Lords Sitting of 18 April 1991

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Worcester): The CHAIRMAN OF COMMITTEES on the Woolsack.

Channel Tunnel Rail Link
Lord Thomson of Monifieth Lord Thomson of Monifieth asked Her Majesty's Government:
When they expect to receive the report on the high speed rail link by Sir Frederick Holliday; and whether they will undertake to publish it.
Viscount Davidson: My Lords, British Rail expects to submit to the Government very soon the results of its review of the route options for a new rail link between London and the Channel Tunnel. Publication arrangements have yet to be settled.
Lord Thomson of Monifieth: My Lords, I thank the noble Viscount for that Answer. Does he accept that it is very much in the public interest that there should be publication of this important report? Will he ensure that, as concerns the Government's responsibilities, before any final decision is taken there should be a thorough public evaluation not only of the British Rail preferred route but of the alternative routes that have been canvassed?
Viscount Davidson: Yes, my Lords. I should have mentioned that Sir Frederick Holliday is a non-executive member of the BR board. He has been advising on the processes for the environmental assessment. BR's environmental consultants, ERL, will publish probably in the middle of this year a report on the eastern half of the route and in due course an environmental statement covering the whole route.
Lord Underhill: My Lords, is it not the case that British Rail has appointed W.S. Atkins to conduct an independent review of the process of determining the route of the fast rail link? This would deal with the method adopted and also the criteria. One of the criteria is the environment. Is it not therefore imperative that we have not only the official report from British Rail but the additional report from the firm which it has commissioned, W.S. Atkins, so that we may consider the whole matter? If the Government have not made a decision, will the noble Viscount press the Government for both reports to be published?
Viscount Davidson: My Lords, I do not believe that I need to press the Government on this. BR has appointed and confirmed W.S. Atkins as independent consultants to scrutinise the objectivity of its route study process. The consultants' interim report published on 4th March proposes a methodology for comparing options, including social costs and benefits. BR is applying this. I should add that the appointment
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of Sir Frederick Holliday as a non-executive member of the board is for the specific purpose of advising on the processes for the environmental assessment.

Unemployment Figures
3.4 p.m.
Lord Dormand of Easington Lord Dormand of Easington asked Her Majesty's Government:
What was the total number of people unemployed on the most recent dale for which a figure is available.
The Parliamentary Under-Secretary of State, Department of Employment (Viscount Ullswater): My Lords, in March 1991 seasonally adjusted unemployment in the United Kingdom was 2,092,700.
Lord Dormand of Easington: My Lords, is the Minister aware that the figure released today is a monument to the incompetence of the Government in managing the economy? Does he deny that there are unique features in the figure in that all parts of the country and all types of jobs are affected? We have had increases in unemployment for 13 consecutive months. Those increases are a record since figures were first published. The Minister will state that these factors are necessary in order to reduce inflation. Will he say whether the Government will allow unemployment to reach 2½ million?
Viscount Ullswater: My Lords, of course I recognise that all forms of unemployment are regrettable. No one should underestimate the difficulties that unemployment causes for individuals and their families. However, the Government are taking the necessary means to combat inflation and thereby to create the climate for renewed economic growth. We are already seeing the success of this strategy, evidenced by the recent falls in both the retail prices index and interest rates. This is the right path to job creation and sustainable falls in unemployment. The Government have also made available a wide-ranging set of measures, including training opportunities, to help unemployed people get back into work as soon as possible.
Lord Mason of Barnsley: My Lords, is the Minister aware that unemployment in the United Kingdom is rising faster than in any other country in the European Community? Our manufacturing base has been dangerously eroded; manufacturing output is down and still falling. We have balance of payments deficits unparalleled in our history. Does the noble Viscount believe that that picture augurs well for the future of our economy?
Viscount Ullswater: My Lords, manufacturing employment has been falling since 1966, but falls in recent years are exaggerated by reclassification of jobs in services. However, as perhaps the noble Lord will wish to know, in the United Kingdom productivity grew by an average of 4.7 per cent. a year in the period 1980 to 1990, which was the fastest of all major industrialised countries.
Lord Mellish: My Lords, we recognise the Government's intention to deal with inflation, which is the curse of mankind. However, is the noble Viscount aware that the building materials producers, who are by no means unfriendly to the Government, have predicted that the only way in which they can get out of the recession they are in at the moment is if and when mortgage rates are reduced to about 10 per cent.? That includes the interest rate. What is the Minister's view about that? What are the prospects?
Viscount Ullswater: My Lords, we are seeing a faster fall in our inflation figures than most other countries in Europe. As noble Lords know, inflation has dropped from 10.9 per cent. to 8.2 per cent. and interest rates have gone down 3 per cent. during that period. That is the way to increase confidence in the industry. Inflation is due to fall again and on the back of that interest rates will also be reduced.
Baroness Turner of Camden: My Lords, is the Minister aware that projections by organisations such as the CBI are for a great deal more than 2 million unemployed at the end of this year? The figure of 3 million has been mentioned in some quarters. Does he agree that crisis measures other than those he has just enunciated may be more apposite?
Viscount Ullswater: My Lords, I am not in the business of predicting the unemployment figure at the end of the year. However, the Government are providing the Employment Service with an additional £55 million to help unemployed people. From July, every person who reaches 13 weeks of unemployment will receive the offer of an interview and a chance to review their plans and assess further options for returning to work. With these additional resources, we shall be able to offer 650,000 opportunities to help unemployed people get back to work. This represents the most comprehensive range of help and advice ever available to unemployed people and will enable us to meet the guarantee in our newly extended aim.
Lord Elton: My Lords, is my noble friend aware that many of us feel that this is an exceedingly important subject, to which my noble friend is bringing useful information? We understand the desire of the Opposition to make as many points on the matter as possible. However, as this is the seventh occasion in 12 working weeks when this question has been raised, does my noble friend consider that to raise this matter again is not an appropriate use of Question Time?
Viscount Ullswater: My Lords, I agree with my noble friend. I would point out that there will be a debate on unemployment next week.
Baroness Seear: My Lords, can the Minister really claim that the Government are doing everything possible to help reduce unemployment when they have cut the money available to the training and enterprise councils by 30 per cent? Therefore people who could be in training to acquire jobs to fill the skills shortages that we all suffer from are instead unemployed. Special groups with special training needs have been devastated. Due to lack of funds, the organisation that
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I represent, the Apex Trust, has had to cut by two-thirds the training that it provides. Most of the people helped by the trust have criminal records and without help they are thrown back into unemployment. The Minister can well appreciate the results of such a course of action.
Viscount Ullswater: My Lords, the establishment of the TECs will be completed within a much shorter period than was envisaged originally. They will now be established in two years instead of four years. That is a great success. The Government have contracted out training to the TECs. To get value for money they are recontracting with the suppliers of training. The most important issue is that we should achieve value for money.
Lord Donoughue: My Lords, in looking for useful information, and bearing in mind the several dozen changes in the statistical methods of calculating unemployment that have taken place over the past 11 years, will the Minister tell the House what the level of unemployment is as calculated on the original basis that existed when this Government took office in 1979? I appreciate that the Minister may not have that information to hand. I hope he will write to me on this point and perhaps bring that information with him to the House on the regular occasions when this subject is raised.
Viscount Ullswater: My Lords, the noble Lord has suggested that the figures are not comparable. That is entirely untrue. In total there have been only eight significant changes affecting the unemployment count since 1979, all of which have been adjusted in the consistent seasonally adjusted series maintained by my department's statisticians. This series has been maintained to be consistent with the current coverage of the count to allow meaningful comparisons with the past to be made, and so that underlying trends can be more easily observed. The noble Lord asked me a specific question. When this Government came to power there were just over 1 million unemployed people.
Lord Swinfen: My Lords, will my noble friend tell the House how many jobs are waiting to be filled at the present time?
Viscount Ullswater: Yes, my Lords. There are over 400,000 jobs available in the market place. It is also useful to know that 275,000 unemployed people leave unemployment each month. Over 50 per cent. of unemployed people leave unemployment within three months of becoming unemployed.
Lord Cledwyn of Penrhos: My Lords, the Minister agreed with the point made by the noble Lord, Lord Elton. However, does not the Minister agree that this House would be at fault if it did not consistently draw the Government's attention to a matter of fundamental importance to the people of this country; namely, the alarmingly high increase in unemployment? Is the Minister aware that, up to the end of last February, claimant unemployment in Wales increased in 12 months by 18.1 per cent.? Is that not a disgrace? What

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action are the Government taking to invest in industry and in training to make some attempt to get things right?
Viscount Ullswater: My Lords, the position in Wales has been much better than that in other parts of the country. The unemployment rate there is only 1.6 per cent. above the rate it was last year. The noble Lord the Leader of the Opposition asked me whether the Opposition should not remind the Government of their obligations. I take this opportunity of reminding the House of the contents of the Labour Party's document entitled Opportunity Britain, which was published this month. If the Labour Party ever came to power, it is estimated that, as a result of the minimum wages that that party advocates, at least 1 million jobs would be lost very quickly.
Lord Boardman: My Lords, is not the most effective way of containing unemployment the moderation of wage demands and wage settlements?
Viscount Ullswater: My Lords, that is entirely correct. Manufacturing industry is paying a high price for above average wage increases. Wages are currently rising by some 11.4 per cent. The wages offered by our major competitors such as the USA and Japan are virtually static.
Lord Tordoff: My Lords, following that reply, can we hope that the noble friends of the Minister and their colleagues will set an example in terms of wage moderation?
Viscount Ullswater: My Lords, we all need to pay attention to wage moderation.
Lord Stoddart of Swindon: My Lords, is the Minister aware that there is a qualitative difference in the unemployment figures now as compared with 1981, in that the figures show that the whole of the country is now suffering from unemployment? Will the Minister confirm that 50,000 of the unemployed included in the figures published today on the increase in unemployment are to be found in the South of England? That position is now spreading North. Does the Minister agree that the cuts in interest rates have been too small and have occurred too late? Does the Minister further agree that we need much greater cuts, and soon, if the unemployment problem is to be dealt with and is not to reach a figure of 3 million by the end of 1992?
Viscount Ullswater: My Lords, it is correct to say that unemployment in the South East is rising and has risen at a higher rate than in other parts of the country. However, it still remains true that the average for the South East is below the national average. If there is an increase in an unemployment count that has traditionally been low, obviously that will increase the percentage. I do not agree with the noble Lord that we should cut interest rates more quickly than is advisable and thereby put the strength of the pound at risk in the ERM.
Lord Dormand of Easington: My Lords, will the Minister explain to his noble friend Lord Elton that the reason why people such as myself keep raising the
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matter of unemployment is because we are in a unique position as regards unemployment? The current rates of unemployment have never persisted for 13 consecutive months, as three or four speakers on this side of the House have said. That is the problem and we want to know what the Government are going to do about it.
Viscount Ullswater: My Lords, the position is not unique. UK unemployment rates are still lower than the EC average. In recent months there have been rises in unemployment across the industrialised world, in the States, Italy, Canada and Australia.

Coastal Zone Planning
3.18 p.m.
Baroness Nicol Baroness Nicol asked Her Majesty's Government:
Whether they have considered the establishment of a coastal zone management unit to provide cohesion, advice and support for coastal zone planning.
The Parliamentary Under-Secretary of State, Department of the Environment (Baroness Blatch): My Lords, we recognised the importance of coastal zone issues in our recent White Paper on the environment and we made clear our concern for effective coastal zone planning during the passage of the Planning and Compensation Bill. We have, however, no plans to establish a new coastal zone management unit.
Baroness Nicol: My Lords, I thank the Minister for that not unexpected Answer. But is she not aware of the growing concern that exists about the lack of strategic planning in coastal zones? That concern is shared by many organisations, including the National Trust. Local planning authorities have expressed the view that they could be much more effective if they had jurisdiction over adjacent coastal waters so that the coastal zone could be treated as a single unit for planning purposes. When I referred to this matter during the passage of the Bill the Minister has just referred to, she said that the Government were contemplating a review. Can she say how far matters have progressed with that review? Is it taking place, and when can we expect some results from it?
Baroness Blatch: My Lords, during the course of the planning Bill I said that there would be policy planning guidance. A review is being commissioned under the planning research programme of relevant published material on coastal planning and management. It will review powers, policies and actions for the planning, management and conservation of the coastal zone. It is part of a larger research programme on earth science information requirements for supporting coastal planning management. Research is also in progress on planning policy on climate change which considers the effect of rising sea levels.
Lord Campbell of Croy: My Lords, will the Government nonetheless re-examine the present situation? Technicalities affecting the shoreline usually mean that private legislation is required even when all the necessary planning permission has been

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granted. Does my noble friend accept that that means that there is a disincentive for worthwhile projects of renewal and enhancement because of the cost and uncertainty of embarking on private legislation?
Baroness Blatch: My Lords, I can confirm to my noble friend that a number of organisations have put forward positive proposals and made their views known to the Government about the direction and scope of coastal policy. My ministerial colleagues are meeting delegations from several such organisations, such as Wildlife Link, the United Kingdom Centre for Economic and Environmental Development and the Royal Society of Arts. They will be discussing many of those policies. We intend to give very careful consideration to all the proposals that are put to us before reaching a view.

Joint Nature Conservation Committee
3.21 p.m.
Baroness Nicol Baroness Nicol asked Her Majesty's Government:
Where the Joint Nature Conservation Committee offices have been established, and whether its financial allocation for 1991–92 is sufficient for its needs.
Baroness Blatch: My Lords, the committee's main offices are located at present in Monkstone House in Peterborough. The chairman has an office at Battleby in Scotland and small project teams are established elsewhere in Great Britain. The committee's budget for 1991–92 was agreed by the chairmen of the three country councils in discussion with the committee's chairman, Professor Sir Frederick Holliday.
Baroness Nicol: My Lords, I thank the Minister for that reply, but she did not answer the second part of my Question as to whether or not the financial allocation is adequate. Is it not the case that the allocations from the country councils to the JNCC have left it six members of staff short of its full complement, including two vital senior posts? Is there not also a problem over the legal standing of the committee in relation to its property transactions which means that it has difficulty in signing leases for accommodation and so on? Can the noble Baroness explain how the Government propose to overcome those difficulties?
Baroness Blatch: My Lords, regarding the second point I am not aware of any legal difficulties, but I shall investigate the matter and write to the noble Baroness. Regarding the budget, prior to the setting up of the new councils the budget was £46 million, which represented an increase of 160 per cent. in real terms over the decade. In the year in which we set up the three country councils the budget was increased by a further £20 million, which included all the reorganisation costs. The budget was established on the basis of the full complement which I announced in great detail towards the end of the passage of the Bill
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through this House. Therefore, any decision not to fund posts or to hold posts back has not been taken on the basis of there not being funding for the posts.
Baroness Nicol: My Lords, I hope that the House will forgive me if I say that, as we understand it, with the passing of the Act the Secretary of State has a responsibility to see that the funds allocated by the country councils are sufficient for the needs of the JNCC. The JNCC is apparently six members of staff short of its complement, which means that the funding is not adequate. Can the Minister say whether the Secretary of State intends to fulfil his obligation under the Act to ensure that the funding is adequate?
Baroness Blatch: My Lords, there appears to be a misunderstanding. The JNCC agreed a budget with the three chairmen. The budget was funded. The amount of money given by the country councils to the JNCC is positively identified in the funds that the Government give to the country councils. That has been done on the basis of the full complement that I announced in some detail when the Bill was passed in this House.
Baroness David: My Lords, am I right in understanding from what the Minister said that the main base of the JNCC is to be in Peterborough? Can the Minister tell the House how that will overcome the difficulties? I understood that the whole point of setting up the Scottish council and the new arrangement was that the JNCC would not be based in Peterborough. We were told that it was because guidance came from Peterborough that the old arrangement was so unpopular and that was why the NCC was to be split into three parts.
Baroness Blatch: My Lords, accommodation is a matter for the committee but we understand that there may be a problem of perception. There is no question in practice of the JNCC operating alongside English Nature. I understand that the present accommodation may be a stop-gap arrangement and that the committee will be considering more permanent arrangements for the future.
Lord Renton: My Lords, can I assure my noble friend that she can relax on this matter because we now have the best of both worlds? We have a separate nature conservancy for each of the three countries and we have co-ordination which enables issues at the national level to be considered by them.
Baroness Blatch: My Lords, I am grateful to my noble friend. We always believed that this would be a very good arrangement and that the three countries would be served well. We were sure that the joint interests of the countries nationally and our contribution internationally would be well served by the arrangement with the JNCC.
Lord Stoddart of Swindon: My Lords, if the reason the six senior posts referred to by my noble friend Lady Nicol are not being filled is not lack of funds, can the noble Baroness say why they are not being filled?
Baroness Blatch: My Lords, the question of why the JNCC has chosen not to fill those vacancies must be

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a matter for the JNCC. I can confirm again that the funding for the country councils was established on the basis of the JNCC's bid for moneys for the three country councils. The funding that was given to the JNCC was on the basis of the full complement that I announced in some detail when the Bill was passed in this House.

Business
3.27 p.m.
Lord Denham: My Lords, it may be for the convenience of the House to know that, subject to the progress of business, the Committee stage of the Criminal Justice Bill will be adjourned at about 7 p.m. for about one hour and that during that adjournment the Planning (Northern Ireland) Order 1991 and the Dangerous Vessels (Northern Ireland) Order 1991 will be taken.

Shard Bridge Bill
Read a third time, and passed, and returned to the Commons with amendments.

Committee Work of the House: Select Committee
3.28 p.m.
The Lord Privy Seal (Lord Waddington): My Lords, your Lordships will recall that just before the Easter Recess, on Tuesday 26th March, you agreed to a Motion approving the Second Report from the Offices Committee. On that occasion the Chairman of Committees specifically drew your Lordships' attention to a proposal to set up a select committee to consider the situation with regard to all the various select committees of this House. The present Motion formally proposes the setting up of such a select committee. If your Lordships agree to it, the Committee of Selection will meet next week to propose the members of the select committee and that membership will be embodied in a Motion to be laid before the House immediately thereafter. The committee may then be expected to begin its work very soon and to complete it some time in the late summer or in the autumn. I beg to move.
Moved, That it is desirable that a select committee be appointed to consider the committee work of the House and to make recommendations.—(Lord Waddington.)
Lord Northfield: My Lords, I have given notice to the noble Lord the Leader of the House that I want to say a few words about this Motion and to ask him whether the terms of reference of the committee will be reasonably widely drawn. I draw his attention to the fact that some 15 years ago there was a special committee on practice and procedure of the House which looked in some detail at the functioning of the committee system. When the report of that committee was debated in the House some some months later the Leader of the House at the time gave a half promise of
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an experiment on the lines recommended by that committee. It was on the basis of that half promise that the noble Lord, Lord Windlesham, withdrew his Motion during the debate so that discussions could proceed about a possible small experiment.
That offer, which we understood to be genuine, was never implemented. There was never any experiment on the lines proposed in its report by the special committee on practice and procedure. It would be interesting to allow the new committee at least to look at the recommendations in that report to see whether any of them have stood the test of time and should now be subject to some kind of experiment.
I understand that one of the reasons for the new committee is that the European Communities Committee, for example, has been in existence for a long time and that it is now time for us to draw some lessons from its existence and its valuable work. Perhaps I may point out to the Leader of the House that the European Communities Committee presented evidence to that special committee when it sat 15 years ago. It drew attention to the fact that it was successful in harnessing more than 80 Members of your Lordships' House in detailed committee work which was widely recognised as successful not only here but in the European Community and particularly in the European Commission. The European Communities Committee said, in effect, said, "How odd it is that we do such valuable work on secondary legislation from Brussels and have never thought out how we should look at doing something similar about the more important legislation which reaches us from another place". The committee asked, "Is it not an odd situation that this valuable work has been going on so long and that we have not drawn the right lessons from it?"
I suspect that there were two reasons why the offer was never implemented. First, the two Front Benches were afraid that it would be impossible to man committees of the kind recommended by the special committee. If that is so, it should be said openly and we should look at the issue. After all, we are manning the European Communities Committee to the tune of 80 very active Members of your Lordships' House, so we need to know whether it is possible to start some small experiments on something similar concerning domestic legislation. The second reason why the offer was never implemented was that the Government feared that its legislation might become unduly delayed. Again, that matter should be considered.
Fifteen years is a long time for a report to lie on the table. My question to the Leader of the House is simply this: will it be clear from the terms of reference that the proposed new committee can range reasonably widely, look again at that report and advise the House whether we could more effectively carry out committee work in this Chamber than we do at the moment? After all, over the past 100 years we have lost power here but we have not yet maximised our influence. What that committee said to us 15 years ago is that it is about time that we looked at how to maximise our influence. I hope that the noble Lord will be able to assure me on the points that I have raised.
Lord Waddington: My Lords, I have no doubt whatsoever that the terms of reference of the select committee will be wide enough to cover the matters raised by the noble Lord, Lord Northfield.
The Earl of Lauderdale: My Lords, perhaps my noble friend will clear up one point. Do the terms of the resolution include or exclude the work of select committees, which are in many cases hampered by lack of staff back-up and are faced with mountains of paper which no one can read?
Lord Waddington: My Lords, I can assure my noble friend that the select committee will be able to deal with that matter.
On Question, Motion agreed to.

Criminal Justice Bill
3.34 p.m.
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.]
Lord Nathan Lord Nathan moved Amendment No. 69ZA:
After Clause 22, insert the following new clause:
("Sentence for murder
. No court shall be required to sentence a person convicted of murder to imprisonment for life.").
The noble Lord said: I beg to move the amendment standing in my name and those of the noble Lords, Lord Windlesham and Lord Richard, and of the noble and learned Lord, Lord Lane. The noble Lord, Lord Windlesham, has asked me to say how very much he regrets, as I do, that he is unable to be here to participate in the debate today due to a long-standing engagement in the United States in which he has to play a principal role.
It may be for the convenience of the Committee if I mention briefly certain other amendments standing in our names; namely, Amendments Nos. 69A, 76A, 76B and 76D. Amendment No. 69ZA relates to the abolition of the mandatory sentence of life imprisonment. Amendment No. 69A seeks to establish in all life sentence cases a judicial procedure to set the period of imprisonment as punishment, presently sometimes called "the tariff". Amendments Nos. 76A, 76B and 76D contain proposals for new judicial procedures relating to release in life sentence cases (in the case of those convicted of murder, only on licence). If adopted, Amendments Nos. 69A, 76A, 76B and 76D would apply whether or not the present amendment relating to abolition of the mandatory life sentence is adopted. All the amendments together are designed to implement the principal recommendations of the select committee on murder and life imprisonment of your Lordships' House appointed in July 1988 of which I had the honour to be chairman.
I now return to Amendment No. 69ZA. The committee was required by its terms of reference to consider:
"The question whether imprisonment for life should remain a mandatory rather than a maximum penalty for murder".
The purpose of the amendment is to do away with the mandatory life sentence for murder with the result that sentencing for murder would come within the discretion of the judiciary with a maximum penalty of life imprisonment and thus bring sentencing in cases of murder in line with sentencing in other serious criminal cases. Appeal would of course lie to the Court of Appeal, either at the instance of the defendant or the prosecution as in other criminal cases since 1988.
The mandatory sentence of life imprisonment in cases of murder was introduced a generation ago in the context of the abolition of capital punishment. Whatever merits it may have had all that time ago, it has for many years now given rise to grave concern expressed with particular force in debates on the previous Criminal Justice Bill, now the Criminal Justice Act 1988, in late 1987. That led to the appointment of the select committee to which I referred.
The objections to the mandatory life sentence fall under three main heads. First, it vests in the Executive the effective power of sentencing exercised in secrecy. The mandatory life sentence vests in the Executive the right to determine how long the prisoner shall remain in prison; in the traditional words, for the purposes of retribution and deterrence or, in plain English, as punishment. It vests in the Executive the power to determine whether, after the expiration of that period, the prisoner shall or shall not be released on licence. Those powers have been exercised in secrecy. The Executive may have political reasons for reaching the decisions relating to specific prisoners. Justice needs not only to be done but to be seen to be done, which the present system notably fails to do.
Sentencing is essentially a judicial function which should be exercised in public and be subject to appeal. In the absence of those public elements there can be no confidence that a just and consistent sentencing policy is being pursued, the need for which was so much emphasised on all sides of the Chamber—and rightly so—in the earlier debate on the first amendment to the Bill.
Secondly, the punishment must fit the crime and be seen to do so. The application of one uniform sentence to all those convicted of murder in whatever circumstances is patently unjust and brings the law into disrepute. The scope of the crime of murder is wide and the variation in the circumstances in which it may be committed no less than in other criminal offences. The gravity of a murder may depend on so many circumstances that in attempting to select one or two of them to put murder into a special category leads to unacceptable anomalies. That is why the experiment carried out with such notable lack of success between 1957 and 1965 was terminated. The right way to deal with the matter is not to divide murder into degrees but to give the judge a discretion

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to impose the sentence which is appropriate to the particular offence, taking account of all the relevant circumstances.
Thirdly, and a consequence of that, is that the existence of the mandatory life sentence has resulted in the introduction of distortions in the administration of the law. A consultant psychiatrist and member of the Parole Board who gave evidence to the Select Committee argued forcefully that the defence of diminished responsibility was stretched in order to avoid the mandatory life sentence,
"in cases where it would manifestly be absurd and unjust for such a sentence"—
the mandatory life sentence—
"to be imposed".
While carrying out our study the case of the Thompson sisters arose. They shot their tyrannical father as he lay in bed suffering an epileptic fit and were given a two-year suspended sentence. That seems to have attracted nothing but public sympathy. Earlier in 1980, in the case of the Maw sisters, the sentence of three years' imprisonment on two young women who had deliberately killed their drunken father was harshly criticised for its severity and in the case of one of them was reduced on appeal to six months. The public are well able to recognise powerful mitigation even in the case of deliberate killing. The defendants were held to be acting under diminished responsibility in the Thompson case and under provocation in the Maw case. Those defences resulted in convictions of manslaughter and thus an escape from the mandatory life sentence which would have applied had they been found guilty of murder. So the existence of the mandatory life sentence itself introduces distortions into the law to avoid what are perceived to be its unjust consequences. That brings the law into disrepute.
But there are also other deeply felt consequences. The select committee sought evidence from the close families of those who had suffered bereavement by murder. It is perhaps easy for those of us in this Chamber who have not suffered in that way—there are some who have—to speak in an abstract way without regard to the human and social factors surrounding the crime of murder. The committee therefore invited the Parents of Murdered Children Group and the organisation Victim Support to give evidence to it. They expressed their concern that the existence of the mandatory sentence meant inappropriate verdicts of manslaughter. Many families of murder victims felt that,
"somebody being charged and found guilty of murder does imply and represent an appropriate recognition of the crime that has actually happened".
They made clear that they were pressing for a conviction of the crime of murder where that had been committed. The sentence, whether an appropriate determinate sentence or a life sentence, was of secondary importance. Since publication of the committee's report they have expressed their support for its conclusions. They are reported in last Tuesday's edition of The Times, 16th April.
It has been suggested that public concern as to further murders being committed by those who have once been convicted of murder, whether or not the
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offence was particularly heinous and whatever the circumstances, is such as to justify the continuance of the mandatory life sentence. But, as Justice in its evidence states:
"Experience has shown that the great majority of murders are committed in domestic circumstances by persons under immense emotional stress who are unlikely to offend again".
It is said that the mandatory sentence is a valuable deterrent. Yet the very fact that it is mandatory for all crimes which fall within the definition of murder dilutes what should be the awe inspiring nature of the life sentence. The common reaction that we all hear —"What is a life sentence: nine years?"—demonstrates that point. If the life sentence were discretionary it would, when awarded, reflect the heinousness of the crime and public revulsion, as does a life sentence in the case of rape.
If this amendment is adopted life imprisonment will remain available as punishment for murder. It will surely be awarded in those too frequent cases of heinous crimes of murder and the penal terms will surely be long, as they should be. The proposals that we have made represent no soft option.
It is also said that the mandatory life sentence must remain to allay public concern that government have gone soft on murder. Yet I cannot reconcile myself to the injustice of equating sentence for killing out of compassion and for murder in the course of terrorism, for financial gain or for political power; nor, I believe, can the public, of whom, after all, we form a part. I beg to move.
3.45 p.m.
Lord Lane: The arguments in favour of abolishing the mandatory life sentence have been rehearsed time and again both in this Chamber and elsewhere. Nevertheless, I shall try to make some points perhaps at the risk of repetition.
First, there is no greater difficulty in assessing the proper length of a determinate sentence for murder than there is in doing the same for any other form of serious crime. Secondly, the person in the best position to carry out that task is the one who has heard the evidence; namely, the trial judge. He hears not only the evidence about the commission of the offence but also the medical evidence as to any abnormal medical or psychological condition afflicting the defendant. He hears the social evidence about his background and upbringing and indeed any other evidence which he, the judge, deems it proper to call for. All that is spoken in open court, in the hearing of the defendant, the public and the press.
Thirdly, if the defendant considers that the sentence imposed upon him has been too harsh or, on the other hand, if the Attorney-General considers that the sentence upon the defendant which has been passed is too lenient, either of them can appeal to the Court of Appeal, Criminal Division, and again the matter is heard in public with all the natural safeguards which that single fact entails and in the presence of the defendant himself. That possibility of an appeal by the Crown is the new feature which perhaps removes one of the few objections—some would say, the only legitimate objection—to the removal of the mandatory sentence.

