Lords Sitting of 12 December 1990

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

"Derbyshire" Bulk Carrier
Lord Campbell of Croy Lord Campbell of Croy asked Her Majesty's Government:
Whether, in the light of the recent research paper from Brunel University, they have reached further conclusions about the sudden disappearance at sea 10 years ago of the bulk carrier "Derbyshire".
The Minister of State, Department of Transport (Lord Brabazon of Tara): My Lords, the marine accident investigation branch is examining this paper. Our report on the conclusions reached will be submitted to my right honourable friend the Secretary of State for Transport shortly.
Lord Campbell of Croy: My Lords, I am grateful to my noble friend for that satisfactory reply. Do the Government still have an open mind on whether changes in design for these very large vessels, or modifications to their sister ships, may prove desirable?
Lord Brabazon of Tara: My Lords, after the loss of the "Derbyshire" the department investigated reports of defects in sister ships. Where appropriate, action was taken to rectify such defects. None of the three sister ships now sailing is under the United Kingdom flag. However, all will be required to meet appropriate standards at the time of their annual surveys. I should add that the formal investigation considered the effect of defects in the larger sister ships.
Lord Clinton-Davis: My Lords, I thank the Minister for that reply. However, will he concede that there has been and remains considerable anxiety concerning the mystery of the "Derbyshire", the largest vessel of its kind under the United Kingdom flag to disappear? Will he also inform the House why, at the time of the inquiry, counsel appearing for the Department of Trade was instructed not to call on Professor Bishop's report? That was clearly relevant. Can he also explain what action was taken in relation to the "Kowloon Bridge", a sister ship of the "Derbyshire", which appeared to suffer similar structural failures? These matters are not confined to the "Derbyshire". Are they matters which will come within the Minister's consideration when he looks at the report?
Lord Brabazon of Tara: My Lords, I appreciate that there is anxiety. However, I should point out that the formal investigation into the loss, which took place between October 1987 and March 1988 under a wreck commissioner, went very deeply into the issue. Regarding the report of Professor Bishop, the Question relates to new material which was not
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available at the time of the formal investigation. The original report could have been called for by any of the witnesses concerned.
The Earl of Halsbury: My Lords, I speak as chancellor of Brunel University. Will the Minister confirm that the late Professor Bishop, whose untimely death I mourn greatly, was one of the most prestigious marine engineers in the country? Anything that he wrote should be taken very seriously.
Lord Brabazon of Tara: My Lords, I agree with the noble Earl. That is why we are investigating the latest material which has appeared.
Lord Clinton-Davis: My Lords, can the Minister explain why instructions were given by the department to its counsel at the time not to refer to Professor Bishops's initial report?
Lord Brabazon of Tara: My Lords, I was not aware that such instructions had been issued to counsel for the Department of Transport. But that is not relevant. Anybody else in the inquiry could have called for the report.

Inflation: Effect of Earnings
2.41 p.m.
Lord Dean of Beswick Lord Dean of Beswick asked Her Majesty's Government:
What figure has been built into the estimate of a rate of inflation of 5·5 per cent. by the end of 1991 to represent the estimated increase in earnings during that period.
The Minister of State, Department of Trade and Industry (Lord Hesketh): My Lords, earnings growth is expected to moderate in 1991. But in line with long established practice, precise forecasts of earnings are not published.
Lord Dean of Beswick: My Lords, I am grateful to the Minister for that Answer. However, is it not true that settlements being made are considerably above what is required if a substantial impact is to be made on the cost of living or inflation figures? Is the Minister aware of recent reports from responsible sources suggesting that senior civil servants are trying to negotiate substantial increases in order to match their salaries with those in the private sector? If conceded will those increases not have an adverse effect on inflation as a whole?
Lord Hesketh: My Lords, we clearly expect wage demands to fall. That is why we are predicting 5.5 per cent. inflation at the end of next year. There are already indicators that M0, retail sales, and surveys of consumer and business attitudes should encourage the Government to believe that the battle against inflation is going to be won.
Lord Bruce of Donington: My Lords, in view of the importance that is attached to the inflation figures month by month, will the noble Lord give the House an undertaking that the Government will review the method by which the various prices of goods and services are obtained for incorporation in the index? Is the noble Lord aware that, in the 34th report of the

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Public Accounts Committee following an earlier document by the Comptroller and Auditor General, there is evidence of serious defects in the way in which data are collected by representatives from local employment offices who regard that task as having a lower priority than that for which they were primarily engaged? Will the noble Lord give this matter serious attention so that one can rely on the RPI, which at the moment lacks all contact with reality on certain points?
Lord Hesketh: My Lords, I am sure that it will be a very disappointing day not only for myself but for your Lordships' House when the noble Lord, Lord Bruce of Donington, is satisfied with the statistics that the Government or the Treasury collect. However, I assure him that constant efforts are being made to improve what is done. Examples of those efforts are the work of the Pilkington Committee and the Chancellor's initiative last year. The desire is constantly to improve the collation of instruments of financial fact and to prevent those of fiction existing.
Lord Hatch of Lusby: My Lords, if the Government are improving their statistics, can the noble Lord say how the estimate given by the Government for inflation this year was only half of the actual figure? Why should this House or anyone else believe that the estimate of 5.5 per cent. inflation for next year is any more accurate than the wildly underestimated figure that the Government last year predicted for the present year?
Lord Hesketh: My Lords, as the noble Lord, Lord Hatch, will be well aware, it is historically exceptional for high interest rates to take so long to dampen down demand. However, I am entirely confident that the figure for inflation of 5.5 per cent. will be achieved. The figures that I mentioned in my earlier reply are among the indicators which I believe will ensure that that will happen.
Lord Molloy: My Lords, does the noble Lord not agree that this is an extremely serious subject? We are discussing the data provided by Her Majesty's Government which are used by thousands of those whom they employ. In answer to my noble friend Lord Bruce of Donington, the Minister said that efforts were being made to improve the data. Does he not agree, therefore, that the Government must know that the data are not up to scratch? May the House be informed from time to time of the improvements that are being made?
Lord Hesketh: My Lords, this Government are particularly aware that the victims of inflation are the weakest in society. The Government are committed to reducing inflation. Between 1974 and 1979 inflation ran at an average rate of 15.5 per cent. We desire to reduce that rate to a manageable level. The fact that we have never exceeded half that rate throughout this Government's term of office shows that we are doing a far better job.
Lord Stoddart of Swindon: My Lords, does not the fact that it has taken so long to reduce inflation through the use of high interest rates reveal that this
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single measure is not enough and indeed that it is wrong? Does the Minister not agree that it would have been better if the noble Lord and the Government had listened to this side of the House and used other more direct measures to bring down inflation?
Lord Hesketh: My Lords, if we had listened to the other side of the House we would have taken advantage of this advice: "This is a time for judgment and that judgment decrees that there should be a big cut in interest rates". That statement was made after the stock market crash by the Leader of the Opposition in another place.
Lord Jenkins of Hillhead: My Lords, can the noble Lord say what he meant when he said that this Government never exceeded half of the 15 per cent. rate of inflation which he quoted? Would he like to give us the figures, for example, for the years 1979 and 1980 or amplify the very recent figure for inflation, which is 10 per cent. or a little more? That figure is well over half of 15.5 per cent. That casts a little doubt on the confidence that we can place in the Minister's absolute confidence—which struck me as a rash remark—that inflation will be 5.5 per cent. by the end of next year.
Lord Hesketh: My Lords, the noble Lord, Lord Jenkins, is absolutely right to pull me up by the traces. I was referring to the average and not the individual year.
Lord Williams of Elvel: My Lords, is the noble Lord aware that the House will be grateful for his clarification of what he really meant in his earlier answer? Will he also accept that the House will be equally grateful for the assurance of his confidence as to the attainment of a rate of inflation of 5.5 per cent. by the end of 1991? In itself that figure goes much further than that given by the Treasury. The appendix to the Autumn Statement put out by the Treasury dealing with the inflation forecast shows a variation which allows the Treasury a certain leeway. However, we are extremely grateful to the noble Lord for his absolute assurance that inflation will be at 5.5 per cent. by 1991. Will the Minister accept our thanks?
Lord Hesketh: My Lords, I am grateful for the commitment of the noble Lord, Lord Williams of Elvel, to my confidence.
Baroness Seear: My Lords, does the noble Lord not agree that part of the trouble, though by no means all of it, is the unreliability of the statistics on which the Government now work? Is he aware that a previous head of the Central Statistical Office, Sir Claus Moser, at a meeting held last week in a committee room upstairs, said that it was not the inaccuracy of the Central Statistical Office, but the Government's insistence on staff cuts which was leading to inaccurate figures on which bad judgments were inevitably made?
Lord Hesketh: My Lords, two events in the past 12 months—the Pilkington Report and the Chancellor's initiative—were generally accepted on both sides of the House as contributing towards an improvement in the statistics.
Lord Dean of Beswick: My Lords, as regards my first supplementary question, is the Minister aware

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that his answer that prices are beginning to be contained is very welcome? Is he further aware that on Friday morning of last week when shopping in Stockport at Marks and Spencer I noticed that tinned food was already being marked down by 30 per cent.? If that shop can afford to do that now, is it not an indication of the rip-off that was taking place previously?
Lord Hesketh: My Lords, I was not in a position to go shopping with the noble Lord last Friday. However, I have to assume that he was witnessing a change in the policy of a particular store.
Lord Leatherland: My Lords, can the Minister tell the House whether, in view of inflation, the salaries or allowances paid to Members of another place have recently been increased or are about to be increased?
Lord Hesketh: My Lords, if the noble Lord cares to put down a Question on that subject and it falls within my remit, I shall be more than happy to answer it.
Lord Leatherland: My Lords, is the Minister confessing that he is ignorant of matters of that kind?
Lord Hesketh: My Lords, the Minister is confessing that the question is very wide of that which exists on the Order Paper.

"Antares": Inquiry Procedure
2.52 p m.
Lord Hatch of Lusby Lord Hatch of Lusby asked Her Majesty's Government:
Whether they will reconsider their decision to instruct the maritime investigation unit to carry out an inquiry into the sinking of the trawler "Antares" and instead hold a public inquiry into the incident.
Lord Brabazon of Tara: My Lords, whether or not my right honourable friend the Secretary of State for Transport decides to hold a formal investigation into the accident, an investigation by the marine accident investigation branch is still necessary in order to gather evidence.
Lord Hatch of Lusby: My Lords, I thank the noble Lord for that Answer. Is he aware that there will be general approval for the fact that the new code of conduct proposed by the Navy has been accepted by the Clyde Fishermen's Association? In view of the fact that the Minister for the Armed Forces described it as a freak incident and as there have been at least 12 similar incidents, fortunately without loss of life, over the past 11 years, is this not now a matter for a public inquiry rather than an internal inquiry by the Ministry?
Lord Brabazon of Tara: My Lords, I sought to explain in my original Answer that a decision on whether to have a formal investigation, which is the form of public inquiry that would take place in this type of shipping accident, has not yet been taken. There is, however, very likely to be a Scottish fatal accident inquiry—that is a matter for the Scottish Law Officers—which would go into this matter in great detail.
Lord Campbell of Croy: My Lords, can my noble friend confirm that within the past few days an agreement has been reached between the Royal Navy and the fishermen's organisations in the Clyde which will enable the fishermen to know the routes which these operational submarines will be taking? That should greatly reduce any possibility of a repetition of this accident, which everyone greatly regrets.
Lord Brabazon of Tara: Yes, my Lords, and I entirely endorse what my noble friend has said.
Lord Clinton-Davis: My Lords, can the Minister tell us why the very much welcomed safety code has not been extended to the Irish Sea, or at least to parts of the Irish Sea, where it is alleged similar incidents have occurred in the past? Can he inform the House whether the reports following the inquiries which are currently being carried out will be published? After all, these matters have given rise to very considerable public anxiety. There have been serious incidents in the past and indeed there is an overwhelming case for public anxiety to be allayed by full publication.
Lord Brabazon of Tara: My Lords, the noble Lord's first question is very different from the one on the Order Paper. The inspector's report will be published unless the Secretary of State orders a formal investigation or there is a very good reason not to publish. If a formal investigation is held, that report will be published.
Lord Campbell of Alloway: My Lords, is there not a serious danger in giving advance notice of these movements outside our own territorial waters?
Lord Brabazon of Tara: My Lords, that, again, is a different question from the one on the Order Paper.
Lord Trefgarne: My Lords, following the question of my noble friend, is it not the case that the arrangements surrounding the movements of our nuclear-powered submarines are among the most sensitive of our defence secrets? Will my noble friend therefore take steps to ensure that, whatever arrangements are very properly agreed with the fishermen, they will in no way prejudice those arrangements?
Lord Brabazon of Tara: My Lords, I shall of course pass on the remarks made in your Lordships' House this afternoon. However, I have to say that those questions are well outside the Question on the Order Paper.
Lord Cledwyn of Penrhos: My Lords, in replying to the noble Lord, Lord Campbell of Croy, the noble Lord confirmed that there was an arrangement between the Clyde fishermen and the Royal Navy to the effect that the Royal Navy would inform those fishermen of the routes taken by its submarines and ships generally. Does that agreement not apply to other fishermen? My noble friend Lord Clinton-Davis referred to the Irish Sea. As the noble Lord well knows, the sad event occurred in the Irish Sea and affects Welsh fishermen and English fishermen as it does the fishermen of the Clyde.
Lord Brabazon of Tara: Yes, my Lords, but as I said in reply to my noble friend Lord Campbell of Croy, I understood that the code of conduct had been agreed.

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I welcome that. The Question on the Order Paper relates to what type of inquiry will take place into this incident. I cannot go further than that this afternoon.
Lord Cledwyn of Penrhos: My Lords, the noble Lord is not dealing with the question I put to him. In reply to the noble Lord, Lord Campbell of Croy, he said that an agreement exists between the Clyde fishermen and the Royal Navy. I am asking whether that agreement applies to British fishermen other than the Clyde fishermen.
Lord Brabazon of Tara: My Lords, what I am saying is that that question is well outside the Question on the Order Paper. I do not have the information.
Lord Campbell of Croy: My Lords, arising from the point raised by the noble Lord the Leader of the Opposition, is my noble friend aware that this agreement has been reached only within the past three or four days and can therefore refer only to the area in question? But presumably other areas will be dealt with in due course.
Lord Brabazon of Tara: My Lords, that may well be the case. I am not in a position to answer on details of the agreement. It is quite outside the Question on the Order Paper.
Lord Mackie of Benshie: My Lords, is it not a fact that there have been many complaints from fishermen about the activities in their fishing grounds of nuclear-powered submarines? It took a sinking and four deaths to get any action as regards the matter. Is there not a case for looking at the complaints in respect of other areas before more serious accidents occur?
Lord Brabazon of Tara: My Lords, these matters can be dealt with in the inquiry. Any previous accidents can be raised.
Lord Campbell of Alloway: My Lords, will the Minister pass on the concern expressed by my noble friend Lord Trefgarne and myself?
Lord Brabazon of Tara: My Lords, I have already said in reply to my noble friend Lord Trefgarne that that will happen.
Lord Clinton-Davis: My Lords, will the Minister also undertake to report to the Secretary of State the desire of noble Lords to extend the safety code into other areas? We may then be able to return to the matter at a later time. Will the Minister join me in extending our condolences to the family of Mr. Jamie Russell, the skipper of the "Antares", and to the families of the three other members of the crew who perished in this unfortunate accident?
Lord Brabazon of Tara: Certainly, my Lords, I readily agree to do so. I am sure that we all feel very sympathetic in regard to what happened. As I have already said, I shall draw to my right honourable friend's attention what has been said.
Lord Hatch of Lusby: My Lords, will the Minister state that Her Majesty's Government are as concerned for the lives of fishermen working off the Scottish coast, as well as those working off all our other coasts,
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as they are for the welfare and operation of nuclear submarines? Further, in view of the fact, as I pointed out earlier, that there have been many incidents around the coast which cannot be proven, will he pass on to his right honourable friend the feeling in this House that there ought to be a public inquiry which would incorporate the Irish Sea and other coasts where similar incidents have been reported?
Lord Brabazon of Tara: My Lords, as I said, if there is to be a formal investigation into such matters all those issues can be raised on that occasion.
Lord Nugent of Guildford: My Lords, as we have now spent 23 minutes on three Questions, which exceeds our total allowance of 20 minutes, should we not move on to deal with the next Question?

CAP: Tobacco Regime
3.2 p.m.
Lord Renton Lord Renton asked Her Majesty's Government:
Whether they will now negotiate for the elimination of the United Kingdom's £47 million per annum contribution to the cost of producing tobacco under the CAP.
The Earl of Strathmore and Kinghorne: My Lords, the United Kingdom contributes to the EC budget as a whole, not towards individual elements of CAP expenditure such as the tobacco regime. The figure which my noble friend mentions is therefore notional. The Government have consistently sought to reform the CAP regime for tobacco and to reduce expenditure on it. We will continue to do so.
Lord Renton: My Lords, I thank my noble friend the Minister for that reply. However, is he aware that the figure of £47 million mentioned in the Question was given to me by another member of the Government? Further, can he say why British taxpayers should subsidise the production of tobacco, which is one of the main causes of lung cancer?
The Earl of Strathmore and Kinghorne: My Lords, so far as I understand it, the figure of £47 million is correct. On the second issue my noble friend raised, he made a good point. When we joined the EC in 1973 we accepted the CAP, of which the tobacco regime was a part. One of the principal aims of the CAP is to protect farm income, including the income of tobacco farmers. Our contribution is to the EC as a whole. However, that is abated to take account of the fact that most agricultural expenditure occurs elsewhere. Under that mechanism we get back two-thirds of our net EC expenditure.
Lord Bruce of Donington: My Lords, is the noble Earl aware that this is one of the fields which has attracted considerable criticism from the European Court of Auditors over the past three years on the grounds of fraud and irregularity occurring within this sphere of operations of the CAP? Will he therefore undertake to ask his right honourable friend the Prime Minister whether it would be possible, on all future occasions when the agricultural Ministers meet together for the purpose of determining what aid is to be given to tobacco, for a Treasury representative to

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sit alongside our Minister and to concur in what is agreed? That would be better than seeking to escape any responsibility for what is done by the Minister of Agriculture.
The Earl of Strathmore and Kinghorne: My Lords, I can only reiterate to the noble Lord what I said on previous occasions. The Government treat fraud very seriously. However, I shall endeavour to pass on his comments to my right honourable friend the Prime Minister.
Lord Boyd-Carpenter: My Lords, is my noble friend aware that many British taxpayers enormously resent their money being used to subsidise the production of a commodity which brings death and disease to a considerable number of people, especially in the third world, to which the tobacco is exported? Will he also make it perfectly clear to his European friends that we are not prepared to continue with what many of us regard as an immoral act?
The Earl of Strathmore and Kinghorne: My Lords, my noble friend makes an extremely good point. About 10 per cent. of Community tobacco production is exported to developing countries. World trade in unmanufactured tobacco is highly competitive with most exporting countries aiding export sales by means of subsidies. Nevertheless, we are concerned about the detrimental effect on health resulting from tobacco consumption. Therefore, we shall continue to press for reductions in all forms of support in order to remove the incentive to produce surplus tobacco, especially the higher tar varieties, and to reduce subsidised exports.
Lord Stoddart of Swindon: My Lords, is the noble Earl aware that millions of people all over the country would welcome a complete renegotiation of the common agricultural policy to eliminate the £2,200 million subsidy which we pay and also the £18 per week that every family in this country pays towards this ridiculous and absurd system?
The Earl of Strathmore and Kinghorne: My Lords, I believe that the noble Lord has made that point on previous occasions. All I can say is that it is somewhat wide of the Question on the Order Paper.
Lord Gallacher: My Lords, in the light of what has been said on many occasions in this House, will the noble Earl invite his right honourable friend the Minister to consider pressing the Community to wind up the tobacco regime? Apart from other points which have been made today, it is a fact that most of the product is of such low quality that it is unusable and, as has been said, that which is usable constitutes a real danger to public health.
The Earl of Strathmore and Kinghorne: My Lords, tobacco is an agricultural crop and therefore eligible for CAP support. In criticising the regime we are one member state among 12 and alone in seeking a fundamental change. There is strong support for it, especially from producers. Although I have previously given the statistics to your Lordships I shall do so again in order to back up what I have just said. About 200,000 holdings are involved in tobacco cultivation, employing almost 800,000 people mostly in the poorer
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southern member states. In Greece, up to one-third of the agricultural labour force is involved in the cultivation of tobacco.

Business
Viscount Davidson: My Lords, it may be for the convenience of the House if I say a brief word about the length of speeches in today's debate standing in the name of my noble friend Lord Elton, to which your Lordships have agreed to apply a five-hour time limit. The number of speakers is such that it is not necessary to apply a formal time limit, but I am sure that noble Lords would agree that it would conform with the spirit of these debates if, save for my noble friend Lord Elton opening and my noble friend Lord Ferrers, who will be winding up, speeches were kept within the 15 minutes maximum time limit, as recommended in the Companion.

