity from penal establishments.

.—(1) For the purposes of the food legislation and of health and safety legislation, prisons, remand centres, youth custody centres and detention centres shall not be regarded as property of or property held on behalf of the Crown.

(2) The Secretary of State may by regulations provide who is to be treated for any of those purposes as the occupier or owner of any premises specified in subsection (1) above, and such persons shall not be regarded as enjoying any status, immunity or privilege of the Crown.").

The noble Lord said: The noble Lord, Lord Harris of Greenwich, most unfortunately is absent on personal grounds and has asked me to move this amendment on his behalf.

The amendment is a new clause designed to remove Crown immunity from penal establishments. Like the last amendment I hope this one will be received sympathetically by the Committee; indeed in this case not just by the Committee but by the noble Earl. I start with the fact that the National Health Service (Amendment) Act 1986 removed Crown immunity from hospitals following concern arising from a food poisoning outbreak at the Stanley Royd Hospital, Wakefield, in 1984 in which 19 patients died. Until then the Government had firmly resisted the erosion of or any encroachment on Crown immunity. That was a very important breach in the principle of Crown immunity and arose from a specific instance in which National Health Service premises were below the standard which would have certainly been detected and put right in any establishment outside a government establishment.

Exactly the same thing happened in the prison service. There was an outbreak of salmonella poisoning at Leeds Prison in the course of 1985, and that puts the prison service on a par with the National Health Service. If it is good for the National Health Service to have the rigours of the law and the full Health and Safety Inspectorate looking at its conditions, it seems to me entirely right that the same should apply to prisons. I cannot see the difference between the two and it seems an outdated concept of Crown immunity which should be swept away, particularly from prisons.

That is not just my view. It is the view, as I said on the last amendment, of all those who are concerned with prisons. For example, at the moment the local authority environmental health officers are called in but only at the wish of the prison medical officer. There is no statutory duty on the prison service to maintain proper standards.

The Chief Inspector of Prisons has complained frequently about dirty conditions and unhygienic practices in prison kitchens and I can give any number of examples from the prison inspectorate. If that is so, surely it should not be tolerated. I am told that prisons are inspected only perhaps once every nine or 10 years for health and safety at work. That simply would not be tolerated outside. Health inspectors have a much more regular round than that.

Not only have the prison inspectors asked for this; so also have the prison governors. They have supported the removal of Crown immunity. I should have thought the Home Office would do well to accede to the pleas of those who actually have to look after the prisoners.

The Health and Safety at Work Act binds the Crown by its regulations but not in relation to enforcement. That is what we are after. There is no legal sanction now against the contravention of the Act by the prison authorities. I believe, as do the prison authorities, that that should not be so.

The Health and Safety Commission has long pressed the view, without any success, that amending legislation should be introduced. The Prison Officers' Association also agrees. That association has said that many safety measures and facilities for staff and inmates are abysmal and there is only the power of persuasion in order to improve these abysmal conditions.

In the 1985 report the Chief Inspector of Prisons said: Among the items we drew attention to were such recurrent problems as inadequate disposal arrangements for swill, lack of washing and changing facilities for kitchen staff, the absence of any provision for the separate storage of cooked and uncooked meat", and so on. How can we tolerate that? The Government are hiding behind Crown immunity. I suggest that the time has come when prison establishments, like every other establishment, whether or not Crown services, and like the National Health Service, should no longer enjoy this immunity. I beg to move.

Lord Denning

Let me say a word in favour of this amendment. I remember well the controversy about the National Health Service. At one time it was exempt from the ordinary provisions of the law by Section 10 of the Crown Proceedings Act 1947. Similar principles apply entirely to our penal establishments. Large numbers of people are living in them against their will, accommodated by the Crown and its servants, and the obligation to have proper regard to the legislation regarding health and safety should apply to prisons just as to hospitals and any other bodies. Therefore, I support the amendment.

Lord Renton

I was fully in favour of the removal of Crown immunity for the hospital services of this country. I still have an open mind on the question of whether it should be removed from penal establishments and I shall be interested to hear what my noble friend has to say about that.

As I mentioned earlier, as Under-Secretary of State at the Home Office, like others in this Committee have been, I had to read a great many letters sent by people in prison to their Members of Parliament. The MPs always referred these letters to the Home Office. It took up a large amount of one's time. My recollection is that only a very small proportion of the complaints made in those letters turned out to be justified.