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Let us compare that with what happens now when a mandatory life sentence is passed. First the defendant, the public and everybody know that what the judge says is untrue and that it is a practical certainty that the defendant will not spend the rest of his life in prison. Perhaps I may suggest in passing that to require a judge to pass a sentence which everyone knows bears no relation to actuality might seem to the casual observer to be marginally bizarre.
In fact the length of time spent in prison will range between the very short in the type of killing to which the noble Lord, Lord Nathan, referred—the mercy killing as it is sometimes called—and the very long for such crimes as the deliberate killings of large numbers of people. Indeed there will be cases where the life sentence will still be necessary because of the heinousness of the crime or because of the danger which the defendant, through his propensities or medical condition, may present to the public if released. In those cases, of course, the judge will say why he is imposing the indeterminate sentence and there will be consequential changes which are the subject of further amendments to which it is not necessary at this stage to make reference.
However, in the great majority of cases it will be a matter of applying the same sentencing principles as the judge applies in other cases of serious crime like rape, manslaughter or others where the maximum sentence is one of life imprisonment.
The great advantage of the change, I suggest, would be this. What is now decided by no doubt some admirable but anonymous person in the Home Office upon advice from a variety of sources, including the trial judge and indeed the Lord Chief Justice, all of it tendered in private, would be done openly and would be subject to appeal in the way that has been described. I do not know how the matter strikes your Lordships, but fairness being the objective of any system of justice the present situation seems susceptible of improvement.
What then are the arguments to the contrary? The first is that murder, the gravest of crimes, is exceptional and requires exceptional punishment. Not everyone would agree with the initial premise in view of the fact that intent to kill is not a necessary ingredient. Intent to do serious bodily harm is enough. Let us assume nevertheless that it is the gravest crime and that exceptional punishment is required for it. That can be achieved by the imposition of a long determinate sentence. No crime, however exceptional, requires the imposition of a sentence which everyone knows will not be implemented. Such a sentence is exceptional but for the wrong reasons.
The next argument, one understands, is this. There are some murderers so dangerous and unpredictable that it is impossible to foretell when it will be safe to release them into public life again; hence the necessity for an indeterminate sentence. No one would disagree with that proposition but it is no reason for treating the man who does not present that danger in the same way.
What other reasons are there? Is it thought a sign of weakness if the mandatory life sentence goes? If so,
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that is surely a serious miscalculation. It is no weakness to replace what I suggest is a flawed system with one which at the very least offers an opportunity to achieve greater fairness and so greater justice.
Lord Renton: Whatever the merits or defects of the present system, I find myself worried about what is proposed as an alternative. The Court of Appeal will have a jurisdiction to hear all appeals, whether appeals against life sentence or against shorter sentences. Indeed, we can anticipate that, except where the sentence is clearly a rather lenient one there will be an appeal in practically every case.
The Court of Appeal will find itself setting guidelines in order to try to create consistency on the part of the judges when awarding sentences in case of murder. Then there will be a wrangle in some cases as to whether or not the guidelines have been followed.
Parallel with that, as I understand the position, there is to be a life sentences review tribunal for consideration of life sentences only. It will be composed differently from the way in which the Court of Appeal is composed and will no doubt develop different principles of approach. One wonders what will happen if the guidelines proposed by the Court of Appeal do not turn out in the case of life sentences to be the same as the guidelines proposed by the life sentences review tribunal.
I believe that this is the first time that I have ever ventured to disagree with the noble and learned Lord, Lord Lane, for whom I and all in our profession have immense respect. I have great respect also for committees of your Lordships' House. It was with some hesitation that I decided to intervene briefly in this debate in order to express the doubts that I have about what is proposed. The noble and learned Lord has very properly mentioned that in every case the circumstances of the murder will be considered by the court in fixing sentence as will the character and antecedents of the accused and medical reports concerning him at the time of trial.
However, a third factor needs to be considered. It is the question of how the accused's personality, character and mental condition will develop, deteriorate or improve during his time in prison. That is a matter which the judges cannot anticipate when awarding a sentence which is not a life sentence. It is something which at present is considered. It is considered by the Parole Board in due course. It is considered by the Home Secretary on very expert, careful and highly qualified advice which he receives. It is the omission of the application of that third factor from the amendment which we are now asked to consider that I believe is regrettable. Therefore, in view of the confusion that can arise from disparity between the statement of guidelines by the Court of Appeal and the statement of guidelines in the case of life sentences by the review tribunal, and the serious possibility of short sentences of imprisonment for people who, in the light of experience in custody, should perhaps have been given a longer sentence, I have some misgivings about what is proposed.
4 p.m.
Baroness Platt of Writtle: I rise to support the retention of the mandatory sentence for murder. I was the only member of the Select Committee of this House on murder and life imprisonment to feel deeply that it should be retained. Therefore I speak with humility, but I am very much against the present amendment.
The majority of evidence, including that given by the noble and learned Lord the Lord Chief Justice, favoured its abolition. But we must not forget those whose evidence was strongly against its abolition. The Crown Prosecution Service was in favour of its retention. It believed it to be the appropriate retributive sentence for murder and that public confidence in the criminal justice system would be eroded if the penalty for murder became discretionary. The service was strongly in favour of the power of recall throughout the murderer's life.
Ten murderers who have been released since 1968 have been convicted of a further homicide, as our report stated. A person who has killed once has demonstrated by his action that he is capable of killing again. At a time of increases in the number of violent crimes the abolition of the mandatory life sentence for murder would give all the wrong signals to the general public. Today many old people are in fear of violent crime. Many women fear domestic violence; that is perhaps the worst kind of all. If you cannot feel safe at home where can you feel secure?
I sat on the committee with a deep sense of sympathy for the victims of murder. By the very nature of the crime they can no longer be heard. Too often people's sympathy can turn to the murderer. The murderer should be justly heard, but, nevertheless, society should be properly protected against his possible repetition of violent crime.
A life sentence does not necessarily mean that the murderer will remain in prison for life. Later he will be released on licence under the supervision of a probation officer. If he behaves well he may remain free for the rest of his life. However, the safeguard lies in his being able to be recalled at any time by the Home Office if he again begins to exhibit violent symptoms, perhaps similar to those exhibited at the time of the first murder. It is in respect of the protection of the public from risk that life can mean life.
Although the noble and learned Lord the Lord Chief Justice and 12 judges were in favour of the discretionary life sentence, seven were not. In Scotland a number of people wanted the mandatory sentence retained, including the Lord Justice General, representing the High Court of Justiciary of Scotland, and the Faculty of Advocates, as did a majority of the members of the Association of Chief Constables of England, Wales and Scotland and the Scottish Police Federation.
I believe deeply that the mandatory sentence provides the main distinction between murder and manslaughter. It should be retained in order to emphasise the inestimable value that society places on life from the point of view of deterrence and retribution but above all through the system of release
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on licence for the protection of the rest of society. I hope that the Committee will vote against the amendment.
Lord Richard: The proposal that the life sentence should no longer be mandatory in murder cases has received growing support inside and outside Parliament during the past 15 years. The change was recommended in 1975 by the Butler Committee on mentally abnormal offenders; in 1978 by the advisory council on the penal system; in 1980 by half the criminal law revision committee, which. I accept, was divided on the issue; in 1986 by the parliamentary all-party penal affairs group; and recently by the Select Committee of your Lordships' House.
In reply to the noble Baroness, Lady Platt, I agree that one should consider the victim; it would be absurd, foolish and immoral if we did not do so. However, it is worth pointing out that organisations such as Victim Support and the parents of murdered children are in favour of ending the mandatory life sentence as a way of dealing with murder. The reason is twofold. First, if the mandatory life sentence is ended there will be more precision as to the date upon which the offender will be released. Secondly, it may help to remove what many relatives of murdered victims now ask—why should the verdict be one of manslaughter rather than one of murder? There is a tendency for manslaughter verdicts to be brought in under the present system when a murder verdict would have been more appropriate.
It is also interesting to note that, as a result of the mandatory life sentence, the United Kingdom has more life sentence prisoners than all the other countries of Western Europe put together. A recent survey carried out by the Quaker Council for European Affairs found that the United Kingdom has 3,503 life sentence prisoners; it is 3,050 if Northern Ireland is excluded. That number compares with 2,688 for the whole of the rest of Western Europe. The main reason for that is simple. It is that in this country we have a mandatory life sentence while in many other countries a high proportion of murder convictions are followed by fixed-term penalties.
The noble and learned Lord, Lord Lane, was right in saying that the arguments in respect of this issue have been well rehearsed. The argument in favour of change is based upon one simple proposition—that murders vary greatly. They vary from those that are planned and calculated, or are for material gain or from political motives, to those that are committed under severe pressure and in emotional circumstances of great stress, including many domestic murders. As many Members who practise in the courts know, there are many cases in which the killing could hardly be said to be intentional. The intention may have been to cause grievous bodily harm to the individual, but perhaps to the regret of the person causing that harm the individual died.
One can be anecdotal about the issue. Perhaps I may give an example of a recent case in which I was involved at the Central Criminal Court. My client, who was an accessory before the fact to a murder, was convicted of murder. The difference in the circumstances between her participation in the crime and that of

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the person who committed it was enormous. She encouraged it, but the crime was committed by someone who stabbed the victim no fewer than 27 times, and not in the presence of my client. In those circumstances it appears that, although the law says that there should be a conviction for murder for an accessory before the fact indicted as a co-principal —and I accept that—the difference in moral turpitude between the two individuals is enormous.
In a situation in which there are different classes of murder although they may not be recognised by the law, and even if there are no legal categories in law de facto, they differ in terms of premeditation, viciousness, relationship to the victim, gain to the offender, the type of victim, whether the killing was intentional or accidental and the morality of the whole incident. As was said by Lord Kilbrandon in the case of the DPP v. Hyam, it is no longer true, if it ever was true, to say that murder as we now define it is necessarily the most heinous crime and heinous example of unlawful homicide.
I wish to make only two further points in favour of the amendment. The argument that mandatory life imprisonment is necessary for deterrence is unconvincing. The part which deterrence plays in an offender's calculations, particularly in murder cases where so many of the victims are known to the defendants, is much less than is perhaps commonly supposed. The most calculating killers plan to avoid detection and would do so whether life imprisonment was mandatory or discretionary. On the other hand, those who kill under emotional pressure do not normally plan sufficiently rationally for deterrence to play a significant part in their calculations. In the Australian state of Victoria the life sentence became discretionary in 1986 and it is interesting to observe that there has been no subsequent overall increase in the homicide rate.
In any event, in so far as life sentences have any deterrent effect, that is surely lessened by the widespread notion that, on average, they result in only about 11 years in prison. If life sentences were reserved for the worst cases, for which periods spent in prison are much longer than the average, that would no longer be the case, as your Lordships' Select Committee pointed out. The fact that life imprisonment is mandatory dilutes what should be the awe-inspiring nature of the life sentence.
Finally, perhaps I may echo the sentiments and opinions expressed by the noble and learned Lord, Lord Lane. Everybody knows that a life sentence as passed by judges in our courts these days is a pretence. It is a pretence because the defendant, the judge and the advocates do not believe that it will happen. I cannot believe that it is sensible to continue with a situation in which people being convicted of an extremely serious crime—in some circumstances the most serious crime of all—should be subject to a pretence at the precise moment at which their liberty is being considered.
4.15 p.m.
Lord Harris of Greenwich: My Lords, I speak this afternoon in a dual capacity, both as a member of the Select Committee of your Lordships' House and as a former chairman of the Parole Board.
I propose to deal with two issues as briefly as possible. The first is the current situation which faces the trial judge when a jury brings in a verdict of guilty. He will pass a life sentence in a case in which an armed robber has shot a security guard who is protecting a vehicle containing a large sum of money. He will pass a life sentence where a man murders a relative for financial gain. He will pass precisely the same sentence on a man whose wife has begged him to kill her because she is suffering acute pain and is in the final stages of a terminal illness. The fact is that in each of those cases there is either an intent to kill or an intent to cause grievous bodily harm, which are the essential ingredients of the crime of murder. How can a similar approach and sentence be justified in such diverse cases?
I expect it will be argued at the end of our debate by the noble Lord the Leader of the House that public opinion, which he will argue favours a return to capital punishment, cannot possibly support the change recommended by the amendment of the noble Lord, Lord Nathan. I do not believe that his amendment, which I hope will be supported by the Committee, will create the degree of adverse opinion which the noble Lord the Leader of the House will put before the Committee.
I do not believe that the public would justify similar treatment in the three types of cases to which I have referred. However, there is an additional reason which was put by the noble and learned Lord the Lord Chief Justice. People know that the sentence of life imprisonment is bogus. They know perfectly well that in the overwhelming majority of cases the man or woman concerned will be released after a certain period of years. There is a belief that that period is nine years, but that is a misunderstanding because the period is rather longer. However, that is the view of a substantial section of public opinion.
The noble Baroness, Lady Platt, who was a very valued member of our Select Committee, said that in her view at a time of rising crime there would be grave public disquiet were this amendment to be carried. She said that the tragedy of the matter was that some people spent more time worrying about the defendants than the victims. However, as the noble Lord, Lord Richard, reminded us (as did the noble Lord, Lord Nathan) the only groups of people who came before the Select Committee to put forward the views of the victims supported the Select Committee recommendations.
The National Association of Victims Support Schemes, which works intimately with people who have been brutally struck down by criminals, supported this proposal, as did that very small group the Parents of Murdered Children Group. We were all deeply affected by the evidence given. However, it is absolutely clear that those people supported the Select Committee's recommendations. That has been subsequently made clear.

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I now turn to a related matter dealt with briefly by the noble Lord, Lord Nathan, because I believe that it is important to look at the totality of the situation; that is, the release arrangements for life sentence prisoners. The present system of releasing life sentence prisoners is based on an arrangement which confers exclusive powers on Ministers. In my view, in recent years that has led to a number of quite significant abuses.
Until 1983, on the basis of a system introduced by the noble Lord, Lord Carr of Hadley, when he was Home Secretary—and this applied at the time at which I was chairman of the Parole Board—there was a joint committee from the Parole Board and the Home Office which considered the cases of life sentence prisoners at the three to four year stage; that is, three to four years after sentence. The committee consisted of the chairman of the Parole Board, the vice-chairman of the Pa role Board, who was always a High Court judge, and a consultant psychiatrist together with Home Office officials.
That committee decided whether to refer the case of a prisoner to the local review committee, which exists in every prison in this country, in perhaps a further four or five years in the case of what could loosely be described as a fairly uncomplicated domestic murder. In far more serious cases the joint committee would refer the case back to itself in, say, another four or five years because it was riot prepared at that time to decide on a firm date for the commencement of the review process.
As I have indicated, in 1983 Mr. Brittan, who was then Home Secretary, abolished the joint committee. That matter was touched upon by the noble and learned Lord the Lord Chief Justice on Second Reading of this Bill. M r. Brittan announced that in future Ministers and not the joint committee would decide the date of the first reference of a case to the local review committee at a prison. Your Lordships' Select Committee was able to measure the results of that change of policy. We discovered that there had been a quite extraordinary and, until the time of our inquiry, a highly confidential switch of policy. Until November 1983 —the time of Mr. Brittan's announcement about the abolition of the joint committee—the views of the Lord Chief Justice on tariff were, in my own direct experience, largely accepted both by Ministers and by the Parole Board. Indeed, I cannot recall any public dispute about the desirability of that policy.
After that date—in other words, after the end of 1983 when the policy was changed by Mr. Brittan—we know that in a large number of cases a junior Minister at the Home Office set a tariff higher than that recommended by the trial judge who, of course, is the only person who knows the direct facts of the case; and by the Lord Chief Justice who has immense knowledge and experience of life sentence cases having, I suspect, looked at the cases of several thousands of such prisoners.
The Select Committee discovered that in a six-month period in 1984—the first year of the new policy—Ministers increased the trial judge's recommendation in 80 cases out of 195, or roughly 40 per
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cent. of all the cases that came before them. In 1988 they established something of a record; they decided on a higher tariff in 63 out of 106 mandatory life sentences. It is a matter of considerable surprise that it was only when a Home Office witness, in answer to questions, admitted that that we discovered what had been going on.
It is remarkable that a junior Minister with no direct knowledge of a case other than a summary provided by officials can add a few years to a sentence without any established criteria. I asked about criteria when we discussed the Select Committee's report. I put the matter to the noble Earl, Lord Ferrers: no answer came. Of course the decision is taken in secret. The prisoner knows neither the judicial recommendation nor the fact that the sentence has been altered by a junior Minister. I should be interested to know whether the judiciary were ever told what had been going on. I specifically put the matter to the noble Earl, Lord Ferrers. He is always extremely helpful in answering questions asked by Members from any part of the Chamber. If he is not able to deal with the matter at once he is keen to write explaining the circumstances. Despite the question asked, no answer came from the noble Earl.
In my view that episode gives overwhelming strength to judicialising the entire process of the release of life sentence prisoners. As the noble Lord, Lord Nathan, indicated, a judge could, under the terms of the amendment give a determinate sentence in an appropriate case and where there is a life sentence—under the terms of the amendment life sentences can still be handed down by judges after hearing the views of counsel—the judge would announce in open court the number of years that the prisoner would have to serve to meet the requirements of retribution and deterrence. Ultimately, a tribunal presided over by a judge and independent of the judiciary would decide when he should be released.
We may be told that the public require that Ministers and not judges should make those decisions. In my view there is absolutely no evidence to justify that belief, which I am sure is sincerely held. No evidence has ever been put forward to justify it. In fact, I believe that precisely the reverse is true. To be blunt, I believe that the public have an infinitely greater confidence in judges than in Ministers—of any government—to make decisions on the length of sentences. That is why I hope that the Committee will accept the amendment.
Lord Morton of Shuna: I intervene briefly. The noble Baroness, Lady Platt, perhaps gave the impression that all Scots are bloodthisty. I rise to assure the Committee that they are not and that I am not alone among the judges of the High Court of Judiciary in Scotland who would be and are in favour of the amendment.
The principle behind the amendment is neatly stated in the booklet, The Sentence of the Court, which came out with a foreword by the noble Lord the Leader of the House last autumn. It said of sentences:
"Properly reflecting the relative gravity of the offence, and fairness between different offenders, are more important aims in the individual case".

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I do not believe that that could be better put. I support the amendment.
Lord Alexander of Weedon: I wish to speak briefly on behalf of Justice, the all-party organisation of lawyers mentioned by the noble Lord, Lord Nathan, when introducing the amendment, and say that I support the amendment. I do so diffidently from these Benches but with the greater confidence because I believe that the amendment gives effect to the admirable principle of the Bill that the punishment should fit the crime. The Committee would therefore act in keeping with the spirit of an approach to sentencing which has been followed by successive Home Secretaries and developed with imagination and sensitivity by Mr. John Patten, if the amendment were passed.
I believe also that it would be a substantial bonus that the accused and members of the public should know the real sentence which the court intends. It would be immensely healthy for all if society, the accused and the Government were aware of the views of the court as to the right length of sentence for the specific offence. I find the existing system somewhat hugger-mugger. It can only be justified if we take the view that someone sentenced to life imprisonment puts his life at the discretion of the state thereafter. I do not believe that that is so. I should like to see the ordinary principles of punishment applied. I do not believe that anyone can suggest that our judges are otherwise than well qualified by experience to carry out that role.
I shall say no more. The noble and learned Lord the Lord Chief Justice, if I may respectfully say so, with his unrivalled experience and authority, has twice stated with immense cogency the clear case for the amendment, as have other Members of the Committee. I hope that in the light of the debate the Government will quietly think again and come to the view that the amendment meets the spirit of the Bill.
Lord Hunt: In view of statements in the press today that several former chairmen of the Parole Board for England and Wales are in support of the amendment, I rise to identify myself as one of those former chairmen. I assure the Committee that I have no intention of repeating the arguments to which the noble and learned Lord the Lord Chief Justice referred: they have been rehearsed time and time again. However, I should like to say to my noble friend Lord Harris of Greenwich that I strongly agree with every word he said. Whether he needs that support after speaking with such powerful effect is another matter.
I should like to put one point only to the Committee, and it is reiteration. In contending that what is needed is the power of the courts to use their discretion in imposing a life sentence there is an overriding need to restore to the life sentence the gravity and credibility which has been largely lost. In my judgment it is extremely important that a court imposing the life sentence intends that that should be so. It does not follow that in the light of circumstances many years later there should not be a release on
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licence subject to recall. As the noble Lord, Lord Richard, said, far too many people are serving so-called "life". It has become a figure of speech. There are well over 3,000 such people. It is meaningless and looks bad on the scoreboard compared with the record of other countries in Europe. It is important that we should limit the provision to the words intended.
Lord Bridge of Harwich: Almost anything one can say at this stage of the debate is bound to be a statement of the obvious. Perhaps I may make two obvious points. The first is that the argument that a mandatory life sentence is uniquely necessary for cases of murder in order to prevent the premature release of the murderer who will then repeat his offence will not stand scrutiny for one moment. If it were a valid argument it would apply to all other grave offences. Rapists and armed robbers are just as likely to repeat their offences when released after their determinate sentences and are perhaps more likely to do so than murderers.
The other obvious point has surely been made already and I seek only to summarise it. The mandatory life sentence is a blunt instrument which prevents the courts recognising by the sentences that they pass the infinite gradations of gravity in the crime of murder. No one disputes that those gradations should be recognised. They are recognised by the dates of release determined by the Home Office. Should the distinction between the gravity of one offence and another be made by the courts in public or by the Home Secretary in private? The answer is obvious: it should be made by the courts in public.
4.30 p.m.
Lord Macaulay of Bragar: Perhaps I may, as another non-bloodthirsty Scot, add a word or two in support of this progressive amendment. I draw the attention of the Committee to another aspect of the existence of this kind of sentence; namely, the practical difficulties faced by practitioners in the courts in getting people to plead guilty to homicide. I use that word in its broadest sense. There are many cases where there is overwhelming evidence that a homicide has occurred and that that homicide falls within the legal definition of murder. But, looking at it from a common sense point of view and from the background and circumstances of the case, very often even the Crown will concede that it is not murder as such.
The difficulty in getting an accused to plead guilty in the face of the overwhelming evidence is this: he will not plead guilty to a crime which leads to a life sentence being imposed, whereas if the life sentence were removed and there was at least the possibility of a determinate sentence, he might very well plead guilty. Another reason why a person does not plead guilty is that if he is sentenced to life imprisonment, that sentence often determines the prison in which the convicted man will serve his sentence. There are two compelling factors against an obviously guilty accused man pleading guilty to homicide in the form of murder as it presently stands.

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Where there are several accused charged with murder and it is abundantly clear that only one of them committed the murder and the trial proceeds with the other co-accused still in the dock being dragged through the trauma of prison and a court trial, there is always the risk that one or other of the co-accused who is in no way guilty of the murder will be dragged into a conviction by the jury on the basis of a purported art and part participation. That of itself may very well lead to a miscarriage of justice which will have to be unravelled over a long period of time. We have all had plenty of experience of that in recent days.
Finally, there is the effect that the public is put to unnecessary expense by unnecessary trials which could be avoided if the mandatory life sentence were done away with. If that is done then another matter arises. If the mandatory life sentence goes, then perhaps the word "murder" should be removed from the catalogue of crime in our society and we should start thinking of a general definition of causing death as justifiable or unjustifiable homicide, leaving the sentence at the discretion of the presiding judge.
In view of the tone of the debate and the opposition to this amendment, it is important to remember that the life sentence has not been done away with. It is still there as an implement for the judge to use in a necessary case. Accordingly, I speak in support of this amendment.
Lord Ackner: I should like to repeat the emphasis which has just been given by the noble Lord, Lord Alexander, that the theme running through the Bill before the Committee is that,
"convicted criminals … are punished justly and suitably according to the seriousness of their offences".
The very words are to be found in paragraph 2.1 of the Government's White Paper. The so-called just deserts rule is not exactly a revolutionary concept. In that White Paper the mandatory life sentence of imprisonment for the crime of murder was justified on the basis that it marked the heinousness of the crime. That description has since been upgraded.
When replying to the debate at Second Reading of this Bill, the noble Earl, Lord Ferrers, who of course adds stature to any proposition which he enunciates, said:
"The Government believe quite simply that murder is the most heinous of all crimes".—[Official Report, 12/3/91; col. 164.]
A few sentences later, at col. 165, he stepped it up slightly by saying:
"However, the fact is that murder is the most heinous of all crimes".
That is an empty formula. Both in the report by your Lordships' Select Committee on murder and life imprisonment and in the two speeches which I have already wearied the Chamber with when this matter has been debated, there has been a reference to the observations made by my noble and learned friend Lord Hailsham in his judicial capacity when presiding over a murder case about two or three years ago, R. v. Howe. He said:
"Murder, as every practitioner of the law knows, though often described as one of the utmost heinousness, is not in fact necessarily so, but consists in a whole bundle of offences of vastly differing degree of culpability, ranging from brutal,
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cynical and repeated offences, like the so-called 'Moors murders', to the almost venial if objectively immoral, mercy-killing of a beloved partner".
Similar words were said about 15 years earlier by Lord Kilbrandon, as has already been said, in the case of R. v. Hyam. I have yet to understand the basis on which those judicial observations, which would be concurred with by every judge, are rejected by the Government. It totally overlooks the fact that in this country we have no categories of murder. We have tried in the past to isolate and define particularly serious categories of murder but failed to do so because the gravity of a murder cannot depend on one or two isolated factors. It may depend on many.
In paragraph 88 of the Select Committee's report, we pointed out that as the law now stands—and we suggested that it should be amended—a person who bona fide is acting in self-defence but kills when using more force than is justified is guilty o F murder. He is not guilty of manslaughter. How can one compare such a case with the terrorist who plants a bomb on an aeroplane intending to kill the 400-odd passengers but because of some happy coincidence it is discovered?
It has already been pointed out that murder includes not only the intent to kill but the intent to do serious bodily harm. How can one compare the murder which results from a man losing his temper in a public house—where the defence of provocation is not open to him—and jabbing his beer mug into the face of the person he is angry with, intending to do him bodily harm, but that is all, but it causes a haemorrhage and the man dies to the case of the sexual, brutal and sadistic attack by a man on a child? The two are not in the same bracket. To refer to all murder as being of the utmost gravity and the most appalling of all crimes is just not right. As has been pointed out, the result has been that the whole concept of the life sentence has become devalued. The public do not look on it in the manner in which the noble Earl, Lord Ferrers, suggested.
Finally, I make these two minor points. The noble Lord, Lord Renton, referred to Amendment No. 76A, which we have not yet reached. It is concerned with the life sentence tribunal.
Lord Renton: I think the noble and learned Lord will recollect that the noble Lord, Lord Nathan, when beginning his remarks on the amendment which we are primarily discussing at the moment, referred to this later amendment.
Lord Ackner: Certainly I recall that, but I am seeking to suggest to the Committee that we should take one thing at a time. There is an answer, I hope, to what my noble friend raised and I should like to give it, if it is not given in due course. We are on a quite separate self-contained question.
In relation to Scotland, as a member of your Lordships' Select Committee on Murder and Life Imprisonment, I attended a session in Edinburgh with the noble and learned Lord, Lord Morton, and others. At that session the Lord Justice General made apparent his anxiety that if the mandatory life sentence was removed in Scotland there would be a danger of an occasional far too lenient sentence being imposed which would cause public outcry and reduce