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

Sentencing Policy
3.7 pm
Lord Elton Lord Elton rose to call attention to the need to ensure a proper balance between custodial and non-custodial sentences; and to move for Papers.
The noble Lord said: My Lords, before I begin my speech I cannot refrain from extending a welcome to my noble friend the Leader of the House, who so appositely proposes to make his maiden speech only eight days after starting his own life sentence on such a germane subject, having come straight to this House from the Home Office.
The Motion standing in my name draws attention to,
"the need to ensure a proper balance between custodial and non-custodial sentences".
In other words, it draws attention to the importance of sending the right people—and only the right people—to prison. That is not an academic subject. For a great many British citizens imprisonment is a subject of vivid, actual, immediate and personal importance.
For example, in 1988 almost 82,000 of our fellow citizens were sentenced to prison by our courts. Even if all of them came from families consisting of only three people—which is not very likely—and if only the members of those families were touched by the experience, what happened to those 82,000 people had a profound and formative effect on a further 164,000 to whom they stood as parent, child, breadwinner or

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dependant. Therefore, the group immediately affected by sentencing policy in that one year amounted, on the most cautious estimate possible, to roughly 250,000 people.
Imprisonment is a necessary institution. It is necessary for the enforcement of law and for the protection of the public. It is also the most readily available and most easily understood way that our society has of expressing its rejection of criminal behaviour, but that is almost all that it is. Despite all the reformers, from Elizabeth Fry down to those of the present day, it has not become an institution which brings any positive benefit to society as a whole or to the vast majority of those who undergo it. That is not a view born of prejudice. On the contrary, it was formed during my three years as the Home Office Minister responsible for the prison service and confirmed during the five years I have had to reflect on it since. It is not a prejudice; it replaces a prejudice.
Before I encountered the system, I had supposed that the experience of imprisonment would suffice to deter all but a few eccentrics from further crime. That natural view did not survive exposure to the facts. Let me provide one of the facts in the form of the reconviction rates for prisoners discharged from prison department establishments in 1985. Thirty-four per cent. of females and 55 per cent. of males were back in court and convicted again within two years. That fact becomes even more interesting upon analysis. I should perhaps begin by saying that one of the things that first hits one when one starts visiting prisons is the youth of the prisoners. Even middle-aged men are a rarity. Offending reaches its peak in the teens. The great majority of our prisoners are young men. Somewhere in their mid to late thirties, most of those who have not acquired the skills to avoid detection, or the lawyers to avoid conviction, have reached what, in the jargon, is called the age of criminal burnout.
Criminal careers end early in this country, but they tend to start very young indeed. As a teacher, a parent and a responsible Minister, I found the statistics far more illuminating when broken down by age. Of all those over 21, only 31 per cent. of the women and 45 per cent. of the men were reconvicted within the following two years. If we take, for example, youth custody trainees aged 17 to 20, we find that the figures are 44 per cent. for females and 65 per cent. for males. For those aged 15 to 16 the rate of reconviction within two years goes up to 49 per cent. for females and no less than 81 per cent. for males.
If those statistics mean anything, they mean that custodial treatment does not cure a 15 year-old of crime; it confirms him as a criminal. It does so at a cost of about £300 a week. The statistics also suggest (do they not?) that the present balance between custodial and non-custodial sentences is at least not perfect. It is not surprising that we should find such high rates of offending and reoffending around the ages of 14 to 16. It is precisely then that most male children are searching most desperately for an identity. They want to stop being just Mrs. Brown's boy or Mary Jones's
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brother—the lad with brown hair—and be someone within their own right: one who counts. The healthy expression of that need is the natural wish to be good at something.
Everyone possesses some skills and has the ability to be good at something, even at the age of 14; or perhaps principally at the age of 14. But if the skills young people possess are not the skills encouraged or recognised by their school, those skills will not provide the children with the means to secure recognition as someone who counts. They will instead give a few of them the chance to score in the role of buffoon and a great many more the chance to shine as rebels, first, against the discipline of school and then against the rules of society. They have a motive. They want to read in the eyes of their contemporaries not the amusement or condescension that is due to a dunce but the respect that is due to a man. Whatever a 14 year-old reads in the eyes of his contemporaries when he returns to school from serving a custodial sentence, it is neither amusement nor condescension. As he finds it, he is confirmed in his own perception as someone who counts, who knows who he is. He has won his identity: he is a criminal —a hard man. Their respect is his reward, and he will not lightly give it up.
It is therefore what their contemporaries respect that determines the course upon which many children start out in life, and what they respect depends in its turn upon the society in which they live, the family by which they are brought up and the school in which they are taught. This is not a debate on education, but it is relevant that if more of our schools did as our best ones already do and enabled more of our children to exploit the skills that they have and to succeed in the fields in which they can succeed, both the social and the academic results of those schools would improve dramatically and we would have fewer youngsters dropping gratefully into the role of the hard man in their group and ultimately into the tragic statistics to which I have referred.
The work I did as chairman of the recent committee of inquiry into discipline in schools, and subsequent reactions to our report, suggests that that change is on the way, but in the meantime the courts must deal with those customers along with the rest. For some of them custody is a dingy but desirable accolade.
The courts are already under constraint to make the minimum use of custody in certain areas. In 1982 it fell to me to introduce into the House the Bill that was to become the Criminal Justice Act 1982. Section 81 of that Act, now amplified by the 1988 Act, as your Lordships will be aware, laid down that no court should impose any custodial sentence on a young offender unless it was satisfied that no other method of dealing with him was appropriate. That section, as amended, and as amplified to embrace 17 to 20 year-olds in 1988, seems to me to have marked out the correct path for us to follow in developing sentencing practice.
Since 1983 the number of juvenile offenders given custodial sentences has halved, without any corresponding increase in the level of juvenile crime. That trend continues. A Home Office statistical bulletin

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published on 24th October this year draws attention to falls in the sentenced population in the year ending July 1990 as against the previous year. For the overall population the figure is 13 per cent. That is a welcome change. Better still is the news about those age groups to which the 1982 and 1988 changes were applied. The reduction for males aged 17 to 20 is 17 per cent. and for males aged 14 to 16—boys—it is no less than 33 per cent. That is welcome.
The bulletin emphasises that considerable uncertainty is attached to long-term projections. Nonetheless, it is a matter for welcome notice that one of them shows the average number of sentenced male young offenders, which was 7,100 in 1989, falling to between 4,800 and 5,300 by 1998. It cites the legislation to which I have referred as the principal reason for that drop. I am glad to note therefore that in the Criminal Justice Bill, soon to come before your Lordships, Her Majesty's Government propose to take the principles which were applied by those Acts to younger offenders only and apply them, with one small exception at which we shall look in Committee, to all offenders. I look at my noble friend Lady Faithfull because that touches the part of the 1982 Act which she carried into Section 1 against my advice. I concede now that she was right.
While the Home Office projection for the young offender population is a fall, that for the total average annual prison population is a rise. It is a rise by 1998 to between 55,700 and 56,700. That is up to 6,800 more than the highest figure it has ever yet reached. That figure is less alarming than it sounds, because it does not allow for the impact of the provisions of the Bill now in Parliament which I have just described. It is a warning. It is a measure of what will happen if we fail to act and therefore a powerful reason for enacting the provisions when they come before us.
So far I have spoken, as too many people are apt to speak, as though all that were necessary was to tell the courts not to be so hard on offenders. That is a silly way to speak, for three reasons. First, the courts are better judges than we can ever be of the cases that they try. That is sufficient answer on its own to those who want to follow certain of the states of the United States of America and introduce statutory control of sentencing. Secondly, the courts have a duty to the public, and also, let us remember, to offenders and their families, to provide justice and nothing less. They have a duty to award a sentence chosen from the array of sentences which Parliament has set out and which the Executive has made available which they believe to be the most appropriate to each individual case. They need to have a reasonable idea of its effect. That, incidentally, is one of a number of replies to those who argue for executive release.
If the courts are to send fewer people to prison, they must have other more effective sentences to award. Then reason for using those other sentences cannot simply be that we in Parliament urgently wish to keep people out of prison. The courts must be confident that non-custodial sentences are in every respect—for the convicted offender and for society as a whole—
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more effective than custody, in result certainly and, one would hope also, in cost. The courts must have confidence in the sentences.
Thirdly, in order for the courts to do the job properly, the pattern of sentences awarded must be arranged according to a visible logic that relates to the seriousness of the crimes committed. By "visible logic" I mean a logic that is recognised and can be understood by, or at least explained to, all those involved in the criminal justice system, including offenders and, most important of all, would-be offenders. It is not therefore enough for the system to achieve a proper balance between custodial and non-custodial sentences; it must be seen to do so.
A further welcome feature of the Bill is that it begins to provide that logic in the structure of sentences available. However, the pattern will be void of discernible logic if the heavy end has been arbitrarily locked off by Parliament with no compensating adjustments elsewhere. The need therefore is not for the courts to put the public at risk by leaving dangerous criminals at large; nor is it for them to cease awarding sentences that reflect the seriousness of the offences committed. The need is for careful consideration by the courts, by government and by Parliament, of those crimes for which imprisonment, an exceedingly expensive treatment in any form, is also entirely negative. It is for the courts to decide appropriate disposals which they can use with confidence in all such cases.
Is it really right, for example, that no less than 16,817 people should have been sent to prison in 1988 for failure to pay fines? It must surely be right to put attachment of earnings and even of benefits ahead of that. The unit system of relating fines to ability to pay could help to reduce the numbers in default in the first place. We should give that favourable consideration when it comes before us in the Bill.
Two of the principal purposes of custodial sentences are the deterrence of those who might commit crimes and the reform or rehabilitation of those who have already committed crimes. The annual conviction figures make it pretty clear that deterrence is not working very well. For the 76,430 people received in Prison Department establishments last year, it certainly did not work at all. One might expect rehabilitation to work better, yet the figures I have quoted for reoffending show that rehabilitation is not working either.
The success of present prison regimes in straightening out crooks becomes more and more marginal the younger the age group we look at. In one teenage group the reconviction rate was 81 per cent. Even with the most successful group —adult males—there was failure in respect of almost half the candidates. That is due partly to the huge pressures of volume the service has had to cope with and partly to the way in which staff-management relationships have developed under those pressures. If the prison service were relieved of the pressure generated by present rates of custodial sentences, it would have a chance to sort out its outdated industrial relations. Prison regimes could be provided that would actually be

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rehabilitative. The job satisfaction of making a significant proportion of the crooked go straight would be a great reward in itself. The reward to the taxpayer would also be considerable.
These benefits are, I believe, within our reach. We can further reduce the pressure of numbers on the prison services if we ensure the availability of an array of non-custodial sentences which accomplish the purposes of sentencing to at least the degree at present offered by custodial sentences and which have the confidence of the courts. It is plain from the striking fall in the sentencing of young offenders which I have quoted that such disposals already exist in that sector and that they have the confidence of the courts. They are locally supervised, community-based sentences which have in large part been built up, with the considerable help of the DHSS, now the Department of Health, by a wide range of voluntary organisations. When not referred to as community-based, such sentences tend to be called intermediate treatment. They are structured, demanding and highly effective in dealing with young people who have appeared before the juvenile bench up to the end of the 16th year.
We now need to put some real muscle behind extending and developing schemes of the same kind for young adult, and some adult, offenders. The new legislation will not be fully effective until the schemes are in place. I am convinced that, firmly pressed, this policy can divert a substantial further proportion of offenders from custody; that it can achieve a higher rate of rehabilitation among those diverted to it; and that it can provide the prison service with the elbow room it desperately needs to improve its own rate of rehabilitation.
However, this strategy, and the legislation now in train, can only succeed if the courts have confidence in it. Their confidence will largely depend on the reports they receive of it from the probation service and on their perception of the role of the probation service itself. That role is changing as probation becomes a sentence of the court. I hope that this will increase the readiness of the courts to pass to the probation service, strongly supported by the voluntary sector, cases that at present they send to custody for want of a more appropriate sentence.
This debate is opportune not just because of the approach of the Criminal Justice Bill but also because it falls within the consultation period of two important Home Office discussion papers. Within that consultation, the Home Office is receiving comments from a wide range of voluntary organisations, including one in which I declare an interest as its chairman called the Intermediate Treatment Fund. It has extensive experience of instigating local IT schemes using government funds as a catalyst in evaluating their effectiveness on behalf of the Government.
The courts are the guardians of justice. It is they who must be satisfied that the sentences they award are effective. It is they and not the offenders who are the clients of the probation service. There is a delicate and difficult stage to be gone through in broaching this new field during which the probation service must be
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satisfied that the voluntary sector is capable of running strictly rehabilitative schemes and be prepared to vouch to the courts that it is doing so. There is here, I believe, a valuable role for those in the voluntary sector with specific experience of making such judgments.
The Government have recognised the key roles of both the probation service and the voluntary sector. I am immensely heartened by the remarks of my right honourable friend John Patten last Wednesday in the West Midlands when he said of the probation service:
"Our commitment to the service could not be clearer. We have already announced additional resources, including 800 more staff in the next four years, a 25 per cent. increase in real terms in the probation service budget and over £13 million which the Home Office will allocate to local voluntary and private sector schemes working in co-operation with the probation service".
With that kind of approach and level of commitment, I am sure that we can achieve the proper balance of sentencing referred to in the Motion that stands in my name on the Order Paper. My Lords, I beg to move for Papers.
3.29 p.m.
The Lord Privy Seal (Lord Waddington): My Lords, in rising to make my maiden speech, I am very conscious of what a great honour and privilege it is to be a Member of this House. It is certainly something I never expected to be; I am proud to be one of your number. However, I have also been appointed Leader of the House and I am very well aware of the heavy responsibilities that now rest on my shoulders. Thinking of all the distinguished people who have held the office before me, I accept those responsibilities with real humility. I can only assure your Lordships that while serving the Government of which I am proud to be a Member I shall do my utmost to uphold the honour, traditions and interests of the House and the whole House. I know that in following in this Office my noble friend Lord Belstead, I am succeeding someone who was greatly respected, and I hope that in time I may earn the same respect. In the meantime, while as a humble beginner I learn the ropes, I hope that your Lordships will be patient with me, will guide me and correct me where I go wrong, and that I will in due course earn your Lordships' support.
I am grateful to my noble friend Lord Elton for his kind remarks. We were Ministers of State together in the Home Office some years ago and he was a splendid colleague. I thank him for that and I thank him also for today giving me the opportunity to make my maiden speech on a subject with which I have been greatly concerned throughout the past year. I agree heartily with the arguments that my noble friend has advanced.
Your Lordships will be aware that in February this year the Home Office published the White Paper Crime, Justice and Protecting the Public. It contained proposals which were in fact designed to achieve a better balance between custodial and community penalties. The proposals were taken forward in a Bill which I was able to present in another place last month. I hope your Lordships will not think that in what I am saying today, I am trying to anticipate the

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debates on the Bill which will no doubt take place here in due course. Not surprisingly, however, the Bill reflects my thoughts on the subject now before the House.
There is, I believe, general agreement that those who commit very serious crimes, particularly crimes of violence, should be sent to prison, often for a long time. Sentences for that type of offence—rape for instance—have in fact been increasing in recent years following Court of Appeal guidance. I certainly would not support proposals which weakened in any way the court s power to deal severely with very serious crime. Indeed, I believe that in certain cases—for instance where sex or violence is involved—a tougher sentence than that warranted by the seriousness of the offence before the court may be justified by the need to protect the public from serious harm.
I also believe that the time has come to make changes in the parole system on the lines of those recommended by the committee chaired by my noble friend Lord Carlisle of Bucklow. That means not only getting rid of some of the absurdities of the present system which result in offenders who have been given different terms of imprisonment serving the same length of sentence, but also that an offender sent to prison would generally spend a greater proportion of his sentence in custody. The sentence served would be more closely related to the sentence passed. I certainly believe that that would be a good step in terms of respect for the criminal justice system.
However, the vast majority of crimes committed in this country—94 per cent. of them—are not crimes of violence but crimes of dishonesty, often of a fairly petty nature. When it is not necessary to impose a prison sentence to mark society's condemnation of the offence or to protect society, there are strong arguments for not passing one. In prison lesser offenders rub shoulders with the more experienced and often come out worse than they were when they went in. While inside they are relieved of all responsibilities and are quite unable to pay a penny towards the support of their wives and families or to pay a penny by way of reparation to those whom they have harmed.
When one adds to that the absence of any evidence to suggest that an offender who has had a custodial sentence is less likely to reoffend than one who has not, there are the strongest arguments for punishing less serious offenders in the community—in any event they could only be kept out of circulation, as it were, for a limited period of time—and not sending people to prison merely because they have a record of petty offending.
However, it is necessary to face up to why such offenders sometimes finish up in prison at the present time. It happens, I fear, because until now community penalties have often not been perceived as real punishments; and, if truth be told, sometimes they have not been as rigorous and demanding as they should have been. Furthermore, the range of community penalties has not been wide enough. In prow ding more community penalties, there is an
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opportunity to make tough demands on offenders and offer the courts what they and the public will recognise as an adequate response to criminal behaviour.
It should, for instance, be possible to combine probation with community service and make a curfew order requiring an offender to remain at home between certain hours, away from the pub on a Saturday night, for instance, and away from the criminal associates who led him into trouble in the first place. In all this the probation service would have a key role to play. It would obtain the extra resources necessary for it to carry out the task. The service has done a great deal recently to enhance the effectiveness of its work with offenders and I am sure it would respond well to the new challenges we would be asking it to face.
The courts would be encouraged to use community penalties more often as a result of the extension over the whole age range of the sort of requirements which are already placed on the courts as regards young offenders by reason of the 1982 and 1988 Criminal Justice Acts, to which my noble friend referred. For instance, there is a requirement that a custodial sentence should be passed only if the court is of the opinion that the offence is so serious that only a custodial sentence is justified, and after a pre-sentence report has been studied by the court.
It is worth noting that the statutory requirements as regards young offenders have contributed significantly to the recent fall in the prison population. They have done so without any discernible increase in offending in that age group. The prison population has in fact fallen by over 3,000 in the past year. It is highly satisfactory that the opening of new prisons, together with fewer young people being given custodial sentences, means that we are now a lot nearer to the end of prison overcrowding. As my noble friend said, less overcrowding means more opportunities in prison for education, training and work. It also means opportunities for far more imaginative regimes than exist now and opportunities for prison officers to carry out more challenging and satisfying work than they are able to do now. That is wholly to the good.
I do not believe, however, that sentencing proposals should be designed just to reduce the prison population. Their purpose should be to ensure that convicted persons are punished suitably for their crimes. However, if suitable sentencing results in a further fall in the prison population, no sensible person will complain about that.
The best-used non-custodial sentence is not probation or a community service order but the good, old-fashioned fine, 80 per cent. of offenders being dealt with in that way. I think that it is important to make the fine an even more attractive option for the sentencer.
I am in favour, therefore, of a unit fine system being introduced in the magistrates' courts which will enable magistrates to take account of the ability of offenders to pay and to fine in a way which makes equal demands on offenders of different means. I believe that a new system on those lines would not only mean

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better justice but would also mean fewer people finishing up in prison for fine default. As my noble friend said, too many fine defaulters finish up there now.
In all our discussions we should never forget the victims of crime. Although this is not the time to canvass all the various suggestions for enhancing the rights of victims which were contained in the Victims Charter which we published in February this year, it is certainly relevant to the present debate that the courts have already been encouraged to make greater use of compensation orders so that offenders can make some reparation direct to their victims. The framework for sentencing now suggested should provide even more opportunities for such orders to be made.
Once again, I am grateful to my noble friend for initiating the debate. I do not believe that we now have the correct balance between custody and community sentences, but we have been moving in the right direction in recent years, and it is now, I think, time to put on more speed.
My Lords, I thank your Lordships for listening to me with such patience.
Noble Lords: Hear, hear!
3.41 p.m.
Lord Richard: My Lords, I trust that it is not too presumptuous for one who is so recent a Member of this House to speak on its behalf in congratulating the noble Lord, Lord Waddington, on his maiden speech and on his assumption of the leadership of this House. The noble Lord comes to us with a reputation of ministerial office and service in another place. As someone who spent some time in another place some time ago, I would say only one thing to him—he will find this place different. Whatever else it is, it is not the House of Commons. The noble Lord's reputation as a forthright Minister and individual has preceded him. I hope that he will find the somewhat calmer, quieter, more reflective and less overtly partisan atmosphere of this House to his liking. For our part, on these Benches we wish him well.
We hope that we shall be able to establish with the noble Lord, in his new capacity, the same cordial working relationship as we had with his predecessor. We much appreciated what the noble Lord, Lord Waddington, had to say about his predecessor. The noble Lord, Lord Belstead, always had the ear of the House. He was unfailingly courteous. He clearly had the interests of the House much in mind and he earned its deep respect.
Since by an accident of the speakers' calendar I am the first speaker to follow the noble Lord, Lord Waddington, on behalf of the whole House I congratulate him again, wish him well and welcome him to this House.
The wording of the Motion, coming as it does from the Government side of the House, is interesting. It speaks of
"the need to ensure a proper balance".
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That seems to me, as a relative newcomer to this field of political activity, to imply that the balance at the moment is not a proper one—a sentiment with which I imagine many noble Lords would agree. If it is not a proper balance, two further questions arise. First, in what respect is the present balance not a proper one and why is that so? Secondly, what, if anything, can be done about it?
There seem to be varying fashions in sentencing policy. When the noble Viscount, Lord Whitelaw, was Home Secretary, one gained the impression that in order to deter crime, judges should think of sending more people to prison. They did so. The figures changed rapidly, rising through the early 1980s to a total of no less than 50,800 in 1987. Since then there has been a dip to 45,500 in 1990. The Home Office estimates that the figures will rise again in the 1990s to between 55,700 and 56,700, although I recognise that that does not take account of the possible effect of the proposals in the Criminal Justice Bill.
If in the early 1980s the fashion seemed to be to put more people in prison, in later years the curve has seemed to be moving in the opposite direction. The provisions of the Government's White Paper—now incorporated into the Criminal Justice Bill—appear to be a further expression of the Government's desire to reinforce that trend. So where are we now? Is the balance out of kilter, or is it not?
In approaching the problem I started almost from scratch with little detailed knowledge of the subject. I was buoyed up in my endeavours by a remark which I believe that the noble and learned Lord, Lord Hailsham, once made when returning to his ministerial office on a Monday morning with his red boxes in the same state as they had been on the Friday afternoon. When his civil servants remonstrated with him he was heard to say: "Better fresh than briefed".
I approached the matter fresh but not entirely briefed. Therefore, I started with the comparative figures. The Council of Europe figures on comparative prison populations may be well known to interested Members of this House. However, I have to confess that although I was aware of the general trend and conclusions, until I looked at them in detail I was not aware of their full implications. I found the figures highly disturbing.
If one takes the comparative figures based on the number of prisoners per 100,000 of the population one finds that the situation in Council of Europe countries is this: Iceland 35.6; Cyprus, 39.3; Greece, 40; Norway, 48.4; Ireland, 55; Sweden, 56; Italy, 60.4; Belgium, 65.4; Malta, 67; Denmark, 68; Finland, 73; Switzerland, 73; Spain, 75; Austria, 77; France, 81; Portugal, 83; West Germany, 84.9; Luxembourg, 86.5; Turkey, 95.6; and at the top of the list, the United Kingdom, with 97.4. Therefore the United Kingdom has a higher prison population, both in absolute numbers and relative to its overall population, than any other member state of the Council of Europe. Furthermore, that figure for the United Kingdom does not include 1,511 prisoners, mostly unsentenced, who were held in police custody on the relevant date.

