Lords Sitting of 16 April 1991

Preamble
The House met at half-past two of the clock: The CHAIRMAN OF COMMITTEES on the Woolsack.
Prayers—Read by the Lord Bishop of Worcester.
Lord Annaly—Lord Annaly—Sat first in Parliament after the death of his father.

Tributes to the late Viscount De L'Isle
The Lord Privy Seal (Lord Waddington): My Lords, your Lordships will have been saddened to hear of the death over the Easter Recess of my noble and gallant friend Lord De L'Isle. Few Members of your Lordships' House have had so distinguished a career in so many spheres of public life as the noble and gallant Lord. Indeed, it would be hard to find many in the history of our country who could match his many talents and achievements. In him the blood of his famous ancestor, Sir Philip Sidney, ran true.
Lord De L'Isle first entered your Lordships' House in 1945, on the death of his father. At that time he had in fact been a Member of another place for a few months, having been elected to represent Chelsea in 1944. However, before that time, he had performed signal acts of bravery at the Anzio landings for which he was awarded the Victoria Cross. He served in the government of Sir Winston Churchill as Secretary of State for Air from 1951 to 1955. Then, in 1961, he became Governor General of Australia, a post which he held for four years. Thereafter, he pursued a distinguished career in both business and public life.
I know that all Members of the House will wish to join me in sending the sympathy of the House to Lady De L'Isle and his family.
Lord Cledwyn of Penrhos: My Lords, in his worthy tribute to Lord De L'Isle, the noble Lord the Leader of the House described the various aspects of Lord De L'Isle's long and distinguished career. He was a popular parliamentarian. Further, although his tenure in the House of Commons was short, as the noble Lord said, after he entered this Chamber he served in the Ministry of Pensions and later as Secretary of State for Air for a period of four years. In the latter office, as one would expect, he showed imagination and enterprise. Five years later he returned to public life as Governor General of Australia—the last Briton to hold that post. We are told that it is not easy for the British to achieve great popularity in Australia. But Lord De L'Isle became one of the most respected and well-liked governor generals in the history of that country. Australians will mourn his passing as we do.
However, it was the courage of Lord De L'Isle which became legendary. We know that he inherited and was proud of the long and historic tradition of service exemplified in his ancestor, Sir Philip Sidney. I am glad to be able to say that I found Lord De L'Isle to be a most friendly and modest man whom it was a privilege to know.
Lord Jenkins of Hillhead: My Lords, I am glad to be able to associate myself and my noble friends with the tributes which have been paid to a man who, to an exceptional degree, combined personal courage and high service to the state. Only he and Lord Roberts, as some of the obituaries reminded us, could write VC before their KG. He added an engaging geniality to those other qualities. I recollect him displaying that to the full at the dinner of the Other Club last May when he was judged to be the most appropriate person to preside over the special dinner to celcbrate the 50th anniversary of the formation of the great Churchill coalition government. We salute his record from Anzio onwards; we acknowledge our own loss; and we send our sympathy to his family.
Baroness Hylton-Foster: My Lords. I am sure that all Members sitting on the Cross-Benches will want to support the tributes which have already been paid to Lord De L'Isle. He was an exceptionally gallant soldier who, after the war and after criticism that he was not an Australian, was appointed governor general to that country in 1961. When he retired from that post, everyone would have welcomed his extension of appointment. He was also a kind, charming and thoughtful man. I have reason to be grateful to him because on a cold winter evening I was walking from St. Stephen's to the Underground when he caught me up. He insisted that I should not walk alone and escorted me the whole way to the Underground.
I am in order in saying that the field marshals who sit on these Benches would also like to he associated with the tributes and are only sorry that they could not be here today to pay them themselves.
The Lord Bishop of Worcester: My Lords, I wish from these Benches to be associated with the tributes. As a former Bishop of Tonbridge in the diocese of Rochester, I took enormous pleasure in having Penshurst Place within my area. Therefore, from personal experience of those days I can speak of the service which Lord De L 'Isle and Dudley gave to the County of Kent and to the diocese of Rochester in which he was patron of the living of Penshurst. Formidable as he was on the beaches of Anzio, he was also formidable in the diocese. We knew him to be a faithful and true Churchman. I join in the tributes to his service to the county and to the Church and also in the conveying of sympathy to his widow and family.

The Gulf War: Cease-fire Arrangements
2.44 p.m.
Lord Campbell of Croy Lord Campbell of Croy asked Her Majesty's Government:
What arrangements for a permanent cease-fire after the war in the Gulf have now been made.
The Minister of State, Foreign and Commonwealth Office (The Earl of Caithness): My Lords, a permanent cease-fire is now in place following the formal and irrevocable acceptance by Iraq of the terms of UNSCR 687.
Lord Campbell of Croy: My Lords, I thank my noble friend for his Answer. Under these arrangements, will Iraqi military helicopters still be allowed to fly? Will it be possible for the United Nations observer force, consisting of only 1,400, to be reinforced speedily, should the situation seriously deteriorate?
The Earl of Caithness: My Lords, the use of helicopters was not proscribed under the cease-fire arrangements. Coalition action against them would not be in accordance with the cease-fire agreement. However, the US authorities have informed the Iraqis that the US and other coalition members will be in operation in the north of Iraq to supply humanitarian assistance to refugees. They have told the Iraqis that military action against the relief effort will not be tolerated. My noble friend is right to refer to support for the observer force of 1,440 people. I can confirm that support will be made available if necessary.
Lord Mayhew: My Lords, can the noble Earl tell us what proportion of the American and British ground forces has left the area and when the last of these forces will leave? Will he also say with regard to the frontier area how many of the United Nations peacekeeping force will be armed?
The Earl of Caithness: My Lords, I do not know the exact deployment of British and American troops and I certainly cannot speak for the Americans. However, it was agreed that we would remove our combat troops as quickly as possible. Of the officer observer force, we contribute 20 personnel.
Lord Tordoff: My Lords, can the noble Earl answer the latter part of the question? How many will be armed?
The Earl of Caithness: My Lords, I do not know exactly how many will be armed, but the observer force is likely to be backed by a UN infantry force.
Lord Hatch of Lusby: My Lords, yesterday the noble Earl told me that he did not have the text of Resolution 687 and therefore could not answer my question regarding helicopters. Perhaps I may put it again to him, now that he has seen the text. If the use of helicopter gun ships is not prohibited within the text of Resolution 687, can he say why it is not prohibited and whether, in the light of the circumstances which we have seen over the past two weeks, the British Government will go to the United Nations and attempt to persuade the Security Council that that prohibition should fall within the terms of the peace settlement?
The Earl of Caithness: My Lords, the reason the helicopters were not included in the prohibition part of the cease-fire agreement was that the United Nations desired that they should not be. I am sure that the noble Lord would be one of the first to complain had there been a prohibition against helicopter flights, many of which were used for mercy missions.
Lord Cledwyn of Penrhos: My Lords, on the cease-fire conditions, can the noble Earl say whether a timetable for the destruction of chemical and biological weapons and ballistic missiles has been
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agreed? Can he also say whether talks on these between United Nations officials and the regime in Baghdad have taken place or are taking place?
The Earl of Caithness: My Lords, a timetable has not yet been agreed. We actively support the UN secretariat's establishment of a special commission to conduct this process. We have offered expert personnel and support facilities to the UN.
Lord Hylton: My Lords, are the Government content that satisfactory arrangements have been or will be made to protect those Iraqi civilians and army deserters who have taken refuge with the United States forces in south Iraq?
The Earl of Caithness: My Lords, I answered that point yesterday when we discussed that matter in detail. Today's Question concerns the cease-fire arrangements specifically.
Lord Campbell of Croy: My Lords, is the United Nations force to consist of individuals as distinct from army units from different countries? Will my noble friend convey to the British officers who have already been appointed good wishes for their mission, led as they are by Colonel Grant-Peterkin of the Queen's Own Highlanders?
The Earl of Caithness: My Lords, I shall certainly pass on the good wishes of the noble Lord. It is good to see that the Scots are back in action. The observer unit of 1,440 will consist of personnel from all ranks and from a number of countries.
Lord Mackie of Benshie: My Lords, one can understand why helicopters are allowed to be used for transport and communication. However, it is nearly impossible to conceive why, after the Allies' experience of the use of helicopter gunships, the Iraqis have been allowed to use those gunships when they are not permitted to use fixed wing aircraft. Will the Minister explain why that is the case?
The Earl of Caithness: My Lords, those were the terms of the cease-fire agreement under Resolution 687 agreed in the United Nations.
Lord Mayhew: My Lords, will the Minister give the House a little more detail on the United Nations peacekeeping force? He may write to me if he does not have the figures with him. When will the force arrive? How big is it? What proportion of it is armed? Those are very important issues arising out of the cease-fire agreement.
The Earl of Caithness: My Lords, I have already told the House that the observer unit will be 1,440 strong. I cannot say how many members of the unit will be armed, but I shall find that out and write to the noble Lord. I shall place a copy of the letter in the Library.
Lord Orr-Ewing: My Lords, when my noble friend says that our troops will be brought out of the area as soon as possible, is he using the parliamentary interpretation of that phrase, which may mean that they will be brought out at any time in the months

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ahead? There seems to be no hurry to rush the troops back when there is so much disorder and disquiet at present in that part of the world.
The Earl of Caithness: My Lords, there is a commitment to bring the combat troops back as soon as possible, especially the military personnel.
Lord Chalfont: My Lords, I hope I may again ask the question which has been asked several times without receiving a satisfactory answer. I shall put the question in another way. If the cease-fire resolution does not prevent the use of helicopter gunships against Iraqi citizens, why did Her Majesty's Government vote for that resolution?
The Earl of Caithness: My Lords, the important issue was that we obtained an appropriate cease-fire agreement which the UN could accept. That is why we took part in the negotiations.

Snowdonia National Park: Road Development
2.52 p.m.
Lord Hunt Lord Hunt asked Her Majesty's Government:
Whether their plans to upgrade the A.5 to trunk road standards where it passes through the Snowdonia National Park are consistent with their policy in regard to road development in national parks.
Lord Reay: Yes, my Lords. Plans for upgrading the A.5 follow the policy set out in the Welsh Office circular 182/77 and in the White Paper Roads in Wales Progress and Plans for the 1990's.
Lord Hunt: My Lords, I thank the Minister for that reply, although I cannot claim to find it satisfactory. Is he aware that the plans in question would inflict major and permanent damage in the Snowdonia National Park, in a most magnificent area of the Welsh mountains? Is he further aware that one of the consequences of the bypass will be felt for the whole 20 miles of the A.5 that passes through the national park in terms of the volume, the speed and the noise of heavy traffic? The bypass will conflict completely with one of the express purposes of a national park, which is to permit its quiet enjoyment by members of the public.
Lord Reay: My Lords, at the outset I should point out that this is not a large scheme. It entails a stretch of road 1.4 miles long. It is only a three-lane road over one-third of its total length, contrary to impressions that some people may have. That section of the A.5 has a personal injury accident rate up to seven times higher than the national average for a single carriageway road. Unless measures are taken to improve that section of the road the accidents are likely to continue.
Lord Morris of Castle Morris: My Lords, is the Minister aware that the upgrading of the A.55, the north coast road, was intended to relieve the A.5 of through traffic? Would it not therefore be much more
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logical to delay work on the A.5 until the A.55, into which millions of pounds have been put, is complete, because if the one is successful the other is unnecessary?
Lord Reay: My Lords, although it is of secondary importance to the A.55, the A.5 is and will continue to be an important route across the mainland of North Wales for tourist and commercial traffic from the Midlands and southern England using the shipping link to Ireland at Holyhead. Heavy commercial vehicles will also continue to need to use the A.5 to deliver goods within the Snowdonia National Park.
Lord Cledwyn of Penrhos: My Lords, although I appreciate the points the Minister has courageously made, is he aware that the upgrading of a trunk road in Snowdonia is against government policy as set out in the Sandford Report and the White Paper to which the Minister referred? In view of the feelings which are held within many organisations about: this proposal, will the Minister confirm that there will be a public inquiry before a final conclusion is reached?
Lord Reay: My Lords, three routes have been the subject of a landscape advisory committee inspection. The report made by the landscape advisory committee stated that both the northern and the valley routes could not be made acceptable in landscape terms and recommended that they should be abandoned. The report also stated that if an improvement to the A.5 at Padog had to be carried out, the southern route —that is the preferred route—slightly modified, offered the least environmentally damaging solution.
Lord Cledwyn of Penrhos: My Lords, that is an interesting reply, but it does not deal with the point I made about a public inquiry. In view of the importance of this project, does not the Minister feel that a public inquiry is absolutely essential so that the different organisations and parties interested in the matter are given an opportunity to give evidence?
Lord Reay: My Lords, following the recommendations of the landscape advisory committee, a variation of the southern route was the subject of a public consultation exercise in November. Prior to public consultation, discussions took place with the various authorities, including the county and district councils and the national parks authority. The situation now is that the department's consultants are evaluating the comments which were received during the public consultation, including all the points which were raised in letters to the department. When that report has been received and has been considered, a submission will be made to the Secretary of State and it will be up to him to decide whether to announce this as his preferred scheme.
Lord Prys-Davies: My Lords, I understand that the scheme will cost about £5.6 million. Will the Minister tell the House what part of the £5.6 million will be spent on minimising the impact of this project on the environment?
Lord Reay: My Lords, I am afraid I cannot answer that question. I shall look into the matter and write to the noble Lord.
Lord Moran: My Lords, the Welsh Secretary said on 26th March that,
"The protection and improvement of our environmental heritage is a top priority with the Welsh Office".
He added that the proposals in the White Paper were only a beginning and,
"were the spur for us to drive on with existing measures".
How do the Government reconcile that statement with the action of the Welsh Office in this case which appears to be flatly contrary to paragraph 7.37 of the Government's White Paper? Would it not be a good plan for the Secretary of State for the Environment to invite the Welsh Office to read again the White Paper and the recently published and excellent report of the National Parks Review Panel under the chairmanship of Professor Ron Edwards, specifically the sections on traffic and transport and national development pressures which are relevant to this matter?
Lord Reay: My Lords, policy follows the guidance which was given in the Welsh Office circular 182/77, as I have already said. Among other things the guidance requires full consultation with the national parks authorities and, subject to the reasonable needs of road safety and statutory obligations, requires environmental quality to be the prime criteria in planning road improvements. It also invites a determined search for alternatives which do not involve upgrading the existing route or new construction where there is a compelling need to resolve traffic problems in national parks. That guidance has been followed in this case.
Lord Hunt: My Lords, in his reply to my supplementary question the Minister referred only to the 2.2 kilometres double carriageway bypass alongside the Padog bends. Will he bear in mind the other point that I made, namely the effect of the whole length of the A.5 as it runs through the national park —for some 20 miles or so—in terms of the increased speed, volume and noise of the traffic, which conflicts with one of the basic purposes of the national parks?
Lord Reay: My Lords, I am happy to take that point on board. However, I pointed out that this is not a very grandiose scheme.
Baroness White: My Lords, it may not be a very grandiose scheme, but does not the noble Lord's Answer show complete lack of sensitivity to the feelings of those in most parts of Wales about this development? Will he ensure that the investigation into the scheme—which, as the noble Lord, Lord Hunt, indicated, is not just a matter of a couple of kilometres but of the entire route—considers the route as a whole as was done for the A.470? This road is to go from Betws-y-coed to Pentrevoelas. Almost every metre of the A.470 road from Betws-y-coed to Blaenau-Ffestiniog was very carefully studied to make sure that the improvements to the safety of that road were carried out with concern and sensitivity for the totality of the route and for its surroundings. Is the
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Minister not aware that the attitude exemplified in his replies gives us no confidence that the Welsh Office is taking the matter as seriously as it should?
Lord Reay: My Lords, I am sorry that the noble Baroness feels that I or the department are unsympathetic. I am not at all unsympathetic. I realise that it is an important matter and that people are anxious about what might happen. I merely pointed to some of the other considerations which have to be borne in mind. I should add that if the scheme is proceeded with there will be a further opportunity for objections to be considered by an independent inspector at a public inquiry following publication of the draft statutory orders.

Army Tanks: Re-equipment
3.2 p.m.
Lord Dean of Beswick Lord Dean of Beswick asked Her Majesty's Government:
When they expect to announce the successor to the present generation of tanks used in the British Army.
Lord Reay: My Lords, I hope that a decision on the equipment for the future main battle tank fleet will not be delayed too long.
Lord Dean of Beswick: My Lords, that is the answer that has been given for some time. Did the Minister see the report in The Times business supplement at the weekend which indicated that the final bids for the successor tank were to be in by Thursday last? Therefore should the answer not be forthcoming quickly? In its evaluation of the tank, will the Government place high among their priorities continuity of supply from our own people, bearing in mind the disappointment that was felt with the Belgian reaction when we tried to buy ammunition to supply our troops in the Gulf war? Is it not safer to have our own supplier rather than a foreign supplier when governments and policies can change overnight?
Lord Reay: My Lords, I saw the press report to which the noble Lord referred, but it is premature to suggest that any decision has yet been taken. No decision has yet been taken.
Lord Mayhew: My Lords, is it a fact that the Government gave a grant to Vickers in 1988 to develop a new version of the Challenger on the understanding that a decision as to whether orders would be placed would be taken in September last? If Vickers continues to maintain its large and expensive development group, is there not a reasonable case for giving the company another modest grant until the decision is made?
Lord Reay: My Lords, I cannot accept that there has been any undue delay. We must take the time necessary to analyse thoroughly the lessons that are to be learnt from the Gulf conflict.
Lord Glenarthur: My Lords, while accepting that the British tank industry must compete in terms of both performance and cost, perhaps I may ask this

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question. Does my noble friend agree that the history of tank building in this country has been second to none? Does he also agree that in terms of performance what we have seen recently in the Gulf war has demonstrated clearly that when properly maintained and resupplied, British tanks can out-perform many others?
Lord Reay: My Lords, I agree with my noble friend. The Challenger I tank clearly performed very well in the Gulf. The support operations provided by the manufacturer to the benefit of our forces in the Gulf were very impressive.
Lord Dormand of Easington: My Lords, in considering this matter, is there not the strongest possible case for the Vickers Challenger II for at least two reasons in addition to what has already been said? First, Challenger II proved itself without qualification in the Gulf war. Secondly, the expertise, the continuity and the dedication of the Tyneside workforce will guarantee the continued superb performance of Challenger II.
Lord Reay: My Lords, I think that the noble Lord meant to say that it was Challenger I which performed well in the Gulf. I agree with that.
Lord Gisborough: My Lords, to what extent has the concept of the tank become out-dated by the anti-tank weaponry which was demonstrated so well in the Gulf war?
Lord Reay: My Lords, my noble friend has raised an interesting matter which goes rather wide of the Question before us.
Lord Richard: My Lords, can the Minister help us just a little more? Does he not agree that it is high time that a decision was made on this battle tank? Can he tell us how long "not too long" is likely to be? Thirdly, does he not agree that there is, or ought to be, a presumption that in a sphere of equipment for the British Army as fundamental as the new battle tank, a British contender should be chosen unless there are very strong reasons to the contrary?
Lord Reay: My Lords, I cannot agree about the delay. This is a decision of very considerable magnitude and we do not believe that we should rush into it. We believe that a sound decision can only be taken after we have had time to assess the lessons which are to be learnt from the Gulf conflict.
Lord Elton: My Lords, does my noble friend accept that many agree with him that time must be taken to absorb recent lessons carefully? Does he also agree that, not least, it is very unwise for those who specify the armaments required to assume that they know in what climate or terrain those armaments will next be required to operate?
Lord Reay: My Lords, my noble friend has made a most pertinent point.
Lord Richard: My Lords, I am sorry to ask the Minister a second question, but he did not answer the second point that I put to him. Does he agree that there is, or ought to be, a presumption that in a matter
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as fundamental as a new battle tank for the British Army, unless there are very strong reasons to the contrary, it should be British?
Lord Reay: My Lords, as I said, these are matters which are under consideration but no decision has yet been taken.
Lord Dean of Beswick: My Lords, is the Minister not aware that if the order for the tank is not given to the British company and the British workforce, tank production in this country may cease for all time? Is that not an appalling risk to take for 'the future?
Lord Reay: My Lords, all considerations, including that one, will be taken into account.

The Gulf: War Crimes
3.8 p.m.
Lord Molloy Lord Molloy asked Her Majesty's Government:
What steps they propose to take under international law or the United Nations convention naming genocide as an international crime, or the declaration of human rights within UN Resolution 678, to insist on the surrender of Saddam Hussein and his immediate associates to be tried for crimes against international law by a specially established military tribunal.
The Earl of Caithness: My Lords, European Community Foreign Ministers agreed on 15th April that the Twelve should work for Saddam Hussein to be held to account and that the EC Presidency would ask the UN Secretary-General for ideas on how that could be achieved.
Lord Molloy: My Lords, I am grateful to the Minister for that reply. Am I therefore to understand that the quintessential reply to my Question is, yes? Am I also to understand that Saddam Hussein, who indulged in genocide before the Gulf war, during the Gulf war and after the Gulf war, will be tried by a tribunal so that he will not get away with taking those tens of thousands of lives? Does the Minister agree that his arrest will mean that in future anyone who endeavours to inflict genocide in any part of the world will have to face the same tribunal at the world's highest court, the United Nations?
The Earl of Caithness: My Lords, the position was spelt out clearly in Security Council Resolution 674. Under international law individual Iraqis bear personal responsibility for any offence that they may have committed. The noble Lord read a little too much into my reply. The EC Presidency will ask the UN Secretary-General for ideas as to how that can be taken forward.
Lord Molloy: My Lords, perhaps I may ask the noble Earl to bear in mind the feelings of our people. I have been in touch with representatives and leaders of the Kurds in the past fortnight. They are grateful to our Prime Minister and the Leader of Her Majesty's Opposition for their endeavours. Does the Minister agree that all those who have suffered so abominably under Saddam Hussein will not be satisfied unless the

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perpetrator of those evil deeds is brought to justice as quickly as possible so that he cannot continue with his evil endeavours?
The Earl of Caithness: My Lords, I certainly confirm that we would shed no tears at all to see the end of Saddam Hussein.
Lord Cledwyn of Penrhos: My Lords, perhaps the noble Earl will clarify one small point. Is it the case, as I understood him to say, that if the EC Foreign Ministers' meeting concluded that proceedings should be instituted against Saddam Hussein, the matter would be transferred to the United Nations, which would decide what further steps could be taken?
The Earl of Caithness: My Lords, the noble Lord the Leader of the Opposition is absolutely right. The Twelve agreed that Saddam Hussein should be held to account and the EC Presidency is today taking up the matter with the UN Secretary General.
Lord Monson: My Lords, much as one sympathises with the point made by the noble Lord, Lord Molloy, does the noble Earl agree that to bring Saddam Hussein to trial would require the deployment of hundreds of thousands of ground forces, which in practical terms means the Americans, and that, unless we can persuade President Bush of the rightness and prudence of such a course, one is wasting one's breath?
The Earl of Caithness: My Lords, the noble Lord makes a valid point, if there is to be a trial and if Saddam Hussein is to be taken out of the country. However, trials of that kind are best done within national boundaries.
The Earl of Halsbury: My Lords, cannot all this be expressed more economically in the old adage, first catch your hare?
The Earl of Caithness: My Lords, that will certainly be a relevant issue.

Representation of the People Bill
3.12 p.m.
The Earl of Strathmore and Kinghorne: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved, That the order of commitment be discharged.—(The Earl of Strathmore and Kinghorne.)
On Question, Motion agreed to.

Criminal Justice Bill
The Minister of State, Home Office (Earl Ferrers):My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Earl Ferrers.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 3 [Procedural requirements for custodial sentences]:
[Amendment No. 18 had been withdrawn from the Marshalled List.]
Earl Ferrers Earl Ferrers moved Amendment No. 19:
Page 3, line 34, after ("sentence") insert ("which is passed in a case to which subsection (1) above applies").
The noble Earl said: In moving this amendment I wish to speak also to Amendments Nos. 20, 21, 44 and 75.
Amendments Nos. 19, 20 and 21 are essentially minor drafting amendments to clarify the Bill's provisions concerning the requirement to consider a pre-sentence report before imposing a custodial sentence under Clause 1. Amendments Nos. 19 and 20 simply make clear that the provisions in Clause 3(4) which deal with any failure of the court to obtain a pre-sentence report apply only to cases where, by virtue of Clause 3(1), a pre-sentence report is in fact required. Amendment No. 21 clarifies the purpose of the pre-sentence report. The amendment expands the definition of a pre-sentence report so as to make clear that its purpose is to assist the court in determining the most suitable method of dealing with an offender.
The amendment also ensures that the definition of a pre-sentence report in Clause 3 applies throughout Part I of the Bill generally. There is therefore no need to duplicate the provision in Clause 6 as the Bill's provisions currently do and Amendment No. 44 seeks to delete it. Amendment No. 75 is consequential. I beg to move.
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 20:
Page 3, line 35, leave out ("subsection (1) (a) above") and insert ("that subsection").
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 21:
Page 3, leave out lines 40 to 46 and insert:
("(5) In this Part "pre-sentence report" means a report in writing which—

(a) with a view to assisting the court in determining the most suitable method of dealing with an offender, is made or submitted by a probation officer or by a social worker of a local authority social services department; and

(b) contains information as to such matters, presented in such manner, as may be prescribed by rules made by the Secretary of State.").

[Amendment No. 22, as an amendment to Amendment No. 21, not moved.]
On Question, amendment agreed to.
Clause 3, as amended, agreed to.
[Amendments Nos. 23 and 24 not moved.]
Lord Richard Lord Richard moved Amendment No. 25:
After Clause 3, insert the following new clause:
("Criteria for passing custodial sentence on mentally disordered offender
.—(1) Subject to subsection (7) below, this section applies where a person is convicted of an offence and the court is told

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in good faith or has reason to suspect that the offender is suffering from a mental disorder within the meaning of section 1(2) of the Mental Health Act 1983.
(2) The court shall not pass a custodial sentence on the offender unless it is of the opinion that—

(a) the offender's mental condition and his need, if any, for treatment will not be seriously and adversely affected by such a sentence; and

(b) that all reasonable and practicable steps have been taken to investigate and secure for the offender such treatment, if any, as may be appropriate for his mental disorder.

(3) Where a court passes a custodial sentence, it shall be its duty—

(a) to state in open court that it is of the opinion that both of paragraphs (a) and (b) of subsection (2) above apply and why it is of that opinion; and

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

(4) A magistrate's court shall cause the opinion stated by it under subsection (3) above to be specified in the warrant of commitment and to be entered in the register.
(5) For the purpose of determining whether it is of such an opinion as is mentioned in subsection (2) above, a court shall obtain and consider a medical opinion on the offender's mental condition and the likely effect upon this of a custodial sentence.
(6) In this section "medical opinion" means an oral or written report which—

(a) contains information as to such matters as may be prescribed by the Secretary of State; and

(b) is made or submitted by a registered medical practitioner approved for the purposes of section 12(2) of the Mental Health Act 1983.

(7) This section does not apply where the sentence for the offence is fixed by law.").
The noble Lord said: I understand that the noble Lord, Lord Harris of Greenwich, cannot be here in the early part of the afternoon and that, as the amendment stands in my name as well as his, it is in order for me to move it.
In moving Amendment No. 25 I shall speak also to Amendments Nos. 26 and 46. The object of the amendments and the purpose of the clause is to aid the Government's clearly stated policy—stated indeed on many occasions—of trying to divert from what everyone agrees would be an inappropriate penal custody those people with a mental disorder who should be provided with treatment and care by the health and social services rather than receiving punishment in prison. Its purpose is to send a clear signal to sentencing courts of the unsuitability of prison for an offender whose predominant needs are for specialised treatment. It will reinforce the advice given in the recent Home Office Circular 66/90 and require of a sentencing court a careful and public consideration of the impact of prison custody on the mental condition of an offender who may be especially vulnerable. Sentencing courts which are contemplating the imposition of a custodial sentence will be obliged to obtain and consider a psychiatric opinion on the defendant's mental condition. What is different is that that psychiatric opinion must concern itself with the likely effect of a custodial sentence on the mental condition of the offender.
The first question that one should ask oneself in considering the amendments is whether there is a problem. As I understand it, based on interviews with probation officers seconded to work in prison
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establishments, the National Association of Probation Officers estimates that between 400 and 800 prisoners are mentally disordered within the meaning of the Mental Health Act 1983. The Committee will know that the definition of mental disorder within the meaning of that Act is pretty tight.
All those prisoners need transfer to specialist care. In addition, it is estimated that up to 25 per cent. of the entire prison population exhibit disturbed behaviour or are chronically addicted to drugs or alcohol. The overwhelming majority of those prisoners should not be in gaol. They do not benefit from their experience. It does them no good. It does society little good. A study by the West Yorkshire Probation Service in 1990 revealed that 23 per cent. of the divisional caseload were experiencing a mental health problem, but that only one in 10 were receiving even general psychiatric support. Of those 23 per cent., 98 per cent. of the males and 94 per cent. of the females had previous convictions. If one analyses the offences for which they have been convicted, it is interesting to note that 51 per cent. were for theft, 20 per cent. for violence, 11 per cent. for sexual offences, 9 per cent. for driving offences and 4 per cent. for drugs offences. The overwhelming majority of the group were aged between 16 and 40.
I think it is true to say that probation officers throughout the country describe a significant increase in the number of offenders who experience personality disorders and an increase in bizarre behaviour and report no pattern to the behaviour with which probation officers now have to deal. Offending by those clients of the probation service was described as unpredictable so that the traditional methods that the probation services use of confronting offending behaviour were in themselves difficult to use.
From time to time one reads histories of individuals who have been caught up in the system. I have a number of cases. I do not propose to read all of them. However, I should like to refer to one case which indicates the scope of the problem. An 18 year-old youth with four previous convictions for indecent exposure had experienced a sentence of imprisonment in a young offenders' institution. Shortly after the expiry of his licence period he committed a further offence. He was referred to a local psychiatric hospital for assessment. The magistrates' court remanded him in custody for the assessment to take place. The consultant psychiatrist who provided the report stated:
"He suffers from a personality disorder characterised by poor social skills, incapacity and emotional immaturity … a custodial sentence may protect society from him, but would certainly not be conducive to his maturation and to inculcating normal social behaviour in him. I think a placement such as [a hospital] would be suitable for him".
At the hearing the Crown Prosecution Service decided that the case should be committed to the Crown Court. The same report was submitted to the judge at the Crown Court. The judge sentenced him to 26 months in a young offenders' institution, stating that a secure hospital place was just not available. It is against that sort of background that the amendments are being moved.
The new clause would have application wherever a court had to sentence a defendant for an imprisonable offence and the court was contemplating the passing of a custodial sentence. Clearly it would not apply to those cases where the sentence for the offence is fixed by law, for example murder—at least, that is true until next Thursday.
The structure of the new clause is modelled on Clauses 1 and 2 of the Bill. Its intention is to require a sentencing court actively to investigate the question of whether or not the defendant suffers from a mental disorder within the meaning of the Mental Health Act 1983 and, if so, whether the imposition of a custodial sentence will "seriously and adversely affect" the defendant's mental condition. Under the clause the court would be required to obtain a psychiatric opinion on that question and if, after investigation and consideration of such an opinion, the court decided to pass a custodial sentence, it must state in open court its satisfaction that prison would not be inappropriate bearing in mind the defendant's mental condition. Further, it must then explain to the defendant its reason for imposing a custodial sentence. Those are the very means already adopted by the Bill in Clauses 1 and 2 to influence the sentencing practice of courts.
Subsection (1) describes the circumstances when the clause will come into operation. It means that where the court reasonably suspects or has knowledge that the defendant is mentally disordered it will not be able to sentence that person to custody unless it complies with the requirements of the clause.
Subsection (2) provides the hurdle which the court must overcome if it is lawfully to send into custody a person to whom the clause applies. For the court to do that it must form an opinion on the mental condition of the offender and his need for treatment. Having done so, it has to decide that the imposition of a custodial sentence will not cause those matters to be "seriously and adversely affected" and that all reasonable and practicable steps have been taken to investigate and arrange a non-custodial—treatment —option where this is indeed appropriate.
Currently courts are not obliged to express such an opinion; frequently they send into custody persons whose mental condition will be affected by prison regimes, unrelieved, perhaps I may say, by the inadequate treatment they will receive from the prison medical service; and also courts do not sufficiently investigate non-penal treatment options where these may be of benefit to the defendant and to society at large.
Subsections (5) and (6) simply require the court to obtain and consider a medical opinion to assist it in forming its opinion. When this issue was raised at Report stage in the House of Commons and a new clause almost exactly like this one was tabled, it was rejected by the Government. Two arguments were put by Mr. John Patten on behalf of the Government in another place. On 20th February he said that there were not enough psychiatrists able to do the work involved:
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"Not enough of them have been trained to do this difficult job. The Royal College is tackling that problem now".
The second argument was that imposing this duty upon the courts would mean that defendants would be unnecessarily remanded into custody so that reports could be prepared, which he said would destroy the whole object of the clause.
To the first of those objections, it has to be said that all Section 12 approved doctors are frequently required to carry out rapid assessments, often in police stations, for the purposes of deciding whether a person should be admitted to hospital for treatment under a power in Part II of the Mental Health Act. Further, these same psychiatrists have to visit defendants in prison for the purpose of deciding on court recommendations. It is entirely wrong for the Government to argue that resources are not available for the assessments to be made. What is required is the better organisation of those resources, and that could be achieved by making it a condition of approval by regional health authorities under Section 12 that the doctor assisted with the reports required by this clause.
As to the second objection, there may well be reasons to examine the Bail Act and the power of the magistrates' court to remand into custody a person for a medical opinion. If the clause became law but its implementation was delayed until such time as the resources and necessary arrangements were in place, some of the difficulties envisaged could be avoided. It seems to me that the provision to each remand court of a duty psychiatric rota scheme would prove crucial in preventing unnecessary remands into custody for reports.
I turn now to the second part of the amendments, relating to the Mental Health Act 1983. That Act already provides some mechanisms to aid the policy of diversion from custody of the mentally disordered defendant or offender. Home Office Circular 66/90 emphasises that courts should be willing to use the powers given under that Act more frequently. However, it is generally recognised in relation to certain sections that changes would be of benefit so as to encourage greater use of the power and positively to improve the chances of mentally disordered offenders receiving the health care which they may need. The proposed amendments would achieve those objectives.
Perhaps I may say a word or two about guardianship under Section 37 of the Mental Health Act. That power is very rarely used, often because social services authorities are reluctant to agree to it. We think the inclusion of a power for a court to seek information about guardianship from the authority responsible may encourage its greater use as an appropriate non-custodial outcome.
Finally, paragraph 4 of the new schedule would have the effect of altering the criteria for the exercise by the Home Secretary of his power to arrange the transfer by warrant of a remand prisoner or civil prisoner to a psychiatric hospital for medical treatment. Currently the law allows this only where the prisoner is in urgent need of treatment. The amendment would remove from the criteria the word

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"urgent". It would mean the power could be employed to arrange for the removal of any prisoner needing treatment which the prison medical service cannot provide.
Although in a recent letter to voluntary organisations (of 13th November 1990) the Home Office claimed that use of the section had increased to 100 times in 1989 and it was not felt to be too restrictive, it is noteworthy that the same letter acknowledged that efforts had been made in the largest prison medical wing—Brixton—to encourage its greater use with absolutely no success at all. In 1989 a consultant psychiatrist was retained to visit Brixton one day per week expressly to seek Section 48 transfers for prisoners who were severely mentally ill. Not one Section 48 transfer was arranged during the six months for which that consultant, Dr. MacKeith, was retained. Although the availability of facilities and the attitudes of doctors may have contributed to that, the limited criteria cannot have assisted.
This is a difficult and sad area. Time and again one reads of instances of people with mental disorders of one form or another being caught up in the criminal justice system and, frankly, treated in ways difficult to justify on any set of civilised criteria. Perhaps I may give just one example. It is that of Mr. Billet, who is 60 years old and has had a long history of severe mental illness. A friend of Mr. Billet wrote to the Home Secretary on 27th September 1990 complaining about the way in which this vulnerable man had been treated since his arrest and remand into prison custody. An extract from the letter reads:
"Taken to Brixton, [he] was not brought before a magistrate before, he thinks, another week. There he met with a solicitor for the first time. He was pronounced unfit to plead. Because of this his case was referred back to the Crown Court. Meanwhile [he] stayed in Brixton … He went back to court and was remanded again … and was taken to Albany Street Police Station for a few weeks … Here he began to deteriorate—refusing medication".
The correspondent continues:
"I spoke with police officers who were concerned about him and mystified about what he was doing there for a case of actual bodily harm"—
which was all that he was charged with.
"Finally on the 21st August [he] was found guilty and was put in the custody of a psychiatric hospital. The court was extremely concerned about the amount of time he had spent on remand. [He] was returned to Brixton Prison. But the order of the Crown Court"
—that he should go to a psychiatric hospital—
"was not carried out. He remained in prison for almost a further month—until … 19th September".
So for a period of six months for somebody in need of treatment—it was accepted that he was in need of treatment and the sort of treatment of which he was in need was known—the system could not cope. These amendments are designed to try to make our system work a little better in this respect. I beg to move.
3.30 p.m.
Lord Mottistone: This amendment is not dissimilar from Amendment No. 24, to which I spoke on the first day of the Committee stage. I shall not detain the Committee by repeating what I said before. However, there are one or two points which emerged from that
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debate which perhaps the Committee, and in particular the Government, might like to consider further in tackling this amendment.
I am puzzled by the statement of my noble friend the Minister which he made on 26th March. With one breath he said that my Amendment No. 24 would:
"make it extremely difficult, if not impossible, to pass a custodial sentence",
on a mentally disordered offender. With the next breath he said that the Government's amendment, Amendment No. 17, made it clear that courts:
"should not pass a custodial sentence if that would adversely affect an offender's mental condition and his treatment".— [Official Report, 26/3/91; col 1055.]
The latter statement of my noble friend is exactly what is said in subsection (2) (a) of Amendment No. 25, the amendment that we are considering, and in subsection (4) (a) of my Amendment No. 24. However, that is not spelled out in government Amendment No. 17, which merely asked the court to consider what might be the likely effects of a custodial sentence on a mentally disordered offender. That is what many do not like about Amendment No. 17 which I said at the time went some way toward meeting our wishes but did not go nearly far enough.
I agree with the noble Lord, Lord Morris of Castle Morris, who said (at col. 1056 of Hansard) that courts are not qualified to consider the likely effects and would need a professional psychiatric opinion to enable them to do so. Hence comes my support for subsections (5) and (6) of Amendment No. 25.
In Amendment No. 46 I particularly support paragraph 2. Short of directing hospitals to care for mentally disordered offenders as suggested in Amendment No. 23, put forward by my noble friend Lady Faithfull and which my noble friend the Minister said would be unworkable, arid I agree, this would at least bring before the court those responsible for the necessary provision in terms of beds or services to account for availability or otherwise. That would prod them into action or show up their inadequacies.
Having said that, I hope that the Minister is able to have a second thought about this amendment which, as the noble Lord, Lord Richard, said, was turned down in another place. If not and if the Minister seeks a compromise, I have in mind to table an amendment on Report to amend subsection (5) of the existing Clause 3 which defines pre-sentence reports to include specifically the offender's mental condition where appropriate and in that case require the report to be made by a registered medical practitioner approved under Section 12(2) of the Mental Health Act. That would meet the point of the noble Lord, Lord Morris of Castle Morris, and ensure that pre-sentence reports give due weight to psychiatric assessment where a mentally disordered offender is involved.
I throw that suggestion at my noble friend although, as he knows, I try to avoid doing so without warning. He might not wish to comment on it at this stage. Depending upon how the rest of the debate goes, I shall consider whether to make a proposal of that sort when we reach Report stage.
I am advised that any doctor approved under Section 12(2) would be competent to 'make such an assessment and that there is no shortage of such