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the confidence in the administration of justice. Scotland does not have, as we do in this country, Section 36 of the Criminal Justice Act 1988, which enables lenient sentences to be the subject matter of an appeal so that they can, as a result, be put right. As my noble and learned friend the Lord Chief Justice said in his evidence to the committee, it would take very little time, particularly as it is essentially the High Court judges who deal with murder, for a tariff to be established and for guidelines to be established. The problem which my noble friend Lord Renton mentioned can be referred to at a later stage, because there is an answer to it.
If the theme of this important Bill is to be maintained then I respectfully submit that the amendment is irresistible.
The Earl of Dudley: I wish to say only a few brief words. Like many Members of the Committee I am very impressed by the weight and battery of legal opinion, from the Lord Chief Justice downwards, which is in favour of the removal of the mandatory life sentence. Looking at the matter from another point of view, it seems to me that there are only two categories of murder. One category is that in which the victim —perhaps it is a misnomer to call him the victim—welcomes the taking of life—the true mercy killing, the euthanasia killing. The other category of murder is that in which the victim had no wish to lose his life; indeed, where his life was taken from him as a matter of surprise and without any sense that that was going to happen. It is a tragedy for that person to lose his life.
That seems to me the only second category of murder. If that is so, surely there is no possible way in which murder of that kind can be qualified in the sense of the type of murder—how it took place, why it took place. The victim lost his life; which seems to me to run right across all categories of murder other than euthanasia killing. For that reason I cannot see that there is really any good sense at all in qualifying the type of sentence for that category of murder where the victim loses his life without wishing to do so as a true victim of murder.
4.45 p.m.
Lord Campbell of Alloway: I ask the Committee to accept my sincere apologies for not having been able to attend until this hour. I have been engaged in the courts. I was a member of the Select Committee and I should like to say a few words in support of this amendment.
I wish to make a short contribution as it is understood that the Government are fundamentally opposed to this amendment. As I understand it, the opposition on the part of the Government is based upon a curious process of reasoning with which I certainly am not able to agree. The reasoning goes that murder is the most serious of all crimes; then, as my noble friend the Leader of the House opines, anyone who takes a life should forfeit his own and that abolition of capital punishment, an effective deterrence, was only agreed as a trade-in for a mandatory
1576
life sentence. The reasoning continues that if one removes the mandatory life sentence and introduces a discretionary life sentence the public will not wear it, it removes the stigma and it removes an effective deterrence.
This reasoning lacks cogency. Not all murders are the most serious of crimes; for example, some domestic murders and the mercy killings. Apart from the armed robber—an important consideration—capital punishment affords little deterrence, and mandatory life of between nine and 11 years affords no deterrence whatever. The trade-in makes no sense today when some of us feel some relief that those recently acquitted on grounds of mistrial and false evidence are alive and not dead. The stigma lies in the conviction of murder but not in the sentence. Those convicted of murder are not the most dangerous of criminals so far as concerns the protection of the public.
It was concluded unanimously by the Select Committee that we could not put murder into categories, even if there were to be some statutory definition of murder. The noble and learned Lord the Lord Chief Justice and the noble and learned Lord, Lord Emslie, were of that opinion. If murder cannot be put into categories the only reasonable approach to sentencing is that proposed by the amendment. The Committee may know that the Parents of Murdered Children Group took the view that the mandatory life sentence afforded no deterrence and that they, with one voice, support this amendment.
Baroness Darcy (de Knayth): I support the amendment. I shall not rehearse all the arguments in favour of it. It would ensure, as the noble Lord, Lord Alexander, has said, that the real sentence that the court intends would be passed. I should like to add that, as very much the ignorant lay member of the Select Committee, I was very impressed by the detrimental effect that the indeterminant sentence had on all the people whose lives were touched by murder because of the uncertainty. The prisoners had no framework in which to live out their sentences. The prison officers found that it made their job more difficult. Both groups talked of the need to have light at the end of the tunnel.
Victim Support and the Parents of Murdered Children Group have already been quoted as supporting this amendment. The noble Baroness, Lady Platt, said that victims can no longer be heard. However, the families of the victims can be heard. Perhaps I may quote from page 501 of the oral evidence of our report where a member of Victim Support says:
"Why actually give it the term 'life' when it does not actually mean life … This contributes to people having perception of the criminal justice system as not being part of the real world and there being a gulf between the social and human issues around murder and how the law sees it. That makes people feel quite isolated from a system which they have always looked up to".
I should have thought that was a very good argument in favour of the amendments from that group of people whose lives have been so intimately touched by murder.
Lord Griffiths: I have served as a trial judge in the Queen's Bench Division for 10 years. I have also served as the vice chairman of the Parole Board. I have tried murders in all parts of England and Wales. They have been of an enormously differing variety of gravity. I have tried appalling terrorist planned slaughters of the innocent, such as the murder of the Israeli airline crew just off Grosvenor Square. I have, in the majority of the murders I have tried, been dealing with tragic breakdowns of domestic relationships when both the murderer and the victim were under the influence of drink. In each case I had to pass a life sentence. In all the domestic cases, I knew that a life sentence was a mockery because everyone, including the public, knew that the murderer would not serve a life sentence. But I was required, and did, write to the Home Secretary expressing my view of the offence and suggesting the deterrent and punitive element in the sentence.
I very much support the noble Baroness in her assertion about the difficulty it causes to a person being sent away, possibly to serve many years in prison—as they believe—without knowing that the judge has written to the Home Secretary suggesting a comparatively short period. In my experience such a suggestion is generally accepted. That seems to me to be a wholly unacceptable way to do things.
On the other hand, there have been cases, such as those I have instanced—notably the terrorist attack —which fully merited a life sentence and where such people should have served life sentences. However, I had no means of knowing whether that would be so. Therefore, to require the same sentence to be imposed on all who kill in circumstances which fulfil the definition of the crime of murder is to debase the life sentence.
I shall not rehearse all the other arguments which have been advanced in favour of the amendment and which were so ably put by other speakers. However, I should like to express my support for it.
The Lord Privy Seal (Lord Waddington): I would be failing in my duty if I did not, at the outset of my response, pay tribute to members of the select committee. No one who has read the report can doubt the enormous amount of work which went into its preparation. It is therefore with reluctance, and also I should say with some humility, that I have to tell Members of the Committee that I simply cannot agree with the conclusions which have been reached.
I did not take part in the debate on Second Reading on 12th March, but I was present in the Chamber. I was slightly amused when I heard the noble and learned Lord, Lord Ackner, say at one stage in his speech that the reluctance of the Government to abolish the mandatory life sentence was probably political. I suppose that it depends on what one means by the word "political". However, bearing all factors in mind, I believe that I probably have to plead guilty to that charge. But I do not feel any the worse for that.
The Government have to judge what the public reaction to abolition would be. The Government have done their best to make a proper judgment on the matter and they have concluded that the consequence of such a change would be extremely damaging to
1578
confidence in the criminal justice system and, in particular, in the judiciary. I shall shortly explain why that is so.
I also think that in the long run, if not in the short run, it would lead to pressure for people guilty of less serious murders (who under the changed regime would be the candidates for determinate rather than life sentences) to be kept in prison longer than they are at present. There would be continual allegations in the press that inadequate sentences were being passed by the courts. As a result of such pressures being brought on the courts, longer sentences would be imposed.
I do not believe that one can ignore the background to the introduction of the mandatory life sentence, to which reference has already been made. I trust that Members of the Committee will bear with me if I refer to it once again. Parliament was saying to those who did not approve of the abolition of capital punishment and to those who were nervous about the possible consequences of the abolition of capital punishment: "Don't worry. The unique nature of the crime of murder will still be marked by a special punishment. The murderer, because he has taken another life, will still surrender his own in a very important respect. He may not spend the rest of his days inside prison. He may be released on licence, but the sentence will last for life. He won't be released without the consent of the Home Secretary, who will be answerable to Parliament if things go wrong. And because the sentence will last for life, he will be liable to recall after his release if he does not behave and if it is thought that, once again, he has become a danger to the public."
That point was clearly made by my noble friend Lady Platt of Writtle in her speech. My noble friend Lord Alexander, whose expertise I admire—and I am sorry to have to disagree with him again—said that people did not put themselves in the hands of the state when they were sentenced to life imprisonment. But I believe that that is exactly what happens. The precise purpose of the sentence of life imprisonment is that, although they do not sacrifice their lives in the same way as they would if they were hanged, such people sacrifice their lives in the sense that whether they are released or not is a matter for the state.
I must point out to the noble Lord, Lord Harris of Greenwich, that, having spent many years in the Home Office first as a Minister of State and then for a far shorter period of time as Home Secretary, I cannot accept that these powers in the hands of the Home Office have been abused. I believe that they have been honestly used by Ministers. Such Ministers no doubt had in the forefront of their minds their duty to do all that they could in order to give proper protection to the public.
I revert now to what I said earlier. I believe that the sort of explanation which Parliament gave to the public many years ago at the time of the abolition of capital punishment (when a life sentence was substituted for capital punishment) was of some comfort to the public. I think that we should pause for a long time before going back on those assurances. Then, having done so, we should ask ourselves

1579
whether anything might happen after the disappearance of the mandatory life sentence which would in fact weaken confidence in the criminal justice system.
It is in that context that I should like to refer to a debate which took place in this Chamber on 5th February 1980 on the proposal in the Criminal Justice (Scotland) Bill that a judge on passing a mandatory life sentence should be required, rather than just permitted, to recommend a minimum period for which the convicted person should remain in custody. Some noble Lords who are here today will remember that debate. Lord Fraser of Tullybelton and the noble and learned Lord, Lord Keith of Kinkel—who I was glad to see in the Chamber earlier—both argued strongly against the proposition that judges should be required to state what they believed should be the minimum sentence that such a person should serve after being sentenced to a life term.
Lord Fraser said at col. 1248 of Hansard that in quite a number of cases the minimum period which the judge would have to state—that is, if he was mandated so to state—"might be very short". He referred to a stabbing case. It was not a mercy killing but a case of a young man who had stabbed another young man in a quarrel after there had been an argument about a girl friend, where he said that he would have recommended release in not less than two years. He said that if he had been required to say that that was his recommendation, that recommendation would have been greeted with uproar. Much better, he argued, that a formal sentence of life imprisonment should be imposed in that kind of case, and that it should be left to what he described as "the machinery" to see how long the young man should remain inside.
The noble and learned Lord, Lord Keith of Kinkel, made a similar point. The recommendation, he said, in the "run-of-the-mill" murder case would be nine, 10, or 11 years. That is far, far less than it would be in a really bad case, and the public would fix their attention not on the recommendation in the really bad case, but on those cases where a life sentence was passed and a recommendation was made for nine, 10, or 11 years. It would do no good whatever, said the noble and learned Lord, for confidence in the legal system. The noble and learned Lord was, with respect, quite right, and if he was right about mandatory recommendations what I am saying, with respect to this Committee, about the courts being given power to pass fixed terms of imprisonment must also be right.
Of course advocates of change concentrate on the true and rare mercy killing case, and they say that the law must be changed because of the alleged injustice in sentencing such a person to life imprisonment. Well, perhaps if there is an injustice that could be better met by a change in the definition of murder. The noble Lord, Lord Nathan, said during the course of his speech that the scope of murder was wide and led to distortion. I think he was saying that many people had not been tried or convicted of murder when murder had actually been committed, because those responsible did not want to have to face up to what would be the consequences for that person if that person were
1580
tried and convicted of murder. What he was saying, in effect, was that there are some who do indeed doubt whether we have got the definition of murder right.
Or course that was the logic of much of what was said by the noble Lord, Lord Harris of Greenwich, and it was almost expressly said by the noble Lord, Lord Macaulay of Bragar. I do not know whether or not the definition of murder ought to be changed, but certainly it would be one way of addressing this problem of injustice that has been referred to by some noble Lords. I do not know whether or not it is right to change the definition of murder, but I do know that we have a difficult question to ask ourselves.
If the definition of murder is still to cover mercy killing is it so terrible that a mercy killer should be sentenced to life imprisonment and then released pretty quickly by the Home Secretary? Would it not be far worse if the public were to feel that it was not being adequately protected, as a result of continual revelations in the press of allegedly weak judges giving two years in the kind of cases referred to by the noble and learned Lords, Lord Fraser and Lord Keith? Would it really inspire confidence in the administration of justice to allow, as suggested in paragraph 107 of the select committee report, the whole range of dispositions for murder from life imprisonment to probation, to a fine or an absolute discharge? I doubt it very much indeed.
The noble Lords, Lord Nathan and Lord Richard, referred to the Parents of Murdered Children Group. I read a piece in The Times yesterday, and I have just been handed a copy of it now. Quite clearly those who said that, as a result of what they had been told, they were in favour of the select committee report were saying that what they disapproved of so much was that people were being released far too quickly. They were not saying that they were in favour of the select committee report because they wanted people to be released more quickly.
Whether a change in the law would bring the result that those people want—namely, people landing in prison and staying in prison for very much longer—is a big question that really has hardly been addressed at all today. I doubt it, and I think that they would have doubted it had they, for instance, read the speech of Lord Fraser and had known for how short a period some judges think people should stay in prison for murder. I am not talking of mercy killings; I am talking of the kind of case referred to by Lord Fraser —the case of a run-of-the-mill stabbing, you might think. For example, one young man stabbing another to death after a quarrel about a girl friend.
I agree with the view of the Crown Prosecution Service. It is certainly not a question of all the evidence presented to the Select Committee being one way. One might have thought that at times listening to some of the speeches. I have to agree with the view of the Crown Prosecution Service as expressed at paragraph 112A of the Select Committee's Report, that public confidence in the criminal justice system would be eroded if the penalty for murder became discretionary.
I commend to the Committee the contention of the Crown Prosecution Service that

1581
"the public favours a strong reaction to the deliberate taking of one life by another",
and to allow individual judges the power to determine the appropriate sentence would often lead the public to question why a particular judge adopted a particular course of action.
Obviously one has to listen with the greatest respect to a speech when it is made by a Lord Chief Justice, and I have to say to the noble and learned Lord, Lord Lane, that I listened with the greatest attention to what he had to say. He said that it was really no more difficult for a judge to assess the right sentence in a murder case than in any other case. I would suggest to the Committee that in the worst cases of murder it is incredibly difficult to assess the public reaction to the release of a murderer 20, 30, or 40 years on.
One has to remember that it is a part of this whole bundle of proposals that when a life sentence is imposed the trial judge will, at the trial, have to state how long a person should have to stay inside to deal with the penal aspects of the case. I am not talking about danger to the public now, but I am saying again that it is incredibly difficult for anybody to assess now what the public reaction to the release of a terrible murderer will be 20, 30, or 40 years on. My noble friend Lord Renton is right to say that at the time of sentencing it is impossible to know how a person's character will have developed 20 or 30 years on.
There is another real difficulty. What is suggested is that in the worst cases life imprisonment would be passed with the judge specifying the penal term with eligibility for parole at the half-way mark. I wonder what the Committee has in mind for the really bad, wicked beyond belief, type of case. The noble Earl, Lord Longford, states his view in Amendment No. 69C. However, I do not think it begins to equate with what the public expects and is entitled to expect. The public would be absolutely amazed to hear that anyone thought that a penal sanction of 20 years, reduced as a result of the operation of parole to 10 years, could be the maximum penal sanction in a murder case.
The Earl of Longford: Perhaps I may interrupt the noble Lord. He keeps returning to the idea of public reaction, but I believe in justice. That is what this House stands for and certainly what the judiciary stand for. They do not look over their shoulders all the time at what the Sun newspaper tells them.
Lord Waddington: With the greatest respect to the noble Earl, neither should we be so arrogant as to say that we know better than everyone else what is justice. Parliament has always paid regard to what ordinary people think in deciding how sentences should be passed in the courts. That has always been the case. It will be a sad day indeed if we, from our Olympian heights, decide that 10 years is an adequate punishment for murder. That could not possibly equate with the views of an ordinary man in the country. I should have thought that the public may have in mind, in the wicked beyond belief case, a penal term in the region of 60 years. After all, that would only be 30 years after the present or proposed system of parole has been brought into effect. Sixty years
1582
would not be thought extraordinary at all. However, would judges in this country be comfortable with having to indicate sentences of that length? I do not know of a single sentence of that length ever having been passed by a judge.
Members of the Committee must recognise that we are entering uncharted territory here. If we enter the territory where judges either have to state determinate sentences or pass life sentences and then a penal sanction which is subject to parole, it may be that certain judges have a very different idea from members of the public as to the appropriate determinate sentence or the penal sanction to be stated when the life sentence is imposed.
It is for the proposers of the amendment to say how, facing these difficulties, they argue that public confidence would in no way be dented by the abolition of the mandatory life sentence and, incidentally, why we would not be forced down the road of inordinately long determinate sentences for some less serious cases as happens in America.
I fully appreciate the care with which the select committee considered the issue. I can assure the Committee that the Government considered with great care the arguments advanced before announcing their conclusion in paragraph 6.15 of the White Paper. Of course, murders vary in their heinousness; of course, there are other terrible crimes. But most people look upon the taking of another person's life as uniquely horrible. That is why, when the death penalty was abolished, it was decided that the alternative sentence put in its place had to be one which continued to mark out the unique wickedness of the crime of murder. That is why we have the mandatory life sentence.
When the restoration of the death penalty has from time to time been considered in another place, it has always been voted upon against the background that the alternative to the death penalty is the mandatory life sentence. I believe that if we abandoned the mandatory life sentence for murder, it would greatly damage public confidence in the criminal justice system and its ability properly to punish the most grave of crimes. I agree with my noble friend Lady Platt of Writtle that all the wrong signals would go out to the public. I cannot advise the Committee to accept these amendments.
5.15 p.m.
Lord Richard: Before the noble Lord sits down at the end of his revealing speech, is he seriously trying to justify the retention of the mandatory sentence of life imprisonment for murder on the basis that there is so little public confidence in the actions of the judiciary in this country that the effects of their decisions have to be kept secret from the public? If that is his argument, it is a pretty poor one.
Lord Waddington: I have never heard such an extraordinary misrepresentation of what I said. If tomorrow the noble Lord cares to read carefully what I said, I am sure he will realise that he is not doing justice to my speech.
Lord Ackner: Before the noble Lord sits down, perhaps I may ask whether he has read paragraph 178 of the Select Committee report. The last part reads:
"After the introduction of a discretionary sentence for murder, the Committee anticipate that the average length of time served under a life sentence would be considerably longer than it is now. The Committee expect that their proposals will lead to very lengthy penal sanctions being set in the most grave cases. In some cases, this may result in imprisonment for the rest of the prisoner's life".
Lord Waddington: I had the opportunity of discussing this matter with the noble and learned Lord when he came to see me at the Home Office some months ago. We had to disagree then, and I disagree now. That may have been what the select committee thought would be the consequences of its proposals. However, there is much evidence to show that the select committee was entirely wrong. I gave some of that evidence today and some is clearly contained in the speech made by Lord Fraser some years ago and that made by the noble and learned Lord, Lord Keith, to which I also referred.
Lord Mishcon: Perhaps the noble Lord the Leader of the House will forgive me for intervening. Before he finally sits down, will he deal with two short questions? He said that he did not like arrogance. Would the Government feel that it is not arrogant to go against the advice, first, of one of your Lordships' select committees which has made the recommendations to the House, and secondly, the Lord Chief Justice, two Lords of Appeal in Ordinary and other judges who have spoken in this debate?
Lord Waddington: I cannot agree with the proposition that a select committee's report—however illustrious the Members who composed the report—should be accepted rather than the view of the whole House. It is now for the whole House to decide whether the Members of the select committee, who tried hard, at the end of the day came out with the right result. I happen to believe that they did not. The noble Lord knows full well that although a majority of judicial opinion may be on the side of the select committee, a sizeable minority disagrees with him.
Lord Nathan: It would be quite wrong for me to attempt either to summarise the points which have been made or to make a long speech at this stage of the evening. I do not propose to do either. All that the noble Earl, Lord Longford, says in this Chamber is given careful consideration, but the noble Lord the Leader of the House went a little far in suggesting that the noble Earl's proposal, which has not yet been considered by the Committee, with regard to parole in the context of another amendment, is already the law. It has yet to be considered and no doubt will be, most carefully, when the time comes.
One can have many views on the definition of murder. In the committee we debated long and hard whether it was possible with clarity and certainty to define the crime of murder in such a way as to create the kinds of categories which, from this debate, it appears may be desirable. We reached a negative conclusion on that. As I said in my opening remarks, we therefore decided that the way to deal with the
1584
matter was to give to those responsible for sentencing the discretion to impose a sentence appropriate to the murder and not to attempt a task which we found was an impossibility.
It is rather late after the debates of 1957 and 1965 to go back to the origin of the mandatory life sentence in the context of the abolition of capital punishment. Those debates took place a long time ago and many of us were not concerned with these matters at that time.
The noble Lord the Leader of the House referred to the Home Secretary's responsibility to Parliament in relation to the administration of justice. He was correct to refer to that. The difference between us is that I consider that the Home Secretary's responsibility to Parliament is in relation to the administration of justice and not in relation to the punishment meted out to certain prisoners. The latter measure has been avoided in all civilised societies over centuries and is much to be deplored.
I return to the three main headings under which I made my opening remarks. I believe the mandatory sentence leads, and has led, to vesting in the Executive, which operates in secrecy, the power of sentencing individual prisoners. I believe it is most unfortunate and objectionable that that should be the case. Further, the scope of the crime of murder is wide. I suggest that however much attention is paid to the possibility of redefining it under expert guidance— perhaps of the noble Lord the Leader of the House —it will still be wide because it is not only the crime itself but the circumstances in which it is committed which must be relevant to an appropriate sentence. Therefore I do not believe that process provides a satisfactory route to follow.
The fact that the crime of murder is wide in scope —no one in this debate has questioned that—and that life sentence is at present mandatory has led to the distortions to which I have referred. I believe that public confidence in the administration of justice in this field would be enhanced by the abolition of the mandatory life sentence. All of us wish to promote public confidence. The question between the noble Lord the Leader of the House and other Members of the Committee is where public confidence lies. I have no doubt myself that public confidence in the administration of justice would be greatly enhanced by the abolition of the mandatory life sentence. I have said quite enough at this stage and the time has come to take the opinion of the Committee.
5.23 p.m.
On Question, Whether the said amendment (No. 69ZA) shall be agreed to?
Their Lordships divided: Contents, 177; Not-Contents, 79.

Division No. 1

CONTENTS

Ackner, L.

Ardwick, L.

Acton, L.

Ashbourne, L.

Addington, L.

Attlee, E.

Airedale, L.

Aylestone, L.

Aldington, L.

Baldwin of Bewdley, E.

Alexander of Weedon, L.

Beloff, L.

Allenby of Megiddo, V.

Birk, B.

Ampthill, L.

Blackstone, B.

Annan, L.

Bledisloe, V.

1585

Bonham-Carter, L.

Kirkhill, L.

Borthwick, L.

Kissin, L.

Boston of Faversham, L.

Lane, L.

Bottomley, L.

Listowel, E.

Bridge of Harwich, L.

Llewelyn-Davies of Hastoe, B.

Brightman, L.

Lloyd of Hampstead, L.

Brigstocke, B.

Longford, E.

Brooks of Tremorfa, L.

Lovell-Davis, L.

Buckmaster, V.

Lowry, L.

Callaghan of Cardiff, L.

Lytton, E.

Campbell of Alloway, L.

Macaulay of Bragar, L.

Campbell of Eskan, L.

McCarthy, L.

Carmichael of Kelvingrove, L.

Macleod of Borve, B.

Carnegy of Lour, B.

McNair, L.

Carnock, L.

Mais, L.

Carter, L.

Marsh, L.

Castle of Blackburn, B.

Mayhew, L.

Cledwyn of Penrhos, L.

Mersey, V.

Cocks of Hartcliffe, L.

Mishcon, L.

Colville of Culross, V.

Monkswell, L.

Cork and Orrery, E.

Monson, L.

Craigavon, V.

Monteagle of Brandon, L.

Craigmyle, L.

Morris of Castle Morris, L.

Dacre of Glanton, L.

Morris of Kenwood, L.

Darcy (de Knayth), B.

Morton of Shuna, L.

David, B.

Munster, E.

Dean of Beswick, L.

Murray of Epping Forest, L.

Derwent, L.

Nathan, L. [Teller.]

Donaldson of Kingsbridge, L.

Nelson, E.

Donaldson of Lymington, L.

Nicol, B.

Donoughue, L.

Northfield, L.

Dormand of Easington, L.

Ogmore, L.

Elibank, L.

Oram, L.

Erroll, E.

Park of Monmouth, B.

Ewart-Biggs, B.

Pennock, L.

Ezra, L.

Peston, L.

Falkender, B.

Pitt of Hampstead, L.

Falkland, V.

Prys-Davies, L.

Fisher of Rednal, B.

Quinton, L.

Foot, L.

Rankeillour, L.

Gainsborough, E.

Rea, L.

Gallacher, L.

Rees, L.

Galpern, L.

Richard, L.

Geddes, L.

Ritchie of Dundee, L.

Gladwyn, L.

Rochester, L.

Goff of Chieveley, L.

Rodney, L.

Graham of Edmonton, L. [Teller.]

Russell, E.

Ryder of Warsaw, B.

Greenway, L.

Sainsbury, L.

Grey, E.

Saltoun of Abernethy, Ly.

Griffiths, L.

Scanlon, L.

Hailsham of Saint Marylebone, L.

Seear, B.

Sefton of Garston, L.

Halsbury, E.

Serota, B.

Hampton, L.

Shaughnessy, L.

Hanworth, V.

Slim, V.

Harris of Greenwich, L.

Stallard, L.

Hatch of Lusby, L.

Stedman, B.

Havers, L.

Stockton, E.

Henderson of Brompton, L.

Stoddart of Swindon, L.

Hertford, M.

Strabolgi, L.

Houghton of Sowerby, L.

Taylor of Blackburn, L.

Howe, E.

Tenby, V.

Howie of Troon, L.

Terrington, L.

Hughes, L.

Thomas of Gwydir, L.

Hunt, L.

Thomson of Monifieth, L.

Hutchinson of Lullington, L.

Thurlow, L.

Hylton, L.

Tordoff, L.

Hylton-Foster, B.

Tryon, L.

Irvine of Lairg, L.

Underhill, L.

Jacques, L.

Varley, L.

Jay, L.

Wedderburn of Charlton, L.

Jeger, B.

Wharton, B.

Jenkins of Putney, L.

White, B.

Kilbracken, L.

Wigoder, L.

Kilmarnock, L.

Wigram, L.

Kinloss, Ly.

Wilberforce, L.

1586

Williams of Elvel, L.

Winterbottom, L.

Willis, L.

Worcester, Bp.

Wilson of Langside, L.

Wyatt of Weeford, L.

Winchilsea and Nottingham, E.

NOT-CONTENTS

Alexander of Tunis, E.

Hives, L.

Arran, E.

Hooper, B.

Astor, V.

Jeffreys, L.

Auckland, L.

Kemsley, V.

Balfour of Inchrye, L.

Kimball, L.

Belhaven and Stenton, L.

Kinnoull, E.

Belstead, L.

Knollys, V.

Blake, L.

Lauderdale, E.

Blatch, B.

Layton, L.

Boardman, L.

Long, V.

Boyd-Carpenter, L.

Mackay of Clashfern, L.

Braybrooke, L.

Mancroft, L.

Brookeborough, V.

Massereene and Ferrard, V.

Brougham and Vaux, L.

Merrivale, L.

Butterworth, L.

Monk Bretton, L.

Caithness, E.

Mottistone, L.

Campbell of Croy, L.

Mountevans, L.

Carr of Hadley, L.

Mowbray and Stourton, L.

Cavendish of Furness, L.

Murton of Lindisfarne, L.

Cockfield, L.

Nugent of Guildford, L.

Coleraine, L.

Orkney, E.

Colnbrook, L.

Pender, L.

Constantine of Stanmore, L.

Platt of Writtle, B.

Cox, B.

Reay, L.

Davidson, V. [Teller.]

Renton, L.

Denham, L. [Teller.]

Rochdale, V.

Dudley, E.

Salisbury, M.

Elliot of Harwood, B.

Savile, L.

Ferrers, E.

Seccombe, B.

Foley, L.

Skelmersdale, L.

Fraser of Carmyllie, L.

Strathmore and Kinghorne, E.

Fraser of Kilmorack, L.

Sudeley, L.

Gainford, L.

Trumpington, B.

Gardner of Parkes, B.

Ullswater, V.

Glenarthur, L.

Vaux of Harrowden, L.

Gridley, L.

Waddington, L.

Harmsworth, L.

Wise, L.

Hemphill, L.

Wolfson, L.

Henley, L.

Young, B.

Hesketh, L.

Resolved in the affirmative, and amendment agreed to accordingly.
5.33 p.m.
Lord Nathan Lord Nathan moved Amendment No. 69A:
After Clause 22, insert the following new clause:
("Court's duty on passing sentence of life imprisonment
.—(1) Where a court sentences a person to imprisonment for life it shall state in open court—

(a) its reasons for passing that sentence; and

(b) the sentence of imprisonment the court would have passed ("the penal term") if it had not been open to it to pass a sentence of imprisonment for life and it had not taken into account the risk of serious harm to the public if the offender were to be released after a determinate number of years' imprisonment.

