Lords Sitting of 3 July 1991

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

Baroness O'Cathain
Detta O'Cathain, OBE, Mrs. Bishop, having been created Baroness O'Cathain, of The Barbican in the City of London, for life—Was, in her robes, introduced between the Baroness Elles and the Lord Fitt.

Schools Outreach: Funding
2.58 p.m.
Lord Ashbourne Lord Ashbourne asked Her Majesty's Government:
Why the funding commitment for Schools Outreach which they announced on 29th February 1988 (H.C. Deb., cols. 797 and 798) has not yet been fulfilled.
The Minister of State, Department of the Environment (Baroness Blatch): My Lords, the funding to which my noble friend refers was offered to Schools Outreach to support a specific and substantial project, subject to that organisation securing complementary funding from a local education authority. Since that condition was not met, the department could not provide funding for the project.
Lord Ashbourne: My Lords, I thank the noble Baroness for that carefully worded reply. Observing that Schools Outreach was originally offered over a three-year period £150,000, which has never been received, and considering that the DES is currently being asked to match the commitment, which totals less than £100,000 over four years, made by the Berkshire local authority, will she now tell the House when the Government intend to honour their promise and match pound for pound the current commitment from the Berkshire local authority?
Baroness Blatch: My Lords, the application for funds to support the Berkshire project is with my department and is being considered at this time. The figure of £150,000 mentioned by my noble friend was subject to three conditions, which were not met. The offer therefore remains on the table until those conditions are met.
Baroness Seear: My Lords, will the noble Baroness do her very best to ensure that her department deals quickly with the Berkshire Outreach application? Voluntary organisations suffer all the time from delay by the Government in dealing with commitments. Is she aware that it makes it extremely difficult when there are cash flow problems of that order?
Baroness Blatch: My Lords, the noble Baroness will know that we are very impressed with the work of that organisation. I myself am on record as saying that I
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am impressed with the organisation. The matter is being pressed in the department and I understand that a decision will shortly be made. In addition, the department has put up money for a proper evaluation of all the work of the organisation called Outreach.
Lord Taylor of Blackburn: My Lords, will the Minister tell the House what are the three conditions that have not been met?
Baroness Blatch: My Lords, they are that the project was conducted in one single LEA; that the LEA would guarantee to make a financial commitment to the project for three years, given that it is work which complements work going on in the LEA; and that following that and subject only to a favourable assessment the LEA would continue to fund the project for a further three years at the level previously supported by the DES.
Baroness Faithfull: My Lords, does my noble friend agree that research has shown that non-attendance at school in this country—which anyway is illegal—is very high and that it is very difficult for the social service departments and education welfare officers to combat it, whereas Schools Outreach helps to meet that need? Would it be possible to expedite the grant given to that organisation?
Baroness Blatch: My Lords, my noble friend makes an important point. The work is very much geared toward helping young people who for one reason or another do not go to school. But that is very much to the benefit of the local education authority. If the local education authorities would become involved in these projects—as indeed Berkshire has done, which is being considered—they would find it enormously beneficial to enter jointly into a project with Outreach.
Baroness Blackstone: My Lords, does the Minister agree that this is an extremely worthwhile project and that it is a great pity that there has been such delay in getting it under way? Does she also agree that the problem for local education authorities arises from a combination of cuts in education expenditure imposed by the Government and the need for financial delegation to schools? Is she aware that that makes it extremely difficult for local authorities to support this kind of project, however worth while it may be?
Baroness Blatch: My Lords, we have already entered into arrangements with Outreach. We have been working on a project in Birmingham, for example, with Outreach. We now have the application for Berkshire. In the past we have also offered moneys to Outreach conditional upon local education authorities becoming involved. It is possible for LEAs, which are spending money in many other ways, to address the problem.
The Marquess of Aberdeen and Temair: My Lords, through Schools Outreach potential trouble-makers are at school. Looking to the future, such funding could save this country vast sums of money and perhaps reduce the prison population. Therefore why is the funding not provided at once when a solution to the problem is urgently needed.
Baroness Blatch: My Lords, perhaps I may repeat something that I said. Many LEAs spend vast sums of money in helping young people to remain at school and to be better adjusted while at school. If LEAs would come together with Schools Outreach and the Department of Education and Science there is no reason why some of these projects should not be considered for funding.