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To discover that our comparative rate is more than double that of Holland, Greece, Norway, Cyprus and Iceland is staggering. Further, to find that the rate in Ireland is 55 and in Italy 60.4 whereas in the UK it is 97.4 is extraordinary. One has to ask why.
There seem to be only two possible reasons for that discrepancy. Either those other countries are more law-a siding than we are, and there is little evidence of that—indeed in terms of serious crimes of violence, particularly murder, the evidence is to the contrary—or we in this country send more people to prison than do the others. The evidence seems to point to the second of those conclusions rather than to the first. Again, that invites the same question: why? Why should the United Kingdom, of all the countries of the Council of Europe, choose to send more people to prison than any other country?
Not only do we have the highest absolute comparative prison population of all those countries, but in turn much of that prison population includes individuals for whom alternatives to custody are not only desirable but essential. I do not want to bore the House with too many figures, and I realise that there are criminal statistics upon criminal statistics. Nevertheless, some are more important than others. I hope that I have managed to trawl from the mass of inforination available one or two statistics which will assist the House in considering the Motion. A serious estimate is that between 15 per cent. and 20 per cent. of those in prison are either mentally ill or chronically addicted to drugs, or both. Again, I am bound to say that I find that an astonishing figure.
We should also remember that many of those in prison—indeed, 20 per cent. of the average prison population—were remand prisoners during the decade 1980 to 1990. In 1977 people on remand in prison comprised only 8.5 per cent. of the total population. Again, one has to ask why there has been that increase. Either the provisions of the Bail Act are not functioning in the way Ministers envisaged or there is some other reason. I do not know. I can only imagine that the Act is not working as it should. There are far too many people on remand in prison awaiting trial—more than is justified either by the seriousness of the, offence or the circumstances of the accused. A solution must be found for the excessive number of untried prisoners who are in custody—many of them are young men on remand —particularly as the Government are about to receive Judge Tumim's report into prison suicides.
As NACRO said yesterday, the Government should accelerate their plans to phase out juvenile remands to adult prisons. It said that every year over 1,400 boys aged between 14 and 16 are remanded in custody to await trial and sentencing. I agree with what NACRO says; namely, that this is a recipe for bullying, criminal contamination and suicide attempts. Here I put in a plea. Whatever else it is, the situation is grossly unfair to the prison officers who have to run our prisons. I received from the Prison Officers' Association some material which I found
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extremely helpful. That organisation patently is giving this problem earnest and deep consideration. It is real and immediate.
Turning from the remand figures to sentencing policy generally, non-custodial sentences, as well as often being more appropriate, have another great advantage over custodial sentences in that on the whole they are very much cheaper. The noble Lord, Lord Waddington, when he was Home Secretary, speaking at this year's Conservative Party conference—I believe that he reiterated his remarks in almost the same words this afternoon—said:
"Prison must be the only appropriate way of dealing with those from whom the public must be protected. But there is no point in sending to prison those guilty of far less serious offences who can better be punished outside … Those sent to prison avoid their responsibility to their wives and families all too often … they use prison as a university of crime".
He went on to say that prison also,
"costs the taxpayer a mountain of money—£15,000 a year for every prison place".
It is 20 times cheaper to supervise an offender on a community service order than it is to send him or her to prison. In 1988–89 the average weekly cost of keeping someone in prison was £321, with the most expensive place costing £554. I do not know what luxuries can be bought for £554 which are not available for £321 but it seems to me that £554 per week for the privilege for keeping someone in custody is an extraordinary burden on the Exchequer and I wonder whether it could be reduced.
The average cost of attendance at an attendance centre in the same period was £156 a week. The annual average cost—not the weekly cost—of a probation order was £990. A community service order costs £760 per year. So the Government's answer to the first of my questions—namely, is there a proper balance between custodial and non-custodial sentences?—is clearly no. Indeed, it can hardly be otherwise, having regard to the terms in which the noble Lord, Lord Waddington, moved the Second Reading of the Criminal Justice Bill in another place. He said that the Bill would,
"lead to a fall in the use of imprisonment and therefore to a fall in the prison population".—[Official Report, Commons, 20/11/90; co1.140.
The raw facts of the situation, particularly the comparative ones, must lead one to the conclusion that there is something seriously wrong with the way in which offenders are dealt with in our criminal justice system.
I should like to make it perfectly clear in what I am about to say that the principle of the independence of the judiciary is one which, as a practising barrister off and on for some 35 years, I regard as axiomatic. It is not only foolish in practice but would be wrong in principle to attempt to tell judges how they should approach these very difficult questions of sentencing. Nothing that the Labour Party has proposed is designed to do that nor, indeed, has that effect.
There is a public interest in these matters as well as a judicial one. If we as a nation are concerned about the number of prisoners in custody and if they have been put there by judicial decision (as clearly they

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have) some way of meeting that public concern has to be found. I do not believe that the general public will be content with a policy of leaving it solely to the judges to remedy the situation.
In a debate on an Unstarred Question on 23rd May this year the noble and learned Lord, Lord Ackner, dealt with the possibility of a sentencing council. If I may say so, he dealt with it in somewhat scathing terms. I am glad to see him in his place this afternoon. He concluded by saying:
"Finally, perhaps I may suggest that the answer to the question posed by this debate"—
that debate was in almost the same terms as this one—
"is as follows. A new approach to sentencing is being provided by the Government's proposals contained in their White Paper by the provision of new powers to enable more offenders to be punished in the community, and it can be confidently expected that proper use will be made of those new facilities by the judiciary".—[Official Report, 23/5/90; cols. 991–2.
I do not think that that statement will allay public anxiety on this matter. The fact is that, as all who practise in the criminal courts know, there is not sufficient consistency in the way judges approach this task. I recognise totally how difficult is that task. I also recognise—if it needs stating at all—that absolute consistency is impossible to achieve and is almost certainly undesirable were it possible to achieve it.
Nevertheless—I should like to put some facts before the House—the situation exists whereby, for example, for the same offence an offender in St. Helen's is three times more likely to be sent to prison by the magistrates than is an offender in the neighbouring borough of Rotherham. That situation is frankly too disturbing. At Wood Green in London, 30 per cent. of those convicted are sent to prison. At Mold, the figure is 69 per cent. In Powys 6 per cent. of convictions for theft carry a custodial sentence. In Cheshire the figure is 17 per cent. In Gloucester 29 per cent. of burglars go to prison. In North Wales the figure is 54 per cent. I do not know whether burglars in North Wales are over-skilled and that much more villainous than those in Gloucester, but that is the place to commit burglary because in Gloucester 29 per cent. go to prison, whereas in North Wales the figure is 54 per cent.
A recent Home Office study into Crown Court sentencing found that for thefts of under £200 no less than 39 per cent. of offenders received an immediate prison sentence. Again I say to the House that prima facie this is surely unacceptable, or at the very least requires a public justification. Nor do I believe that anomalies of that nature can be left solely to judicial self-regulation.
As the House knows, one proposal of the Labour Party is that there should be a sentencing council—an independent body to monitor what is happening in the courts and to assist the judges. We realise that such a proposal is not universally popular with the judiciary as such—one would hardly expect it to be—but it is widely advocated by bodies and organisations which take a particular interest in criminal justice. I regret
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that no such proposal appears in the Criminal Justice Bill. We should like to see a council issuing practical guidance on such matters as the sentencing ceiling for different types and grades of offences and on principles governing, for example, the sentencing of persistent offenders or multiple offenders.
At present the Court of Appeal produces guideline judgments. In those areas where it has done so, it has been helpful in producing a greater degree of consistency. But, emanating as they do from an appeal they are only, and can only be, in a limited number of areas. In our view, a proper balance between sentences and consistency in sentencing can only be achieved when a body exists such as a sentencing council.
I hope that nothing I have said this afternoon will in any way give the impression that the Labour Party is soft on punishment. It is not. We believe that serious offenders should be punished and punished severely. But we do not accept that the present balance between those sent to prison and those allowed to remain at liberty is a proper one. In the end, the only way to adjust the balance between those sent to prison and those not sent to prison is to ensure as best one can that fewer people receive prison sentences. In that respect, a sentencing council would be of great assistance.
I conclude where I began. There is a problem that needs to be addressed. Something needs to be done as a matter of urgency. I offer this reflection. Home Secretaries, I fear, are inevitably placed in the delicate position of having to advocate a reduction in prison population against the background of a rising crime rate. On the one hand, they have to calm the fears of their "law and order" supporters. That inevitably means sounding tough and sending what are thought to be proper signals to the public about their determination to stamp out crime. On the other hand, they have to consider practically, as well as intellectually, that at present far too many people are being sent to prison for offences and for periods that are clearly inappropriate.
It is in the resolution of those two apparently contradictory imperatives that the difficulty lies. Unless one is very careful, the end result is a ritual genuflexion to both and the realisation of neither. I am afraid that without a greater and a more overt attempt to produce a more uniform pattern of sentencing throughout the country, we shall not succeed in dealing with the problem. In my view that would be a shame.
4.2 p.m.
Lord Hutchinson of Lullington: My Lords, I warmly welcome the noble Lord the Leader of the House to his new position. He has the inestimable advantage of being a lawyer. Noble Lords opposite will now have a lawyer on both flanks. I am not sure whether that has ever happened before. He will soon appreciate the deep affection in which lawyers are held in this House—in particular by the Government Chief Whip, who appreciates the succinctness with which the lawyers in

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the House put forward their arguments and the modesty and moderation in which they help the dispatch of business.
But the noble Lord the Leader of the House has a hard act to follow. As a modest Back-Bencher, I should like to pay tribute to the noble Lord, Lord Belstead—he is not in his place at the moment—for his great approachability, his kindness to all of us and his unfailing good humour. We shall miss him enormously.
Noble Lords: Hear, hear!
Lord Hutchinson of Lullington: My Lords, it is a remarkable fact that we have had two debates within seven months on sentencing. The other debate was introduced by the noble Earl, Lord Longford. Even more remarkable is that very soon we shall consider the Bill which contains clear statutory criteria which sentencers must observe in all but the most serious offences. Parliament will have then established its right to lay down a framework, and to set out guidelines limiting the discretion of judges and of magistrates. The House had much to do with the criteria for sentencing young offenders in the 1982 and 1988 Acts. It is a great satisfaction for us to see most of those criteria extended to cover the majority of sentencing decisions. One hopes that it will not be long before judicial resistance is finally broken down and the criteria made applicable across the board.
The seriousness of the offence and protection of the public from serious harm from the accused are to be the sole criteria. The balance of sentencing is not to be upset any more by considerations of general deterrence—by the infamous ladder principle: that everything has been tried already and therefore it has now to be custody. Sentencing on an offender's record, and by ideas of the protection of the public in general, are concepts which have been swept away. In my opinion, that is a great triumph for the noble Lord the Leader of the House. Furthermore, the extended sentence and the partially suspended sentence have gone. Sentencers must receive all the necessary information before imposing custodial sentences and must explain in open court their reasons for the imposition.
The emphasis on the new community sentence and the unit fine scheme makes the noble Lord's Bill in my view a turning point in penal policy in this country. It is a matter for sincere congratulations. I am sure that the noble Lord will be the first to admit that the hard work of Mr. John Patten and in particular the officials in the Home Office working under Mr. Hurd has made this breakthrough possible.
To ensure the proper balance—the subject matter of the noble Lord's Motion—which the Bill makes possible, the sentencer must ask two obvious questions: when should I impose a custodial sentence; and, if I do, for how long? It is only too likely that the noble and learned Lord, Lord Ackner—who will soon receive the accolade (or perhaps I should say the Acknerlade) of our favourite law Lord in these debates—will say that the judges have been following those precepts, obeying guidelines laid down by the
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Lord Chief Justice. If that is so, a great deal more needs to be done because we are still sending far too many people to prison, as the noble Lord, Lord Richard, said.
Those guidelines are the basis of the new Bill and the reason for it. In spite of a welcome drop in the total numbers received into custody in the past two years, the proportion of adult males, females, and young offenders serving over three years continues to rise. Sentence lengths have substantially increased. The noble Lord, Lord Waddington, appears to approve of that fact. But I believe he will find that many in this House take the opposite view. I look forward to hearing whether the noble and learned Lord, Lord Ackner, believes that the Bill will result in a wholly new approach by the judges.
The White Paper said that the principle to be followed would be that every criminal should receive his just deserts. The Bill very sensibly couches the criteria in a negative way: that the courts cannot pass the sentence "unless …" The just deserts principle has never seemed to me a workable principle for a balanced policy. If one takes, for example, two youths of 18, one of whom is bright, still in education, living at home and doing very well, and the other dull, unemployed, married and doing very badly, under the just deserts principle the bright youth should surely receive the more severe sentence because he should have known better and he has no family responsibilities. Yet custody in his case would be devastating, ruinous and totally unconstructive.
I find it hard to agree with the wording of the Motion. It continues a dichotomy of contrast which I had hoped the Bill would end: that is the concept of custody on the one side and all other penalties as alternatives on the other. I hope that with the passing of the Bill custody will be regarded simply as one of a number of penalties.
The balance that the sentencer must find is different. The art of sentencing involves no more than the imposition of an effective penalty. It must be a penalty which successfully meets agreed sentencing objectives. The objectives need to be spelt out: it is there that the balance must be found. They will include considerations of punishment, the protection of the public against reoffending, compensation, rehabilitation, cost, consistency yet flexibility, and the approval of an informed public. The list is not exhaustive.
The achievement of effectiveness matters and demands a great deal of the sentencer. First, he requires full and reliable information in regard to the offender and the offence. For that he will rely upon the CPS, the probation service, the legal aid authority, the police, the defending advocate, the medical profession, the proper organisation of the courts and the admirable Home Office research department.
Secondly, the sentencer requires knowledge and understanding of the penalties available; for example, the machinery for the enforcement of fines, the results of non-payment, the package making up the community sentence, and the different forms of

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community service and their suitability depending, for instance, on whether the offender is male or female, a member of the ethnic minorities and so on. Thirdly, he must know the effects of a custodial sentence. He will need statistical information covering the incidence of different types of offence and the rate of reoffending in different age groups, as was set out so impressively by the noble Lord, Lord Elton.
The sentencer will wish to ask himself, for instance, why in 1988 39 per cent. of those convicted in the Crown Court for theft of property under £200 in value went to prison while more than 40 per cent. of those convicted for theft of property over £5,000 in value did not go to prison. He will need to have first-hand knowledge of all the different institutions, their regimes, the effect of overcrowding, the opportunities for work or education, the removal of responsibility and self respect, the confirmation of criminality, the effect on families and so forth. The sentencer should know the cost of the different disposals and the provision for the mentally disabled and the young. He should know the results of the sentences and of the feedback that comes from his previous sentences. For instance, is it sensible to increase custodial sentences for sex crimes which do not involve violence, as the Bill suggests? That presumption is continually found in the speeches of those who support the power of increasing sentences.
Will all that happen? The answer is: only if some changes come about. There must be a change in the culture of those from whom the judges are drawn. The present practising lawyers are too busy and too rooted in tradition to wish to play any part in the broad area of penal affairs which surrounds those with whom they must deal. Judges must cease their isolation from other agencies in the system. The noble and learned Lord the Lord Chancellor is, after all, responsible for the judiciary but his absence from our debates on sentencing is a symbol of that isolation. There must be far more intense and in-depth training than that which is now served up by the Judicial Studies Board. The present narrow and limited tariff compiled from the decisions of a small number of senior Appeal Court judges without research staff or back-up will have to be replaced. In that regard I agree with the suggestion of a forum; a place where, under the guidance of the judges, policy guidelines can be worked out after receiving input from all responsible and experienced areas of the criminal process. It may be a sentencing council or a sentencing commission—call it what you will.
In this increasingly complex and media-orientated world, co-operation, cross-fertilisation, integration and consensus point the way forward to a true balance in sentencing. If, after the passing of the Bill, things simply continue as before; if the proper balance is not struck; if the prisons continue to be filled to overflowing; and if the level of sentences remains high, surely we must think seriously of a career judiciary. Judges and stipendiary magistrates might be trained in depth and at length and they might venture abroad to
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see how such matters are conducted in other countries. Then at last there would be a sufficiency of black and female sentencers on the Bench.
4.16 p.m.
Lord Allen of Abbeydale: My Lords, the issue raised in the Motion is central to problems with which I have wrestled during much of my official career and, indeed, in later years. Although many of the points which concern me have already been covered in what is becoming an interesting debate, marked as it has been by a distinguished maiden speech, I wish to offer a few comments. In doing so I shall not take up my full ration of time.
When I joined the Home Office at the start of my career more than half a century ago I was posted to the criminal division. I found that a principal problem with which it was then wrestling was the desirability of cutting down on the number of people sent to prison for debt, sometimes for only a few days. Since then I have, off and on, found myself confronted with comparable problems, including the period when I served as deputy chairman of the Prison Commission. Indeed, I still have my Royal Warrant of appointment as no one has yet cancelled it.
When I look back over the years I realise that I have seen many changes. I recall our experimenting with corrective training and the new form of preventive detention, the introduction of detention centres, the introduction of parole; the setting up of open prisons and pre-release hostels and polishing off borstal, to name only a few from a long list. However, from early on one thing stood out in my mind and it has remained at the forefront of my thinking. One can experiment endlessly with different forms of sentence and custody but the fact remains that imprisonment —that is the imposition of a custodial sentence—is a sanction which is likely to lose its effectiveness once it is employed.
Under the prison rules—and I believe that this rule still applies—we had to do our best to equip a prisoner to lead a useful and law-abiding life on release. Although during my time we did not have some of the problems which now face the prison service—for instance, overcrowding, dealing with ethnic minorities, AIDS and the violence which mirrors the increasing violence outside—it was always difficult to believe that there was much prospect of carrying out the admirable intentions of the prison rule to which I have referred. As was said by the noble Lord, Lord Waddington, the lessening of the prison population and the improved accommodation are likely to help, but I believe that the basic issue remains.
It was always clear that imprisonment, sometimes lengthy, would be necessary for certain types of offenders and for the protection of the public. But it became equally clear that for some there must be a better way, and so increasing emphasis was put on devising alternatives to custody. That meant in particular putting increasing importance on the developing role of the probation service; and then in due course there evolved refinements in the provisions for fines —and I know that there is still some way to