(2) The penal term shall be subject to appeal against sentence in the same manner as the sentence of imprisonment for life actually passed on the offender.").
The noble Lord said: In moving Amendment No. 69A I shall also refer to Amendments Nos. 69B to 69D, 76A to 76F and 77A to 77C which have been grouped together. That is a convenience for debate but I should state that Amendment No. 69A which relates to judicial procedures to fix the penal term and Amendments Nos. 76A, 76B and 76D relating to judicial procedures as to release are not mutually

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dependent and should therefore be decided upon separately. Amendments Nos. 77A to 77C are consequential.
Amendment No. 69A implements one of the recommendations of the Select Committee. The clause introduced by the amendment would apply whenever a court awards a life sentence, whether for murder or for any of the other offences for which life imprisonment is the maximum. These include, in England and Wales, manslaughter, armed robbery, arson and some sexual offences and, in Scotland, all common law crimes. Approximately 20 per cent. of life sentences are imposed for offences other than murder.
There are two main sets of circumstances which justify the imposition of a life sentence for murder and both may be present in any particular case. The life sentence should be available both for especially heinous murders and for those where there would be a degree of uncertainty about the risk, by reason in particular of a prisoner's mental condition, of releasing him at the end of a determinate sentence. Those circumstances conform broadly to the criteria for imposition of life sentences for crimes other than murder which presently prevail.
Where a life sentence is awarded the judge should not only specify his reasons for imposing that sentence rather than a determinate sentence but should also specify in open court the period of years which he considers necessary to satisfy the requirements of retribution and deterrence; namely, the penal term. When the judge imposes a life sentence on the ground of risk the penal term will be the period of years he would have imposed in the absence of that factor. Where he imposes a life sentence because of the heinousness of the offence the penal term should be the period of years he would have imposed if the life sentence were not available to him. The reason why the judge should not take account of the risk of serious harm to the public is because that risk is taken care of by the nature of the life sentence itself.
The penal term set by the judge should not be subject to revision by Ministers but it should be subject to appeal by either side, as in the case of sentences for all serious crimes since 1988. That judicial and open process for setting the penal term would be a substitute for the present system, which has given rise to much criticism.
Life imprisonment does not usually mean imprisonment for the remainder of the convicted offender's life. The procedures currently used in England and Wales, which have been much canvassed today, are that after a mandatory life sentence has been awarded in cases of murder the trial judge, through the Lord Chief Justice, writes privately to the Home Secretary recommending the period of detention necessary to meet the requirements of retribution and deterrence. Neither the public nor the prisoner is or ever becomes aware of the contents of that letter. The Home Secretary or, as the select committee was informed to its surprise, a junior Minister determines the period of detention, often referred to as the tariff.
The select committee was given evidence by the Home Office that during the six months from April to September 1988 in 63 of 106 mandatory life cases the Home Secretary set a higher tariff than that privately indicated to him by the trial judge. In 34 cases he set the same and in nine cases a lower tariff. Further statistics provided by the Home Office, which were referred to by the noble Lord, Lord Harris, in his earlier remarks, indicate that changes of a similar character were made in 1984 and 1986 although the figures are somewhat different.
Neither the Home Secretary nor a junior Minister has heard the evidence or seen the witnesses. The procedure is carried out in secrecy, not only as regards the judge's recommendation but also as to the reasons for the tariff decided upon by the Home Secretary. It is therefore impossible to know whether there is any degree of consistency as between one prisoner and another. That inevitably leads to a sense of dissatisfaction and injustice, not only among the public but among prisoners themselves who are left in a state of total ignorance.
It is not a system which can be modified or tinkered with. It requires radical change; hence the provisions of the amendment. These place responsibility for setting the penal term with the trial judge in open court where counsel on each side can be heard on the matter and the decision is made in the open so that consistency and justice between one prisoner and another will be in the public domain. That decision will be open to appeal by either side, as it has been since 1988 in the case of sentences for all serious crimes. The danger, perceived by some, of too lenient sentences will then be open to review. It is perhaps strange to make that point as much criticism of the judiciary is directed to the too long prison sentences which judges award rather than the fact that their sentences are too lenient.
I believe that this procedure is correct. As the grouping has taken place and as it may assist in abbreviating the debate, I shall now turn to the quite separate amendment relating to release decisions. However, I should say at this point that the amendment to which I have so far referred stands on its own feet and is not dependent on that related to release decisions. Nor is the amendment relating to release decisions dependent on the amendment to which I have just referred. I now refer to Amendments Nos. 76A, 76B and 76D, all of which relate to the proposed Life Sentences Review Tribunal. They would implement the recommendations of the select committee relating to release decisions for those serving life sentences.
At the expiration of the penal term the question whether the prisoner should be released or further detained rests upon a consideration of whether the prisoner would present a risk of reoffending on release. The select committee considered that the decision should be an entirely judicial one in which the Home Secretary and the Parole Board should not be involved. We considered that the court system is not well adapted to consider those matters and therefore recommended that a judicial tribunal should be established to consider life sentence release and recall

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decisions after the expiry of the penal term. The tribunal should be composed of a High Court judge, a consultant psychiatrist and a chief probation officer. That point is dealt with in Amendment No. 76D and would be incorporated in a new schedule.
Paragraph 8 of that new schedule provides that the Lord Chancellor may make rules of procedure by statutory instrument. The Committee will note that, under paragraph 8(2) of the new schedule, the rules may make provision for providing to the prisoner copies of documents relevant to his case and relevant oral information except when the tribunal considers that it would not be in the public interest to do so.
Further, the rules may make provisions for the tribunal to furnish reasons for its decisions. Those provisions tie in with those which would be in the new clause in Amendment No. 76B, particularly subsection (5) which prescribes that the prisoner shall have certain rights. Those would include making representations to the tribunal and being legally represented, and that he should be given information to enable him to exercise those rights effectively. The Committee will know that at present, under the release procedures, the prisoner has none of those rights in respect of the Parole Board or the Home Secretary.
Under Amendment No. 76B, the Home Secretary would be bound to refer the case of every life prisoner to the tribunal for review not later than two years before the expiry of his penal term. The tribunal may direct the release on licence of a life prisoner convicted of murder—but only on licence in cases of murder—so decisions relating to the release of murderers are, as at present, that release can only be on life licence. That licence can be revoked, as at present, by the Secretary of State who in that event would refer the recalled case to the tribunal for further consideration. At present, the Secretary of State may recall a prisoner released on licence and must refer the case to the Parole Board, so the position is not radically different in that: respect.
If the tribunal determines not to direct the release of a life prisoner his case must be referred back to the tribunal for further consideration within a maximum period of three years. The object of that is to ensure the continued detention of the prisoner after the penal term is regularly reviewed, as required by the European Convention on Human Rights.
It seemed appropriate and convenient, while dealing with those provisions relating to life prisoners convicted of murder, to deal at the same time with procedures relating to the release of life prisoners convicted of an offence other than murder, particularly in the light of the condemnation of the United Kingdom by the European Court of Human Rights in the case of Thynne and others and the earlier case of Weeks.
Therefore, in the context of life prisoners convicted of an offence other than murder we provide in the amendment that the tribunal may direct, under Clause 2(b) in Amendment No. 76B, that he be released on licence or unconditionally and, in the case of such life prisoners, may direct the length of time that the licence is to remain in force. The Committee may wish to look particularly at subsection (7) in that context. If the
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tribunal gives no direction as to the length of the licence it shall review the licence at three yearly intervals and either terminate the licence or direct the time for which it is to remain in force. The purpose of the provisions relating to life prisoners is to ensure that their further detention is kept constantly under review.
I emphasise yet again that the provisions are not applicable to life prisoners convicted of murder because the licence will continue for life and the prisoner will therefore be subject to recall throughout his life, as at present. The amendments will bring under judicial control functions presently exercised in his discretion by the Home Secretary. They will bring the law and practice in this country into conformity with the European Convention on Human Rights. I understand that I should not move the other amendments at this stage. I shall confine myself to moving Amendment No. 69A so that it is possible to move the other amendments at the appropriate time. I beg to move.
5.45 p.m.
The Earl of Longford The Earl of Longford moved, as an amendment to Amendment No. 69A, Amendment No. 69B:
After Clause 22, Line 7, leave out from; "life") to end of line 9.
The noble Earl said: I rise to offer general support for what may be called the Nathan principles—the principles that were unfolded in the committee's report and presented by the noble Lord, Lord Nathan, and his allies. If those general ideas were given effect to, life prisoners would be treated more humanely. I do not say that they are all treated badly now, but in my experience some are treated abominably. To anyone who asks me whether I speak up for the victim, perhaps I may point out that I first proposed a Motion in favour of the victim 25 years ago and that I introduced a Bill which had a Second Reading here 10 years ago. If anyone in the Chamber can say that they have done more for victims than I have, let them inform me of it. There is no clash, in my view, between trying to do the Christian thing on behalf of prisoners and victims.
In the amendments I deal with that residue of prisoners who are given life sentences under the arrangements which I hope are likely to be established. I shall not therefore deal with all those who receive determinate sentences. I shall deal only with those who receive life sentences. I do not intend to cover the cases of those who might be unjustly convicted; nor do I intend to examine the cases of those who are, or may be thought to be, mentally disordered. These are important issues, but they do not arise now. I take for discussion, to focus thought, the prisoners who have committed grave crimes, perhaps very grave crimes, which under the new arrangements will attract life sentences. Some people may say that such offenders are beneath consideration. I hope that that will not be said by many in this Chamber. A few old-timers may remember Lord Chief Justice Goddard saying in the 1950s debates on capital punishment that such a man should be destroyed. That view may be held in some quarters. For perhaps

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rather perverse reasons I read the Sun newspaper every day and that may be the view of many of those who write for that newspaper. I am aware that that view exists. I regard it with absolute horror.
I thought I heard in the debate two days ago a noble Lord refer to prisoners in general as villains. I thought I heard him say it twice, but my hearing is somewhat defective. If we are to speak of prisoners as villains, we are a long way from civilised discussion. However, I do not believe that that is the general attitude of this Chamber.
Most people, whether Christians, humanists or whatever, regard every prisoner, even one who has done terrible things, as of infinite worth because he is a human being. In Christian terms he is infinitely dear to God. But even if we leave God out of it and consider the matter simply in humanist terms, he is someone infinitely precious. Most of us, again whether Christian or humanist, think of them as sinners. The attitude that we are the goodies and they are the baddies who are to be trodden under is not one which will commend itself to the Chamber.
Nevertheless, I talk now of people who have done terrible things. For the sake of argument I refer to men who have committed several murders. I do not refer to any individual although I have known many murderers. Let us assume someone has committed a number of murders. I agree that in that case a life sentence is the only sentence which is appropriate in human terms.
I am ready to agree that when the penal term is concluded and that man comes up for judicial review he could still be regarded as too dangerous to release. In theory it could happen—although I do not personally believe that it ever has happened—that such a person time after time would come before the judicial tribunal and be considered too dangerous to release. That would certainly apply to a number of patients in Broadmoor, for example. Admittedly, there are some people who are too dangerous ever to release. I know one who was in prison for 20 years. He is no longer a prisoner but a patient in a special hospital; he does not expect ever to be released. Such people exist.
However, let us leave aside the mental cases. In theory it could happen that when the time arrived for someone who had done terrible things to come before a tribunal it was found that he was too dangerous to release. I am ready to accept that as an outside possibility, but it is guarded against by the arrangements for the tribunal. The whole question of dangerousness is covered by the tribunal. So we are left asking ourselves what should be the penal period before the man or woman is allowed to go before the tribunal. This is a matter over which people will differ as to the number of years. Personally, when I go before Saint Peter, which is likely to happen to me rather sooner than to most Members of the Committee that I see around me—perhaps in the almost immediate future—and he asks, "What did you do down there?", if I were to reply, "I played my part in sending a man to prison for many more years than 20", then I should expect to receive an even
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longer spell in purgatory than would normally come my way. In other words, I should be ashamed of myself.
We are laying down rules which will be applied by judges and in that sense we are making the decisions ourselves. We have to ask ourselves: do we honestly think that we ourselves are so virtuous that we are entitled to say that someone else is so bad or wicked that he or she must serve 20 years before even being allowed to go before a tribunal that will decide whether he or she is dangerous. I view that with contempt. I do not despise any human being. I am not in a position to do so. But I despise certain positions, and I view that one with contempt. I therefore believe that at whatever period one places the exact number of years I would say 20 years but others may have a different view—there must be a reasonable limit. After that limit, if the question arises of whether the man is dangerous, then the tribunal in a judicial spirit should decide it.
There are two other amendments tabled in my name. One seeks to remove words from the second part of the earlier amendment. Possibly it is simply my lack of intelligence. If so, it is a lack of intelligence shared fairly widely. I asked a number of people about it. None of them could make head or tail of the latter part of the amendment. I see one of the greatest of the Law Lords nods his head. If he cannot understand it I am quite certain that I am not able to do so. Perhaps we would be happier without those words. It would be a simple, straightforward issue. One asks how much the crime merits and after a certain number of years the tribunal will decide whether it is safe to let the person out.
Perhaps I may say without offence that on some programme the other day I was asked whether I believed that there were evil men or women. I replied no; I personally did not think that there were evil men or women but that there were some men and women who did evil things and that we had to protect ourselves against them. I think that in this country we are, possibly in a high-minded way, doing something which in my eyes is evil. We are keeping people in prison for 30 years. By chance I met someone in prison the other day who had been there for 50 years. I could hardly believe it, but it was true. We are keeping people in prison, to my personal knowledge, for 30 years at least, without there being any chance for them to make representations to anybody and without any reasons being given. I regard that as wicked.
I move the amendment in that spirit. I am not dogmatic about the number of years being 20. It seems to me an outside limit but it can be altered. Perhaps my other proposals can be improved upon at this or some later stage. I stand absolutely upon the principle that if we are to have a tribunal we must know when it will meet and that it must meet within a foreseeable time. I beg to move.
Lord Harris of Greenwich: I take it that we are discussing at the same time the other amendment in the name of the noble Earl. It is not for me to speak on behalf of the select committee. All I can say is that we examined with some care whether a maximum should be put upon the penal term. We came to the

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conclusion that it should not. That is my view. I do not think that it would be appropriate for the maximum of the penal term to be 20 years. One has only to look at the character of some of the possible offences which might have to be examined to see that that is clear.
Let us take a case which we all know—the Lockerbie tragedy. Could one say in the case of an incident in which 200 or more people lost their lives that the maximum penal term would be 20 years? That would be wholly unacceptable. For that reason, speaking entirely for myself, I should be opposed to it.
Perhaps I may deal with one other matter at the same time. As I understand it we are now discussing both the noble Earl's amendments in the context of the amendment moved by the noble Lord, Lord Nathan. As the noble Lord pointed out in his speech, one benefit would be that the creation of the tribunal would lead to the implementation of the judgment of the European Court of Human Rights in the case of Messrs Thynne, Wilson and Gunnell. That decision was made at the end of last year but all concerned, including those in the Home Office, knew perfectly well on the basis of their experience before the European Commission of Human Rights that the Government were bound to lose their case. Those three men were awarded sentences of life imprisonment for offences other than murder. The European Court of Human Rights held that the decision on their release would be a matter for a judicial tribunal.
As I understand it, when pressed upon the matter in the House of Commons the Government indicated that they had not had time to consider the matter adequately. Some of these men have now been held in custody for very substantial periods of time. One of them is 74. It seems to me wholly unreasonable that months after a decision of the European Court of Human Rights the House of Commons suggested that it was too soon to make a decision. That decision would not concern the mens's release; a tribunal might well decide not to release them because of their mental conditions. It seems quite wrong that where a clear decision has been taken by the European Court of Human Rights, and where we have a treaty obligation to implement those decisions, that in the House of Commons, the Government's position was that it was too soon to legislate.
The creation of a tribunal will deal with the situation arising from those three life sentence prisoners, none of whom was convicted of murder. I welcome the amendment.
6 p.m.
Lord Stallard: I briefly support what has been said by previous noble Lords. I speak not from a legal standpoint but from my experience with and interest in these cases. It may be known that for many years I have corresponded with various Home Secretaries in different governments about transfer of prisoners from one prison to another in order to minimise the suffering of relatives who have to travel long distances; and for reasons associated with benefits, social security passes, warrants and so on. I have come across the problems of consistency which were mentioned by the noble Lord, Lord Nathan.
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In the Northern Ireland situation, for instance, I know a number of prisoners during whose sentences the criteria for parole applications have been changed at least six times since 1973. In one case six prisoners received the same sentences at the same court at the same time by the same judge. Five of them have been released at different times under different criteria. The five having been transferred to another prison to be near their relatives, and so on, were released. The sixth prisoner sought parole all the time for the same reasons under the old criteria. Because new criteria are still in operation from last year, he has been caught by the latest criteria. His next date for review will be 1995. That means that by the time his appeal is dealt with and he has a release date he will have served almost 25 years. There was no mention in public of how long the service was to be. That is the second point with which I agree. It should be stated publicly at the time. People should know the tariff. "Tariff" is the word used mainly in these considerations. The Lord Chief Justice assessed the tariff for one of the prisoners, and that operated. I assumed that the same assessment applied to the others but I have been unable to find out. There is no public knowledge. It is almost like a raffle.
It creates a certain incredibility and takes away the confidence of people in the system of justice if such changes can occur at the whim of someone far away and for whatever reasons. For a number of reasons it may be necessary to keep one fellow in prison longer than another; or, because circumstances outside might be dangerous, one person may be re leased but not another. But nobody is told why. It is just stated, "Because of changing criteria you will not now be released. Your next date for review is 1995, and God knows what will happen after that".
I do not believe that that is good enough. I support the noble Lord's amendment.
Baroness Platt of Writtle: I support Amendment No. 69A. I do not refer to the other grouped amendments. I agree with the noble Lord, Lord Nathan, that they should be considered separately. I ask the noble Lord the Lord Privy Seal to consider the matter sympathetically.
For me, the amendment has the great attraction of justice being seen to be done. The sentence is stated in open court with reasons and is subject to appeal. In placing the case before a higher court, the prisoner has to face the possibility of a stiffer sentence as well as the possibility, and the hope in his mind, of greater leniency. Whether appealing or not, the prisoner knows where he or she stands over the minimum term and the reasons why that term has been set. After that the matter of risk has to be considered either, as at present, by the Home Secretary or by the judicial tribunal suggested in future amendments. The matter of risk is, to a certain extent, in the prisoner's own hands to demonstrate reform and therefore on release to be deemed free of risk in particular after the initial period of supervision. Then he or she may with good behaviour be free on licence for the remainder of their lives.
I know that the amendment is connected with the decision of the European Court of Human Rights and the subsequent action of the Government in

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considering their response to that decision. Whatever action is finally contemplated, I hope that my noble friend will consider sympathetically the suggestion outlined in Amendment No. 69A as it stands in its entirety with its strong sense of natural justice.
Lord Morton of Shuna: I too support the amendment. As a member of the select committee, the feeling that we experienced in every prison we visited was of the uncertainty and lack of knowledge about what was happening which added to the difficulties in the prison. We gained that feeling from prison governors, prison officers and prisoners. They did not know what was happening. Prisoners did not know when they were to get out. They did not know the Home Secretary's recommendation.
I suggest it is appropriate that those matters should be known by the prisoner. There is a move now to openness in judicial decisions and in decisions generally. I suggest that that must be encouraged. The concept has been published recently by the governor of one of the biggest Scottish prisons. Dr. Coyle, the Prison Governor of Shotts and previous governor of Peterhead Prison has just had published a book in which he states:
"Justice is a delicate flower; justice for those in prison is the most delicate flower of all. One of the basic criteria for justice is that it should not be arbitrary, that it should be based on premises which are open to scrutiny. We face a real danger that many of the processes in our penal system are not open to that scrutiny".
The select committee found that to be the case in particular in relation to decisions about how long those sentenced to life should serve and the deep feeling of injustice between one life sentencer and another that A got out and B did not. If the dates were given in open court, and were open to appeal, it would be a much better system.
I turn to Amendment No. 69B tabled by the noble Earl, Lord Longford. I am not sure what its effect would be. Let us suppose that the relevant words have been removed from Amendment No. 69A. If I were then to be sentencing someone to life imprisonment I should have to announce the sentence of imprisonment that I would have passed if it had not been open to me to pass a sentence of imprisonment for life. By taking out the reference to danger I should have to consider what sentence was appropriate considering the prisoner's danger to the public. I believe that would have precisely the opposite effect to what I suspect the noble Earl wishes to achieve.
I have in mind the case of a man convicted of murdering old ladies after raping them. Psychiatric evidence showed that he had sexual urges which would continue until fairly late in his life. He was then 20 years of age. If in sentencing that person under the proposed set-up I took that matter into account I should have to pass a sentence of 40 or 50 years because I could not take into account the danger. However, I must take into account the danger; I could not ignore it. Therefore, the noble Earl's amendment appears to achieve precisely the opposite of that which I presume he intends—
The Earl of Longford: I understand what the noble and learned Lord is saying. However, with his great legal acumen, and assisted by his noble and learned friend Lord Wilberforce, can he not provide at the next stage a better and more intelligible form of wording which would be acceptable to most Members?
Lord Morton of Shuna: I have no doubt that my noble and learned friend could make anything more intelligible to anyone. I am not certain that I can. Perhaps if the word "if" were inserted in line 7 before the word "it" the issue would be clearer. I give the Committee no promises of clarifying the language. In general, I strongly support the amendments.
Lord Lane: I venture to add a personal note in respect of Amendment No. 69A. I must deal with all life sentences, both mandatory and discretionary, and with the prisoners who are about to be released. All those cases come through my hands. The task involves a consideration of between 300 and 400 cases per year. I know that many judges agree with me in feeling most unhappy about the way the system operates behind closed doors. The only advantage of my considering the cases is to try to achieve consistency in the length of time which people must stay in prison for committing various crimes. It is a consistency that I should rather not have to operate. The procedure should be carried out openly, but that is not the case.
Lord Ackner: I support the amendment. As a one-time advocate I point out to the Committee the difficulty in which the advocacy now finds itself. The passing of an automatic life sentence makes mitigation purposeless. If there is to be a life sentence that is an end of the matter. However, there has grown up a practice that some judges, conscious of the fact that the present situation is highly unsatisfactory, allow mitigation. However, the prisoner does not know the impact of his counsel's advocacy upon the court, nor does counsel know. It is an absurdity that occasionally one is given the opportunity to put forward mitigation without knowing the consequences. The proposal merely brings reality into the process of this class of sentencing which, as it now stands, is totally unreal.
6.15 p.m.
Lord Richard: The noble and learned Lord, Lord Ackner, was right in making those comments. It is a sterile exercise when at the end of a case where one's client has been convicted, and one knows that he is to be sentenced to life imprisonment, the judge says, "Do you have anything to say to me in relation to what I might be writing to somebody hereafter?". One's answer might then be, "Please do not be too hard on him", or "It was not a particularly dreadful murder", or "He does not have a bad record". One then sits down having no idea whether the statement had any impact on the judge or what was in his mind. The exercise is futile and I am glad that the noble and learned Lord, Lord Ackner, drew the Committee's attention to it.
The EC is fond of producing words. A word that it produced which was new to me was "transparency". I

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believed that it was connected with stamps but now know that it is a concept of viewing Executive actions, or indeed those of anyone, so that they are visible, accountable and can be scrutinised. The arguments in favour of greater transparency in the operation of this part of the criminal justice system appear to be overwhelming. I do not propose to repeat them.
I conclude with a quotation from the noble and learned Lord, Lord Hailsham, made in 1966 in another place when he was Quintin Hogg. The Parole Board had first been set up and he was commenting on whether its proceedings would involve a sufficient element of natural justice. He said:
"Natural justice involves this more than anything else: that where a man's most intimate rights are to be adjudicated upon … he had the right to be heard … If there were any dispute between him and the authorities which had not solved itself on the record, then he had a right to appear before his judges … That essentially introduces into the proceedings a quasi-judicial element, because it involves the hearing of two sides".
At present sentencing decisions are made by Ministers behind closed doors for reasons that we do not know and in respect of which the defendant is not entitled to he represented or hardly entitled to be informed.
Lord Campbell of Alloway: I sincerely ask my noble friend the Leader of the House to keep an open mind about Amendment No. 69A. I am not speaking to any other amendment. I support without qualification everything that has been said in support of the amendment.
Perhaps I may draw the attention of my noble friend the Leader of the House to the Second Reading debate when the noble and learned Lord the Lord Chief Justice said:
"There is no doubt that the present system is badly in need of reform. When passing a life sentence the trial judge should he able to announce in open court the tariff or penal period that he considers to be necessary for punishment and deterrence". [Official Report, 12/3/91; col. 100.]
I need not go on. This is the kind of amendment about which the Government should think two or three times before merely ignoring and rejecting.
Lord Hutchinson of Lullington: I wish merely to add to what was said by the noble and learned Lord the Lord Chief Justice. I am sure that he had too much modesty to make the comment himself. The present system imposes a burden upon him in office which is totally unacceptable. In addition to other enormously responsible duties it is impossible for the Lord Chief Justice to have to spend an incredible amount of time going through between 300 and 400 cases per year and consider them as he does with great care and responsibility. I suggest that that is a system of administration which is crazy in the circumstances. It makes the office of Lord Chief Justice, which is already over-burdensome, almost impossible to bear.
I should like to ask the noble Lord the Leader of the House whether there is a single reason why the Government do not want an accused person to know what is the length of the penal element in the sentence. Is there any conceivable reason for that person not to have the right first to know it and secondly to dispute it?
Lord Waddington: Both the select committee report and the European Court judgment raise issues every
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bit as difficult as those which we discussed earlier in relation to mandatory life sentences for murder. Indeed, it is not possible to separate entirely the two matters. The link is the need for the public to be able to have confidence in the willingness and ability of the criminal justice system to deal effectively with people who may have committed the most appalling crimes and who may he so dangerous that they need to be locked away from society for an indefinite period.
The issues in the report and the judgment are so important and complex that it would not be right for the Government to rush into hasty measures. I certainly cannot accept the strictures of the noble Lord, Lord Harris of Greenwich, and his complaint —and I believe I heard him aright—that we have not yet put legislation on to the statute book.
Lord Harris of Greenwich: I made two suggestions. First, well before the end of last year when this matter came before the European Court of Human Rights, the Government knew that they were going to lose the case. That was clear from the European Commission's decision on the matter.
Secondly, this Bill has been presented in Parliament. It follows that this is an opportunity to change the law. One of the men who won his case at Strasbourg is 74 years old. Is it not right that we should acknowledge that we shall accept the judgment of the European Court and implement it?
Lord Waddington: There can be no question of our ignoring the implications of the European Court's judgment. However, I do not believe that the noble Lord suggests seriously that it is always easy to know what is the right way in which to give effect to the decision of the European Court.
Also, when saying that there is no question of our ignoring the implications of the judgment, we must not over-dramatise its effect. Our procedures in relation to discretionary and not mandatory life sentences were held to be flawed. However, there was no suggestion that the outcome would have been different in the cases in question if a procedure more in keeping with the convention had been followed.
As with all European Court judgments, it tells us very clearly what is wrong with our procedures but does not tell us what we must do to put them right. That is clearly a matter for government and Parliament. We must reconcile a number of potentially conflicting objectives in responding to the judgment.
First, any new procedures which we introduce must not only be scrupulously fair to the offender but must also be compatible with the framework and principles of our domestic law. The idea that the judiciary should take responsibility for decisions about offenders after they have been sentenced is completely new in the law of this country and we must think through its implications.
Secondly, the new arrangements must give to the public adequate protection from offenders who may have committed absolutely dreadful crimes. The public and the victims of crime must feel confident that their interests, as well as those of the offender, are being respected. Therefore, this matter cannot be

1599
sorted out by a few quick strokes of the legislative pen. The task requires real care and, if we do a botched-up job, we may regret that later.
At the heart of the matter is the difficult question of what should be the role of the Minister and what should be the role of the judge when it comes to deciding when a life sentence should be reviewed and when a person serving a life sentence should be released on licence. I dare say that a good number of those who have supported diminution of the ministerial role do that in the belief that it will lead to the release of life sentence prisoners rather earlier than they are now released and earlier than Ministers consider appropriate.
Indeed, that is reflected in the criticisms in the select committee's report of the use by Home Office Ministers of the power in their hands to set longer tariffs for determining when cases should first be reviewed—longer tariffs than those recommended by trial judges and the Lord Chief Justice. However, we must remember that whether or not Ministers' views in these cases are right or wrong, Home Office Ministers bear a heavy responsibility. As I said in the earlier debate, the Home Secretary bears the ultimate responsibility for public safety and the Committee will forgive me when I repeat that the House of Commons has repeatedly voted against capital punishment for murder on the understanding that murderers would stay in prison for as long as Ministers thought necessary.
It may be that the House of Commons and public opinion would feel as much or greater confidence in a new system which gave less responsibility to Ministers and more to the judiciary and which perhaps resulted in life sentence prisoners being released earlier than they are now. However, the need to maintain public confidence is so important that any proposals for change should be subject to proper consultation and debate, not just in this Chamber and another place but among the public at large.
The public will rightly be concerned about the implications of change and must be properly consulted about and prepared for it. Slipping in amendments to a Criminal Justice Bill at a late stage of its passage is not the right way to go about that.
However, it is not just a question of whether it should be the Executive or the judiciary which should take decisions about the review of these cases and about release. As regards the cases which cause the greatest anxiety—namely, the worst murderers—the issue is as much about when a decision on release should be taken as about who should take it.
I must ask my noble friend Lady Platt this question. Is it right that a final decision as to the penal term should be taken at the time of trial? Can either a judge, or a Minister for that matter, be confident, when a person is convicted now of the worst type of murder, that 20, 30 or even 50 years on society will feel that the crime has been adequately punished and, if it is safe to do so, that the murderer shall be released into the community? Those are very difficult questions. Therefore, I do not accept the proposition that it is
1600
self-evident that the judge at the time should in a life sentence case say precisely what it is then thought is the right punishment to be awarded.
The noble Earl, Lord Longford, in his amendments proposes that the penal term should be no more than 20 years and that parole should operate. I have said something about that already. However, if we have in mind something like the scheme of parole which would be implemented if this Bill were to pass into law, that would mean that a person would have to be considered for release after 10 years. I say again, such a move would be a body blow to the credibility of the life sentence system in the eyes of the public.
Against that background we shall need to resolve a number of difficult questions in order to devise satisfactory arrangements for the future which comply with the European Court judgment. The concept of dividing up a sentence into successive elements—retribution, denunciation, protection and so on—is absolutely new to English law. We shall need to think carefully about whether, and if so how, that should be reflected in our legislation and procedures.
Then again, reverting to what was said earlier, let us not forget that the European Court judgment applies only to discretionary life cases. The court applied different reasoning to mandatory life sentences. For the latter, it concluded that the lawfulness of detention for life was settled at the outset by the passing of the life sentence and did not fall to be reviewed by a judicial body once a certain part of the sentence had been served.
I remind the Committee that that differs from the view taken by the select committee, which suggests a review in the case of all life sentences. The implications of that difference of view between the European Court on the one hand and the select committee on the other, must also be carefully considered. It is not self-evident that there should be the same scheme for all life sentence cases, whether they are life sentences in murder or other cases. If we are to shift the burden of decision making, at least for discretionary cases, from Ministers to the judiciary, we must then tackle a series of practical questions. The amendments before us amply demonstrate the range and complexity of those.
I congratulate the draftsmen on the thoroughness with which they have gone about the job. However, I am told by officials that there are other questions which are not covered. For example, would there be any role for the Secretary of State in the making of representations to the tribunal about the implications of the prisoner's release for public safety and public confidence in the life sentence system? Would there be a right of appeal against the tribunal's findings either on the part of the prisoner or on the part of the Secretary of State?
There is therefore a range of fundamental and complex questions to be considered. I believe it would be quite wrong to rush into legislation before we have identified suitable proposals to deal with both the issues of principle and the practical questions, and have conducted proper consultations about the proposed solutions. The life sentence system is under criticism from a variety of points of view and in a variety of respects. It is essential to make changes