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psychiatrists. In that connection a forensic psychiatric who has been consulted cannot understand the Government's insistence, which my noble friend the Minister repeated when we debated Amendment No. 17 at an earlier stage, that very few people are available to make psychiatric assessments to the courts. That forensic psychiatrist says that there is no such thing as a qualification in forensic psychiatry; people may go on courses to learn more about it, but that is all. To provide the information the court does not need such a requirement but it needs psychiatrists whose job description includes providing a service to the courts and a way of paying for it through Home Office funds.
Perhaps I could suggest to my noble friend that he needs to look into the advice that he has received to the effect that there are not enough psychiatrists to advise courts. That is a line which might well be pursued further. He might like to think about that matter now.
What is lacking is a mechanism for requiring some of the psychiatrists to perform that function as part of their duties and a Home Office willingness for them to do so. That would certainly be cheaper than the cost of inappropriate prison sentences. Also lacking is a determination on the part of the Department of Health to ensure that hospital beds are available for such mentally disordered people. They may have offended but very often they are the same people who were previously treated in the hospitals and who have committed an offence because of their mental condition. To regard them as lower in the patient's pecking order because they have offended is to misunderstand their problems. Often the offence results from lack of aftercare and, for example, may be theft from hunger.
It is ludicrous to suggest that hospital beds should not be made available through, as my noble friend the Minister said:
"anxiety that those who suffer from mental disease should not be kept incarcerated in certain buildings".—[Official Report, 26/3/91; col. 1065.)
The vast majority of mental hospital patients come and go as they please while the fate of the mentally disordered offender is too often literal incarceration in prison.
All the arguments for keeping most mentally disordered offenders out of gaol are well known. It is longstanding government policy to enable them to be cared for by the health or social services. Indeed, in another connection I received a letter from my noble friend Lady Hooper at the Department of Health repeating the fact that it is government policy that people who are mentally ill should not be put into prison but should go to hospital. It goes on to say that they are seeking to provide secure accommodation where necessary throughout the land. That has been the policy, as I am advised, for 15 to 20 years. It has been a very sensible policy. However, nobody is doing anything about it.
On the last occasion when we debated Amendment No. 17, the Minister told us that a joint committee —about which we know—of the Department of Health and the Home Office will report in July 1992.
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That is over a year away. There have been previous reports. The report will be published and consideration given as to what will be done about it. Then we shall find for one reason or another that action has slipped: there is not enough money to provide proper accommodation or for the hospitals; the regional health authorities have to make their own decisions and cannot be told what to do. Such arguments can go on indefinitely. We must have more positive action more quickly to deal with the problem which everyone recognises. The position is not only desperately unfair to the people involved but also involves much more expense than need be for the Government. That is an argument that I should have thought would cut some ice with them.
Lord Hutchinson of Lullington: I briefly support the amendment. One's experience as an advocate in the criminal courts over and again, as the noble Lord, Lord Mottistone, has said, is to come into court with a person who one knows perfectly well is mentally disordered because one has spent time with that person and the court is unable or unwilling to deal with that person other than by sending him to prison. That has gone on for years. The only possible solution to the problem to begin with must be to impose a statutory duty on the court to do various things in those circumstances.
At present, as everyone knows, it is a nuisance to have someone around in public who cannot be professionally certified under whatever section of the Mental Health Act may be invoked. Therefore courts simply, in hurried way, get on with their work and send those people to prison in order to get them out of the way. In prison they are again a nuisance. There is no provision for dealing with them. Again they are simply ignored. They serve their sentences and cause a great deal of disruption and trouble in the prisons.
Perhaps I may plead with the noble Earl that before the Bill leaves this Chamber a perfectly straightforward and simple procedure is laid down in the Bill for that situation. It is no good saying, "Oh, there aren't enough psychiatrists", or, "Oh, there are difficulties about hospitals", and so on. If someone is run over and injured, provision is made; and provision can be made for such people with a little political will. The matter is not as difficult as the authorities have made out over the years.
I urge on the Minister the first step which appears in the amendment: to lay a statutory duty on every court when this matter is brought to its attention to do one, two or three things from which it cannot escape. That is the start of the whole matter. If that duty is laid upon the court, then all the administrative matters and procedures will follow. Provision will be made. I implore the Minister not to let the Bill leave this Chamber without those perfectly straightforward, simple provisions being made.
3.45 p.m.
The Earl of Longford: I strongly support the amendment of my noble friend Lord Mottistone and the ideas propounded by him and by the noble Lord,

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Lord Hutchinson. However, one or two ideas ought to be in the minds of those in the Chamber before we reach the next stage.
In a sense my main thought is implicit in what the noble Lords, Lord Mottistone and Lord Hutchinson, said. It is all very well to say that one can make this or that provision in an Act of Parliament which states that people ought to be sent to this or that hospital, but the money has to be available. We are talking now of providing money to make that possible. Moving people from one institution to another may be slightly beneficial, but there must be much more financial provision. There is no way of getting away from that. I hope that at the next stage that factor will be taken note of.
My other thought may not be so much in the minds of everyone. The noble Lord, Lord Richard, told us that there might be between 400 and 800 people who could be transferred to other hospitals under the existing Act. One would have to ask in the first place how many want to go. It is assumed in this Chamber in these discussions that anyone who is mentally disturbed who should be transferred to a hospital actually would like to move. In my experience a lot of people do not wish to be moved. Many people would rather he in prison than in Broadmoor. One must state that plainly because I know people who have been in both. They have preferred prison because in Broadmoor one is treated as a child; and people would rather be regarded perhaps as an unpleasant adult in prison. People must bear in mind that thought when we discuss these matters.
If there are many thousands of people who require and would benefit from psychiatric treatment—as I believe there are and as the noble Lord, Lord Richard, said—they will not be sent to hospitals, whichever way one works it out. The long and the short of it is that one has to provide a far better psychiatric service in prisons than is now provided. Most of the people who can be called mentally disordered, if not within the terms of the Act, should be treated in prison; but there is not the service to treat them. Judge Tumim laid the greatest possible stress in the report that he undertook with Lord Justice Woolf of the need to provide psychiatric services in prison equal to those in the mental hospitals. That may not be achieved quickly. But unless we tackle the psychiatric service provided in prison, we are playing with the problem. Nevertheless, I support the amendment.
Baroness Faithfull: I made my views known when I spoke to Amendment No. 23; but perhaps I may make two points. First, will the Minister make representations to the Department of Health not to close any more mental hospitals? Secondly, although I agree with the noble Lord, Lord Hutchinson, that courts must be instructed not to send such patients to prison, it is a question of bricks and mortar. Perhaps I may make a plea to the Department of Health—and I appreciate that the Minister is in some difficulty because he speaks for the Home Office and not for the Department of Health—that what is needed is secure units built for such people and which are attached to mental hospitals. That involves bricks and mortar. Whatever one tells the court, however we may wish to
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amend the Mental Health Act—and it needs amending—what is needed from the Department of Health is a number of secure units up and down the country.
Baroness Seear: I wish briefly to add one point only because I believe that nearly all the important points have been made. One aspect has not been mentioned. The position of people with mental illness is very important. Nobody has made a point which seems to me of the greatest importance. To ask prison governors and prison staff to deal with people who have mental disorders is to put on the staff a burden which it is quite unreasonable to expect them to bear. That is not within their training. It is extremely difficult for them. They have quite enough on their plates without having to act as amateur psychiatrists which is one of the most dangerous acts one could ask them to take on. They should not be asked to do so. In the interests of making the task more feasible for governors and prison staff, quite apart from what is good for the persons concerned, it is essential that such persons should not be kept in prison.
Lord Renton: The three amendments that we are discussing refer to people who are mentally disordered. They are of two types; the mentally ill and the mentally handicapped. It is not surprising that almost all the discussion so far has referred to the mentally ill. I am keeping an open mind about the effect of the amendments upon such people.
However, Members of the Committee should know that, since the passing of the Mental Health Act 1983 and the code of conduct made under it, the mentally handicapped have been treated with more certainty, effectiveness and compassion than was previously the case. Whether one is thinking about the handling of the mentally handicapped by police officers when making arrests and taking statements or of the way in which they are treated in the courts there is less complaint to be made. I hope that in approaching the merits of the amendments the Committee will think of the mentally ill who vary considerably. However, I wished to give the Committee that assurance in respect of the mentally handicapped.
Baroness Phillips: I had no intention of speaking in the debate until the noble Lord, Lord Hutchinson, spoke. Like certain other Members of the Committee he always makes me rise to my feet. Yesterday I spoke to two young magistrates. The noble Lord said that magistrates hurriedly reach a verdict, although perhaps he did not mean that. I cannot speak for the judges but I know that the lay magistrates act with a sense of service. They are most anxious about the additional directives which are constantly put upon them. In reaching a verdict they must take account of conflicting views in current Government thinking and the sentences that they are expected to impose if they are left alone.
I have the greatest sympathy with people who are mentally disordered. However, every crime has two parties; the other party is the victim. We heard of a case of someone being charged with actual bodily harm. It is not much satisfaction for the person

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attacked with a baseball bat and hit on the head to know that the attacker suffers from a mental disorder. It does not mean much to the victim although it may mean a great deal to the people who must deal with the accused.
For heavens sake, do not confuse the courts any more. If offenders must be referred to a hospital, provide the hospitals. However, it must be recognised that such people only come before a court if they have committed an offence. My noble friend Lord Richard mentioned the case of a man charged with indecent exposure being sentenced to 26 months in prison. Circumstances must have changed because when I sat in court in central London people charged with indecent exposure were fined £1 and told to go away and not do it again. I was astonished to hear that someone was put in prison for indecent exposure.
I ask Members of the Committee to think of the lay magistrates who do a marvellous job and are unpaid. They are a dedicated group of people and do not want to be further confused by more directives. Today everybody suffers from directives, introduced mainly by a few professors who sit in universities but who have never been up against it. The police, hospital doctors and teachers, for example, are subject to directives. That is fair enough but they should make common sense.
I say to the noble Lord, Lord Hutchinson, that magistrates are most concerned about the Bill because there will be increasing confusion. I speak cunningly not for nor against the amendments. I am in a situation in which I must not offend my noble friend but I shall not obtain a seat in the Government. I appeal to the Committee to think of the people who must carry out the sentences. We must ensure that any provisions we introduce can be followed through.
Lord Donaldson of Kingsbridge: The noble Lord, Lord Hutchinson, brought the noble Baroness to her feet but I must say that sometimes she brings me to mine. We are not making any criticisms of the courts in discussing this amendment, although other parts of the Bill might be used to do so. The amendment is intended to make clear to the courts that if they know that someone is mentally abnormal, that person must not be sent to prison unless the courts are sure that that will do more good than harm. However, if that conclusion is reached, presumably the offender will be sent to a hospital. In nine cases out of 10 the hospital will say, "This chap is not fit to be in an open ward. We do not have an enclosed ward so we cannot accept him".
Mr. R. A. Butler put forward a perfectly sensible solution to that problem which has been achieved in about one fifth of necessary cases. He proposed that in every court area there should be attached to a hospital or elsewhere under local authority control secure accommodation which is a great deal less than a hospital or a prison. That can be done only by spending a great deal of money. I understand that money was granted for such a purpose but that local authorities spent it on other items. However, that might not be true. The solution is clear; the Minister must find the money to try to achieve that.
Lord Elton: I am brought to my feet not by the noble Baroness nor by the noble Lords, Lord Hutchinson and Lord Donaldson, but by the memory of seeing in prison some unfortunate mentally disordered people when I was then the Minister responsible. It was a moving and disturbing experience. It was then and has since been the policy that they should receive treatment appropriate to their condition, preferably in hospital if not in prison. My noble friend's amendment seeks only to implement that policy and I have great sympathy with it. I am glad to see that the noble Baroness, Lady Hooper, has entered the Chamber at this moment. There are two areas of the criminal justice system in which the Department of Health and the Home Office must work in tandem; they are those relating to young offenders and the mentally disordered. Each department has some responsibility for each category of person.
The mentally disordered fall into two classes; they are the mentally ill and the mentally handicapped. Whichever category the offender falls into, the victim must be borne in mind. However, there is no reason why treating the offender in an appropriate way and at an appropriate place should have any effect on the victim other than to reduce the likelihood of a repetition of the offence. The shortage of appropriate hospital accommodation for violent offenders was a matter of great concern in 1984–85. It is a matter of great concern today. I agree with my noble friend Lady Faithfull that we are talking about bricks and mortar and resources. That is always difficult during the process of legislation through a Chamber which does not command those resources and with a Minister whose department is not required to provide those resources.
My reason for intervening is to suggest that, when my noble friend replies to the debate, he may think it appropriate to defer a decision until he has consulted his colleagues who, happily, are present now and the officials of the Department of Health and perhaps give us a substantive reply backed by a programme to which he is able to allude at a later stage. However, at that stage I hope that we shall be able to do something which turns a long-standing policy into an effective action programme.
4 p.m.
Baroness Macleod of Borve: Perhaps I may share with Members of the Committee the experience of what happens in my court. During the 30 years of my involvement with the courts, we have never sent to prison a convicted person who is allegedly mentally ill or subnormal. We remand such a person on bail for three weeks to a psychiatric hospital however local or distant that may be. A bed is found for three weeks during which a psychiatrist makes an assessment and reports back to the same Bench. We then decide whether the convicted man should go to prison or should have treatment. That is how we administer justice where it is needed.
Earl Ferrers: This is an important and sensitive amendment, which concerns us all deeply. The noble

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Lord, Lord Richard, described this as a difficult and sad area. He is quite right about that. He gave a distressing example of how a great deal of misery can be caused when the system does not work as it should. He said that the system cannot cope and I tend to agree with him. There are areas in which the system does not cope as we all wish it to cope.
My noble friend Lord Elton said that he hoped that I would defer a decision until I had consulted colleagues in the Department of Health. I assure my noble friend that I have done that, because this is an important amendment and we are very anxious to take the right course.
I have considered with great care the amendment of the noble Lord, Lord Richard. My noble friend Lady Faithfull said that she hoped that there would be no more closures of mental hospitals and she asked me to convey that hope to my right honourable friend. I can tell my noble friend that the Department of Health is well aware of her views and indeed the views of all Members of the Committee who are anxious about this matter.
We had a very full debate on the earlier amendments relating to the treatment of mentally disordered offenders in the criminal justice system. Amendment No. 23 in the name of my noble friend Lady Faithful] and Amendment No. 24 in the name of my noble friend Lord Mottistone were discussed before the Recess. The new clause proposed by the noble Lord, Lord Richard, is very similar to the proposal made by my noble friend Lord Mottistone in his Amendment No. 24.
In both cases the court would be prevented from passing a custodial sentence on a mentally disordered offender unless it was of the opinion that the offender's mental condition and its treatment would not be harmed by such a sentence and that there had been an exhaustive investigation of the options for dealing with the offender without sending him to prison. The court would be required also to obtain a medical opinion on the offender's mental condition.
As I said in my reply to the earlier amendments debated before the Easter Recess, I do not believe that there is any disagreement between us as to the objectives. However, we must be careful about imposing legislative requirements which may prove to be counter-productive. For example, we do not wish to see more remands in custody while awaiting psychiatric reports. I am bound to tell Members of the Committee, as my right honourable friend Mr. Patten told another place, that it is our considered view that that would be the effect of Amendment No. 25, especially for those offenders who are of no fixed abode. Because of that, they are less likely to be given bail unless additional or alternative arrangements are set up.
My noble friend Lord Mottistone stated that Mr. Patten had pointed out that there were not enough psychiatrists and my noble friend claims that there are. He suggests that there is no such thing as a specialised qualification for forensic psychiatry. My understanding is that there is a shortage of psychiatrists and also that the Royal College of Psychiatrists has a prescribed course of training which
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forensic psychiatrists must follow be Fore they are recognised as such and before they are qualified to prepare reports on offenders.
The arrangements put forward in this amendment would carry with them serious resource implications in terms not only of finance but also of health and social services facilities. However much we may wish it, those facilities could not be expanded immediately to cope with such a major increase in demand. The noble Lord, Lord Hutchinson, argued that there is no point in saying that there are insufficient psychiatrists. However, that is a fact of considerable relevance if one places an obligation on courts for which, whether or not one likes it, there are not sufficient resources at the time.
Government Amendment No. 17, which the Committee approved on 26th March, requires the court to consider the information available about the offender's mental condition and to have regard to the likely effect of a custodial sentence on that condition and its treatment before passing a custodial sentence. I believe that that course is preferable to what is prescribed by the amendment of the noble Lord, Lord Richard, because it will give the right steer to the courts as they try, without bringing about an undesirable increase in the number or remands in custody for psychiatric reports, to find the correct balance between the need to secure prosper treatment for offenders who may be mentally disordered and the need to protect the public from offenders who may simply be dangerous. In the meantime, we shall endeavour to identify and to remedy the gaps which we acknowledge may exist in the current health and social service provision.
As regards the new schedule proposed by the noble Lord, Lord Richard, we should all like the procedures for the admission to hospital of mentally disordered offenders to work as quickly and as smoothly as possible. However, I have grave reservations as to whether it is reasonable to reduce by three weeks to seven days the statutory time limits in Sections 37 and 40 of the 1983 Act, although the proposals and the suggested changes to Sections 39 and 48 of the Act have a superficial attraction. It is always dangerous to tinker with existing legislation in this way without extensive work to identify the precise nature of any deficiencies in the Act in question and the views of representatives of the various agencies involved in operating it. We are trying to carry out such work.
My noble friend Lord Mottistone said that we must take action to deal with the problem which we all know exists. I can understand my noble friend's anxieties. Indeed, I can understand the impatience of Members of the Committee who want to deal with the problem which we all know exists. However, it is important to assess the size and complexity of the problem before taking what may prove to be overall blanket decisions which may in themselves not cater for what is a wide variety of difficult and different mental health problems.
The fact is that those difficulties are not yet fully known, although Members of the Committee may say that they should be. The requirements for treatment and security for the mentally handicapped are

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different from those for the chronically mentally ill. I am glad that my noble friend Lord Renton drew that distinction. There are provisions for both.
Most Members of the Committee consider that in some cases there are gaps in the provision for the mentally ill, whether they are mentally handicapped or chronically ill. I do not dissent from that. What no one knows is exactly where those gaps are or their size or extent. Indeed some people may be in the wrong place at the wrong time; we need to find out whether that is so and where they are before we can address the problem. It is therefore difficult—I venture to say impossible—to provide for the lack of provision without knowing its extent.
We are, accordingly, at present engaged in trying to find that out. We are closely examining recent research findings. The Home Office recently received a report on the sentenced prison population by Professor Gunn, and the Department of Health commissioned a study into where the mental health system and the criminal justice system meet and overlap, or possibly do neither.
The correct approach to overcoming the problems which have been identified should be one of working to develop and improve the practical arrangements and the facilities which are available, rather than to alter the legislation. In that respect I am bound to tell the noble Lord, Lord Richard, that what he seeks to do in the amendment can already be done under existing legislation without altering the practical arrangements.
I have already mentioned that there is a review of services for mentally disordered offenders being conducted jointly by the Department of Health and the Home Office. My noble friend Lord Elton said that we must work in tandem on the matter. I can assure him that we are doing so. The review is concerning itself with this specific area. It is an intensive and important exercise. It will take time to bear fruit. But Ministers have made clear that they expect regular progress reports before it completes its work finally in mid-1992, for the very good reason that whatever action proposed can be taken meanwhile and need not be delayed.
Home Office Circular 66 of 1990 is a very helpful guide to all those in the criminal justice system concerned with the care of mentally disordered offenders. Reactions to and the use of the guidance is being monitored. The growing number of duty psychiatrist schemes, where a psychiatrist is regularly on hand at court to assess offenders, is proving very effective.
In regard to the facilities, the review of the services for mentally disordered offenders will give us a more precise picture of the position nationwide and of the problems and the needs which exist at all levels and in all parts of the various services. In the meantime, the programme of building more secure facilities in the NHS is continuing. An additional £3 million of capital is available during the current financial year for the development of regional secure units and seven NHS regions have further RSU development plans in hand.
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That is practical work being done now in order to keep mentally disordered offenders out of the prison system. I hope that the Committee will agree that we should rest on the legislative encouragement which is given in the Government amendments discussed earlier, and I assure the Committee that all which has been said today will be drawn to the attention of those who are at present studying the problem and will be taken account of in their work.
I suggest that that is the course to adopt rather than the course proposed by the noble Lord, Lord Richard.
Baroness Faithfull: Before the noble Earl sits down, perhaps I may thank him for the meeting that he arranged in the Home Office together with colleagues from the Department of Health. All those points were clearly made to the Department of Health officials who were present at the time and who undertook to do exactly as he said. I was grateful to have been present and to have heard the representations that were made to the Department of Health.
Lord Richard: Perhaps I may answer the noble Earl who replied with great charm and firmness. However, I am afraid that we received from him this afternoon an almost total turndown of the proposals that we seek. I must also say that the problem has been known for a long time. It must have been clear at the time when mental homes were being closed and people were being thrown out on the streets that that would have a consequential effect upon the criminal justice system. To say now that greater research needs to be carried out to find the scope of the problem is an argument that I find singularly unconvincing.
I am not satisfied with the present situation. I do not propose to ask the Committee to divide on the matter this evening. However, I give the Government warning—I hope it is fair—that we may return to the issue on a subsequent occasion when I may seek the opinion of the Chamber. I beg leave to withdraw the amendment.
Earl Ferrers: Perhaps I could add one point. I do not wish to delay the Committee because the noble Lord was kind enough to say that he will withdraw the amendment. He said that the Government have flatly turned down the proposal. Let me make it perfectly clear that I take a great deal of interest in the proposal. I considered it with a great deal of depth. It is not a question of turning it down; we are all attempting to reach the same objective. It is a question of the best way of doing so.
The only point I put to the noble Lord is that by his amendment he may be imposing duties and responsibilities on courts which at the moment the system cannot take.
4.15 p.m.
Lord Richard: Of course I acquit the noble Lord of not taking an interest in the matter; of course he takes an interest. However, as he is aware, any Minister must take responsibility for Government inertia as a whole. There is no way in which one can evade that.

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The fact is that not much has been done about the issue. It has been known for a long time and something should be done.
As I am on my feet and before the noble Earl sits down for the fourth time, perhaps I may say that he referred to the report of Professor Gunn. Rumours have circulated regarding what the report will contain. Can the noble Earl say when we shall see it and have an opportunity of judging precisely how many mentally disordered people there are in our prisons? We may then share in the knowledge of the scope of the problem and perhaps contribute something towards the Government's thinking on the matter. It would he nice to learn when we shall see the report.
Earl Ferrers: I did not sit down for the fourth time; it was merely for the second. In Committee proceedings I could sit down 20 times if I so wished. In answer to the noble Lord, Lord Richard, the report will be available in due course.
Amendment, by leave, withdrawn.
[Amendment No. 26 not moved.]
The Chairman of Committees (Lord Aberdare): If Amendment No. 27 is agreed to, I cannot call Amendment No. 27A.
Clause 4 [Suspended and extended sentences of imprisonment]:
Lord Richard Lord Richard moved Amendment No. 27:
Page 4, line 1, leave out subsection (1) and insert:
("(1) Section 22 of the 1973 Act (suspended sentences of imprisonment) shall cease to have effect.").
The noble Lord said: Amendment No. 27, as drafted, seeks to abolish the suspended sentence. It is a probing amendment designed to elicit an explanation from the Government regarding the provisions of subsection (1) of Clause 4. That subsection restricts the suspended sentence to cases where there are exceptional circumstances. The Government have gone so far in restricting the use of suspended sentences; why have they not taken the logical step of abolishing them altogether?
There have always been two logical difficulties attached to suspended sentences. The first is that it involves the courts in the somewhat tortuous process of initially deciding that they think a prison sentence is essential and immediately afterwards reaching the self-contradictory conclusion that it need not after all be imposed. That leap of logic is questionable enough at present but is even more difficult to reconcile with the new criteria for custodial sentences contained in Clause 1. That restricts such sentences to cases where the offence is so serious that only such a sentence can be justified for the offence or where custody is necessary to protect the public from serious harm.
If it is not strictly necessary to send the offender to prison immediately, it would be more sensible to impose a non-custodial sentence such as community service. If the offender fails to comply with that and returns to court, then the court retains the power to send him to prison for breach of the order.
The second difficulty is that, in contrast to someone who has committed a less serious offence who is given a fine, a probation order or a community service order, an offender given a suspended sentence has no
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immediate punishment imposed on him. It is difficult to defend the notion that someone who commits a more serious offence should incur no punishment unless he reoffends while less serious offenders are given penalties which require them to forfeit their money, their time or part of their liberty. Clause 4 goes a considerable way to meet these points. First, it restricts the suspended sentence to cases of exceptional circumstances, and, secondly, it requires the court to consider imposing a fine or a compensation order in addition to any suspended sentence. However, even then the offender will be given an immediate penalty of a fine or a compensation order, which is regarded as lower in the sentencing tariff than a community service order or a probation order with additional requirements.
One has to ask the question why, if the Government have accepted the criticisms of the suspended sentence to the extent of imposing these very substantial restrictions on its use, they have decided to retain the suspended sentence at all? One possible argument for retaining it is the fear that its abolition would increase the prison population. However, the results of abolishing suspended sentences for young adults aged between 17 and 20 years, which was a provision of the Criminal Justice Act 1982, do not bear out that fear. Approximately 6,000 suspended sentences a year were imposed on young adults before this change was implemented in May 1983. Following the change most of those sentences were replaced by non-custodial sentences.
At the same time as abolishing a suspended sentence for young adults the 1982 Act also introduced statutory criteria for imposing custodial sentences on young offenders. The result was a fall in the number of custodial sentences from 24,300 in 1983 to 16,700 in 1989. I wait with interest to hear what the noble Lord the Leader of the House has to say, but there does not seem to me to be any logical argument, having gone down the road as far as they have, for the Government to retain the suspended sentence at all. I beg to move.
Lord Ackner: My Lords, perhaps I may first express my regret at not being present on the first day of Committee. I wrote my apologies to the noble Earl, Lord Ferrers, explaining that the Law Lords did not usually sit in the week before Easter although they come back a week before Parliament reassembles. Accordingly, I had accepted an invitation from the chief justice of Poland to visit him. I was in Czechoslovakia when the Committee had its first sitting. I regret not being present for a number of reasons. One reason is that for four years I was required by the then Lord Chief Justice, Lord Widgery, to be in charge of the sentencing seminars for circuit judges. I learnt some of the difficulties and complications which sentencers face. I shall no doubt return to the fact that this Bill will add considerably to their difficulties.
As regards suspended sentences, I support their retention. They play a very useful part. I also support the proposition that they should usually be coupled with another sentence such as a fine. That was

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certainly one of the messages I sought to give to circuit judges some 15 years ago when I was in charge of those conferences.
I went to one of the assizes in Wales many years ago. A man was up for trial and he pleaded guilty. He was known locally as "Jones the Milk". He was in charge of the distribution of milk over a very large area. He was a pillar of the church (a deacon, I believe) and no doubt leader of the choir and involved in all sorts of other fine activities. He had a 1,000-gallon milk tank into which the Milk Marketing Board poured its milk. He had a run-off system so that he was able to get secretly 200 extra gallons on each delivery. The problem was how on earth one was to sentence him for the three specimen offences with which he was charged. Naturally, he had an excellent record.
I imposed on him a sentence suspended for two years. This was 18 years ago. I fined him £ 750 on each of the three charges and ordered him to pay £ 500 towards the costs of the prosecution. Fortunately, there was a very Welsh assize judge present. I asked him whether he thought I had done the right thing. I remember him saying "God, man! He would rather have been sent to prison any day". That was a very good indication of how the combination of the suspended sentence and the penalty was a very effective one and kept the man out of prison, which would have done him no good at all. The suspended sentence is an excellent idea.
However, I have raised in my Amendment No. 27A the question of the phrase:
"that the exercise of that power can be justified by the exceptional circumstances".
There is already a considerable body of jurisprudence which is to be found quite conveniently in Archbold. I have it here somewhere. It sets out the very narrow circumstances in which a suspended sentence should be imposed and how it is not to be used as a means of merely reinforcing an accused's statement that he intends to go straight. It is not to be used where community service, probation or some other community penalty can be imposed. It is only to be used if it is a proper case for imprisonment but just before one is to impose it one realises that there is justification for the sentence being suspended.
If the words "exceptional circumstances" are accepted we shall run up against the situation that, generally speaking, there are common features in cases where a sentence is suspended. A good record may be one feature, or the probation officer may give very strong support to the suggestion that a prison sentence will have an appalling effect on the family. The sentence may wreck a career which the accused will never return to. These are not exceptional circumstances, but common features. That is why I have suggested that instead of the words "exceptional circumstances" one puts in the words "in all the" circumstances of the case if one has to say anything at all. I would prefer that nothing at all was said in any way to restrict the very effective use which is being made of this particular option.
Lord Donaldson of Kingsbridge: Before the noble and learned Lord sits down can he give an explanation of the Welsh situation? Why was it obvious that the man would prefer to be sent to prison than fined? I cannot see that the suspended sentence had anything to do with it at all. I thought it was a clear case of preferring to go to prison to paying £ 2,250.
Lord Ackner: The suspended sentence marked in one respect the very serious nature of the fraud which the defendant had perpetrated on his fellow citizens over a long period while putting forward this external indication of being holier than thou. Therefore it was important to show that he had just escaped imprisonment for that offence. But, as the public would— and do— say if you impose a suspended sentence alone, "That is a let-off; he got away with it", the financial penalty was the reinforcement that he had not got away with it. He would have preferred to go to prison because under our parole system he would have been out in six months if I had given him a sentence approaching 18 months. If I had passed a lesser term of imprisonment he would have served an even shorter period. He would also have saved several thousands of pounds out of his taxed income. He regretted that situation very fervently.
4.30 p.m.
Baroness Phillips: I do not want to delay the proceedings— said she, proceeding to do that— but I am puzzled by the noble and learned Lord's words. He said that because the offender was "holier than thou" — that was the phrase used— he got extra punishment. I cannot follow that.
Lord Ackner: With great respect, I can. If a person has emphasised his sanctimonious hypocrisy and then has been calmly going on perpetrating a swindle that he realised would be difficult to find out, it seems to me that he is in one of the more serious categories of dishonesty.
Lord Renton: I should like to support everything that the noble and learned Lord, Lord Ackner, has said in favour of retaining suspended sentences. The one point that I would stress, however, which he did not stress, is that the suspended sentence acts as a deterrent upon the particular offender from committing further crimes. That is very much a point in its favour.
The lower we go down the scale of judicial responsibility it is a strange paradox that the more cases we have to try. I was at the middle range. I did a lot of work as a recorder, deputy chairman of quarter sessions, and relief judge at the Central Criminal Court. I did all of it in the days before the suspended sentence was introduced by the 1973 Act, and indeed before the other remedies introduced by that Act had been suggested by Parliament, and one was in a great difficulty. There were many cases in which one realised that one should avoid sending the person to prison, and if one did not send him to prison there was the opportunity of fining. But often fining was ineffective because the person had no hope of

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paying without committing further crime. As a result one tended to place heavy obligations upon the probation officers.
If we were to accept the amendment of the noble Lord, Lord Richard, that is what would happen again. After all these years I think I can disclose that I was once reported to a Lord Chancellor of the day for not sending enough people into custody and for placing too big a burden upon the probation officers. But that was because there was no opportunity of suspended sentences. For goodness sake, do not let us get rid of them.
Lord Hutchinson of Lullington: I should like to support the amendment moved by the noble Lord, Lord Richard, and admit to being a bit depressed by what I have heard from the last two speakers on the sentencing policy of keeping the suspended sentence. This Bill recognises, very much to its credit, the failure and unpopularity of the partly suspended sentence and the extended sentence, and both have gone.
Turning to the present clause, it very nearly recognises the same unpopularity and the same failure of the suspended sentence but does not quite go so far as to abolish it. It draws back by introducing strict restrictions on its use (which the noble and learned Lord, Lord Ackner, now wants to get rid of), and by dredging up that old lifebelt for waterlogged and sinking statutory provisions, the "exceptional circumstances".
I entirely agree with the noble and learned Lord that the exceptional circumstances are the essence of all mitigation in the criminal courts. Nearly all mitigation emphasises the exceptional circumstances of a particular case and a particular accused. Almost everything can be exceptions: the person's health; the person's age; the person's employing of a number of other people; sickness in the family; poverty; the fact that he or she made total reparation and repayment, and so on, and even the character to which the noble and learned Lord referred to in "milk the float". Therefore these words really mean nothing at all and are simply a way of retaining the, I would say, now discredited suspended sentence.
When a person is sentenced to a suspended sentence he walks out of court a free person at that moment, possibly with a fine or compensation order as well. It is a less serious penalty at that moment than the community service order or the probation order with conditions. So we have the situation where the person walks out of court a free man and has in fact a less serious penalty than the penalties of community service which are so properly provided for in this Bill.
Of course what happens, with the greatest respect to the noble Baroness, Lady Phillips, is that with 20,000 or so magistrates there cannot be consistency as to how the suspended sentence is used. All the statistics show that the suspended sentence has in fact been used over and over again where community sentences or probation orders could have been properly used instead. The result of the suspended sentence has been substantially to increase the number of people in prison.
Surely the time has come to get rid of that sentence. A conditional discharge, for instance, is far more
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useful than a suspended sentence. If there are breaches of a community sentence the person is brought back and can be sent to prison. That is exactly the same as a suspended sentence but it has flexibility. The trouble with a suspended sentence is that if the person is brought back he will be sent to prison except in, if I may use the phrase, exceptional circumstances. It is so rigid. Repeatedly people come back in circumstances where patience should be shown by a court. You must have patience with so many offenders. It is no good imposing an inevitable sentence at an early stage. If I may say so in the presence of the Leader of the House, the great thing about this Bill is that that flexibility is now to be found in the community sentences which are set out.
If we keep this sentence, we should be going absolutely against the whole spirit of the, Bill. We are trying and I say this to get the noble Baroness, Lady Phillips, to her feet— to move her away from her culture of sentencing. We are trying— to change the culture of sentencing that has been illustrated by the noble and learned Lord, Lord Ackner. For four years the noble and learned Lord was teaching the old culture of sentencing, with the result that the judiciary, and the young judiciary, continue on and on in the old culture, to use the noble and learned Lord's words today, that he "just escaped from prison".
It is always this question of coming back to prison being the ultimate sentence; the sentence that is in everybody's mouth all the time. All sentences are measured by "going to prison": "you have just escaped prison". This Bill gets rid of that idea. It gets rid of the idea that the only deterrence is prison, and brings in a completely new idea, a new culture, of treating people in the community in which they live, and having them do things that are difficult to do. It will involve a great deal of effort and a great deal of work by the probation service, but nevertheless it will be infinitely more effective. I ask Members of the Committee to support this amendment and also to have the courage to go one step further and get rid of this discredited form of sentence.
Lord Gisborough: I hope that my noble friend will resist the amendment. The task of sentencing some villains in the magistrates' courts is very often extremely difficult. We need more, not fewer, options. Indeed, the greater number of options available, the less difficult the task will be.
There is no similarity between a conditional discharge and a suspended term of imprisonment. I believe it is well known that the conditional discharge is used for comparatively minor crimes, whereas for the suspended sentence one needs to have a pretty rotten sort of offender before one considers its imposition. The two forms of sentence are totally different and they should not be confused.
Lord Monson: Amendment No. 28, which is tabled in my name and deals with partly suspended sentences, has been grouped not only with Amendment No. 27, which I fully expected, but also with Amendment No. 27A, which I did not expect.