I am not quite sure how the removal of Crown immunity would work. Presumably every person in prison would have the right to start an action if he could find any complaint at all. They would all have legal aid and it would become an improved indoor sport compared with that of writing to one's Member of Parliament.

I hope that is not an entirely unworthy recollection and prediction but I think we need to know exactly how it is likely to work out and exactly what the practical implications will be. It may seem irrelevant but to my mind this provision would take us some of the way—not very far but some of the way—towards privatisation of prisons, a highly controversial matter and a proposal which at present I certainly do not favour.

Lord Morton of Shuna

We support the thinking behind this amendment. To deal with the last point of the noble Lord, Lord Renton, on this side we supported the provisions relating to hospitals but we certainly had no idea that in doing so we were supporting the privatisation of hospitals, and I do not think anyone would have suggested that. Surely the way to deal with this is for the relevant inspectors who inspect restaurants and any other establishment to be the people to inspect and enforce the standard. I should have thought it would be that way of enforcement rather than letters to MPs or others, though no doubt all such letters will continue as they always have done and I suspect always will. Surely it is necessary that the standard should be there, if for nobody else at least for the prison staff, who, among others, deserve to be protected from salmonella. Therefore, I support this amendment.

7 p.m.

The Earl of Caithness

I understand the intention behind this new clause, but I have to say that we do not accept that standards of food hygiene and health and safety in prison service establishments fail to meet the standards required by statute. Neither do we accept the implication that the threat of prosecution is required to achieve an acceptable standard.

With the exception of the sections relating to enforcement and to prosecutable offences, the Health and Safety at Work etc. Act 1974 already binds the Crown. As a matter of policy we already comply with the enforcement provisions. Health and Safety Executive inspectors have unhindered access to all prison service establishments, and where they have issued Crown improvement or prohibition notices these have been complied with. Section 36(2) already provides that individual civil servants may be charged with offences under the Act.

As regards food hygiene, under arrangements introduced last year, annual hygiene inspections of prison service catering facilities are carried out by the department's own health and safety officers and regional catering managers, all of whom hold relevant professional qualifications, in most cases the Royal Institute of Public Health and Hygiene's diploma in food hygiene. This replaced the earlier inspection arrangements. The health and safety officers are wholly independent of the Prison Department. We believe that these inspections, which are subject to validation by a series of random inspections by an environmental health officer from the DHSS, are at least as thorough as the sort of inspection a local authority environmental health officer might carry out and are sufficient to enable us to meet the standards required by the Food Hygiene (General) Regulations 1970. In addition to these arrangements, the Health and Safety Executive's own inspectors may inspect a prison's kitchen area at any time. I think that that gives a fairly clear indication of the rigorous conditions under which prison kitchens are inspected and which they have to meet.

The noble Lord, Lord Henderson of Brompton, commented on an outbreak of salmonella food poisoning at Leeds Prison in 1985 which involved five people. A local authority environmental health officer was brought in by the local health authority to investigate the cause and there is nothing in his report to suggest that poor standards of kitchen hygiene were a factor. That should be discounted from the argument.

My noble friend Lord Renton mentioned the pile of letters that one receives on one's desk every day. Some relate to food but, as he so rightly says from his vast experience, most are ill-founded. He has made a useful and probably accurate point about the practical effect of this amendment on the running of prison establishments.

Those who know prisons will appreciate what an important factor food is in relation to the good order and discipline of a prison establishment. If there is going to be trouble or discontent in a prison, it usually starts with food. If the food is bad and not up to the standard required, the prisoners will be the first to complain. I have now eaten at over 40 prisons in the United Kingdom. I made a special visit with a health officer to look at the kitchens to satisfy myself about the standards of diet and the conditions in which the food was prepared and served. The existing conditions and the new arrangements which toughen the inspections are satisfactory at present. I agree that Crown immunity is not sacrosanct, but it should not be removed without good reason. I do not think that we have had that good reason for its removal tonight.

The Government are prepared to keep the position under review and to consider carefully any evidence of deficiency in the existing arrangements. At present we are not persuaded that there is a case for lifting Crown immunity.