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go—and such developments as attendance centres and community service orders. In our own way I think I can say that we were all along in pursuit of the kind of balance for which this Motion calls.
But one had to pay regard to the reaction of the public, and I do not mean just those attending Conservative party conferences. The public have an insatiable appetite for crime, as the TV programmes on any day of the week will confirm, but it is not easy to put over a balanced picture. In the post-war period, for example, what hope was there of persuading Ministers to allocate resources to improving conditions for criminals when their constituents were crying out for houses, schools, roads and the rest?
I must say that, deeply regrettable though the troubles at Strangeways and other prisons have been, they have at least done something to help to rouse the public conscience about the state of our prisons, and so far as I know there have not been protests about the substantial amounts that the Government are committing to prison construction. But, all the same, the alternatives to custody—and although there may not be enough we already have rather more than exist in other countries and are adding to them in the Criminal Justice Bill—have throughout tended to be looked on as rather wet; as a kind of soft option. Somehow the public as well as the courts have to be persuaded that they are not.
But since the probation service is much involved with many of these other methods it has to be recognised that it presents that service with something of a dilemma. Traditionally the probation officer is likely to see his responsibility as looking after the well-being of someone who has been entrusted to his care as an alternative to punishment, and for him to adopt a punitive approach, and one that is seen to be punitive, runs contrary to what the service once regarded as its basic principles. Perhaps the Minister will be able to tell us whether he thinks that the service is adjusting to a new role. I think that he must do so, as it seems that the Government are content to entrust their new policies to the service, reorganised as it will be following the publication of the Green Paper, but an assurance from the Minister on this point would be welcome.
Then there are the courts. I hope that this will not sound patronising, but it seems to me that, speaking within the context of this Motion, things have changed for the better. When I was a prison commissioner going round the establishments it was pretty rare to see a judge's name among the list of visitors. Just to take one historical example, I recall that when corrective training was introduced in the Criminal Justice Act 1948 I went with two colleagues who were explaining it all to a gathering of King's Bench judges, and in particular explaining what we meant by corrective training. That mission must have been a pretty dismal failure because corrective training never took off and was never used as we hoped and intended.
But, as I understand it, detailed guidance on sentencing is now provided under the auspices of the Judicial Studies Board for assistant recorders, and there are regular sentencing conferences for judges of
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the Crown Court, the emphasis being on resorting to a custodial sentence only if all other possibilities are considered and found to be inappropriate. Developments of this kind, together with the various statutory hurdles to which reference has been made and which are being added to in the Criminal Justice Bill in the other place, have shown dividends, as in respect of the numbers of young offenders committed to custody.
Perhaps the Minister will tell us whether he is satisfied with the level of consultation and cooperation between the judiciary and Ministers and those responsible for preparing legislation in the criminal justice field. It certainly was not always so. I take it that he will not greet with any enthusiasm the suggestions that have been made for a sentencing council, or sentencing conference, or whatever it may be called, but I wonder if he might feel able to drop some hints that there would be a welcome for guidelines from the Court of Appeal on sentencing policy over a rather wider category of case than exists at present? Could he also say anything about the prospects of securing rather greater uniformity in the decisions on custody or otherwise taken by the magistrates' courts?
There is nothing new about the problem we are discussing, and although the new Bill will clearly help I cannot myself see it as a dramatic breakthrough and a dramatic change in what has been achieved so far. One can strive for gradual improvement but there can, alas, be little hope of achieving perfection. It has been said that the treatment of offenders is one of the criteria by which to judge a mature and caring society. I hope that even against the background of increasing crime we are getting a little nearer passing that test.
4.27 p.m.
Lord Carlisle of Bucklow: My Lords, it is a great honour to be the first Member from the Government side of your Lordships' House to speak following the maiden speech of my noble friend, and therefore to have this opportunity to add my congratulations to him both on his maiden speech and on his appointment as Leader of the House. It so happens that there has been a close friendship between my noble friend and myself, going back many years since we started together at the Bar in Manchester in 1955.
I suspect that he and I, over those years, have been either against each other or at least in the same court in many different towns in Lancashire probably more than almost any other pair of barristers. I have had the good fortune to be present at many of the important points in his life; as his best man and as the godfather to his eldest son. Therefore, I was delighted to be invited by him to have the honour of being one of his proposers on his entry into this House, and I am indeed delighted that I have had the chance to speak immediately after him from this side of the House in the debate today and to add my congratulations to him.
I should also like, I hope with the due cynicism of a close friend, to congratulate my noble friend on the role that he played as Home Secretary. He knows as

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well as I do that we do not always agree on every aspect of penal policy and indeed on some we disagree substantially. But I believe that my noble friend's experience of the courts and of the criminal law, his ability to bring an understanding of the realities of sentencing through sitting as a recorder in those courts, and his ability to be aware of the conflicting interests that judges have to take into account when passing sentence, have enabled him to sire a Bill that will help to rectify the balance between custodial and non-custodial sentences, even if the happenings of the last few months mean that it has now been handed over to foster parents to take it through the House.
It is also a pleasure to have the opportunity of following the noble Lord, Lord Allen of Abbeydale. Anything that I have ever learnt about penal policy I learnt from the noble Lord, Lord Allen, when I was a junior Minister in the Home Office and he was Permanent Secretary. Like him, I want to make just a few general remarks.
The first, which is I suppose obvious and I hope acceptable to all, is that while it is clearly desirable to deal with as many offenders as possible within the community, the fact remains that imprisonment is an unattractive but sometimes necessary way of dealing with fellow citizens who have committed crimes. It is unattractive for all the reasons set out in his speech by my noble friend Lord Elton. It is damaging to the individual, it makes his future life more difficult, it has the effect on some of institutionalising them and clearly it hardens many of them in their criminal ways.
On the other hand, it is regrettably necessary. It is necessary not only for the protection of society but because we must remember that part of the purpose of a sentence is to punish the individual, thus expressing the abhorrence of society for the act he has committed. To a degree it is an act of retribution, and in certain cases only imprisonment can satisfy that test.
It follows from that, first, that imprisonment should be used only when no other suitable way of dealing with an offender is available and, secondly, that when imprisonment is imposed it should be for no longer than is necessary. As the noble Lord, Lord Richard, said, other means of dealing with offenders are far cheaper in monetary terms than sending them to prison. They are also far cheaper in human terms than sending offenders to prison.
Secondly, I should like to take up a point made by the noble Lord, Lord Richard. One cannot put too much weight on the argument of international comparisons in this area. We looked at the matter in the committee which I chaired on reviewing the parole system. The fact is that while it is right, as the noble Lord, Lord Richard, said, that by quoting the basic facts one can show that we have on any one day more people in prison than other countries in Europe, it is to some extent a meaningless exercise unless it is clear that we are comparing like with like.
It is also somewhat meaningless unless the comparison takes account—and it does not take account—of the variation in the volume and the
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seriousness of crimes in different countries. The fact is —I hope that the noble Lord, Lord Allen of Abbeydale, will confirm this—that high as our figures may look compared to those of some other European countries, not only are they lower than those in Canada and dramatically lower than those in America but they are far lower than even the Home Office in this country predicted they would be in a paper which I saw on becoming a junior Minister in that department in 1969. However, I accept that as a society we should aim to send fewer people to prison if at all possible.
My third general point is that I profoundly disagree with the approach which starts with the question: what on earth can we do about further legislation to stop judges from sending people to prison? It is based on a hidden implication that the judges are tough, sadistic-minded people who are happy about sending people to prison. I believe that that is a total misconception and falsification of the truth.
The fact is that the vast majority of sentencing, even in the higher courts, is being done by ordinary members of society who have exactly the same family and individual problems as do other members of society. Much of that sentencing is being done by people who sit like my noble friend the Leader of the House sat, as I now sit and as the noble Lord, Lord Richard, and various other Members of this House probably sit as part-time members of the judiciary as recorders.
The truth is that judges are not tough and sadistic. I believe that they are people who strive hard to avoid sending people to prison. Nevertheless, they realise that they have a duty not only to protect society but to reflect society; and it is important that judges should remember that they are there as a reflection of society's attitude to the criminal. The public believes that certain types of cases can be dealt with only by imprisonment, and judges undoubtedly would be failing in their duty to the public if they did not recognise that fact when passing sentences.
I do not believe that success in promoting non-custodial methods of penalty depends upon criticising our judges or bringing in statutory straitjackets for penalties. I believe that it depends on success in providing an adequacy of non-custodial penalties which are shown to be, and are seen by the public to be, both tough and demanding.
Although I do not want to foreshadow in its entirety the debate that we shall presumably have later on the Criminal Justice Bill, perhaps I may say—to take up a point made by the noble Lord, Lord Allen of Abbeydale—that I am concerned about the attitude of those who from time to time say that they are worried about the punitive element in non-custodial sentences. Surely any sentence must by its very nature have a punitive element, and it is only if non-custodial methods of dealing with criminals are seen by the public to be tough and demanding and to have a punitive element that they will be acceptable and widely used in the way that we wish.

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The reality today is surely that it is often very difficult to know what to do. A person may appear before you who pleads guilty to an offence of burglary. He is out of work so it is not very much good fining him. The probation order states that he is not suitable for community service. In many cases it is very difficult to know what to do with people when one is dealing with them in court. Therefore, I believe that anything that widens the width of non-custodial sentences available to the courts is to be welcomed and will, by its very nature, lead to more non-custodial sentences being given. I believe that the proposals about the day-fine unit, the unit of fine, the proposals about combining fines with probation orders and combining probation with community service orders would all help in that way.
I should like to say that I totally disagree with the noble Lord, Lord Richard, and to a certain extent with tile noble Lord, Lord Hutchinson regarding the introduction of a sentencing council. I recognise that wide discrepancies can be pointed out, as the noble Lord, Lord Richard, said, between sentences in different parts of the country for similar types of offence. However, I do not see what a sentencing council will do.
A sentencing council only makes sense if it is combined with rigid statutory guidelines, which may themselves cause injustice. When we are told, as Mr. Hattersley told us, that the sentencing council will iron out discrepancies but will not play a role in the individual case, I do not understand how that is to be achieved. My own belief is that the way in which to achieve greater unanimity is by a wider use of the training given through the Judicial Studies Board and a greater use of guideline cases given by the Court of Appeal. I believe that their use, rather than rigid statutory guidelines, is the way in which to achieve the desired end.
If the noble Lord, Lord Richard, cares to look at the projection figures produced in America in anticipation of a sentencing council combined with statutory guidelines, he will see that they project a doubling or even trebling of the prison population over the next 10 years.
Perhaps I may make one final point regarding the length of sentences. My noble friend the Leader of the House was kind enough to say in the course of his speech that it was the Government's intention to implement many of the recommendations made in the report of the committee I chaired on the future of parole. He said—and this was the purpose of our report—that the intention of the proposals was that the sentence served should bear closer reality to the sentence passed. That is so, and I believe it is vitally important that the proposals are implemented for that reason.
I remind my noble friend, and through him the present Home Secretary, that we made absolutely clear in the report that the implementation of that proposal must and should be accompanied by a determined effort both by the Government and the judiciary to secure a reduction in the length of prison sentences passed. Account should be taken of the fact
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that there is now a greater reality between the sentence passed and the sentence served, and that those proposals substantially enhance the effect of the sentence and the quotient of punishment. For those reasons I hope that he will look at the length of sentences as well as the number of people sent to prison.
4.43 p.m.
The Earl of Longford: My Lords, I feel privileged to speak between the noble Lord, Lord Carlisle, and the noble Lord, Lord Windlesham, who have played such distinguished parts in the recent penal history of this country. The noble Lord, Lord Carlisle, for our purposes, may be regarded as a judge; he is part of the judiciary and sentences people. I am glad that some of the people who sentence offenders are speaking this evening. In the past in these debates they have been rather shy about taking part. More recently the noble and learned Lord, Lord Ackner, took part and will take part again today. Also the noble Lord, Lord Carlisle, has come forward to defend the judiciary.
I hope that the noble Lord, Lord Carlisle, will not say that everyone who criticises judges accuses them of being sadistic. That was not a judicial remark. It is perfectly possible to criticise judges; they are open to criticism. They are not like the Royal Family or lords of cricket; we are able to criticise them and I do criticise them. Too many people are sent to prison in this country, and judges send them there. Therefore the noble Lord who represents the judiciary must face the music. We shall come to that as the debate proceeds.
I join in the welcome to the noble Lord, Lord Elton, and congratulate him on introducing the debate. He won the respect of everyone when he was a Minister at the Home Office. If it be possible he won my respect even more when he took over at very short notice, almost overnight, a very large Bill—a disastrous Bill for me—to abolish the GLC. He piloted it through to what some may call a triumphant conclusion. He did a remarkable job which I believe ranks very high in parliamentary annals.
I extend a warm welcome to the new Leader of the House on behalf of that select if rather variegated trade union, the former leaders. I was admittedly rather frightened when I heard that he was coming here. I heard that he was a formidable gentleman who, given a chance, might hang some of us. However, I asked one or two of his colleagues and they said, "Not at all. He is a very nice man". Of course, all Leaders of the House are nice, but some are nicer than others. I feel sure that in time the noble Lord will prove to be one of the very nicest.
I now turn to the debate. There are two serious omissions in the Bill. People keep calling me from the Chamber—on rather trivial matters, no grave questions of state—and I missed some of the best points made by other speakers. However, I heard the speech of the noble Lord the Leader of the House in full.
The absence of a sentencing council, which was stressed by my noble friend Lord Richard, is a serious

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defect in the eyes of penal reformers. We look at the matter from a different angle from that of a judge such as the noble Lord, Lord Carlisle, who does not want people to interfere with his freedom. We understand that; we are human. But on behalf of the penal reformers—people who believe that there are far too many people in prison—I say that the only way to reduce that number is to control the judges, to exercise pressure on them, and not to allow them to be as free as they have been in the past.
That is my view and it is a view which may be shared. In this House it is not compulsory to share any view, but my view may be widely shared. Without a sentencing council I do not see how that reduction in numbers will be effected. Therefore I am sorry that it was omitted. I suppose that in the course of these debates it would be in order for someone to move that a sentencing council should be included in the Bill, either in this House or in the other place. Therefore, we may yet see a sentencing council.
There is another omission. Although I may be told that it would not be appropriate in this Bill, I believe that there should be some reference to the maintenance of minimum standards. Whatever government happens to be in power in this country, we are all aware that the standards of life in many and possibly most of our prisons are deplorably low. I hoped that there would be some insistence on the maintenance of minimum standards in prison. Again, that could be introduced later and I shall leave that subject for the moment.
Something which I very much welcome and which has been welcomed by other speakers, is the insistence in the Bill that when custodial sentences are passed —with certain exceptions—the court should give reasons. That looks innocuous enough. I believe that it had a tremendous effect in the case of young offenders and I hope that it will have the same effect in the case of the older ones. Therefore let me say straight away that that is entirely to be welcomed.
Whether any of the changes will produce a new attitude on the part of judges, I do not know. They may say that they are already perfect and will not alter their ways. In that case they will behave in the future exactly as they have in the past, and then, as now, we shall have far too many people in prison. It may be that the Bill will have an effect on them. It did as regards their attitudes towards young offenders, and I hope that it will as regards adults.
I do not want to suggest that all the harshness lies in the judiciary, and that politicians are all sweetness and light. It is true that when sentences are passed some are excessive. The other day I gave evidence as to character for a man convicted of a serious offence. He was in his fifties and suffering from severe asthma. I cannot claim that my advocacy did him very much good. I do not know what his sentence would have been had I not been there, but he was sentenced to 25 years plus five years unless he could pay some colossal fine far beyond his means. The judge passed that sentence while I was there. I also know a prisoner who has been in prison for 25 years. The prisoner has been
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twice recommended for parole by the local review committee yet he has been told by the authorities that not only is parole refused at the moment but that it will not be considered for another five years. To my mind that is utterly unChristian and inhuman. It was not a decision made by a judge so I do not blame the judiciary for everything.
I shall now turn to more cheerful subjects by looking at some of the principles of this Bill. I welcome one principle which earlier was regarded with a good deal of suspicion by most of my friends in the world of penal reform. I have welcomed the principle before now. I refer to the principle of punishment in the community which is a thoroughly constructive idea. It was brought forward during the term of office of the present Government. It was first outlined before the noble Lord, the Leader of the House, took office, but let us give him credit because he is responsible for the Bill. I hope that eventually this very important principle will be placed on the statute book. I give him undiluted and unequivocal credit.
I express a word of caution which will have to be given again. This measure can only be carried out effectively with the co-operation of the probation service. I believe that most of us will agree that creating another kind of service to do the job would be out of court. I am sure that the Home Office Minister in this House and others will agree that it is essential to carry the probation service along with this tremendously constructive idea. I certainly wish it well and I do not wish there to be any misunderstanding about that.
The other principle is that of just deserts. That was spelt wrongly in the original White Paper and it may have been corrected now. It was called retribution, but it now has a new and more fashionable name. I have never said in the past that there was no room for retribution in a just sentence. I wrote a small book about 30 years ago. Anything I write is small and I can assure noble Lords that if they wish to read it they will not have to spend very long doing so. The book is concerned with punishment and in it I found a place for retribution. It was not a popular measure at the time because retribution had been discredited, and not only in penal reform circles of 30 years ago. Experts like the noble Lord, Lord Windlesham, know that very well. Retribution was derided by everybody. I believe that people put it down to some kind of archaic, religious point of view. I am perfectly ready for retribution to be included in a just sentence, although one can call it just deserts if one so wishes. There is something to be said for not calling it retribution.
There are other elements including the reform of the criminal and deterrents for warning other people against doing such things in future. In addition there is prevention, which is a much more elusive concept. That involves keeping people in prison so that they cannot do any harm outside. The subject of reparations—compensation to the state or to the individual—has also come forward a little, but not fast enough.

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I am basing my remarks more on the thinking which is revealed in the White Paper and the Bill. These measures will play an even larger part in future legislation. Talking about just deserts sounds fine but we should pause for one moment to ask what it means. Are we to judge by the gravity of the offence or by the wickedness or the immorality of the offender? Those are very different matters.
Other ideas will be introduced. For example, in a recent and much-publicised case the judge paid a good deal of attention to the fact that two of the convicted prisoners had performed valuable philanthropic service. Where does that factor come into the concept of just deserts? I do not say that it is an impossible concept, but one has to look at it very carefully. In the case to which I have referred, the judge quite rightly paid a good deal of attention to the health of the prisoners. There are other concepts. There is room for just deserts, but if that factor ever became dominant I fear that it would gratify the public desire for revenge.
The noble Lord, the Leader of the House, is only too well aware that very strong feelings are aroused very easily. Perhaps I may return to that matter on another occasion. Anything that exploits the feelings of the public or gives vent to them, can be dangerous. It is not the politicians who appeal to those feelings to begin with, but the tabloid press which stirs up wicked feelings among large sections of the public. All too often the politicians go along with those views. One must be very careful with this concept. I am not against including just deserts but it should not be given a predominant place.
If we approach this matter from a Christian and not a sectarian point of view, we are bound to realise that it involves interests of the community and of the individual. I am only frightened that in this Bill the interests of the individual, the human being and the prisoner, will be lost sight of. However, I congratulate the noble Lord on bringing forward a matter which is of the utmost interest.
4.56 p.m.
Lord Windlesham: My Lords, I wish to add my voice to those of noble Lords who have already congratulated my noble friend Lord Waddington on his maiden speech, and to welcome him as Leader of our House. He will find that there are periodic debates on penal policy and that many of the noble Lords speaking today regularly do so. I am delighted that he has made this Motion the occasion for his maiden speech, and I hope he will continue the practice of taking part in similar debates in the future.
As we have been reminded by the noble Lord, Lord Allen of Abbeydale, who spoke from his long experience at the Home Office, for more than 20 years governments have been trying to encourage the wider use of non-custodial penalties. There have been some successes. I instance community service orders. Although they were introduced by a Conservative government in 1973 the concept owed much to a Labour life Peer, Baroness Wootton, whom some of us in this House still remember with affection.
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Such orders have been widely used. The last year for which I have any statistics is 1988 and are those published in the recent White Paper. In that year 35,000 community service orders were made, which compares with 69,000 offenders sentenced to immediate custody. Despite that trend, in the decade from 1977 to 1987, the proportion of offenders who were sentenced to immediate custody continued to rise. The inescapable conclusion is that probation and community service were promoted at the expense of other non-custodial penalties, most conspicuously fines.
Another measure which can be regarded as successful is the general restriction on the use of imprisonment for young offenders below the age of 21, which has already been referred to in the debate. This was first incorporated in Section 1(4) of the Criminal Justice Act 1982 and re-enacted and strengthened in the Criminal Justice Act 1988. It seems likely that the statutory restriction will have been one of a number of factors contributing to the welcome decline in the number of young people in custody. But these measures, valuable and effective as they have been in practice, have been piecemeal. They have not really dented the deeply ingrained belief that has taken root in the public mind, especially in the past few decades and has been shared and reflected by sentencers in magistrates' courts and Crown Courts, that, for all save the most petty criminal offences, punishment, real punishment, means imprisonment, and that anything else is a soft option.
The first determined and considered attempt, in recent years at any rate, to dislodge that belief came in 1987 in the immediate aftermath of the general election of that year. It is fair to say that it came about to a considerable extent because the then Home Secretary, Mr. Hurd—he had already been Home Secretary for two years by the time of the general election—was reappointed as Home Secretary in the new Administration. At his instigation a comprehensive and urgent review was mounted of policy relating to criminal justice and what its objectives should be. The exercise was carried out as a matter of priority as a result of the Home Secretary having thought carefully about what he should give his attention to first. The underlying assumption was that it should be an acknowledged objective of the system of criminal justice to reduce crime as well as to punish offenders. That sentiment can be found in both the Green Paper, published in 1988, and in the White Paper which followed it, and was published in February of this year.
The Green Paper, titled Punishment, Custody and the Community, was a remarkable document. Its first paragraph included the following statement. I remind the House that this is a statement of government policy, albeit in a Green Paper, not, as it well might be, an extract taken from the publication of a penal reform group.
"But for other, less serious, offenders, a spell in custody is not the most effective punishment. Imprisonment restricts offenders' liberty, but it also reduces their responsibility; they are not required to face up to what they have done and to the effect on their victim or to make any recompense to the victim