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The revised Marshalled List was not available in the Printed Paper Office last night. Therefore, I only received a copy of it less than an hour ago.
In my view, to deal with three only partly related amendments would confuse the Committee inordinately. Therefore, with the leave of the Committee I shall speak separately to Amendment No. 28 after Amendments Nos. 27 and 27A have been discussed.
Lord Waddington: Different opinions are expressed in the amendments before the Committee. Moreover, a variety of different opinions have been expressed during the course of this interesting debate. We have before us two amendments concerning the fully suspended sentence. The noble Lord, Lord Richard, argued the case for its abolition whereas the noble and learned Lord, Lord Ackner, argued not only for retaining the fully suspended sentence but also for providing the courts with the possibility of using it more widely than is envisaged under the provisions of Clause 4. I listened carefully to both arguments but I remain of the view that the approach reflected in the Bill is the right one.
Amendment No. 27 would abolish the suspended sentence. However, in 1989, the courts imposed nearly 30,000 fully suspended sentences. They clearly found it a useful disposal for many offenders. It enables a court to denounce a serious offence, but to reduce the punishment to take account of an individual offender's circumstances so that he is not sent to prison.
From time to time it is argued that there is a temptation for the courts to give suspended sentences in cases where, if there were no suspended sentences, they would not consider imprisonment appropriate; and that offenders in such cases then break the conditions of the suspended sentence and find themselves in prison inappropriately. However, the suspended sentence can be appropriate where there is no need for supervision and where the services of the probation service are not required. In fact, most of the offenders who receive a suspended sentence complete them successfully.
In 1989 over three-quarters of offenders who were given a fully suspended sentence completed their sentences successfully. If we took away the suspended sentence we would lose an important means of mitigating the penalty for serious offences in cases where such mitigation was justified. One result could be more people behind bars. I am sure that that is not the aim of the noble Lord, Lord Richard.
I now deal with Amendment No. 27A, tabled in the name of the noble and learned Lord, Lord Ackner. As I said, we believe that there continues to be a place for the suspended sentence in the new sentencing framework. We also believe that the use of the word "exceptional" in Clause 4 correctly describes that place. Clause 1 provides that a custodial sentence should be imposed only where the offence is so serious that such a sentence could be justified or where the public needs to be protected. It follows, therefore, that there must be exceptional circumstances to enable a
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judge to come to the conclusion that whereas prison is justified within the terms of Clause 1, it need not in fact be implemented.
I do not agree with the argument put forward by the noble Lord, Lord Hutchinson of Lullington, that the word "exceptional" is quite meaningless and that any mitigating circumstance can be described as an exceptional circumstance. Indeed, the contrary has been proved often enough; for example, with the use of the word "exceptional" in the provisions concerning drink-driving offences where there was for years— though I am not certain whether it still exists — the provision that there had to be a disqualification unless there were exceptional circumstances. Everyone knew perfectly well— the courts clearly established the fact— that exceptional circumstances in that context certainly did not mean just anything which could be dredged up by the advocate and put forward as a mitigating circumstance. Therefore, the word "exceptional" clearly has a special meaning. I should have thought that an example might be the terminal illness of the offender or of a relative; some severe sickness or perhaps a situation where the offender runs a small business which would close down without him and would therefore mean the loss of jobs for his employees.
In all those circumstances, I suggest that the practice of the courts shows the usefulness of the suspended sentence. Moreover, to make sense of the new structure of the Bill and the restrictions on the use of custody, it is right to mark the fact that the power to use the suspended sentence should be restricted and only used in exceptional circumstances. Therefore, I urge Members of the Committee not to accept the amendment calling for the abolition of the suspended sentence, which is still a useful form of disposal, and to accept that the wording in Clause 4 is correct.
4.45 p.m.
Lord Richard: I listened with a great deal of interest to the noble Lord the Leader of the House explaining his position on this amendment. I trust that I am correct in assuming from what he said— though one cannot make a direct comparison— that the Government's view of "exceptional circumstances" in relation to this clause is at least as restrictive as is their view on the use of the phrase in the drink-driving legislation. The noble Lord will know, as indeed do I and any practitioner in the courts, that it is extraordinarily difficult to get oneself within the straightjacket of "exceptional circumstances" in terms of a drink-driving offence. However, if that is the way in which the Government are approaching the phrase "exceptional circumstances" in this Bill as regards suspended sentences the difference between their position and mine appears to be extremely slim. Assuming that to be the position, I shall beg leave to withdraw the amendment.
Lord Ackner: I view with some concern the response given by the noble Lord, Lord Waddington. My recollection is— though it is off the top of my head and, therefore, probably wrong— that the word "exceptional" in drink-driving cases has to be limited

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to the circumstances of the offence and must not relate to the individual circumstances of the person charged. Accordingly, the terminally ill person referred to by the noble Lord would not qualify.
However, if that is the noble Lord's definition of the phrase "exceptional circumstances" the noble Lord, Lord Richard, is absolutely right: it would mean that you are cutting down the use which you could make of suspended sentences to a great extent. The result would be an increase in the prison population because, as has been indicated, this option which has been used so extensively would no longer be used to the same extent. That is why I suggest to the Committee that we maintain the present jurisprudence.
I found the appropriate reference in Archbold, which is the criminal practitioner's Bible, at paragraph 5–209. It sets out a number of points which I believe the Government may have overlooked. The paragraph states:
"Before imposing a suspended sentence of imprisonment, the court must decide that a sentence of imprisonment is appropriate to the case, without regard to the question of suspension".
This is a way of avoiding sending people to prison who would otherwise do so. The paragraph continues:
"Any statutory requirements which apply to the imposition of imprisonment on the particular offender, in particular, those relating to social inquiry reports",
and all the rest of it, must apply in relation to the suspension. We must go through all the possibilities. Archbold cites the decided cases and says, as I tried to say, that one must go through all the gambits of other community disposals like community service before one ends up with a suspended sentence. I earnestly submit that the Government are reducing a valuable option. That is quite inconsistent with the theme which I strongly support that the fewer persons one can send to prison the better.
Lord Renton: The noble Lord, Lord Richard, wisely sought leave to withdraw his amendment. I believe it has not yet been withdrawn, so we are in order in discussing the next amendment, as the noble and learned Lord has done.
The Deputy Chairman of Committees (Lord Nugent of Guildford): Will the noble Lord allow me to intervene? Was the noble and learned Lord, Lord Ackner, speaking to the amendment of the noble Lord, Lord Richard, or to his proposal that he should be allowed to withdraw it, or was he speaking to his own amendment?
Lord Ackner: The answer is that I was speaking to my own amendment, using some of the well-known advocacy of the noble Lord, Lord Richard, to support it.
The Deputy Chairman of Committees: I shall put to the Committee the request of the noble Lord, Lord Richard, that Amendment No. 27 be withdrawn.
Amendment, by leave, withdrawn.
Lord Ackner Lord Ackner moved Amendment No. 27A:
Page 4, line 9, leave out ("by the exceptional") and insert ("in all the").
The noble and learned Lord said: I beg to move the amendment formally.
Lord Renton: I suggest that the noble and learned Lord, Lord Ackner, has given strong reasons for asking the Government to consider further whether it is wise to keep the word "exceptional" in the clause. I am sure that the last thing the Government wish to do is to weaken the opportunity for imposing suspended sentences. I can imagine the arguments people would get into in court as to whether the circumstances of a particular case were exceptional. We avoid all that difficulty if we accept the noble and learned Lord's suggestion. The court would merely consider all the circumstances and then decide whether there is to be a suspended sentence.
I see heads nodding on both sides of the Committee. I suggest to the Government that they would be wise to undertake to consider the point further.
Lord Waddington: I shall respond at once to that and say that I shall gladly consider the matter further. However, I ought to revert to something that was said earlier by the noble Lord, Lord Richard.
When I was replying to the noble Lord, Lord Hutchinson, I was meeting his point that the use of the word "exceptional" meant nothing. Indeed, despite the use of the word "exceptional", it would be open to any advocate to raise any matter in mitigation. I then referred, as an example, to the drink-driving legislation. I pointed out that there the courts had said that "exceptional" meant something and did not mean nothing. Clearly, it would be for the courts to decide what "exceptional" meant in this provision. Whether the courts would interpret it in precisely the same way as they have interpreted "exceptional" in the drink-driving legislation is another matter entirely.
Lord Hutchinson of Lullington: Does the noble Lord agree that the reason the matter was interpreted in that way by the Court of Appeal was that as a result of those words being used, all the advocates in drink-driving cases came before the courts with exceptional circumstances in relation to their clients? The result was that the Court of Appeal laid down the most extraordinary rule which has been referred to by the noble and learned Lord, Lord Ackner. It was that any exception in reference to the defendant could not be an exceptional circumstance. The only exceptional circumstances would be those which arose from the driving itself. That was how the Court of Appeal avoided the difficulty into which the Government have now fallen.
Lord Richard: I wish to say to the Leader of the House that it would be impossible to use the phrase "exceptional circumstances" in relation to a suspended sentence without it referring to the defendant, since it is the defendant standing before the judge and it is his exceptional circumstances that must be considered.
I am not sure whether the Government say this: there is no doubt that the purpose of the legislation is to confine radically the circumstances in which a suspended sentence may be imposed. However one tries to define "exceptional", it clearly means "not in

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normal circumstances". There has to be something which takes it beyond the normal circumstances into circumstances which are exceptional, for the court even to be in a position to consider whether or not a suspended sentence should be imposed. That is all we are talking about and it is the intention of the Government as expressed in this legislation.
Lord Waddington: That is entirely right. I believe that I made it abundantly plain that in order to bring these provisions into line with the theme of Clause 1 and the restrictions there on sentencing somebody to a term of imprisonment, it is logical in Clause 4 to put some restrictions on the use of the suspended sentence because of the restrictions which were earlier imposed in the Bill on the imposition of sentences of imprisonment.
However, I am prepared, as I indicated a moment ago, to consider whether the use of "exceptional" is appropriate and is the right way to reflect in Clause 4 the proper restrictions which have been agreed to by the Committee on sentences of imprisonment in Clause 1.
Lord Ackner: In view of the generous agreement by the noble Lord to consider the matter further, I shall withdraw the amendment. I end with my best point that these submissions are strongly supported by the Council of Her Majesty's Circuit Judges, and it is the circuit judges who carry out the bulk of the work in the Crown Courts. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5 p.m.
Lord Monson Lord Monson moved Amendment No. 28:
Page 4, line 17, leave out from ("offenders") to end of line 19.
The noble Lord said: As a complete layman, I am perplexed as to why the Government intend after almost 14 years to deprive the judiciary of a potentially extremely useful weapon in their armoury. I do not use the words "weapon" and "armoury" in any aggressive or fiercely punitive sense. Unfortunately, I happened to be in Lisbon on the day of the Second Reading debate. However, on my return I went through the Official Report with a toothcomb in the hope of finding a convincing explanation for this proposal. Unless I carelessly missed a significant phrase or sentence, only one noncommittal five-word reference was made to the proposal en passant, by the noble Lord, Lord Hutchinson of Lullington, as it happens, not by the Government or the Labour Opposition.
The Notes on Clauses supplied by the Printed Paper Office were not much more helpful; they did no more than claim that the power was little used by the courts. However, even a cursory daily glance at the pages of our national newspapers devoted to court cases seems to suggest otherwise. Even if it were the case that the powers are not much used, the argument would still be a weak one. When my noble and learned friend Lord Wilberforce and I were expressing misgivings not so long ago about the proposal to
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almost quadruple the maximum sentence for insider trading from two to seven years, the Government's reply was that even if people were to be rarely if ever sentenced to four, five, six or seven years' imprisonment for the offence, the higher maximum was a useful weapon to have in reserve. That would seem to apply with even greater force to the power to impose partly suspended sentences.
This amendment was due to be discussed before the Easter Recess but because of prolonged discussion of some earlier amendments it was postponed until today. The delay has given me the chance to see exactly what was said for and against partly suspended sentences almost 14 years ago. On 3rd May 1977 Mr. Patrick Mayhew (as he then was) in discussing the Criminal Law Bill, asked:
"Is there not now a strong case for a sentence that is suspended in part rather than wholly suspended as is the case at present?"— [Official Report, Commons, 3/5/77; col. 355.]
The House of Commons as a whole agreed with him because just such a clause was introduced into the Bill and it later became Section 47 of the Criminal Law Act 1977. When the Bill returned to your Lordships' House in July of that year the noble Lord, Lord Harris of Greenwich, speaking from the Government Front Bench (which was a Labour Front Bench in those days), said:
"The new sentence will, in our judgment, enlarge the scope of the sentencing power of courts. It should provide a salutary check to a number of offenders who will not only see how disagreeable deprivation of liberty can in fact be but will also be given an extra incentive to keep out of trouble".— [Official Report, 21/7/77; col. 469.]
The noble Lord, Lord Wigoder, who was and still is a Liberal, said on that occasion at col. 471 of the Official Report:
"I welcome this new clause because it is a further weapon in a range, which should be as extensive as possible, in the hands of the Judiciary in passing sentence".
The noble Earl, Lord Mansfield, speaking from the Conservative Front Bench, also welcomed the new clause and said at col. 473 of the Official Report:
"It provides a new part of a judge's or bench's armoury which I think, especially in the case of a short, sharp sentence, will be very welcome".
I am delighted to see the noble Baroness, Lady Macleod of Borve, in her place today. She also welcomed the new clause. The only speaker who expressed any serious doubts whatsoever was the noble Baroness, Lady Wootton of Abinger, but even her objections were more objections of detail than of principle.
It is true that on studying Section 47 of the 1977 Act — that is the section which introduced the possibility of a partly suspended sentence— a defect becomes evident in subsection (2) which would benefit from rectification. The noble Lord, Lord Wigoder, arrived at exactly that conclusion in his aforesaid speech of 21st July 1977 when he said at col. 472 of the Official Report:
"The other matter I would raise is this. Is it really necessary, where a part of a sentence is ordered to be served, that it has to be as much as a quarter of the whole term? … There is much to be said for the view that a short sentence, actually served, of perhaps two, three or four weeks, might be more than sufficient to ensure that a first offender in those circumstances is extremely unlikely to offend again".
That is my opinion also for what it is worth.
Only last weekend I read of a case of two young men who had travelled on a 125 InterCity train journeying south. The men had had too many cans of strong lager to drink in the buffet car and opened one of the train's doors when the train was travelling at 100 miles per hour "for a lark". They were sentenced to nine months' imprisonment. I have no wish to criticise this sentence from the point of view of abstract justice. Apart from anything else, I happen to be a friend of the judge in question. However, one wonders from the point of view of the public good whether it would not have been preferable to sentence the men to 12 months' imprisonment with 10 or 11 months suspended, had that been possible. Such a sentence would have delivered a shock which was undeniably sharp but also short.
The sentence would have been short enough for the convicted individuals to escape being tempted into criminal habits or taught the tricks of the trade by the experienced criminals to be found in every prison. With luck it would also have enabled them to keep their jobs in as much as most if not all of the four, five or six weeks' actual imprisonment could come out of their annual holiday entitlement. After all, to throw them on to the dole queue greatly magnifies the danger of their getting on to the criminal treadmill subsequently.
Retention of the powers to impose a partly suspended sentence, ideally amended by what the noble Lord, Lord Wigoder, suggested— that is to say, allowing nine-tenths rather than three-quarters of the sentence to be suspended— would reassure the public. As regards most crimes, and certainly crimes of violence, the public regard sentences that involve no element of imprisonment whatsoever to be tantamount to meting out no kind of punishment at all. I was interested to hear the noble Lord, Lord Richard, effectively say as much when speaking to Amendment No. 27. Such a course of action might meet some of the complaints made by the noble Lord, Lord Gisborough, in his Second Reading speech based on his experiences as a magistrate. It might also help to resolve the dilemma outlined by the noble Lord, Lord Irvine of Lairg, on Second Reading who referred to the problems posed by young car thieves, particularly joyriders.
On a topical note— no doubt my following comment will be controversial— such a course could provide the ideal means of dealing with impulsive, self-centred, but by and large not basically evil young people, such as bomb hoaxers. They certainly deserve a short, sharp shock even for a first offence, but a long period of imprisonment— except for a repeat offence — is generally unnecessary and is possibly counter-productive.
It would not be appropriate to press the amendment this afternoon. However, I should like to hear the opinions of noble Lords and noble and learned Lords who have more experience than myself on this matter. I should also be interested to hear why the powerful arguments that were advanced 14 years ago, not least by the noble friends of the noble Lord, Lord Hutchinson of Lullington, are deemed to be no longer valid. I beg to move.
Lord Ackner: I wish respectfully to support this amendment. In reading through the Official Report of the first day of the Committee stage, I was saddened to note that the noble Lord, Lord Richard, with the enthusiasm for which he is well known, had been frustrated in his search in the Library for the handbook issued by the Judicial Studies Board on sentencing, and in particular on sentencing guidelines. As the Library had removed our copy from the Law Lords' Corridor, I felt particularly saddened as I had advised the noble Lord to go in quest of it there. He can now be assured that a copy is to be found there. I refer to that matter because in document C1 of that bundle there are guidelines issued by the Court of Appeal in the case of Clarke in 1982 on partly suspended sentences. I should have thought those guidelines were unlikely to have been issued unless partly suspended sentences are used and used frequently. I believe that to be the case.
I wish to quote a portion of the judgment given by the Lord Chief Justice on behalf of the court where he stated:
"If imprisonment is necessary, and if a very short sentence is not enough, and if it is not appropriate to suspend the sentence altogether, then partial suspension should be considered. Great care must be taken to ensure that the power is not used in a way which may serve to increase the length of sentence. It is not possible satisfactorily to forecast the precise way in which the provisions of section 47 might be used. In general the type of case that we have in mind is where the gravity of the offence is such that at least six months' imprisonment is merited, but when there are mitigating circumstances which point towards a measure of leniency not sufficient to warrant total suspension.
Examples are always dangerous, but we venture very tentatively to suggest a few: first of all, some serious `one-off' acts of violence which are usually met with immediate terms of imprisonment: some cases of burglary which at present"—
— that was 1982—
"warrant 18 months' or two years' imprisonment, where the offender is suitably qualified in terms of his record: some cases of fraud on public departments or some credit card frauds, where a short immediate sentence would be insufficient; some cases of handling involving medium-range sums of money; some thefts involving breach of trust; some cases of stealing from employers. All these are examples of cases where it may be possible to suspend part of the sentence without harm to the public and with benefit to the prisoner.
"We would like to echo the words of the Advisory Council on the Penal System in paragraph 282 of their 968 report on the review of maximum penalties: 'We view the partially suspended sentence as a legitimate means of exploiting one of the few reliable pieces of criminological knowledge— that many offenders sent to prison for the first time do not subsequently reoffend. We see it not as a means of administering a "short, sharp shock," nor as a substitute for a wholly suspended sentence, but as especially applicable to serious first offenders or first-time prisoners who are bound to have to serve some time in prison, but who may well be effectively deterred by eventually serving only a small part of even the minimum sentence appropriate to the offence. This, in our view, must be its principal role".
Having reached the age of anecdotage, perhaps I may be allowed to give one reminiscence from the occasion when I was in charge of sentencing seminars. In groups of no more than four we used to attend at various prisons to get the advice of the prison governor. I remember going to Wormwood Scrubs with a group of three others. The governor said to me, "We are not involved in psychiatric work but we do find for some odd reason that group therapy among

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some of the odder inmates here— the compulsive drug takers, the sexual deviants and the like— is of some value. Perhaps one of you, and I only invite one so that it does not interfere with the day's proceedings, might like to go and listen". Being used to having to volunteer on an alphabetical basis, I agreed to go.
As I marched across with the warder a terrible thought suddenly struck me and I said, "I am going there merely to listen to what is going on?" "Yes", he said, "of course." We arrived at the three cells which had been converted into one. The warder in charge stood up and saluted. He said, "I have told everybody present that we have the advantage of a High Court judge's presence, and we are cancelling our present programme so that each and everyone here may have the opportunity of asking you questions".
One of the questions I was asked was, "What does it feel like for one of you judges sentencing the likes of us to prison?" Thinking fast on my seat, I said, "In many cases you know before I do that you are going to prison, particularly those who have had suspended sentences". Then we passed on to something else. A little while later the person who had asked that question said, "I thought that was a very unfair answer that you gave". I said, "About what?" He said, "About suspended sentences. I had a suspended sentence. I didn't know". I said, "Are you telling me that the judge who imposed the suspended sentence didn't tell you that if you committed an offence of any significance hereafter to prison you would go?" "Oh, yes", he said, "he told me that". I said, "Then what on earth are you complaining about?" "I didn't know what it was like", he said. I said, "If the judge had taken you to the front door and pushed your head through and said, 'Take a look at that', would that have made any difference?" "Oh, yes," he said, "I wouldn't have been there". That is an indication of how the first experience can be so particularly therapeutic.
In the old days the wise old judge on Assize, visiting an Assize town for only about a fortnight, would have those who pleaded guilty brought up for the plea. On the first day he would then say in many cases, not intending to send the person to prison, "Well, this is a very difficult case. I shall want to think about it during the course of this Assize. You'd better be remanded in custody until the last day and then I shall see what I ought to do". On the last day he would make the appropriate speech, saying how nearly the prisoner had gone to prison, how fortunate he was to have the advantage and that he was going to be put on probation. Those 14 days inside waiting for the Assize judge to pronounce what the prisoner thought might well be a prison sentence was very valuable. It is not permitted nowadays, but let us not lose the partially suspended sentence.
5.15 p.m.
Lord Waddington: The Government's reasons for abolishing the partly suspended sentence were clearly set out in the White Paper Crime, Justice and Protecting the Public. They followed the proposal to that effect put forward by my noble friend Lord
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Carlisle of Bucklow in his most valuable review of the parole system. My noble friend pointed out, and the Government agree with him, that the partly suspended sentence does not fit easily with the new arrangements proposed for parole.
Under my noble friend's proposals, which as the Committee is aware are very closely reflected in Part II of the Bill, all those who receive a custodial sentence will serve at least 50 per cent. of their sentence in custody and the remaining term in the community either under supervision or at risk of being returned to custody if they commit a further imprisonable offence. That places them in a very similar position to people who might currently be given a partly suspended sentence. As such we can see little purpose in keeping this disposal.
It is also fair to say to the Committee that in the seven or eight years during which the courts have had this disposal available to them they have not chosen to make much use of it. In 1987 there were 2,700 partly suspended sentences; and in 1989 there were 2,200, only 5 per cent. of all sentences of imprisonment which were passed by the courts.
In those circumstances, I cannot advise the Committee to accept the amendment.
Lord Elton: The noble and learned Lord, Lord Ackner, has underlined the merits of the very short sentence, in effect of 14 days. Perhaps it is unfair to ask him this question at such short notice; but before my noble friend sits down, can he tell the Committee what is the shortest sentence that can be imposed under the present Bill if partially suspended sentences are removed as proposed?
Lord Waddington: I do not know that there is any restriction on the court. I should imagine that it is possible for the court to impose the shortest sentence which it thinks is feasible in the circumstances. However, one cannot imagine a court in practice imposing a sentence of one day, because by the time the fellow had got to court he would be entitled to be released again. So far as I can remember, there is no restriction in the Bill on the length of the prison sentence.
Lord Gisborough: I support the amendment. As the noble and learned Lord, Lord Ackner, has said, from all accounts the first few days in prison and the regime are a shock. However, after a number of days— perhaps a week or a fortnight— people become accustomed to prison and the shock wears off. In many cases the ideal sentence would be that one week before the villain had had time to get used to imprisonment so that he would not want to go back. After two weeks he begins to get used to it and finds that it is not so bad and he knows that he can stand it. The partially suspended sentence would be helpful.
Lord Renton: I was beginning to think that the arguments for and against the amendment were rather finely balanced until my noble friend the Leader of the House came to the last fact that he presented to the Committee when he said that 5 per cent. of sentences were partly suspended and partly for imprisonment. That 5 per cent. is significant and useful. If we seek to

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achieve a certain degree of flexibility of powers for the courts, it is important for them to be able to continue to send 5 per cent. of prisoners to prison for a partly suspended sentence. It would be a great pity if my noble friend were to invite the Committee to turn down the proposal. I hope that we can consider what he and the noble and learned Lord have said and perhaps come back to the matter at a later stage. It is not an easy matter and the arguments are finely balanced.
Lord Waddington: I must point out to my noble friend that the small number of people who were subjected to a suspended sentence which was part of a total sentence, part of which was put into effect, related to a time before the new proposals on parole had been implemented. Even under the present set-up, comparatively few people receive partly suspended sentences, but there will be little point in the partly suspended sentence when the new parole regime, which is dealt with in a later part of the Bill, comes into effect.
Lord Monson: I am grateful to the noble Lord the Leader of the House for his reply. I admit that I am at fault in not having had time to read the Carlisle proposals, although I believe that I am right in saying that no Government a re under any obligation to accept such proposals in toto: they can pick and choose.
Like the noble Lord, Lord Renton, I was somewhat staggered by the statistic given by the noble Lord, Lord Waddington. Five per cent. is quite a substantial proportion. I should have thought that that in itself proves the merits of retaining the power.
The noble Lord, Lord Gisborough, put the arguments very cogently. It is the experience of two or three weeks in prison that deters people. As we have had one anecdote this afternoon, perhaps I may briefly relate another. About 13 years ago, just after the measure became law, I spoke to an elderly judge one evening and asked him whether he approved of these powers. He said, "Not a bit of it. Prisons are so soft and cushy nowadays. Young people will go to prison for a few weeks and think, 'My goodness me, there's nothing wrong with a life of crime if this is all I face". As I said, he was a fairly elderly judge and I do not think that in practice many young people today would react in the way that he suggested.
I am most grateful to my noble and learned friend Lord Ackner for his extremely powerful support, even though we may have some minor quibbles over the precise interpretation cif the phrase "short, sharp shock".
I believe that there is much more support for the principles of the amendment than is evident this afternoon and that it is riot solely confined to any one party. I do not therefore propose to press the amendment this afternoon but reserve the right to come back at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 agreed to.
Clause 5 [Restrictions on imposing community sentences]:
Lord Ackner Lord Ackner moved Amendment No. 28A:
Page 4, line 21, leave out subsection (1).
The noble and learned Lord said: The amendment is designed to inquire, when dealing with community sentences, particularly a probation, community service, curfew or supervision order, on what basis one can justify that such an order can be imposed only where the seriousness of the offence warrants it. That seems to be inconsistent with the philosophy regarding probation orders. If one looks at Clause 7 at the bottom of page 5, one sees the express reference to one of the aims being to secure rehabilitation. Clause 10(2), which deals with supervision orders, contains the same reference towards the bottom of page 8 and states that the making of a combination order is desirable in the interests of securing rehabilitation.
If, as has certainly been my experience, rehabilitation has generally been the main motivation for a probation or supervision order, to pui: in its place a provision that it can be imposed only because the seriousness of the offence warrants it seems to be a departure which is inconsistent with the philosophy in Clauses 7 and 10. It may be that you must remove a probation, curfew or supervision order from the community order defined in Clause 5(5), but to impose seriousness as the test seems to frustrate a great part of the reasons for imposing some community sentences. I beg to move.
Lord Renton: What I find rather curious about subsection (1) is that it is there at all bearing in mind that the courts are asked not to make community orders unless the offence is serious enough for the sentence. Does that not apply to every kind of sentence that the court must consider and impose? Are we not teaching our grandmothers to suck eggs when we say that? It may be that I have failed to understand the significance of the point, but it is not the kind of thing that we normally need to say in the course of legislation on common law.
Lord Mishcon: The noble Lord the Leader of the House is most courteous. I wanted to intervene so that the Committee may have an opportunity to see the wider area which the noble and learned Lord, Lord Ackner, has in part covered. As I see it, the new clause to which he refers makes probation a matter of a conviction. That situation has not obtained until now.
Some of the debate is complete. I shall not weary the Committee by repeating my speech when we come to Amendment No. 45. I thought that I would make the point now so that it can be discussed.
Lord Waddington: The simple answer to the point made by my noble friend Lord Renton is that one goes right back to the beginning of the Bill and finds in Clause 1 the concept of the sentence being the one which is appropriate according to the seriousness of the offence and which concentrates the mind of the sentencer on the instant offence and nothing else. That is refined a little subsequently, but it is the origin of the concept.
Lord Renton: With respect, that refers to custodial sentences. I found that understandable. I do not find this quite so necessary or understandable in the case of those non-custodial sentences of the kind listed here as those to which a community order may be applicable.
5.30 p.m.
Lord Waddington: With respect to my noble friend, he has moved on to the second point. The first point is that the clauses quite logically start with the proposition that the sentencer must concentrate initially on the seriousness of the offence. That concept is clearly spelt out in Clause 1.
When one goes down from sentences of imprisonment to community penalties one can well understand the initial surprise with which the concept of "seriousness" may be greeted. But I hope to persuade the Committee that the idea is both a logical, important and practical step towards achieving the Bill's object of making sure that each offender, whatever the crime, receives the appropriate sentence.
It is too easy to see community penalties as a bit of a soft option. In the case of a probation order, that view up to now has been rather reinforced by its not having the status of a sentence of the court. But we are changing all that, and doing so not least because of the way in which probation orders have changed over the years. When the order was first introduced the intention was that it should be used mainly for first or relatively trivial offenders. Probation orders have recently been used increasingly for persistent offenders and those whose offences put them at risk of custody. In 1989, 86 per cent. of people given probation orders had previous convictions, and 38 per cent. had served a custodial sentence. Probation orders are now used for quite serious offences. In 1989, 11 per cent. of those given probation orders were convicted of violence against the person and 20 per cent. of burglary.
The probation order is now a penalty which can make significant demands on relatively serious offenders. For the vast majority of offenders (some 86 per cent. in 1989) a fine or discharge is the appropriate disposal. There is no point in taking up the time and expertise of the probation service looking after offenders who can be dealt with perfectly well by fines.
At the other end of the scale are custodial sentences, which in general, according to Clause 1 of the Bill, are to be imposed only where such a sentence can be justified to mark the seriousness of the offence. Community penalties are for those offences which are not so serious as to require the use of custody but which are more serious than can be adequately dealt with, for instance, by a fine or conditional discharge. The wording of Clause 5(1) reflects in relation to community penalties the principle that the first factor to be considered in determining the penalty to be imposed is the seriousness of the offence. Clause 5 does not set an absolute standard of seriousness which has to be satisfied, nor does it make the seriousness of the offence the only matter to be taken into consideration when awarding a community penalty.
In encouraging the trend for the probation service to work increasingly with more serious offenders, we do not suggest that the service abandons its work with
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less serious offenders whom it can help; but we feel there needs to be some threshold of seriousness before the resources of the probation service are committed. The court will have to be satisfied that the offence is serious enough to justify this, but it will be up to the courts to make the necessary judgment. The offence would not have to be all that serious to warrant a straightforward probation order without additional requirements. On the other hand, if the court were minded to give a combination order, with the maximum number of community service hours coupled with intensive probation supervision, I think it is right that the offence should be quite a serious one before that is done. Having decided under subsection (1) of Clause 5 that community service is justified, the court will be able to consider under subsection (2) which community sentence will provide a restriction on liberty adequate to punish the offence as well as being the most suitable for the offender: for example, by providing help to tackle the causes of his offending.
I hope that with that explanation the noble and learned Lord will accept that subsection (1) of Clause 5 serves a necessary and useful purpose and fits into the scheme and concepts of the Bill developed right from Clause 1.
Lord Mishcon: With his usual kindness, the noble Lord, Lord Renton, has pointed out to me that I used a wrong word in my brief intervention. I should not have said "conviction" but "sentence". At the moment probation orders are not sentences but they will be if the Bill is passed in its present form. I am most grateful to the noble Lord.
Lord Hutchinson of Lullington: I should like to resist the noble and learned Lord's amendment and to say to him, if I may, that he is clearly stuck in the old sentencing culture. I entirely support what the noble Lord the Leader of the House has said. The whole purpose of the Bill is that community penalties are not soft options. They are in many ways more demanding of offenders than just rotting in prison doing nothing whatsoever. It seems to me that the purpose of the Bill is to try to alter the judiciary's present view that community sentences are soft options and that the only hard option is prison. With the greatest possible respect to the noble and learned Lord moving the amendment, I think it essential that if the Bill is to be successful when it eventually leaves the Chamber, the judiciary, of which he is such a distinguished ornament, should appreciate that those days are now over.
The present philosophy of sentencing is to get away from the total failure of the past philosophy and the complete negativeness and uselessness of sending people to prison over and over again, merely teaching other people how to get through the same circulating door. Here at last is a Bill which is going to stop that eternal practice and make it perfectly proper to impose community sentences, not prison sentences, over and over again. Therefore, I am very much against the amendment. I hope that the noble and learned Lord will, by the time the Bill leaves this place, realise that perhaps the Government are right on this occasion.
Lord Gisborough: Though I do not agree with the proposal, I can see some point in it in relation to community service orders. However, I find it very difficult to see that curfew orders should be subject to subsection (1) of Clause 5.
The noble Lord, Lord Hutchinson, referred to people going to prison aver and over again. However, there are some villains who continue to do the same thing over and over again and are a danger to the public. I dread to think what the public would say if such offenders were just given more and more community service which they failed to carry out and could not go to prison.
Lord Ackner: With the deepest respect to the noble Lord, Lord Hutchinson. once again the needle has got stuck on the record with his constant refrain. He has missed the whole point of the amendment, which I am sure is my fault. The amendment is designed to ensure in particular that probation and supervision orders are not restricted but should be available in the widest possible way and accordingly should not be tied in with the seriousness of the offence.
I refer the noble Lord to a memorandum which I understand was sent to the Home Office by the Council of Her Majesty's Circuit Judges:
"We consider that it is wrong in principle to associate the making of, in particular, Probation or Supervision Orders with the seriousness of any offence/s committed. Judges"—
perhaps the noble Lord will pay particular attention—
"have always taken the view that what is important above all in very many cases is the rehabilitation of the offender and/or preventing him/her from further offending. In innumerable cases it has been found that the making of supervision or probation orders for obviously minor offences"—
that is to say, those that are not serious—
"has introduced a measure of sanity into the chaotic domestic background of a persistent petty offender or a young person frequently cautioned".
How that personifies the carnivorous judge that the noble Lord constantly shows us I totally fail to follow.
This is a request by the judiciary, particularly those dealing with this: "Please do not restrict us in the use that we make of, in particular, probation or supervision orders. We want to rehabilitate people. We do not want to send them to prison. In fact we never have". That is the whole purpose of this amendment.
On Question, amendment negatived.
[Amendment No. 29 not moved.]
Lord Waddington Lord Waddington moved Amendment No. 30:
Page 4, line 35, leave out subsection (3).
The noble Lord said: I beg to move.
Lord Elton: I should like to speak briefly to this amendment. I should do so more lucidly had the piece of paper which contained my notes not escaped from my hand in the past 30 seconds. The purpose of the two amendments which I tabled to the subsection which this amendment seeks to remove from the Bill is to elicit a response from the Government. I hope therefore that I may speak briefly on the subject.
The amendments to which I refer are Amendments Nos. 30A and 30B. They fall within the subsection which Amendment No. 30 now before the Committee seeks to remove from the Bill. I do not resist the
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proposal to remove it. I speak to the two pilot fish which I have put to swim beside this shark before it disappears.
The Deputy Chairman of Committees (Lord Nugent of Guildford): I should have explained to the Committee that Amendment No. 30 pre-empts the two amendments of the noble Lord, Lord Elton, which is the full justification of his wish to speak.
Lord Elton: I am most grateful. The difficulty which this amendment addresses is that many people who are sentenced by the courts for a second time arrive in court not because they are highly organised and vicious criminals but because they are highly disorganised, inadequate people. The effect of a second sentence is often to put before them requirements in addition to the requirernent of the first sentence which in itself was almost as much as they could cope with. In some statutes the court is required to consider the ability of an offender to discharge the requirements of a sentence before it is made but in other statutes it is not so required.
It has been represented to me that there is a large number of cases in which inadequate people, very often inadequate young people, are given requirements by a court making a second sentence which are too complicated for those people satisfactorily to carry out. One would expect that a court would have in mind the ability of the convicted offender to meet its requirements before it imposed those requirements on him. However, it seems odd that that requirement should be explicitly put on the courts in some legislation and completely omitted in other legislation. As a result there are cases of practitioners in this field being worried by the phenomenon.
The amendments are simply to draw this concern to the attention of the Government. I shall listen to their reply, in the light of which it may be possible to decide whether I ought to put something down to a part of the Bill that will remain in the statute at a later stage.
5.45 p.m.
Lord Waddington: Perhaps I may be allowed to rise to allay the fears which have been expressed by my noble friend. In fact there are several provisions already to ensure that unsuitable community sentences are not given.
Clause 5(2) (a) provides that the particular community order passed on the offender by the court must be the most suitable for him. Clause 6(2) requires a court to consider a pre-sentence report before deciding whether an offender would be suitable for a supervision or probation order with additional requirements, a community service order or a combination order. In addition to all that, Section 14 of the Powers of Criminal Courts Act 1973, as amended by Clause 9, prevents a court making a community service order unless it is satisfied that the offender is a suitable person to perform community service work. Then again, when a court makes a probation order with a requirement to undertake specified activities or to attend a probation centre, or when it makes a community service order or a curfew order, it is required as far as practicable to avoid any

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conflict with the offender's religious beliefs or with the requirements of any other community order to which he may be subject, or interference with the times at which he works or attends school or any other educational establishment.
So far as curfew orders are concerned this appears in the Bill in Clause 11 and the conditions apply to the other orders by virtue of the Powers of Criminal Courts Act 1973. No community penalty could be held to be suitable for a particular offender if that offender was unable to comply with its requirements. Of course the courts will have to distinguish between a genuine inability to comply with a particular requirement— for example, because the offender was too ill to be able physically to do the demanding work of a community service order— and cases in which it was merely inconvenient for the offender to comply — for example, because the offender could not be out and about when he wanted. But community penalties are a restriction on liberty and that implies a certain amount of inconvenience to the offender.
I hope that when my noble friend reads in Hansard the report of the discussion and goes through all the various references which I mentioned, he will see that indeed it would be quite inappropriate and wrong for the court to impose a community sentence when the offender was not able to comply with the requirements of the sentence.
Lord Elton: I am most grateful to my noble friend for that lengthy and detailed reply. He is quite right. I shall have to study it between now and the next stage. I can assure him that I am not concerned with cases in which either illness or mere convenience are the matters at issue but with those in which the disorganised nature of the young person is concerned. All of us have in our families, if not children, at least nephews or nieces— I say that in order to absolve noble Lords who are sensitive about their immediate family— who with the best will in the world cannot get their act together and fall into great difficulties as a result. It is those people with whom I am concerned.
I am most grateful to my noble friend. I shall see whether his catalogue covers all cases. In the interim I hope that his officials will also consider why there is this general anxiety that inappropriate orders are nevertheless made. At the next stage we can cover that ground.
On Question, amendment agreed to.
[Amendments Nos. 30A and 30B not moved.]
[Amendments Nos. 31 to 32A had been withdrawn from the Marshalled List.]
Lord Richard Lord Richard moved Amendment No. 33:
Page 4, line 47, leave out paragraph (d).
The noble Lord said: I speak in relation to two matters which have been grouped together. The first is the new curfew order and the second is the enforcement of the curfew order by electronic tagging.
This group of amendments would delete Clause 11 of the Bill which introduces the curfew order as a sentence of the court; and Clause 12 which provides
1386
for curfews to be enforced by electronic monitoring of offenders. Perhaps I may say a few words about curfews and then about electronic tagging.
The curfew order in our view is a wholly negative measure which does nothing to change offenders' attitudes towards criminal activity. In contrast, measures such as community service, probation orders and reparation to victims involve working with offenders to try to change their attitudes and to divert their energies in more constructive directions. Curfew orders do none of that. They are indeed exactly what they say: an attempt to impose a curfew on an individual as a sentence of the court.
It is interesting that the courts so far appear to agree with the analysis that it is a negative and not very helpful power. Since 1983 curfew requirements have been available to juvenile offenders as a condition of supervision, but they are hardly ever used. In 1988 fewer than 10 curfew requirements were imposed on juveniles in England and Wales. In contrast, during the 1980s the courts have made extensive and very successful use of constructive measures such as intensive supervised activity schemes for juveniles and probation day centres for offenders aged 17 and over. The power regarding juveniles has existed since 1983. If it has not been used, one is bound to ask why not. The short answer is that the courts are not prepared to impose sentences which they know they cannot enforce. That must have been apparent at some stage to the Government when, having decided that they liked the idea of curfew orders, they had to find some way of enforcing them. The idea of electronic tagging therefore emerged.
The origin of the tag was in Albuquerque in New Mexico in the United States of America. Judge James Love studied the exploits of someone called Spiderman in a comic cartoon. I am told that Spiderman in that issue of the cartoon had been trapped in a net by the evil Mr. King Pin. Mr. King Pin bragged apparently that Spiderman would be his permanent prisoner. He therefore attached an armlet to the beleaguered hero in order to track him over the city on a giant monitor screen. Judge Love was a person of technological bent, with some experience in electronics, who had some contacts in the electronics industry. He briefed some friendly technicians— and so penal policy in Albuquerque, New Mexico, was developed.
By the time tagging arrived in this country via Marconi UK it had been developed in Florida. Marconi UK concluded from their knowledge that:
"of the current American experience besides the normal professional recommendations from probation, Legal and Psychiatric Reports, the following is the basic criteria for allowing/selecting suitable potential wearers".
First, they should be a minor or first-time offender or have a previously clean record. Secondly, they should have some form of fixed abode. Thirdly, they should be in employment. Fourthly there should be an available telephone. In other words, the blueprint tagee (if that is the right word) is exactly the person who would not need the tagging anyway because of his nature and social background.
In August 1988 the Home Office invested in three electronic tag pilot schemes for remand prisoners. The