Water Supply Quality
2.59 p.m.
Lord Dean of Beswick Lord Dean of Beswick asked Her Majesty's Government:
Whether they are satisfied with the measures taken so far by water companies to improve the quality of the water supply.
Baroness Blatch: My Lords, the Drinking Water Inspectorate is satisfied that all companies are making good progress with virtually all the schemes within their existing compliance programmes. The inspectorate is reviewing the undertakings given by companies in relation to pesticides and later in the year will commence a review of their other undertakings in order to see whether these continue to be appropriate.
Lord Dean of Beswick: My Lords, I am grateful to the Minister for that reply. Is the noble Baroness aware that the latest Digest of Environment Protection and Water Statistics indicates that, since 1988, 90 water authorities carry an overload of nitrates in the drinking water? That represents an increase of 20 per cent. Salaries for people in charge of the water authorities have increased by between 50 per cent and 100 per cent. Charges to the consumer have increased by an average of 15 per cent. to 17 per cent. Does the Minister consider that the consumer now has a fair deal from privatisation? Is privatisation working in the way that Government intended?
Baroness Blatch: My Lords, with regard to nitrates, most suppliers already comply with the standards. Companies are taking steps to bring other supplies into compliance by 1995. We are already operating to levels well below the World Health Organisation limits. The water companies are doing their best to ensure that those which are above the level are well within the safety level and are bringing their standards within the limits set by the European Commission.
Lord Morris of Castle Morris: My Lords, will the Minister inform the House whether or not the Severn Trent Water authority has stopped adding substances to its water supply as a deterrent against Iraqi terrorism as they were widely reported to have done.
Baroness Blatch: My Lords, I am not taking that comment seriously. It is a comment that has been picked up in the papers and is pure speculation. The noble Lord refers to "substances". I ask him: what substances?
Lord Cockfield: My Lords, perhaps I may raise a matter based on personal evidence. If water is spilled
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in London on a smooth surface and allowed to evaporate naturally, it leaves behind a heavy chemical deposit. If such water is ingested, does it leave similar heavy chemical deposits inside the human body?
Baroness Blatch: My Lords, I can say that the water in this country is safe to drink. Where some of the companies do not comply with the standards, it is on mainly aesthetic grounds as opposed to standards of health and safety.
Lord Grimond: My Lords, the whole country is grateful to hear that water is fit to drink. Will the Minister accept that the improvement of the water supplies and reduction in price is rather more important than an increase in dividends and huge increases in salaries in this now private monopoly?
Baroness Blatch: My Lords, no, I do not agree with the noble Lord. Because the water companies have become more profitable, their investment is up by 50 per cent. They plan, and will achieve, an investment of £28 billion over the next 10 years. I do not believe that increases in salaries represent a detraction from what I consider to be a hugely successful story.
Lord Harmar-Nicholls: My Lords, is my noble friend aware that, while the main Question on the Order Paper is objective, the first and last supplementary questions are examples of the blanket opposition that is expressed on any operation that has been privatised?
With regard to a possible lack of quality of water, that did not occur overnight. Time has to be given before the problems of the past can be rectified.
Baroness Blatch;My Lords, my noble friend again makes an interesting point. I wonder whether noble Lords opposite will turn the clock back to when the water industry was sadly neglected, not simply by the present Government but by previous governments too. We have put in place a Water Inspectorate, the National Rivers Authority, and a Director General of Water. They are concerned with effectiveness of service and service to the customer. Those measures were not in place when noble Lords opposite were in power.
Baroness Nicol: My Lords, is the "polluter pays" principle part of the measures applied by the new water companies? If so, which of the polluters will pay? Will it be the chemical companies which produce the offending chemicals or the user who allows them to get into the water source? Is it not unfair that water consumers should have to pay while the profits of both those areas of exercise remain untouched?
Baroness Blatch: My Lords, in all cases where limits are not met the Secretary of State must satisfy himself that everything that can practicably be done is being done; and he will accept an undertaking that the company is working towards meeting the limits and will achieve the objectives. Those undertakings are accepted only when all possible means of achieving the limits are being pursued by the water company. The principle that the polluter pays is right but where an undertaking has been agreed it is only where the