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or the public. If offenders are not imprisoned, they are more likely to be able to pay compensation to their victims and to make some reparation to the community through useful unpaid work. Their liberty can be restricted without putting them behind prison walls. Moreover, if they are removed in prison from the responsibilities, problems and temptations of everyday life, they are less likely to acquire the self-discipline and self-reliance which will prevent reoffending in future. Punishment in the community would encourage offenders to grow out of crime and to develop into responsible and law abiding citizens".
The expression "punishment in the community" was thus born, or reborn—it is an old concept that is encapsulated in this phrase. Backed by the philosophy which I have just quoted, it obtained common circulation and got into the currency of debate.
In that public debate, punishment in the community was generally welcomed by all political parties and informed groups or individuals who take an interest in penal policy. It was skilfully presented and handled by my right honourable friend Mr. Hurd, assisted by Mr. John Patten, who remained as Minister of State when Mr. Waddington (as he then was) succeeded Mr. Hurd as Home Secretary. They managed to broaden its appeal and to enrol the support of the higher judiciary, in the shape of the Lord Chief Justice, who welcomed punishment in the community, and of the Judicial Studies Board which plays an increasingly important part in the workings of criminal justice.
The practical interpretation of these noble sentiments was a formidable task. Obstacles included one that has been referred to by at least two speakers in the debate this afternoon. I refer to the unhappiness of the probation service about the penal overtones of strengthening community penalties, and yet that strengthening community penalties was regarded as crucial if sentencers, especially perhaps sentencers in the magistrates' courts where community penalties are used more frequently, were to have confidence that they would be rigorously and thoroughly supervised.
There were also difficulties in drafting legislation to embody statutory restrictions on imposing custodial sentences on adult offenders, following on from the restriction on the imprisonment of young offenders in the 1982 legislation. Such legislation would have implications for judicial discretion. Anyone who has grappled, as I have, with the first two clauses of the current Criminal Justice Bill will appreciate what a task that must have been for the draftsman and for those who briefed the draftsman. I would be surprised if these clauses survive their passage through both Houses of Parliament without being subject to some amendment.
Over the whole policy initiative hung a large black cloud. I refer to the scandal of prison overcrowding. The colossal cost of the prison building programme to alleviate over-crowding and inadequate conditions has been another factor. In 1987 the prison population broke through the psychological threshold of 50,000 prisoners in England and Wales, including those held in police cells. Since then, there has been a welcome fall. In September 1990 the prison population in England and Wales was down to 45,500, a very
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substantial fall of almost 5,000. It has enabled some reduction to be made in the prison building programme. I imagine the noble Lord, Lord Waddington, will know more than I, but the actual projected expenditure may well be similar, because the savings made from dropping three of the projected new prisons from the building programme will be more than made up for by the extra expenditure necessary at Strangeways and in repairing damage done at other prisons in the serious disturbances in April of this year.
In the White Paper, Crime, Justice and Protecting the Public, published in February of this year, the Government announced, after a long period of consultation, their proposals for legislation. The main proposals were for a,
"coherent legislative framework for sentencing, with the severity of the punishment matching the seriousness of the crime and a sharper distinction in the way the courts deal with violent and non-violent crimes".
That was the first of what were listed as the main proposals.
The second item forecast,
"new powers for the Crown Court to impose longer sentences for violent and sexual offences, if this is necessary to protect the public from serious harm".
This raises the other track of the so-called twin-track policy, the balance, in the words of this Motion, between custodial and non-custodial penalties. It is easy to see the publicity value of presenting policies in that way. In privileged assemblies of this sort, I believe that it would be a mistake to disregard the importance of public presentation.
Nevertheless, there are some questions to be asked as to where this second track is leading. Are there dangers in lengthening still further the already historically high sentences for certain serious offences? What are the implications for the burgeoning long-term prison population in terms of control within the prisons, in terms of cost, and in terms of the prospects for rehabilitation? Further, what are the justifications for what has been described as "topping up" sentences; that is, encouraging and empowering crown courts—as the White Paper does and as the wording of the Criminal Justice Bill permits—to pass sentences longer than would otherwise be justified by the circumstances of the offence on certain categories of violent or sexual offenders, if it is thought necessary to protect the public from serious harm? Anyone who has grappled with assessing the risk of future offending, as the noble Lord, Lord Hunt, myself and some others in the House have done, will know what an unpredictable and uncertain venture that can be.
In his response the noble Earl may say that these provisions are all part of a package, and that it is not possible to pick and choose without upsetting that balance which is central to the Motion this afternoon. I do not reject such arguments. However, I suggest that they call for careful scrutiny. In criminal justice legislation especially, any change which can have such profound effects must be justified on its merits. It will

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be our responsibility when the Criminal Justice Bill comes to this House to ensure that the scrutiny we give to the legislation concentrates on such justifications.
5.12 p.m.
Lord Donaldson of Kingsbridge: My Lords, I was so certain that today's debate would feature speeches chiefly from my own noble friends that I convinced myself that the main topics of the fairly narrow subject on the original Motion would be fully covered. I felt sure that enough of my friends would speak thus enabling me to feel certain that I would agree with what was said. Therefore, I propose to extend the debate somewhat in the following manner.
The debate is about a balance. Every balance must have a dividing line. It seems to me that the dividing line of whether you send an individual to prison must depend to some extent on the prison. I should like to concentrate upon some of the more obvious and easy remedies to improve the present very bad state of our prisons. That does not seem to me to be irrelevant to the ma in topic.
Returning to the speakers' club to which we all belong, I also welcome the noble Lord the Leader of the House and congratulate him on his maiden speech. His speech was of the right length and as clear of controversy as was the speech made the other day by the noble Baroness, Lady Castle. I feel sure that he will be able to enter into our debates with a great deal of experience and understanding. After many years of receiving no response, I am very pleased to have received a response both from him and his predecessor which agrees that there are far too many people in prison, and that the prison system can damage people. There may be other matters involved upon which we shall rot agree. For example, we may differ on levels of sentence, and so on. However, we have agreed on one aspect of the matter. It is new in these debates that such an agreement should be common ground throughout.
As I said, I shall concentrate on the other side of the line where those deciding whether to send someone to prison must think about what they are doing. Thirty years ago prison reformers thought only of rehabilitation. About 20 years ago it became evident that it was rare to find any rehabilitation in prisons. The best you could hope for was humane containment, which became the catchphrase of the day. That may still apply in between 70 per cent. to 80 per cent. of cases. But if you find that even 20 per cent. of your population would respond to constructive treatment, you would greatly improve present conditions by having at least that 20 per cent. of the prison population in prisons which ran securely and well, which did not riot and which were not only more humane but also cheaper.
I have never been able to understand why, in view of those facts, the Home Office does not exploit its success and copy the example of one or two of these prisons which run effectively and well. I do not exclude other prisons, but I speak especially of Grendon and Blantyre. Neither of those prisons is suitable for everyone; nor are they overcrowded. Each has a
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carefully selected group of prisoners, coming in on a voluntary basis, and each could be reproduced all over the country without ever being short of suitable candidates from the huge population of 45,000.
Grendon, the psychiatric prison which runs as a therapeutic community, deals with what is called "personality" disorders; that is, not madmen or psychopaths, but men with lesser difficulties. The basis is always that the incoming prisoner feels that something is wrong with him and wants to try and put it right. On the other hand, Blantyre deals with long-sentence men who have served not less than three years of their sentence and who are anxious to prepare themselves for their release. They can choose what they want to do and are helped to find the type of instruction needed.
Grendon has run for over 30 years, while Blantyre has run for nearly four-and-a-half years. Both of them have operated virtually without trouble in the form of escapes or serious injury to inmates or staff. There are very few prisons about which that can be said. I am entirely certain that anyone who casually visits either prison and talks to either inmates or staff will gain the impression that the men want help and that they are receiving it. I once made the noble Lord, Lord Elton, tour around Grendon, so I think he will bear out that assumption. I do not claim that all the prisoners will leave and become law-abiding citizens; but a good few of them will do so. Further, they all combine to keep stability in their prisons.
Therefore, why do we not build on that evident success? The governor of Grendon thinks that he could probably find about 10 in every 100 prisoners acceptable. A new Grendon in the North is surely essential, if the example in the South is as good as I believe it to be. In future we can open one in the West, and one in the East; and perhaps a similar prison for women, although the present facilities do not exist in that form, and it is rather a different problem.
I turn now to the Blantyre regime. There are 14,000 men serving sentences of over three years at present. Therefore one can assume that at least 300 or 400 of them would volunteer for the regime and be considered suitable, so that immediate provision could be made for three or four small prisons across the country using the Blantyre regime.
Prisons that do not do have riots are much cheaper to run than prisons that do. That must never be forgotten when considering expense. There will always be a number of prisoners who are wholly unto-operative and resentful and who need careful management. That becomes more and more difficult in overcrowded conditions. There are also a number of men who are unhappy with their condition, and they will respond to a convincing offer of help. Grendon and Blantyre prove that. The prison service should be looking all the time for ways of responding.
Drug abuse seems to offer an important opening. Professor Gunn of the Institute of Psychiatry suggests that "substance abuse"—which is, I imagine, medical jargon for drug or alcohol addiction—is found in 23 per cent. of men and 30 per cent. of women prisoners.

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As we are aware, drugs have taken the place of tobacco in prison as the "barons'" stock in trade. Many prisoners, especially young ones, would volunteer for a specialist drug cure in a specialist prison or wing where real efforts could be made to help them break away from their addiction. Such places exist for free people and they should also exist within prisons. I do not believe there is provision for anything like the numbers needed. I do not know whether the Minister can tell me what provision there is.
There is a need to respond to any motivation shown, whether to be helped psychologically, to learn a trade, or to come off drugs or drink. Such men or women should be put where they feel they are obtaining some help, instead of being mixed up with everyone else who is criminally minded. They can be organised in separate institutions or wings which would be easily run and relieve overcrowding elsewhere.
I have one last point. The most helpful prisons, in addition to those that I have mentioned, are, not unexpectedly, the open prisons. There are fewer than 4,000 open places, and they are underused by about 13 per cent. Will the Minister tell me what is the provision in the building plans for new open prisons? If he cannot do so tonight, a letter will suffice because there is no hurry. I think that at least 10 per cent. of the prison population would be suitable for open prison treatment. That would mean that a further 1,400 places could be provided profitably at once. They are much cheaper than secure prisons and offer some relief of overcrowding. I notice that two years' ago the Chief Inspector of Prisons said in his annual report:
"Many inmates who are wholly suitable for open prisons are kept in closed prisons".
Has any notice been taken of what he said?
I do not want to sound too optimistic: the problems of the rising crime rate are intractable, and punishment cures little. If there were 10 Grendons and 30 Blantyre-type prisons within our provision for 45,000 prisoners, the line of being careful not to send someone to prison would move some way to a realisation that some people would obtain better treatment in such places than they would outside.
I do not know whether anyone other than I has read the Butler Trust pamphlet entitled A Right Liberty prepared as the result of a travel scholarship by D.F. McAllister, a prison governor, and D.J. Little, a principal prison officer. It has been sent to Lord Justice Woolf, and I am sure that he will make full use of it and will observe how some of the problems similar to those from which we suffer have been solved by Sweden, West Germany, the Netherlands and Hungary. It makes what we are trying to do look unsuccessful. I fear that all we can expect tonight is that the Government will legitimately defend themselves by saying that they cannot anticipate the Woolf recommendations. However, it has been an interesting debate, and will continue to be interesting. It will not be wasted if it reaches Lord Justice Woolf.
5.25 p.m.
Lord Campbell of Alloway: My Lords, it is always a considerable privilege to follow the noble Lord, Lord Donaldson of Kingsbridge, and, today, to listen to his authoritative extension of the area of the debate which sets a perspective in which his proposals clearly warrant some further consideration. Surely, to build upon success is a sound policy.
Although two former Leaders of the House have already spoken, nonetheless, from the "legal eagles' nest" of three of us who have sat as recorders, perhaps I may give a word of congratulation to my noble friend the Leader of the House on a most impressive maiden speech: a word of welcome, and the best of good wishes for his tenure of office. Having heard him today, any hint of apprehension is allayed, as we know that he will follow in the footsteps of his illustrious predecessor.
It was an impressive speech made by a distinguished Queen's counsel who practised in the criminal courts, who, as holder of an important office of state, used his legal and political expertise to reset the balance between custodial and non-custodial sentences in the Criminal Justice Bill. My noble friend has also, as instigator of the Bill, resisted the temptation to advocate his own cause so as to pre-empt discussion in another place or in your Lordships' House upon a potentially controversial subject. Although it is in a sense inevitable that today's debate raises the edge of the curtain of future discussions on the Bill, it should not serve as a dress rehearsal for its Second Reading, as the Bill is still under consideration in another place.
It is far easier to propose striking a proper balance than to strike that balance in the most radical reform of sentencing policy since 1945, heralded in the Government White Paper earlier this year. If the noble Earl, Lord Longford, were here, I would look him in the eye, because a sentencing system must afford adequate protection to the public, and be seen by the public to afford such protection and to be effective. Otherwise, confidence in the rule of law could evaporate and so engender resort to self help. That is almost axiomatic to those of us to have practised in the courts and who have sat as part-time recorders. It is not axiomatic to everyone. The point has been so well taken by my noble friend the Leader of the House, who sat as a recorder, and my noble friend Lord Carlisle, who also sits as a recorder, that there is nothing more that needs to be said; but the point has to be made, taken and firmly held in the interests of the maintenance of the rule of law.
Although we are all concerned with overcrowding in prisons; the worrying aspects of Judge Tumim's reports; staffing in the prison service; the statistics of rising crime; the revelations of cooked-up confessions; and questions of administration and public expenditure; the essence of today's debate raises moral and social questions. Those aspects are not academic, as my noble friend Lord Elton said. They affect the matters of concern to which I referred. Those questions lie only within the remit of Parliament to settle in principle, it being within the remit of the

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judiciary to implement the will of Parliament as guardians of justice in the exercise of residual discretion. In this, the Executive, the Home Office and the Lord Chancellor's Department remain subservient to the will of Parliament. It is not for the Executive to issue guidelines on sentencing. It is for the Lord Chief Justice and the Court of Appeal to deal with such guidelines in the exercise of the residual judicial discretion in the implementation of the principles of the Bill when enacted.
This was confirmed by my noble friend the Leader of the House. Hence the need for and the value of constructive discussion upon these matters in principle, by which the balance is to be reset. Noble Lords on all sides of the House will be grateful to my noble friend Lord Elton for having introduced this timely and important debate. I know that my noble friend will forgive me if I say that I could not follow the statistics. I shall read them in Hansard tomorrow. There were rather too many given too fast to assimilate.
I take the point that the noble Lord, Lord Hutchinson, made. With the greatest respect to him, I do not believe that it matters how the Motion is worded because it served a valid and useful purpose. Let us not bother about the wording but let us take comfort from what is said in the debate. For my part, I cannot see what is wrong with the wording. If the balance has to be shifted against custodial sentences, it is right because it takes account of the stigma and erosive effect of imprisonment, the futility and hardship of the disruption of family life and employment unless no other sentencing option is available.
At all events, this proposed new framework for sentencing offenders will be of interest to noble Lords—the noble Lord, Lord Hutchinson, in particular—who for a long time have expressed the view in your Lordships' House and no doubt elsewhere that the balance has been far too heavily weighted in favour of custodial sentences.
The linchpin that holds this balance—I believe that it is called the twin-track approach—is that full and proper consideration should be given to sentencing options available other than imprisonment before determination as to whether custody is appropriate. Custodial sentences are only to be awarded when justified by the seriousness of the offence or when only such a sentence would be adequate to protect the public from serious harm from the offender. In the latter context, the court will be able to take the previous convictions into account. In addition, the circumstances in which the previous offences were committed may be taken into account to determine the seriousness of the offence. Therefore previous convictions may be taken into account to determine whether custody is appropriate, but not for the purpose of determining the length of the term of imprisonment imposed. If that analysis is right, I wholly support it.
The obligation is to give reasons for the determination as to whether custody is appropriate and custodial sentences are only to be awarded when
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justified by the seriousness of the offence or when such a sentence would be adequate to protect the public from serious harm from the offender. The use of the term "offender" appears to inhibit deterrent sentences or responses to previous convictions. As was pointed out, the deterrent sentence has not worked well in the past. The limiting word "offender" appears to make the deterrent sentence no longer available.
The sentencing options available have already been considered by other noble Lords: the combination order with the community service order and the probation order; the curfew order, with or without electronic monitoring; the new way in which the level of fines is to be increased in courts of summary jurisdiction; the new way in which means are generally to be taken into account in assessing fines; in other words, also the establishment of the community service order as a community sentence in its own right as distinct from an alternative to custody. These are the main sentencing options other than imprisonment which are available and they have to be taken into account before a custodial sentence is imposed.
One cannot but congratulate my noble friend the Leader of the House on his bold and constructive initiative and hope that the Bill will in due course receive the favourable reception that it deserves. It is assuredly my hope that no amendment shall be carried to the Bill when it comes before the House to establish the sentencing council as advocated by the noble Lord, Lord Richard, who spoke for the Labour Party, and the noble Earl, Lord Longford. I hope no amendment will be carried to alter the culture from which judges are drawn, or to establish a career judiciary as advocated by the noble Lord, Lord Hutchinson.
I believe the noble Lord spoke: for himself. Certainly it is not understood how the sentencing council could conceivably achieve the object that the noble Earl, Lord Longford, imagines is possible. Perhaps the noble Earl has forgotten that the majority of custodial sentences are imposed by lay magistrates or by part-time recorders. I hope the noble Earl will allow me to suggest respectfully that his attitude and approach to sentencing, and to the matter of whether a custodial sentence should be passed, might not receive the understanding and support of the public. If that were the case, the rule of law would tend to evaporate.
The Earl of Longford: My Lords, does not the noble Lord realise that in the eyes of a great many people judges pass too many custodial sentences which are too long at present? If judges carry on in their same old sweet way, how does the noble Lord propose to deal with that matter?
Lord Campbell of Alloway: My Lords, this is not merely a question of judges imposing sentences. The majority of sentences are imposed by perfectly ordinary lay people—they are not sadistic, though that term has been bandied about—or by part-time judges. The sentences are subject to appeal to the Court of Appeal. The provisions of the Bill will ensure that the balance is reset. If that is not sufficient for the noble Earl, so be it. The balance must be reset in a

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form and in a way which is acceptable to the public and commands the support of the public. I say with respect to the noble Earl that I believe the Bill achieves that objective. There is nothing more that I can usefully add to the debate. I apologise to your Lordships for having lost my notes and I thank you for your indulgence.
5.42 p.m.
Lord Renton: My Lords, my noble friend Lord Campbell of Alloway was quite right in stressing the part played by lay magistrates in the sentencing of offenders. Indeed, well over 90 per cent. of all criminal cases are tried by lay magistrates. Fewer than 10 per cent. of those cases are sent by the lay magistrates for trial on indictment or for sentence. As regards the point made by the noble Earl, Lord Longford, on judges sentencing people to prison, we have to bear in mind the fact that it is only the really serious cases that come before the judges at all. Therefore it is not surprising that a high proportion of the sentences that the judges award are necessarily custodial.
I too wish to join in the tributes that have been paid to my noble friend Lord Elton for initiating this debate and for the way he did so based on his valuable experience as a former Minister of State at the Home Office. No fewer than seven of the speakers in this debate have held that position. That fact made me rather reluctant to accept my noble friend's invitation to speak in the debate as I held that position 30 years ago. Therefore it may be thought that I am getting a little rusty.
To the extent that the history of the matter can help us to understand the present problems of it, I hope I may draw upon my experience as a recorder. We are all grateful to my noble friend Lord Campbell of Alloway for having at last found a collective noun for recorders. He referred to us as "a nest of recorders". That is a very felicitous thought. I carried out part-time judicial work on about 30 days a year for eight years up until 1970. I believe the only other speaker in this debate who had judicial experience before 1970 is the noble and learned Lord, Lord Ackner. I was only once reversed on appeal and that was by a Divisional Court presided over by the noble and learned Lord. He was of course absolutely right.
In those days we were most severely restricted in the sentences that we could award. Prison, borstal, detention or fines were the only sentences available. We could of course put people on probation to keep them out of prison—I did that frequently—but the probation service was pretty fully stretched. We could bind people over but that occurred nearly always for first offences that were not very serious.
It was a great relief when eventually the Conservative Government rectified the whole situation in 1973 by introducing the Powers of Criminal Courts Act. That Act gave the power to impose for the first time suspended sentences of imprisonment and gave the power to impose community service orders. Credit for that Act and for those important reforms goes largely to my noble friend Lord Carlisle of
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Bucklow, who was Minister of State at the time and piloted the Bill, on behalf of the Home Secretary, through its Committee stage in another place.
Lord Allen of Abbeydale: My Lords, is the noble Lord quite right about suspended sentences? My impression is that they were introduced by the Criminal Justice Act 1967.
Lord Renton: My Lords, I am grateful for the correction but I believe that that part of that Act did not come into operation until a year or two later when my time as a recorder was coming to an end. That, I think, is why I did not have the benefit, which others enjoyed later, of being able to award suspended sentences.
The 1973 Act came into operation on 1st July 1974. After all the administrative preparation had been carried out, a Labour Government brought the Act into force. The 15 years' experience since then has been interesting and should now be built upon. In spite of a smaller proportion in the total number of people being sent to prison, there are many more people in prison now than was the case 16 years ago. Many speakers have pointed that out. When I was in the Home Office the late Lord Butler of Saffron Walden introduced the biggest prison building programme of this century. I include in that programme the building of detention centres. They were an important part of the programme.
My noble friend Lord Whitelaw had to introduce another big prison building programme 10 years ago. Incidentally, remarks that have been made on behalf of the party opposite have given some of us an uneasy feeling that the Labour Party seems prepared to scrap what would remain of that programme in the unlikely event of its having the chance to do so. It would help us very much if a noble Lord who is to speak from the Benches opposite would confirm that the Labour Party believes in the prison building programme and would continue with it.
My noble friend Lord Whitelaw, with valuable help from my noble friend Lord Elton, also introduced the Police and Criminal Evidence Act 1984. That Act strengthened and clarified police powers when investigating crime and interviewing offenders. I am sure that the noble Lord, Lord Allen of Abbeydale, would agree with me that the guidance which flowed from it greatly improved the way in which mentally handicapped offenders were dealt with by the police and by the courts. Thanks to the co-operation of the police, with MENCAP to a great extent, the problem that was caused by mentally handicapped people being unjustly treated has almost disappeared. Now we have the Criminal Justice Bill which will give greater flexibility to the courts in imposing non-custodial sentences.
I have always felt that the powers of the courts and discussion of criminal justice should be above party. However, as members of parties opposite so often claim to be better penal reformers than other people it is only fair to point out that all the most enlightened