1387
numbers were small. Three courts were involved in Tyneside, Tower Bridge and Nottingham. The Home Office hoped for 150 tags. In fact only 50 people were monitored, including one man who was counted twice. Of the 49 individuals, some 29 either breached their house arrest conditions or were charged with a further offence. Three of the 29 were allowed to continue in the scheme. Of the remainder, six had their tag removed because the criminal charge was varied, in one case because there was a need for a leg operation. In three cases the charge was withdrawn. Eleven defendants completed without breach. Of those, five were imprisoned, three received community service, two were put on probation and one found not guilty. Nearly 80 per cent. therefore breached, violated or removed the device.
Throughout the six-month period, there was a steady stream of disaster stories. In Tyneside a defendant was about to be tagged but escaped from the court by jumping out of the dock before the anklet could be fitted. Another absconded to the South East of England losing his tag on the way. In London two young men from Scotland were tagged with a condition of residence. Later they appeared on television. The reporter, who ought to have known better, paid them a fee. They hit the pubs, went on the run, and, so far as is known, one of them certainly has not been seen since.
In Nottingham, the very first man to be tagged complained of the number of home visits from Securicor, the scheme operators, to check alleged violations. He claimed that the device did not work in certain parts of his flat. Many landlords were reluctant to accept bailees with tags because of the intrusive nature of the scheme. The authorities therefore found a lodging house that agreed to accept them. Unfortunately the first defendant referred demanded to be returned to court because he said that the lodgings were infested and that Lincoln Prison would be a preferable residence.
Finally, the experience of Mr. T offers a fair summary of the scope of the problem. He was charged with burglary and ABH. He had 17 previous convictions. During the experiment probation staff reported that he had 28 violations— which did not lessen police hostility towards tagging. He absconded last January, was rearrested, de-tagged and remanded in custody. His case officer believes that he was later hailed but failed to turn up for his sentence. A Bench warrant was then issued. In all there were 217 violations, 159 equipment failures including tamper alerts, dead spots, home unit failures, battery failures, and— the Committee will not be surprised to hear— British Telecom line faults.
This scheme has been in use at some stage in the United States of America. In Washtenaw County, Michigan, a study from 1987 to 1988 revealed that offenders were rejected from tag schemes on the grounds of probable failure, if (1) they were convicted of assault; (2) they had a history of flight behaviour (which I assume means running away and does not refer to aviation); (3) they had been involved with
1388
drugs; (4) they did not have a permanent residence; or (5) they did not possess a 'phone. As a result only 12 offenders were accepted out of the 223 considered.
With that background and with that history on the Government's experiment, seriously to suggest to the Committee that it is a method that a reputable court would be prepared to attempt to use in order to enforce a curfew order is, I hope, a suggestion that the Committee will not accept.
The total cost of the experiment was £ 700,000 to deal with 50 defendants. If my arithmetic is correct, that is about £ 14,000 per defendant. That is about the annual salary of a probation officer. For the £ 700,000 which the Government spent on producing this farcical scheme we could have employed 50 probation officers for one year doing a far more: useful job.
Electronic monitoring would do little or nothing to divert offenders from crime or prison. Courts in the experimental areas have considered few people to be suitable for electronic monitoring. Most people have broken their bail conditions and more than £ 500,000 has been spent on experiments which have proved a dismal failure. Unlike community service and probation orders— regrettably the Government appear to be serious about the matter so it behoves us to look at it seriously— it is a wholly negative measure which does nothing to change offenders' attitudes towards criminal activity.
If the same resources which are to be used to set up the system of curfew orders backed by electronic monitoring were used to finance more constructive community penalties, many more people could successfully be diverted from custody. These measures are more likely to divert the offenders at whom we are aiming, most of whom have disorganised and chaotic lifestyles, not from crime but towards it. I beg to move.
6 p.m.
Lord Harris of Greenwich: In the light of what was said by the noble Lord, Lord Richard, I must make an admission. When the matter was first put before some members of the all-party penal affairs group, I did not oppose it. At that time my view was that those of us who spend a great deal of time telling i he Government to reduce the number of prisoners on remand should be sufficiently open-minded when such proposals come before us.
On the basis of what I then saw, I became sceptical for one reason. All the evidence put before us by a well-motivated private citizen who talked to us about the matter drew on American experience. Even on the basis of what he put before us as an enthusiast that experience indicated to me that it was unlikely to be reproduced in the British courts. I took that view for one reason; that on the basis of cases in the state of Florida if the measure were seen as an alternative to custody, it was highly unlikely that any of the people who had a tagging order made against them would be remanded in custody in this country. They were alleged to have committed extremely minor offences.
Nevertheless, Mr. Patten was a great enthusiast for the measure. I say that with no criticism because many of the sensible proposals in the Bill appear as a result

1389
of his energy as a junior Minister in the Home Office. It is now almost inconceivable that we shall solemnly pass the proposals. The research was carried out by the Home Office whose evaluation report stated:
"Magistrates and judges did not seem to have much confidence in the applicability of electronic monitoring as an alternative to a remand in custody, and commented on the difficulties of finding suitable candidates for it. They were willing to countenance a trial with a limited time-span, but if monitoring were to be introduced on any national basis then much greater confidence in the system on the part of both these groups would be vital".
On the basis of the evidence that we have from the three magistrates' courts in different parts of the country it is obvious that there is little support for the idea in the magistracy. Furthermore, some of the police officers involved have reacted with a gale of laughter. Notwithstanding the evidence of the experiments, are we to be asked by the Minister to put the measure on the statute book? The noble Lord, Lord Richard, was entirely justified in making his devastating analysis of the situation. I hope that at this late stage the Government will not proceed with this wholly daft idea.
Lord Donaldson of Kingsbridge: I congratulate my noble friend Lord Richard on a splendid knock-about turn. We all enjoyed it very much. I fully support his objection to the use of the idea as proposed. I do not argue with my noble friend Lord Harris; I believe it is wrong to introduce the measure in this context. However, looking at the issue as an ordinary person one might ask whether it would be better to be in prison while one's wife and family are receiving assistance or with the governor's permission, whose confidence after some time one has acquired, go out on a tag at one's request and risk?
That is not an issue for discussion tonight because it does not yet arise; but I believe that eventually the measure will be used in that way. It is an inappropriate weapon for the courts and certainly inappropriate for the police. However, after much refinement it would be an appropriate method for a governor who, like the governor at Grendon 15 years ago, could let out for weekends people who had done the most terrible things saying, "I shall take the responsibility because I trust that chap and he will be back". He never failed. Many more governors would like to do that but they do not have the confidence and courage of Bill Gray. This measure might provide that and should not be dismissed only with laughter, although the suggestion is ridiculous as it appears in the Bill.
Earl Ferrers: We can conclude from the speech of the noble Lord, Lord Richard, that he does not like curfew orders. The effect of his amendment would be to diminish the range of community orders from which a court could choose in imposing a community sentence. In following the sentencing provisions in the Bill, a court will ask itself whether an offence is so serious that it must impose a custodial sentence. If the answer is no, the court will then consider a community sentence. However, if the amendment were accepted, the court would not be able to include a curfew order. It would not be able to combine it with other community orders such as a probation order.
1390
Therefore, a court would have fewer options for imposing a suitable sentence for the offender which also accorded with the seriousness of the offence.
The noble Lord, Lord Richard, made an engaging speech described by the noble Lord, Lord Donaldson, as "knock about". So it was and it was jolly good fun to listen to. However, it was a Queen's Counsel at his best. Poor defendants pay Queen's Counsel a great deal of money to make engaging and jovial speeches diminishing a good cause. I was worried because the noble Lord, Lord Richard, reminded me of the politician who noted at the side of his speech, "Weak points! shout!". The noble Lord made a jolly speech over a weak point. The weakness was in saying that all these people have escaped and disappeared or appeared on television. That is a good argument for putting them in prison. The point of not doing so is in order that they can serve their community outside.
The curfew order and electronic tagging will not prevent a person from escaping. However, it will indicate when he has absconded and not fulfilled his obligations. If the noble Lord, Lord Richard, says that that is wrong and people subject to an order will abscond, it is an argument for keeping them in custody. I do not believe that that is in accord with measures for which Members opposite have been pressing; and certainly not with the noble Lord, Lord Hutchinson, whom I had thought would jump at such a proposal.
Curfew orders fill an obvious gap in the range of community sentences available to the courts. I should have thought that they would be welcome by all those who wish to see more offenders being dealt with within the community and not kept in custody. The noble Lord, Lord Richard, said that a curfew order is a negative measure. I see nothing negative about an order which not only keeps the offender out of prison but which also helps him to keep out of trouble. A curfew order rightly restricts his liberty and it is restricted by him being at home. That is the punishment for the offence which he has committed. However, the restriction is for no more than 12 hours per day and could be for as few as two hours per day.
The noble Lord, Lord Richard, said that there are many failures in the monitoring system. Fifty defendants were monitored in three trial areas. A number absconded and were charged with other offences. It is not sensible to compare those results with general violations of bail. Obviously monitoring allows violations to be detected which would otherwise remain undetected.
The noble Lord referred to the total cost of the electronic monitoring trials. He said that £ 700,000 is a lot of money. Of course it is. However, it was a trial scheme. It established three different schemes on an experimental basis and involved special production of the equipment needed. That does not provide a realistic average cost for the use of electronic monitoring on a large scale.
Let us be perfectly clear that a curfew order enables a person to be sentenced not to custody but to a sentence within the community. It enables him to be at home under surveillance at times when the court may deem it suitable. In other words, if the person has been

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convicted of causing trouble at football matches, he may be told to be at home during the time a match is taking place. If he has been in trouble during pub opening times, he may be told to remain at home at those times. Electronic monitoring merely ensures that he is serving his sentence properly. If he does not, that is an offence.
If one does not accept that argument, one is really saying that people must be allowed to serve their sentence in the community without any check or those people are so bad and so likely to abscond that they cannot be allowed to serve the sentence within the community. With the greatest respect to the noble Lord, Lord Richard, he made a very good fun speech but it does not stand up. Electronic monitoring enables people to serve their sentence within the community with a check.
6.15 p.m.
Lord Harris of Greenwich: The noble Lord, Lord Richard, made a very good fun speech but he was drawing on the Home Office research study of these experiments. These experiments have been an abject failure. The cost does not concern us. If the cost had been double or treble the sum of £ 700,000 but the scheme had worked, we should be very much in favour of it. As I indicated, many of us began this process some years ago by being in favour of the experiment.
One purpose of an experiment is to find out whether or not something works. This does not work and has been a disaster. All one can say in the light of that situation is that it was right to attempt to see whether it would work. It has failed and it seems to me the Government are being stubborn by insisting on proceeding with a project which will, if developed throughout the rest of the country, cost substantial sums of public money.
If the noble Earl has any doubt about that perhaps he will look at the Home Office research study. It states:
"If electronic monitoring is to be developed then it will surely be on a national basis. This will ensure that the costs of the system will be high. Given the low numbers deemed suitable for monitoring during the trials, and the moves towards individualised disposals for offenders which focus on their specific offences, will there be enough candidates to make electronic monitoring financially cost-effective?".
Those of us who participate in debates on the criminal justice system of this country know that in many respects this is an argument about resources. Ministers constantly tell us— rightly, in my view— that they cannot do everything at the same time and they must make difficult choices. We are merely saying that in our view this is an ill-judged choice if it is decided to proceed. In fact the Government will be deciding to have not enough probation officers in some areas or police officers in other areas to carry out the work. Resources will be poured into this project, which, on the basis of the Government's own experiment, has been a failure. That seems to me a great pity and I believe it to be a profound mistake.
Earl Ferrers: I find the argument of the noble Lord, Lord Harris— to whom I always listen with great interest— slightly difficult to follow. He says that the experiment has failed. Perhaps I may suggest that he
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should be careful when he says that because he is saying that sentencing in the community has failed. The noble Lord shakes his head but that is the case. The system has worked. It showed that 29 people absconded who were sentenced in this way. That does not mean that the system failed. It showed that those serving such a sentence did not stick to their part of the bargain but technically the system worked. Therefore, I do not believe that the Committee should be under any misapprehension. The system by which it is possible to electronically monitor people works.
The noble Lord says that it will cost a lot of money if the system is developed across the country. Of course it will. However, if he wishes to see prisons emptier then there must be a commensurate cost. The cost of running an electronic tagging system is far less than keeping people in prison. Therefore, I dispute the assertion by the noble Lord, Lord Harris, that the system has failed. It has not failed; it has worked because it has shown when people have not been where they should have been. That is the whole point.
Lord Richard: It seems to me that there have been two failures. The electronics of the system have been shown not to be universally applicable to precisely the sort of people whom one would wish to tag. The second failure is the idea that somehow or other it is possible to have, as an effective sentence of the court, a curfew enforced by that electronic system. That has failed. I am in exactly the same position as I was at the beginning of the debate. I believe it right to test the opinion of the Committee on this issue.
6.18 p.m.
On Question, Whether the said amendment (No. 33) shall be agreed to?
Their Lordships divided: Contents, 79; Not-Contents, 117.

Division No. 1

CONTENTS

Acton, L.

Hollis of Heigham, B.

Addington, L.

Houghton of Sowerby, L.

Airedale, L.

Hughes, L.

Ardwick, L.

Hutchinson of Lullington, L.

Birk, B.

Jay, L.

Blease, L.

Jeger, B.

Bonham-Carter, L.

Jenkins of Putney, L.

Boston of Faversham, L.

Kennet, L.

Bottomley, L.

Kilbracken, L.

Brooks of Tremorfa, L.

Kirkhill, L.

Carmichael of Kelvingrove, L.

Lawrence, L.

Carter, L.

Lloyd of Hampstead, L.

Cledwyn of Penrhos, L.

Lockwood, B.

Clinton-Davis, L.

Longford, E.

Cocks of Hartcliffe, L.

Lovell-Davis, L.

David, B.

Mackie of Benshie, L.

Dean of Beswick, L.

McNair, L.

Donaldson of Kingsbridge, L.

Mason of Barnsley, L.

Dormand of Easington, L.

Mishcon, L.

Falkland, V.

Morris of Castle Morris, L.

Foot, L.

Morris of Kenwood, L.

Gallacher, L. [Teller.]

Murray of Epping Forest, L.

Galpern, L.

Nicol, B.

Gladwyn, L.

Parry, L.

Graham of Edmonton, L. [Teller.]

Peston, L.

Grey, E.

Phillips, B.

Harris of Greenwich, L.

Pitt of Hampstead, L.

Hatch of Lusby, L.

Prys-Davies,

Hayter, L.

Rea, L.

Henderson of Brompton, L.

Richard, L.

Rochester,L.

1393

Russell of Liverpool, L.

Thomson of Monifieth, L.

Seear, B.

Tordoff, L.

Sefton of Garston, L.

Walston, L.

Serota, B.

Whaddon, L.

Stedman, B.

Williams of Elvel, L.

Stoddart of Swindon, L.

Willis, L.

Strabolgi, L.

Wilson of Langside, L.

Taylor of Blackburn, L.

Winstanley, L.

Taylor of Gryfe, L.

Winterhottom, L.

NOT-CONTENTS

Allenby of Megiddo, V.

Joseph, L.

Annaly, L.

Kimball, L.

Arran, E.

Kinloss, Ly.

Ashbourne, L.

Lauderdale, E.

Astor, V.

Lindsey and Abingdon, E.

Belhaven and Stenton, L.

Long, V.

Belstead, L.

Lucas of Chilworth, L.

Blake, L.

Lyell, L.

Bledisloe, V.

McColl of Dulwich, L.

Blyth, L.

Mackay of Clashfern, L.

Boardman, L.

Malmesbury, E.

Borthwick, L.

Mancroft, L.

Brigstocke, B.

Margadale, L.

Broadbridge, L.

Merrivale, L.

Brookeborough, V.

Mersey, V.

Brougham and Vaux, L.

Milverton, L.

Caithness, E.

Monson, L.

Campbell of Alloway, L.

Mottistone, L.

Campbell of Croy, L.

Mountevans, L.

Carnock, L.

Munster, E.

Cavendish of Furness, L.

Nelson, E.

Clanwilliam, E.

Newall, L.

Colwyn, L.

Norfolk, D.

Constantine of Stanmore, L.

Norrie, L.

Cork and Orrery, E.

Nugent of Guildford, L.

Cox, B.

Onslow, E.

Craigavon, V.

Orkney, E.

Craigmyle, L.

Oxfuird, V.

Craigton, L.

Palmer, L.

Cross, V.

Pender, L.

Davidson, V. [Teller.]

Platt of Writtle, B.

Denham, L. [Teller.]

Prior, L.

Donegall, M.

Rankeillour, L.

Elliot of Harwood, B.

Rees, L.

Elton, L.

Renton, L.

Erroll, E.

Renwick, L.

Faithfull, B.

Rodney, L.

Ferrers, E.

Romney, E.

Fisher, L.

Saltoun of Abernethy, Ly.

Flather, B.

Seccombe, B.

Fraser of Carmyllie, L.

Sharpies, B.

Gardner of Parkes, B.

Shrewsbury, E.

Gisborough, L.

Skelmersdale, L.

Greenway, L.

Slim, V.

Grimston of Westbury, L.

Stodart of Leaston, L.

Hailsham of Saint Marylebone, L.

Strathmore and Kinghorne, E.

Halsbury, E.

Swansea, L.

Hardinge of Penshurst, L.

Swinfen, L.

Harmar-Nicholls, L.

Thomas of Gwydir, L.

Harvington, L.

Tranmire, L.

Hemphill, L.

Tryon, L.

Henley, L.

Ullswater, V.

Hives, L.

Vaux of Harrowden, L.

Holderness, L.

Waddington, L.

Hooper, B.

Wade of Chorlton, L.

Hylton-Foster, B.

Whitelaw, V.

Jenkin of Roding, L.

Wise, L.

Johnston of Rockport, L.

Wynford, L.

Young, B.

Resolved in the ne gative, and amendment disagreed to accordingly.
6.26 p.m.
Lord Morris of Castle Morris Lord Morris of Castle Morris moved Amendment No. 34:
Page 5, line 2, leave out paragraph (f).
The noble Lord said: With the consent and authority of my noble friend Lord Richard I shall move the amendment standing in his name, which is a probing amendment seeking to elicit detail on the Government's policy and practice with regard to attendance centres. We believe strongly in attendance centres. For 40 years and more they have been cheap, local and realistic responses to certain kinds of crime. However, government policy at present seems to be strangely contradictory and paradoxical. In this matter the Home Office appears to be moving, like God, in mysterious ways its wonders to perform.
The Bill rightly places strong emphasis on community sentences. It is part of the underlying philosophy of the Bill that the greater number of offenders should be dealt with within the community. We applaud that; we support and encourage it. However, Clause 5(5) states that community sentences include attendance centre orders. Those orders should thus increase in significance, particularly in relation to young offenders where the emphasis on keeping offenders out of custody has always been much greater. Recently we have heard much of the "university of life". Prisons must not become the comprehensives of crime.
The latest edition of Attendance Centre News, a Home Office publication, glorifies 40 years of the attendance centre. It praises that method of sentencing. At page 15 it draws attention to the significance of such centres under the present Bill and states,
"the Bill will make a number of changes affecting young offenders. Seventeen year olds will be brought within the juvenile category. Along with 16 year olds they will form a new sub-group to whom special provisions will apply. The maximum length of Attendance Centre Orders for 16 year olds will be brought into line with that for 17 year olds at 36 hours (ie an increase of 12 hours). The Home Office is continuing to consider the implications of these proposals for the management of Attendance Centres".
The natural implication of those words is that an increase in facilities might be required. The only indication of any scaling down in provision is a relatively cursory one— again at page 15— indicating temporary closures at Oxford and Tonbridge. However, in December 1990 reports came to the Justices' Clerks' Society that junior attendance centres were being closed or amalgamated. There seems to have been no consultation or discussion; edicts have simply been issued to places like Basingstoke and Slough that they are to rationalise.
Inquiries established that the Home Office is currently closing junior attendance centres under a policy of rationalisation apparently based on present levels of use. Surely that is premature, given this Bill. The Justices' Clerks' Society wrote on 28th February 1991 to the Home Office complaining and asking for details, numbers and for a full explanation. As yet no reply has been received. Rationalisation in a matter like this is surely a dangerous policy. Attendance centres must be local or the clients will not bother to turn up.
We suggest a better alternative. Junior attendance centres that currently cater only for those below the age of 17 should be opening their doors to 17 year-olds in anticipation of the Bill's provisions. That would

1395
extend the facility to a marginally older group but one which is not adequately served in many areas of the country by existing senior attendance centre provision.
There is every reason to believe that courts would make good use of attendance centre orders for 17 year-olds if provision was increased in this way. I do not know what it costs nationally to provide attendance centres. I hope that whoever answers from the government Front Bench will be able to tell me. But common sense dictates that the attendance centre is one of the more economic provisions in the sentencing range. Typically, the costs are limited to the hire fee for a school hall on a Saturday afternoon plus two sessional fees of around £20 each for those employed to run the centre. To retain those we have, and to provide some more is surely not going to impose such a financial strain as will bring this great nation to its knees. If we do not, then Clause 5(5), as it stands, is no more than a pious hope willing the end but not providing the means. I beg to move.
6.30 p.m.
Lord Waddington: I think I understand what the noble Lord is saying; namely, that the Government are not prepared in future to provide enough attendance centres. If that is what the noble Lord is saying, then this amendment seems a most curious way of expressing that view. All this amendment does is to delete an attendance centre order from the list of orders which are community orders. Therefore the only effect of this amendment would be to maintain attendance centre orders but to free the courts from the disciplines which are imposed on them in respect of all other community orders when the courts are thinking of passing an attendance centre order. In effect, it would mean that the courts could still pass an attendance centre order but they would not have to be satisfied that the offence was serious enough to warrant the passing of an attendance centre order. The courts would not have to be satisfied that the passing of an attendance centre order was the most suitable way of dealing with the offender.
I cannot see much rhyme or reason in the amendment which has been tabled. The matter which the noble Lord raised does not seem to have any bearing on the amendment before the Committee. I have taken instructions quickly and if I have not been able to give the noble Lord as much information as he would like, I undertake to write to him and to give him any more information which I can obtain. The network of attendance centres exists to meet the demands of the courts for this provision. It is the case that some centres have been closed, but that is part of our programme of making sure that centres are available where they are needed and of not making them available where they are not needed. As I have said, I undertake to write to the noble Lord and answer any specific question which he raised as regards the provision of attendance centres.
Lord Morris of Castle Morris: The noble Lord the Leader of the House is marvellously diplomatic. As we know, a diplomat is the kind of man who can tell you
1396
to go to hell in such a way as to make you positively look forward to the journey. However, I find that his reply says nothing very much about the future of attendance centres save that there will be some measure of rationalisation going on. However, I am grateful to him for his offer to write to me. I shall study what he has to say and, without prejudice to bringing back this matter at a later stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mottistone Lord Mottistone moved Amendment No. 35:
Page 5, line 2, at end insert:
("( ) A court shall not pass on an offender a community sentence unless it is satisfied that the necessary resources are available.").
The noble Lord said: This is a small amendment on which I have been advised by the Magistrates' Association. As I understand it, the problem with the community sentence of the kind described in this clause is that it must be credible, realistic and effective as an alternative to custody. That must be clear not only to the public and the judiciary but also to the offender. These criteria can only be realised if one can be sure that there are the necessary resources available. As I understand it, as concerns the various magistrates' benches throughout the land that is not always the case. So it would be helpful if we can have a small paragraph of this nature added to the Bill in order to make sure that there is enough pressure brought to bear to have the resources to implement a proper community sentence. I beg to move.
Lord Richard: I ask the noble Lord the Leader of the House a question based on the amendment moved by the noble Lord, Lord Mottistone. I have great sympathy with the thrust of the amendment and the thinking behind it. However, it raises the issue of what happens if a court is satisfied that, the necessary resources are not available. In those circumstances, it may have decided, having gone through all the hoops, that a defendant should be put on probation, but the probation service is not sufficiently well-resourced to take the man. I am not sure what happens afterwards. When the noble Lord the Leader of the House replies, I shall be grateful if he will address himself to that point.
Lord Waddington: Most of us would agree that a number of offenders are sent to prison at the moment who could be more suitably dealt with in the community. Therefore it is a central theme of this Bill that there should be adequate community penalties available and that the courts should be encouraged to use them. It was always recognised that this would mean more resources for the probation service.
I have just refreshed my memory by looking at the last few pages of the White Paper on criminal justice published in February when I was at the Home Office. In the chapter on resources we went to great pains to indicate that if this new regime was going to work, and if we were to be successful in our efforts in keeping more people out of prison, that was going to need more resources for the probation service.
That is still the position. We plan to increase expenditure on the probation service by 12 per cent. in

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real terms in the next three years. We have made provision for a considerable increase in probation service manpower over this period. There will be nearly 1,100 additional probation officers. That is in anticipation of the increase in the service's workload that will arise from the Bill. We have faced up to the need to put the money where our mouths are, and also to face the fact that extra expenditure will be required in order to make more community service work.
I also point out that for certain kinds of community order the courts must already secure the agreement of those who will operate the order before it is made. For example, a probation order with a requirement to attend a probation centre may only be made if the person in charge of the centre agrees to accept the offender. Clearly such agreement would not be forthcoming if the centre could not cope because of lack of resources. I therefore invite my noble friend to withdraw his amendment on my assurance that we indeed recognise that, in order to make more community penalties available, in order to carry out the theme of the Bill, more resources will be required and have been planned.
Lord Harris of Greenwich: I agree basically with the thrust of the argument of the noble Lord, Lord Waddington. There is one problem that I raised on a previous occasion concerning the probation service which I should like to mention now. I accept at once that there will be a significant expansion of the probation service as a result of the passage of this Bill. As I said a few moments ago, I know that everyone throughout the criminal justice system complains about the shortage of resources, and the probation service is no exception.
Nevertheless, there is one curiosity about the probation service which, so far as I am aware, applies to no other part of the public service—though no doubt having said that I will find that there are precedents. A substantial amount of work is carried out by probation officers in reality on behalf of the Lord Chancellor's Department for divorce court welfare work. The problem is that this type of work has been expanding at a substantial rate, for reasons that we all understand.
I realise that what I am about to say goes way outside this Bill, but it seems to me desirable first that, if the probation service is going to continue to carry out this work, there should be some specific vote from the Lord Chancellor's Department towards the cost of the probation service. It seems quite wrong that a service which is primarily a criminal justice service should in fact be subsidising the Lord Chancellor's Department in this way.
Secondly, I welcome the document produced by the Home Office a few years ago, Priorities in the Probation Service, which indicated to my complete satisfaction that the probation service should be seen primarily as a criminal justice service. All I would say to the Leader of the House is that I hope that at some stage this matter will be looked into. I was, speaking for myself, perfectly satisfied with the reply of the noble Lord on this amendment.
Lord Waddington: I can undertake to the noble Lord to convey to my right honourable friend the Home Secretary what he said.
Lord Mottistone: I thank my noble friend the Leader of the House for the comprehensive answer he gave to the questions posed by my amendment. There will still be difficulties because inevitably it takes time to do the build-up, as indeed my noble friend said it would. It is clear that the problem that it represents is fully realised by my noble friend and his noble friends, and I therefore request leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Clause 5, as amended, agreed to.
Clause 6 [Procedural requirements for community sentences]:
Earl Ferrers Earl Ferrers moved Amendment No. 36:
Page 5, line 3, leave out subsection (1) and insert:
("(1) In forming any such opinion as is mentioned in subsection (1) or (2) (b) of section 5 above, a court shall take into account all such information about the circumstances of the offence (including any aggravating or mitigating factors) as is available to it.
(1A) In forming any such opinion as is mentioned in subsection (2) (a) of that section, a court may take into account any information about the offender which is before it.").
The noble Earl said: I beg to move Amendment No. 36 and to speak to Amendment No. 37. We discussed these amendments on the first day of Committee with Amendment No. 10. They are mainly of a technical and drafting nature and are intended to clarify the procedures in Clause 6(4) determining a community sentence. I beg to move.
Lord Renton: I venture to suggest that subsection (1) in the Bill as it stands and the amendment that replaces it are both unnecessary. Each of them means that the punishment shall fit the crime and fit the offender. We could have said that incidentally, but the courts know this. They do this.
There are times when I feel that we are quite unnecessarily over-zealous in the way that we legislate. We are entitled to an explanation as to why the Government think, or the draftsman thinks, that we have to spell things out quite in this way. So far as the amendment is concerned, it is obvious that these are the matters that the court has to consider.
Earl Ferrers: I quite agree that the court has to consider these matters. But they are put in the Bill in order to make it crystal clear that when the courts have before them offenders they have to take all these matters into consideration. It is considered appropriate to put the matter in the Bill in the way suggested.
Lord Gisborough: Is it not extremely dangerous to pass this sort of legislation? If we spell out everything in detail and if subsequently we find something that is not spelt out, we assume that it is not meant.
Earl Ferrers: Of course there is always a danger of putting too much in a Bill and of putting in too little.
Lord Renton: It may be that my noble friend has some further information that he now wishes to present to the Committee?
Earl Ferrers: My noble friend is enormously encouraging in giving me the opportunity to rise to my feet again. I do not wish to delay the Committee in any way. The only information I would have imparted to my noble friend is that which I gave at the beginning. The amendment is part of the general scheme set out in the Bill to guide the courts on practice to be taken into consideration in such a matter. Therefore, what I said in the first place still continues.
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 37:
Page 5, line 12, leave out ("for the purpose or) and insert ("before").
On Question, amendment agreed to.
[Amendments Nos. 38, 39, and 40 not moved.]
[Amendment No. 41 had been withdrawn from the Marshalled List.]
6.45 p.m.
The Deputy Chairman of Committees (Lord Strabolgi): Before calling Amendment No. 42, I have to inform the Committee that if No. 42 is agreed to I cannot call Amendments Nos. 42A or 43.
Earl Ferrers Earl Ferrers moved Amendment No. 42:
Page 5, line 19, leave out subsections (3) and (4).
The noble Earl said: This amendment is also of a technical nature and is to improve the drafting of the Bill. I say with deference to my noble friend Lord Renton that the amendment was discussed on the first day of Committee with Amendment No. 10, and I hope that this, like all the other amendments, will attract my noble friend's approval. I beg to move.
Lord Renton: May I say what pleasure it gives me to congratulate my noble friend on leaving out any part of this Bill.
Earl Ferrers: My noble friend's generosity is always boundless, and I greatly appreciate it.
On Question, amendment agreed to.
[Amendments Nos. 42A and 43 not moved.]
Earl Ferrers Earl Ferrers moved Amendment No. 44:
Page 5, line 34, leave out subsection (6).
The noble Earl said: I shall be even more in favour with my noble friend because this also is a technical amendment to improve the drafting of the Bill and also leaves out a little bit of the Bill. I beg to move.
On Question, amendment agreed to.
[Amendment No. 44A not moved.]
Clause 6, as amended, agreed to.
Clause 7 [Probation orders]:
Lord Mishcon Lord Mishcon moved Amendment No. 45:
Page 6, line 4, after ("may") insert ("instead of sentencing him").
The noble Lord said: There is one principle that the Committee may wish to accept immediately. If something is working satisfactorily, do not alter it. Let us at least listen carefully to the people who are carrying out the job if we are asking them to alter the
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nature of the work that they are doing. That is the background behind the amendment, which I invite Members of the Committee to accept. lt would ensure that a probation order does not, as this Bill says it should, amount to a sentence. I ventured to intervene earlier in order to bring the Committee's attention to the position under the Bill. I do so again now in moving my amendment, but in rather more detail.
As I indicated, the amendment seeks to maintain the present position. Perhaps I may re mind Members of the Committee of that. It exists under Section 2(1) of the Powers of Criminal Courts Act 1973 which provides that a probation order may be imposed where the court,
"is of opinion that having regard to the circumstances, including the nature of the offence and the character of the offender, it is expedient to do so, the court may, instead of sentencing him, make a probation order".
Moreover, Section 13 of that Act provides that,
"a conviction of an offence for which an order is made … shall be deemed not to be a conviction for any purpose other than the purposes of the proceedings in which the order is made and of any subsequent proceeding which may be taken against the offender under the preceding provision, of this Act".
We carried that provision forward in that spirit in our legislation when we passed the Rehabilitation of Offenders Act in 1974. That Act declares that a probationer's "conviction" becomes "spent" as soon as the order is successfully completed, or a year after the person's court appearance, whichever is the longer. It provides the rehabilitated offender with limited protection against discrimination on the grounds of past offending history. As I asked at the beginning of my remarks, if something is working well and the principle is right, why alter it? However, if you intend to make alterations you should listen to the people who have to carry out the job and see what they have to say.
The National Association of Probation Officers is very definite in its view of this present position which was prophesied, if I may put it that way, in the White Paper. That prophecy did not have attached to it any reasoning whatever which I believe would be acceptable to the Committee. The association literally says that it cannot understand how probation (unless we are to abandon what is meant by that word) can possibly be changed into a sentence. 'That is exactly what it says. The association further states that the concepts involved are fundamentally incompatible; that a sentence is a determination of punishment pronounced by a court, and that punishment is,
"to cause to suffer for an offence".
On the other hand probation—that is how the association has always understood it and is the job it wants to carry out—involves putting aside, or deferring, any notion of sentencing and entails a period of proving and testing.
Probation officers are trained as social workers; they are not trained as people who are meant to carry out a punitive function. In this Bill we are ruining a whole history which goes back over the years, especially in regard to the treatment of young people. Despite those years of history of the probation service and the legislation which covers it, we are now making