1601
which have proper regard to all the criticisms and to create a new structure which carries the confidence of Parliament, of the judiciary, of the executive and of public opinion as well as meeting our obligations under the European Convention on Human Rights.
The judgment was received only recently. The Government make no apologies for thinking very carefully about this difficult and complex task. Moreover, the issues need to be addressed together; making piecemeal changes here and there may have unforeseen and undesirable consequences. I assure the Committee that the Government will act appropriately so that we are in compliance with the European Court judgment. However, for the reasons I have given I advise the Committee to reject these amendments.
6.30 p.m.
Lord Campbell of Alloway: Before my noble friend sits down perhaps I may ask—the noble Lord, Lord Nathan, cannot—whether he will reconsider his rather unkind suggestion that slipping in an amendment such as this at a late stage of the Bill is not the way to go about it. I have never heard that kind of charge made in this Chamber. We all dealt with the amendment. I spoke to it and at least five other noble Lords spoke to it at Second Reading. The Government have had a lot of time in which to consider it and I hope my noble friend will consider the criticism of the noble Lord, Lord Nathan, and those—not myself—who appended their names to the amendment to be wholly unjustified.
Lord Waddington: I apologise to the Committee. I perhaps could have used more felicitous language. However, the fact remains that it is not simply a question of accepting the basic suggestions made by the Select Committee in its report. We are being asked to accept a great mass of extremely detailed amendments which we are told we can be absolutely certain will do the trick; that not only will they lead to compliance with the European Court judgment but that they will also be the easiest way of knitting the new arrangements into our old practices, the easiest way of involving the judiciary in the new system and all the rest of it. That is asking a lot.
Lord Richard: Before the noble Lord sits down perhaps I could be clear about what he is saying. I believe he said that the Government accept the principle that the decision on when to release life sentence prisoners should be removed from the sole discretion of the Home Secretary—the secret exercise of his discretion as it now is—and transferred to a tribunal, whether in precisely this form or not is another matter. That tribunal would have the attributes of, first, sitting in public; secondly, allowing the defendant to be represented; thirdly, showing the defendant what the evidence against him was and, fourthly, allowing the defendant to call evidence. If the noble Lord is saying that, I shall be interested to hear his confirmation.
Lord Waddington: I am saying that the Government accept that steps must be taken; no
1602
doubt legislation will have to be introduced in order to bring ourselves in compliance with the European Court judgment.
The Earl of Longford: I believe it is my turn. Three amendments are tabled in my name. I do not propose to press the first I—may do so at another stage— because the noble and learned Lord, Lord Morton, explained that it does not mean what I think it means or what it should mean. Nobody has been able to improve upon it or explain it. Unsatisfactory as it is I do not want the main discussion, which is of great importance, to be bogged down in this semantic wrangle and I shall therefore leave that matter for the next time.
There is a reference to parole, for which I did not argue. I shall leave that over; I am not quite clear how the proposals of the noble Lord, Lord Nathan, relate to parole. I shall therefore leave that for the next time also.
However, even if I am alone on the burning deck, I stand by the amendment concerning the maximum length of the penal period being 20 years. With enormous respect to the Leader of the House perhaps I may say—with diffidence because it sounds almost patronising as he has made such a fine start as Leader of the House that I hope he will not spend too much time on future occasions telling us what public opinion is. That is not usual. We imagine we know what is going on and that is not a strong argument. I should like to hear him argue about what he believes in. Is my proposal a good one or something that the tabloids would not like?
Having said that, I am bound to stand by my amendment for the reasons I gave earlier.
Lord Waddington: I do not believe the proposal is a good one. That is my own opinion and nothing to do with public opinion.
The Earl of Longford: I beg leave to withdraw Amendment No. 69B.
Amendment No. 69B, as an amendment to Amendment No. 69A, by leave, withdrawn.
The Earl of Longford The Earl of Longford moved, as an amendment to Amendment No. 69A, Amendment No. 69C:
After Clause 22, Line 9, at end insert:
("(1A) The maximum length of penal term which a court may impose shall be 20 years.").
On Question, Amendment No. 69C, as an amendment to Amendment No. 69A, negatived.
[Amendment Nos. 69D and 69E not moved.]
[Amendments Nos. 69F to 69H had been withdrawn from the Marshalled List.]
Lord Nathan: I believe it is in order for me to comment on certain matters raised, particularly those raised by the noble Lord the Leader of the House. I do not intend to be personal in this respect, but I believe it was a little hard to regard the whole matter of Amendment No. 69A as a bodged-up job. It is not a bodged-up job and it is not a matter which arose at the last moment.
This provision follows with considerable accuracy the recommendations made in the Select Committee's

1603
report published in July 1989, which is quite a long time ago. The report evolved after one year's serious consideration. More or less weekly meetings were held throughout that period and the provision was not by any means a sudden thought. Furthermore, the whole question had been under consideration since the debates in your Lordships' Chamber in late 1987 on the previous Criminal Justice Bill, now the Criminal Justice Act 1988. So this is not a matter which is just a rabbit out of a hat. It has emerged after very serious consideration by some people with very great experience of the operation of the administration of the law and by others who came to it a little more freshly. I do not think that this matter can be regarded as something which has just come out of a hat.
As the noble Lord, Lord Campbell, said, I and others raised this question at Second Reading. I also referred in the debate on the Loyal Address to the decision of the European Court of Justice. So this matter has been considered for quite a long time. As regards its particular merits, it arises from a concern about principle; namely, whether decisions relating to the penal term which shall be served by those who are sentenced to life imprisonment shall be dealt with judicially in the open and be subject to appeal. That is the essence of what we are talking about. We are not talking about detailed questions of drafting, although I would back the drafting which is here. The question of principle is one of great consequence. We rehearsed the arguments exhaustively in the previous debate on the principle of the mandatory life sentence. This is a matter on which the opinion of the Committee should be taken.
6.41 p.m.
On Question, Whether the said amendment (No. 69A) shall be agreed to?
Their Lordships divided: Contents, 120; Not-Contents, 68.

Division No. 2

CONTENTS

Ackner, L.

Carter, L.

Acton, L.

Cledwyn of Penrhos, L

Ailesbury, M.

Cocks of Hartcliffe, L.

Airedale, L.

Cork and Orrery, E.

Alexander of Weedon, L.

Craigavon, V.

Allenby of Megiddo, V.

Darcy (de Knayth), B.

Ampthill, L.

David, B.

Ashbourne, L.

Dean of Beswick, L.

Aylestone, L.

Donaldson of Kingsbridge, L.

Bancroft, L.

Donoughue, L.

Beloff, L.

Dormand of Easington, L.

Birdwood, L.

Falkender, B.

Birk, B.

Falkland, V.

Blackstone, B.

Foot, L.

Bledisloe, V.

Gainsborough, E.

Bonham-Carter, L.

Gallacher, L.

Borthwick, L.

Galpern, L.

Boston of Faversham, L.

Gladwyn, L.

Bottomley, L.

Graham of Edmonton, L. [Teller.]

Bridge of Harwich, L.

Brightman, L.

Greenway, L.

Broadbridge, L.

Grey, E.

Buckmaster, V.

Hampton, L.

Callaghan of Cardiff, L.

Hanworth, V.

Campbell of Alloway, L.

Harris of Greenwich, L.

Campbell of Eskan, L.

Hatch of Lusby, L.

Carmichael of Kelvingrove, L.

Henderson of Brompton, L.

Carnock, L.

Hertford, M.

1604

Houghton of Sowerby, L.

Ogmore, L.

Hunt, L.

Oram, L.

Hutchinson of Lullington, L.

Perry of Walton, L.

Hylton, L.

Peston, L.

Hylton-Foster, B.

Plummer of St. Marylebone, L.

Jeger, B.

Prys-Davies, L.

Jenkins of Putney, L.

Rea, L.

Kilmarnock, L.

Rees, L.

Kinloss, Ly.

Richard, L.

Kirkhill, L.

Rochester, L.

Kissin, L.

Russell, E.

Lane, L.

St. John of Fawsley, L.

Lawrence, L.

Serota, B.

Listowel, E.

Shannon, E.

Llewelyn-Davies of Hastoe, B.

Stallard, L.

Longford, E.

Stedman, B.

Lovell-Davis, L.

Stoddart of Swindon, L.

Lytton, E.

Tenby, V.

Macaulay of Bragar, L.

Thomas of Gwydir, L.

McNair, L.

Thomson of Monifieth, L.

Mersey, V.

Thurlow, L.

Mishcon, L.

Tordoff, L.

Monkswell, L.

Underhill, L.

Monson, L.

Wharton, B.

Morris of Castle Morris, L.

White, B.

Morris of Kenwood, L.

Wigram, L.

Morton of Shuna, L.

Wilberforce, L.

Munster, E.

Williams of Elvel, L.

Murray of Epping Forest, L.

Willis, L.

Nathan, L. [Teller.]

Winchilsea and Nottingham, E.

Nelson, E.

Wise, L.

Nicol, B.

Worcester, Bp.

Northfield, L.

NOT-CONTENTS

Arran, E.

Jenkin of Roding, L.

Astor, V.

Kenilworth, L.

Auckland, L.

Kimball, L.

Belstead, L.

Lauderdale, E.

Blatch, B.

Lindsey and Abingdon, E.

Boardman, L.

Long, V.

Boyd-Carpenter, L.

Mackay of Clashfern, L.

Braybrooke, L.

Mancroft, L.

Brookeborough, V.

Merrivale, L.

Brougham and Vaux, L.

Monk Bretton, L.

Caithness, E.

Monteagle of Brandon, L.

Campbell of Croy, L.

Mottistone, L.

Carnegy of Lour, B.

Mountevans, L.

Cavendish of Furness, L.

Mowbray and Stourton, L.

Coleraine, L.

Murton of Lindisfarne, L.

Colnbrook, L.

Onslow, E.

Colville of Culross, V.

Orkney, E.

Colwyn, L.

Pender, L.

Constantine of Stanmore, L.

Prior, L.

Cox, B.

Rankeillour, L.

Davidson, V. [Teller.]

Reay, L.

Denham, L. [Teller.]

Renton, L.

Elliot of Harwood, B.

Rochdale, V.

Elton, L.

Rodney, L.

Ferrers, E.

Salisbury, M.

Flather, B.

Savile, L.

Fraser of Carmyllie, L.

Seccombe, B.

Glenarthur, L.

Skelmersdale, L.

Hemphill, L.

Strathmore and Kinghorne, E.

Henley, L.

Sudeley, L.

Hesketh, L.

Trumpington, B.

Hives, L.

Ullswater, V.

Hooper, B.

Vaux of Harrowden, L.

Jeffreys, L.

Waddington, L.

Resolved in the affirmative and amendment agreed to accordingly.
6.50 p.m.
Clause 23 [Alteration of certain penalties under Theft Act 1968]:
The Minister of State, Home Office (Earl Ferrers)The Minister of State, Home Office (Earl Ferrers) moved Amendment No. 70:
Page 18, line 48, at end insert:

1605
("(4) In section 51(4) of the Criminal Law Act 1977 (penalties for bomb hoaxes)—

(a) in paragraph (a), for the words "three months" there shall be substituted the words "six months"; and

(b) in paragraph (b), for the words "five years" there shall be substituted the words "seven years".").

The noble Earl said: In moving this amendment I shall speak also to Amendment No. 106. The amendment to Clause 23 increases the maximum penalty for bomb hoaxes. In the magistrates' courts an offender would be liable to a maximum sentence of six months, the longest such a court may impose for a single offence, rather than three months as at present. The maximum sentence which a bomb hoaxer might receive in a Crown Court would rise from five to seven years.
A bomb hoax is an irresponsible waste of other people's time and effort. It can cause great inconvenience to very many people. It can also endanger lives by making it harder to identify and to respond to genuine warnings. Eighty-four hoax calls were made in the 24 hours after a bomb was discovered at Paddington station in February. Nearly 800 hoax calls were received by the end of the following week. In view of that spate of hoaxes my right honourable friend Mr. Patten announced a review of the maximum penalties when the Bill was considered on Report in another place.
My right honourable friend the Home Secretary announced on 13th March that the penalties would be increased and he undertook to bring forward an amendment to the Criminal Justice Bill. The new maximum penalties provide a clear indication of the seriousness with which we and the public as a whole view the offence. I know that it will meet with the approval of my noble friend Lord Boyd-Carpenter since he offered his support for an increase in the penalties when he raised the subject at Second Reading. I hope that it will also meet with the approval of the Committee.
The amendment to Clause 86 ensures increased penalties for bomb hoaxes in Scotland as well as in England and Wales. It also extends to Scotland Clause 23(3), which increases the penalties for offences under the Badgers Act 1973. In both cases the original offences already extend to Scotland. I beg to move.
Lord Harris of Greenwich: Having raised this matter with others, I am delighted that the Government have brought forward the amendment. The noble Earl is quite right. Public opinion has taken two forms; first, that bomb hoaxes, which have on some occasions paralysed London's public transport system and caused great anxiety among the travelling public, are a matter of grave public concern, and, secondly, that the maximum sentence in the magistrates' courts of three months, which with remission means in reality six weeks, is wholly inappropriate. I am very glad that the Government have listened to our views and have put the amendment before the Committee.
Lord Richard: We think the amendment sensible and support it.
Lord Hylton: The principle of the amendment is right. Perhaps the noble Earl can say whether the
1606
maximum sentence will now be the same in England and Wales as in Northern Ireland. The offence of creating a bomb hoax seems to be just as serious wherever it occurs.
Lord Monson: Bomb hoaxes certainly cause an enormous amount of worry and inconvenience and cost a great deal of money. For that reason I welcome paragraph (a) which enables the sentence for a summary offence to be increased from three to six months. Paragraph (b) is a little different. Perhaps the noble Earl can give an example of where a judge has complained that the current maximum sentence of five years is inadequate. Secondly, how does the proposed maximum sentence compare with the penalties which can be imposed for giving, for example, a false fire alarm? I am a little worried about raising sentences for public relations purposes if it is not strictly necessary and if judges have not complained about the inadequacy of the current maximum sentence.
Earl Ferrers: I am grateful to the noble Lords, Lord Harris and Lord Richard, for agreeing with the Government for the first time this afternoon. I commend them on that attitude and I hope that it will continue. I cannot at the moment tell the noble Lord, Lord Hylton, the position with regard to Northern Ireland but I shall find out and let him know. The noble Lord, Lord Monson, asked whether judges have expressed the view that the present sentences are inadequate. My right honourable friend Mr. Patten undertook a review of the present position. Although maximum sentences may not be used 'very frequently they do set the scale by which sentences tend to be given. If the maximum is lower down the scale the chances are that other offences which attract a lesser penalty will accordingly attract a less than adequate penalty. I hope therefore that the Committee will agree to the amendment.
On Question, amendment agreed to.
Lord Mancroft Lord Mancroft moved Amendment No. 70A:
Page 18, line 48, at end insert:
("( ) Notwithstanding section 1(3) above the court shall not pass a custodial sentence solely for an offence under section 5(2), or section 19 as it applies in the case of proceedings for an offence under subsection 5(2), of the Misuse of Drugs Act 1971.".
The noble Lord said: The purpose of this amendment is simply to write on the face of the Bill that which is the Government's published intention; namely, that drug addicts should not be sent to prison but should receive treatment for their problem.
In 1989, which is the last year for which I have figures, and the last year for which I believe figures were published, 1,821 people went to prison for unlawful possession. Most people with drug problems use alcohol and prescription drugs, possession of which carries no risk of imprisonment. It is therefore somewhat innocuous that a problem with one group of drugs only carries with it the risk of imprisonment. Most of those who end up in prison have never been in contact with any drug agency or facility, often because they fear that contact with a statutory agency may lead to prosecution and a possible prison sentence.
Let me make it clear immediately that this is not a backdoor route to legalisation or decriminalisation but merely a recognition that in a civilised society we do not imprison people for having what the World Health Organisation has long defined as a treatable disease. Indeed the courts have a vital role to play in directing offenders toward agencies where they can receive help. It is a role that would be emphasised by this amendment. It may be argued that the courts need the ultimate option of a prison sentence to deter the repeated offender, but all the evidence shows that drug users are not deterred by this threat. What it does show, however, is that many people with drug problems need several attempts at treatment to overcome their problems.
At a meeting with my right honourable friend the Minister of State I learnt of the intention to introduce a methadone maintenance programme in prison for addicts. That filled me with even greater horror. Prison has accurately been described as a temporary break in drug use. But at least it was that. The idea that prisoners should receive doses of addictive narcotics in prison is a return to an idea that failed 20 years ago. I hope that it will not be repeated. If my noble friend cannot accept my amendment perhaps he can at least assure the Committee that this policy will not be adopted.
The amendment is a logical development of current practice. Many police forces now only caution those in possession of Class B drugs. An increasing number of police forces caution those in possession of any controlled drug. By removing the penalty of imprisonment a degree of consistency so far lacking would be introduced. At the same time it would mean that those most in need of treatment would receive it, which is the Government's real intention. It has been suggested that this would prevent the use of community sentences. In fact, it would only affect suspended sentences, which would be a very good thing in this case as they lead to the highest rate of recidivism and to community service orders. It is more difficult with community service orders, but in fact they are very rarely used—in less than 2 per cent. of cases, I believe.
What the amendment does allow, however, and indeed encourages, is the use of a probation order with a condition of treatment, which is exactly what the Government want. As such, I confidently expect my noble friend to accept the amendment with open arms. I beg to move.
7 p.m.
Earl Ferrers: My noble friend is most persuasive. I understand his concern. Indeed, I listened with interest to what he said. However, I cannot agree with his view that this is the right course of action to adopt. I accept the fact that in many cases such offences are not serious and that the offender has possession of the drugs simply for his own use or that of his friends. In such circumstances, a custodial sentence may well be inappropriate. Moreover, current sentencing practice reflects that fact. For example, in 1989, of all those persons cautioned or convicted of unlawful possession
1608
of drugs, 35 per cent. were cautioned (12,109 people) and a further 44 per cent. (14,888 people) received a fine.
However, such offences can also be more serious. In 1989, 6 per cent. of all those cautioned or convicted of unlawful possession of drugs received a prison sentence. We are not only talking about possession of Class C or B drugs, such as cannabis; we are also talking about possession of Class A drugs, such as cocaine or opium. The maximum term of imprisonment for such offences is seven years. I believe that it would be wrong to prevent the courts from using this sanction in appropriate cases.
If my noble friend's amendment were to be accepted, a person might be in possession of a quantity of heroin or cocaine, or both, but could not be sent to prison unless it were possible to prove an intent to supply. That would be so even, for example, if the offender were someone in a position of authority or influence who had incited others to follow his example. I can assure my noble friend that, under the sentencing framework proposed in the Bill, if the offence is not serious it will not warrant a custodial sentence. I suggest that there is no need in this respect for any special provision in the legislation to deal with drug offences. For the reasons I have outlined, I believe that stronger sentences must remain. I understand my noble friend's point of view, but in view of what I said I trust he will agree that it would be inappropriate to relax the conditions.
Lord Elton: Before my noble friend sits down, perhaps he will be kind enough to elaborate a little on what he said regarding the distinction between different kinds of people being in possession of different classes of drug. I take it from what he said that the Government are broadly of the view that, where a person is in possession of drugs of whatever class for his own use and where he obviously needs treatment, it will not be normal for such a person to receive a custodial sentence, regardless of the quantity of drugs, provided that the amount involved is consistent with the drugs being for his own use.
I also understand from what my noble friend said that custodial sentences will be used for those who may be presumed to have the drugs for the use of other people as well as themselves. That is an entirely different matter. I believe that is what my noble friend was saying, but it was not entirely clear.
Earl Ferrers: It is entirely a matter for the courts to decide what form of sentence should be imposed for each offence. If the offence was not very great, or if the person actually needed some kind of restorative treatment, the courts might decide to order such treatment. However, if my noble friend's amendment were to be accepted, it would mean that those who had drugs of a very strong nature could, nevertheless, not receive a custodial sentence.
I am sure that my noble friend would not expect me to dictate to the Committee or to the courts the type of sentence which should be imposed. As I said, there are sentencing provisions in the Bill. I believe that they

1609
are correct. In my view it is also appropriate that those in possession of strong drugs should on occasion be sentenced to terms of imprisonment.
Lord Monson: I do not know whether the noble Earl and Members of the Committee are aware that the investigations of the Department of Transport have revealed that rather more road fatalities are associated with the consumption of perfectly legal drugs—that is, whether obtainable over the counter or on prescription—than with illegal drugs such as cannabis. Of course, that is not a totally conclusive argument. However, I believe that it adds a certain amount of weight to the suggestion made by the noble Lord, Lord Mancroft.
Lord Mancroft: I have listened with great care, as I always do, to my noble friend's response. I must say that I am not wholly convinced by it. He mentioned the seven-year maximum sentence. Of the many thousands of people who were cautioned or even prosecuted in 1989, only 1,800 were sent to prison. But of that number, only 24 received sentences of over two years' duration. That was presumably because the quantity of drugs involved was large.
It must be said that anyone caught with drugs which are over the fixed amount I cannot remember the quantity involved —is automatically charged with supply and not with possession. Therefore, the argument that holding a Class A drug, or possession of a large quantity of drugs, is deserving of a prison sentence does not hold water. Indeed, if you are in possession of more than a certain amount you are automatically presumed to be a supplier. A person is only charged with possession if the amount involved is very small. It is quite clear that those are the people who need treatment. I am in full agreement with my noble friend that, where there is even a remote suspicion that a person is a supplier and the case can be proved, such a person should go to prison. However, that is a different matter.
As I said, I am not absolutely certain that my noble friend's argument holds water. The police in various forces are very inconsistent at present in what they do; and, indeed, there is much inconsistency in what happens in the courts once a conviction has been obtained. If such police forces were as worried as my noble friend seems to believe they may be, they would undoubtedly not caution and release people. Some police forces now make no attempt to prosecute for this offence. It seems to me to be most unwise and unsatisfactory to have an offence on the statute book for which the police will not prosecute.
If this is such a ghastly crime and deserving of a prison sentence, it is rather extraordinary that another government department should be supplying drugs to addicts on the streets as happens in Liverpool. Indeed, if such drugs are so terrible they should not be supplied. After all, there are no therapeutic reasons for their supply. However, that initiative is encouraged by one government department in one part of the country, while in another a second seeks to make it an offence for people to carry such drugs. The situation is extraordinarily inconsistent and unsatisfactory.
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I do not propose to press the amendment this evening. However, I shall study carefully what my noble friend said. It is possible that I may wish to return to the matter at a later stage of the Bill's proceedings. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Reay: I think that this is an appropriate moment for us to break. I suggest that we do not return to the Committee stage of the Bill until 10 minutes past eight. I therefore beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Planning (Northern Ireland) Order 1991
7.8 p.m.
The Paymaster General (Lord Belstead)The Paymaster General (Lord Belstead) rose to move that the draft order laid before the House on 19th February be approved.
The noble Lord said: My Lords, the draft order has been considered by the Joint Committee on Consolidation Bills, which has agreed that it is a pure consolidation instrument without change in the law. I beg to move.
Moved, That the draft order laid before the House on 19th February be approved.—(Lord Belstead.)
Lord Prys-Davies: My Lords, we on this side of the House very much welcome this consolidation order.
On Question, Motion agreed to.

Dangerous Vessels (Northern Ireland) Order 1991
7.9 p.m.
Lord Belstead Lord Belstead rose to move that the draft order laid before the House on 28th February be approved.
The noble Lord said: My Lords, this order would introduce provisions broadly in line with those already in force in Great Britain by the enactment of the Dangerous Vessels Act 1985. I believe that it will be of assistance to the House if I comment briefly on the order and then say a few words about the detailed provisions.
The main purpose of the order is to plug the gap in existing powers by strengthening the powers of harbour authorities, and by empowering harbour masters to give directions prohibiting the entry into, or requiring the removal of a vessel from, a harbour. In this way, harbour authorities would be best equipped to deal with potential, serious emergencies which could occur as a consequence of the increase, in recent years, in the transport of dangerous cargoes by sea.
All harbour authorities have powers, which are exercised through their harbour masters, to regulate the manner in which ships enter and leave port, the berthing of ships and their movement within port. But although the matter has not yet been tested in court in

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Northern Ireland, some doubt has been expressed that such power extends to prohibiting a ship from entering a port or to requiring a ship to be removed entirely from a port.
That may seem a very minor matter but where a ship is not carrying a dangerous cargo there is always a risk of serious damage being done where, for example, it has defective steering and there could be a danger of collision with a ship carrying a dangerous cargo, or with any other ship. The danger could be increased substantially if a vessel in a dangerous condition seeks refuge in a port used by chemical carriers. The danger of course could he made far worse if there are residential or industrial buildings in the vicinity of the port.
Article 3 gives powers to a harbour master to prohibit a vessel from entering the harbour, or to remove a vessel where he considers its conditions or that of its contents to be such that its presence in the harbour might involve grave and imminent danger to the safety of any person or property; or that the vessel may, by sinking or foundering in the harbour, prevent or seriously prejudice the use of the harbour by other vessels. Article 4 limits the liability of a harbour authority for loss or damage to any vessel or anything contained in any vessel.
Article 5 empowers the Department of the Environment for Northern Ireland to give directions which may countermand or override those given by harbour masters in a situation where there are wider considerations to be taken into account than would be the case of a harbour master acting solely in the interests of his own port.
Article 6 provides that whatever action a harbour master takes in the exercise of his powers under Article 3, such action shall not interfere with similar powers conferred on the Secretary of State by the Prevention of Oil Pollution Act 1971 to give directions to deal with the wider issues of oil pollution affecting the United Kingdom as a whole.
Article 7 proposes that the maximum penalties for failing to comply with a harbour master's directions should not exceed £25,000 on summary conviction, and on conviction on indictment to an unlimited fine.
Article 8 provides for exemptions from the provisions of the order for vessels belonging to Her Majesty, or pleasure craft of up to 24 metres in length.
My Lords, I beg to move.
Moved, That the draft order laid before the House on 28th February be approved—(Lord Belstead.)
Lord Prys-Davies: My Lords, we are grateful to the noble Lord, Lord Belstead, for his explanation of the terms of this order. We welcome this order because there is by now a considerable awareness of the possible hazards associated with the movement of ships and shipment of dangerous cargoes.
I have just two questions for the Minister. First, can he confirm whether or not there is an arrangement in existence to enable the interests of Great Britain and the interests of the Republic to be taken into consideration, where that is appropriate, before the harbour master in Northern Ireland issues instructions to a ship's master under the terms of this order?
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Further, is there an arrangement to notify the authorities in such countries if instructions have been issued? Secondly, does the Republic of Ireland have legislation which harmonises with the provisions of this order?
Lord Belstead: My Lords, I am grateful to the noble Lord, Lord Prys-Davies, for his response to the order. The noble Lord asked me, first, whether I could confirm that there is an agreement in existence which would enable Great Britain to take the interests of the Republic of Ireland into account if a ship is turned away under this order. The noble Lord of course is rightly taking account of the fact that this is a harmonisation measure and we are talking about legislation that is in existence at the moment in Great Britain and, if this order is agreed to, would come into existence in Northern Ireland.
Perhaps I may answer the question in a slightly different way, and I hope give satisfaction to the noble Lord. It is important to notice that under Article 5 the Department of the Environment for Northern Ireland is empowered to give directions which would countermand or override those given by harbour masters in a situation where there are wider considerations to be taken into account than would be the case if the harbour master acted solely in the interests of his own port. It is quite important that those wider considerations are not defined under Article 5, precisely for the reasons that the noble Lord raises.
Secondly, I think this matter goes a little wider than the noble Lord indicated. Yes, if a ship were to be turned away from, for instance, one of the harbours in Northern Ireland, obviously there could be implications regarding safety in the Republic of Ireland. But there could be implications for safety if there was a dangerous cargo on the west coast, for instance, of Great Britain, the Scottish coast, the English coast, and indeed the noble Lord's Welsh coast. There could possibly even be implications for the northern coast of Europe. It is precisely for that reason that the government department in Northern Ireland is empowered by Article 5 to be able to take a decision which could countermand a harbour master's decision to turn away, for instance, a dangerous cargo.
I hope that that will satisfy the noble Lord. I am afraid that I am not aware as to whether there are arrangements in existence, but the telephone is always there and the swiftest of communications are always there. The great point is that there is this power embedded in this order that the Department of the Environment in Northern Ireland can take a wider view, and could say in a particular case, "We have to be careful. We are in a particular case going to countermand an order to turn away."
I confess to the noble Lord that he has bowled me out about legislation in the Republic of Ireland. I shall have to write to him as to whether they have similar legislation on their statute book. I apologise to the noble Lord for not being able to answer that question, and I shall endeavour to repair the omission very quickly in correspondence.
On Question, Motion agreed to.
Viscount Long: My Lords, I beg to move that the House do now adjourn during pleasure until 10 minutes past 8 o'clock.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.18 until 8.10 p.m.]