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penal legislation since 1973 was introduced by Conservative governments. The proposals in the Bill are a necessary next step.
It is most important that courts should give reasons for all custodial sentences. There are still too many people who think only of punishing offenders with stiff prison sentences, thinking that deterrence is all that is needed to reduce the crime rate. It has been pointed out that that is not so. As my noble friend Lord Carlisle of Bucklow said, it overlooks the fact that prison has disadvantages in its effect.
The only other point that I wish to make is this. I am against the idea of a sentencing council. I agree with those of my noble friends and others who have cast doubt upon it. I agreed with the noble Lord, Lord Richard, when he said that one should not attempt to impose consistency of sentencing upon the courts. It simply cannot be done. Sentences must vary with the circumstances of the offender and the nature of the offence, but one cannot entirely exclude the need for an element of deterrence in some cases. For example, if there is a particularly bad wave of crime of a particular kind in one part of the country, in my opinion the courts sitting in that part of the country are entitled to bear in mind the prevalence of that crime and sometimes, where suitable but not in every case, to add an element of deterrence to the sentence.
I have grave doubts as to whether, if a sentencing council is intended to impose consistency on the courts, that would be doing a good service. I believe that it is better that we should continue to do as we do at present, while no doubt improving on it. In principle we should rely upon the Court of Appeal, the judicial conferences and the various other means of helping, those who have the heavy responsibility, whether as magistrates, judges or recorders, of sentencing the great variety of criminals for the great variety of offences.
5.55 p.m.
Lord Ackner: My Lords, perhaps I may begin with a quotation:
"I am becoming increasingly impatient, as did Lord Justice Taylor last week, with those who needlessly and persistently criticise judges for all their decisions, many of whom have not been in court to listen to them let alone read the transcripts".
Thus spoke Mr. Patten in the other place during the Second Reading of the Criminal Justice Bill. I share his sentiments entirely.
I hope that your Lordships will forgive me if I speak on this subject with a little more spirit than one expects from a sitting Law Lord. My central justification is twofold. First:
"Public confidence in the fair and honorable administration of justice, upon which ultimately depends the rule of law, is the transcending value at stake".
Those were the words of that great judge Mr. Justice Frankfurter given in a judgment in the case of Sherman v. United States in 1958. Secondly, I much regret that there has been a conspicuous reticence in recent years about defending the judiciary from the increasing number of unjustified criticisms.
The last debate that took place on the subject of sentencing, referred to by the noble Lord, Lord
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Richard, occurred as recently as May this year. It was initiated by the noble Earl, Lord Longford. I attended essentially at his invitation, which was transmitted through my noble and learned friend the Lord Chancellor and onwards through the senior Law Lord. At the outset of his speech the noble Earl paid me what he called a tribute. He referred,
"to the courage, or audacity, of the noble and learned Lord for coming forward at a time when the judges are under fire for the first time in a lifetime. In all honesty, we look forward to his defence of the judiciary".—[Official Report, 23/5/90; col. 982].
Why should that defence be necessary? I believe that it is because certain notorious miscarriages of justice have been laid at the door of the judges. In the process the role of the trial judge has been misunderstood out of sheer ignorance of the trial process, or intentionally misrepresented. A judge does not try an accused; the jury does that. The jury decides what evidence to accept, what to reject and whether the accused is guilty or innocent. The judge's function is that of an umpire—to see that the trial is properly conducted. He has no investigative powers. It is the jury which accepts or rejects confession evidence. The police, not the judge, are responsible for the integrity of statements allegedly made to them by an accused. It is the jury, not the judge, which accepts scientific evidence. It is the responsibility of the scientists, not the judges, to ensure that the scientific evidence is honest and reliable.
Typical of the irresponsible attacks which have had to be tolerated unanswered is one made at a recent Labour Party conference by Mr. Hattersley, the shadow Home Secretary. He claimed:
"The judicial tragedies of the last twenty years have largely arisen from judges who are unable to discard their judicial prejudices".
We had more of that ilk with our cornflakes this morning.
This debate is concerned with sentencing. However, as part and parcel of the accelerating attack on the judiciary comes ill-conceived criticism of its sentencing role. I offer three recent examples. In the debate on the Address on 12th November 1990 Mr. Hattersley, having asserted that there never has been a time in modern history when the British people were less confident about their criminal system, suggested—and I paraphrase—that their doubts had, inter alia, been furthered by the preposterous sentences by judges and their absurd opinions.
What a wild and baseless allegation! I know not whether the shadow Home Secretary had in my mind one particular judge. If so, that judge is but one of more than 1,000 judges, circuit judges, recorders and assistant recorders who administer justice in the Crown Court. The Times newspaper, which appears to have joined the campaign, stated in a particularly silly leader last month:
"Judges are notoriously their own creatures, disinclined through long exercise of power to heed outside influence".
That is sheer nonsense, as I hope to demonstrate.
In your Lordships' House moderation is the rule. Those of us who were members of your Lordships'

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Select Committee on murder and life imprisonment were much assisted by the noble Baroness, Lady Ewart-Biggs. She and I were both members of a House of Lords swimming team which, for the benefit of a very reputable charity, a couple of years ago successfully competed against another place. That made me even more confident that she would be on my side in the debate last May. I was therefore more than a little astonished to hear her say from the Opposition Front Bench in that debate:
"The judiciary in Britain regard criminal justice policy as a contradiction in terms. Policy is viewed as inimical to their independence". [Official Report, 23/5/90, col. 1006.
In the very limited time at my disposal I shall briefly seek to demonstrate how misconceived are those sentiments. When I first became a recorder nearly 30 years ago it was believed that prison, properly used, could encourage a high proportion of offenders to start an honest life on their release. I recall the then Lord Chief Justice, Lord Parker, calling together the recorders and emphasising to them that it was more appropriate when sentencing to err on the long side rather than on the short side; otherwise the remedial effect of prison would be lost. He made it clear that any excessively lengthy sentence would be corrected by the Court of Appeal.
No one now regards prison itself as an effective means of reform for the majority of prisoners. The change in attitude towards the value of prison has been one of the factors affecting sentencing in the past couple of decades. Sentencing alters as judges respond to changes in the pattern of crime, in legislation and in public attitudes. The Government recognise that in recent times courts have taken account of public anxiety about violence, rape, drug trafficking, deaths caused by reckless driving and incest. As a result of guidelines promulgated by the Court of Appeal, sentences for such offences have been getting longer in recent years. As I understand it, that development has the full support of the Government. Indeed the Criminal Justice Bill confirms the appropriateness of heavy sentences.
Perhaps I may offer my congratulations to the noble Lord, Lord Waddington, on his important maiden speech. I remind the House that, speaking in another capacity in another place in the debate on the Address, he said that for the most serious offences there was no doubt that a prison sentence would normally be necessary and that often it would be a long one. Those words contrast with the remarkable observation by Mr. Hattersley in the same debate, to the effect that it was assumed that the normal outcome of many convictions was imprisonment and that this was the tragedy of our criminal justice system. The tragedy of our criminal justice system is that for the proper protection of the public from the increasing number of serious offences so many people have to be sent to prison and for such long periods. Had Mr. Hattersley referred to the prison statistics for 1989 he would have learnt that between 1984 and 1989 there were large increases in those serving sentences for violence against the person (up by 46 per cent.), for rape (up by 120 per cent.), for other sexual offences
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(up by 105 per cent.), for robbery (up by 63 per cent.) and for drug offences (up by 105 per cent.). That is but one aspect of the existing criminal justice policy which the noble Baroness thought non-existent.
Let me turn to another aspect of sentencing policy. Against the increase in sentences in the categories to which I referred there must be contrasted the decrease in sentences for those involved in non-domestic burglary (down 17 per cent. over the same period) and theft, handling, fraud and forgery (down 27 per cent.). Fifteen years ago I was in charge, as a judge of the Queen's Bench Division, of sentencing conferences for Crown Court judges, recorders and assistant recorders. For some 10 years I also ran seminars on sentencing at Cambridge for its institute of criminology.
As long ago as that, the emphasis was on using prison as the last resort and imposing the minimum sentence consistent only with the duty to protect the interest of the public and to punish and deter. Guidelines were laid down by the Court of Appeal over 10 years ago in the case of R. v. Bibi, emphasising how dangerously overcrowded were the prisons and stressing the need to ensure that if an immediate custodial sentence was essential it should be as short as possible in the terms that I have described.
The Judicial Studies Board is responsible for ensuring that newly appointed assistant recorders, recorders and circuit judges attend residential courses where they are instructed on sentencing principles recorded in guideline cases. Those cases do not cover, as your Lordships might have thought, two or three offences but the following: causing death by reckless driving, riot, violence at football matches, robbery, kidnapping, rape, unlawful sexual intercourse, buggery, gross indecency, living on the earnings of prostitutes, theft in breach of trust, benefit frauds, offences involving drugs and offences involving obscene publications, incest, and detention for young offenders. All those judges are subsequently required to go on refresher courses. Each of the six circuits has annual sentencing conferences for all judges, recorders and assistant recorders.
Significantly, the guidelines are all published. They can conveniently be found in the Judicial Studies Board handbook. I have not heard any public criticism of the guidelines by criminologists, police officers or welfare authorities. That surely is a good indication that those who have read them are satisfied with their soundness; and those who feel so impelled to criticise the current system have not even taken the trouble to acquaint themselves with that vital material.
Perhaps I may repeat what I believe to be so important to disabuse those who consider the judiciary to be "trigger happy" with custodial sentences. There is provided to every judge a written instruction entitled The Current Approach to Sentencing. It is a kind of route card and contains the following six distinct steps which must always be gone through.

"1. Can a non-custodial sentence be passed? If so, such a sentence must be imposed.

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2. If a non-custodial sentence is not out of the question, is it possible to make a community service order as an alternative to a short custodial sentence?

3. If it is not possible to make a community service order, is it possible to suspend the whole of the prison sentence which must inevitably follow? If so, you must suspend the whole of the sentence you impose, but remember you must determine the length of the sentence on the merits of the case. It is wrong to increase the length of the sentence simply because you are suspending it.

4. If it is not possible to suspend the whole sentence is it possible to pass a very short immediate sentence without any suspension?

5. If a short sentence is insufficient to meet the needs of the case is it possible to suspend part of a longer sentence which must necessarily follow?

6. If it is possible then a partially suspended sentence should be imposed and you must decide what proportion of the whole must be served. If a partially suspended sentence is inappropriate what is the least possible total sentence which can be imposed bearing in mind the circumstances of the case and the record of the offender".

Those who suggest that there are many in prison who should not be there may care to know that burglars comprise the group which has the greatest proportion of persons recording 11 or more previous convictions—41 per cent. High rates were also registered for theft, handling, fraud and forgery. Thirty-two per cent. in that group had over 11 previous convictions. With regard to robbery the figure was 30 per cent. Out of 24,286 males whose previous convictions were investigated only 2,311—about 10 per cent.—had no previous convictions. Those with six to 10 previous convictions amounted to 6,500, and those with 11 and over 9,058. Although the comment will obviously be made that it demonstrates that imprisonment does not reform, it does at least provide a measure of protection for society from those who are intent on leading a violent and/or dishonest life.
To those who think that the guidelines laid down by the Court of Appeal are but pious advice to be adopted or ignored at the will of the judges, perhaps I may make a brief observation about the appellate system After an accused is convicted and sentenced he remains in receipt of legal aid for advice as to whether he has a reasonable basis for an appeal. Counsel considering the sentence imposed by the trial judge will view it in relation to the guidelines in order to see whether it is a justifiable sentence. If he is of the view that an appeal is justified, then the legal aid covers the application for leave to appeal against sentence and the drafting of the notice of appeal. There were over 5,000 such applications last year for leave to appeal against sentence and 1,822 were granted leave. Of those granted leave, 1,314—approximately one-quarter of the total applications—were allowed, and those include not only sentences quashed but sentences varied.
I have no doubt that the judiciary will welcome the new options of punishment within the community proposed by the new legislation. Punishment, as the recent White Paper on Crime, Justice and Protecting the Public confirms, has a major part to play in reducing crime. I entirely share the difficulty expressed by the noble Lord, Lord Waddington, in the debate on the Address in understanding why some who are in
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favour of less custody do not seem to recognise that rigorous and demanding penalties must be provided if that aim is to be achieved. Community penalties imposed in lieu of custody must not be perceived as "let-offs", if they are to be acceptable as alternatives to custody, as I sincerely hope that they will be.
6.15 p.m.
Baroness Platt of Writtle: My Lords, I am grateful to my noble friend Lord Elton for initiating the debate on this important subject. I speak only as a lay person. Like other noble Lords, I congratulate my noble friend the Leader of the House on his maiden speech. I join other noble Lords in their welcome. After his long service at the Home Office, not surprisingly my noble friend's maiden speech was an excellent one, and we look forward to hearing him on many future occasions.
There is general anxiety at the overcrowding in our prisons and the conditions under which prisoners are detained. The Government are spending millions of pounds on improving such conditions. However, that will take time. Many people, especially the elderly, live in fear of violent crime. Their lives are more restricted than need be because of that fear. Those people must be protected from criminals who are likely to repeat crimes of violence if they are free. Those people need to believe that the criminals are being punished for their crimes.
Young people who have committed less serious offences if imprisoned may learn further undesirable practices from hardened offenders. They may emerge from prison more liable to commit a serious crime than before.
I look forward to the Government's Criminal Justice Bill which is being introduced this Session. Its aim is to separate those two types of offender and to treat them differently. In short, the aim is to strike a better balance between custodial and non-custodial sentences. In its foreword, the Bill emphasises the necessity of protecting the public from serious harm from an offender. I very much agree with that. However, courts must in the majority of cases state their reasons in ordinary language —I welcome that phrase in particular—for imposing custodial sentences, and the length of sentence must be commensurate with the seriousness of the offence. Tougher sentences on persistent, violent offenders can take into account previous convictions which are serious and relevant when considering the protection of the public.
The parole board is to continue in existence. In making recommendations as to a prisoner's release, it will have regard to the need to protect the public from serious harm from offenders, and the need to secure offenders' rehabilitation. After short-term prisoners have served half their sentence, they will be released unconditionally if the sentence was one year. If the sentence is over one year, they will be released on licence. Longer term prisoners will be released on licence after two-thirds of their sentence has been served. The parole board can recommend release on licence for long-term prisoners after half their sentence has been served. Apart from the freedom such release

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conveys on the prisoner, and the consequent reduction of the prison population, the advantage of release on licence is that the prisoner is supervised by a probation officer. I am sure that that will be to everyone's advantage. It gives the prisoner a lifeline in a strange world after emerging from prison. At the same time so far as possible it makes it less likely that he or she will recommit serious crime.
If prisoners are likely to commit violent crimes, they can be recalled. That is a very important provision in the case of "lifers" who have committed murder or manslaughter. However, under the provisions of the Bill, if prisoners feel that they have been unjustly recalled, they can make representations to the parole board which, after listening to their cases, may release them if they feel it justified.
At the same time, there is a new emphasis on non-custodial sentences of a tough, demanding nature. That aspect is particularly relevant to young offenders and adults who are before the courts for the first time. The sentences will include hours of work of a demanding nature in the community. Such sentences by their very nature restrict people's liberty, but at the same time allow offenders to make direct reparation to the community for their crime. Other sentences could include a curfew order which involves electronic monitoring, or probation, supervision or attendance centre orders or unit fines.
As a county councillor some years ago I saw the work of an attendance centre. I was most impressed with its success. The young people had to travel long distances to the centre on Saturdays and take part in demanding physical exercises and work which gave them new skills. Inevitably they missed leisure activities such as afternoon football matches, but there was no question of custody. At the same time, interest was taken in their future and careers advice was given by volunteer officers. That kind of work has considerable prospect of success in the future.
The Bill provides the opportunity to achieve the correct balance between custodial and non-custodial sentences. As the Bill states, in either case there is a need for every effort to be made to rehabilitate. If young offenders and those convicted of serious offences but on release under supervision, are to be successfully rehabilitated, the provisions of the Bill will provide a considerable challenge for the probation service. In its financial commentary, the Bill makes clear the need for more expenditure on the service. I am sure that it will rise to that challenge in its best traditions.
In planning for expenditure on both the prison and probation service, I hope that the plans will include much better education and training opportunities in the future than they have in the past. I was most encouraged to hear my noble friend the Leader of the House make reference to imaginative plans in that direction. That education and training must be available for prison and probation officers, in their demanding work, to offer to every kind of offender. Such opportunities must be available to the young first-time offender who has not committed a serious
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offence and who needs to be firmly diverted from a life of crime and, at the other extreme, to the persistent and violent offender who may have committed murder or manslaughter. Between those two extremes will be the person who goes back to living on the straight path throughout his or her future life; prisoners who will need education and training while undergoing custodial sentences so that they too decide to give up a life of crime; and those who, despite all efforts, must undergo long periods of custody because there is so little chance of dissuading them from violence. In the latter case, the public need for protection must have priority.
The present long periods of custody in cells in primitive conditions, referred to in Judge Tumim's report, are demoralising to prisoners and staff alike. There must be more emphasis on education and training in the prison service. The provisions in this Bill, with its two-track approach, when put into effect in the future, will provide hope where there is at present despair, and in years to come will reduce crime and the number of prisoners in custody.
6.24 p.m.
Lord Gisborough: My Lords, the first issue that must be clarified is that in most magistrates' courts, while penalties and punishments are inevitably meted out, magistrates do and should lean over backwards to take any action that they can to help the villain to go straight and put crime behind him if they think that is in any way possible or likely. Time and again probation or conditional discharge is given to try to achieve that. I believe we all agree—and it is obvious—that if it can be achieved, it is much cheaper and better to gain success by reforming a character than by imposing penalties. There is a steady stream of miscreants who commit offences—particularly motoring offences including driving while disqualified—but who are already paying as much in fines as they can possibly afford, often taking into account the families that they must support be they married or unmarried.
I have a cutting from yesterday's paper which is of interest. The article states:
"Driver admits 32 of 504 offences.
A teenage learner driver who was originally charged with 504 motoring offences was banned for three years and fined £350 when he appeared in a Liverpool court. He pleaded guilty to 32 offences including driving without insurance and MOT … The remaining 472 charges were withdrawn at an earlier hearing".
How will he be dealt with when he next appears in court—probably next month—on charges for which he cannot be sent to prison; for example, another case of driving without the necessary documents or supervision?
There is a danger and a likelihood that the bad cases will end up in prison because they are fined so much that they cannot pay and so they default. Thus we now have the unit fines system to try to stop that happening. Needless to say, the system is proving to be something of a success because more fines are collectable. But even under that system many people will soon overrun the ability to pay more when they next appear in court, even at the reduced rate of fines.