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the probation order into a sentence and we are giving the court power to put conditions in the order which are of a punitive nature.
In dealing with another amendment in regard to probation the noble Lord the Leader of the House was good enough to give the Committee an analysis of those people who had been made the subject of a probation order. That analysis seemed to show that very serious offences were being committed in respect of which probation orders were being made. I inferred from that, as no doubt did other Members of the Committee, that we now have a different situation in regard to people who have committed serious offences and who have a pretty grievous criminal record being granted a probation order. However, that is not a reason for altering the whole principle of the probation order and the job of the probation service. It may be an indication that probation orders are being wrongly used. Perhaps we should look at an alternative within community service, which is a fairly novel position that the criminal and penal codes have taken up in our legislation.
It may be that in future probation orders will not be meted out in the circumstances outlined by the noble Lord the Leader of the House. However, for heaven's sake let us have the principle of a probation order. It has stood up well in seeking to ensure that young people especially are given the opportunity of proving their worth, despite the fact that there has been a conviction for what may be a relatively minor offence or indeed a first offence, when the court wants to try the possibility of rehabilitation.
Let us listen to the probation service—it deserves well of this Chamber, and indeed of the country—before we do something as serious as not inserting in this part of the Bill the words which I am endeavouring to put in the legislation by way of this amendment. I beg to move.
Lord Renton: The noble Lord, Lord Mishcon, has raised an extremely important matter of principle. I earnestly hope that the Government will either agree to accept the amendment or say that, as a matter of principle, they agree that something to the same effect should be done.
Ever since the probation service was introduced early in this century fundamental to it has been the fact that placing someone on probation is not a sentence. Indeed, when placing someone on probation the courts have always told the offender, "You are not being sentenced; you are being given a chance. But for the period of the probation order"—which varies generally between nine months and three years—"you will have to accept the guidance of the probation officer. You won't have the stigma of a sentence recorded against you as long as you accept that guidance. However if you are in breach of the probation by committing another offence, you will have to be punished not only for that offence but for the breach of the probation order. You will then be sentenced for the offence on which you have now been found guilty".
It is an important matter. It would be unfortunate if, in the desire to recast our system of treatment of
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offenders, the Government were incautiously to group probation with other matters mentioned in Clause 5(5), just for the sake of grouping them together as alternatives to custody. I hope that my noble friend will give a sympathetic answer.
7 p.m.
Lord Carr of Hadley: I support the amendment. I have to confess to the Committee that I came in at this moment by chance, I had not intended to participate in the debates today and in a way I need to ask forgiveness for doing so. As a former Home Secretary, I have a self-made rule that I would not intervene on home affairs matters unless I had given a great deal of time and thought to them.
However, I have also recently been elected president of the Rainer Foundation which gave birth to the probation service. Thus I have an additional cause, as well as being a former Home Secretary, to feel sensitive about the issue. It is an important point because it would be a fundamental change. I beg my noble friend to hesitate to give a final decision this evening, the matter deserves much more careful thought.
Lord Donaldson of Kingsbridge: Will the Leader of the House answer this question before we come to a decision? Am I right in thinking that the community service order is a sentence and that it is administered by the probation service? If that is the case, I cannot see the difficulty. Is there not some confusion here?
Lord Waddington: I listened with great attention to all that was said by the noble Lord, Lord Mishcon. At the end of his speech, he invited us to listen to the probation service. Earlier, he urged us to listen to those who would have to apply these orders when they became sentences of the court.
I am prepared to take that advice because I would not wish Members of the Committee to imagine that all those who have to apply the orders disagree with the policy adopted by the Government. That is far from being the case. I have to tell the Committee that NAPO, the National Association of Probation Officers, is about the only organisation concerned in these matters that opposes what the Government propose in the Bill. The Association of Chief Officers of Probation agrees with the policy adopted by the Government. The Magistrates' Association has expressed support for what the Government propose to do. The National Association of Senior Probation Officers approves of the policy adopted by the Government and NACRO approves of the policy adopted by the Government.
It is rash to give the impression that there is a great tide of opinion against the Government and that all those who fight the cause of probation somehow disagree with probation becoming a sentence of the court. I should have thought that having read out all those bodies, it is fairly obvious that the argument being advanced by the noble Lord, Lord Mishcon, is a minority view among those who are directly concerned with these matters.
Lord Mishcon: I do not know whether I heard the noble Lord correctly. I believe that he said that NAPO was in favour of this.
Lord Waddington: No, I was telling the noble Lord that NAPO is unique in being the only body which agrees with him in disapproving of what the Government propose in the Bill.
Lord Mishcon: I thought that the noble Lord subsequently said that NAPO was among the associations which he read out. I may have misheard him.
Lord Waddington: If I made an error, I am sorry; but I intended to single out NAPO as being the one body which disapproves of what the Government are doing. Far from this being a retrograde step, making probation a sentence of the court is, in my view, right and fits in well with the whole scheme of the Bill. It will encourage greater use of probation and therefore should point towards fewer rather than more people finishing up in prison. It fits in with the way in which probation has become used over recent years.
There is not the slightest doubt that the emphasis has changed. More onerous burdens are placed on offenders who are made the subject of probation orders. Conditions are attached to probation orders; conditions are attached which make people attend at a particular place for a number of hours and so forth. When one goes over the facts which I related when dealing with an earlier amendment and when one looks at the way in which probation orders are now used in cases of far more serious offenders than used to be the case, there is a difficulty. When one looks at the number of probation orders now made in quite serious offences it is difficult to reach a conclusion other than that the world has changed and that the view being expressed by the noble Lord, Lord Mishcon—1 say this with the greatest respect—is rather old hat. The trend is strongly in the direction which has been adopted by the Government, with the agreement of all the illustrious bodies to which I have referred.
I think that the noble Lord, Lord Donaldson, was mistaken. The amendment deals with only the narrow question as to whether a probation order should become a sentence of the court. That is the only matter that I address directly now. The probation order complements the other community orders available under the Bill. Its status as a sentence of the court more closely reflects its current usage. It is increasingly used for more serious offending; for example, in 1989, 86 per cent. of those given a probation order had previous convictions, and 38 per cent. had served a custodial sentence. The use of probation orders for more serious offending is in part because the probation order has been strengthened by the power to attach a requirement to attend a day centre. This means that in practice a probation order can be and often is a penalty which makes significant demands on the offender.
It seems absurd to suggest that a probation order is not a penalty on the offender when attached to it is a condition which requires a person to go to a great deal
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of trouble, give up a great deal of leisure and apply himself to doing something useful for many hours at an attendance centre or elsewhere. I understand the worry that has been expressed that the new status of the probation order might discourage its use for less serious offenders—and I know that this is my noble friend's anxiety—but I do not honestly think that it needs to be the case.
Baroness Seear: I am sorry to interrupt the noble Lord, but I am trying to get my mind clear on this. I cannot see that any change in kind has happened in what probation officers are being asked to do which requires this alteration. They have always had to put requirements on youngsters—the people who are put on probation.
People on probation have had to fulfil attendance requirements. Requirements have been laid on them which probation officers have had to supervise and insist upon. The fact that the requirements are now heavier does not alter this situation in principle. Surely the principle remains exactly the same. I cannot see that there is any necessity to change this provision just because more serious and heavier requirements will be involved. There is no difference in the position. It has always been like this. Why is it necessary to change it, or have I misunderstood the position?
Lord Waddington: There will be no difference in the position. I have sought to point out that the reality of the matter is that probation orders have changed and the kind of cases for which they are used have changed. I have sought to point out that it is very much a theme of this Bill that judges should look most earnestly at ways of keeping people out of prison and at the whole range of community penalties and ask themselves whether by passing a community penalty they can thereby meet the justice of the case and keep a person out of prison. It is extremely important that we should emphasise to them that a probation order need not be a let-off. It is a sentence of the court and it means something. It might carry with it serious conditions which make serious demands on the person concerned. I do not wish to repeat myself but I feel strongly that it would be entirely inconsistent with the main theme of this Bill to take the rather old-fashioned view that a probation order cannot be a sentence of the court when quite plainly now and for some time in the past probation orders have been so used. They have been used to great advantage in the sense that many people have been kept out of prison who otherwise would have finished up there.
Lord Renton: With great respect to my noble friend, I must say that I am not convinced by his strongly expressed arguments. Will he please answer the fundamental point that if probation is to become a sentence, what happens when there is a breach of probation? Is there to be no further sentence, or is there to be a procedure which the Bill has not described for dealing with the offender further? What exactly is to happen? Has that been thought through?
Lord Waddington: My understanding is that at present if someone on probation commits another offence and appears before a court, he is dealt with for

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the further offence. The judge, however, will also deal with that person for the breach of probation and will give that person a day's imprisonment for that offence. The only difference which will now pertain is that when someone appears before the court for another offence, having breached the probation order, he will be punished for the further offence. I do not think in practice there will be a ha'p'orth of difference in the position.
Lord Renton: It is important to follow this matter. Has my noble friend not realised that by having probation as itself not a sentence, the offender is told, "You are not being sentenced now, but if and when you are in breach of the probation order, then you will be sentenced for this offence"?
7.15 p.m.
Lord Waddington: I appreciate that that will no longer be the case. No doubt in putting someone on probation a judge will make it absolutely plain to that person that the court has taken the view that the justice of the case can be met by a probation order, that the accused has been lucky that the court has taken that view and that if he breaks the conditions of the probation order and reappears before the court for another offence, he cannot expect to be dealt with in the same way again.
Lord Gisborough: Is there not a parallel with the conditional discharge? Exactly the same situation pertains to that provision.
Lord Waddington: I am grateful to my noble friend for coming to my rescue. That provides a perfect answer to the point that has been made.
Lord Hutchinson of Lullington: I wish to make one further point for clarification. The noble Lord, Lord Mishcon, referred to the rehabilitation situation. Is not the position exactly the same now as it always has been as regards someone who has been put on probation? If one commits an offence one is convicted, whether one is put on probation or fined or whatever. The sentence of the court makes no difference at all. The point is that one is convicted and that conviction stands. If one is put on probation, from the rehabilitation point of view when one has served the period and completed the order, it is washed out. According to my understanding of the matter, precisely the same position remains today. I ask for guidance on that matter because it seems to me to be a complete answer to what the noble Lord, Lord Mishcon, was saying. If I am wrong, perhaps my view will change.
Lord Waddington: That is entirely correct, but I am not sure that I am qualified to give much guidance as I have now discovered that I have made a serious error. I am told that in Schedule 2 of the Bill there is provision for sanctions for breach of a probation order. I had forgotten that.
Lord Mishcon: I have been accused of uttering some old hat. If that is an accusation I ask for the probation of the Committee immediately because it is an old hat
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that I am not ashamed of wearing. The situation is this. For years and years we have had a system under which the court in certain circumstances can declare after conviction that it wants to place the convicted person on probation. The court asks for consent to do that. The court may inform the offender that probation is not a sentence and the offender can go away knowing that if he behaves sensibly with a kindly probation officer to look after him and obeys any conditions to which the order is subject, he can tell the world that he has not received a sentence. He can say that to his employer and to his parents. If he happens to be married, he can say that to his wife.
If the benefits of that position constitute old hat, am prepared to wear it with pride. As regards the conditions, this very Chamber, sitting in a judicial capacity, has outlined the principles of a probation order in the case of Cullen v. Rogers in a way which is completely contrary to the way in which the noble Lord the Leader of the House has presented this matter. The judgment of this Chamber confirmed that conditions imposed in a probation order cannot themselves be a sentence because, since the making of a probation order is a course taken by the court to avoid passing a sentence, a requirement imposed under Section 2(3) must not introduce such a custodial or other element as will amount in substance to the imposition of a sentence. This Chamber pronounced that judgment sitting in a judicial capacity. The judgment laid down a principle of the value of the probation order in our criminal system.
As I thought he would, the noble Lord repeated what he said earlier with regard to what may be the deficiency in these days of a probation order. He did not say that the probation order system was a bad one. He said that the courts were making probation orders in cases of a serious nature and where previous convictions had attached to the accused. Yet a probation order was still made. That is not a criticism of the probation order system as we have known it.
Lord Renton: Neither is it anything new. For years the courts have in exceptional cases decided that even previous offenders should be given a special chance, after a good warning, and be placed on probation.
Lord Mishcon: The noble Lord, Lord Renton, is absolutely right. Where the court considers that there are special grounds, having regard to the offence which has been committed and the reasons for it which have been advanced in mitigation, it is usual to say that in that case a probation order shall be made.
The only logical sequence from what the noble Lord the Leader of the House said may very well be that in this legislation we ought to be thinking of some half-way house between a probation order and a sentence of imprisonment. That may very well be a sensible way for a penal reformer of progressive views to consider this matter. However, it cannot be right to abolish what was so sensible in the past and say, "I don't care what your age is, provided a probation order is suitable the court will now have to make a probation order"; instead of saying, as it has over the

1407
years, that that is not a sentence, the court must now say that it is, whatever the circumstances, even in regard to a first offence.
That would tie the hands of the court, quite apart from any other point that I have made, in that the court might think that an absolute or conditional discharge is not suitable because there ought to be a period of probation and a probation officer should look after the accused but the court does not want to impose a sentence. Therefore, in a case in which a probation order would be suitable the court will consider that it has no alternative, although it may wish that there was an alternative. It will have either to adopt the unsuitable option of reducing the punishment by making it an absolute or conditional discharge or considering a short term of imprisonment. Is that what we want?
With great respect to the noble Lord, who is always so lucid in his exposition, I am afraid that I remain not only completely unsatisfied with his answer to the amendment but also proud of the fact that I put the amendment forward.
Lord Carr of Hadley: As someone who was Home Secretary 17 years ago i am very reluctant indeed to cross swords with my noble friend the Leader of the House who has been Home Secretary much more recently. Of course I accept that, proud though I may be of old hats, times change and hats should change with them.
I strongly support the policy direction in which the Government are leading us here, but I believe that there is a need for a sentence of this kind in this area. That is how I see probation orders having developed. However, one could ask, what is in a name? Sometimes not much, but sometimes a great deal.
I cannot help recalling that on the day on which I had the great honour of being appointed Home Secretary Lord Butler telephoned me from Trinity College, Cambridge, to congratulate me and wish me well. His final words were to ask whether he might give me some advice. I said that he certainly could and I would welcome it. His advice was: never leave the Home Office at night without having a good sniff round for rats, and at the slightest smell of rats do not go home. I have to say to my noble friend that I smell a rat here and we ought to think very carefully before we put this particular issue to bed.
Lord Hutchinson of Lullington: Can the noble Lord, Lord Carr, explain the advantage of not calling a probation order a sentence? I find it difficult to understand. Everyone agrees that the result is exactly the same. The only difference is that one is called a sentence and used not to be called a sentence.
Lord Carr of Hadley: It is difficult to say, and it is because it is difficult to say that I believe that we should not put the issue to bed tonight. I believe that it needs further reflection. The proposed change appears merely to recognise something that has developed and what a probation order has now become. However, if we formalise that and call it a sentence, as is proposed in the Bill, we may inadvertently change the attitude of the courts, the
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attitude of the probation service and the effect on the offender in a way which we cannot at this moment foresee and may not intend.
I am not sure what the right answer is. All I am saying to my noble friend tonight is that this is a matter which needs careful thought before we finalise it. I should hate to see it, for example, pushed to a Division now. I hope that we may give the matter further thought before we come to a firm decision.
Lord Mishcon: I apologise to the Committee for rising again but I have to do so in order to deal with the point raised by the noble Lord, Lord Hutchinson of Lullington. He asked what is the difference if one says that a sentence follows on a probation order automatically. First, it is and was always meant to be an indication to the outside world that if there was hope for somebody who had been convicted, the court said that he had a chance of proving himself, which is the very essence of the word probation' and although convicted no sentence was passed on him. That was extremely important.
In case any Members of the Committee feel that that is merely verbiage and does not mean anything, I remind the Committee once again of the language of your Lordships' House sitting judicially pointing out the difference; namely, that this is not a sentence, was never intended to be a sentence and therefore conditions should not be imposed in a probation order which amount to a sentence. Those are the words of your Lordships' House. There is a difference.
In answer to the noble Lord, Lord Carr, I do not cheaply—if the noble Lord will forgive the word— want to put the matter to the Committee in a Division. It is a very serious matter, and I hope that in view of what has been said, especially by noble Lords on his side of the Chamber, the noble Lord the Leader of the House will agree that this is a very serious matter. Possibly, as I indicated previously, before it is too late and before the Bill leaves this Chamber we should consider some intermediate stage, keeping the old probation order and no sentence. I ask the noble Lord to say, at least out of courtesy to this Chamber and this important debate, that he will agree to reconsider the matter before the next stage of this Bill.
Lord Harris of Greenwich: During the debate on the Queen's Speech I indicated that I thought that criminal justice issues when debated in this Chamber should not lead to the usual confrontation between political parties. I say that in order to explain why I agree with the noble Lord the Leader of the House and probably disagree with the majority of my colleagues. I say that because I have had knowledge of the probation service for a substantial period of time and am President of the National Association of Senior Probation Officers which favours the change that is incorporated in the Bill, as does the Association of Chief Officers of Probation. As the noble Lord the Leader of the House said, those are powerful organisations which represent middle and senior management in the probation service.
I agree with the noble Lord because I want to see, as we all do, more people diverted from custody. I want to see the probation service dealing with more

1409
and more difficult clients. I know that the noble Lord, Lord Mishcon, will not agree with me; but it is my view that, if a probation order is a sentence of the court, it is a recognition of the fact that it is the desire of Parliament that the service should supervise more difficult offenders and, in some cases, more dangerous offenders.
I recognise that many of my noble friends will not agree with that view. I agree with the noble Lord, Lord Mishcon, —and, speaking entirely for myself, I would not find it possible to vote against him—that, as he and others have asked the Government to look at the matter between now and Report stage, it would probably be prudent to do so. That is entirely a matter for the Leader of the House. I believe that the proposal is correct and I support it.
7.30 p.m.
Lord Waddington: Perhaps the Committee will bear with me while I deal with one other matter before coming to the rather beguiling invitation to look again at that aspect.
On reflection and with the greatest respect, the noble Lord, Lord Hutchinson, was in error. Making a probation order a sentence of the court has one important practical effect which again fits in with the scheme of the Bill. As a result of making a probation order a sentence, something can be coupled with a probation order and it will be possible for the first time to pass a probation order and fine someone as well. It fits in with the theme of the Bill because it increases the range of options as regards community penalties.
I should not be honest with myself if I were to say that I would think again in this case. I have paid the greatest attention to all that has been said and certainly realise that people with great experience have mentioned their worries about this matter. However, this is not something that has suddenly come to fruition. The policy was set out clearly in the White Paper which was published at the beginning of last year after the most extensive consultations. I believe that I can say with absolute confidence that, with a few exceptions—one of them being NAPO—that policy was formulated as a result of wide agreement among all the interested parties. It is therefore one of those cases in which I can say with my hand on my heart that the Government have thought most carefully about the matter and seen many advantages in making a probation order a sentence of the court as I have explained to the Committee today.
Lord Mishcon: I know that the noble Lord the Leader of the House will not think me discourteous if I say that it is a great pity that he did not accept the courteous invitation given to him from all sides of the House. Having said that, I regard the matter as of such importance that I think it would be—
Lord Elton: I hope that the noble Lord recognises that the opportunity to give time rests with himself as well as with the Leader of the House.
Lord Mishcon: I thought that I had made that clear. The noble Lord, Lord Elton, was not listening with his usual care when I said that I did not intend to divide the Committee.
Lord Elton: I apologise.
Lord Mishcon: The apology of the noble Lord, Lord Elton, is worth very much to me and I thank him for it. I was about to say that I think this principle is so important that it would be wrong, without a full Chamber and at a more appropriate time of the day, to test the view of the Committee. I intend to do that at a further stage of the Bill. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7 agreed to.
Clause 8 agreed to.
Lord Cavendish of Furness: I beg to move that the House do now resume. In moving the Motion, perhaps I may suggest that the Committee stage does not begin again before 8.35 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Export and Investment Guarantees Bill
Brought from the Commons; read a first time, and to be printed.
7.35 p.m.

Wildlife and Countryside Act 1981

  (Variation of Schedule) Order 1991
  Lord Kimball Lord Kimball rose to move, That an Humble Address be presented to Her Majesty praying that the order [SI 1991/367] be annulled.
  The noble Lord said: My Lords, this Motion deals with the protection afforded to the adder and the freshwater pearl mussel by the quinquennial review of the degrees of protection which are necessary under the Wildlife and Countryside Act of 1981. It would not be appropriate—and I should make it clear that it was not my intention—to divide the House on either of those issues tonight; but I hope that at the end of our discussions the House will make it clear that we shall no longer tolerate blanket protection orders which are not linked to proposals for the culling and proper management of any protected species.
  In the part of the country where I have a hill farm, there is no shortage of adders. Nor have I seen any publicity saying, "Adders are scarce. Please do not kill them unless you have to". The Nature Conservancy Council is never slow to gear up its publicity machine. We saw the almost hysterical publicity that it generated about the future of the flow country. Why have we not seen some publicity about the shortage of and dangers to the adder population? I had one suckle calf bitten by an adder and one ram which died last year as a result of an adder bite. The suckle calf nearly died because it was bitten on the nose and all its jaw swelled up so that it could not eat. The House should realise that cattle are particularly vulnerable to adders.

  1411
  Many noble Lords will know that, if you have a myxie rabbit in a field and it cannot get away, all the cattle gather round it and mob it. Cattle are nosey beasts and, if there is an adder in the middle of the field, they will gather round it and mob it and it will bite and strike them for its own protection. No good stockman will leave an adder in a field of cows and calves.
  I press my noble friend who is to reply to the debate to make it clear, because the NCC has certainly not made it clear in any publicity, that it is in order for a stockman, a herdsman, a shepherd or anyone who is in charge of livestock, to kill an adder if he feels that that adder endangers his livestock. I am not quite certain—perhaps my noble friend will clear up this point—who constitutes a person authorised under the order to kill an adder. Perhaps he will confirm that it is the farmer or the occupier or his shepherd or herdsman. We must face the fact that, whatever the law may say, most countrymen who feel that an adder is a danger to livestock, dogs or children will kill it. I do not see why we should make that a criminal offence. It worries me that an authorised person may find himself in the same position in which we find ourselves over the killing of sawbill ducks—that is, goosanders and mergansers—where you have to obtain a licence. Every time you obtain a licence, the period during which you can kill them and the number that you can kill is reduced and there is always an argy-bargy. On the scale on which it is necessary to control adders, certainly in the part of Scotland that I know, no form of licensing and authorisation would be an acceptable solution.
  Adders are not scarce, but in England the suitable habitat in which they might want to live is becoming scarce. That is why they are scarce. There is nowhere that is particularly suitable for adders, particularly in the south of England. Noble Lords will know that the population of adders varies very much and follows the cycle for voles and small mammals. After a peak in the population of voles and small mammals, there is a peak in the adder population. I contend that it is wrong to make a criminal offence out of something which any sensible countryman will do only when it is absolutely necessary.
  I turn now to the other item on the protection order dealing with the question of the freshwater pearl mussel. On this question, I am particularly indebted to the farm of the noble Lord, Lord Cranbrook, which produced a considerable amount of information which was taken up by the Department of Zoology at Aberdeen University. In its 1983 survey that department estimated that in England and Wales there were 56 rivers and in Scotland 118 rivers which contained pearl mussels and that over-fishing by pearl fishers had contributed to a serious decline in 39 of those rivers. Pollution had contributed to a decline in a further 12 rivers, and disturbance from the building of bridges and new roads and the taking of gravel out of rivers had affected a further six.
  The mussel is in the same category as the tick and the cuckoo. It is a creature which needs another in order to survive. Following spawning it spends its first year living in the gills of a salmon parr. At the end of its first year it leaves the salmon parr when the smolt
  1412
  goes to the sea. For the purposes of reproduction it is dependent on a healthy population of salmon parr. That is a major indication of the health and purity of our rivers.
  I am certain your Lordships realise that the freshwater mussel is extremely long-lived. It can live to between 70 to 100 years. It cannot produce a pearl until it is nine years old and that pearl will not be mature until it reaches the age of 15 years. Only about 1 per cent. of all freshwater mussels in England and Scotland produce pearls.
  The problem facing mussels is posed by the vast number of people who have bought wet suits and diving gear and rushed out in the hope of finding the odd pearl. They go into the rivers wearing this marvellous kit and fill sacks full of these wretched mussels. I have seen it. They take off their diving gear, open up the mussels and hope to find a pearl. The mussels are then thrown aside. The destruction those people do is enormous. There is no question of applying a size limit and no thought is given to those mussels which might or might not have pearls in them. Such a treasure hunt has become all the more popular with access to the countryside and invasion by the motor car.
  I am particularly indebted to Mr. Martin Brooks, a well-known pearl fisher from Scone on Tayside, for the help and advice he has given me on the management of mussels in the River Naver watershed in Sutherland. Mr. Brooks is a remarkable man. He can pick a mussel out of the river, open it with a set of tongs and see if there is a pearl in it. If it contains a pearl he can extract it without killing the mussel. If there is a tiny start of a pearl, he can put the mussel back until the pearl matures, marking the shell of the mussel so he does not disturb it again for another 10 or 15 years. As chairman of a fisheries board I would want to license Mr. Brooks to manage the mussels in the watershed. I understand from the Association of District Fishery Boards in Scotland arid the National Rivers Authority in England that they would like to do the same thing.
  There are at present about 40 well-known, reliable pearl fishers in this country. I believe that those responsible people, who do not kill the mussels, should be given the opportunity to develop our fisheries. I support the order but object most strongly to the fact that like so much of our conservation legislation at the moment it has not been thought through. To conserve a species you must have a proper policy of conservation and culling. All that the order does is to make it an offence to kill a mussel. No water bailiff has power to stop a pearl fisher. The police have to be sent for. All one can do is stop the person from actually killing a mussel. One cannot say to the person concerned, "This particular pearl mussel fishery is being managed by the person I have licensed to manage it". We have a hopeless situation in which we rush in to preserve something without thinking of the consequences or how we will manage it.
  I should like an assurance tonight from the Government that they will take a benign look (which is all they can do) at the possibility of a Private Member's Bill being brought forward in this House or

  1413
  in another place which would allow the district fishery boards in Scotland and the river boards in England to license the respectable mussel fishers. I also believe that most of the people in the district fishery boards would like to put some restriction on the amount of effort put into pearl fishing. We do not want people in wet suits diving into deep pools. I believe the activity should be limited to people in thigh-waders with glass boxes and forked sticks, because the deep pools are the reservoir from which most of the mussels come and should not be fished.
  I am afraid that many farmers and people in the countryside today are beginning to feel that the Nature Conservancy Council is developing a certain scientific arrogance which is divorced from the practical realities of the countryside. In this debate on the adder and the mussel the House is presented with an opportunity to say quite clearly that it is not going to tolerate an ill-conceived and not properly thought out piece of protective legislation. On the basis of the order before us tonight, one protection (for the mussel) is necessary but has not been thought through and the other (for the adder) is unnecessary and has been brought forward without proper consultation and publicity. I beg to move.
  Moved, That a humble Address be presented to Her Majesty praying that the Order [S.I. 1991/367] be annulled—. (Lord Kimball.)
  Baroness Nicol: My Lords, first I must apologise for the absence of my noble friend Lord McIntosh of Haringey who has been unavoidably delayed and I fear is unlikely to get here before the end of the debate.
  The noble Lord, Lord Kimball, waxed eloquent about the Nature Conservancy Council. Perhaps he has forgotten that it ceased to exist on the last day of March and was replaced by a Scottish body, by English Nature in England and by a different council in Wales. We are fortunate in having with us this evening the chairman of the English body and no doubt he will take in everything that is said. Perhaps the noble Lord, Lord Kimball, will find communication with the Scottish body a little easier in the future.
  In the meantime, all of us have to rely on the evidence provided to us by English Nature. The first piece of evidence from it— which I have to accept— is difficult to reconcile with the statement by the noble Lord, Lord Kimball. English Nature says that adders are becoming scarce and endangered; Lord Kimball says that he is overrun with them. Somewhere along the way there must be a truth which we will have to discover. In the meantime, if the noble Lord will forgive me, I will accept the stand taken by English Nature that we have to add the adder to our protected list. On that basis, we welcome the order. However, I have to say that I am sorry the opportunity was not taken to add to Schedule 9 of the Act the barn owl and the chuff. The release of those birds from captivity into the wild is causing problems which we will need to deal with in future. Perhaps I can put down that marker for the attention of the Government.
  The Government accept the philosophy of sustainable development. That philosophy must be underpinned by the management of natural resources,
  1414
  not least by protecting biodiversity. A species extinct is lost for ever, as is its potential in terms of genetic resources. The case for the protection of endangered species as far as this country is concerned was made and accepted in the passing of the Wildlife and Countryside Act. Since then, the need to protect the biodiversity of the planet has become even more widely accepted.
  The adder may not be as appealing as the giant panda but it has its place in the scheme of things. The case against it is much overstated. In fact it is a timid creature which bites only when it feels threatened. The Royal Society for the Prevention of Cruelty to Animals points out that in the past 100 years fewer than 10 deaths have been caused by bites from adders and that in at least some of those cases it was the attempted cure that killed rather than the bite. It was the practice to give a large dose of horse serum, which proved fatal more often than the bite that it was meant to cure. The last known death from an adder bite was in 1975. Adders are fully protected in Belgium, Germany, the Netherlands, Switzerland, Hungary and Norway. It is time that Britain joined the list in line with our obligations under the Berne convention.
  The pearl mussel is vulnerable throughout Britain and highly vulnerable in England. English Nature is again concerned. The present mussel population profiles indicate a low proportion of juveniles which is a sure sign of decline. I completely agree with the noble Lord, Lord Kimball, that the activities of amateur collectors must be restrained. His suggestion of a licence is well worth following up. The decline is already taking place because of water pollution, especially in England, and we must do everything that we can to preserve the species.
  As the noble Lord said, commercial collectors have a more responsible attitude. They collect over a wider area and leave a reserve for future stocks. The pearls are removed by special tongs which leave the mussel alive and it can be returned to the water. Commercial fishermen will not be prevented by this order from pursuing their activities. I hope that the Government will look kindly on the suggestion that we should license fishing for pearl mussels and that it will not be necessary to go through the hassle of a Private Member's Bill. I have no remarks to make about the shad, which appears to be not controversial. I have not heard anyone grumble about putting it on the list.
  I hope that the noble Lord will not press his Motion —I believe he said that he would not—and that this useful amendment to the wildlife Act is carried with all speed. I hope that we can meet the objections and that someone who knows more about the present position of the adder will be able to enlarge on what he said. It seems to me that we have here a direct contradiction: either there are plenty of them or there are not. I hope that when the Minister comes to reply he will be able to sort out that point.
  Lord Addington: My Lords, I find myself in the position of not knowing a great deal about the habitat of adders and where they happen to be living or about their numbers in various parts of the country. I totally accept that the destruction of habitat is usually the best way to wipe out any species. I should be surprised

  1415
  if there is not a great element of truth in what the noble Lord said and that in certain parts of the country the species will be abundant and not in other areas.
  The fact remains that if we are to have left a small eco-system on a natural level we have to put up with what at least to our way of thinking are unpleasant things that we do not like. For instance, everyone likes the cuddly panda so we say that we shall keep those. Generally and culturally we do not like snakes, so adders get a bad press. I have often wondered why. Most poisonous snakes are comparatively small creatures and most wild animals will bite only if they want to eat you or if you threaten them. If an adder were to want to eat you, I suggest that he would have to learn to use a knife and fork to get the bits down. I see that the noble Lord laughs. There is a great danger of ridicule here. He pointed out that these creatures were only dangerous because cows come up and nose them. If I were an adder and a cow came up to me and put her nose in my face I too should probably bite. We have to accept that the creatures which do not have general public appeal and may occasionally cause some damage to farming processes are nonetheless entitled to a degree of protection. That must he universally accepted.
  The noble Lord mentioned that the mild winters have led to the expansion of certain types of wildlife such as small rodents. Those which are pests find also an expansion of those creatures which prey upon them, in this instance the snakes. It might be a case of trying to hold a balance between the amount of damage done by small rodents and the occasional loss of cattle through the adder which is trying to protect itself from them. Once again these are problems that we must bear in mind; but if we are serious about conservation, we must evenly conserve all things.
  I found nothing to disagree with on the question of the freshwater mussel. People who go on a small glory hunt looking for an occasional pearl and destroy an entire bed of mussels deserve everything they get coming to them in terms of the law. I hope that the House will forgive me for using such non-exact terminology.
  Everyone seems to agree with regard to the allis shad. In a discussion in the Bishops' Bar between myself and other noble Lords we were rather convinced that it was a bird and not a relative of the herring family. Everyone agrees that it should be protected. As I discovered, it is threatened by pollution.
  We should look at the whole of the natural surroundings and at the regional situation. I suggest that this Prayer, which the noble Lord said he would not press, would be somewhat destructive.
  7.56 p.m.
  Lord Moran: My Lords, the noble Lord's Prayer seems to me to call in question the procedure for dealing with problems of this kind. In this case the Government have acted wholly correctly. The statutory instrument deposited by the Secretary of State for the Environment shows that the Government received a representation from the Nature Conservancy Council, as it then was. They then gave
  1416
  local authorities and other persons opportunities to submit objections or representations and formed the opinion that the species referred to were in danger of extinction in Great Britain or likely to be so endangered unless conservation measures were taken.
  Therefore the Government decided to bring in the order. As I understand it, they announced their intentions at the standing committee of the Berne convention in terms of UK compliance with our obligations for such declining and persecuted reptiles under the provisions of the pan-European wildlife convention. It seems to me that they proceeded in a careful, considered way and that is certainly what should happen. I believe that they are quite right to propose this order. I should be very sorry indeed if we were to object to it.
  Of the three species in question my personal concern is mostly with the allis shad. I had occasion to talk about its related species, the twaite shad, at the Second Reading of the River Usk Barrage Bill recently. I am less familiar with the allis shad because it is a much rarer species. I understand that everyone who has spoken so far agreed that it s appropriate that it should be given further protection. I am sure that that is right.
  I was interested in what the noble Lord said about freshwater mussels. He explained the situation very clearly. I fully agree with him that the threat to the species appears to come from amateurs in wet suits, diving particularly into deep pools, rather than from the commercial fishermen. However, it is my understanding from the information we have received that, as this further protection proposed in the order relates only to the killing and injuring of freshwater pearl mussels, the commercial fishermen who have now found this technique of extracting the pearl with a pair of tongs and returning the mussel alive to the water would not be affected by the order. However, the amateurs who take them out in sackfuls, as the noble Lord said, and kill them would be stopped. That seems to be what the noble Lord seeks to achieve. It is what we should seek to achieve. But if the measure were reinforced by a licensing procedure, I hope that the Government will consider it.
  The most controversial species is the adder. We have to rely not only on our personal and limited experience but on the advice that we receive from the statutory bodies set up to consider the matter. The Nature Conservancy Council and English Nature—which has now succeeded to one part of its responsibilities—say that the decline of the species in Britain is well documented. Most of the very limited number of people who have been killed or injured by adders have interfered with or picked up the adder. We want to persuade people to leave them alone. To give them the measure of protection proposed in the order would do precisely that. We wish to have the greatest number of species of all kinds in our country. Those in danger of extinction or of greatly reduced numbers should be given protection, whatever they are. We should not seek to preserve only the cuddly and attractive species. All species deserve to be protected if they are in danger of extinction.

  1417
  I therefore hope that we shall agree with the order which seems responsible and sensible, and we shall allow it to be passed.
  8.4 p.m.
  Lord Houghton of Sowerby: My Lords, I apologise for not having put my name down to speak. I never dreamt that the protection of the adder and other species in the draft order would attract so much attention. But in your Lordships' House we are used to the moving experience of passing from high matters of state to the protection of the last remaining species of snake and believe that that is a normal course of the business of the House. We lower the lights just to show that it is a somewhat mournful occasion. The television people go home and we are left to talk in private about the grief that might occur if the noble Lord, Lord Kimball, had his way.
  I knew that there were likely to be a few snakes in the grass in this debate, but I never dreamt that one would be the noble Lord, Lord Kimball. After all, I recall that when the Wildlife and Countryside Act was under consideration in your Lordships' House the noble Lord was still a Member of another place. But his shadow fell across that Bill from beginning to end because he obtained from the Government a firm assurance that they would not allow the wildlife section of that Bill to be used by such people as me as an attack on blood sports and other laudable activities that those who live in the country (as I do) wish to enjoy. I never dreamt that the noble Lord would be in the grass in this debate. I had associated him with being on a horse. I thought that the only time I had to be in fear of him was if a debate on horses were about to be deferred and he thought that it ought not to be. That is the last time that I saw him roused over proceedings in your Lordships' House.
  The noble Lord should also have some regard to the reputation of this country abroad. I visited Canada shortly after the passing of the Wildlife and Countryside Act 1981. I held Canadians spellbound when describing how we had protected the natterjack toad and partially protected the adder. When I said that anyone who wilfully trod on a natterjack toad was liable to prosecution because that had become an offence in Britain, their eyes opened and admiration welled into their faces; and I felt very proud of Britain at that moment. Yet here is the noble Lord, Lord Kimball, trying to rob us of the moral quality of British politics. He states that further protection of the adder has not been properly thought out.
  Can we hear a little less about what the farmers think every time we wish to undertake a little conservation? They have had it their way pretty well all the time. We have conceded a great deal to them. We must try to preserve what is left of our indigenous species. They are few enough. I should like to see a few wolves brought back. That might make the countryside more interesting than at present. They might even get into Parliament and do some scouring in the place.
  I do not believe that the noble Lord really wishes to press the matter at this hour of the day in your
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  Lordships' House. Just think of all the other noble Lords eating their suppers in peace and harmony and talking to their wives, comrades and guests, and here we are about to expose the adder to the venom of its enemies and allow it to become extinct. The noble Lord knows full well from his close contact with the passing of the Bill in 1981 how difficult it was to secure protection under the endangered species clauses. Emotionally speaking, there would be much public opinion in favour of putting the badger on the danger list. But, no, it is not an endangered species; there are still too many of them to qualify. The adder needs protection, as does the grass snake—a lovely little creature. It is not suitable that we should be asked to pass this measure.
  I admire the number of noble Lords on the Benches opposite who have turned up for the debate. I wish there were time for them all to declare for or against the adder so that the noble Lord might know whether his own colleagues are in favour of what he wishes to do. Anyway, I have had my say.
  8.8 p.m.
  Lord Glenarthur: My Lords, after that characteristically trenchant and amusing speech by the noble Lord, Lord Houghton, I must rise to the defence of my noble friend Lord Kimball for a moment. The burden of my noble friend's remarks were directed towards the fact that this is a blanket order covering both England and Scotland. It is an order relating to Great Britain. I apologise to my noble friend on the Front Bench for not having given him notice of my questions, and indeed for not having put my name down to speak.
  Which Secretary of State was satisfied under Article (3) of the early parts of the order in relation to adders? What indeed, if any, has been the reaction of the Scottish Office to the proposal? Has the Secretary of State for Scotland been consulted? What was the evidence upon which the decision was taken with regard to Scotland? Who collected that evidence? What has been the nature of the representations made against the proposal?
  I am surprised, like my noble friend Lord Kimball, that because of the parentage (if that is the proper word) of the order, the narrow proposal that it contains must extend as widely as it does. Like my noble friend Lord Kimball, not only can I give many examples to show that there are many adders in the East Grampians—my noble friend referred to another part of Scotland—I can also give instances of cattle being killed and dogs certainly being injured if not killed.
  The order is wide, but Section 22(3) of the Wildlife and Countryside Act appears to provide opportunities for the Secretary of State to make provisions in relation to particular areas of the country in regard to Schedule 5. Can my noble friend say why it has not been possible to make such provisions in this case? I know that he will be able to tell the House that a licence may be granted to enable people who need to kill adders that are putting at risk either human beings or animals. However, that is a cumbersome performance and it cannot easily be obtained. It is

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  unusual in that, although the arbiter will be the agriculture Minister in Scotland or in England, the advisers will be the successor bodies to the Nature Conservancy Council, yet the council or its successor bodies are proposing the blanket order.
  While we wish to see a proper number of adders— preserved I entirely share the view held by the noble Lord, Lord Houghton—there is no shortage in certain parts of the country where they are becoming a menace. Their habitat has been maintained because during the past few years the winter weather has not allowed their demise. The whole issue begs the question of whether the Nature Conservancy Council or its successor bodies, well meaning and thorough as they are, fully understand the implications of the advice that they are giving to the Secretary of State.
  Lord Lyell: My Lords, I apologise to my noble friend, to whom I gave notice that I had an interest in the order. I do not live too far away from my noble friend Lord Glenarthur but a considerable distance from my noble friend Lord Kimball. Perhaps noble Lords do not appreciate a particular issue. The noble Baroness, Lady Nicol, made a moving speech in favour of the adder—luckily not today the natterjack toad. The adder is one of the most obvious creatures capable of causing death to humans. The noble Baroness said that there have been only 10 deaths since the mid-19th century. I recall the death in 1970 of a shepherd in the west of Scotland. On a hot day the shepherd put down his jacket, and perhaps he was not particularly cautious in putting it on. An adder bit him in the armpit. Scotland is a large area and the nearest facility capable of administering serum was about 50 miles away over difficult roads. As a result the shepherd died.
  My noble friends Lord Glenarthur and Lord Kimball have pointed out the risk to livestock and to small animals such as dogs. They do not have a large body area to assimilate the adder's toxin. In 1955 within half an hour I saw three incidents of adult adders causing danger to dogs. That was a warm summer in the glens of Angus, which is 30 miles from the nearest source of anti-adder toxin. We must strike a balance with the need to protect animals and humans. The noble Baroness or my noble friends Lord Kimball and Lord Astor might know of an authority which can assess the adder population in Scotland and in England. I too wonder whether we have achieved the right balance as regards the only poisonous snake in the United Kingdom which can cause death to man.
  I enjoyed the speech of the noble Lord, Lord Houghton. I wondered whether we should hear of the need to bring back wolves. In Scotland we can well do without them in a harsh winter. If the noble Lord would care to take an evening off he might see a film currently being shown in the West End about wolves and— perhaps he might direct a film about adders. Tonight I leave the case to my noble friend.
  8.16 p.m.
  Lord Norrie: My Lords, I was delighted that the noble Baroness, Lady Nicol, should mention the barn owl. I too am concerned about additional protection
  1420
  for the species. During the progress last year of the Environmental Protection Bill I made a case for reviewing the schedules relating to the protection of birds as part of the quinquennial review. That review deals only with plants and animals. Although we are debating Schedule 5 and in particular the protection of the allis shad, the freshwater pearl mussel and the adder, this is a perfect opportunity to make the case for providing additional legal protection to the barn owl. I strongly suggest that there is now a need to add the barn owl to Schedule 9 of the Wildlife and Countryside Act 1981.
  The Royal Society for the Protection of Birds is concerned about the damaging effect of releasing captive-bred barn owls into the wild. is estimated that more than 3,000 barn owls are released each year in England and Wales from a captive stock of between 20,000 and 30,000 birds. The RSPB believes that it is inappropriate to introduce genetic complications to release birds without addressing their habitat requirements. The survival of captive-bred and released birds is generally poor. Studies carried out by the British Trust for Ornithology indicate that the mortality rate of captive-bred and released barn owls is two to three times higher than of wild barn owls. Therefore the society is opposed to the captive breeding and release of barn owls except in cases where releases are undertaken as part or a structured conservation project.
  In consequence the RSPB recommends that barn owls should be added to Schedule 9 to the Wildlife and Countryside Act making it an offence to release or allow to escape into the wild barn owls except under and in accordance with the terms of a licence granted by the appropriate authority. I hope that the Minister will assure the House that the quinquennial review will include a review of the schedules relating to birds as well as those relating to plants and animals.
  8.19 p.m.
  Viscount Astor: My Lords, I am grateful to all noble Lords who have taken part in this short debate on the Motion put forward by my noble friend Lord Kimball. He made a most interesting speech on the statutory instrument giving new or additional protection under the Wildlife and Countryside Act to three of our native species the allis shad, the freshwater pearl mussel and the adder.
  The Government's scientific advisers on wildlife have a statutory duty under the 1981 Act to recommend protection for species which are endanered or under threat in Great Britain. Before making these recommendations they undertake wide-ranging scientific investigation and research. Included within that general duty is a specific requirement to undertake a review every five years of all the animals and plants protected by Schedules 5 and 8 of the 1981 Act—the process known as the quinquennial review. Until the beginning of this month, this duty was vested in the Nature Conservancy Council. Under the provisions of the Environmental Protection Act 1990, it passed on 1st April to the new country agencies in England, Scotland and Wales acting through their joint nature conservation committee.