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company is doing its best to conform with the standards. The standards are safe; we are talking about aesthetic standards and meeting the new rigorous standards on pesticides.
Lord Dean of Beswick: My Lords, the Minister has given detailed answers and has herself gone a little wide of the Question on the Order Paper. Is she aware that this morning Welsh Water announced an increase of 88 per cent. in the salary of its chairman? That announcement comes after the consumers in Wales have had to meet an increase of 32 per cent. Can the Minister guarantee that the improvement in the quality of the water supply in Wales will be commensurate with that appalling increase that has been levied on consumers to pay for high salaries?
Baroness Blatch: My Lords, I have nothing to add on the subject of salary increases for employees of the water company in Wales. However, I repeat the important point that the profitability of water companies has allowed a 50 per cent. increased investment in infrastructure for the water industry and a promised intention to spend £28 billion during the next 10 years. I believe that promise will be kept. That would not be achieved by any other means. The noble Lord would turn the clock back so that the money would not be available to improve the water supplies in this country.

Welsh Infantry Regiments: Future
3.1 p.m.
Lord Chalfont Lord Chalfont asked Her Majesty's Government:
Whether a decision has yet been made on the future of Welsh infantry regiments as a result of the defence review known as Options for Change.
The Parliamentary Under-Secretary of State, Ministry of Defence (The Earl of Arran): My Lords, as my right honourable friend the Secretary of State for Defence announced in another place on 4th June, consultations are now taking place within the Army on its future structure. Final decisions have yet to be taken.
Lord Chalfont: My Lords, I am grateful to the Minister for that Answer. I understand why he cannot go much further at this stage. Can he confirm the proposal that the Prince of Wales' Division should be reduced from nine battalions to six and, therefore, that the contribution of Wales to the British infantry will be reduced to two battalions, which is roughly the same as the contribution of the Kingdom of Nepal? Can he further confirm that as part of the re-organisation it is proposed that the Royal Welch Fusiliers should amalgamate with the Cheshire Regiment, which must be one of the most bizarre military adventures conceived since the Charge of the Light Brigade?
The Earl of Arran: My Lords, I appreciate the strength of feeling that my noble friend has put into his Question. Equally, I ask him to understand that whatever he hears or sees in the media is entirely speculation. No decision has been taken about the
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future of any particular regiment. As soon as a decision is made my right honourable friend the Secretary of State for Defence will announce it.
Lord Cledwyn of Penrhos: My Lords, I derive a certain amount of comfort from the Minister's reply. Nevertheless, is he aware that there is profound disquiet in Wales about the reports that have appeared in the press and on television; namely, that the Welsh Army is to be reduced by three battalions compared with Scotland, which is to lose two? The population of Wales is nearly two-thirds that of Scotland and such a reduction would be totally inequitable and unacceptable. I do not say that that is the Government's plan, but it has appeared in the press and is causing great anxiety in the Principality. Will the Minister give an assurance that the Welsh regiments will be treated equitably and that there will be no step towards amalgamating any Welsh regiment with any English regiment?
The Earl of Arran: My Lords, I hope that I have made clear the fact that at present I can give no assurance. However, I can say that the Army will work out these painful decisions with fairness, logic, good sense and total understanding.
Lord Cledwyn of Penrhos: My Lords, will the Army do so on the clear understanding that Wales is a nation, as are England and Scotland?
The Earl of Arran: My Lords, I am sure that will be taken into consideration. Indeed, when I see the battalions of Welsh troops on the Benches opposite I sometimes wonder whether I should go to my bunker.
Lord Boyd-Carpenter: My Lords, can my noble friend say when the promised White Paper will appear? Will it appear in time to be debated before the Summer Recess?
The Earl of Arran: My Lords, it is hoped that a decision and an announcement will be made before the Summer Recess.
Viscount Tonypandy: My Lords, while in no way underestimating the difficulties of the Sectary of State for Defence in making the economies made possible by the end of the cold war, and while appreciating that there is a fierce loyalty towards every regiment in Her Majesty's defence forces, will the Minister bear in mind that the Royal Welch Fusiliers is a special case because it draws recruits from both north and south Wales and that most of those recruited from the north speak Welsh? Is the Minister aware that we are as proud to be Welsh as the right honourable gentleman the Secretary of State is entitled to be proud of what he is, and that we are proud of the rest of the United Kingdom? Will the Minister convey to his right honourable friend that in respect of this matter it is a rare occasion when all Wales is united?
The Earl of Arran: My Lords, "Nec aspera terrent" is the regimental motto of the Royal Welch Fusiliers; that is, "Nor do difficulties deter". Once again I take the point made by the noble Viscount. I know that my