Lord Henderson of Brompton

I was delighted to hear of the recent improvements from the noble Earl. That is welcome. Implicit in the recent improvements is an admission of how bad conditions have been up to now. I am glad that rigorous conditions are now imposed by a proper inspectorate. I am also grateful to the noble Earl for saying that he will keep the matter under review and that he does not have a closed mind about the removal of Crown immunity.

One of the things that the prison inspectorate said in 1985 was that, if public confidence in the standards of hygiene applied to public institutions such as prisons was to be maintained, it might well be that the ending of Crown immunity was the price that had to be paid by the Government. The amendment invites the Government to pay that price—the small price of removing Crown immunity, which the noble Earl has said is not sacrosanct—to establish public confidence in the standards of hygiene applied to public institutions. It seems to me that that is something that the Home Secretary would like to recruit and retain.

Clearly this is not the time to press the amendment, but I should like to ask the noble Earl to represent to the Home Secretary that public confidence would be improved by the removal of Crown immunity. Leaving that in the noble Earl's mind, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 55 not moved.]

Clause 39 [Life imprisonment for certain firearms offences]:

The Earl of Caithness moved Amendment No. 56:

Page 24, line 22, at beginning insert— ("( ) Part 1 of Schedule 6 to the Firearms Act 1968 (prosecution and punishment of offences) shall be amended as follows. ( ) The existing entry in the third column of the entries relating to an offence under section 2(1) (possessing, etc. shot gun without shot gun certificate) shall become paragraph (a) and after it there shall be inserted the following paragraph— (b)) On indictment". ( ) The following entry shall he inserted after the entry in the fourth column of the entries relating to an offence under that section, as an entry relating to an offence under that section tried on indictment: "Three years or a fine: or both.").

The noble Earl said: At the same time I shall speak to Amendments Nos. 58 and 59.

Following the horrendous events at Hungerford my right honourable friend the Home Secretary announced a package of measures to tighten up generally the laws governing firearms. The Committee will not expect me to go into detail about them now. Several of the proposals will require legislation and will no doubt come before this place before too long. One of the measures my right honourable friend mentioned was an increase in the penalty for possession of a shotgun without the appropriate certificate. Given that this Bill already includes provisions relating to penalties for firearms offences it seemed sensible to bring forward that proposal now.

Amendment No. 56 therefore brings the maximum penalty for being in possession of a shotgun without a certificate in line with the similar offence in respect of firearms, so that the maximum penalty on indictment for illegal possession will be three years' imprisonment or a fine or both. Although the systems of control are different, uncertificated possession of a shotgun is a serious matter, and it is right that substantial penalties should be available in the worst cases.

Amendments Nos. 58 and 59 are simply consequential drafting amendments to Clause 39. I beg to move.

Lord Morton of Shuna

This side of the Committee has no objections to the amendments, but this seems to us to be curious. If there is to be legislation changing the Firearms Act, which if we believe the press is to go through to completion perhaps before this Bill—which after all is in its fourth day in Committee in this place, has still to reach another place and may well take some time—is there not a case for putting it all in the one Bill?

The Earl of Caithness

I do not disagree with the noble Lord that there is a case for that; equally there is a case for keeping the provision in a Bill which already deals with penalties. My right honourable friend the Home Secretary thought that that was the right way to deal with the matter.

Lord Mishcon

I wonder whether the Minister has considered the discussions which have been taking place in another place on this very matter. Naturally all of us will be with him in endeavouring to control the possession of firearms. All of us remember the disaster. It is unfortunate that disasters have to occur before Parliament decides to act. Some of us remember discussions at Question Time that have taken place since I became a Member of this Chamber on the question of further provisions to control the possession of firearms and penalties if those regulations are broken.

In view of discussion which has taken place in the other place, will the Minister, during the stages of this Bill, consider further provisions controlling the possession of firearms: namely, only one firearm being permitted unless there are very special reasons; the firearms themselves being kept at a place which one hopes will be safe, namely a club which has proper security provisions; and regulations governing the possession of ammunition? We all recognise that the peaceful, lawful use of firearms ought to be retained for those who are entitled to have the firearms and who make out a case for having them, their respectability and responsibility having been properly looked into by the authorities.

Many of us are unhappy, not because the Government have moved in the direction of this amendment but because they have not moved far enough. Without putting down amendments to his amendment, will the noble Earl consider between now and Report stage looking at the possession of firearms with a view to going rather further than this -present amendment? If he would communicate that in the usual way—namely, by a letter to me which is also placed in the Library so that anybody who cares to take part in this discussion can see it—we shall know whether it is sensible to put down further amendments at Report stage or whether, as I hope, this can be left to the Government.