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  The proposals contained in the instrument before your Lordships this evening were first put forward by the NCC in 1986 as part of the first quinquennial review of species covered by the 1981 Act.
  The Secretary of State for the Environment has to be satisfied that the level of protection proposed is appropriate and all the relevant Government departments were consulted.
  My noble friend Lord Kimball has mentioned the freshwater pearl mussel and I am advised that this is a species which is in decline throughout most of its European range. It is in decline in England and Wales although it seems that in most of its range in Scotland the species is not under as much threat as elsewhere.
  The level of protection proposed is aimed to deter irresponsible and indiscriminate fishing for pearls. The professional fisherman is able to use his skill to identify mussels likely to contain pearls and remove the pearls without killing the mussels, as described by my noble friend Lord Kimball. It is also in the interests of these responsible fishermen to attempt to maintain stocks of the mussel at as healthy a level as possible—the principle of sustainable utilisation. The Government believes that they have struck a balance between conservation and the livelihood of the profession.
  The powers which the Government have available under the Wildlife and Countryside Act 1981 relate only to the conservation of endangered species. It would not be appropriate to use the Act to introduce measures such as those which my noble friend has suggested for the pearl mussel this evening. Indeed, my noble friend recognises that because he is considering putting forward a Private Members' Bill as an alternative. If such a Bill comes before us, the House will examine it on its merits. As the House will know, the Government's starting point on such matters is traditionally neutral. We should only stand in its way if we thought that the proposals were incompatible with government policy.
  The allis shad mentioned by some noble Lords is a species of fish. Indeed it is a grey rather than a red herring. It was once probably formerly present in many of the larger rivers in the British Isles. The protection proposed in the order before your Lordships against killing, injuring and taking the shad will lead to an enhanced conservation effort and the protection of remaining spawning grounds. The species is not actively fished for and fishing interests are safeguarded in that accidental taking and sale are excepted under the provisions of the 1981 Act.
  Out of the water and on to the land, I turn to what I believe the noble Lord, Lord Houghton, described as the lovely little creature—the adder. The Government have been aware from the outset that there were three critical issues surrounding the extension of the protection afforded to this species. First, that additional protection for the adder, as Britain's only venomous snake, could only be justified on the basis of sound scientific evidence. Secondly, we had to take careful account of anxieties about safety for members of the public, for livestock and for domestic animals. Thirdly, we had to take account of our international
  1422
  responsibilities, particularly those under the Berne convention, as mentioned by the noble Baroness, Lady Nicol.
  On the first point, the NCC put the results of wide-ranging scientific investigation and research before the Government. This demonstrates that adder populations in Great Britain as a whole are in decline and that human persecution, as well as habitat loss, is a cause of that decline. A 10 year survey of the commoner amphibians and reptiles for the NCC showed marked declines in certain core areas for the adder throughout Great Britain, and the adder has become extinct in some areas.
  Over and above that evidence of the adder's decline, was the knowledge that the three other species of reptile found in Great Britain—the grass snake, the smooth snake and the slow worm—were regularly being killed or injured in the mistaken belief that they were adders. These species are also in decline. The smooth snake is the rarest, and has been fully protected against killing, injuring or unauthorised sale since the 1981 Act came into force. The grass snake and the slow worm received additional protection against killing or injuring under the Government's initial response to the quinquennial review, via the Wildlife and Countryside Act (Variation of Schedule) Order 1988.
  The second, and to some extent counter-balancing, issue is public and animal safety. The Government were extremely concerned about this issue, so much so, that we conducted a long and careful review of the original NCC proposal submitted to us in 1986. During the period between 1986 and the announcement made by my honourable friend the Minister of State in January this year, we considered all the arguments put forward objecting to the extra protection for the adder. There is no doubt that adder bites are painful. Before the development of effective anti-venins they could, of course, be rather more than just painful; but there have been no recorded deaths caused by adders in this country since 1975. Deaths from bee or wasp stings are statistically a much higher risk, yet still one that most people would regard as acceptable.
  None of this implies that the Government have overlooked safety in these provisions. In fact we have quite intentionally ensured that it will remain legal to take—that is, capture—adders so that individual snakes, or colonies, presenting a threat to humans or animals can be moved to a more appropriate site. The local offices of the conservation agencies will provide advice to anyone who is concerned about adders. Furthermore, after taking account of advice from the relevant country conservation agency, my right honourable friend the Minister for Agriculture, Fisheries and Food is empowered to issue licences to kill adders under Section 16 of the 1981 Act for the express purpose of "preserving public health or public safety" or "preventing serious damage to livestock". Licences to kill adders would of course be issued only in cases where there was no alternative solution. Under Section 10(4) of the 1981 Act, an authorised person shall not be guilty of the offence of killing or injuring an adder if he shows that his action was

  1423
  necessary for the purpose of preventing damage to livestock. Many noble Lords were interested in who is an authorised person. An authorised person in this instance is defined as the owner or occupier, or any person authorised by the owner or occupier, of the land on which the action was taken. One can of course envisage emergencies in which the person concerned does not have a licence. Depending on the circumstances, where there is a threat of death or serious bodily harm, the defence of necessity or self-defence may be available. Therefore, the powers are there if they are ever needed.
  The third and final key issue centres on the UK's international responsibilities. The adder is protected under Appendix III of the Berne Convention on the conservation of European wildlife and natural habitats, to which the UK is a party.
  My noble friend Lord Glenarthur asked why there should not be protection i n specific areas. The adder is in general decline. Where it survives, it needs to be preserved. It would be very confusing for the public if we had to specify areas where there was or was not protection. That would be a muddle. In the Government's view, it is much better to give clear guidance to the public on the statutory protection for adders throughout the whole of the country.
  My noble friend Lord Norrie made an interesting point which I do not believe was entirely relevant to this evening's debate. We are not discussing the owl and the pussy cat but the adder, the allis shad and the pearl mussel. However, I shall look into the point which he raised and I shall write to my noble friend.
  Those are the main reasons why we have accepted the case for giving extra protection to those species. Therefore, I invite my noble friend to withdraw the Motion before us this evening.
  Lord Kimball: My Lords, I beg leave to withdraw the Motion.
  Motion, by leave, withdrawn.
  [The Sitting was suspended from 8.29 p.m. to 8.35 p.m.]

Criminal Justice Bill
House again in Committee.
[Amendment No. 46 not moved.]
Schedule 1 [Amendments of 1973 Act]:
Baroness Faithfull Baroness Faithfull moved Amendment No. 47:
Page 59, line 47, at end insert:
("(1A) A court shall not make a direction under this paragraph unless it does so for the purpose of extending the period during which the offender is required to participate in treatment or therapy designed to reduce the likelihood of further sexual offences.").
The noble Baroness said: The Committee will be glad to hear that this is a probing amendment. At Report stage in the House of Commons the Government introduced amendments to the Bill empowering courts to impose longer periods of supervision for sex offenders. First, the courts would be able, as a condition of a probation order, to require sex offenders to attend at specific centres or participate in specified activities for longer than the normal maximum of 60 days. Secondly, courts passing a
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custodial sentence would be able to specify that sex offenders should be supervised on release for longer than the normal period of post-release suspension.
When he introduced the government amendments at Report stage in the House of Commons on 20th February, the right honourable John Patten, Member of Parliament and Minister of State at the Home Office, said,
"These amendments will enable the courts to require many sexual offenders to undergo longer and more intensive programmes of supervision. The purpose is to increase the confidence of the courts—that is very important—and of the public in the arrangements for dealing with sexual offenders, to protect the public from the risk of serious harm from sexual offenders, and to try to help sexual offenders to reduce the risk of their committing further sexual offences".—[Official Report, Commons, 20/2/91; col. 287.]
Sexual offenders need positive help. If they are kept in prison for a long time or released on supervision for a long time and do not receive help, I can assure the Committee that the prison sentence will have done them no good; they will commit offences again. It is important that we help to rehabilitate those offenders in order that they may return to their families. That view has shocked many people, particularly when expressed by Lord Justice Butler-Sloss, who said that she hoped that many men would return to their families.
However, all we want to do is to lengthen their sentence or period of supervision if they are to receive help. We want to bring to the notice of the Committee the work of the Gracewell Clinic in Birmingham, which was set up privately by two men, Mr. Trevor Price and Mr. Ray Wyre. It is run privately with no money at all from the Government. I shall not go into detail about the Gracewell Clinic because the noble Lord, Lord Morris of Castle Morris, made a long speech about the clinic which appeared in Hansard on 26th March at col. 1015. Anyone wanting to know about the Gracewell Clinic will be able to read his speech. It is such a good speech that it will be quite wrong of me to repeat it.
I plead with the Committee that the Gracewell Clinic should be acknowledged and known and that the men who have committed these admittedly horrifying offences should be helped so that they can return to their own families. They can be helped in three ways: first, by being admitted to such places as the Gracewell Clinic where there is very careful treatment. Secondly, they should be allowed out on supervision after they have had time in the clinic. Thirdly, there should be lectures. Indeed an institute has been set up in Birmingham to give courses to prison warders so that they may help these men while they are in prison. Though that is a very important factor—many of the warders in the prisons of this country are glad to have this help—the environment and the kind of atmosphere that the Gracewell Clinic offers is something which should be financed, helped, supported and expanded throughout the country. I beg to move.
Baroness David: I support very strongly the amendment moved by the noble Baroness, Lady Faithfull. Everybody nowadays is worried about sexual offenders, whether the offences concern

1425
children or people of any age. We do not seem to have found an answer over the country as a whole. The Gracewell Clinic certainly seems to have worked very well. Its success record is very great. It has had 526 referrals and of that number 110 persons have been treated at the clinic. There are at the moment 21 residents.
Nobody who has been treated at the clinic has been reconvicted. It is a most remarkable record. The extraordinary fact is that, although it has this extremely good record, to date the clinic has had no help from the Government and no funding from them. My noble friend Lord Richard was speaking earlier about electronic tagging. He said that £700,000 was spent by the Government on that experiment. However, there has been no help whatever for this clinic which has an extremely successful record. It is not enough to have one clinic; we need many more.
I hope that the noble Lord the Leader of the House can say that the Government appreciate what has been done and that there can be some financial help. I am sure that the clinic depends very much on the brilliance of Ray Wyre and the people who are running the clinic. Other people could be instructed and helped by them to start clinics in other areas of the country. We know of the problems as regards sex abuse, particularly child abuse. It is a situation which everyone wishes to improve. The noble Baroness said that this was a probing amendment only. It would be nice to have a positive response on the matter tonight.
I have also learnt that no Minister has yet visited the clinic. That is very surprising indeed. I hope that the noble Lord the Leader of the House can tell us that that situation will be remedied fairly soon. We all realise that there is a problem here. I hope that this amendment will bear some fruit. I am very happy indeed to add my name and support to the noble Baroness's amendment.
8.45 p.m.
The Lord Bishop of Worcester: I add my support to this amendment moved by the noble Baroness, Lady Faithfull. On Christmas Day last I visited a prison which shall be nameless. After the Christmas service I went to the prison hospital. The first person I saw was a man with a terrible scar on his face. He was a sexual offender who had been attacked by his fellow prisoners. We know in this Committee that it is inadequate merely to put sexual offenders away. In any event they have to be protected from their fellow prisoners. They need therapy which will make less likely the recommission of crimes of this nature. I do not know about other Churches, but the Church of England has received applications for funding for people to go to the Gracewell Clinic. It is not possible for us to fund on any realistic level. I do not know exactly how long a course lasts, but it costs £6,250. We might be able to support one prisoner but we cannot give support on a larger scale.
I am not talking about any particular party of government, but it is government money which is required. As has already been said by the noble Baroness opposite, the Government have supported
1426
other experiments in the past concerning community service and reparation. I hope that the noble Lord the Leader of the House will be able to tell us tonight that the Government will support this kind of therapy, otherwise it is no use the courts recommending a course of training and therapy because it will be unobtainable. I add my support to this amendment and the precept of government financial support for the likes of the Gracewell Clinic, many more of which are needed.
Lord Harris of Greenwich: I agree with what the right reverend Prelate has just said. He has been right in identifying one of the major problems which the prison service has at the moment. A very substantial number of sex offenders have to be held and there is the increasing size of the Rule 43 population. One of the elements in the Strangeways situation was the venomous attacks which were made on Rule 43 prisoners in Manchester. Therefore, there is no doubt in my view that this is an issue which deserves high priority from the Government.
I had the opportunity of visiting the Gracewell Clinic quite recently. I was very impressed by what is being done there. I recognise that the clinic rightly charges substantial fees for those who go there. Notwithstanding it runs at a deficit. The cost of its therapy programme is infinitely greater than the total cost of any service that it can provide for any particular probation service. I was impressed both by the quality of the staff and some of the offenders who were there. They were quite open as to the offences for which they had been convicted by the courts. They had committed offences of considerable seriousness. Undoubtedly. if the Gracewell Clinic had not existed the offenders would have been sent to prison for very substantial periods.
I do not want to make any ambitious claims on behalf of the clinic. I very much agree with the noble Baroness, Lady David, in saying that it is a great pity that no member of the Government has visited the Gracewell Clinic. I recognise the pressure on Ministers. I know that it sounds as though one is being unreasonable when one makes a complaint of this kind. The fact is that the entire project has been founded by a single individual. He has put into this clinic hundreds of thousands of pounds of his own money. Unless the clinic has some form of support from public funding in the future, there is a real risk over a period of time that the Gracewell Clinic might not exist. That would be a tragedy so far as our criminal justice system is concerned.
I am sorry that I missed the speech of the noble Baroness when she introduced this amendment; but I hope that the noble Lord the Leader of the House will be able to give us some message of encouragement so far as the clinic is concerned. I understand that they are now involved in work with the prison department in Birmingham and possibly elsewhere, but certainly in Birmingham. Many of us would be particularly pleased were we to be told that a Minister was going to visit the clinic.
Lord Morris of Castle Morris: The noble Baroness, Lady Faithfull, as she always does, put her finger on

1427
the key point when she quoted the right honourable John Patten when he said, on 20th February in another place,
"These amendments will enable the courts to require many sexual offenders to undergo longer and more intensive programmes of supervision."
Then he said:
"The purpose is to increase the confidence of the courts —that is very important—and of the public in the arrangements for dealing with sexual offenders, to protect the public from the risk of serious harm from sexual offenders, and to try to help sex offenders to reduce the risk of their committing further sexual offences in future."
That is at col. 287 of the Official Report.
One should not put too much stress on a Minister's syntax or the order in which he puts things, particulary in the greenhouse effect of debates in another place. But the purpose of those amendments seems marvellously universal. Once again it seems that the Government have willed the end and failed to provide the means. The noble Baroness's amendment points this out and suggests a better course.
The Government's amendments, welcome as they are as they appear now in this Bill, will, if their purpose is achieved, increase the confidence of the courts, increase the confidence of the public, protect the public from sexual offenders, and finally—or is it a triumphal climax?—try to help sex offenders to reduce the risk of their committing further sexual offences in future.
A student was once writing a thesis on the literary works of the 17th century diarist, John Evelyn. In the introduction she tackled the difficult question of how her thesis should spell the diarist's name. She assembled all the evidence and laid it out. "We find spelling (a)", she said, "in 14 contemporary printed books. We find that spelling (b) is that used by his father and his grandfather. Spelling (c) is the way he is referred to in 66 legal documents of the time; while spelling (d) is the one he seems invariably to have used himself. Which should we prefer?"
"But", said her supervisor, "you have one class of evidence there which outweighs all the rest." "What is that?", said the student. "The spelling", came the reply, "which he invariably used himself. Use that, and the rest are unimportant." So also if we can successfully prevent sex offenders committing further sexual offences in future, we shall automatically increase the confidence of the courts and increase the confidence of the public, and protect the public.
As we have heard from all sides of this Committee, the Gracewell Clinic, which has no regular Government funding, which has not yet been visited by any Government Minister, has a most interesting record. No one treated at that clinic has been reconvicted. Q.E.D.
Lord Waddington: The whole Committee ought to be grateful to my noble friend for having raised this matter. I have been most interested to hear about the work of the Gracewell Clinic. The Home Office is following with interest the work that is being done there, and it is a good example of the role that voluntary and charitable effort can play in the criminal justice field. I shall certainly pass on to my right honourable friend the Home Secretary the
1428
suggestion that he, or one of his colleagues, should visit the clinic and give encouragement to those who are doing such important work.
I have no doubt whatsoever that there are plenty of cases where useful therapy is required, and that message has come over quite clearly in this Committee tonight. But if one turns to the amendments, one is talking about something slightly different. The Bill provides for extended supervision in sexual cases, and what these amendments would do would be to limit the powers of the courts to order extended supervision, only allowing the court to order extended supervision if therapy or treatment was going to be involved in that supervision, on the assumption, presumably —and I think it must he an assumption not justified by the facts—that no benefit could accrue to either the offender or the community in any case which might come before the court if extended supervision did not involve treatment.
I do not think anything that has been said here tonight leads me to suppose that anybody here believes that in every single case what is necessary is treatment or therapy. Indeed, one has to bear in mind that if treatment or therapy were not available for some reason or another, there could be benefit from supervision if only a benefit in greater protection for the public; the supervision perhaps making it less likely that the person would reoffend. I think what the Committee expects me to do is to accept the important message that has been given; namely, that the Government should take the closest interest in this voluntary work being carried out; but I do not think that the Committee would expect me to accept the amendments which actually would limit quite severely the powers of the court in a way that would be inappropriate.
One cannot judge—and one certainly cannot come to the conclusion—that in every single case therapy or treatment would be involved, or, to put it the other way round, that no benefit would accrue to the public by supervision unless therapy or treatment were involved. That is the right way to put it; but I repeat that I shall certainly pass on to my right honourable friend what has been said about the Gracewell Clinic, and the feeling of the Committee that it would be desirable if he, or one of his colleagues, could make a visit there.
Baroness Faithfull: I thank the Leader of the House for his reply. Most of us believe—and it is borne out by experience—that if men do not have specialised help and they just have a longer sentence, then they come out as bad as they went in. Therefore, it is in the interests of the community at large that men should be assessed as to those of them who need help and can benefit from help, and that they should receive help.
A number of men have come out, as the right reverend Prelate said, after having been cruelly treated by the other prisoners in prison. They come out, they divorce their wives, or their wives divorce them. They go to another part of the country and start again. I am grateful to the right reverend Prelate for having brought up the matter as he did. It is important, first, in order to diminish the number of people in prison; and, secondly, to prevent the offence happening again.

1429
My noble friend Lord Howe, who lives in the Midlands, wrote to me. He lives near the clinic and wished to express his support for the arguments.
I should point out just how much this has saved the prison service. I believe I am right in saying—the noble Lord, Lord Harris of Greenwich, will correct me if I am wrong—that it costs £335 a week to keep a prisoner. There have been 110 successful cases passing through the clinic. Therefore, the prison service has been saved a great deal of money even in that short period of time.
I am most grateful to my noble friend the Leader of the House for his comments. We shall study carefully what he said. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9 p.m.
Lord Mancroft Lord Mancroft moved Amendment No. 47A:
Page 61, line 16, leave out ("is dependent on drugs or alcohol") and insert ("has a drug or alcohol problem").
The noble Lord said: In moving this amendment I shall, with the leave of the Committee, speak also to Amendments Nos. 47B, 47C, 47D, 47E and 47F. I should point out at this stage that there is a drafting error, for which I take full responsibility, in that there should be similar amendments to Amendments Nos. 47A and 47B as regards lines 19 and 25 on page 61 of the Bill where the words "dependency" and "dependent" occur. Those words should be substituted as set out in the aforesaid amendments.
This is a probing amendment. Its aim is to seek clarification. Last year we had the National Health Service and Community Care Bill and this year we have the Criminal Justice Bill. These two pieces of legislation add up to a great revolution in the way that we are to treat drug addicts and alcoholics both from the point of view of health and the situation when such people appear before the courts.
The problem with all such issues is implementation. Under the National Health Service and Community Care Bill the Government followed the 1982 recommendation of the Advisory Council on the Misuse of Drugs and the later recommendation of the Advisory Committee on Alcoholism and described these people as "problem drug takers" and "problem drinkers". However, they have not done so in this Bill. I fear that if there is no conformity in the terms used there will be confusion, especially when the National Health Service and the Department of Social Security become involved in the treatment process, as they must. As my noble friend Lord Ferrers told the House on Second Reading, they will be footing the bill.
There is also a difference between those who are dependent and those who are problem drug takers or problem drinkers. All dependants have problems but not all problem drinkers and drug takers are dependent. If one uses the term "dependency", all those who have problems but who are not dependent will be left out. There are two completely different forms of treatment. Therefore, to send someone who
1430
is not dependent but who has problems for treatment designed for people who are dependent would be a waste of time and money for all concerned.
Amendment No. 47C concerns a most interesting phrase; namely, "susceptible to treatment". I have not met anyone who uses drugs or who is dependent upon them who is not susceptible to treatment. I may have read the passage in the Bill wrongly, but it appears to me at present that such people would have the option to receive treatment only on one occasion. One of the things that we have learnt is that most or many people need to go perhaps once, twice or even three times for treatment. As I say, I may have read the passage wrongly, but that is what the position appears to be at present. I believe that the phrase "susceptible to treatment" requires further explanation.
Amendment No. 47D is an attempt to re-position slightly the options which the court will have at its disposal. As the Bill stands, there will be a tendency to impose treatment orders on people who could be more appropriately dealt with by using a community sentence, with perhaps a fine, a discharge (either conditional or absolute) or a standard probation order.
Experience has shown that compelling unwilling or disruptive individuals to take treatment does little good and merely interferes with the treatment process of the other people in the unit. I believe that the treatment condition should be used to reduce the number of offenders receiving short-term prison sentences rather than to increase the tariff for using offenders on whom the court intended originally—or would have—to impose a community sentence. I hope that this amendment will achieve the objective of reducing the use of imprisonment without increasing penalties on those who would not otherwise require such a stringent sentence.
Amendment No. 47E seeks to remove paragraph 6(7). I cannot understand why this subparagraph is necessary. It allows the transfer of an individual from one treatment facility to another. The notification of the transfer is adequately called for under paragraph 6(8), whereas the ability to make the transfer is allowed under paragraph 6(6). The only possible difference in subparagraph (7) is that it specifically mentions residential treatment. I should have thought that that was well covered in the previous subparagraphs and in the following one. I cannot see the point for the existence of that subparagraph.
Amendment No. 47F is about combination orders with a treatment condition. If an offender needs a treatment order then presumably his drug use is bad. Therefore, he will need to concentrate upon treatment. I believe that imposing a combination order is asking for trouble. Three people will be required to administer it, namely the probation officer, the person administering the treatment and the person administering the community care order. To put it bluntly, that is asking an awful lot of people who cannot commit a simple crime without getting caught. It is asking too much of them if they are to be brought before the court again for failing to meet all the conditions of the order.
Earlier this evening my noble friend Lord Elton mentioned this very subject. It is one which very much concerns us all. Drug users are people who cannot organise their lives. Indeed, that is one of the symptoms of drug use. Therefore, to ask them to do too much would be negative. I appreciate that there must be an element of punishment involved. However, there is no point in that if it is so great—although it would probably not be so great for an ordinary person —that it will lead them to re-offend. We believe that combination orders with treatment attached will be unworkable in practice and that they will detract from the benefits of the treatment conditions.
In conclusion, the amendments in no way alter the principles or the purpose of this part of the Bill. I brought them forward after wide consultation with colleagues in the private and voluntary sector and with the full backing of the Standing Conference on Drug Abuse. As the Government know, it is the private and voluntary sector which will have to shoulder the bulk of the work in this area. We believe that this fine tuning can only add to the successful working of the Bill when it becomes law. I beg to move.
Lord Morris of Castle Morris: From these Benches I am happy to support the amendments because they are obviously improvements to the Bill. They are in line with the general thrust of the Bill so far as it concerns drug takers. They introduce a welcome gleam of clarity into some of the areas still dark with imprecision.
The aims of the Bill are to reduce the use of custody for drug users, not to result in greater penalties being imposed on drug users on whom the courts had no intention of imposing a custodial sentence. At present, there is no guidance on the use of the treatment condition. The Government have placed reliance on Clause 5(2) of the Bill as a means of preventing inappropriate use of the treatment condition. It says that the community sentence must, in the opinion of the court, be the most suitable for the offender and must, in restricting the liberty of the offender, be commensurate with the offence. It is likely that for many drug users the court will be satisfied that both conditions are met and seek to impose a treatment condition. The effect will be to increase penalties rather than to reduce the use of custodial sentences. That would be particularly unfortunate.
All the evidence shows that the majority of drug users receive sentences of less than one year's imprisonment. Many are remanded in custody and this time is taken into account when calculating the release date. As all prisoners serving a sentence of 12 months or less are released at the 50 per cent. point of their sentence, most will then be released within two or three months of conviction. In such a short space of time no work can be undertaken in prison. No release plan is prepared. The drug user is released to exactly the same circumstances as those pertaining when arrested. Prison is no more than a temporary interruption to drug use, rather than an introduction to treatment.
I argue that the range of community options should be used first, before a specific treatment condition is imposed. That would offer a graduated criminal
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justice response, starting with a police caution requiring no court attendance, through other options like a fine, absolute or conditional discharge, a community service order, an ordinary probation order or a probation order with the attachment of specific activities, to a probation order with a treatment order. That would give much greater opportunity for parity of treatment.
I come now to the use of the words "dependent" and "dependency" in Amendments Nos. 47A and 47B. The arguments for the changes which are proposed are unanswerable. The word "dependent" is inappropriate because the use of drugs does not automatically mean that the person is dependent. Use can be spasmodic and it can be problematic, but the user is not necessarily dependent. The use of the words "problem drinker" or "drug taker" would not exclude a person from treatment who does not habitually use, but may use on a regular basis, and at these times may come into contact with the criminal justice system.
One example which has been provided for me instances someone who drinks heavily once a week and always drives home from the pub, or who regularly gets into a fight or commits criminal damage. Such a person would not be assessed as alcohol dependent, but he certainly has a drink-related problem if such behaviour only occurs when that individual has been drinking. Similarly, someone who uses stimulants heavily but only at the weekend and who only commits offences while under the influence of the drug is not dependent but he has a. drug-related problem.
If anything, the additional clarity which these amendments propose would lead to a greater inclusiveness, perhaps even to a greater severity in the courts. However, they would produce a clarity in describing the kind of people concerned which would be of assistance to the courts. Further, for similar reasons I support the deletion of the words, "may be susceptible to". I can envisage no drug problem which would not be susceptible to treatment. Everything is susceptible to some kind of treatment. A person with a drug problem cannot be described as suffering from some kind of catholic, invincible ignorance which makes him impenetrable to the holy spirit of the appropriate treatment.
Cessation of problem drug use can take a long time. Changing the habits that have dominated one's life for perhaps 15 or 20 years can be a lengthy process. A probation order with a treatment condition attached will obviously be fully negotiated with the drug user. Experience in the specialist drugs field has shown consistently that drug users sometimes need one, two, three or more attempts to reduce drug use with a view to stopping.
The courts must exercise both charity and patience in these matters. My concern is that the words "susceptible to treatment" imply that the drug user will be allowed only one chance. That is unrealistic when one is working with problem drug users. The removal of those words will allow for repeated attempts at treatment and the use of staged treatment goals as recommended by the Government's own advisory council on the misuse of drugs and Part 1 of

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its report on AIDS and drug misuse. In the interests of parity, clarity and charity I hope that the Government will look kindly on these amendments.
9.15 p.m.
Lord Waddington: I have some sympathy with the intention behind my noble friend's Amendments Nos. 47A and 47B. He wants to ensure that probation orders with a condition of treatment for drug or alcohol misuse are not confined to those who are clinically dependent on drugs or alcohol, but are also available for those who regularly misuse these substances without being dependent. I hope I can reassure my noble friend that the Bill covers these cases through its definition of dependency. I draw the attention of my noble friend and of the noble Lord, Lord Morris of Castle Morris, to paragraph 6(10) of Part II of Schedule 1 which defines dependency on drugs or alcohol to include a propensity to misuse them. This is intended to cover cases where, for example, someone regularly over-indulges in drink and commits offences as a result. It no doubt covers someone who takes the occasional drink and then offends.
There are a couple of reasons why I would prefer to retain the wording in the Bill even though my noble friend's amendments may have the same effect. First, the words in the Bill are more precise. I fear that the courts may have difficulty in interpreting exactly what is meant by the term "drug or alcohol problem". That term may be commonly used but I am not at all sure how the courts would interpret it. Does it mean, for example, that the offender regularly drinks too much, or that he sometimes has one too many? Although the phrase may be popular with practitioners, in framing a statute great care has to be taken to be as precise as possible.
Secondly, the criteria in the Bill reflect the views of the Criminal Justice Working Group of the Advisory Council on the Misuse of Drugs. That working group recommended earlier this year that the criteria for a condition of treatment should include not only clinical dependency but also cases where the offender misuses drugs or alcohol and this contributed to the offence with which the offender is charged. The working group did not recommend the phrase "drug or alcohol problem".
As regards Amendment No. 47C, I can assure my noble friend and the noble Lord, Lord Morris of Castle Morris, that the drafting of the Bill does not rule out an offender being sent for treatment two or three times or however many times it takes. Amendment No. 47C would remove from paragraph 6(1) (c) the criterion that an offender's dependency may be susceptible to treatment. Instead, the courts would only have to be satisfied that the offender's dependency required treatment. This would mean that the courts could make a probation order with a treatment condition on anyone whose condition required it, regardless of whether or not his condition was susceptible to treatment. As such, my noble friend's amendment would go wider than the Bill. But we want to make the best use of the facilities that are
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available for the treatment of drug and alcohol misuse. This means, simply, that it would not be right to use up the treatment facilities in cases where these are not going to be effective. I cannot agree with the proposition advanced by the noble Lord, Lord Morris of Castle Morris, when he said that everything is susceptible to treatment.
Amendment No. 47D would prevent the courts making a probation order with a condition of treatment unless two further criteria were met. The first is that a probation officer thought that it would be impossible to supervise the offender unless he was subject to a treatment requirement for drug or alcohol misuse. The second is that, if it did not make a probation order with a condition of treatment, the court would otherwise pass an immediate custodial sentence. But this will restrict quite significantly the use of these probation orders. Under the Bill, custody is reserved for offences that are so serious that no lesser disposal will do. If a court considers that an immediate prison sentence would be necessary, then it will already have decided that a probation order would not adequately reflect the seriousness of the offence. This amendment may be thought apt for cases where the offender commits a very serious offence, such as inflicting grievous bodily harm to obtain money to fuel his addiction to drugs.
However, there are many cases where imprisonment would not be justified by the gravity of the offence, but the offender would benefit from a probation order with a condition of treatment. Such offenders would be excluded by this amendment.
We prefer the approach taken in the Bill. Clause 5(2) (a) requires a community sentence passed on an offender to consist of the order or orders most suitable for him. Clause 6(2) requires a court to consider a pre-sentence report before making a probation order with a condition of treatment so as to ensure that that would be the most suitable disposal. That, in our view, will effectively prevent the inappropriate or indiscriminate use of these probation orders.
Turning to Amendment No. 47E, it might be helpful if I explained what the provisions in sub-paragraphs (7) and (9) of paragraph 6 are intended to achieve. Sub-paragraph (7) is simply concerned with the variation of part of the programme of treatment for drug or alcohol misuse in which the offender is participating. Paragraph 6(3) requires a probation order which includes a requirement for such treatment to specify either an institution or place where the whole of the treatment should take place or a named person with the appropriate qualifications and experience to supervise a programme of treatment. If the institution or place named in the order or the named person changes, then the matter must be referred to the court for its consideration. However, provided the person or institution named in the order remains responsible for the treatment programme, paragraph 6(6) provides for a degree of flexibility in planning that programme of treatment without the matter necessarily returning to the court because paragraph 6(6) allows the person directing the treatment to make certain changes to the programme of treatment, with the consent of the offender.