Criminal Justice Bill
House again in Committee on Clause 23.
Lord Campbell of Alloway Lord Campbell of Alloway moved Amendment No. 70B:
Page 18, line 48, at end insert:
("( )) In section 1(1) (a) of the Children and Young Persons Act 1933 and in section 12(1) (a) of the Children and Young Persons (Scotland) Act 1937, for "ten" there shall be substituted "fifteen".").
The noble Lord said: This is a probing amendment which has the support of the NSPCC and the Association of County Councils. I shall not under any circumstances press it to a Division today. It serves to draw attention to a serious problem and an important gap in the law which ought to be dealt with as a matter of urgency under the Criminal Justice Bill.
I realise that in a thin Committee I speak for the benefit of Hansard but that in no way detracts from the importance, the seriousness and urgency of the situation. As the Committee may know, in a recent case the Court of Appeal was obliged to quash convictions for the manslaughter of a child because it could not be established which of the two accused, who both had the opportunity, inflicted the fatal injuries.
Where do we go from there? I am not entirely sure. However, I know that the Committee will wish to take action because we cannot leave the matter as it is. The object of the amendment is to seek consideration by Her Majesty's Government of the great, important and urgent concern and interest in the protection of children. The object is also at some stage under the Bill to secure a satisfactory and reasonable resolution of the problem.
In a case like this, it could well be that wilful ill treatment in a manner likely to cause unnecessary suffering or injury to health could have been established against either or both of the accused within the section to which the amendment relates. I am assuredly not being technical at this hour. I have not read the transcript of the evidence or the judgment in the case. That may be just as well because whether or not alternative proceedings could have been brought under the section to which I refer is perhaps not the point. It was thought, admittedly by me and probably erroneously, that some greater protection for children could be afforded by increasing the maximum sentence from 10 to 15 years. This is proposed in the amendment for serious cases where death results from the ill treatment of children. However, perhaps it is not appropriate.
Nevertheless, something must be done in the context where, first, two or perhaps three people, and only those people, have access to the child; secondly, that child is found dead; thirdly, that child is found to have been battered to death. Proceedings are
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instituted. Both of, or all, the people who had access to the child, and only those people, have the right to silence. The prosecution must prove its case. Everything is done in the privacy of this evil home.
Perhaps the only way to deal with a case in those circumstances is to reverse the burden of proof. I do not pretend to know the answer. All I pretend to know is that something must be done. I seek the assistance of the Committee. I beg to move.
Lord Mottistone: I wish very strongly to support the amendment. It seems to me quite incomprehensible that a child aged 16 months, quit:, clearly in the custody of two people, should be murdered and that in the long run nobody should be found guilty of the offence because it cannot be decided which of them dealt the fell blow. That must be wrong, and unjust. It must be something that we have the opportunity to put right in this Bill.
Whether my noble friend's amendment is ideal for the purpose, I do not know, he is more experienced in the law. The way in which he has phrased it does not seem to me to hit the nail on the head. I hope that somebody more expert could find a way of making sure that the law can find one or two people guilty under the circumstances which arose in the case of the murder of Doreen Aston.
Perhaps sometime during the passage of the Bill we shall be able to reach a solution which prevents that kind of crime happening again. I very much hope that my noble friend the Minister will be able to tell us that the Home Office has this well in hand and that he has in mind producing amendments at a later stage which will deal with the problem. As a mere layman, it seems to me extraordinary that the law cannot be phrased in such a way as to avoid this problem.
Lord Richard: I support the thrust of the amendment proposed by the noble Lord, Lord Campbell of Alloway. Prima facie the position is anomalous. If a crime has taken place in a situation where only one of two people could conceivably have committed it, it is anomalous for there to be no liability on anyone's part for what on the face of it is an admitted crime. In popular parlance at least one could say that there is the smell of an absurdity about that. The principle is not confined to crimes against children. It is a well established principle of the criminal law. If the Home Office is considering the matter, I shall be interested to read its comments in due course. If the matter is not being considered by the Home Office, I agree with the noble Lord, Lord Campbell, that it should do so.
Earl Ferrers: My noble friend Lord Campbell of Alloway was right to draw attention to a distressing case. On the face of it some people may feel that the outcome was unsatisfactory. Child cruelty is always a distressing offence. Everyone wishes to ensure that the offenders are properly punished For it. The amendment of my noble friend proposes that the maximum penalty for the offence should be increased from 10 to 15 years' imprisonment.
The worst offences against children are already covered by substantial maximum penalties in other

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legislation. For example, life imprisonment is the maximum sentence for manslaughter, infanticide, grievous bodily harm and for the most serious sexual offences. In Scotland the common law position is similar. The offence of cruelty to children is likely to be charged only when none of those other offences is suitable. The most obvious example is the offence of neglect or starvation which does not result in death. I do not wish to go into the details of the Aston case to which my noble friend referred.
The noble Lord, Lord Richard, said that the situation becomes difficult if liability cannot be attributed to anyone. It is important to remember that in the case mentioned this evening the couple concerned were freed because they had served their two year sentence while remanded in custody. That was then the maximum sentence for child cruelty. Since then the maximum penalty for child cruelty has been increased to 10 years' imprisonment by the Criminal Justice Act 1988. That increase was imposed after the date on which the couple were convicted.
To some extent the problem which my noble friends have rightly identified, and with which the noble Lord, Lord Richard, is concerned, has already been dealt with. I worry about increasing the penalty for a particular offence simply in order to punish more severely people against whom a different and more serious offence cannot be proven. We increased the maximum penalty for the offence from two to 10 years in the Criminal Justice Act 1988. I hope the Committee will agree that in that respect the problem should be covered.
Lord Campbell of Alloway: I thank my noble friend the Minister for what he said. I thank too all Members of the Committee who have spoken. But with the greatest respect, when my noble friend the Minister says that the issue has been covered, I must disagree with him. The point I am making, and the point made by the noble Lord, Lord Richard, has not been covered. It is not a question of increasing sentences. In that sense I accept that the form of the amendment is inept. A murdered child has been found and only certain people had access to that child. It is a question of whether those people should be entitled to have resort to the right of silence and ask the Crown to prove the case against them or whether the only people who had access to the child and the opportunity to commit the crime must explain what happened to the child. There are certain cases where the burden of proof is reversed.
All I can do is to ask my noble friend the Minister to take on board the situation that has arisen with a view to trying to deal with it on its merits in relation to what has happened and not merely in relation to the form of the amendment which is concerned with increasing sentences. At this stage I can say no more. I can only hope the Government will take the situation on board. If they do not do so by Third Reading, perhaps we shall have to produce an amendment to that effect.
Earl Ferrers: I hope that I can offer a little help. My noble friend's amendment suggests that we increase
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the penalty for this offence. With respect I believe he is now slightly shifting his ground and saying that we should deal with the right of silence. That is a different matter. My noble friend is further saying that if a child is killed and only two people were present with the child, one of whom must be responsible for the murder, both people should suffer a penalty even if it cannot be proven which one committed the murder.
Lord Campbell of Alloway: No, I am saying that they should merely be asked to explain what happened. That is the difference.
Earl Ferrers: That comes back to the point about the right of silence. I shall, of course, consider what my noble friend has said. I accept that this is an important point. However, I believe the points he has made go wider than the terms of his amendment.
Lord Campbell of Alloway: I am grateful to my noble friend. I accept that the points I have made go wider than the terms of the amendment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 23, as amended, agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 71:
After Clause 23, insert the following new clause:
Savings for mitigation and mentally disordered offenders
(" .—(1) Nothing in this Part shall prevent a court from mitigating an offender's sentence by taking into account any such matters as, in the opinion of the court, are relevant in mitigation of sentence.
(2) Without prejudice to the generality of subsection (1) above, nothing in this Part shall prevent a court—

(a) from mitigating any penalty included in an offender's sentence by taking into account any other penalty included in that sentence; or

(b) in a case of an offender who is convicted of one or more other offences, from mitigating his sentence by applying of any rule of law as to the totality of sentences.

(3) Nothing in this Part shall be taken—

(a) as requiring a court to pass a custodial sentence, or a custodial sentence for any particular term, on a mentally disordered offender; or

(b) as restricting any power (whether under the Mental Health Act 1983 or otherwise) which enables a court to deal with such an offender in the manner it considers to be most appropriate in all the circumstances.").

The noble Earl said: We have already discussed this amendment with Amendment No. 9. It provides a general saving for mitigation and mentally disordered offenders. I beg to move.
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 72:
After Clause 23, insert the following new clause:
Effect of previous convictions
(" .—(1) Subject to subsection (2) below, an offence shall not be regarded as more serious for the purposes of this Part by reason of any previous convictions of the offender or any response of his to previous sentences.
(2) In so far as the circumstances of any offences of which an offender has been previously convicted are relevant for the purpose of forming an opinion as to the seriousness of the offence, nothing in subsection (1) above shall prevent the court from taking those circumstances into account for that purpose.").
The noble Earl said: This amendment was discussed on the first day of the Committee stage with

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Amendment No. 10. It tidies up the drafting of the Bill by bringing together in one clause the provisions of Clauses 3 and 6 on an offender's previous record. I beg to move.
Lord Ackner: I ask for the indulgence of the Committee because I do not know what my locus standi is in relation to the fact that this amendment has already been debated. was not present on the first day of the Committee stage for reasons that I expressed last Tuesday. Those reasons were the subject matter of my personal apology to the noble Earl, Lord Ferrers. I do not know to what extent I might at least raise a point for clarification which relates entirely to Amendment No. 72 and to the last six or seven words of subsection (1) of the proposed new clause which states:
"an offence shall not be regarded as more serious for the purposes of this Part by reason … or any response … to previous sentences".
I am sure that it is entirely my fault, but I do not understand why that is made irrelevant. Section 123 of the Criminal Justice Act 1988, which concerns custodial sentences of young offenders and is therefore directed to trying to control the extent to which young offenders receive custodial sentences, provides that an offender qualifies for a custodial sentence if he has a history of failure to respond to non-custodial penalties and is unable or unwilling to respond to them. That makes it perfectly clear that in deciding whether or not a young offender qualifies for a custodial sentence it is looked upon as an important relevant factor to have regard to his inability or unwillingness to respond to non-custodial penalties. For the moment I do not understand why for an adult offender the judge, when considering the seriousness of the offence, must ignore:
"any response of his to previous sentences".
From the point of view of someone who has sentenced in the past that just does not make sense. It is of enormous relevance to know whether his response to previous sentences has been one of enthusiastic compliance or whether he has resolutely failed to comply with conditions of a probation order or a community service order. If I am in order I merely wish to know why the judiciary are to be blinkered in this way, which seems to impose upon them a sense of unreality which is quite unacceptable.
8.30 p.m.
Earl Ferrers: The noble and learned Lord was kind enough to tell me that he would not be able to be present on the first day of the Committee stage. He is entirely in order to ask his question. It so happens that a number of amendments were grouped together with the earlier amendment because they were linked. The noble and learned Lord is entirely within his rights to ask me what this amendment means. However, that sets me a gargantuan task because if the noble and learned Lord in all his wisdom cannot understand the amendment it is rather tough for a mere Minister to explain to a Law Lord what is meant, but I shall do my best.
The amendment concerns the response to a previous sentence. We deliberately did not follow the
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Criminal Justice Act 1988. That is a form of sentencing on record which we consider undesirable. Community penalties are penalties in their own right. We feel that once the punishment has been completed the offender should not be in jeopardy again for the earlier offence. That is why the different course was followed. I hope that I have explained the position to the noble and learned Lord. If he is still in doubt about it I shall seek further advice and write to him.
Lord Ackner: I am very relieved to know that I am in order, but I am still puzzled. If this material is relevant, and Parliament has said in Section 123 of the Criminal Justice Act 1988 that it is relevant in reference to young offenders, I remain confused as to why it is irrelevant in relation to more adult offenders who should be much more responsible in their response to previous sentences than the youngsters may be expected to be. That is the cause of my concern. Given that Parliament has said that this is a relevant consideration for the young I do not see why —and I use the word relatively—it should be an irrelevant consideration for the more mature.
Earl Ferrers: The best that I can do is to consider what the noble and learned Lord has said because it is obviously a matter about which he has some anxiety. If I may, I shall write to him on the subject and if he wishes to take up the matter he may do so at a later stage of the Bill. That is probably the best way of dealing with the matter.
Lord Ackner: I am most grateful, as always, to the noble Earl for his kindness and generosity. I should be most grateful if he would do as he suggests.
On Question, amendment agreed to.
Lord Hylton Lord Hylton moved Amendment No. 73:
After Clause 23, insert the following new clause:
("Amendment of Criminal Justice Act 1961
. In section 26(4) of the Criminal Justice Act 1961 for the words "his sentence shall be treated" there shall be substituted the words "his sentence may be treated".").
The noble Lord said: I rise to move Amendment No. 73 standing in my name and that of the noble Lord, Lord Hunt. I am extremely grateful to the noble Lord, Lord Hunt, for adding his name to the amendment. I saw him earlier this evening and he explained that although he was present earlier in the day he could not stay on to this late hour.
It may come as a mild surprise when. I say that the purpose of the amendment is to benefit prisoners' families and to sustain their relationship with persons in custody. That is not immediately apparent from the text of the amendment. However, on 2.3rd January I gave notice of the underlying point to the right honourable lady the Minister with responsibility for prisons and wrote to her again on 26th March. I sent copies to the noble Earl, Lord Ferrers.
I emphasise again that the purpose of maintaining access and good relations between prisoners and their families is to help make imprisonment a positive rather than an entirely negative experience. Above all, it facilitates rehabilitation and the reintegration of prisoners into the normal life of society. That is why prison rule 31(1), states:

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"Special attention shall be paid to the maintenance of such relations between a prisoner and his family as are desirable in the best interests of both".
I wish to stress the importance of the word "both". That means that the family has a direct interest in the question of the prisoner's location within the prison system. That was a point which I believe the noble Lord, Lord Stallard, had in mind during his intervention on an earlier amendment. It is a point, furthermore, which I understand the report of Lord Justice Woolf strongly underlined. If I am correct I am delighted that it did so.
It will be well known to the Committee that the United Kingdom is divided into three jurisdictions, each with its own separate legal and prison system. These are England and Wales, Scotland and Northern Ireland. It is normal for those convicted to serve their sentences in the jurisdiction in which they were tried. Section 26 of the Criminal Justice Act 1961 provides for prisoners to apply to serve their sentence in their home jurisdiction.
If we examine the question of transfers between England and Northern Ireland there should be no problem in the case of life sentences. The rules governing release for such prisoners are fully discretionary in both jurisdictions. It is therefore perfectly open to the two Secretaries of State to agree that a transferred prisoner shall be treated for the purposes of release in the same way in Northern Ireland as he would have been in England. I trust that the Secretaries of State will take advantage of that ability.
The issue of fixed sentences is, however, more difficult. That is because Section 26(4) of the Act lays down that a transferred person shall be treated as if he had been sentenced in the receiving jurisdiction. The Secretary of State for Northern Ireland therefore has no discretion. He must give a transferred prisoner the benefit of the more lenient remission available in Northern Ireland as compared with England and Wales.
That point was well illustrated by the recent case of Mr. John McComb, a prisoner from Belfast whom I visited in gaol in England and whose mother I have met in Belfast. He applied for judicial review of the Home Secretary's refusal to transfer him to Northern Ireland. The High Court upheld the Home Secretary because transfer would have resulted in an extra two years or so of remission on a 17-year sentence.
Our amendment seeks to enable the receiving Secretary of State to apply the rules for release and remission that apply at the time of transfer within the sending jurisdiction. I cannot believe that that would be administratively impractical, given the small numbers likely to be involved. I doubt whether there can be more than a few dozen prisoners from Northern Ireland serving long, fixed sentences in England. I speak from some experience, having visited some of the prisoners in England and having called on some of their families in Northern Ireland. I should add that our concern is supported by the National Association of Probation Officers, the Northern
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Ireland Association for the Care and Resettlement of Offenders and the Committee on the Administration of Justice in Northern Ireland.
The reality that we are addressing is that prisoners transferred to Northern Ireland will be sited within reasonable distance of their families and will be entitled to one visit per week. On the other hand, if they remain in England, they are entitled to only one visit per month. Because of the long distances and the high cost of travel and lodging, they will in practice be lucky if they receive two or three visits per year. Furthermore, there is ample space available within the Northern Ireland prisons.
I was encouraged when the right honourable Lady, Mrs. Rumbold, wrote to me at the end of March. She said that she and her colleagues would consider the steps that they might take to alleviate the problems faced by prisoners and their families in maintaining their links. I trust that those steps include legislative ones. Now seems to be the opportunity. In my view, it would be quite wrong that families should be punished because of technicalities, however heinous the crimes of their relations.
On technical grounds, the amendment may not be perfect and it may require consequential amendments to Clause 86(5). Our amendment concerns the treatment of offenders and is therefore well within the Long Title. The Bill already applies in part to Scotland and I fail to see why it can be wrong to apply it also in part to Northern Ireland. I beg to move.
Lord Stallard: I rise briefly to support the amendment standing in the names of the noble Lords, Lord Hylton and Lord Hunt, and so ably interpreted by the noble Lord, Lord Hylton. As he said, it is along the lines that I mentioned with regard to an earlier amendment this afternoon, so I shall not repeat my argument.
I hope that the Minister will consider this to be a serious issue, given the atmosphere that the present Secretary of State for Northern Ireland is trying to create in that part of the United Kingdom. Given his attempts, would it not be better if we could remove some of the major obstacles—and this is a major obstacle—in that part of the United Kingdom? It might make the Secretary of State's task that much easier if people knew that something constructive was being done to help the families and children involved. The noble Lord, Lord Hylton, referred to the tremendously long journeys which in my view and the view of all those people who understand the situation are totally unnecessary.
However—this is where the credibility of the system comes into doubt—it appears that someone has said that we shall release or transfer the statutory Irishman every five years. The criteria for parole are then changed, so we catch another few of them in the trap as a result of the new rules. As I said earlier, there have been about six changes in the criteria since 1973. Out of six prisoners who were all sentenced in the same court for the same crime at the same time by the same judge, five have been sent back, mostly one at a time, although in one instance two at a time. The one who is left is now trapped and told that he cannot be considered because the criteria have again been

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changed. That does not help the atmosphere that the Secretary of State for Northern Ireland is trying to create. I hope that the Minister will at least agree to reconsider the amendment tabled by the noble Lord, Lord Hylton.
8.45 p.m.
Earl Ferrers: I know that the noble Lord, Lord Hylton, is concerned about prisoners both here and in Northern Ireland and that he has been in touch with my right honourable friend Mrs. Rumbold about the matter.
Under the present law, a prisoner, who is sentenced in England and transferred at his own request to Northern Ireland, will be subject to the early release arrangements which operate in Northern Ireland. If he were transferred in the other direction, from Northern Ireland to England, to serve out his sentence in an English prison, then the early release arrangements to be introduced for England and Wales by this Bill will in the future apply to him. The procedures on early release and recall to prison are complicated, but at least under this arrangement all parties know where they stand. All prisoners in a Northern Ireland prison are subject to the Northern Ireland rules, and all prisoners in a prison in England and Wales are subject to the rules for England and Wales.
I have some sympathy with the noble Lord's underlying concerns, but I see some serious difficulties with his amendment. It would introduce an element of discretion into the existing arrangements. It would provide that a prisoner's sentence "may" be treated as if imposed in the jurisdiction to which he is transferred and not that it "shall" be so treated. So a prisoner who is moved from one part of the United Kingdom to another could be subject to the early release arrangements operating in either. He could be transferred to Scotland but remain subject to the English arrangements, or vice versa.
That seems to me to be a recipe for confusion. It is not as simple as the noble Lord, Lord Hylton, suggests. It is not clear, for a start, who is to decide to which arrangements a transferred prisoner will be subject. Is it the prisoner, the transferring authority, the receiving authority, or some combination of those? The early release arrangements in Northern Ireland are different from those applying in England and Wales. The differences between England and Wales on the one hand, and Scotland on the other, are fewer, but some may remain even after implementation of the Kincraig proposals which are similar to those of the Carlisle Committee. The decision on which rules to apply could therefore affect the date of the prisoner's release. In such an important matter, it seems to me that there should be a clear and unambiguous rule. It should not be left to an administrative decision of some kind. The clearest and most practical rule is that the prisoner should be dealt with according to the arrangements in force in the jurisdiction where he is held.
There would be difficulties on a practical level too if we departed from that rule. For example, the prison authorities in Northern Ireland would have to work out how the English procedures applied before
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releasing someone transferred from England. Cases involving long-term prisoners transferred to Northern Ireland would still have to be considered by the Parole Board for England and Wales perhaps many years after those prisoners had last had any contact with the prison authorities in England and Wales.
Furthermore, Section 26(4) of the Criminal Justice Act 1961 extends to a prisoner's detention as well as to his release. That presumably includes the application of prison rules and adjudications on breaches of these. To have an inmate who is accommodated in one jurisdiction but who is subject to the day-to-day regulations governing another would be unfair both to the individual and to the other inmates and would be administratively unworkable.
However, I have some sympathy with the noble Lord's concerns. The current arrangements sometimes create difficulties for families of prisoners who have to travel a long way to visit them. As the noble Lord said, he has recently met my right honourable friend Mrs. Rumbold to discuss those issues and has had some correspondence with her. He knows that we are considering further the scope for alleviating the very problems which are caused to prisoners and families by the operation of the 1961 Act, to which he has quite correctly referred. I hope that, if that is the case, he will agree that it would be suitable for my right honourable friend to consider how best we can alleviate these problems.
Lord Hylton: I am grateful to the noble Earl at least for his sympathy, but that is about as much as I can say. He told us that prisoners now in England know where they stand. That is true, but the practical result seems to be that they fail to get transferred when they ask for it, as I believe I brought out reasonably clearly in the case of Mr. McComb.
It is somewhat difficult to avoid at least the suspicion that the Home Office is not very anxious to help. Had the noble Earl been able to say what practical steps the Government have in mind for alleviating the situation caused by the long journeys to visit and by the cost of visiting, we should have made a little progress. But that does not seem to be the case and I regret it.
The hour is late, and the issue is a complicated and technical one. I do not intend to press the matter tonight. However, I reserve the right to come back to this point at later stages of the Bill and indeed any other relevant legislation. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Henderson of Brompton Lord Henderson of Brompton moved Amendment No. 73A:
After Clause 23, insert the following new clause:
(" .—(1) (a) Where a person has been convicted by a court of placing himself or herself in any public place, street, highway, court or passage to beg or gather alms under section 3 or 4 of the Vagrancy Act 1824 as amended, then he or she shall be liable only to:

(i) a fine not exceeding level 1 on the standard scale, or

(ii) a conditional discharge, or

(iii) an absolute discharge, or

(iv) a probation order.

(b) Before imposing a fine on such an offender as is mentioned in paragraph (a) the court must be satisfied beyond reasonable doubt that the offender was not begging for money on which to support himself or herself.
(2) Where a person has been convicted by a court of wandering abroad, or lodging in any barn or outhouse or in any deserted or unoccupied building or in the open air or under a tent, or in any cart or waggon and not giving a good account of himself or herself contrary to sections 3 and 4 of the Vagrancy Act 1824 as amended, he or she shall be liable only to—

(a) a conditional discharge, or

(b) an absolute discharge, or

(c) be made the subject of a probation order.

(3) Section 5 of the Vagrancy Act 1824 as amended is repealed.").
The noble Lord said: This amendment stands in my name and the name of three other Members of the Committee. Perhaps I may say at once that, although I move the amendment with the utmost intention to persevere with it, I do not for two reasons seek the Division of the Committee today. The first reason is because I feel that the Committee, and the Government in particular, will already have had enough of Divisions for one evening. Secondly, I very much hope that after two-thirds of the Members have gone to bed happily, between us we can persuade the Government there is absolutely no need for a Division and the noble Earl will be able to say that this amendment or something like it which he may be able to improve upon will be acceptable to the Government.
I say that with a certain amount of confidence because the Prime Minister, Mr. Major, has so notably expressed his sympathy with the people who sleep rough on the streets. Not only has he expressed sympathy but without dithering at all he has done something practical for them and done it quickly. I hope that with that kind of support the noble Earl will view this amendment with sympathy just as, I hope, will the Prime Minister, if he hears of it.
This is not the first time that this matter has been raised in the present session. Members of the Committee will remember that, greatly to his credit, the noble Lord, Lord Stallard, introduced the Crime of Vagrancy (Abolition) Bill in 1990. Although there were reservations by the Government, it went unopposed through this Chamber and is now in the House of Commons, where it languishes. During the Second Reading debate on 11th December last year I suggested that an alternative means of achieving perhaps most of the purposes of that Bill would or could be found by way of amendment to the Criminal Justice Bill and would have a better chance of success than a friendless Private Member's Bill coming from this Chamber with no one to take it up and ensure that it prospered in the House of Commons.
Therefore I and my noble friends have tabled this amendment, with due regard—I say this particularly to the noble Earl —to the reservations that he expressed on the Bill of the noble Lord, Lord Stallard, and also with due regard to the Long Title of the Bill. I say that because on Second Reading the noble Earl expressed the view that the proposal could possibly be incompatible with the Long Title of the Bill. As we
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have carefully drafted the amendment it is compatible with the Long Title. We hope to secure the meat of the Bill of the noble Lord, Lord Stallard, in the Criminal Justice Bill.
I shall not say—because it would be dishonest of me to do so—that I would not have preferred the Bill of the noble Lord, Lord Stallard, to go through. But I hope that the meat of his Bill will be accepted in the Criminal Justice Bill. In these propositions the meat is that there seems to be no rational defence of a law which makes it an offence to sleep rough on the streets. Moreover, there can be no rational defence of a law which makes it a crime peacefully and without aggression to ask a passer-by for money, particularly when the person asking for money has no other means of support. As I said, the Long Title of the Bill is too restrictive to enable us to repeal entirely Sections 3 and 4 but it is enough for us to be able to seek to amend those Sections so as to alleviate the misery of those against whom this Act is used.
This amendment has the support of the noble Lord, Lord Stallard, and also, I am happy to say, the support of the noble Lord, Lord Alexander of Weedon, and the noble Lord, Lord Meston, who cannot be here today, from the Liberal Democrats. So it has all-party support. It seeks to meet the issues raised by the noble Earl at Second Reading of the Bill of the noble Lord, Lord Stallard.
From the Second Reading debate I gather that the Government believe that not all those who beg do so because they need to beg. Here I refer to what the noble Earl, Lord Ferrers, said on Second Reading. In so many words he said that those who beg are not necessarily genuinely needy or homeless. I have sought to meet that objection by subsection (1) (b) so that before a court could impose a fine on someone convicted of begging, the prosecution would have to satisfy the court beyond reasonable doubt that the offender was not begging solely to support himself, herself or dependants.
It seems reasonable to place that burden on the prosecution because it is the police who say that there is a problem with professional beggars. The police say that that problem exists and, if so, when they prosecute surely they must prove that it does exist in each particular case. Should the prosecution be unable to prove that the person in question is a professional beggar, then the court is restricted as to the sentence which it can impose. It may impose an absolute discharge or a conditional discharge or make the offender subject to a probation order. The same applies under subsection (2), where the powers of the court to sentence someone convicted of sleeping rough are similarly restricted. This amendment removes the power to fine such an offender.
Many people would find it repulsive to fine someone who is sleeping rough. The court would be enabled to impose only an absolute discharge, a conditional discharge or to make the offender subject to a probation order. That seems to me very much in line with the purposes of the Bill which is to keep such people out of the criminal justice system and certainly out of prison.
The amendment also seeks to repeal Section 5 of the Vagrancy Act which enables an offender to be committed to the Crown Court for sentence. It seems to us that that part of the Vagrancy Act has been repealed. Following the report of the Home Affairs Select Committee in 1980–81 and the Criminal Justice Act 1982 which implemented that committee's recommendation, both begging and sleeping out ceased to be imprisonable offences. It is therefore no longer appropriate to commit such people for sentence to the Crown Court. The reason for committing someone to the Crown Court for sentence would be that the sentencing powers of the magistrates' courts are inadequate. But when Parliament decided in 1982 that those should not be imprisonable offences, it was, I presume by oversight, that this provision was left in the law. For that reason we do not argue that issue any further but propose, I hope with the agreement of the noble Earl, that that provision should be repealed as a consequential amendment. It is consequential upon what was enacted in 1982.
I have great reservations about the continuance of the offence of sleeping rough. It is not the number of people who are brought to the courts for sleeping rough that matters so much as the use which is made of the offence by the police in threatening prosecution unless those who sleep rough move on. That use of the power is not reported by the police. We therefore cannot know how often it is used. However, those who work among the people sleeping rough on the streets find that it is frequently used but not recorded among the offences. The offences recorded by the police under this section are no indication of the extent to which that power is used.
The amendment proposes to remove the power of a court to fine people for sleeping rough. A fine seems totally inappropriate for people who cannot find enough money to sleep at home. However, it gives the court an opportunity to offer help and assistance to people in that unfortunate position. That help and assistance comes through a probation order which the court may order, or a discharge. That must be preferable to a fine for someone who is so low in life that he sleeps rough. I invite the noble Earl to consider that as the more humane course of action.
In the Official Report of the debate on the Second Reading of the Bill of the noble Lord, Lord Stallard, on 11th December 1990, at col. 489, the noble Earl states:
"The Act also provides for action to be taken against unlicensed pedlars, riotous or indecent behaviour by common prostitutes, dishonest fortune tellers and those who are found on enclosed premises for an unlawful purpose, as well as the offence of indecent exposure which the noble Lord would wish to be retained".
Again I suggest that the noble Earl was perhaps wrongly advised and that by oversight the Government overlooked Schedule 1 to the Statute Law (Repeals) Act 1989 which repealed the offences committed by unlicensed pedlars and so on. In view of that repeal I hope that that part of the amendment satisfactorily disposes of that objection and that the noble Earl will agree accordingly.
In another observation of the noble Earl, he made the point that only aggressive beggars were
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prosecuted. But aggression is not apparent in the offence, look for it as one may in the Vagrancy Act. The experience of those working directly on the streets is that people can be, and frequently are, prosecuted where no element of aggression or intimidation whatever has been present. That cannot be right. Leaving aside the broader issues, I believe that it is right to restrict the court's sentencing powers to enable them to assist offenders rather than to punish them by way of a fine. After all, none of them—except possibly professional beggars—can afford to pay even a low fine. Those who are professional beggars will still be able to be fined.
I shall spare the House from listing them, but I shall be happy to give the noble Earl the alternative offences by which the more objectionable forms of behaviour of those who are on the streets could appropriately be dealt with.
I conclude briefly that the only people liable to be fined under the Vagrancy Act after the passage of this amendment would be professional beggars. In 1982 Parliament decided to remove imprisonment as a sanction. We therefore do not mention imprisonment. Of course it would still be possible for the police to arrest and detain people in police cells overnight prior to their appearance in court when the police believe that there is no address at which a summons can be served. One night's stay in prison is still a possibility.
We further propose to restrict the powers of the courts by keeping fines only for those who can be shown to be professional beggars. That is a reform which I hope the Committee will agree is reasonable and takes into account the Government's objection on a previous occasion. I commend the amendment to the Committee.
Lord Alexander of Weedon: My interest in the issue arises because, in common with the noble Lord, Lord Murray, who I am glad to see in his place, I am a trustee of the charity, Crisis. Throughout the year the charity is concerned with the problems of homeless people not only in our capital city but in urban and rural areas throughout the country.
I declare my firm interest in the issue on a clear basis. I believe homelessness and the begging associated with it to be a social problem. I regard it as bizarre that in the last decade of the twentieth century such an act should be criminal under a law passed in the immediate aftermath of the social problems of the Napoleonic wars. That argument may have a familiar ring to my noble friend Lord Ferrers. He will recognise speaking in support of the amendment a number of Members who debated earlier in the Session the abolition of the Vagrancy Act in a Bill introduced by the noble Lord, Lord Stallard. The Bill passed through this Chamber but I understand that there is no reasonable prospect of it passing through another place. If I am wrong and my noble friend tells me that the Government intend to give the Bill time, I shall readily be party to the withdrawal of this amendment.
On the assumption that the Crime of Vagrancy (Abolition) Bill will not become law we must deal with the situation as it exists. Therefore we must consider within the scope of this Bill what is the right penalty