The Earl of Caithness

I shall of course draw to the attention of my right honourable friend the Home Secretary the points that the noble Lord, Lord Mishcon, has made. Notwithstanding what I have just said, I believe that there is a distinction between penalties with which we are dealing in this Bill and arrangements for control mentioned by the noble Lord which are perhaps matters for the proposed Bill to be introduced. Of course I am aware of what was debated in another place. I am also aware of recent meetings between the parties on this matter and I shall put forward to my right honourable friend what the noble Lord has said.

Lord Hailsham of Saint Marylebone

May I, as the owner of a pair of shotguns which I hold perfectly legally, also ask my noble friend to remind his colleague that those of us who own shotguns for sporting purposes would be slightly alarmed if we had to get rid of one of them? And we cannot be expected to keep them in a club.

Lord Swansea

I do not know whether the noble Lord, Lord Mishcon, is a golfer. Some noble Lords may be. I wonder whether those who are golfers have ever tried to play a round of golf with one club. Firearms are used for many different purposes and in many different competitive disciplines. It is useless to talk of restricting ownership of firearms to one per person.

With regards to keeping them on club premises, not all clubs have their own premises. In any case, if they were so stored, a concentration of firearms and ammunition in one place would be a very tempting target for some bodies of which Members of the Committee will be well aware.

Lord Mishcon

Since I have been asked a question I must answer it. The standard of my golf is such that I find I do just as well with one club as with many. However, to take this matter more seriously, there are regulations proposed by the Home Office—in my view, very proper regulations—which govern the possession of knives and other instruments which can be used offensively. I feel that what has happened, unfortunately, at Hungerford, and could happen elsewhere, deserves at least the attention of the authorities with a view to seeing whether or not—be it at a club or through restriction of numbers—we have gone quite far enough in our restriction of firearms. That was all that I was asking the Secretary of State together with the Minister to consider.

Earl Bathurst

Does not the amendment of the noble Earl deal only with shotguns and not with having this relevant certificate thereof? That is a serious offence but it is not quite as serious as the kind of offence which the noble Lord, Lord Mishcon, has described with regard to firearms. Firearms are not connected with this amendment. Would that be correct?

The Earl of Caithness

We are entering into a debate on shotguns and firearms which I hoped Members of the Committee would avoid until a later stage when the proposed legislation is before us. May I draw the Committee back to the amendment which is about penalties. I beg to move that amendment.

On Question, amendment agreed to.

7.15 p.m.

Lord Elwyn-Jones moved Amendment No. 57: Page 24, line 22, leave out ("life imprisonment") and insert ("20 years").

The noble and learned Lord said: This can be dealt with briefly. Clause 39 of the Bill would increase from 14 years to life imprisonment the maximum penalty for two offences under the Firearms Act 1968 of carrying firearms in furtherance of crime. As a preliminary matter I ask this. Am I not right in understanding that the Police Federation—and, after all, the police are liable to be in the front line in this situation—has expressed concern over what is proposed in Clause 39 as it may reduce any incentive for the armed criminal to refrain from using his gun and firing at the police as a means of escape? The possibility of receiving a life sentence for mere possession might well spur the armed robber or the rapist armed with a gun to kill anyone who might be a witness, or a potential witness, in order to increase his chances of not being tried or detected. The knowledge that he would receive just as severe a sentence for mere possession as for actually firing—namely, potentially life imprisonment—would be an added danger to those who have the responsibility for our protection and our care.

Instead of the penalty of life imprisonment, the amendment proposes to mark the gravity of this kind of conduct—it is very serious crime and there is a tendency for it to increase—by a term of imprisonment of 20 years. That ought to be a sufficient threat to deter. It ought not to run the risk of the Bill greatly increasing the dangers to those who are trying to enforce order. I beg to move.

Lord Renton

I do not understand the argument put forward by the noble and learned Lord. It seems to me that if a man might kill to avoid a sentence of life imprisonment it is quite possible that he would want to kill in order to avoid a sentence of 20 years' imprisonment. Therefore, there does not seem to be great validity in that argument. I support the Government on this matter.

Lord Elwyn-Jones

Surely there is a difference between life imprisonment and 20 years.