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I do not like the idea of the unit fines system because it is grossly unfair to the man who is working and earning money. Time and again unemployed youngsters come into court as a result of expensive drinking bouts and for offences relating to their cars and they say that they have no money to pay a fine. Why should the hardworking man have to work for weeks to pay off his fine, while the unemployed youngster, who has little intention of getting a job, waits for the state to pay his fine for him? Furthermore, the employed man may lose his job but must pay far more than the person on social security, although he will then be receiving the same benefit. That again points to the benefit of the scheme that I have previously advocated—that is, the provision of work on piece rate so that the unemployed man can work off his fine, as can anyone else who chooses to pay by that method. That will not be community service, which in any case appeared to be a doddle on all the occasions that I witnessed it. It will be in the form of piecework for which they will be awarded a certificate for an amount of money rather than the money itself. I have already explained the scheme in the House and written to the Home Office, and therefore there is no point in going over it again now. Suffice it to say that there are satisfactory answers to all the points that have as yet been raised against it. Furthermore, work in lieu of a fine would leave income free for the payment of maintenance or compensation which is so often coupled with such cases.
I am sorry to see that the White Paper cast doubt on suspended sentences. Apparently the offenders see it as a let off giving them only a duty not to offend again. Surely that is the object that we are trying to achieve. It would be even more effective if, as suggested, it were combined with compensation or a fine. I do not believe that longer sentences will stop violent or sexual crimes. People do not commit crimes with the length of a sentence in their minds. They commit crimes for greed; and, above all else, they hope rot to get caught. The biggest reason why crimes are committed is lack of self control often combined with drinking. It is more important to look towards treatment than to long sentences which are often quite pointless. It would be much cheaper and more productive to go down the route of treatment than down the route to prison.
It is strange that we as a nation are advocating two opposite courses. On the one hand, we say that we must lower the prison population and stop sending people to prison. In my experience, no one is sent to prison unless there is no alternative. Those who are sent to prison would be a danger to themselves or the public if they were left at large or the gravity of their crime demands a prison sentence. On the other hand, we demand that in order to reduce crime, prison sentences should be longer and penalties stiffer. We cannot have it both ways.
That reinforces a need for additional methods of effective punishment. The piecework scheme could play a valuable part by providing the option of being able to punish severely with a heavy fine rather than
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sending someone to prison. Yet it would give the person the opportunity to pay the fine by working. There is a great need for additional options. I am glad to see that it will in future be possible to award a greater mixture of penalties for multiple offences and to mix; for example, a fine with probation.
The young adult attendance centres provide a useful option, but I do not think that they are adequately used. They do not appear to be on the menu in many magistrates' courts. That is probably because there are not enough of them around the country, and more are needed. They could probably play a much more constructive role than community service, which may offer serious work in a few cases but which I personally believe to be a doddle in most. One option that could be considered in certain cases would be to link a probation order with a requirement to take a training course. In certain circumstances that would not only put a man in a position where he could get a job, but it would also occupy his time, which may otherwise be idle.
Obviously there are those people who set out to commit a crime and they must expect a hard punishment. But there is a steady stream of people who come to court because they have lost their temper with their wives, or someone else, and have behaved in an irrational manner in respect of which the police have been called. Many of those people are living with very little resources, are already paying fines, and are at their wits' end as regards how to survive. It needs only a small spark to touch off a scene that then gets out of hand. They come to court, they are fined again for assault, and their situation becomes twice as bad. You may say, "Good, they deserve it for losing their tempers", but I often think that it is help that they need rather than a compounding punishment, but I do not know the answer.
Perhaps far more cases of this kind should be dealt with by the police with warnings after a night in the cells. Wives often do not want to see their husbands jailed even if they have suffered from them. I find it difficult to see what good it does to send a case of domestic assault to prison—as in the case of R. v. Smith in 1988—unless the wife is in real danger. It is far better to get the man out of the house on piecework so that his energies are used up by the end of the day, and give him training as an option to punishment so that he can either get a job, or improve his own job.
One thing that stands out is the poor mental and educational ability of so many of those who come before the courts. If they are sentenced to custodial punishment they receive some training in some of the establishments, but if we really want them to come out with the ability to get a job and with the self respect to look for one, then the most important thing is to ensure that they are educated and trained while they are locked up. Naturally the more the training the greater the cost, but surely this must be a good investment if it increases the number of those able to stay out of trouble once they are out.
There is education in youth detention centres, but some of the youngsters are not in for long enough to benefit from the education provided. I wonder

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whether sentences for youngsters should be for periods of a term, or two terms, so that they can be subjected to a planned educational programme even if this is a longer sentence than they might otherwise have been awarded. Perhaps an imaginative school regime would be better than the way they are treated at the moment.
Finally, magistrates do their best to reform and to punish, but they can only judge the success of their policies and learn how to better achieve these aims if they have feedback from the probation service and the system generally of the results of their sentences, and in particular the results of the risks that they have taken from time to time by giving warnings, or probation, instead of severe punishment. There are theoretically means by which this can be done to some extent, but I think that much more emphasis should be paid to getting information back to magistrates so that they can gain experience based on the real results of their disposals, and so better judge how to treat their customers in the future.
6.34 p.m.
The Earl of Clanwilliam: My Lords, I should like to take up a little time in thanking my noble friend Lord Elton for instituting this debate. There is indeed a dilemma inherent in the subject of the debate, which has already been well defined by your Lordships, between the need to keep society secure and to punish offenders of the nearly half million indictable offences. As my noble friend the Leader of the House, Lord Waddington, said in his notable maiden speech, 6 per cent. of offences concern violent crime and 94 per cent. non-violent crime, and for them custodial sentences are not necessary. It is they, the young first or even third-time non-violent offenders who most deserve our attention.
They are mostly young, jobless, insufficiently educated and unmotivated towards society, and sentenced to a range of training, young offender or youth custody establishments, with various forms of community work which, in many cases no doubt, is the appropriate treatment. The new Bill provides a welcome range of combinations. But just as our existing penal system has proved useless over the centuries as a place of reform, I am not totally persuaded that punishment in the community will solve all our problems.
The new Criminal Justice Bill advocates a direction away from custody on the basis that imprisonment restricts offenders' liberty and simultaneously diminishes the individual's responsibility. But supported evidence suggests that a large proportion of habitual criminals only reoffend because of the absence of any alternative activity which, by demanding their attention and commitment, would remove the temptation and opportunity to reoffend. A very heavy level of supervision by the probation service will be required to provide this cover if large numbers of offenders are to be released into society. The new quota of 800 additional staff is no doubt most welcome, but I venture to suggest that it is but a drop in the ocean.
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The results of the six-month electronic tagging trial were concluded to be a great success on the basis that breaches of curfew were spotted with great accuracy. However, to be realistic we must look at the facts. Twenty-nine out of the 50 defendants used in that experiment were arrested for bail violations or had absconded in the course of the trials. If those offenders had been in custody instead, the police resources and the probation officers' time required to cope with those incidents would have been better spent. On that basis 58 per cent. of all offenders who are shown leniency under current community punishment plans would be reoffending. What will that do to police resources, and what will it do to the confidence of the public?
Within the context of this debate where we are searching for a proper balance in what we are trying to achieve, the most desirable element must be one that comprises two simple elements that have been ably propounded by many noble Lords. First, adequate punishment and deterrent value, and secondly, and most importantly, a rehabilitation and reformation of the offender. With violent offenders or serious crime, the custodial sentences provide the basic requirement in the safeguarding of society. But essentially we are looking for new measures to meet these two basic criteria: will the offender and the public see the punishment as being an adequate deterrent against future criminal activity, and is there a rehabilitation and reformation element to help the offender rejoin society with respect and dignity?
The ethics of punishment require that sentencing should contain a value-focused approach as well as reformative and punitive components. Punishment needs to be an expression of society's disapproval of a criminal act, and hence an encouragement to habitual law-abiding conduct. It is both constructive and essential for the victim and the rest of society to acknowledge adequate punishment if only for deterrent reasons. Equally importantly the defendant must expect to face up to the consequences of his actions. It is self-evident that if he is not made to recognise the wrong he has committed through punishment, there is no incentive to prevent him from committing the same crime again.
Indeed, if punishment in the community in its current form persuades the public that it is either adequate punishment or that it holds a sufficient degree of deterrent value, I should be in total agreement with the new Bill. But the underlying motives which encourage a potential offender towards crime, such as unemployment and pressure from one's peers, will continue to influence the offender as vividly as ever when serving a non-custodial sentence. When sentencing an offender a magistrate—and I must refer to noble Lords who have more experience in that field—even with all the resources at his disposal, which were so ably mentioned by the noble Lord, Lord Hutchinson of Lullington, can never be fully aware of the offender's background circumstances, nor the degree to which he was influenced by them when he offended. Therefore, if the offender is not removed, even if only briefly, from destructive elements such as

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lax parental guidance, opportunities for crime, peer pressure or similar negative controls, the welfare officer's work will be continually negated by countervailing pressures.
It seems to me that there will still be a need for an alternative custodial sentence designed to provide the necessary punishment and deterrence, combined with a very strong element of rehabilitation. The noble Lords, Lord Gisborough and Lord Donaldson, both made those points, though approaching them from a different angle. I suggest that this alternative sentence would be an option, to be offered by the magistrate, of a shorter duration than the normal sentence which would have been provided under the existing rules. The offender would have the option to take, at his will, either the full course or the short one.
The short course would involve a large educational element, including revision of his basic educational standards, rehabilitation, vocational training and additional subjects such as Outward Bound courses, lots of physical exercise, and so on. While serving this custodial sentence the offender would be actively and fully employed throughout the day, with no time to start thinking of other more luscious activities outside.
I hope that your Lordships will forgive me if I appear to be starting an old hare. It perhaps bears the hallmark of the short sharp shock, but with respect I suggest that that is not so. In the past there was perhaps an element of punishment for punishment's sake with less emphasis on rehabilitation, which is the core of the proposal. We need to offer young offenders a positive approach to reform. Indeed, we owe it to them. Valiant though the efforts of the probation service may be, it can by its very nature offer no more than supervision and counselling. I hope that the Bill will pass successfully, but I make a plea that more positive reform principles are incorporated in it.
6.43 p. m.
Baroness Seear: My Lords, I should first like from these Benches to congratulate the noble Lord the Leader of the House on his most appropriate and expert maiden speech. He will find that this is a subject which recurs often in your Lordships' House and it is most valuable to us to have someone who has been both Home Secretary and an eminent lawyer to contribute to our debates on this subject.
I also wish to thank the noble Lord for what he said at the very beginning of his speech about his attitude towards this House and his role as Leader of it. In particular, I welcome the stress that he laid on seeing himself not only as a powerful Conservative Minister in this House but also as the Leader of your Lordships' House. We have always greatly valued the way in which Leaders of the House have recognised that they have the dual role of representing the Government and leading the House.
We on the Opposition Benches—certainly I can speak For these Benches and I think noble Lords on the Labour Benches will agree—have found in his predecessors Leaders who have had the greatest possible appreciation of the Opposition's point of view and the fallen over backwards (to use an
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unparliamentary expression) in endeavouring to accept our views. It was a great pleasure and relief to hear the new Leader reiterate the same policy.
I had thought that in this debate we were talking not about the Criminal Justice Bill but about custodial and non-custodial sentences. Of course, the subject overlaps the Criminal Justice Bill, but I have no doubt that we shall soon be debating that Bill at tremendous length. I therefore confine my remarks to the matters which deal more specifically with the terms of this debate.
As one would have expected, it has been almost entirely a cross-party, or non-party, debate. The only controversial issue that arose was that of the sentencing council and sentencing guidelines. We on these Benches support the view taken by Justice that there should be a sentencing council and sentencing guidelines, but we do not for one moment think that they should in any way lay down rigid conditions on the way in which sentencing should be done. It is complete nonsense to suggest that an outside organisation could say with any precision how sentencing should be done. Only the people in the courts can know the difference between the various cases and the way in which they should be handled.
Before noble Lords suggest that the proposal for a sentencing council and sentencing guidelines is in some way an attack on the judges—a point of view which we most certainly do not share—it should be remembered, as I am sure it is, that these guidelines apply to the magistrates' courts, to the lay magistracy throughout the country, and are also intended to be a way of alleviating the anxiety which the public undoubtedly feel about the great diversity of sentences that are given. Though there may be very good reasons for some variations I am sure that all concerned, including judges, agree that the differences are too great. Without in any way wishing to join in an attack on the judges, I am sure they all agree that, like other people, they are human beings—indeed, that is the burden of their case—and, that being so, they will from time to time make mistakes.
The last thing that I wish to see develop—I know that the noble Lord, Lord Richard, said this and I am sure my colleagues agree—is any attempt to exercise executive control over the judiciary. If there is one principle on which our freedom depends it is the separation of powers. I would go a long way to avoid any invasion of that very important separation. We do not have it totally, even now. We certainly do not want to go down the line of a further diminution of that separation.
That said, the only other point that I wish to raise, which has been made by previous speakers, is that I very strongly endorse what was said by my noble friend Lord Donaldson about Grendon and the importance of developing other prisons similar to Grendon. I had the extremely educative experience of taking part in a seminar at Grendon, at which the prisoners and the governors were mingled in the audience. I had some difficulty in distinguishing between them, partly because of the very attractive clothing which the prisoners wear.

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I should like to give your Lordships an idea of the atmosphere at Grendon, where one has the impression that the staff and prisoners are in one sense—not in a soft and sentimental sense—on the same side. Both are concerned with trying to get over the very real difficulties and problems that exist. At the end of the seminar the vote of thanks was given by a prisoner who said that the the last time he made a speech it was to an audience of twelve. That was well received and understood by the audience. I mention that as evidence. One would not find that happening in very many prisons. Let us pursue the possibility of having more prisons like Grendon in other parts of the country.
I should like to turn to one or two matters which were only raised in passing in the debate. We have spoken of young persons and prisoners; surprisingly nobody mentioned women. Perhaps someone did, but not to any great extent.
Some years ago I was involved in a short inquiry for the Howard League with a very expert adviser on the question of women in prisons. The point that startled me when I began the study was that at that date there were 46,000 men in prison and only 1,500 women. I fully recognise that even in these liberated days there are some differences between men and women. But I cannot believe that the propensity to commit crime is so strongly marked on a sex basis that those figures reflect anything other than a sex difference.
It is extraordinary to find how few women are committing crimes which carry prison sentences as against the large numbers of men. Some people say it is because women have less opportunity to commit crime. I was never convinced by that argument. Unless one says that women are totally not disposed to commit criminal actions, which I cannot believe, it establishes that the likelihood of being sent to prison is not a deterrent. At any rate, the difference between the numbers of men and women in prison is extremely marked.
Something else may be learnt which applies to men as well as to women. We speak of reducing the number of people in prison in comparison with the number of people outside prison. Four or five years ago over half the women in prison on remand did not receive a custodial sentence. That cannot be sensible in terms of providing justice for women. To be put in prison and then to find when one is tried or finally sentenced that one's crime did not merit a custodial sentence is surely harsh and unfair in the extreme.
In addition, it is very expensive to keep women in prison. It costs £300 a week, but that is only the start. Many have families and children. The social services must be mobilised to support the families while the women are in prison. It must be possible to make better arrangements to ensure that people are not kept in prison on remand. That would immediately reduce the numbers. It may be said that they must be there; otherwise they might bolt. Those women are certainly not the kind of people for whom there is a plane round the corner to take them to the Caribbean. They were living at home with their families. They could be
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required to report to the police station every day if necessary, but anything is better than keeping them in prison. That seems to me to be totally ridiculous.
At the time of the study some women were in prison for non-payment of fines, including a small number of prostitutes. It is no longer permissible to send a woman to prison for being a prostitute. A heavy fine can be imposed. She then does a sensible calculation and works out how many weeks she will need to be in prison as against paying a fine, and says, "Thanks, I will accept prison". We then bear the cost of keeping the woman in prison. The money for the fine is not received. What good does that do anybody?
In regard to stopping people from returning to prison, I was present when a prison governor was seeing women as they came out, having completed their sentence. There was one woman in her thirties —not the brightest, I would guess—who had been in prison for a couple of years. The governor asked if she had money. She answered "Yes, £61". He said, "You have a rail ticket to London?" She answered, "Yes". On being asked where she intended to live in London she replied that she had bed and breakfast accommodation in Putney. She was asked how she would travel from Euston to Putney and said that she would take a taxi. There would not have been a great deal left of the £61 after she took a taxi from Euston to Putney.
My point is that if that is the best we can do when such a person comes out of prison—no money, effectively nowhere to go, no friends, no idea as to how to obtain a job, having been completely dependent on prison for two years and thus having lost any initiative she may originally have had—we are making it as certain as night follows day that a great many of those people will find themselves back in prison. Some kind of sensible aftercare arrangements should be provided, including places in which for short periods of time women and men could stay until they settled themselves into reasonably acceptable housing. We should also provide sensible care of the kind given by an organisation with which I am connected called SOYA, where a one-to-one relationship is established with people who are prepared to give personal help to ex-prisoners. They are guided over accommodation and jobs and how to obtain money until they are able to stand on their own feet.
Support for such schemes would do a great deal to stop people from returning to prison, which they do because they simply give up trying to deal with the complexities of life and the difficulties that face them when they leave prison. Support for schemes of that kind is chicken feed compared with the cost of keeping people in prison, to put it simply on an economic level.
I should also like to mention the mental health cases that are kept in prison but surely should not be there. I visited C block in Holloway. The previous day a woman had torn the porcelain wash basin from the wall, broken it, taken the jagged pieces of porcelain and slashed herself. The blood was on the floor and in the lavatory. I said to the governor, who was doing his utmost to cope, "Surely that woman should not be here. Nobody in their right mind behaves like that".

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He said that of course she should not be there. He had told the courts that she should not be there, but they said to him, "Bad luck. You have got to have her. We cannot make the hospitals take her but we can make you take her". That must be wrong.
We have a National Health Service as well as a national prison service. We should provide secure units in hospitals for those people. If secure units exist it should not be too much to say that the hospitals should be required to look after those people. That is preferable to their being sent to prison because that is the only place to which a harassed court can send a person who plainly must be sent somewhere. The only place the courts can force such people to be accepted is prison. It is totally unfair on the governors, who, goodness knows, are struggling to deal with the cases that they already have. It is also grossly unfair on the individuals concerned.
I speak of women because that is my own experience. I am sure that the same applies to men. I see my time is nearly up. I meant to speak primarily as chairmen of APEX, which works to provide training and placement for ex-offenders. If more people are not to receive custodial sentences, more convicted people will be in the community. Most will be unemployed and are likely to continue to be unemployed after their sentences are finished in the community. Unless those people can obtain jobs they will continue committing offences.
Obtaining jobs today is becoming increasingly a matter of training. APEX provides training and placements. The noble Earl, Lord Clanwilliam, and the noble Lord, Lord Gisborough, suggested that training should be included as part of the sentence. We do not want people sentenced to training but we very much want them to be encouraged in some way or another to undertake training. It is very much in their interests and those of the system that they should.
There is a practical problem here to which I wish to draw the attention of the House. The TECs are now responsible for funding the training and that is the major source from which training can be received because it is no longer available from the Department of Employment. The TECs have had their money cut but they will also be judged for their success by their placement rates for people who receive training. If I were running a TEC and were to be judged on my placement rates the last person I would take for training would be an ex-offender because he takes longer to train and he is more difficult to place.
Unless it can be made clear to the TECs that they have the responsibility and also the resources for financing the training of offenders and ex-offenders, I do not expect that they will undertake training except in a very small number of cases. If they do not undertake this measure, training cannot be provided. If training cannot be provided there is precious little prospect for the ex-offender. These days if you have not been trained and even if your record is as pure as the driven snow it is not too easy to get a job. If you have not any skills or competences and you have a record, you might as well settle for a life of crime.
7.1 p.m.
Baroness Ewart-Biggs: My Lords, it is a great privilege for me to speak from the Dispatch Box on this side of the House in a debate that has featured the maiden speech of the noble Lord, Lord Waddington. I add my congratulations to him. I wish him great success in his new position as Leader of the House. I detected only one moment when the noble Lord seemed to regret that he is with us. That was yesterday evening when I could see that he was itching to get his teeth into the debate about the vagrancy Bill. However, I was happy to hear his speech today.
I congratulate too the noble Lord, Lord Elton, for moving the Motion, even more so because it is usually the role of my noble friend Lord Longford to carry out that task. For those of us who are interested in penal policies it has been a very interesting debate.
The theme is a very important one. The aim is to ensure that non-custodial sentences are set when appropriate, thus reserving custodial sentences for those whose offending is an actual danger to the public. The noble Lord, Lord Elton, made it clear that he did not think that prison really worked. He saw it only as a means of protecting the public from dangerous offenders.
The noble and learned Lord, Lord Ackner, made very clear his views and that of the judiciary on the role of custodial sentences. He quoted remarks that I had made. I am sad that he did not give me notice of his intention; it would have been helpful. I was surprised that he attacked my noble friend Lord Hattersley with so much enthusiasm.
The Minister of State, Home Office (Earl Ferrers): My Lords, perhaps I may interrupt the noble Baroness. She made an error in enhancing Mr. Hattersley to the title of Lord Hattersley.
Lord Graham of Edmonton: It was in anticipation.
Baroness Ewart-Biggs: My Lords, it could not have been in anticipation. I am grateful to the noble Earl for pointing out my mistake. My right honourable friend Mr. Hattersley has views on a sentencing council which are shared by the noble Baroness, Lady Seear. I wonder whether the noble and learned Lord, Lord Ackner, understood what my right honourable friend meant. The noble and learned Lord described the present situation as if it were perfect; he spoke of sentencing policies that were bringing about a perfect situation. The other side of the coin has been shown. We have overcrowded prisons and high reconviction rates. It is for those reasons that we feel policies should be looked at.
It is not surprising that some attention has focused on the Criminal Justice Bill. The debate overlaps so much that is in the Bill. It is very important that the Bill officially recognises for the first time this century that as a penal measure prison is ineffective and that the numbers in custody need to be reduced. That is very plainly stated in the Bill. As the noble Baroness said, we shall have ample time to discuss the Bill; however, I wish to say something now about it.
I applaud the decision to reduce the maximum penalties for theft and non-domestic burglary; the

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introduction of a unitary fine system; the legislative restrictions on the use of custody; and the obtaining in certain cases of a social inquiry report. All these changes are to be welcomed. They will prevent a proportion of offenders entering prison. It has also been rightly said that the Bill sends a mixed message to sentencers in that it is written in the language of punishment. It seems that the Government wish to entice sentencers to use non-custodial sanctions by making them sound tough and restrictive. That factor worries the probation service and myself. As the noble Lord, Lord Windlesham, said, the community service orders used until now have proved a great success without giving them this severe and rather punitive aspect.
The remand population stands at the high level of 22 per cent. of the total prison population. That is a national shame. The Penal Affairs Consortium is a body made up of 16 voluntary agencies concerned with penal affairs. All of them—and this is surprising for voluntary agencies—speak with one voice within the consortium which has prepared a paper on the remand system. The consortium feels that the number of people on remand should be drastically reduced. It also feels that there should be improvements made to the conditions in which remand prisoners are held in prison.
The consortium would like more bail hostel accommodation—a call often made in this House. It would also like to see the establishment of bail information schemes throughout the country to provide the courts and the Crown Prosecution Service with verified information about dependants' circumstances. There is a need, it believes, to address the problem of the inordinate length of time which prisoners face while awaiting trial. It would welcome further moves towards tougher limits for pre-trial procedures. That is an area where enormous change needs to be made.
The National Association of Probation Officers is worried about the remand situation and wishes to see certain changes. It would like to ensure that an individual charged with a summary offence cannot be remanded in custody unless he or she has a history of absconding. It would also like magistrates and the police to be forced to take into account issues of race and gender before reaching a remand decision. Implicit in this recommendation is the need for the training of personnel and the monitoring of decisions. The concern about the number of people we keep on remand has a place in this debate.
I was glad that the noble Lord, Lord Donaldson, mentioned the Butler Trust pamphlet. It is well worth reading because it was written by governors of our prisons who observed the systems in other countries. I often wonder whether our penal policy-makers look across the Channel to see what is happening there. My experience is limited to a visit to prisons in the Netherlands, but I can say that a different atmosphere and culture prevails in Dutch penal policy. In the Council of Europe league table, to which my noble friend Lord Richard referred and to which one must
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have some regard, Holland is low in terms of the number of people imprisoned. That is not because the Dutch are less criminally inclined than the British—until 1955 the Dutch prison population exceeded that of Britain—but because public attitudes in the Netherlands have changed. The Dutch believe that a remedial system can be more successful than a punitive one.
Perhaps I may say in the presence of the noble and learned Lord, Lord Ackner, that Dutch judges appear less inclined to imprison and have a greater expectation of rehabilitative ideas. Although we have a larger range of alternatives to custody, it would seem that in the Netherlands a more restricted range is used more flexibly. That seems to work better than our wider range of alternatives. If we wish to bring down our prison population it would be wise to look at some of the trials and experiments now going on in countries across the Channel.
The noble Baroness, Lady Seear, said she was surprised that no speaker had raised the subject of women. When I nodded I did not mean to suggest that someone already had; I meant that I was planning to do so in my speech. In regard to women there is a case for a high rate of non-custodial sentencing. I have some figures which are relevant. The figures for 1988–89 show that, of the 1,601 women in prison, 901, which is more than half, had children under 16. The fact that half the women in prison have children outside surely points to the need to keep those women in the community to fill, even if inadequately, the role of mother.
The noble Baroness, Lady Seear, also referred to female remand prisoners. The 1988–89 figures show that of the 3,397 women remanded in custody, only 46 per cent. were finally given custodial sentences. Half of the women who were taken away from their children and families were given non-custodial sentences. It is distressing and wrong that more male offenders than female offenders are given community service orders. The number of convictions of women for violent crimes is very low; so only a small number of women are dangerous to the public. Of those women convicted in 1988–89, only 18 per cent. were convicted for violent crimes including armed robbery, while 82 per cent. were incarcerated for petty crimes such as bank cheque frauds, shoplifting and not paying their fines. Such women (who were in no way a threat to the public) were relieved of their duties as mothers and members of families.
The noble Lord, Lord Elton, and the noble Earl, Lord Clanwilliam, referred quite rightly to the desirability of rehabilitating offenders when they leave prison. There is a dangerous gap when they leave and before they become integrated by way of a job and a home. That is the time when reconviction is likely. I hope that in the Criminal Justice Bill agencies such as New Bridge, of which I was chairman and which my noble friend Lord Longford set up many years ago, will be given the funds and the support that they need to carry out their employment service and their befriending service.