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for begging for subsistence and for sleeping rough. I am sure that the common ground will be that the punishment for those offences —if offences they must be, and for this purpose I loyally accept that to be the state of the law—must fit the crime.
I need add little to what was said by the noble Lord, Lord Henderson. However, perhaps I may comment briefly on the amendment's two central proposals. The first proposal is that only those beggars shall be fined who are begging for purposes other than subsistence, or who commit other conduct such as intimidation or aggression that gives rise to a breach of the peace or is punishable under other legislation. The simple purpose of the amendment is to ensure that those who beg for subsistence shall not be liable to a fine. It should be for the prosecution to prove that the purpose of begging is for some form of personal enrichment other than subsistence.
Perhaps I may ask a rhetorical question which is dangerous because sometimes it receives the wrong answer. Is it not daft that those who are begging in order to subsist should have an added financial burden imposed upon them for doing so? In the light of that, what will they do? What would any of us do if we were in that situation? We should find the incentive to return to begging increased by order of the court. On that basis I support that aspect of the amendment.
I turn to the second substantive element. It is the proposal that in no circumstances should someone be fined for sleeping rough. On the assumption which I find difficult to take but do so—that sleeping rough is somehow to be regarded as a criminal offence rather than a social problem—how does such degree of criminality as the Government can find within it require a fine to be imposed rather than help to be given? We know that many people who sleep rough are young or psychiatrically disordered. There is no evidence to show that people who sleep rough are in circumstances which warrant a fine being imposed upon them or their being at risk of a threat of a fine.
The amendment points the way firmly to their being given help. Perhaps I may ask another rhetorical question. Is it not help and not a fine that they want? I believe that the amendment accords with what can be regarded as humane, just and decent by right-thinking members of our society. Since I regard this Government as being humane, just and decent, I speak with the optimism that my noble friend Lord Ferrers will find reason for accepting the principle of the amendment. I support the amendment.
Lord Hutchinson of Lullington: In the absence of my noble friend Lord Meston I speak in support of the amendment. It is almost unbelievable, as was said by the noble Lord, Lord Alexander, that we are debating this subject. When I started at the Bar, 45 years ago, I went round the magistrates' courts dealing with people brought before the courts under the Vagrancy Act 1824. I could not believe what I was doing; yet here we are, 45 years later, still discussing the abolition of this Act. How refreshing it would be if, at long last, the Minister could stand up for once and say, "My goodness, having listened to the debate I agree entirely and I shall see that it is swept away." These are social
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problems and have nothing to do with the criminal law in any shape or form. Oh how slowly it all grinds on.
Surely we have reached the point at which the noble Earl can at last rise to his feet and say, "Look, we need discuss this no longer. Of course this is correct and I accept this amendment".
9.15 p.m.
Lord Richard: I find the arguments of the noble Lord, Lord Alexander of Weedon, my noble friend Lord Stallard and the noble Lord, Lord Henderson of Brompton, totally convincing. I sympathise with the noble Lord, Lord Hutchinson. When I started at the Bar I frequently wondered not only what I was doing but why I was doing it and who would benefit from it.
In this instance it seems to me that 1824 is a long time ago. Such mischief as there may have been in the aftermath of the Napoleonic Wars is no longer with us, even under this humane and decent Government. I support the proposed amendment.
Lord Elton: If my noble friend is going to resist this desirable amendment I hope that he will explain not how such an ancient requirement should remain in the law because habeas corpus is a great deal more ancient. I do not believe that antiquity invalidates law—but that he will explain to me, because I cannot understand it, under what circumstances young people would choose to sleep rough if they had a viable alternative and how imprisonment might induce them to take that alternative choice. It will be interesting to hear also how fining people who are begging for subsistence will keep them away from crime.
Lord Murray of Epping Forest: Perhaps I may address very briefly the difference between the inadequate sheep and the professional goats among the beggars which exercised the mind of the noble Earl during a previous debate on this subject. The emergence of begging has been a recent and most unpleasant phenomenon. Surely it must be a passing phenomenon. We cannot imagine it continuing indefinitely.
As has been said, this will not go away unless we take action to remove the causes—lack of jobs, housing and so on. That is where the emphasis must be. When that is done there should be no justification for begging. The professional beggars who do not beg because of need can and should be dealt with properly by law.
The amendment provides specifically for that. However, the amendment rightly aims to remove the odium from the mere act of begging to meet real needs. There are people who beg to meet real needs. Sometimes they may be mistaken and there may be alternative ways of meeting their needs. I hold no brief for the professional beggar and have not much taste for haphazard giving to people who beg in the street. However, we need to distinguish between the two problems and we can do that.
The amendment does that. There are some—perhaps even many—who are either ignorant or inadequately motivated to work. In those cases the

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emphasis should be on providing support with information, which they often lack, and practical guidance. That can arid should be given under a probation order and not by fining or imprisonment. Those people should be given into the care of somebody who will get them back onto the right lines.
If they refuse to take advantage of the opportunity of that guidance and advice they leave themselves open to the charge of begging for money on which they do not depend. They can then be dealt with properly. However, the amendment finds a good way of distinguishing between the inadequate sheep on the one hand and the tiny minority of professional goats on the other.
Lord Stallard: The vagrancy Bill which I sponsored has been mentioned by Members of the Committee who have spoken in this debate. The noble Lord, Lord Henderson, said that there were one or two reservations at the Second Reading of that Bill. This amendment is designed to take care of those reservations. Therefore, it seems to me that the misgivings raised by the noble Earl, Lord Ferrers, at the end of that debate have all been met in this amendment.
The amendment goes further than that. It takes away completely the criminality aspect from the offence of begging for subsistence and sleeping rough. It introduces an element of assistance which we should all like to see. My interest stems from decades of experience on the streets with youngsters, old people, vagrants, the unemployed, the sick, the mentally ill, those released from prison, the homeless, and all the problems that they encounter. We used to say that the furthest one could carry a heavy suitcase from Euston was Camden Town. Therefore we had everything in Camden Town, certainly throughout the past 40 or 50 years.
The problem has now grown. The people involved are younger. They are attracted to the capital with false hopes through advertisements and are now in the trap of being unable to return home because of the shame that they may face or because they have been sucked in to all kinds of nefarious activities since they arrived.
The problem is worsening and the people involved are younger than ever. The answer is not imprisonment or the prospect of criminality. That is counterproductive to the extent that with a criminal record not only is it difficult to obtain an interview for a job, but it is impossible to obtain a job, even if one has somewhere to live; one cannot get either if one is homeless. It is crazy to continue mouthing the age old excuses that they are professional beggars, vagrants and so on. It is meaningless.
As the noble Lord, Lord Henderson, said, a great deal of trouble, effort and expertise went into the tabling of the schedule of alternative statutes that could be used for any offence committed by those people the noble Earl, Lord Ferrers, at Second Reading, said he was afraid may be breaking the law. All those offences could be catered for. The noble Lord, Lord Henderson, mentioned one which the noble Earl mentioned in error in winding up that debate. I must put on record that he wrote to me
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pointing out that it was an error, and corrected it in correspondence. Having said that, the noble Earl and everybody who has spoken tonight have removed any arguments that there may be against the amendment.
Earlier today we heard the noble Lord the Leader of the House making great speeches regarding public opinion and its effect. I speak to the public. I have received God knows how many letters since the introduction of the vagrancy Bill and had many interviews. Professional organisations have written to me; the latest is the BMA which now supports the humane approach suggested by both t he amendment and the Vagrancy Act. They cannot all be wrong. If the noble Lord the Leader of the House advocates listening to public opinion, why does he not do so? The public say that the law is outdated; it is counterproductive; it is outmoded. We should not treat those people like that. They need help, homes to live in, jobs to do and assistance.
That is the way the problem should be tackled. If we put as much energy into that as is used by the police force and the judiciary in picking up those alleged vagrants, scoundrels, vagabonds, fortune tellers and the whole list of people mentioned by the noble Earl at Second Reading, then I am sure that not only would the problem be solved but also public opinion—which appeared to worry the noble Lord the Leader of the House so much this afternoon—would be appeased.
Since the Second Reading of the Bill and since the introduction of the amendment the noble Earl has had time to rethink the position. Like the noble Lord, Lord Henderson, I await his reply with interest.
Earl Ferrers: I enjoyed the moment when the noble Lord, Lord Richard, said that when he first went to the Bar he wondered, "What am I doing? Why am I doing it? What possible benefit can I be to anyone?" Those sentiments sometimes arise in my mind as a Minister. I sympathise with his feelings of those many years ago, which are still prevalent with people later on.
The noble Lord, Lord Hutchinson. in his usual persuasive way, asked why I could not stand up and say, "I have listened to what has been said. Of course I am wrong. I am always wrong and the noble Lord, Lord Hutchinson, is always right". I long to agree with the noble Lord, Lord Hutchinson. I would rather the noble Lord, Lord Hutchinson, agreed with me; it would make things so much easier. However, I find it difficult to agree with him, though I shall do my best.
The clause would reduce or eliminate the penalties for offences under the Vagrancy Act. The maximum fine for begging would be reduced from the present level of £400 to £200 under the Bill's provisions. No fine can be imposed unless the court is satisfied beyond all reasonable doubt that the offender was not begging for money to support himself or herself. The penalty for sleeping rough, which is not an offence unless the person has been directed to suitable free accommodation and refuses, would be confined to a. discharge or a probation order. The magistrates' remaining powers to commit persistent offenders to the Crown Court would be repeated where the offenders can be dealt with for indecent exposure or being on enclosed premises for an unlawful purpose.

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We are familiar with the campaign to end the Vagrancy Act. As we have been reminded this evening, we had the opportunity to debate it last year. I do not blame the noble Lords, Lord Stallard, Lord Henderson and my noble friend Lord Alexander for having a second bite of the cherry. It cannot be said without comment that the Bill proposed by the noble Lord, Lord Stallard, went through your Lordships' House and is now in another place. Because it is feared that the Bill may not have success there, the opportunity has been taken to have another go at the problem.
It is important to get one issue absolutely straight. Homelessness and poverty are social matters of great concern. They should be tackled. One likes to think that that is being done albeit not hard enough or successfully enough under other legislation. It is wrong to think that beggars are necessarily poor because they are not. Some may be. The courts must take account of their means in setting a fine. The noble Lord, Lord Stallard, said that a great many young beggars are now coming on to the streets and that that is awful. I remind him that not all these people are prosecuted.
The fact that there may be more beggars coming on to the streets is a matter for great regret. It is also something which we are all greatly concerned about. That does not mean to say that we should remove a stricture which the law has. The fact is that not all people who beg are necessarily poor. The courts have to take account of their means when they come to certify. Our provisions on unit fines are designed to make this more effective and realistic. If a person cannot pay he is unlikely to be given an unreasonable fine. The maximum penalty also needs to be set in order to allow for the worst kind of case; for example, if an offender threatens or intimidates passers-by and he has a tidy sum of money available. Some people who beg are not penniless. The noble Lord, Lord Henderson, quoted me in connection with the Vagrancy Act and said that he had tried to meet the objections that I put forward.
I wonder whether we can reasonably require the prosecution to prove beyond reasonable doubt that the offender was not begging for money to support himself, as the new clause states, before the court shall have power to impose any fine at all for begging. Means assessments should be done conscientiously for all offenders. It is taking too much on trust to give those who beg in the streets the special privilege of immunity from a fine because they are presumed to be penniless unless the prosecution successfully overcomes that high burden of proof.
I have mentioned that sleeping rough is only an offence in carefully defined circumstances; for instance, where a person has refused to go to free accommodation or where he causes a nuisance. In that regard there were only 16 convictions in the whole of England and Wales in 1989. Although it is rarely used, a fine can be a suitable disposal if more than a discharge is justified and the offence does not justify a probation order which must last for six months and requires the offender's co-operation. In the nature of
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things a recalcitrant rough sleeper is unlikely to give that co-operation. I also oppose the repeal of Section 5 of the Vagrancy Act. It has already been amended with the result that only the persistent offenders who commit indecent exposure or who are found on enclosed premises for an unlawful purpose can be sent to the Crown Court. These can be grave enough matters in my judgment to justify giving magistrates the opportunity of sending them to the Crown Court.
The case which has been put forward so often by many noble Lords concerns whether those who are poor, those who are sleeping rough, those who are homeless and those who are penniless should be caught under such provisions. The fact that they can be caught does not mean to say that they are caught. The strictures under this Bill, and indeed, under the Vagrancy Act, are there for those people who do not necessarily fall into that category but who are more determined beggars; and there are those. I think it is right that we should keep that provision, but at the same time deal in a much more social and humane way with the problems of homelessness, sleeping rough and being penniless.
9.30 p.m.
Lord Alexander of Weedon: Before my noble friend sits down perhaps I may ask him one question arising out of his answer. He indicated that there were circumstances in which a fine might be an appropriate disposal for the offence of sleeping rough. Will he be good enough to give an illustration of any set of circumstances which might justify a fine merely for sleeping rough?
Earl Ferrers: The courts can have that disposal. It would be available for them to use if they considered the circumstances correct. I do not know all those who sleep rough. I have been out at night around London with the Salvation Army visiting those who are sleeping rough. It is a very illuminating sight. All I can tell my noble friend is that some people sleeping rough, it seemed to me, were not totally penniless. They had their own reasons for sleeping rough. I can tell the Committee of one instance where a person had a job at an abattoir. He was content to sleep rough in the Bull Ring. I do not know what his income was. I do not know whether what he was doing was within or outside the law. However, there are people who do have money and who do sleep rough. If a person were to find himself in front of the courts and the courts found that he had committed an offence, the courts might decide, if he had sufficient resources, that a fine would be a suitable penalty.
Lord Stallard: Before the noble Earl sits down, I accept that there are some people sleeping rough who have money. Of course there are. I know people who have come to London to seek employment but cannot get housing. One must realise that rents in London are nothing less than £100 for one room, £150 for two rooms and so it goes on. There are people who do not have that kind of money. So what do they do? They cannot give up their job; they have a family up north to keep; they have to keep as much money as they can.

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They are forced by circumstances to sleep rough. Should they be arrested and fined or prosecuted? Of course they should not.
Does the noble Earl accept that their situation has been worsened by government policy? The situation of young people, students, trainees and so on, has been worsened by dramatic changes in social security benefits. Many of those people are caught in this trap. They have no benefit. They cannot even afford a hostel, let alone proper accommodation. Would it not he more constructive to say that we will recommend that the Secretary of State for Social Security has another look at benefits to see whether the situation can be improved. That would be far more constructive than saying that we will reduce the fine to £200. One might just as well make it a million than reduce it to £200. Who has got £200 when he is sleeping rough on the streets? I do not know any with that kind of money.
The Government are taking a completely wrong approach. The amendment seeks a humane, reasonable and constructive approach rather than punishment.
Earl Ferrers: I accept the difficulty of hunting for a place to rent. The noble Lord says that it costs £100 a week and asks: who has got that? But nobody will be prosecuted for this kind of offence unless he was actually given shelter and refused to take it. It is only then that he comes within the ambit of possibly being prosecuted. The noble Lord, Lord Stallard, asks why the Government do not do something to help these homeless people. I recall, either in connection with the Bill of the noble Lord, Lord Stallard, or in responding to a Question, that I have had a great deal of information about exactly what the Government have done and are doing over homelessness. I have not retained it all in my mind, but if the noble Lord wishes me to let him know exactly what the Government are doing, I shall happily do so. They have made quite a substantial contribution. It is only right that that should be so. However, I do not believe that we want to confuse the business about what we are doing as regards homelessness and sleeping rough with this particular piece of legislation, which deals with catching people who do not necessarily fall into that category but who sleep rough for other reasons.
Lord Harris of Greenwich: The noble Lord, Earl Ferrers, said a short while ago that he was longing for the day—or words to that effect—when he would be able to say to my noble friend Lord Hutchinson of Lullington that he agrees with him. He then added that he would find it even more agreeable if my noble friend were to agree with him.
We are looking forward to the time when the noble Earl will rise and say that, on the basis of a debate in this Chamber, the Government are prepared to look into a matter without making a final commitment. It really is not good enough. We have heard a very powerful speech from the noble Lord, Lord Alexander. To put it no higher, it is extremely discouraging when one receives such an inflexible reply as that just given by the noble Earl.
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I very much hope that the noble Earl will feel able to be more accommodating when he subsequently reflects upon the matter. It seems to me that almost every speaker in the debate has made his position very clear. Moreover, we had a Bill on the matter introduced by the noble Lord, Lord Stallard, which received overwhelming support. We are not asking the Government to accept the totality of the amendment, but we do ask them to at least move to some extent in the direction of what is proposed.
It is most astonishing that we should be having a debate in this Chamber in 1991 in which we are solemnly discussing how someone who is sleeping rough and who has virtually no resources can have a fine imposed upon him by a court which will lead almost automatically, as the noble Lord, Lord Alexander, said, to him having to go back on the streets to start begging in order to pay the fine or recover the money which he has spent on it.
Although the noble Earl seems to be wholly inflexible so far as concerns this Bill, he usually goes to much trouble in an effort to help us. I am not asking him to reply this evening, but I hope that on reflection he will at least consider discussing the matter again with his officials to see whether there can be some movement towards those who have put forward an unanswerable case.
Earl Ferrers: The noble Lord, Lord Harris of Greenwich, has a lovely technique of putting forward a forceful argument; indeed, it is rather like a bulldozer shoving one along the road. However, he then concludes by saying that he does not expect me to reply. Of course I am only too happy to reply to him. I hope that I have not been inflexible in the matter. But, nevertheless, I am sure that he would find it surprising if the Government gave their view on a Bill which came before this place and then six months later, when an amendment covering similar ground was put forward, they took a different point of view. The Government have been consistent in the matter.
Further, when the noble Lord says that a person could be taken before the courts for sleeping rough and fined a certain sum of money which he could not possibly pay, he is not giving the courts any credit for fairness. After having taken into account a person's resources and finding that he has none, the court will not promptly fine him. If the noble Lord thinks that that will happen, he is not giving sufficient credence to the ability of the courts. Of course there are people who could fall into that category who may have resources. If such people are found to have committed an offence, and if they have the resources, the courts may feel that a fine is the right method of disposal. However, those people fall into a slender category.
Lord Harris of Greenwich: I certainly do not want to be a bulldozer on this or any other occasion. All I asked the noble Earl to do was to reflect on this matter following this debate. I am not asking him to make a commitment tonight. In the light of what he said that would be difficult for him to do. All I would say to him with the utmost goodwill is that he has been, if he will allow me to say so, astonishingly inflexible during the three days of this Committee stage.

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I realise that the noble Earl is not responsible for this particular part of the Home Office. All I say to him with the utmost goodwill is that I hope he will reflect on this and on other matters so that we do not get this repetition of reject, reject, reject on virtually every amendment moved from any quarter of the Committee however much support it may have. That is all I wish to say.
Lord Henderson of Brompton: I must say that the noble Earl must be feeling lonely on the Front Bench, and I should like him to reflect on that loneliness. There is nobody in the Committee who has remotely supported him, and I would ask him to take seriously the words of the noble Lord, Lord Harris of Greenwich, and reflect on the unanimous opinion expressed in this Committee. He has an interval between the Committee stage and the Report stage in which to do so.
The noble Earl made the astonishing remark that he found it peculiar that we should ask the Government to consider changing their mind within six months; the six months covering the passing of Lord Stallard's Bill in this House and the Committee stage of the Criminal Justice Bill. Why on earth should not the Government consider what is said in Parliament? That is what Parliament is for. It is there to try to persuade Ministers to take another view, or at least to consider another view.
Here is the noble Earl proud of the fact that he has not moved an inch in six months. I find that astonishing, and I think all the rest of us find that astonishing. We ask him to move in the next two or three weeks before the Report stage and to tell us, if he cannot take on board everything that we are proposing, in what way he would like it to be proposed.
I can see one respect in which he might like the amendment to be amended; for instance, in the scale of the fine. He might say that perhaps scale 2, whatever it is called, may be more acceptable than scale 1. That would be a perfectly reasonable amendment, and he might have other things to think about. But to come here and say that he is proud of not having changed his mind one jot or tittle in the six months' interval between the last time and today is, I should have thought, unacceptably inflexible on the part of the Government.
Earl Ferrers: I do not wish to be difficult with the noble Lord, Lord Henderson, but I have not found him to be someone who very often changes his mind.
Lord Henderson of Brompton: I should not have thought that two blacks make a white. That is, I think, the most feeble and most childish argument I have heard in the House in a long time. I am not ashamed to beg. I beg the noble Earl to adopt a more flexible attitude on this occasion if on no other. I beg, I may say to the noble Earl, without aggression. I do not want to be put in the position of King Lear, who said, "Oh, argue not the need" to those two harpies, Goneril and Regan, with whom the noble Earl
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apparently wishes to equate himself. I would find that an unhappy position to be in if I were the noble Earl sitting alone on the Front Bench.
I ask the noble Earl to consider the theme of everyone who has spoken in this Committee. What these people on the streets need is help rather than harassment, and care rather than criminality. If the noble Earl would kindly consider everything that the Committee has said in the light of my concluding phrases, I am sure that all of us would be extremely grateful to him, and he would find himself a good deal less lonely in the Committee than he now appears to be. With those concluding words, and with the hope that the noble Earl will perhaps drop something in my hat, I beg him to consider what we have said this evening before the next stage. I see no indication of movement on his part, no putting of his hand in his pocket, for instance—he is rather pointedly looking away from me. I am glad that he now turns in my direction and I therefore appeal to him. I see that I am unable to attract him to his feet to respond and I can do no more in the process of pleading. I therefore beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 24 agreed to.
Clause 25 [Interpretation of Part I]:
Earl Ferrers Earl Ferrers moved Amendments Nos. 74 and 75:
Page 19, line 24, at end insert:
(" "mentally disordered", in relation to any person, means suffering from a mental disorder within the meaning of the Mental Health Act 1983;").
Page 19, line 24, at end insert:
(" "pre-sentence report" has the meaning given by section 3(5) above;").
The noble Earl said: We discussed Amendment No. 74 with the other amendments on mentally disordered offenders during the first day in Committee. We have also discussed Amendment No. 75. I beg to move.
On Question, amendments agreed to.
9.45 p.m.
The Viscount of Falkland The Viscount of Falkland moved Amendment No. 75A:
Page 19, line 37, at end insert ("and
(d) any other offence where, if it had been prosecuted as an offence under section 14 of the Sexual Offences Act 1956 (indecent assault on a woman) or section 15 of that Act (indecent assault on a man), consent would have provided a defence thereto.").
The noble Viscount said: This amendment adds a qualification to the definition of sexual offences in Clause 25. It introduces the concept of consent as a defence by the parties to the offence, where these offences take place between men. The criterion of consent is also applicable for homosexual offences under Clauses 1 and 2 which may draw harsher sentences in the form of imprisonment as a result of the legislation.
The amendment is consistent with current sentencing by the courts for homosexual acts between two consenting adults involving a man over 16 but under 21. Neither goes to prison for such offences if both are 16 and over and both consented. Only if there is evidence of corruption, coercion or intimidation are prison sentences normally imposed.
The amendment is meant to ensure that no unintended effect of the Criminal Justice Bill increases sentencing for victimless consensual offences. I use this term advisedly because the term "victimless consensual offences" has been accepted by the Government. It may be of assistance to the Committee at this late hour briefly to run through the three offences which are normally involved in this kind of activity.
First, there is gross indecency which is invariably a consensual offence involving intimate sexual relations between two men which does not involve anal intercourse. Other legislation is used if one of the parties is unwilling, if the offence is not in private and if more than two people are present and/or if one of the parties is aged under 21.
In 1988—which is the last year for which one has accurate figures—there were 1,333 convictions and 163 cautions for gross indecency. Thirteen men were sent to gaol and three received sentences of between two and three years.
The second offence is soliciting, which is a public order offence, making it unlawful in a public place for a man to invite or suggest that another person engages in a sexual activity with him. It does not involve any physical contact. If it did, depending on the willingness of the people involved, it would be regarded as an indecent assault or gross indecency. Soliciting is usually only detected by undercover surveillance or police activity. It is extremely rare for a member of the public to be involved as a prosecution witness. Again, in 1988 545 men were convicted of this offence and 153 cautioned.
The third of these offences is procuring, which is the act of facilitating, abetting, encouraging or inviting the commission of sexual relations between men. I do not need to remind the Committee that that activity is entirely lawful under the law today. In 1988, 328 men were convicted of this offence and 39 cautioned.
It is worth noting that, in regard to all these crimes, repeat offences are, unfortunately, not uncommon. These laws criminalise activity which is accepted practice in most of Europe and which for many men is the only possible way in which they can have a means of sexual contact. In the Bill as originally drafted the courts would be invited to study the past records of offenders when sentencing and to consider heavy prison sentences in repeat offence cases. Conviction rates for the three offences that I have referred to run at about 90 per cent. because so many men who are charged are unwilling to contest the charges, as that attracts publicity which could ruin their lives. It is worth noting that a high percentage of males who indulge in this activity and have leanings towards homosexual activities unhappily lead what appear to be ordinary lives and often have wives and children. An unhappy aspect of sexual life in this country is that many who have tendencies of this kind are forced to keep them under cover and commit offences.
The amendment does not seek to exempt any defendant from existing penalties. It is important to stress that. The amendment simply seeks to ensure that consensual offences will not attract the higher
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penalties made possible by Clauses 1 and 2 of the Bill. It is clear that the penalties for offences of this kind that exist at present reflect, quite properly, the view of society as a whole about homosexual offences of this kind. The view of society may or may not change in the foreseeable future, but it seems certain that no one could possibly believe that serious physical or psychological harm resulted from participation in these homosexual activities, however strange or even distasteful they may seem to others. Thus the amendment is in keeping with the broad philosophy of Clause 1(7).
It is helpful at this stage to go back to the origins of the Bill last November, when various groups and individuals concerned about the current law involving homosexual offences became alarmed at some of the implications of the new legislation which was proposed. As originally drafted, the Bill included as causing serious harm buggery, indecency between men, soliciting and procuring and also offences relating to male prostitution. It is worth noting that it excluded most offences relating to female prostitution.
It reflects credit on the Government that, after a short period of consultation with responsible bodies, they recognised that there was a justifiable concern which ought to be met. That resulted in government amendments which made their intentions much clearer. The amendments were entirely free of discrimination, which had been a fear of homosexual bodies. Credit must also go to the reasonable and thorough way in which those individuals and bodies concerned about the legislation presented their anxieties to the Government.
Discussions covered three key areas. The first was the discriminatory state of existing laws relating to sexual activity between men. The second was the confused state of the law where the same charge applies for victimless offences as for criminal and coercive acts. The extent to which homophobia within the judicial system can corrupt even the best intentions of government would seem to make it necessary for the Government to take into account the drift and the content of this amendment.
The Government have acted with commendable fairness in accepting a great deal of what has been put to them and in amending the Bill accordingly. What I suggest is now needed is for the Government to monitor the effects when the Bill becomes law in order to see whether there is a negative effect in these areas where homophobic magistrates or judges are concerned. The word homophobic is not an attractive word but it is the only one available. It means those who have an almost pathological hatred of homosexual activities and crime. It is hoped that the Government will take a close interest in the results.
I have no intention of pressing the amendment but I look forward very much to hearing the Minister's views, which will be eagerly awaited in many quarters. I beg to move.
Lord Monson: Perhaps I may begin by clashing in the gentlest possible way with the noble Viscount. I am no classical scholar but I believe that homophobic means precisely the opposite of what homosexuals claim it to mean. Homophobia can surely only mean