Lord Hailsham of Saint Marylebone

Not for me!

Lord Elwyn-Jones

I am not talking about a sporting gentleman like the noble and learned Lord the former Lord Chancellor, whose dangerous practices with his guns everybody knows about!

Lord Monson

In common with distinguished noble Lords on what I think we still call the Alliance Benches, I gave notice that I would oppose this clause altogether because I believe the existing maximum penalties to be adequate, but I am attracted by the amendment put forward by the noble and learned Lord, Lord Elwyn-Jones. I think it represents a reasonable compromise between the position of the Government and what one might call the Liberal Cross-Bench position. I would support the amendment if the Opposition were to press it to a Division.

I cannot agree with the noble Lord, Lord Renton. If someone carrying out an armed robbery suddenly finds himself surrounded by the police, whether as a result of a tip-off or otherwise, and is well aware that he stands to receive exactly the same sentence whether he surrenders peacefully without a fight, without firing a shot, or tries to make his escape by shooting his way out of trouble—not necessarily shooting to kill but shooting to disable or to frighten—common sense suggests that he would choose the latter course. If I happened to be a practitioner of armed robbery I feel fairly certain that would be my reaction.

Most armed criminals would choose to shoot their way out, not because they are inherently vicious, although they may be, but first and foremost because of the natural animal instinct for self-preservation, sharpened by a determination not to be sentenced to life imprisonment. Only the prospect or the probability of some lesser sentence is likely to induce them to surrender without a fight.

Another consideration—perhaps I am on dangerous ground here as I am not an expert—is that I imagine that determinate sentences are better for prison discipline and prison morale than indeterminate life sentences. Prisoners surely like to know exactly where they stand, however long the determinate sentence may be. It is interesting that this supposition seems to be confirmed by the great dislike of the noble and learned Lord, Lord Hailsham, for indeterminate sentences, which he revealed to us earlier this afternoon while speaking to another amendment.

A third consideration is that the greater the number of crimes which attract a possible sentence of life imprisonment the more the unique and terrible crime of murder is devalued, assuming that life imprisonment remains the severest penalty for murder.

It is worth noting that, apart from the Police Federation, the Association of County Councils strongly opposes this clause for the reasons I have given. It makes two suggestions, one of which I do not think is a starter; but the other is worth considering. It is that greater use should be made of consecutive sentences. A criminal found carrying a gun could be given one sentence for possession of the gun and a consecutive one if he were actually to use it. Finally, I wonder whether the Minister when he comes to reply could tell us in what percentage of convictions for carrying a firearm with criminal intent over the past five years, let us say, the existing maximum penalties have been imposed. Secondly, have judges and other experts in the criminal law expressed their dissatisfaction with the existing maximum penalties which are available?

Lord Hutchinson of Lullington

Perhaps I may point out to the Committee something which is perhaps not appreciated; namely, that already possessing a firearm with intent to endanger life carries a maximum of life imprisonment. To use a firearm with intent to resist arrest also carries life imprisonment. Surely it is right to keep some kind of balance between those offences. They carry life and other offences carry something less. This is surely the whole basis of sentencing policy.

There is one other reason for this amendment and not having life imprisonment; that is, that the number of lifers at the moment continues to rise as the years pass. Some 30 years ago the prison system had to deal with 140. Now the prison system has to deal with over 2,000. The number continues to rise and must do so. The proportion of sentences for non-homicide offences has risen from 6 per cent. to over 18 per cent. It seems to me that it is important not to increase endlessly the number of persons who are sentenced to life imprisonment. This amendment is a cosmetic amendment, as we all know.

Lord Renton

Arising from what the noble Lord, Lord Hutchinson of Lullington, has just said, we should bear in mind that we are not suggesting in Clause 39 a mandatory sentence of life imprisonment, but a maximum sentence to cover only the very worst cases. It could not possibly be very frequently that life imprisonment is awarded, but to cover the worst cases I think it should be on the statute book.

The Earl of Caithness

The Government believe that going armed while committing crime is in the first rank of gravity among offences. That is why we have proposed that criminals who carry firearms will be liable to the severest penalty. I believe that is also the view of the overwhelming majority of law-abiding citizens.