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I should like to ask the Minister who is to reply a question about the recommendations of the noble Lord, Lord Carlisle. I was happy to hear the speech of the noble Lord, Lord Carlisle, but I was disappointed that he did not focus very much on the proposals and recommendations he made which we know are to be incorporated in some way into the Criminal Justice Bill. It is feared that, while the sentencing system is as it is, these proposals, if accepted, will cause the prison population to rise. I wonder whether the noble Earl can say something about that.
The noble Lord the Leader of the House referred to the importance of victims. I am on the advisory council of the Victim Support Scheme. The scheme is a little disappointed that it has not been mentioned in the Criminal Justice Bill. I should be grateful if the noble Earl can say something about that.
We all start from the same point when discussing penal Policy. We all wish to protect the public from violent crime. However, the use of excessive custodial sentences has not been fully successful in reducing violent crime. I am happy to think that we shall try to protect the public by dealing with offenders outside prison and in the community.
Lord Renton: My Lords, will the noble Baroness be good enough to give us her views, or the views of her party, on the prison building programme, bearing in mind the unsatisfactory state of some of our prisons?
Baroness Ewart-Biggs: My Lords, I have noticed that my party does not give many figures at the moment. I feel safe in saying that our priority is for the rehabilitation of existing prisons rather than a continuation of the costly prison building programme. I say that on my own account, but I believe that it is true.
Lord Campbell of Alloway: My Lords, before the noble Baroness sits down, perhaps I may ask a supplementary question.
Noble Lords: Oh!
Lord Campbell of Alloway: I shall withdraw, my Lords.
7.18 p.m.
Earl Ferrers: My Lords, I would not wish to prevent my noble friend from asking a supplementary question; but his doing so might extend the rules of procedure a little wide. I am sure that he will have the opportunity to ask his question outside the Chamber; indeed, he might get a more forthright answer.
The whole House has been most grateful to my noble friend Lord Elton for giving us the opportunity to discuss these matters today. He is well qualified to do so. He is also a very distinguished previous holder of the office to which I now have the privilege of being an ornament and chairman of the Intermediate Treatment Fund which does so much in connection with alternatives to custodial sentences, especially for young people. He introduced the debate with the style, quality and erudition which have become hallmarks of his features. We are grateful to him.
One of the hallmarks of this debate has also been the maiden speech made by my noble friend Lord
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Waddington. If I were permitted to congratulate him upon it, I should only do so with respect. I say that because it is hardly for me to congratulate an old hand on being a maiden. However, to make a maiden speech in this House both as a Member and as a Leader is a proposition which does not fall to many people. If I may say so, I thought that he acquitted himself magnificently.
My noble friend Lord Elton said that he and my noble friend Lord Waddington were Ministers of State together at the Home Office, and that they shared the Home Office together. However, I also had the privilege of sharing the Home Office with my noble friend; but I always looked up to him as the deity because he was Secretary of State. I always regarded him with awe, admiration and respect, and that still applies in his new position as Leader of the House.
I was interested to hear the noble Lord, Lord Hutchinson of Lullington, congratulate my noble friend Lord Waddington and welcome him as a lawyer to the House. He then continued to say that my noble friend would realise as time goes on how the lawyers in this Chamber conduct their arguments with such brevity. I am sure that my noble friend will come to realise that he will never fail to be surprised at the speeches made by some noble Lords and at the conclusions they reach.
My noble friend Lord Waddington explained the background to our proposals with regard to the Criminal Justice Bill, which is after all a major Bill to deal with the treatment of offenders. Our purpose is to establish a coherent framework for sentencing which will enable offenders to be punished suitably, according to the seriousness of their offences. We have heard many speeches today of great knowledge, and we have had many contributions from people who have great experience in the field, for which the Government are grateful.
My noble friends Lord Clanwilliam and Lord Gisborough were concerned about rehabilitation and how well that could be carried out in prison. We never abandon the reform of the offender or the person who is in prison. However, we believe that the chances of achieving rehabilitation are stronger if the offender stays in the community. But if the sentence is to be —and is to be seen to be—fair, it should be based first and foremost on the seriousness of the offence.
At the lower end of all penalties, we have the fine which is suitable for the vast majority of offenders. My noble friend Lord Gisborough argued that unit fines would be unfair to the working man. It is right for a fine to have a similar impact on different offenders according to their disposable weekly income. Unit fines will result in fairer fines. But, on the other hand, custody is clearly placed at the other end of the scale of penalties. However, in between, there are community penalties which are suitable for serious offenders—especially those who offend against property—who now receive a custodial sentence.
One uses the words "community penalties" and not "non-custodial penalties" deliberately. It is not just a question of semantics; by calling them community

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penalties, we emphasise that the punishment is in the community and that it is a credible way of dealing with offenders. It should not be seen just as an alternative to custody. That is important if we are to get the balance right between custody and community penalties.
Custody should only be used when there is no alternative. There are occasions when that applies. My noble friend Lord Windlesham asked about our proposals for serious and violent offenders. The House will have an opportunity to scrutinise such matters more closely when the Bill comes before us for consideration. It is right to say that the proposals will seek to offer a balanced package. They reflect our responsibility to protect the public from serious harm and ensure that the courts have the requisite powers.
The noble Earl, Lord Longford, was anxious to control the judges who, as he said, keep putting people into prison. He received a fairly robust sidewinder from the noble and learned Lord, Lord Ackner, who quite correctly portrayed the duties and responsibilities of the judges. In effect, he blew the noble Earl, and everyone who took a similar view, out of the water.
The Earl of Longford: My Lords, at least I am unbiased in the matter. The noble and learned Lord, Lord Ackner, simply speaks on behalf of the judges' trade union; indeed, "he would, wouldn't he?"
Earl Ferrers: My Lords, that is a most curious expression to have used. The noble Earl in his Utopia would not put anyone in prison and he would release most of those already in custody. Fortunately he was generous enough to say that we did not all have to go along with his views. I accept that offer.
The noble Earl also asked about minimum prison condition standards. We all want decent, humane conditions in our prisons. The question of minimum standards is being considered by Lord Justice Woolf. The noble Lord, Lord Donaldson, was right in his assumption that we shall consider most carefully what Lord Justice Woolf has to say.
The noble Lord, Lord Richard, advocated a sentencing council. He believes this to be the only way to ensure that custodial sentences are imposed only when it is strictly necessary. I share the doubts expressed by my noble friends Lord Renton and Lord Carlisle. A sentencing council would only work with rigid guidelines. By the very nature of things, that removes flexibility. We do not believe that it would be necessary or helpful. Moreover, we believe that it would blur responsibilities. The courts will receive guidance from the proposed statutory framework for maximum penalties to reflect the seriousness of the offence. They will also be able to consult the Court of Appeal.
I was most grateful to the noble and learned Lord, Lord Ackner, for describing the current breadth of the Court of Appeal's sentencing guidelines. The noble Lord, Lord Allen of Abbeydale, asked whether we believed that the Court of Appeal will extend its sentencing guidelines. The Court of Appeal has been very helpful in interpreting the young offender
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provisions in the Criminal Justice Acts of 1982 and 1988. I am sure that it will also help the lower courts to interpret the provisions of the Bill through its sentencing guidelines.
The noble Lord, Lord Allen, also asked whether our consultations with the judiciary on the Bill have been satisfactory. I am pleased to confirm that they have. The Bill reflects those consultations. My noble friend Lord Carlisle made an enormously helpful contribution to the matters under consideration by producing a report. It is right that, if a sentence of imprisonment has been passed which should reflect the seriousness of the offence committed, the sentence served should closely resemble the sentence passed. I was asked whether this means that more people will be in prison. If the sentences actually served reflect more the sentences passed, if the sentences remained the same, that would be so, but the chances are that the sentences would more accurately reflect the time that is going to be spent in prison.
We welcome the proposal of my noble friend Lord Carlisle for the reform of the parole system. We are glad to have been able to implement that in the Bill. The noble Baroness, Lady Seear, in what, if I may say so, was a penetrating speech, and the noble Baroness, Lady Ewart-Biggs, referred to women and the difficulties which exist. I believe that the noble Baroness, Lady Seear, said that there were fewer women in prison than men and that this was either sex discrimination—I am bound to say that I found that to be a curious line to take—or proof that it was no deterrent.
The noble Baroness was right to remind us of the need to ensure that custody for women is avoided so far as possible by establishing a coherent framework for sentencing. We hope to ensure that all people are treated fairly. The probation service has been encouraged to ensure that community service is feasible also for women with families.
Custody represents the severest deprivation of liberty; but it should not be despised because it has its purpose. Despite the best efforts of the prison service, it is generally agreed—all your Lordships have agreed this evening, I think—that imprisonment can hamper an offender's ability to turn away from crime. It makes it more difficult for him to maintain his ties with the community—including those with his family and his employment—ties which might encourage him not to reoffend. By bringing an offender into contact with other criminals he is inveigled into and rehearsed into a life of crime. Custody should be reserved for the most serious offenders—those who need to be tucked away from society and those who put the public at risk of serious harm.
My noble friend Lord Elton, in an impressive and thought-provoking speech, admitted that prison is essential to keep people away from society, and so did my noble friend Lord Carlisle who has done so much work on this subject. It is necessary, as my noble friend said, because it incorporates punishment, retribution and protection. There is an element of necessity in all three. The figures given by the noble and learned Lord, Lord Ackner, were impressive and

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confirm the purpose and necessity of prison to protect the public from those who are determined to lead a life of crime,. However much one may dislike the idea of putting people into prison, the public expect, as the noble and learned Lord said, to be protected from those who live a life of crime.
Although any government like to feel that they have introduced new ideas—and we have; your Lordsh ps have been generous enough to agree that —the underlying anxieties about prisons have been around for some time. The noble and learned Lord, Lord Bridge, reminded me only the other day that the Vicar of Wakefield wrote many years ago:
"our present prisons find or make men guilty, and enclose wretches for the commission of one crime, and return them, if returned alive, fitted for the perpetration of thousands".
That is a factor which lies behind many of your Lordships' anxieties.
The noble Lord, Lord Donaldson, asked important questions about facilities in prisons for drug and alcohol addicts and our plans for open prisons. I shall take up his offer and write to him about those matters; but I welcome his support for the therapeutic community at Grendon Underwood. The prison service is currently reviewing and reassessing its provision for sex offenders.
The bringing of offenders into contact with criminals, and the "university of crime" aspect, is the downside of imprisonment. The Bill which is now being considered in another place is an important step in tilting the balance. I know that it will receive the accolade of approval from the noble Lord, Lord Hutchinson, who was worried about it. The Bill contains important proposals designed to increase the spectrum of community penalties available to the courts. My noble friend Lord Renton described the constraints placed upon him when he was a recorder when he could choose only a fine, some form of custody or the placing of an offender on probation.
Under our new proposals, the courts will be able to impose the new combination order, or community service, or probation with or without requirements, or curfew orders. They will be able to use them on their own or in combination, and they will be able to combine them with financial penalties by giving compensation to the victim or by imposing fines. That gives the courts much more flexibility than was available in my noble friend's day.
In imposing community penalties, it is important for the court to have regard to the totality of the punishment. If the penalty is to be realistic, as well as demanding, it should first properly reflect the seriousness of the offence. There is no point in providing the courts with a greater range of community penalties merely in the hope that they will be used. Community penalties need to be properly supported, and adequate arrangements for enforcement are important. The quality of supervision is essential to community penalties. It is also central to their credibility. Effective supervision can protect the public, both in the short and in the longer term, by preventing reoffending and by assisting the reintegration into the community of the offender.
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Supervision can never be a complete guarantee against reoffending; but its risk can be reduced substantially by skill and good practice. The offender can be made to face up to his crime and to its impact upon the victim. He can be helped to avoid repeating it, and with the difficulties which may have caused him to offend, such as drug or alcohol addiction or poor control over his temper.
Successful reintegration into the community of an offender is easier if the offender is punished within the community. By staying in it, he can maintain his family responsibilities and his employment opportunities. As most of the opportunities for crime exist in the community, the offender has a better chance of learning how to resist those temptations if he stays there. My noble friend Lady Platt of Writtle described how supervision following release from custody can offer a lifeline to a prisoner. I agree. It can offer a bridge between total custody and total freedom, which can help to protect the public and support the offender. The noble Lord, Lord Allen of Abbeydale, asked for an assurance that the Government believe that the probation service will be able to meet the challenge presented by the Bill. We are confident of its ability to do so. The Green Paper Supervision and Punishment in the Community set out the options for the organisation and training of the probation service so as best to equip it for its tasks.
We had over 160 responses which we are considering carefully. We hope to be able to announce our conclusions soon. The development of the community service over the years has shown that change is coming about. However, when one changes an organisation's role one cannot expect it to act like a parade of guardsmen to the command, "Right, turn". It is more of a right wheel. The transition is smoother.
The noble Lord, Lord Richard, gave examples of the differences in sentencing throughout the country. The courts have to decide what in their view is the right sentence to impose in any circumstance. There is much excellent practice in the probation service in supervising offenders throughout the country. We intend to extend that everywhere by the introduction of national standards for key areas of probation work. They will enhance the confidence of the public and the judiciary in community penalties.
National standards for community service were introduced last year. They improved its status as a penalty for offenders who might otherwise have gone into custody. We propose to introduce national standards to cover pre-sentence reports, probation day centres and parole supervision.
We held a conference on pre-sentence reports in September which enabled us to discuss with judges, magistrates and probation officers what their needs are. That will be followed up by pilot schemes to test the operation of the reports in practice. The right environment must exist if the objective of treating offenders suitably is to succeed. Effective communication is crucial. The relationship between the courts and the probation service is especially important. The courts need to know what types of community

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penalties are available and what they involve. They need also to be aware of the outcome of the orders that they make which the probation service supervises. That is why we propose to place a statutory duty upon the probation service to inform the courts of the outcome of those orders.
My noble friend Lord Elton said that the decision between custody and a community penalty is especially important when young people are involved. My noble friend said that the majority of prisoners were young men until they reached the age of—to use his graphic description—"criminal burn out". There are many excellent projects up and down the country offering constructive and demanding community activities for young offenders. Over the years these have made a significant contribution to keeping young people out of custody. Your Lordships will be aware of the great success there has been in reducing the number of custodial sentences which are given to young offenders.
Since the early 1980s, the number has decreased by about 75 per cent. from 8,000 custodial sentences for juvenile offenders in 1982 to a little over 2,000 last year. At the same time, the number of known juvenile offenders has also fallen. This demonstrates what can be achieved by the determination to bring custodial sentencing rates down and to make community penalties work. It has enabled the Government to propose the abolition of the sentence of detention in a young offenders' institution for 14 year-old boys.
The noble Lord, Lord Richard, drew attention to the size of our prison population compared with those of other European countries. He expressed anxiety about the remand population. The Government are concerned about the number of people held on remand in prison. Our programme to expand the bail hostels and to establish bail information schemes is intended to help reduce the numbers. We hope to have 1,000 extra bail hostel places by 1993 and more than 100 bail information schemes by April 1992.
Many people measure the quality of our present proposals for community service by the extent to which they may reduce the prison population. We must remember that our primary aim should be not just to reduce the prison population but to secure the suitable punishment of offenders which, in some cases, includes imprisonment. As my noble friend Lord Waddington said, reduction of the prison population would be a welcome additional result, but it is not the prime aim. I am pleased that, as my noble friend Lord Waddington said, it has fallen by over 3,000 during the past year. This reflects a growing consensus that custody is not necessarily the right punishment for most offenders.
The House will be grateful to my noble friend Lord Elton for having given your Lordships the opportunity to discuss this subject, which is important and highly topical. There seems to be a strong measure of agreement on the right course to follow in respect of it.
Lord Ackner: My Lords, before the noble Earl sits down, can he confirm, as regards his comments on the proposition that there were many inconsistent sentences, that a Home Office research study was carried out in 1988 on Crown Court sentencing? It showed that there was already a considerable measure of consistency of approach in sentencing by Crown Court judges.
Earl Ferrers: My Lords, the noble and learned Lord is quite right. I was not seeking to say that there was a discrepancy in sentencing; the facts have been put forward by other people.
7.42 p.m.
Lord Elton: My Lords, one of the more important functions of your Lordships' House is occasionally to take the opportunity to give an authoritative opinion on important matters of national policy. This debate has attracted six Home Office Ministers, present or past, including a former Home Secretary, a former Home Office Permanent Secretary, three sitting coroners, one Law Lord and a former High Court judge. I apologise, my Lords, I should have said three sitting recorders—not coroners. If this is the first time during the debate that I have demonstrated that I am a layman, I am satisfied with my performance. I meant recorders. I have listed only a few of the eminent people, not to mention the justices of the peace. It shows that your Lordships' House has a reservoir of authority that can be usefully tapped. This afternoon has been helpful in that sense.
I am grateful to all of your Lordships who have taken part in the debate, not least the noble Lord, Lord Donaldson, and the noble Baroness, Lady Seear, for reminding me of my extraordinary teach-in at Grendon when I sat in on a seminar on rape. I learned a good deal that I would not otherwise have learnt. I am also grateful to the noble and learned Lord, Lord Ackner. In the opening round of the on the whole accurate and damaging salvo on Mr. Hattersley he mentioned an encounter with the noble Baroness, Lady Ewart-Biggs, in the swimming-pool. That is something else that we have in common. I am perplexed to discover how frequently the noble Baroness disports herself in the swimming-pool. In gallantry I must say I shall never forget that she was the lady who trod water in order that I might not be last. One cannot be too grateful for such an act of feminine gallantry.
One of the pleasures of a Wednesday afternoon debate is that the mover does not have to reply. I shall have to read the debate with close attention. A great deal of constructive material and original thinking has been contributed which I should like to take on board before I form any judgment.
I was delighted to hear in the powerful reply by my noble friend the Minister an ample recognition of the important contribution of the voluntary sector to the avoidance of custody and to rehabilitation. I urge upon him the acceptance that the new initiative under the new legislation will not work without full involvement of the voluntary sector and the probation service.

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It remains only for me to add my voice to those on all side of the House in extending warm, affectionate congratulations to our new Leader, not only on his maiden speech—which I should be obliged to do by convention, even if it had been a bad speech, which it was not—but also on the terms in which he prefaced it. They showed that he had fully understood his role in the House, which means that in some senses we share him with noble Lords opposite. We do not grudge that. We hope that good will come of it.
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I am tempted not to withdraw my Motion because I have always wanted to see what would happen if one did not do so. However, as we are rather short of storage space at home at the moment, I beg leave to withdraw the Motion.
Motion for Papers, by leave, withdrawn.
House adjourned at fifteen minutes before eight o'clock.