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an aversion to one's own kind. That is a minor point but I wanted to get it across because no one else seems to have picked up the point.
The amendment deals with homosexual behaviour between consenting adults. This may therefore be the right moment to refer to a recent court case, the outcome of which has worried a great many people including national newspapers of the highest repute. The case concerned a number of mainly middle-aged men, the majority of them model citizens in most aspects of their lives and some of whom, according to the press, held extremely responsible jobs, but who in one area of their lives—their sex lives—were undoubtedly perverts.
In a nutshell, it appears that those individuals got their pleasure, presumably their sole pleasure, from pain and discomfort being applied to their private parts, in some cases to the extent of having nails driven into the tender areas. Naturally it is repulsive to a normal man, and I would imagine to a normal woman, even to think about such painful procedures. Nevertheless, no minors were involved and indeed nobody under 21 was involved. All of those perverse activities took place entirely in private so that no passers-by could possibly have been offended. Amazingly, no one apparently needed any treatment on the National Health Service or any medical treatment whatsoever. Above all, no one had anything done to him without his wholehearted consent. That is the nub of the matter. Yet the participants received quite severe sentences of up to three years' imprisonment, to the surprise, and I think it is fair to say the indignation, of much of the national press.
It is curious that two men can inflict quite severe injuries on each other in a boxing match, whether in public or in private, without falling foul of the law. As I understand it an individual can quite legally cut off his or her finger with a carving knife should the individual for some strange reason feel inclined to do so. So the decision of the court in the case in question seems thoroughly illogical.
Even if one does not happen to be one of those who subscribes to the belief that individuals have the right to do as they please with their own bodies so long as nobody else is harmed thereby, one must surely agree that prison is the very worst place to send people who in this particular narrow sphere of their lives are obviously deranged—round the bend, in popular parlance. After all, prison must accentuate such tendencies and, moreover, provide an opportunity for them to be played out.
One could agree to leave such individuals, distasteful though they are, alone, so long as they remain thoroughly discreet. That is a course which I would favour. Alternatively, if one happens to be of a bossy turn of mind one could legislate to compel them to submit to medical treatment. Whether any such treatment would do the slightest good I have no idea. I suspect not, but you could always have a go. However, prison seems both utterly wrong and counter-productive. I should be glad to hear the opinion of noble Lords or, failing that, of the noble Earl, Lord Ferrers, on that point.
10 p.m.
Lord Hutchinson of Lullington: At this late hour it is difficult to take up time on a matter such as this, but I have had difficulty in understanding the drafting of the amendment. As I understand it, sexual offences which may draw unto them the extended sentence under Clause 1(7) should be excepted where consent would be a defence as it is in charges of indecent assault; in other words, as my noble friend Lord Falkland put it, any consensual sexual offence as mentioned in the interpretation clause, Clause 25. It is therefore a matter of importance and, as it deals only with male homosexuality, it is particularly important to persons who are homosexually inclined. One is therefore entitled to take a little time on the matter.
There is no victim; there is agreement to what is going on whatever form the sexual offence takes. Surely there are no circumstances in which such offences could possibly entitle a court to give not only an appropriate sentence but an extended sentence. If the noble Earl says, "Ah, but no court would ever do that", the point is that the inclusion of such offences in that interpretation clause sends out a signal to all the courts in the country that the Government take the view that those offences are potentially of a type which should attract, in the worst case, not only a serious sentence but a quite exceptionally serious sentence. Surely that simply cannot be right.
The noble Earl has been a little unkind to me because he has not noticed that on at least three occasions during the passage of the Bill I have said that I think that the Government are right about this matter. He did not get up and say, "Oh, how nice to hear that", on any of those occasions. I hope that on this occasion he will perhaps redress the balance.
I now deal with the two matters of gross indecency and importuning by male persons. The criminal law of this country is far harsher on those homosexual offences than is any other European country. They are simply offences by law. They are nuisances. They are not offences which should attract long criminal sentences. If such behaviour between consenting adults is made criminal, surely penalties should be in proportion to the harm that is done.
The trouble with such offences is that the public harm that they do, the personal disgrace to which my noble friend referred, and the character assassination are out of all proportion to the significance of the offence itself. To be convicted of some miserable offence with another man in a public lavatory is sometimes to bring absolute disaster on the man concerned, his employment and his family which is out of all possible proportion to the public harm caused by two men misbehaving in a public place. That is so much so that the circumstances of these offences give rise to widespread corruption and if not corruption itself then to the temptation to corruption on the part of the police.
Vice squads patrol the lavatories. They patrol parks and dark alleys in built-up areas. They dress in plain clothes and they act, as we all know—it is known not only by those who practise in the criminal courts but by great numbers of the public—as agents provocateurs in those circumstances. What happens is that

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they do not in fact observe any criminal act at all. They wait until they see someone who is loitering around a lavatory or dark place. They can see that that person is homosexually inclined. After a period of time the person disappears into the lavatory and then comes out again. They then make an arrest. The evidence that they give in court is simply evidence by rote which is always exactly the same. Every man who perpetrates such an offence always behaves in exactly the same way and of course the police have not seen it at all. The evidence is that the person is arrested for what they are and not for what they do.
The offence is very much akin to the offence of the suspected person loitering with intent under the old Vagrancy Act to which reference has been made. Recently, after years of agitation, we finally succeeded in getting rid of it. Why? What was the mischief? The mischief was that people were arrested for what they were and not for what they were doing. The offences of importuning in lavatories and gross indecency alleged between men in public places are of exactly the same kind. It lends itself to all forms of corruption and indeed to the ruin of a person's character.
It seems to me and no doubt to many other Members of the Committee quite outrageous that those offences should be left in the interpretation clause. It is difficult enough to interpret the interpretation clause, but when one ferrets about, as my noble friend has done, one finds that those offences have been left in it. They should not be there.
I hope that the noble Earl will follow the excellent approach of his colleague Mr. Patten in another place who listened to the arguments, came forward and said that he would think again about the matter. As a result the amendment on the Marshalled List has been produced in the name of the noble Earl. Perhaps the noble Earl could follow that example, complete the matter by taking these offences out of this clause and at least accept the amendment.
Earl Ferrers: I should be the first to say to the noble Lord, Lord Hutchinson, that if I was unfair to him I deeply apologise. He was good enough to agree with the Government on a number of occasions—I think he said three but I did not remember to count them. He did indeed say so and I am grateful to him for having acknowledged that he thought that the Government were right.
The noble Viscount's amendment reopened the debate which was commonly known as the Clause 25 issue. It might be helpful to explain to the Committee how the Government view this matter and what we have tried to do about it.
As the Committee will know, the Bill's sentencing provisions enable a court to impose a custodial sentence on someone who is convicted of a sexual offence, in the interests of protecting the public from serious harm from him. In deciding the length of sentence the court may impose a longer sentence than the seriousness of the offence would merit, again in the interest of protecting the public from serious harm from the offender. Clause 25 defines sexual offences so as to include most such offences—for example, rape, buggery, incest, indecent assault, indecency between men and solicitation by a man. There was concern that
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the courts might interpret those provisions in such a way as to justify longer sentences for persons who were convicted of offences involving minor homosexual acts, where all parties consented, and there was no risk of serious harm.
The Government did not believe that the Bill was in fact open to this interpretation or would have been so interpreted. Certainly it was never the intention of the Government that it should be. We nevertheless moved, by introducing amendments to the Bill in another place, to allay the concerns which had been expressed—something to which the noble Lord, Lord Hutchinson, gave credit. These defined "serious harm", in cases involving sexual offences, so as to make it clear that a longer custodial sentence could be imposed only if this was necessary in order to protect members of the public from the risk of death or serious mental or physical injury caused by a further sexual offence committed by the offender in question. This makes it clear that minor and victimless homosexual activities cannot be used in order to justify a heavier sentence to protect the public. We thought then, and still do, that this was sufficient to meet any reasonable concern about the operation of these provisions.
Perhaps we may consider the amendment for a moment. I am delighted to say that it is my turn to agree with the noble Lord, Lord Hutchinson. I, like he, find it difficult to understand the amendment because its effect is not entirely clear. That is because it requires the courts to sentence for one offence by analogy with another. However, one of the intended effects seems to be to exclude from the definition of sexual offences in Clause 25 of the Bill any offence of indecency between men both of whom were aged 16 or over and both of whom consented.
There are, I think, real difficulties with this approach. Establishing consent is by no means straightforward in every case. It for example, be difficult to establish consent or otherwise in cases where an older man—a respected uncle perhaps—persuaded a boy in his late teens, with inducements, to take part in a homosexual act.
I am not trying to argue that consent is never a relevant consideration in these kinds of case, but simply that the matter is not as clear cut as this amendment would suggest. As I have already explained, the amendments made to the Bill in another place already ensure that, where there really is no risk of serious harm to potential victims, the courts will not have the power to impose a more severe sentence than is commensurate with the seriousness of the offence.
The amendment is therefore, I believe, unnecessary. And I fear that it would also have side effects which I am sure the noble Viscount cannot have intended. For example, it would seem to remove from the power to give a heavier sentence in order to protect the public —which in this case would be the remainder of his family—incest with a girl aged 16 or over where she gave her consent.
The noble Viscount, Lord Falkland, was kind enough to say that he did not intend to press the amendment. However, he wished to know whether the Government would be prepared to monitor what is

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happening. I can assure the noble Viscount that we shall monitor carefully the effects of the Bill, including this part. I hope that that reassurance will assist the noble Viscount.
The Viscount of Falkland: I thank the noble Earl for his courteous and full reply. I should like to study what he has said and consider the implications. I am not absolutely certain about the doubts that he expressed on consent. I believe that the example he gave about the uncle would be an unlikely event to take place in a public lavatory. It would more likely take place in the home and, if the scenario that he described were to take place in the way that I understood, it would probably come under the heading of coercion or indecent assault. I am not clear about the dangers which the Minister visualises in certain types of consent as he has implied. I should like to look at the matter and reserve the right to come back at a later stage.
Lord Richard: Before the noble Viscount sits down perhaps I may make one comment and apologise for not having been present during the early part of the debate. Members on these Benches also wish to study the precise implications of the wording of the amendment. We too reserve the right to return to the matter at a later stage.
Lord Harris of Greenwich: The Minister said that the matter will be monitored. Precisely who will be asked to do that?
Earl Ferrers: I cannot give the names of the people and the noble Lord would not expect that. However, it will be the responsibility of the Home Office.
Lord Harris of Greenwich: Will it be carried out within the department?
Earl Ferrers: Yes, it will.
The Viscount of Falkland: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
10.15 p.m.
Earl Ferrers Earl Ferrers moved Amendment No. 75B:
Page 19, line 42, at end insert ("and includes an offence which is required to be charged as arson (whether or not it would otherwise fall within this definition).").
The noble Earl said: The amendment ensures that the courts continue to have the necessary powers to protect the public from serious harm from offenders convicted of arson. Members of the Committee will recall that under Clauses 1 and 2 of the Bill custodial sentences and longer sentences may be given to protect the public from violent and sexual offenders. That reflects our view that a distinction should be drawn between offences against the person, on the one hand, and offences against property on the other. Arson does not, however, fit very neatly into either of these categories. On reflection we have concluded that it has more in common with violent offences than with property offences and that heavier sentences to protect the public should be available for it.
A charge of arson may be brought, broadly speaking, in one of two forms. The first is arson with intent to endanger life, which is an offence which is triable only on indictment. This would already fall within the definition of a violent offence under Clause 25. The second type of charge—that is, arson other than arson endangering life —would not at present do so. As the Bill stands a custodial sentence or a longer sentence could not be imposed where the offender was convicted of an act of arson which had not on that occasion endangered anyone's safety, even if it were clear that on a future occasion his activities might well result in someone's death or serious injury.
Some arsonists are disturbed individuals who cannot control their impulses. They share some of the qualities of offenders who commit violent and sexual offences. That is why a maximum of a life sentence is available for offences of arson, even if the person is not charged with arson endangering life. The long-held view of Parliament and the courts, which I am sure is right, is that custodial sentences may need to be given in order to protect the public from harm from arsonists.
It is often largely a matter of chance whether anyone is hurt by an act of arson. A building which an arsonist sets alight may or may not be occupied. Even if it is not it may only be a matter of time before a further offence is committed in which someone does get hurt. We believe that the courts should be able to pass protective sentences in such cases.
The courts need their powers to pass longer sentences on arsonists in order to protect the public. That is illustrated by the number of arsonists in the prison population. On 30th June 1989 there were 62 prisoners serving life sentences for arson. There were only two larger groups of offenders sentenced to discretionary life sentences—183 were convicted of manslaughter and 127 convicted of rape.
We are not, of course, saying that offences of arson will automatically attract longer sentences. The courts will still need to be satisfied under Clause 1(7) that members of the public need to be protected from the risk of death or serious personal injury that might be caused by further similar offences committed by that offender. I hope that Members of the Committee will agree that arson represents a special case. No other offences are comparable in being not violent as presently defined in Clause 25 but capable of demonstrating a propensity to dangerous behaviour which puts the public at risk. I beg to move.
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 76:
Page 19, line 43, leave out subsections (2) and (3) and insert:
(2) For the purposes of this Part, an offence is associated with another if—

(a) the offender is convicted of it in the proceedings in which he is convicted of the other offence, or (although convicted of it in earlier proceedings) is sentenced for it at the same time as he is sentenced for that offence; or

(b) the offender admits the commission of it in the proceedings in which he is sentenced for the other offence and requests the court to take it into consideration in sentencing him for that offence.

(3) In this Part any reference, in relation to an offender convicted of a violent or sexual offence, to protecting the public from serious harm from him shall be construed as a reference to protecting members of the public from death or serious personal injury, whether physical or psychological, occasioned by further such offences committed by him.").
The noble Earl said: This is a technical amendment to tidy up the drafting of the Bill. It was discussed with Amendment No. 6 on the first day in Committee. I beg to move.
Lord Hutchinson of Lullington Lord Hutchinson of Lullington moved as an amendment to Amendment No. 76, Amendment No. 76ZA:
Line 8, leave out paragraph (b).
The noble Lord said: I wish to move this amendment because this is the only opportunity to do so. Although the noble Earl's amendment has been described by him as technical, Clause 1(2) states:
"the court shall not pass a custodial sentence … unless it is of the opinion that the offence, or the combination of the offence and one other offence associated with it, was so serious".
In other words, the most severe community sentence would not reflect the seriousness of the two offences together.
As regards paragraph (b), one of the other offences may be an offence which the defendant asks the court to take into consideration. My amendment suggests that paragraph (b) should be omitted. I understand that the subsection prevents an aggregation of a number of less serious offences in order to justify a custodial sentence. I accept that entirely as a principle worthy of support. It limits the aggregation to one other conviction in the same proceedings or, as I have said, one other matter which is asked to be taken into consideration.
The problem is that an offence asked to be taken into consideration is not in law a conviction. That is an offence about which the offender makes a request to the court. The court may or may not agree to that request. The prosecution and the police may know nothing whatever about the offence. There is no presentation of evidence. There is no statement of the surrounding circumstances, there is no arraignment and no indictment. The full facts and circumstances are not necessarily before the court and, by the very necessity of the procedure, cannot be before the court at the time of sentencing. It is an entirely informal procedure which enables an accused person to clear his record and, indeed, his conscience. It helps the police to increase their clear-up record. Undoubtedly, the procedure serves a useful purpose.
It seems to be a dangerous and shifting sand on which to found a prison sentence for such a matter to be allowed to tip the balance between a community and custodial sentence. That seems to be a very dangerous procedure. Of course, one of the dangerous results of this provision is that on the face of it it will deter offenders from asking the court to have matters taken into consideration. Quite obviously, one could not advise a defendant charged with one offence, which clearly would not justify a custodial sentence, to stand up and say, "Well, will you please take one other matter into consideration about which the police know nothing?" One would have to advise a defendant that if he does that, then he is almost bound
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to receive a custodial sentence. Therefore it will be extremely difficult from now on to persuade defendants to have matters taken into consideration. That useful informal procedure will, T fear, be set at naught.
The solution to the problem is for the CPS, or whoever is prosecuting, to ensure that the relevant offences known to the police are included in the indictment. If a defendant makes any form of confession, if the prosecuting authority feel that it is of sufficient seriousness, it should be included in the indictment. If it is not in the indictment it should not formally be used for sentencing. That does not mean that the court should not be able to take it into consideration and that the matter should not be allowed to be cleared up. I beg to move.
Lord Richard: I rise to support the amendment moved by the noble Lord, Lord Hutchinson. The fundamental point here is that a request for an offence to be taken into consideration is clearly different in law from a conviction, as the noble Lord said. It goes back to the case of Howard. Lord Justice Russell argued that issue at some length. During the course of his judgment he said that he wished to be able to hold that an offence which he had been asked to take into consideration was the same as a conviction, but he felt constrained not to do so. As he pointed out, the full circumstances of such an offence were not before the court; there was no disclosure of the prosecution case; full evidence had not been heard. In such circumstances it would surely be wrong to imprison an offender wholly or partly on the basis of an offence of which the court, by definition, had only partial knowledge.
I take the point also, and underline it, that it is likely to deter offenders from admitting offences to be taken into consideration, thereby damaging the efficacy of a valuable system which enables the police to clear up offences. The amendment proposed by the noble Lord, Lord Hutchinson, makes a powerful point and we support it.
Lord Harris of Greenwich: One measure of police efficiency is widely accepted—I am not sure sensibly —to be the percentage clear-up rate. It is the view of many that one way in which one can make a judgment on the efficiency of an individual police force is to take account of what that clear-up rate is. If we are moving to a situation in which, for the reasons given by my noble friend Lord Richard, defendants will be deterred from having offences taken into consideration, the consequences could be significant. I hope that the Government have considered the matter and discussed it with the Chief Inspector of Constabulary and others, who will certainly have a view on the question.
Earl Ferrers: It has long been the practice that, when people are convicted of an offence, they may ask the court, when passing sentence, to take into consideration other offences which they have committed. The system worked well. Everyone seems to have benefited.

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The noble Lord, Lord Hutchinson, said that it enabled the police to clear up large numbers of offences. As the noble Lord, Lord Harris of Greenwich, rightly said, the percentage clear-up rate is an important statistic. It is one which helps the police and the inspectors of the constabulary to discover how successful they are in dealing with crime. The system saves the courts time by enabling offences which the offender is prepared to admit to be dealt with without further ado. It benefits the offender because, by asking for his other offences to be taken into consideration, he wipes his slate clean. Therefore, it has a great many advantages. The amendment would make it almost impossible to continue with that system and it would create a curious situation. A defendant might still ask for other offences to be taken into consideration when the court was sentencing him for the offence for which he had been convicted. However, the court would be unable to do so. Such an offence would not qualify as an associated offence and could not therefore be reflected in the sentence it passed. The offender would be able to admit previous offences but, having done so, the court would be unable to penalise him for them.
The noble Lord, Lord Hutchinson, said that it would deter offenders from admitting previous offences. I think that that is true. If so, that would be a disadvantage. It is entirely up to the offender whether he asks for other offences to be taken into consideration. No doubt he would refrain from doing so if he thought that it would be to his disadvantage. Where an offender actually asks for other offences to be taken into consideration it must be right that in deciding what sentence shall be appropriate the court should be able to weigh those offences in the same way that it weighs the offences of which the defendant has been convicted. When a court takes such offences into account it mitigates the penalty in view of the co-operation which the offender has shown in admitting the offences.
As the new clause introduced by government Amendment No. 71 makes clear, that will continue to be so under the Bill. I hope that the noble Lord, Lord Hutchinson, will agree that Amendment No. 71 is better as it is and that we should encourage the admission of offences by people who have been convicted and that they should be able to wipe the slate clean.
10.30 p.m.
Lord Hutchinson of Lullington: I wonder whether the noble Earl has understood the amendment. It is not a question of making it impossible to continue with the system or of courts being unable to take matters into consideration. Under paragraph (b) of Amendment No. 76, the court is enabled to pass a custodial sentence if the offence asked to be taken into consideration is used for that purpose. The only purpose of the amendment is to remove that particular facility. Courts will be able to continue to take matters into consideration whenever they wish to do so. This amendment does not touch that in any shape or form. Courts will go on taking matters into consideration. The point of the amendment is only to avoid the
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power of the courts to use such an offence in order to justify custody. Perhaps the noble Earl will give the matter further thought. In his reply it seemed that he had completely misunderstood the purpose of the amendment.
Earl Ferrers: I shall certainly consider and take into account what the noble Lord, Lord Hutchinson, said. If I have missed the purpose of the amendment I apologise to him. The provision applies not only to the decision on the use of custody but also to the length of custody. All the offences of which the offender has been convicted or has asked to be taken into account are dealt with. If the court had no power to reflect offences which the offender had asked to be taken into consideration in setting the length of sentence there would be no point in enabling the offender to ask for offences to be taken into consideration. As I understand it, that would be the effect of the noble Lord's amendment. If the noble Lord, Lord Hutchinson, says that I have got it wrong, I shall certainly look at the matter and see if I have. In that case I shall contact him.
Lord Hutchinson of Lullington: The noble Earl is most gracious. On that basis I have pleasure in withdrawing the amendment.
On Question, Amendment No. 76ZA, as an amendment to Amendment No. 76, by leave, withdrawn.
On Question, Amendment No. 76 agreed to.
Clause 25, as amended, agreed to.
Lord Nathan Lord Nathan moved Amendment No.76A:
After Clause 25, insert the following new clause:
("The Life Sentences Review Tribunal
.—(1) There shall be a tribunal, to be known as the Life Sentences Review Tribunal ("the Tribunal"), for the purpose of exercising the functions conferred on it by this Part of this Act.
(2) Schedule (Life Sentences Review Tribunal) to this Act shall have effect with respect to the Tribunal.").
The noble Lord said: This amendment, together with Amendments Nos. 76B, 76C and indeed 77A, 77B and 77C, are linked or consequential to each other. The matters concerned in Amendments Nos. 76A, 76B and 76D constitute together a scheme under which a judicial process shall be applied to determining whether or not life prisoners shall be released. This was the subject of earlier debate. I can see no reason to discuss them further. I do not know whether it is in order for me to move Amendments Nos. 76A, 76B and 76D together. If it is not, I move Amendment No. 76A. I beg to move.
Lord Waddington: In an effort to help the Committee, which I imagine would not wish to divide at this hour, I invite the noble Lord, Lord Nathan, not to press this and succeeding amendments on the basis that, obviously, I have to and will consider the consequences of the earlier decisions of the Committee on Amendments Nos. 69ZA and 69A. I shall also consider these other amendments which we discussed at the same time and which—I agree with the noble Lord—are fairly closely linked with them. If, at the

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end of that consideration, the noble Lord is dissatisfied with anything I have to say, he will be able to return to these matters at a later stage.
Lord Nathan: I am grateful to the noble Lord the Leader of the House for that suggestion. When I opened my remarks in introducing Amendment No. 69ZA relating to the abolition of the mandatory life sentence, I referred to this as part of a scheme of things constituting the recommendations of the Select Committee. On the undertaking of the noble Lord the Leader of the House that he will consider these matters and on the clear understanding that we may come back to this matter, which we regard as an important element of the whole scheme put before the Committee, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 76B not moved.]
Lord Harris of Greenwich Lord Harris of Greenwich had given notice of his intention to move Amendment No. 76C:
After Clause 25, insert the following new clause:
("Tribunal to review life sentences in cases other than murder
.(1) There shall be a tribunal, to be known as the Life Sentences Review Tribunal ("the Tribunal"), for the purpose of exercising the powers of review of life sentences in cases other than murder.
(2) The Secretary of State shall refer the case of every life prisoner convicted of an offence other than murder to the Tribunal for review not later than two years before the expiry of the penal term applicable to his case.
(3) It shall be the duty of the Secretary of State to give effect to any directions given by the Tribunal in regard to a life prisoner whose case is referred to it under this section.
(4) In this section "penal term" means the sentence of imprisonment which the court is required by section (Court's duty on passing sentence of life imprisonment) to state in open court as being the sentence it would have passed if it had not passed a sentence of imprisonment for life.
(5) Schedule (Review of Life Sentences in Cases Other than Murder) and Schedule (Life Sentences Review Tribunal) to this Act shall have effect with respect to the Tribunal.").
The noble Lord said: I am grateful for what the Leader of the House said. He will realise that this issue involves the non-mandatory life sentence. He will know that many of us attach high priority to this question as well as to the other. It is part of a scheme. I do not propose to move the amendment for the reasons given by the noble Lord, Lord Nathan.
[Amendment No. 76C not moved.]
Clause 26 agreed to.
[Amendments Nos. 76D to 76F not moved.]
Schedule 4 agreed to.
Clause 27 [Duty to release short-term and long-term prisoners]:
On Question, Whether Clause 27 shall stand part of the Bill?
Lord Richard: I gave the Government notice that I wished to speak on Clause 27 stand part. Due to the lateness of the hour I shall not be lengthy in my remarks. However, I believe that this a convenient moment during the Bill's proceedings when one should perhaps look again at the possible results of the Government's proposed changes to the parole system.
I should tell the Committee that I am concerned about the effect of the decision to change the parole
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release point from one-third to one-half. I believe that it is likely to result in an increase in the prison population as prisoners would inevitably have to serve longer periods of imprisonment. That was clearly not the intention of the Carlisle Committee. I am delighted to see that the chairman of that committee is present in the Chamber.
The Carlisle Report makes quite clear that its proposals were designed to be accompanied by a change in sentencing levels to ensure that the actual time spent in custody was not increased. The report says:
"We believe that the new scheme which we have proposed … should provide the springboard for a thorough reassessment of present sentencing levels…It would be an unbalanced approach and add undesirably to the overall quantum of punishment to enhance the meaning of sentences in the way which we propose without at the same time working for a reduction in present tariffs".
A little later the report states:
"There is a risk that the disappearance of release at a third and the increased liabilities which we propose for the latter part of the sentence could add possibly substantially to the prison population".
Those are not my words; they are the words of the Carlisle Report. It continues:
"We have proposed the scheme … in the hope and expectation that it will be accompanied by the changes in sentencing practice which we wish to see".
The noble Lord, Lord Carlisle, made the point very clearly in a debate on 30th November 1988 when he said (at col. 318) that the changes,
"should be accompanied by a determined effort by the judiciary and those in politics to reduce the length of sentences that are being passed, particularly in the middle band".
I am concerned to note that this Bill does very little, if anything, to provide for the effective sentencing reforms which the Carlisle Committee and, indeed, the noble Lord, Lord Carlisle, felt would be necessary. It would be absurd if the effect of a change designed to rationalise parole ensured that prisoners who are currently deemed safe to be released on parole after having served one third of their sentence were now not to be released until the one half point had been reached. If that happened, the likely result would be an increase in the prison population. As I understand matters, that is something which we are all anxious to avoid. I should be grateful to hear the Government's views as to how they propose to avoid this particular danger.
Lord Carlisle of Bucklow: I was not aware that the noble Lord, Lord Richard, was intending to speak on Clause 27 stand part. At this late hour, I shall not make a lengthy defence of what we proposed in our report. I merely say to the noble Lord that the committee which I had the honour to chair carefully considered what was the appropriate proportion of a sentence which should be served in those short-sentence cases where it is proposed that when that sentence has been served the person concerned should automatically be released. We believed that to propose a system whereby a person should automatically be released after having served only one third of his sentence would have been unacceptable to the public. We believed that the right proposal was that a person should serve one half of the sentence imposed. That is why we made the recommendation.

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I should also tell the noble Lord, Lord Richard, that we recognised that if in fact the sentences remained the same in length, and therefore people who are serving one third of their sentence at present then found themselves having to serve one half, it would mean that some people would spend longer in prison than is the case at present. It is right that we coupled our proposal that one half of a sentence should be served with a clear recommendation that it should be implemented and that, at the same time, a determined effort should be made to get down the length of sentences in that area of sentencing so as to reflect the effect of the proposals we made.
I believe that that was the right approach. I trust that Members of the Committee will forgive me if I do not attempt at this hour of night to expand further on the reasons which led us to that decision. I merely say to the noble Lord, Lord Richard, that we went most carefully into the matter and we believed that it was right to recommend automatic release for the one half point rather than the one third point of the sentence.
10.45 p.m.
Lord Harris of Greenwich: It is always tempting to begin a discussion on some aspects of the parole scheme, but this is rather late in the evening to do so. By and large I agree with the noble Lord, Lord Richard. It was one of the matters in Lord Carlisle's report about which I had some anxiety. It means that a number of people who represent no risk to the public will be kept in prison longer than is necessary. As the noble Lord said, while there is undoubtedly a risk, unless there is a change in sentencing practice in the courts there could be a substantial increase in the size of the prison population. I hope that will not take place.
The question that I should like to put to the noble Earl, Lord Ferrers—and I am not asking him to deal with this matter tonight; I should be happy to have a letter from him on this question—concerns a matter that does not appear in the Bill but which follows directly from the recommendations of the committee of the noble Lord, Lord Carlisle, and a recommendation that has been accepted by the Government. In future the reasons will be given why people have been denied parole. I have expressed my view on this on a number of occasions in the past, and I do not intend to repeat it this evening.
The matter that troubles me was dealt with in the noble Lord's report on this question, and it is whether a person making a statement to a probation officer —possibly a home probation officer—possibly the wife of a person in prison, or the girl friend of a wife of a man in prison—will be told by the probation officer that it is possible, or indeed likely, that what she says will be disclosed to the man in prison. This is a significant risk.
The noble Lord, Lord Carlisle, and his colleagues in their report, in supporting the idea of giving reasons, indicated that they too recognised that there was a risk so far as this was concerned. They said it would only apply in possibly a small number of cases, and that may be true, but this is undoubtedly a serious
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matter. If in fact something is disclosed in a home circumstances report to a man who has a record of considerable violence in his past criminal record, the persons concerned could inadvertently be putting themselves at risk in the future.
What I want to know is what arrangements are being made for the probation service and anybody else who may be concerned to tell those concerned that there will be full disclosure to the inmate. I have put the matter as clearly as I can, and I should be grateful if the noble Earl could deal with it in correspondence. The matter does not appear on the face of the Bill, but as the Government have said that they have accepted this recommendation I assume that it will be implemented by some form of administrative arrangement.
Earl Ferrers: With regard to that last question of the noble Lord, Lord Harris, I shall certainly look into it. He has identified an important issue that we shall have to consider as we move towards openness in the parole system. I should like to take up the noble Lord's offer to consider it and write to him about it.
The noble Lord, Lord Richard, was concerned about prisoners being released after half the sentence, and he thought that they ought to be released after a third. We had the advantage of my noble friend Lord Carlisle of Bucklow who actually produced the report, and I think he said almost everything that I could have said, and a great deal better too. The noble Lord shakes his head.
Lord Richard: I obviously did not make myself clear. The point I was making was that under the new proposals there is a great danger of an increase in the prison population. As the Carlisle Report said, that must be balanced by a change in sentencing practice. I was asking the Government what steps they were taking to ensure that the changes in sentencing practice take place and that there is not an increase.
Earl Ferrers: I was coming to that. If we look at the straightforward calculations, if a person spent one-third of the time in prison and he will now spend one-half of the time in prison, the chances are that one might expect the prison population to increase. However, I do not believe it is as simple as that. The majority of prisoners will be released after serving half their sentences. At present some are released earlier because they get parole, others are released later because they do not get parole. We believe that the effect of the provisions on the prison population should be broadly neutral. There may be an increase in the prison population because prisoners will be liable to be returned to prison under Clause 33 on conviction of a further imprisonable offence.
However, the view of my noble friend's committee, which we share, is that by restoring meaning to the sentence passed, the proposals would justify a reduction in the average length of sentence which would offset this. I have no doubt that the magistrates and judges will note what my noble friend's committee said and take it into consideration when they pass sentence.

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I can understand the concern of the noble Lord, Lord Richard, but it is difficult to look forward to the future and guess what will happen. We believe that the effect will be fairly neutral, but one can never guarantee that.
Clause 27 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 nine minutes before eleven o'clock.