Crime involving firearms is still sufficiently rare in this country to shock us when it happens. Let us keep it that way. I believe it is our duty to give the clearest possible signal to the criminal, to the courts and to the law-abiding citizen that anyone who chooses to carry a gun for evil purposes does so at peril of the highest penalty the courts can impose for any offence.

The Committee has argued that the penalty for carrying a firearm and the penalty for using it must be different. It believes that Clause 39 removes the incentive to the criminal not to pull the trigger. Clause 39 is an incentive to the criminal not to carry a gun at all.

The noble and learned Lord, Lord Elwyn-Jones, prayed in aid the view of the police. It is true that when the criminal justice White Paper was published the initial reaction of the Police Federation was to fear that the incentive not to pull the trigger would be removed. But in its considered written comments, the Police Federation recognised the force of the argument for increased penalties though still voicing some concern at the lack of a further differential.

The Government do not think that the argument that the incentive not to shoot will be removed is a valid suggestion. We were also encouraged that the other police organisations who commented had no objection to the proposal and indeed were inclined to welcome it. It has been suggested that life imprisonment will never be needed for these offences. The proper test of a maximum penalty is whether it is justified in the worst case. Indefinite detention can be justified in the worst case of this kind to safeguard the public from highly dangerous people.

Let us suppose that the offender had previous convictions for using firearms and only luck or timely policing prevented him from using them again on the occasion in question. Is the maximum of life imprisonment really inappropriate in such a case? In practice, of course, the criminal will know that he will be punished in accordance with the gravity of his particular offence. A longer sentence will continue to be more likely if he uses a gun, and yet more likely if he wounds someone. If he goes as far as deliberately to kill, he knows that life imprisonment is inevitable.

The professional armed criminal will also be aware of the policy of my right honourable friend that those convicted of the murder of police officers or of murder in the course of armed robbery will not normally be released until they have served at least 20 years in prison. What the criminal must now work into his calculations is the risk of a longer sentence from the moment he puts the gun in his pocket. Parliament does not flinch from decreeing heavy penalties for evil crimes. Only two years ago noble Lords concurred in raising the maximum penalty for trafficking in Class A drugs from 14 years to life imprisonment. That was a clear signal of the severe view Parliament took of that appalling threat to society. I ask the Committee to show an equally determined response today.

The noble and learned Lord, Lord Elwyn-Jones, has suggested that 20 years would be a more appropriate maximum than life imprisonment. I have listened carefully to the arguments in support of that view and I believe they have a certain force, but I think that proposal falls short of what is required. To say that the maximum should be increased by a third does not make the point which the Government are seeking to make—that crimes involving firearms are not only more serious than other crimes but should be regarded in a different league altogether.

I would also draw the Committee's attention to the nearest equivalent offence on the statute book, that of aggravated burglary. Aggravated burglary already carries a maximum sentence of life imprisonment and the justification for that is not questioned. It applies where a burglar has with him any firearm or imitation firearm, any weapon or any explosive, whether or not it is used. Clause 39 extends this principle to other serious crimes and I commend it to the Committee.

Before I sit down I should say to the noble Lord, Lord Monson, that I do not have the information in the form in which he asked for it. I have other information and therefore in order to answer his question I shall have to write to him.

Lord Elwyn-Jones

The noble Earl has referred to the view of the Police Federation that it would hope for an increase in penalty. That is precisely what the amendment does. At present the law says 14 years. The amendment proposes 20 years. Such information as I have suggests that the police are worried about what is in the Bill for the tactical reasons that I gave. I do not have any sympathy for those who carry firearms, but we must not worsen the situation by exposing the police themselves to the dangers which would flow from equality of punishment for possession and actual use of a gun.

The Earl of Caithness

Perhaps I may just make it clear that I was talking about the Police Federation's initial reaction. That was modified in its written comments. I said that the other police organisations which we consulted were in favour of our proposals.

Lord Elwyn-Jones

In the circumstances, I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Caithness moved Amendment No. 58: Page 24, line 23, leave out from ("entries") to ("relating") in line 24.

On Question, amendment agreed to.

The Earl of Caithness moved Amendment No. 59: Page 24, line 30, leave out ("subsection (1) above") and insert ("this section").

On Question, amendment agreed to.

Clause 39, as amended, agreed to.

The Earl of Arran

Before moving that the House do now resume, perhaps I may suggest that we return to the Committee stage at 8.35 p.m. I beg to move that the House do now resume.

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

House resumed.