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Turning briefly to Amendment No. 47F and paragraph 6(9) there has, I know, been some confusion about this provision. The reference to Section 10 has been react as a reference to Clause 10 of the Bill. However, Schedule 1 to the Bill amends the Powers of Criminal Courts Act 1973. The reference to "section 10 of this Act" in paragraph 6(9) is thus a reference to Section 10 of the 1973 Act.
My noble friend has raised a number of matters but I hope that his fears have been assuaged by what I have said. Certainly Amendment No. 47F need not bother him because all that the provision does is ensure that proper arrangements can be made to allow an offender who is normally resident in Scotland but is convicted in England and made the subject of a probation order, with a requirement for drug or alcohol treatment, to have his treatment carried out in Scotland. I do not believe that I can help my noble friend further.
Lord Richard: I do not want to prolong the debate, but is the noble Lord the Leader of the House really telling us that the drafting of subparagraph (9), in which "section 10 of this Act" does not refer to this Act but to something that has been referred to at the beginning of the schedule, is felicitous and that it necessarily has to be done in that complicated way? I find it hard to believe that he is saying that. Will be look at that again?
Lord Waddington: I can assure the noble Lord that I am correct. If he turns to the beginning of Schedule 1 on page 55 of the Bill he will see that it is entitled:
"Schedule 1
Amendments of 1973 Act
Part I".
What follows is part of the 1973 Act and therefore references thereafter to "this Act" must be references to the 1973 Act.
Lord Elton: There is nothing unusual about that. It is perfectly normal to have a schedule to one Act amending the text of another Act. Once one sees the heading of the schedule it is perfectly clear what is intended.
I should like to ask my noble friend to consider with his officials the advisability of having a different definition of dependency in statute and in clinical language. I can see considerable difficulties developing in court down the years if expert witnesses are expected to translate their accustomed language into the language of the law. It may result in confusion. I do not wish to delay the Committee further.
Lord Waddington: I shall pass on what my noble friend has said in that regard, but there is a clear definition of dependency in the Act and I quoted from that definition.
Lord Mancroft: I have had a long and complicated answer from my noble friend the Leader of the House and I shall have to read it carefully. I am concerned about the problem of terminology. I appreciate that this is a legal Bill, that definitions must appear before a court and that the health service's definitions are not for the courts. Nevertheless, they must both be
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accurate definitions of the same thing. It is a pity that they are unnecessarily complicated. They are the exact opposite of each other.
It is also a pity that the definition in paragraph 6(10) is completely opposed to the view of the Department of Health. They are two departments in the same Government. It is a bit of a muddle. This is a field in which various government departments get together. I am told that there are various Cabinet sub-committees which ponder those problems. It is slightly worrying if they cannot decide on a definition. It is therefore hardly surprising that there is such a muddle lower down in the field where the work has to be done.
The answers to the other amendments are quite complicated and I shall read carefully what my noble friend said. I am still not wholly convinced that paragraph 6(8) is necessary but I shall take his word for it for the moment. On that note, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 47B to 47F not moved.] Schedule I agreed to.
Clause 9 [Community service orders]:
Lord Richard Lord Richard moved Amendment No. 48:
Page 8, line 11, leave out subsection (2).
The noble Lord said: As I understand it, the purpose of Clause 9(2) is to increase the maximum number of hours of community service for 16 year-olds to 240. Currently the maximum is 120. I believe that the breach or failure rates would markedly increase as a result of that extension. Many 16 year-olds would therefore be tripwired into custody because of further offences or of failure to comply with conditions.
If one looks at the 16 year-old offender group it is typically fairly immature, it leads a somewhat disorganised, undisciplined lifestyle and it has frequently experienced learning difficulties. Many young people would therefore find themselves in a position of failing as a result of the imposition of extra conditions and hours. For all ages, the more hours that are specified, the higher the breach rate. For example, those sentenced to between 40 and 100 hours have a 77 per cent. success rate; those sentenced to between 100 and 150 hours have a 70 per cent. completion rate; those sentenced to between 150 and 200 hours have a 66 per cent. completion rate; and those sentenced to between 200 and 240 hours have a 61 per cent. success rate. Therefore, the failure rate for 16 year-olds sentenced to more than 120 hours seems set to soar, perhaps with a majority who are sentenced to it breaching.
The evidence suggests that the longer the order, the higher the breach rate. It also suggests that the younger, the less mature and more disorganised the offender, the higher the failure rate. If you put those two together, the proposed combination of those two factors for 16 year-olds seems certain sharply to increase the number failing to comply and therefore a significant number will receive custody through sentences.
Prison statistics show that 80 per cent. of 16 year-olds sentenced to custody are reconvicted within two years. Therefore, the imposition of extra community service seems set to increase the use of custody for 16 year-olds and confirm rather than deter criminal careers. I have seen no practical justification for increasing the maximum from 120 to 240 hours. I beg to move.
Baroness Faithfull: I rise to support the noble Lord, Lord Richard. With 16 year-olds the law of diminishing returns sets in. If one is to impose very long sentences, the young people concerned receive less and less positive help. From my experience, the longer a child is in custody, the more difficult it is to rehabilitate that child into the community afterwards. I support the noble Lord on those two points. My noble friend Lord Elton knows all about the very good system of the intermediate treatment within the community. It is far better to keep young people in custody for a shorter time and see that they receive rehabilitation afterwards. Therefore, I support the amendment.
9.30 p.m.
Lord Gisborough: I also support the amendment. Those charged with the duty of carrying out community service orders for 16 year-olds believe that such orders have a much better chance of being completed successfully when the young offenders have a grasp of the parameters of the orders. The maximum number of hours should apply also to 17 year-olds dealt with in the new youth courts, so creating some differential between orders for adults and juveniles and young people.
Lord Waddington: The proposal in Clause 6(2) must be looked at against the background of the proposition in the White Paper that 16 and 17 year-olds should be dealt with as near-adults. That is the origin of the proposal. All it does is say that the same powers would be available to the courts in this regard for 16 year-olds as for 17 year-olds. That is directly in line with the general proposition in the White Paper that both 16 and 17 year-olds should come within the purview of the new youth court.
The amendment would retain the maximum number of hours of unpaid work which can be imposed on a 16 year-old offender at the existing limit of 120 hours. We believe that increasing the maximum number of hours to 240 in line with the maximum for other offenders will be helpful to the courts in dealing with offenders at this age. Of course, the courts do not have to impose more hours of community service unless they think it is right to do so. It is an integral part of our general approach in dealing with 16 and 17 year-olds that teenagers of this age are at an intermediate stage between childhood and adulthood. The arrangements for dealing with such offenders should reflect that by providing the courts with a wide range of disposals so that the sentence can properly reflect the maturity of the individual offender. It seems to me that to accept the amendment would be to
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deprive the court of some additional flexibility so as to make the penalty fit the crime and the particular young offender.
Lord Richard: If I may say so, I find the response unconvincing. I have seen no evidence anywhere that courts presently dealing with 16 year-olds are saying to themselves, "Good heavens! Wouldn't it be nice if we had power to impose 240 hours as opposed to being stuck with 120?" It seems to me that the present system is working reasonably well, and that there are dangers in interfering with it. At this hour I will not attempt to divide the House on the issue. I ask for leave to withdraw the amendment. We may come back to it at a later stage.
Amendment, by leave, withdrawn.
Clause 9 agreed to.
Clause 10 [Orders combining probation and community service]:
Lord Richard Lord Richard moved Amendment No. 49:
Page 8, line 48, at end insert:
("(2A) A court shall not make a combination order unless it would have imposed a custodial sentence if it had not made such an order.").
The noble Lord said: This is another amendment raising a fairly short point. I hope I may be more successful in this than on the last short point I raised with the noble Lord.
The amendment would require courts to use the new combined probation and community service order only when they would otherwise have imposed a custodial sentence. As I understand it, the aim of the new combination order is to provide the courts with a new intensive and demanding penalty which would be a credible alternative to custody for many offenders who are currently in prison. However, there is no guidance to that effect in the Bill. In the absence of any such guidance there is every possibility that the courts would use the new order for many offenders who had currently received probation orders, community service orders or other existing community penalties. For example, the community service order introduced by the Criminal Justice Act 1972 was intended primarily as an alternative to custody. A few years after its introduction Home Office research found that only 45 per cent. to 50 per cent. of such orders were passed on offenders who otherwise would have gone to prison.
If that were to happen in this case it would seriously reduce the impact of the new order on the unnecessary use of custodial sentences. A further danger lies in the fact that the greater the number of requirements imposed on offenders the higher the chance that the offender will break one of the conditions, be returned to court for breach and be imprisoned. If the combination order were widely used instead of the existing non-custodial penalties it could lead to the imprisonment for breach of many offenders who otherwise would not have been at risk of custody. The Bill should therefore be amended to stipulate that the courts must use the combination order only when they would otherwise have passed a custodial sentence.
A combination order will be the most intensive community penalty available to the courts. By

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reserving it for more serious cases which would currently receive a custodial sentence the amendment would reinforce the idea that the more intensive penalties should be used for the more serious offences which deserve them. I beg to move.
Lord Harris of Greenwich: I propose to speak very briefly on this amendment. I agree with the noble Lord, Lord Richard. When community service was first introduced—I think by the noble Lord, Lord Carr —on an experimental basis and the resources were provided by the successor Labour Government to extend the system to the rest of the country, it was made clear that community service was seen as a direct alternative to imprisonment. I am not sure that that approach necessarily succeeded over a period of time but it is probable that somewhere in the region of half of those who at that time were sentenced to community service would otherwise have gone to prison. The amendment of the noble Lord, Lord Richard, to which I added my name, would require the courts to use the new combined sentence only when otherwise there would have been a custodial sentence. That seems to me to be right.
It is also right for another reason. If one is to have the new sentence—the combined order—the resource implications for the probation service are very considerable. They will be infinitely greater than they are, for instance, in the single probation order or the single community service order. As Ministers constantly and rightly explain, the resources of the probation service are limited. That being so, it seems to me that this amendment is exactly the right approach; namely, that it should be seen as a direct alternative to imprisonment.
I read the report of what the Minister of State said in the House of Commons. He seemed to be most unpersuasive as to why the Government were not attracted by this approach. Even in terms of the resource implications for the probation service I believe that this is the right way to deal with the issue. I hope, without an immense degree of optimism, that the Government will agree with us.
Lord Henderson of Brompton: Perhaps I may add a brief word. So far today I have not spoken and perhaps I shall be allowed a little credit in that respect. I agree about the resource implications mentioned by the noble Lord, Lord Harris of Greenwich. To my mind the most important reason for agreeing to this amendment is that should it not be accepted the most valuable new combined probation and community service inevitably would be devalued. That would be a great pity indeed. It would only be devalued by being used for the wrong purpose; that is, as an alternative to other non-custodial sentences. I believe that it would lead to the imprisonment of those in breach of many of the orders who would ordinarily not have been confined to custody. However, if they are subject to one of those orders and are in breach they would then be at risk unnecessarily of imprisonment. One is thereby increasing the risk of imprisonment by not making the distinction which the amendment seeks to make. I strongly support the amendment.
Lord Waddington: I understand the intention behind the amendment. However, the wording of the amendment is unfortunate. Perhaps I may remind the House that the provisions in the Criminal Justice Bill relating to community sentences are, deliberately framed so as to move away from what is thought of by many as the outmoded concept of "alternatives to custody". The trouble with that approach is that it encourages sentencers to think that the only real penalty is custody, and that a sentence other than a custodial one is therefore unlikely to be appropriate for relatively serious cases. This is quite out of line with the sentencing principles of the Bill which establish quite clearly that custody should be used only when no other penalty will do.
I believe that we are all agreed that there should be as wide a range as possible of community penalties available to the courts so that the courts are encouraged to use community penalties. In introducing a new type of order—in this case the combination order—it is surely right to ensure that it is used like other community sentences as a penalty in its own right for offenders for whom it is suitable. The combination order will, I believe, be particularly suitable for those offenders who have committed quite serious crimes on the border between a community penalty and custody. But it is only clouding the issue to require the courts in this particular case to ask themselves the very question that we do not ask courts to ask themselves in any other case: whether they would have given a custodial sentence if the combination order had not been available.
I understand the concern that combination orders should not be used indiscriminately, and in particular should not be used in circumstances where an ordinary probation or community service order would be more appropriate. I do not, however. believe that this will happen. The yardstick for any community sentence, including a combination order, is set out quite clearly in Clause 5(2) of the Bill. Under Clause 5(2) (b), the restrictions on liberty in an order are to be commensurate with the seriousness of the offence. Under Clause 5(2) (a) the community sentence must be the most suitable for the offender. These are tight and rigorous tests which will ensure that the combination order, and indeed other community sentences, are used appropriately.
I hope that what I have said has served to explain more fully the way in which the Bill provisions will work and that the noble Lord, Lord Richard, will understand why I do not think it would be right to restrict the use of a combination order in the way that he proposes.
Lord Richard: I hear what the Leader of the House says. I take the point that the philosophy of the Bill and the terms of the amendment do not fit as well together as they should. I beg leave to withdraw the amendment at this stage. However, I should like to consider the drafting to see whether it may be possible to produce an amendment which sits rather better with the philosophy of the Bill.
Amendment, by leave, withdrawn.
Clause 10 agreed to.
9.45 p.m.
Lord Gisborough Lord Gisborough moved Amendment No. 50:
After Clause 10, insert the following new clause:
("Commencement of s. 49 of Criminal Justice Act 1972.
Section 49 of the Criminal Justice Act 1972 shall come into force on the date this Act is passed.").
The noble Lord said: Section 49 of the 1972 Act provides that in any case where a magistrates' court has powers to issue a warrant of commitment for default of payment of a fine the court may make a community service order instead of a commitment to prison. We are agreed that it is preferable to put a man on community punishment rather than to send him to prison. However, the section has never been brought into force. I understand the reason is that the probation service is not adequately funded nor staffed to deal with the numbers involved. Thus defaulters are sent to prison. The cost of keeping them there must far exceed the cost of putting them on community service even if it comes from a different budget. In addition there are the well-rehearsed disadvantages of introducing a man to prison. If community service is constructive it will achieve a value in the work carried out which will balance the unpaid fine. It would be wholly desirable as well as being a great economy to fund the probation service to the extent that it would be prepared to take on the duty relating to this section. Therefore it should come into force with the Bill. I beg to move.
Lord Waddington: We all agree that we wish to see fewer fine defaulters in prison. Members of the Committee will be aware that the Bill contains important provisions which should have a beneficial impact on the problem. The introduction of unit fines and the attachment of income support will lead to less imprisonment for default as a result of fairer assessment and easier enforcement. They should ensure that only those who have deliberately not paid their fines will end up in prison as a result.
There is no doubt that a large number of people wait a long time before meeting their obligations. At the eleventh hour and under the threat of imprisonment they decide to pay up. The question is whether the proposal in the amendment would be a wise use of resources and have the beneficial effect which my noble friend suggests.
Having considered whether to bring Section 49 of the 1972 Act into force and to make community service available for fine defaulters, we have decided not to go down that road. We do not believe that community service would be as effective as imprisonment in encouraging defaulters to pay their fines. About 120,000 warrants are issued each year committing fine defaulters to prison and more than 80 per cent. pay up. The use of community service would divert the probation service from its important task of supervising more serious offenders.
My noble friend has freely acknowledged that the use of community service would cost the probation service a great deal in resources. In our judgment it would cost the probation service more than it would save the prison service. Those who fail to comply with the community service order would still end up in
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prison for default. A nice judgment must be made. For those reasons we have reached the conclusion that at the present time it is not wise to go down the road recommended by my noble friend. I hope that he will look at the issue in the context of the other proposals in the Bill which should have a desirable impact on the number of people who end up in prison for fine default.
Lord Gisborough: I thank my noble friend for that reply. I am not convinced but I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Clause 11 [Curfew orders]:
[Amendment No. 50A had been withdrawn from the Marshalled List.]
[Amendment No. 51 not moved.]
Clause 11 agreed to.
Clause 12 [Electronic monitoring of curfew orders]: [Amendment No. 51A had been withdrawn from the Marshalled List.]
Clause 12 agreed to.
Clause 13 agreed to.
Schedule 2 [Enforcement etc. of community orders]:
On Question, Whether Schedule 2 shall be agreed to?
Lord Ackner: I have given notice of my intention to address the Committee on this issue. I hope that I have adopted the right procedure. I have done so because, as I understand it, major changes are being made in the way an offender is to be dealt with for breach of a requirement of a probation order. I may be wrong but that is my understanding of Schedule 2.
An offender who is in breach of an order may be fined, or the order may be revoked and the offender resentenced for the offence. However, it will normally be possible to impose a custodial sentence on an offender who is in breach of a requirement of the order only if his breach is "wilful and persistent". Those are the words at paragraphs 3(2) (b) and 4(2) (b) of Schedule 2. The court will not generally be able to impose a custodial sentence under paragraph 4(1) (c) as the original offence was not sufficiently serious to satisfy Clause 1(2). The offender's failure to respond to the probation order must, as I understand it, be ignored by reason of the strange provisions of Clause 3(2). That may make the probation order a distinctly less attractive option in the more serious and potentially risky cases.
Further, the commission of a further offence during the period of a probation order will not in itself be a ground for resentencing the offender for the offence for which the probation order was imposed, as it has been in the past. Resentencing following a further conviction in a magistrates' court will be possible under paragraph 7 if the offender or supervising officer applies to the supervising court for revocation and under paragraph 8 if the offender is convicted in the Crown Court. In neither of those cases will it normally be possible to impose a custodial sentence for the original offence, as the criteria for custodial sentences in Clause 1 will normally prevent that, except of

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course in cases where they do not apply; that is, in indictable only offences committed by an offender who has served a previous sentence of imprisonment.
All that adds up to the proposition that the general effect of these changes, contrary to what I understand to be government policy, seems to be to weaken the probation order by restricting the sanctions available on a breach or conviction for a further offence. Therefore, this is one of these very rare, if not totally unique, situations where I expect, if he is going to be consistent with his peroration today, the noble Lord, Lord Hutchinson, will leap to my support. In that happy and confident vein, I commend what I say to the Committee.
Earl Ferrers: Perhaps I may explain to the noble and learned Lord what the position is. If we are to have community sentences then we must have means of enforcing them, otherwise the system will fall into disrepute. There must be provisions to cover such eventualities as an offender not turning up for a community service work appointment, committing a further offence or moving to another part of the country.
Schedule 2 contains a set of enforcement provisions that are largely based on existing procedures. However, we have tried to make them clearer and more consistent. We have tried to apply the same approach as nearly as possible to a number of community orders—the probation order, the community service order, the combination order and the curfew order. In doing so we aimed at consistency with the sentencing framework in Clauses 1 to 6 of the Bill.
Enforcement of community sentences needs to be rigorous so that offenders cannot ignore the requirements of their orders with impunity. At the same time they should not be over zealous so that a minor breach will send the offender back into custody. It is difficult to obtain the correct balance and I hope that the schedule achieves that.
In general, when dealing with breach of the requirements of a community sentence the courts will be able to impose a penalty of either a fine equivalent to level 3 maximum £.1,000—or up to 40 community service hours. The original order will remain in force. If a court revokes an order following a breach of requirements so as to deal with the offender in another way then it must take into account how far he or she has already complied with its requirements. The Bill brings the powers for dealing with re-offending during the currency of a probation order more into line with the arrangements for community service orders, reflecting the new status of the probation order as a sentence of the court.
Part III of Schedule 2, which deals with the revocation of an order, preserves the existing power of the courts to revoke a probation order in circumstances where the probationer has made good progress. The last part of Schedule 2 deals with the amendment of a community order for other reasons; for example, where an offender moves from one area to another or where a community service order needs to be extended beyond the original 12 month period to enable an offender to complete it.
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I hope the provisions in Schedule 2 will be easier for all concerned to understand and apply than are the current provisions of the law. They seek to achieve a greater degree of consistency and a balanced approach between encouraging the offender to complete the order successfully and punishing him or her appropriately for any failures on the way to completion.
Lord Ackner: Before the noble Earl sits down perhaps he will confirm that I was right in my inference that the effect of the changes is to weaken the probation order by restricting the sanctions available for a breach or conviction of a further offence.
Earl Ferrers: I shall need to consider that proposition more carefully. I do not believe that the Bill weakens the probation order; it treats it as a punishment in its own right. However, I shall consider what the noble and learned Lord said and if I am incorrect I will write to him.
Schedule 2 agreed to.
Clauses 14 and 15 agreed to.
Schedule 3 agreed to.
10 p.m.
Clause 16 [Fixing of certain fines by reference to units]:
Lord Waddington Lord Waddington moved Amendment No. 52:
Page 12, line 31, leave out ("at the time of the conviction").
The noble Lord said: The purpose of Amendments Nos. 52 and 53 is to deal with two points affecting the operation of the unit fine scheme under Clause 16. The Bill provides for a unit fine to be determined with reference to two things; that is, the seriousness of the offence and the disposable weekly income of the offender. The court will ascribe a number of units corresponding to the first of these and a value to each unit corresponding to the second.
The first point arises in Clause 16(2) (a). This requires the court to determine the number of units at the time of the conviction. However, the court does not always pass sentence immediately after it convicts an offender. For example, a court may convict an offender of two or more offences on two or more separate occasions and may then proceed to pass sentence for them all at one sitting. It is clearly desirable that the provisions of the Bill should accurately reflect court procedures. Accordingly, Amendment No. 52 removes the reference to the time of the conviction in Clause 16(2) (a). Amendment No. 53 is a drafting change consequential on Amendment No. 52.
The second point is that the Bill, in Clause 16(7) (b), allows the value of each unit to be determined by court officials in accordance with rules made by my noble and learned friend the Lord Chancellor. This would work as follows. The offender would provide a statement of his means. The court officials would work out his disposable weekly income and then ascribe a value to each unit. Then the amount of the fine could be calculated. This could happen when the offender was sentenced or at some later point. In the latter case

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the court officials would under Clause 16(2) write to him and let him know the amount of the fine he had to pay.
We thought very carefully about that and we have come to the view that such a practice is incompatible with the principle that court proceedings are generally supposed to be public and open, with the sentence stated in open court. This means that the value of each unit in a unit fine, on which the amount of the fine partly depends, will also have to be announced in open court. Another problem is that it is not clear where an appeal lies if the offender thinks that the court officials have wrongly calculated his disposable weekly income.
On that basis we have concluded that the task of determining the value of a unit must be left to the magistrate. We cannot shovel it off on officials. The magistrate may take advice from court officials, but he will be responsible for determining its value and announcing the amount of the fine in open court. Amendment No. 60 therefore removes Clause 16(7) from the Bill. Amendments Nos. 54 and 55 are consequential: if the fine is to be announced in open court and not determined by court officials in private, there is no need to notify the offender by post. So Amendment No. 55 deletes the tailpiece to Clause 16(2). Amendment No. 54 preserves my noble and learned friend's power to make rules governing the way in which the value of a unit is to be determined. These are amendments which make a real improvement to the Bill. I commend them to the Committee.
On Question, amendment agreed to.
Lord Waddington Lord Waddington moved Amendment No. 53:
Page 12, line 36, leave out ("that") and insert ("the same").
On Question, amendment agreed to.
Lord Waddington Lord Waddington moved Amendment No. 54:
Page 12, line 37, after ("court") insert ("in accordance with rules made by the Lord Chancellor").
On Question, amendment agreed to.
Lord Waddington Lord Waddington moved Amendment No.55:
Page 12, leave out lines 38 to 40.
On Question, amendment agreed to.
Lord Waddington Lord Waddington moved Amendment No. 56:
Page 12, line 40, at end insert:
("(2A) In making any such determination as is mentioned in subsection (2) (a) above, a court shall take into account all such information about the circumstances of the offence (including any aggravating or mitigating factors) as is available to it.").
The noble Lord said: The purpose of this amendment is simply to ensure that a court takes into account the circumstances of the offence (including any aggravating or mitigating factors) in fixing the amount of a unit fine under Clause 16(2). This is to be consistent with the related provisions in Clauses 3 and 6. When a court is thinking of imposing a custodial or community sentence under Clauses 3 or 6, it must consider information about the offence, including aggravating or mitigating factors. This is to enable it to decide whether the offence is serious enough to justify one of these sentences. Clause 16, as drafted at present, contains no similar reference to these factors. We think that there should be consistency between this provision and the related provisions in Clauses 3 and 6. So Amendment No. 56 makes it clear that when a court is considering how many units would properly reflect the seriousness of the offence it should take into account any available information about the circumstances of the offence just as it should when imposing any other kind of sentence. I beg to move.
On Question, amendment agreed to.
Lord Henderson of Brompton Lord Henderson of Brompton moved Amendment No. 57:
Page 13, line 9, after ("above)") insert ("unless the court is satisfied that this would be unreasonable having regard to the circumstances of the offender").
The noble Lord said: This amendment, which I am happy to say has all-party support, seeks to make one small but important amendment to the means related unit fine system which is introduced in this Bill, and which I think I can say for all of those who support this amendment is immensely welcome. We have been working for this for some time. Indeed I well remember that I moved an amendment, which was not so expertly drafted as the provisions in this Bill, to the Criminal Justice Act 1988, when I regret to say that it was received with a rather cold answer from the Government. I am sure they were right to do so, because since then there has been this valuable experiment in four areas which has amply justified the introduction of the unit fine system.
The only area that we would quarrel with is the provision which allows courts operating the unit fine system to calculate an offender's weekly disposable income at less than £4 where to calculate it at £4 a week would be unreasonable. We do not like this limit of £4 in the case of very poor offenders. Under the unit fine system, as the Committee will know, the size of a fine is determined by multiplying the number of units representing the seriousness of the offence by the weekly disposable income of the offender.
When this experiment took place, three out of the four courts set a minimum amount of £3 a week, and Bradford, one of the experimental centres, had a minimum of £5 a week. But the reality turned out to be—and this is in the evidence of the Home Office evaluation of the experiments—that at Bradford, where the minimum weekly amount was £5, in practice more than one-third of the fines were set at £3 or less, and 11 per cent. were set at £1 or £2 a week.
At Swansea 41 per cent. of the fines were set at £3 or less, and 13 per cent. at £1 or £2 a week. At Teesside, the area of highest unemployment, nearly half of the fines were set at £3 a week or less, with as much as 39 per cent. being set at £1 or £2 a week. We should not ignore the valuable evidence that came from these experimental areas. Even in the relatively well-off area of Basingstoke, although they had few fines below £3 a week, the magistrates there occasionally fined the odd offender as little as £1 or £2 a week. We ought to have regard to the experience that has been gathered from this valuable experiment in four diverse areas of the country where the magistrates found it necessary to lower the bottom limit to as little as £1 or £2 a week.
I should have thought that it would be in accordance with the respect that we would show for magistrates' courts that we should allow them, where they have evidence of perhaps default of a fine because of the personal circumstances or very low income of the offender, to allow payment at a lower rate. If they are not allowed that discretion, then the offender might unfortunately end up in prison in default of payment.
Not only should we defer to the experience of the magistrates and trust them in this matter, but we should also have regard to the fairness of the scheme. Such fairness lies in ensuring that fines have a more equal impact on the poor and on those who are well off. For example, if an offender who can afford to pay £20 a week receives a fine of £20 a week but a poor person who can only afford £2 a week is fined as if he could afford £4 a week, it is quite clear that the degree of fairness—which is an admirable feature of the unit fine system—is reduced. Moreover, the likelihood of default at the lower end of the scale is increased.
I turn now to the remarks made by Mr. John Patten in another place; namely, that if the monetary value was set lower than £4 a week there would be:
"the risk of setting up a system such that the monetary value of the fine would become derisory".—[Official Report, Commons, 20/2/91; col. 404.]
I believe that is overstating the case. I do not believe that it would be derisory. I believe that it would be possible to collect a sum of perhaps £1, £2 or £3 a week and that it would be paid: whereas, if a very poor person is forced to pay as much as £5 a week, there will be a default and the whole purpose of the system will be defeated by the defaulting offender being sent to prison.
The case is a most powerful one. In order to make the system which we all agree is extremely valuable more effective as well as fairer, I strongly commend the amendment to the Committee. I beg to move.
Lord Hutchinson of Lullington: I support this amendment. It is very late at night but this is a most important issue. The means-related unit fines system has substantially reduced the number of people being committed to prison for fine default. In my view, there can hardly be a more important motive than to somehow reduce the ludicrous number of people who are at present sent to prison for very short periods of time for fine default.
The noble Lord, Lord Henderson, mentioned the various places where the experiment has been introduced. In Basingstoke, the cowl has almost completely abolished imprisonment for default. Indeed, it has proved what many of us have been arguing for years in this Chamber; namely, that with proper arrangements prison can be abolished altogether for fine defaulters.
I was sorry to hear the noble Lord the Leader of the House say earlier how many people repay their fines only because of the threat of imprisonment. That is simply not necessary. There are other ways of obtaining the money rather than the old-fashioned method of the blunderbuss of threatening imprisonment. Basingstoke has proved its point. What is proposed is most essential. I say that because there are many offenders who simply cannot afford to pay £4 a week.
I do not believe that the Government appreciate the depth of poverty which many people face in this country at present. Surely the Government are able to recognise the fact that magistrates' courts are well able to decide the appropriate sum which should be fixed at the bottom of the scale. These experiments have shown that the various courts have not been given a

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sum which is frozen; they set a sum and have the flexibility to vary it in special circumstances. Surely that is the proper way to deal with the matter.
The amendment is strongly supported by the National Association of Citizens Advice Bureaux. It has supplied us with a number of examples and I shall not quote them all at this late hour, but it is important to give at least two of them. A CAB in Lancashire reports the case of a single parent on income support who was fined £50 for non-payment of a TV licence. She could only afford to pay £1 a week and she fell behind with the payments. Bailiff action was started to recover the fine, incurring costs amounting to a further £30.
A CAB in Devon reports a case where a man with a family, including a child under five, used his income support to pay his fines having been threatened with imprisonment for non-payment. He was subsequently refused a social fund crisis loan and the family were left without any money for 11 days. In another case, a CAB in Derbyshire reports that it has a client who works for 20 hours a week in a residential cafe home. His pay is £20 a week. He visited the bureau because the DSS had stopped his income support. Its reason was that it did not believe that anyone could be paid so little and the DSS assessed his earnings at £40. Those three examples out of a great number indicate the depth of poverty which people face in this country. Surely flexibility is essential.
10.15 p.m.
Baroness Faithfull: As one who has had to collect debts from people I strongly support the amendment. If people are asked to pay an amount which they cannot manage then they pay nothing at all and there is a difficulty. If they try to pay from their income, particularly if the family is on income support, there is disruption in the family because the mother does not have enough money to look after her husband and children.
It is right that people should be fined if they run into debt in this way, but if they are ordered to pay £4 per week but cannot do so they are worse off than before because they will go to prison. I cannot understand why, if they must pay the full amount, it cannot be spread over a longer period so that they pay a much smaller sum which is within their budget. Such people will then face their problems. However, if they are forced to repay amounts which they cannot afford they will pay nothing at all. This is my personal experience of dealing with debtors.
Lord Morris of Castle Morris: Was it not that great dramatist and contemporary of William Shakespeare, Ben Jonson, who, speaking of the importance of the Greek and Roman writers to the writers of his own generation, said that the ancients should be guides not commanders? So here it seems eminently sensible, fair and cost-effective to relax this commanding rule of "never less than £4 a week" and use that phrase as a guide, mollified by the words of the amendment.
As we have heard, the pilot schemes have been eminently successful and not to accede to the
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amendment would reduce the fairness of the whole system. Its fairness lies in ensuring that fines have an equal impact on the poor and the well-off. It would also reduce the effectiveness of the system because offenders, required to pay twice as much as their real disposable income warrants, are more likely to default. Sense, prudence, fairness and Ben Jonson commend this amendment to the Committee. So do I.
Lord Waddington: As usual my noble friend Lady Faithfull got to the nub of the matter as she addressed most of her remarks not to the level of the fine but to the rate of payment. That, of course, is a solution to the problem. I believe that the case is being grossly overstated by those supporting the amendment when they talk as if a minimum fine of £4 is a fine that no one in the depths of poverty could ever pay. It is, of course, always up to the magistrates to decide at what rate a fine should be paid. Clearly magistrates can take into account the desperate straits of a person in deciding the rate of payment. That is really the important issue.
We must remember that we are introducing a new scheme. For such a scheme to be viable and to have credibility with sentencers, offenders, victims and with the public at large, a minimum value of the kind proposed in the Bill is surely an essential element. We have adopted a starting point of £4. We have tried to achieve a balance between the need to take proper account of an offender's means and the need to ensure that the seriousness of the offence is properly reflected in the fine.
It is difficult these days to think of a single offence the seriousness of which could be reflected in a derisory fine as low as £4, £6 or £8. In making this judgment we have taken full account of the experience of the courts participating in the pilot projects initiated to test the unit fine scheme. As I believe the noble Lord, Lord Henderson, acknowledged, each of those projects adopted a minimum value for a unit. Admittedly they did not all adopt the same minimum value but, as far as I recall, they all adopted a minimum value.
I went down to Basingstoke to see how the scheme was working. It is working incredibly well. No one here is suggesting that we are not right to go ahead with the unit fine scheme. However, we must make it work and we must ensure that it has credibility. I do not think it helps to build up the credibility of the scheme to say that a magistrates' court might impose a minimum value on a unit of 50p or £1. It is for us to ensure that a value lower than £4 is not set as that would lead to the imposition of a derisory fine.
As I have said, it is important to recognise that the unit fine system is about fixing a penalty for an offence. It is not about making arrangements for the payment of fines. If a unit fine based on a minimum value of £4 is too much for the offender to pay on a weekly basis, the court has the discretion to allow the offender to pay in weekly instalments of less than £4. That provides a safeguard to ensure that offenders do not end up in prison simply because they do not have the money to pay the fine at a rate of £4 a week.
In answer to the noble Lord, Lord Hutchinson, when I referred to 80 per cent. of people paying up

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under the threat of imprisonment, I was talking about the set-up under the present law. I repeat that there are other provisions in this Bill which should make it much less likely that people will end up in prison for fine default as a result, for example, of an attachment of earnings order. I believe that a minimum value of £4 for a unit is within the means of most offenders. I cannot recommend to the Committee an amendment which would allow a unit value of less than £4.
Lord Henderson of Brompton: Before the noble Lord sits down, will Be address his mind to the question of fairness to which I referred?
Lord Waddington: The scheme would be absolutely pure and immaculate if whatever disposable income was calculated was the income which was taken into account, even if that resulted in a unit of 2.5p. However, I do not think the noble Lord is seriously arguing that one should destroy the credibility of a scheme of this nature by taking the assessment to absurd lengths. If we are to achieve a fine which has any meaning at all, we should establish a minimum level.
The question is what the minimum level should be. The noble Lord has acknowledged that in each of the pilot schemes the courts felt it right to have a minimum level. So what we should be arguing about now is not the perfect purity which the noble Lord, Lord Henderson, now seems to be urging on the Committee but what the minimum level should be. I could understand it if he now argued that the minimum level should be £2 rather than £4 but I find it very difficult to accept his apparent argument that whatever figure emerged there should be no minimum level whatsoever.
Lord Gisborough: In my experience many people come to the court—sometimes the worst offenders—who are out of work. They have an income of about £40 a week and commitments of about £30, and at most £10 for their food and for their children. Therefore the amount that they can pay is often only £1 or £2 and that is all that one can get out of them. That ignores the problem of the following week and the week after when they come back charged with further offences. What does one do then? One adds another £1 and then another £1.
That does not take into account the many people who already abuse the system. They are not born yesterday. They have solicitors who, if they do not know already, soon tell them, I am afraid to say. (Perhaps I had better withdraw that remark, no matter what I think.) There are many who abuse the system and say that they have only £40 a week and commitments of £30. We had a case the other day and were just about to take pity on the man when he admitted that he was late because his car had broken down or because of the traffic. He then pretended that it was not his car but his son's car and that he had put £20 worth of petrol into it. That remark cost him a lot. There is no doubt that the system is already being abused.
Lord Henderson of Brompton: I cannot help but say that the noble Lord the Leader of the House has given
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a very unhelpful reply. It was most heavy handed when one considers the light way in which we moved this very important amendment. We attach a great deal of importance to it, but all the noble Lord the Leader of the House has done is to use words like "derisory" and "absurd" and to take the argument to absurd limits himself. None of us has mentioned anything like a 50p fine, so what did the noble Lord mean by introducing the question of a 50p fine when none of us was thinking in those terms`' That is not the way to answer an amendment which has been put forward seriously from all quarters o f the Chamber. We do not feel that we have been treated with the seriousness which this amendment deserves. Ordinarily speaking in this Chamber a Minister would at least consider what was said instead of delivering a rather blustering reply to what has been moved mildly by people who agree that the unit fine system is admirable but detect a flaw in it.
The noble Baroness, Lady Faithfull, was most impressive because she spoke from personal experience of collecting fines. I should have thought that the noble Lord the Leader of the House would have had the grace to respect that very important personal experience of a very distinguished Back-Bencher, but apparently not.
It is too late to divide the House at this hour, but I should have thought that the expression of opinion from all round the Chamber has been such that we should return to the matter at a later date, when we hope to have a more satisfactory and more gracious reply than we have received today.
Lord Waddington: Before the noble Lord sits down perhaps he will allow me to say that I certainly meant no discourtesy. However, sometimes it is helpful to refine the issues. Sometimes it is also necessary to give a robust reply in order to illustrate what I believe to be the fallacies in the arguments advanced by the noble Lord, just as he addressed what he believes are arguments which show the fallacies in the Government's case. I certainly meant no discourtesy. I certainly meant no discourtesy to my noble friend. I spent some little time replying to the principal point that he made which related to the rate of payment of a fine.
10.30 p.m.
Lord Henderson of Brompton: I accept that and I do not wish to persist with it in view of what the noble Lord said.
I should like to make one final point. In all honesty, I do not believe that the Government have fully taken into account the implications of the experiment. It is right that they had a minimum in all four cases, but they did not stick to the minimum. That is the important point. One must trust the magistrates in this matter. All four experimental magistrates' courts found it necessary to impose less than a £5 limit and as little as £1 or £2 in certain cases.
I hope that the noble Lord will consider that evidence from the experiment because the experience of the magistrates on the spot and of the noble Baroness, Lady Faithfull, in dealing with fine

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offenders should surely be taken into consideration. If all those four experimental schemes found it necessary to fine as little as £1 or £2 a week, surely that is important evidence which the noble Lord should take into account. I hope that he will agree to reconsider the amendment in the light of that important evidence from those four schemes. I should not have thought that to reduce the minimum would reduce the credibility. If we insisted on a rigid minimum, we would send many people to prison who would not otherwise go. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Waddington Lord Waddington moved Amendment No. 58:
Page 13, leave out lines 21 to 26 and insert:
("(a) in the case of an offence in relation to which a compensation order is made, the reduction of the amount of the fine in pursuance of section 35(4A) of the 1973 Act;").
The noble Lord said: This amendment deletes Clause 16(6) (a) and (b) which enable a court to reduce the amount of a unit fine in two specific cases. That is because the new clause to be inserted after Clause 23 makes general provision for mitigation of sentence throughout Part I of the Bill, thus rendering these subsections unnecessary. A new provision is then inserted into Clause 16(6) to make it clear that, when a unit fine and a compensation order are imposed together, the court may reduce the amount of the fine. That reflects Section 35(4A) of the Powers of Criminal Courts Act 1973 which provides for a compensation order to take precedence in those situations. Without the amendment, the court would not be able to reduce the fine. I am sure that the Committee will agree that compensation to the victim should continue to take precedence over a fine.
Amendment No. 59 deals with the particular case of evading payment of a television licence fee. Under the unit fine scheme, it would be quite possible for an offender on low income to be given a fine for not buying a licence which was less than the licence fee itself cost.
We do not want to encourage people to evade paying their licence fees, so Clause 16(6) (d), as revised by this amendment, would enable a court, first, to set the amount of a fine for the offence of watching television without a licence, then to increase it by a sum up to the value of an annual licence. If, for example, an offender is fined £40 for the offence, he will not benefit from not buying a licence since its value could be added to the fine. The existing Clause 16(6) (d) did not technically achieve that end. It was also drafted too widely, given that its only aim was television licence fee evasion. I commend the amendments to the Committee.
Lord Richard: I assume that the noble Lord was referring to Amendment No. 59 to which I also wish to speak.
I am interested in this dreadful offence of watching television without a licence. I have little to say about Amendment No. 58, but, with regard to Amendment No. 59 and with great respect, surely it is nonsense that the criminal law must be invoked in order to make people pay their television licences. I understand
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the purpose of Amendment No. 59. I appreciate that the language of the amendment achieves what the Government set out to achieve; namely, to ensure that, when the unit fine system is in operation, courts can fine an offender who has not paid a television licence fee an amount which means that he has not made an overall profit out of not buying a licence. What on earth are we doing, invoking the criminal law and fining people for not having television licences?
As I understand it, the Home Office was unable to provide the Home Affairs Select Committee of the House of Commons with any recent figures for the number of people imprisoned for fine default following conviction for not paying the television licence fee. It estimated that in 1983 400 men and 120 women were imprisoned for fine default in such circumstances. It is unlikely to be any lower today in view of the increased efforts to combat licence evasion and it could well be higher.
Of course, people should pay their television licences. But it is difficult to see the justification for using the full panoply of the criminal law, and even imprisonment, to enforce payment of the licence fee. We do not do it when people fail to pay their water rates, gas bills, electricity bills or, for that matter, debts owed to private companies or individuals. Water, gas and electricity companies cannot ask the courts to fine and imprison somebody who owes them money, nor can an independent television company ask a court to fine or imprison an advertiser for failing to pay a larger sum than the television licence fee. They can use the normal process of the civil law to obtain redress against the debtor. The BBC should do the same.
Lord Henderson of Brompton: I should like to say a brief word in support of the noble Lord, Lord Richard. I ask the noble Lord the Leader of the House why the Government rejected the recommendation of the report of the House of Commons entitled The Future of Broadcasting of June 1988 when they suggested that non-payment of the television fee should be treated as a civil rather than criminal matter. They asked Mr. Renton if decriminalisation of non-payment was part of his plan and he explained that that had not been considered. I suppose it has been considered since 1988, but I should very much like to know why non-payment has not been made a civil rather than a criminal matter.
An important point made in the report which so far has not been mentioned is that the present situation is clearly a waste of court time. Why should the public have to spend money on the courts adjudicating on this matter when they do not have to do so in the case of people who do not pay water rates, gas bills and electricity bills? The amendment would be a sensible reform and I hope that it will be considered favourably by the Government.
Lord Waddington: The noble Lord, Lord Henderson, is entirely right that the Home Affairs Select Committee in another place recommended some time ago that the licence fee should be recoverable as a civil debt and the criminal law should no longer be invoked. The argument deployed against

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that has always been that the BBC's revenue could drop very considerably. Criminal penalties result in a fairly high level of payment. Unlike the case of the utilities where the supplier has the sanction of cutting off supply, there is no equivalent in broadcasting. But that is nothing to do with the amendment now before the Committee. The Bill does not deal with substantive changes in the criminal law in that sense. It must be left to another day to discuss whether the law should be changed in the way recommended by the noble Lords, Lord Henderson and Lord Richard.
I was slightly surprised by the remarks of the noble Lord. Lord Richard, because I have always thought that the Labour Party was in favour of the present system of funding the BBC. If I am wrong and there has been a change of front in that regard I stand to be corrected. When I was last in the Home Office I certainly was not aware that the Labour Party supported the conclusions of the Select Committee.
On. Question, amendment agreed to.
Lord Waddington Lord Waddington moved Amendment No. 59:
Page 13, line 30, leave out from ("offence") to end of line 33 and insert ("of installing or using any apparatus for wireless telegraphy except under a licence granted under section 1 of the Wireless Telegraphy Act 1949, the increase of the amount of the fine by an amount not exceeding the sum which would have been payable on the issue of such a licence").
On Question, amendment agreed to.
Lord Waddington Lord Waddington moved Amendment No. 60:
Page 13, line 34, leave out subsection (7).
On Question, amendment agreed to.
Lord Waddington Lord Waddington moved Amendment No. 60A:
Page 13, line 49, at end insert:
("(10) In section 41 of the Criminal Justice Act 1988 ("the 1988 Act"), subsection (7) (Crown Court sentencing powers in relation to summary offence dealt with together with either way offence) shall have effect as if this section had not been enacted.").
The noble Lord said: Amendment No. 60A deals with cases where a magistrates' court commits a person to the Crown Court for trial for a number of related offences, some of which are triable either way and some of which are summary only. If he pleads guilty to any of the summary offences, then Section 41(7) of the Criminal Justice Act 1988 requires the Crown Court to deal with him for that offence as if it were a magistrates' court.
A problem arises if the Crown Court wishes to impose a fine in such a case. As it is bound by the magistrates' courts' sentencing powers, it must apply the unit fine scheme. I do not want to pre-empt our discussion on Amendment No. 61 to Clause 17, but our view is that it would be quite inappropriate for the Crown Court to be bound by the unit fine scheme. There seems little point to us in introducing the scheme into the Crown Court for the relatively few cases that would arise under Section 41 of the 1988 Act.
This amendment therefore continues to bind the Crown Court to the sentencing powers of the magistrates' courts in cases to which Section 41(7) applies. For example, the value of the fine could not
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exceed the maximum that could be imposed by a magistrates' court. But the amendment does not require it to calculate a fine under the unit fine scheme.
Amendment No. 64A to Clause 20 is simply consequential on Amendment No. 60A. The Criminal Justice Act 1988 having been referred to in Amendment No. 60A can therefore be referred to simply as the 1988 Act thereafter.
I beg to move.
On Question, amendment agreed to.
Clause 16, as amended, agreed to.
Clause 17 [Fixing of fines in other cases]:
Lord Richard Lord Richard moved Amendment No. 61:
Page 14, line 3, leave out ("means of the offender so far as they appear or are known to the court") and insert ("disposable weekly income of the offender so far as it appears or is known to the court and shall impose a fine of the number of weeks' disposable income which in the opinion of the court is commensurate with the seriousness of the offence unless the court is of the opinion that this would be impraticable or inappropriate in the circumstances of the case.").
The noble Lord said: This amendment is slightly pre-empted by what the noble Lord the Leader of the House said in relation to the last amendment. Perhaps I may put the contrary view to the one that he has just expressed. These amendments would require Crown Courts to adopt the general principles of the unit fine system when imposing fines. They would be able to dispense with this requirement where it would be impractical or inappropriate in the circumstances of the case—for example, when fining a company, when it is impracticable to work out the exact weekly disposable income of a very rich offender or when there are other features of the case making the unit fine approach inappropriate.
I think that everyone agrees and the evaluation report of the Home Office itself on the recent experiments with unit fines concluded that the consensus among magistrates and court staff at all the courts involved in the experiments was that unit fines were an improvement on the present system. It seems to me that there is a very powerful argument therefore for applying the same principles to fines imposed in the Crown Courts. It seems unfair that if an offender is convicted of theft in the Crown Court he should be fined a different amount from the fine that he would have received for the same offence if he had been tried in the magistrates' court, and in consequence, if he fails to pay the fine, he should be liable to serve a different length of time in prison for default.
I think that extending the principle of unit fines to the Crown Courts is a perfectly practicable proposition. Indeed, some individual judges already adopt the principle behind the unit fine system by first at least mentally estimating the weekly amount which the offender can afford to pay and then reflecting the gravity of the offence in the number of weeks' disposable income which they require him to forfeit. These amendments would merely require this to become the normal and overt practice.
I therefore suggest to the Committee that all the arguments that the Government have rightly advanced in favour of applying unit fines in magistrates' courts are indeed equally valid in relation to Crown Courts. I beg to move.
10.45 p.m.
Lord Harris of Greenwich: The noble Lord the Leader of the House tells us—I think I have understood aright—that it would be quite inappropriate to extend the unit fine system to the Crown Courts. He bases his argument on the fact that on only a limited number of occasions would the Crown Court impose a fine. But perhaps the noble Lord will tell us what damage would be done if the provision were extended to the Crown Court.
The noble Lord, Lord Richard, put what is in my view by far the most substantial argument in favour of the amendment. It is this. What happens in the case of the either way offence? The man opts for trial by jury on a charge of theft at the Crown Court. That is his right. However, by doing so he exposes himself to a wholly new situation. If he were fined for that offence in the magistrates' court he would be fined on the basis of the unit fine system. If he goes to the Crown Court he will be fined without that unit fine system applying. Why should that be so? Why should he be exposed to that further risk that if he does not pay the fine from the magistrates' court he will, for the most obvious of reasons, have a shorter sentence of imprisonment than will be the position if he does not pay the fine in the Crown Court?
I do not begin to understand the logic of the Government's position. I am sure that there is a valid reason for the provision. However, I find it difficult to comprehend the basis for the argument. We have not yet heard it. I hope that we shall now hear it from the noble Lord, Lord Waddington.
Lord Waddington: The principle that a court should take into account the means of an offender in setting the level of a fine should clearly apply to all fines, whether imposed by the Crown Court or by a magistrates' court and whether imposed on an individual or on an organisation. There can be no doubt whatsoever about that. Clause 17 of the Bill already makes that clear. The provision in Clause 17 allows a court both to increase and reduce the level of a fine in the light of the means of the offender so far as they are known to the court.
The Crown Court deals with the most serious cases. That is reflected in the fact that its power to fine is unlimited. In practice less than 1 per cent. of fines imposed are imposed by the Crown Court. The much broader—indeed unlimited—range of fines which can be imposed by the Crown Court means that the disadvantages and practical difficulties of requiring the Crown Court to follow the procedural requirements envisaged under the unit fine scheme far outweigh any benefits. Similar arguments apply to fines imposed on companies. It is clearly unrealistic to expect either a magistrates' court or the Crown Court to assess the disposable income of a company.
I think we all agree that the principle that a fine should take account of the means of an offender is right. However, except in the case of summary fines imposed on individuals —the vast majority of all fines —I think the guidance that is given the courts in Clause 17 is the right approach. The more structured unit fine approach should be reserved for those
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offences and offenders .where it is likely to have most practical benefit. That is what Clauses 16 and 17 achieve.
In answer to the point raised by the noble Lord, Lord Harris, about either way offences, if an offender opts for trial in an either way case, he exposes himself to different penalties. He exposes himself to the possibility of longer imprisonment. He exposes himself to the prospect of an unlimited fine in many cases. The situation which arises as a result of the structure of the Bill is therefore no different from the consequences which apply to an offender in an either way case when he opts to go to the Crown Court.
Lord Richard: I am not convinced by that argument. At this late hour the Committee would not be happy were I to ask it to divide. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 62 not moved.]
Clause 17 agreed to.
Clause 18 [Statements as to offenders' means]:
Lord Waddington Lord Waddington moved Amendment No. 63:
Page 14, line 24, at end insert:
("(3A) Proceedings in respect of an offence under subsection (3) above may, notwithstanding anything in section 127(1) of the 1980 Act (limitation of time), be commenced at any time within two years from the date of the commission of the offence or within six months from its first discovery by the prosecutor, whichever period expires the earlier.").
The noble Lord said: The amendment simply exempts Clause 18 from the general rule that proceedings may not be instituted in the magistrates' court for an offence later than six months after it has been committed. This general rule is in Section 127 of the Magistrates' Courts Act 1980.
Section 80 of that Act makes an exception to the six-month time limit on instituting proceedings where false information has been given in a means inquiry on a defendant defaulting on the payment of a fine. The amendment follows the same pattern. I recommend it to the Committee and beg to move.
On Question, amendment agreed to.
Clause 18, as amended, agreed to.
Clause 19 agreed to.
Clause 20 [Default in other cases]:
Lord Mottistone Lord Mottistone moved Amendment No. 64:
Page 15, line 32, leave out ("3 months") and insert ("84 days").
The noble Lord said: This amendment has been advised to me by the Magistrates' Association. It has long been its policy that short periods of imprisonment in default of a fine are better expressed in days than in months. It is a psychological issue because using days instead of months gives the defendant the impression of a longer period of time without it being so. Therefore the sentence has a greater impact.
Clause 20 describes sentences in terms of seven days, 14 days, 28 days, 45 days and three months. I hope that my noble friend will give regard to this small point. It has been presented by the Magistrates' Association and therefore is the result of long

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experience of how such matters are best expressed in the practical life of giving judgments. I hope that the Government will be sympathetic. I beg to move.
Lord GisboroughM: I too support the amendment on behalf of the Magistrates' Association for the reasons put forward by my noble friend.
Lord Waddington: Three months sounds more familiar than 84 days. Before reaching a conclusion on how to answer the amendment I had to sit down and make sure that 84 days amounted to three months. Three months is common parlance and the way in which a sentence is normally expressed. One would not be changing to more normal parlance; one would be taking an exceptional course.
Periods for committal to prison are generally expressed in legislation as a number of days for periods of up to 45 days and then as a number of months. That is the approach adopted in the tables setting out maximum terms of imprisonment for fine default in Clause 20, the similar table in Clause 19 and existing tables in current legislation. If we are to break with that practice for maximum periods of three months' imprisonment for fine default, should we do the same for periods of six months for fines between £5,000 and £10,000? I believe that that would be 168 days. I do not believe that that sounds very familiar and it is certainly not a type of sentence which is ever passed by the courts. Should we adopt a similar approach for the statutory maximum period of imprisonment for certain offences?
My own preference is to retain the existing approach of expressing very short terms of imprisonment in days and longer periods in months and to rely on the good sense and experience of magistrates to impose a sentence of imprisonment which properly reflects the amount of the fine outstanding and the offender's culpability in non-payment. Therefore, I do not believe that any great benefit would be gained by going down the road recommended by my noble friend Lord Mottistone. The present practice is very familiar to all, and some eyebrows may be raised if the suggested change were to be made.
Baroness Seear: I have never known three months to add up to as little as 84 days, if my arithmetic is correct. The number of days in February, March and April, which are the shortest three months that one can have, add up to more than 84.
Lord Waddington: The noble Baroness is quite right. Normally terms of imprisonment expressed in months are calendar months. However, this is three times 28 days.
Lord Mottistone: Let us not be too worried about the arithmetic. I should like to refer the Leader of the House to the principle of this matter. He was arguing that as this is how matters have stood for a long time, there is no reason to change them. The magistrates work every day and have great experience of sentencing people. They reached this conclusion some time ago. I understand it has been their policy for some time.
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The magistrates are seeking to make a change on the basis of experience. With the greatest respect to my noble friend, in the higher courts it may not be a matter of importance. They are seeking to make a change only in respect of a three-month sentence. They are not seeking to make a change in respect of the longer periods. They do not seek to change the latter part of this clause in respect of a sentence of 10 years.
I leave with my noble friend and the department the thought that this is not a superficial matter devised by a crowd of cranks. It is a change proposed by magistrates whose experience shows it to be necessary. I am sure that they would not argue if the change was made to be 90 rather than 84 days. 'The principle is that they believe that this would have an effect on the people who appear before them in the courts. We know that out of all the people appearing in courts in this country, 98 per cent. come before the magistrates. The magistrates believe that this change would have an effect on those people. I do not believe that Members of the Committee should believe that to be a superficial matter to be ignored.
I shall not press the amendment now; but I hope that if it becomes necessary to return to this issue on Report, there may be a reflection that this is a small change which may prove to be a benefit to the administration of justice at local level in this country.
I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
11 p.m.
Earl Ferrers Earl Ferrers moved Amendment No. 64A:
Page 16, line 21, leave out ("the Criminal Justice Act 1988").
On Question, amendment agreed to.
Clause 20, as amended, agreed to.
Lord Henderson of Brompton Lord Henderson of Brompton moved Amendment No. 65:
After Clause 20, insert the following new clause:
("Warrant of commitment for default in paying
.—(1) A magistrates' court may not issue a warrant of commitment for a default in paying any sum adjudged to be paid by the conviction unless it is of the opinion that it would be—

(a) impracticable to enforce payment of the sum by a warrant of distress or an attachment of earnings order or an application for the deduction of sums from amounts payable to the offender by way of income support; and

(b) inappropriate to enforce payment by any other method.

(2) Where a magistrates' court issues a warrant of commitment for default in paying any sum adjudged to be paid by the conviction, it shall state in open court the reasons for its opinion that it would be impracticable to enforce payment of the sum by a warrant of distress or an attachment of earnings order or an application for the deduction of sums from amounts payable to the offender by way of income support.
(3) A magistrates' court shall cause a reason stated under subsection (2) above to be specified in the warrant of commitment and to be entered in the register.").
The noble Lord said: I shall try to be brief but I need to take a little time in moving Amendment No. 65. It seeks to insert a new clause after Clause 20 and deals with keeping fine defaulters out of prison.
The requirement of the amendment is that any court which seeks to impose imprisonment in default of a fine must state its reasons in open court for believing that it is impractical to enforce the fine by attaching earnings, income support or distraint of goods. That requirement would substantially reduce the number of offenders sent to prison in default of paying fines.
Over one-fifth of the people sent to prison each year in England and Wales are in prison for non-payment of fines. In 1989 almost 17,000 people were imprisoned for fine default. One can imagine the strain that that number of people places on the prison system. Of course, that strain does not fall evenly on the prison system; it mainly falls on local prisons where there is the greatest overcrowding. If that number of 17,000 can be reduced those prisons under most pressure will be relieved of much of that pressure.
The workload imposed on those prisons in taking 17,000 prisoners involves each prisoner being received and discharged. That involves a large amount of paperwork, regardless of the prisoner's length of stay in prison. We seek to relieve the local prisons of that substantial extra load. I should have thought that that would enable the Government to give the amendment a friendly, warm reception. It is a benign rule in regard to the prison system.
In the House of Commons Mr. John Patten recognised that the new clause was what he called "well-intentioned". However, he also said that it was "unnecessary". I would not dream of introducing this amendment in the House of Lords if I were convinced that it was unnecessary. The evidence for saying that it is necessary comes from two studies. The first is a study by the respectable and highly regarded Vera Institute of Justice. In 1986 it published its report, The Enforcement of Fines as Criminal Sanctions which stated that,
"courts rarely exhaust the enforcement options available to them before they resort either to the most coercive (and most costly) enforcement device—a committal to prison—or to writing off the fine as uncollectable".
That is an important finding. What is more, it was confirmed much more recently by Dr. Allison Morris and Dr. Lorraine Gelsthorpe, who published a paper in The Magistrate in October 1990. They concluded that powers other than sentencing to prison could be more widely used than they are at present. There again, that points to the necessity of this amendment. To use the words of Mr John Patten, it is not unnecessary. It is necessary from the evidence of those two reports. The second report concluded:
"Arrears courts should perhaps be obliged to show that they have used all other powers available to them before resorting to suspended committals".
The discipline and giving reasons in the form required by the new clause would help to focus the court's attention on the alternative enforcement methods available and reduce the chances of defaulters being unnecessarily imprisoned. The clinching argument is that the Bill requires courts to give reasons for imposing custodial sentences, but does not require them to do so when imprisoning offenders for default. The arguments apply equally for both default cases
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and the unnecessary imposition of custodial sentences without reasons. Reasons are necessary in both cases. In order to make the Bill consistent, I hope that the Government will agree to this amendment. I beg to move.
Baroness David: I support this amendment to which my name is attached. The noble Lord, Lord Henderson, has moved it very convincingly. I hope this time, if the noble Lord the Leader of the House is responding, he will give a more favourable response than he has been giving to most of the amendments that have been moved this evening. It seems that the logic of the case is that reasons should be given in this case as when custodial sentences are given. It is very good for magistrates to have to think and to give their reasons just as they do when not granting bail. I hope very much that we shall have a nicer response this time.
Lord Morris of Castle Morris: It was most certainly the apostle St. Paul who wrote:
"The good I would, I do not. The evil that I would not, that I do".
So it is with this amendment. Courts should certainly be required to state their reasons for their opinions in open court,
"that it would be—
impracticable to enforce payment of the sum by a warrant of distress or an attachment of earnings order or an application for the deduction of sums from amounts payable to the offender by way of income support".
The noble Lord, Lord Henderson, has referred to the research carried out and published in The Magistrate by Drs. Morris and Gelsthorpe. They concluded their article with these words:
"Arrears courts should perhaps be obliged to show that they have used all other powers available to them before resorting to suspended committals".
Those words are almost a pr écis or a paraphrase of the amendment which is before us. When they are the summation of the research of not one but two learned doctors (whether they be LL.Ds, M Ds or mere Ph.Ds, I know not) who am I, as an unregenerate academic who has spent his life prowling around universities teaching and conducting research, to doubt them and how could I fail to commend this amendment to the Committee?
Viscount Tenby: The hour is late and our spirits are flagging, but I shall be as quick as I can in replying to this particular amendment. It is with a heavy heart that I rise to say that I cannot support it. I acknowledge humbly the formidable legal expertise and compassion which the noble proposers command; but I believe that to place mandatory requirements on a bench's freedom of action when considering fine evasion cases adds nothing practical to the process. It will only add time taken in the disposal of a case. It is unlikely by itself to reduce the number of committals for fines evasion. I acknowledge that fact as someone who has long supported the principle that punishment in the community is in every way a more civilised and practical option than custodial sentencing other than for serious offences of violence and sexual offences.
So I am sad indeed not be on the side of the angels in this particular instance. Fines are the most

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important part of the sentencing system in the lower courts, and they account for the largest proportion of sentences by a very considerable margin.
In this part of the Bill we are concerned—are we not?—with the casualties of the system. But as a somewhat rueful introduction to my remarks I have to admit that some magistrates when sentencing do not stress often enough the importance that fines must play in the order of precedence so far as the financial commitments of the offender are concerned. Too many offenders, I fear, regard fines as just one more weekly payment, on a level footing with payments to the club or an instalment on the video, and it is not made clear to them sufficiently often that after essentials they must have absolute priority.
I think, if I may say so, there has been an overemphasis this evening of the poverty angle, as if every fined person was not just on the breadline but almost on the crumb line. The concept of imprisonment for fine default is of course repugnant in theory and in social conscience. It resurrects the times of Dickens. Clearly if there are any alternative practical ways of getting the money they should be used. In a civilised society, and with prison standards like ours, no one would dispute that.
But let me put the matter into perspective by referring to my own experience. The court of which I am chairman could, I suppose, be described as medium to large (ignoring large inner-city benches), having an establishment of some 95 magistrates and the regular use of a stipendiary magistrate. Last year 1.6 per cent. of all fine defaulters were sentenced to a term of imprisonment as a result of non-payment of fines. In effect this was a figure of 80. Of this total 33 paid in full before reaching prison and a further 10 paid in full while there. leaving 37 to serve a sentence which on average would have been a small one, say a fortnight.
Many of these 37 were persons who are fully aware of the system and play it to its full extent and who at the end of the day see imprisonment for default as far more effective for them financially than paying the original fine. I have to say that there is a small core of fine evaders who now play, and will continue to play even more if this amendment is passed, the system for all it is worth. They have no intention of paying until they are forced to—until, that is, they are faced with the stark reality of the prison gates, through being given forthwith a committal or a suspended committal. Experience shows that such people are far more likely - and I regret having to say this - to pay fines when the threat of prison hangs over their heads than when it does not, and any alternative forms of punishment are non-runners.
Now let me turn to the other side of the coin, which in many ways is the more important one, and it has not been touched on tonight. What we need to do is to reduce the number of fine payers at risk. I warmly endorse the attachment of benefits orders for those in receipt of income support, who are the majority of fine offenders; but what off f those on wages? Of course courts can issue attachment of earnings orders for those offenders, but assuming that they are agreed to by the defendant - and they have to be agreed to by the
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defendant, and I am afraid it is a big assumption-whether they become a reality or not lies in the hands of the employer. Particularly, it must be said, where smaller firms are concerned, non-co-operation is rife. This is hardly surprising when one looks at the ludicrously low fine levels for the offence that the law at present permits.
I cannot emphasise this point enough, and I hope that the Minister will be good enough to take it on board. It is something we all feel deeply about. Surely it must be right to do everything that we can, over the whole spectrum and not just a piece of it, to ensure that we make it possible, easy and automatic to part someone paying fines from his money so that he does not have the temptation to keep it for other purposes or does not have to make a difficult choice over relative priorities.
I would make a further point. Do we make it easy enough for offenders to pay? Very few courts offer payment by bank giro credit, credit card or direct debit. If these were universally available the number of enforcement actions would in my view be considerably reduced. But, even after all this has been done and all those constructive steps have been taken, there will still be those who wilfully refuse to pay or who culpably neglect to pay. I refer not to those who cannot pay but to those who will not.
Fines are a vital part of the sentencing system in the lower courts. They are an admirable way of dispensing justice, provided that they are realistic and uniform —essential requirements which the new unit fine system will go a long way to providing—but they must be collected if this particular form of sentencing is not to be brought into contempt and misuse.
I appreciate that this amendment will not take away the discretion of magistrates to commit people to imprisonment in suitable cases. But the input of the proposed restrictions is such as to make it an extreme and long drawn-out option. I would hope that any proper magistrate would in any event consider all the alternatives to imprisonment, as indeed he or she is required to do at present, without there being a need to chisel that requirement into the stones of the law.
Magistrates already have a discipline; indeed, any decent bench has a discipline in such matters. If this amendment goes to a Division and is passed, I fear that benches will be inclined to use the fine system less often and other less appropriate options more often, which would be to the detriment of justice in the lower courts.
11.15 p.m.
Lord Waddington: The first part of the proposed new clause would require magistrates' courts to be satisfied that fine enforcement by distress warrant, attachment of earnings or deduction from income support was impracticable and that any other method of enforcement would be inappropriate before issuing a warrant of commitment to prison. However, I am glad to say that the provisions of Section 82 of the Magistrates' Courts Act 1980 already require a magistrates' court to consider all those aspects before issuing a warrant of commitment to prison for default, except where the case is punishable by imprisonment

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and the defendant appears to the court to have the means to pay forthwith. I believe that it is right—I say this, with the greatest respect to the noble Lord, Lord Henderson—to say that the first part of the proposed new clause is unnecessary. I say that because the powers are already included in Section 82 of the Magistrates' Courts Act 1980.
The second part of the proposed new clause would require the reasons for deciding that enforcement proceedings have proved impractical to be stated in court and recorded in the warrant of commitment and in the court register. However, Section 82 of the Magistrates' Courts Act also provides, as this amendment does not, that the court must also be satisfied that default was due to the offender's wilful refusal or culpable neglect to pay before it can commit him to prison for default. Therefore, ironically, the existing law actually imposes a more stringent requirement on the magistrates than that which is set out in the proposed new clause.
I must make it clear that a court cannot commit someone to prison solely on the basis that enforcement proceedings have proved unsuccessful or are inappropriate. That is only the first part of the consideration. Before commitment can be authorised, the court must also consider whether the failure to pay was due to wilful refusal or culpable neglect by the offender. If it is not so satisfied, it cannot commit him. It is the consideration of the question of wilful refusal or culpable neglect that is the final determining factor. That consideration is certainly announced in open court and recorded in both the court register and the warrant of commitment.
I mentioned earlier that the only exceptions to those arrangements were cases where a fine had been imposed for an offence punishable by imprisonment and it appeared to the court that the offender had the means to pay forthwith. If the court is satisfied that the offender has the means to pay, then I cannot see that it is sensible or helpful, despite that, to require the court to consider or try all other means of enforcement. It will be clear to the court that the offender appears to have the means but will not pay. The amendment would be unhelpful to the court and it might be considered as undermining its authority.
In answer to the point raised by the noble Lord, Lord Henderson, on the research by the Vera Institute, I am aware that research carried out into fines and fine enforcement in 1986 by that institute and by Drs. Morris and Gelsthorpe in 1990 suggested that the sanction of attachment of earnings is not extensively used by the courts. The reasons they gave for this were, first, that attachment was thought to place a burden on the employer that might lead to the loss of employment for the offender. Secondly, attachment of earnings can only be used when the offender is in steady employment. The new clause would not tackle either of those issues. In all the circumstances, I do not think that the new clause is necessary and, in any event, I doubt whether it is desirable. I cannot advise the Committee to accept it.
Lord Henderson of Brompton: I am grateful to the noble Lord the Leader of the House for his reply. It
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has been helpful for him to refer us to Section 82 of the Magistrates' Courts Act 1980. In view of what he said, I would not dream of pressing the amendment at this stage, let alone at this hour of the night.
I am nonetheless slightly puzzled by the discrepancy between the statutory requirement of Section 82 of the Magistrates' Courts Act 1980 and the findings of the two reports to which we have referred. In the interval between now and the next stage I shall look into the discrepancy and see whether it is worthwhile returning to it at the next stage of the Bill. I thank the noble Lord for his reply and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 21 agreed to.
Lord Gisborough Lord Gisborough moved Amendment No. 66:
After Clause 21, insert the following new clause:
("Payment of fines by work in lieu
.—(1) The Secretary of State may by rules make provision to enable any offender on whom a fine has been imposed to perform work for an approved employer at an approved rate of payment.
(2) Payment for any work performed under rules made under this section shall be in the form of a certificate which may be used for the payment of all or part of a fine and for no other purpose.
(3) Rules made under this section shall require any work to be performed only at the request of the offender and may include provision for approved rates of payment by piece work to be varied according to the nature and difficulty of the work performed and for the value of certificates to be increased where appropriate in respect of approved necessary expenses incurred by the offender.").
The noble Lord said: Much police time is wasted in looking for defaulters and many fines are written off. To help cater for these and for those on low incomes the unit fine system, on the face of it, may seem to be the answer. However, I submit that it will be fraught with many drawbacks. First, it is unfair on the man with a job. He is penalised for working hard by being given a full fine, being ineligible for the unit fine rate. He may well lose his job by reason of the conviction. He will then be side by side on the dole with a man who has received a unit fine for the same offence and he will be unable to pay his fine.
Then there is the offender with a car who knows he is eligible for the unit fine rate and will find it much cheaper to risk having no insurance and paying the unit fine, if caught, than to buy car insurance. The Home Office says that fines would have to be large enough to deter this but then we lose the unit fine rate. The offender will be unable to pay his fine.
While the rate of the fine can be fixed to suit the income, what happens the next week when the same man appears, as he so often does, on one charge after another? He has no money to pay further fines, so either he is not fined at all or he cannot pay. All such cases would end up in prison. Many offenders cannot pay fines, maintenance and compensation so inevitably one or the other cannot be paid, whether or not there is the unit fine.
There is a simple way out of this. It does not in any way affect the sentencing which may or may not include unit fines although it dispenses with the need for unit fines; hence this amendment. It has nothing directly to do with unit fines but is a scheme to provide

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work for people who have been fined. Unlike the arbitrary sentence of imprisonment for non-payment which may or may not equate with the sum owing, the work would equate exactly with the fines owed. What would happen is that the fines office would ask an approved employer—for example, the Forestry Commission—at the request of and on behalf of the offender, for a job of work for a certain value. The employer would show the job to the offender and the latter would turn up at the employer's premises in his own time to perform the work unsupervised. Once it was completed, and provided that the job was carried out satisfactorily, the offender would be paid in the form of a certificate which would be valid for the payment of his fine; in other words, this would constitute piece work. Any expenses incurred such as travel expenses would count towards the fine and the cost of management of the scheme would be paid by the offender out of his real money by instalments.
The Forestry Commission has said that it could run such a scheme and that brashing would benefit its timber. I must make it quite clear that this work would not constitute a punishment or a sentence of the court, nor would it be imposed instead of a fine. It would be work made available by which to pay a fine. It would be made available purely at the request of the offender who sees an advertisement in the court waiting-room and who prefers to work for a week or two rather than spend the next year paying instalments with no money in his pocket. I fail to see that any complicated or expensive administrative problems will arise as a result of this.
While the unemployed yob is working in the woods or in another location, he will not be standing bored on the street with nothing to do and no money to spend, ready to commit his next crime to relieve his boredom. In some cases a week or two at work, perhaps in a wood, followed perhaps by a good reference, could set such a person on the road to a proper job. Such a scheme could also benefit youngsters by using up some of their surplus energy with work of this kind. Otherwise such energy could and often will be let loose in the evenings after the pubs close. In addition, the offender's cash income would then be available to pay maintenance and compensation. That is an important factor which has been part of the Government's policy. If the offender is on a low income, the suffering of his wife and family would be reduced, as would the consequent disharmony and possible break-up of his relationship.
Another benefit of the scheme is that fines of whatever amount would be paid sooner. This would save a lot of court and police time in chasing up defaulters. With so many benefits there must be a downside to the scheme and there is. Whereas money collected from fines goes into the Treasury, with this scheme the national forest would benefit instead. But we must remember that it is expensive to chase up fines and they are often written off. That makes a mockery of justice. Under the work scheme I have advocated, there is far less need to reduce fines and no excuse for not settling them.
Fines could be more closely related to the offence than to the client and the multiple offender will pay for
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the cost of his crimes. If the Government really want to reduce crime without recourse to prison, a provision enabling a person to pay an appropriate fine must make sense. It would also reduce the need for the final sanction of prison for defaulters.
This amendment would not in itself make any change whatever to sentencing. It would merely allow the Secretary of State to establish a scheme whereby a fine could be settled by the production of a certificate for the value of work done. The employer would carry out the administration for which the offender would pay. There are a number of other details such as tax arrangements, tools and travel which cover all the objections which have so far been raised by the Home Office. I believe that the scheme fits in with the Government's aims and I hope that the Committee will support it. I beg to move.
Lord Richard: This is an interesting and novel scheme. However, I am not sure how novel it is as there may have been schemes in the 18th century which had one or two similarities. It is an interesting scheme in the context of what we are discussing in this Bill. I have, however, one or two problems with the scheme, as I am sure the noble Lord would have expected. I am trying to follow the scheme. How does the money get to the court? The answer is that it does not. Presumably if the object is that the offender shall pay a fine—in other words, that the court will receive money from the man—presumably the prospective employer will have to buy the fine off the court before the employment commences. Otherwise a job is provided and part of the wages for the job are paid in the form of a scrip and that scrip is redeemable that is how I understand the matter—by presenting it to the court and it is then set off against whatever fine the offender owes the court. Therefore, in terms of cash coming into the court there is none. The employer, on the other hand, receives the benefit of the individual's labour at what would presumably be a negotiated price. Are the trade unions to be involved in the negotiation?
The noble Lord said that he thought that the unit fine scheme was fraught with dangers. I consider his scheme to be equally fraught with dangers. Before we on these Benches could give it our blessing we would wish to see a great deal more detail. I could not advise my noble friends to support the amendment.
Lord Gisborough: Perhaps I may answer those questions. The noble Lord is right to say that no money would change hands, except for expenses, which the offender would pay. The majority of the fine would be covered by the work that he did. There would be a certificate from the employer, which preferably would be a government employer, such as the Forestry Commission, or a charity. That certificate, stating that he had done work to a certain value, would satisfy the fines office that he had undertaken work in lieu of a certain level of fine.
The price of labour could be anything, but I propose that the offender should be paid one-and-a-half times the agricultural rate, by piece rate, but that could be determined.

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As to whether he would take other people's work, the work would have to be work which would not otherwise be carried out. That is why the scheme fits in so well. Brashing of forestry is uneconomic and is not done. Therefore offenders doing such work would not be taking the job of any union member but would be creating jobs, because once the forestry had been brashed it would be improved from the point of view of recreation and it could then be managed much more productively by paid labour. Therefore the scheme would create jobs.
Baroness Seear: The scheme is interesting. Like the noble Lord, Lord Richard, I am sure that there are considerable catches in it but I shall not go into them at this time of night. Regarding the question of the money reaching the court, I cannot see why the employer—the Forestry Commission, for example—instead of paying the man cannot send the money to the court. If he has earned the money he should not receive it, the court should receive it. Is that too difficult?
Earl Ferrers: In that case the wrong person would be paying the fine because the person paying the fine to the court would not be the person who had incurred the fine or the reprimand.
I realise that the amendment is motivated by concern about poor offenders who may have difficulty in paying their fines. We share that concern. I know that the matter has worried my noble friend for a long time because he has been in contact with me about it. He has also been in contact with my right honourable friend Mr. Patten and will shortly have a meeting with my right honourable friend to discuss these points.
The noble Lord, Lord Richard, and the noble Baroness, Lady Seear, are quite right. There are a number of drawbacks to the scheme which my noble friend has put forward and I could not advise the Committee to accept it. My main difficulty is that my noble friend's proposals would inevitably involve the less well off offender undertaking something that would be very similar to community service when the seriousness of his offence properly calls for a fine. That would be at odds with the approach in the Bill for penalties to form graduated restrictions on liberty which increase with the gravity of the offence. That approach recognises that everyone's liberty is equally valuable while accommodating the fact that fines have a different impact on offenders according to their means. My noble friend envisages that the offender would ask to perform work in order to pay his fine. But we think that it is for the courts to decide what penalty is appropriate for the offender.
We are also concerned that my noble friend's scheme would be complicated and costly to administer. There would be overheads and a certain amount of supervision would be needed. Deciding what value to place on the work undertaken and what certificate should be given to the offender would be fraught with difficulties. If the approved employer were to make that decision, that would undermine the courts' sentencing role.
Another of our concerns is that the proposals could
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conflict with our obligations under the International Labour Organisation convention on forced labour. That convention rules out the use of compulsory or forced labour. Although it excludes from the definition of forced labour any work ordered by a court following a conviction, it specifies that the work must be carried out under the supervision of a public authority. It does not permit the offender to be hired out to or placed at the disposal of private individuals, companies or associations.
There are many difficulties associated with my noble friend's amendment. Although I understand his reasons for putting it forward, I could not recommend that the Committee accept it.
Lord Gisborough: I thank my noble friend for that reply. However, I do not accept any of those criticisms. The less well off offender would work at the rate of one-and-a-half times. The agricultural rate would be a fair starter to think about, but we must remember, for example, the lorry driver who is fined. He would perhaps drive his lorry for a fortnight to pay his fine. So it is exactly the same thing. They would both work to pay off their fine, so it makes no difference.
On the question of supervision, if we had a system whereby the offender were to receive a large bonus if the work was done properly, we would not need supervision. It has nothing to do with community service. It is purely at the request and to the benefit of the offender.
The first criticism of the scheme that I received was that it could not work because some trees were on the hillside and some were on the flat. The Home Office was really scraping around. Now it has thought of some more reasons. No doubt when it has got over these it will think of some more absurd reasons. It should come up with some proper answers rather than these idiotic replies if it does not like my proposal. I am sorry if I have perhaps said more than I should. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 22 [Committals for sentence]:
Earl Ferrers Earl Ferrers moved Amendment No. 67:
Page 18, line 3, leave out second ("the").
The noble Earl said: In moving this amendment perhaps I may speak also to Amendments Nos. 68, 69, 103, 104 and 105. This group of amendments makes a number of changes, mainly consequential, to the Bill's provisions on committal to the Crown Court for sentence.
The main change is in Amendments Nos. 69 and 105. These enable a magistrates' court for the first time to commit a company for sentence as well as an individual. The question of committing companies to the Crown Court arises now because Clause 22 changes the criteria for committal. Under the Bill these criteria are concerned with the seriousness of the offence rather than, as at present, with the character and previous convictions of the individual offender. These criteria are not appropriate in the sentencing of companies. I think it is right that the new criteria should also apply to companies. Circumstances may become apparent during the hearing, after the

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magistrate had decided to hear the case himself, which would justify a higher penalty than that which the magistrates' court could impose.
Amendment No. 68 allows a magistrates' court to commit an offender to the Crown Court for sentence if a number of offences of which he has been convicted, taken together, would justify a higher sentence than that which the magistrates have power to impose. This is consistent with the sentencing provisions elsewhere in Part I of the Bill and brings this part of the Bill in line with the earlier provisions. In Clause 2(2) (a), for example, a court may take account of all the offences before it in determining the length of a custodial sentence.
Amendment No. 103 amends the form of the caution which must be administered by a magistrate to a defendant, which refers to the possibility of committal for sentence if certain criteria are met. This is consequential on the changes to the criteria for committal made by Clause 22. The form of the caution should obviously reflect the new criteria rather than the old ones which are replaced. Amendment No. 104 is consequential on Amendment No. 103.
Amendment No. 67 is a simple drafting amendment to remove an unnecessary word from the preamble to Clause 22(2). I beg to move.
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 68:
Page 18, line 4, after ("offence") insert ("or the combination of the offence and other offences associated with it").
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendment No.69:
Page 18, leave out lines 18 to 20 and insert:
("(3) Paragraphs (a) and (b) of subsection (2) above shall be construed as if they were contained in Part I of the Criminal Justice Act 1991.
(4) The preceding provisions of this section shall apply in relation to a corporation as if—

(a) the corporation were an individual who is not less than 18 years old; and

(b) in subsection (2) above, paragraph (b) and the words 'in custody or on bail' were omitted."

(2) In Schedule 3 to the 1980 Act, paragraph 5 (provisions relating to committal to Crown Court for sentence not to apply to a corporation) shall cease to have effect.").
On Question, amendment agreed to.
Clause 22, as amended, agreed to.
Lord Reay: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at nineteen minutes before midnight.