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right honourable friend the Secretary of State is fully aware of the passion felt in your Lordships' House about this matter.
Lord Crickhowell: My Lords, will my noble friend take note of the wise advice given by the former Secretary of State for Defence, Mr. George Younger, that the only way to approach the issue is to go for the areas that, year in year out, have the best recruitment and retention levels? Is my noble friend aware that on that basis Wales should continue to have three regiments and that it would make no sense to merge the two regiments in the Prince of Wales' Division, which have the best recruitment records. Will the Minister take my advice that there can be no more certain way of destroying the unique spirit of the Royal Welch Fusiliers and its outstanding recruitment record, which springs from its Welshness and involvement in the community, than to merge it with an English regiment?
The Earl of Arran: My Lords, I note the passion that also comes from my own Benches. Noble Lords will appreciate the fact that we are receiving a great deal of advice from all quarters. Approximately 8 per cent. of the infantry's recruits come from Wales.
Lord Molloy: My Lords, is the Minister aware that there is widespread unease in Scotland, in Wales and possibly in England? English regiments have always been very proud and thrilled to recruit Welsh and Scotsmen to their ranks. This morning there was a poignant ceremony celebrating the 70th anniversary of the Royal British Legion. I am proud to be the metropolitan area president of the Royal British Legion and this matter was discussed this morning among the Welsh and the Scots. I shall be happy to tell them that no firm decision has been taken. Why are the Conservatives so opposed to Welsh and Scottish regiments? I cannot understand that. Let that go on the record. May I say to those people that no firm decision has been taken? Does the noble Earl realise that when the initial paybook was introduced over 90 years ago it was in the name of a Royal Welch Fusilier who actually existed—Tommy Atkins.
The Earl of Arran: My Lords, I understand the point which the noble Lord, Lord Molloy, makes but it rather wanders into the tramlines.
Viscount Tenby: My Lords, will the Minister undertake to convey the very deep anxieties and, indeed, anger which have emerged on this issue from all quarters of the House? If by any chance the rumours which have been spread about are proved to be founded, will he also undertake to save the Army from itself and to ensure in future that its bullets are fired on the Queen's enemies and not at its own feet?
The Earl of Arran: My Lords, as I said on several occasions previously, painful choices and difficult decisions must be made. I am sure that everybody in your Lordships' House admires the pride and loyalty of all regiments in this country. We hope that their future will be satisfactorily concluded shortly.
Baroness Strange: My Lords—
Noble Lords: Next Question!
The Lord Privy Seal (Lord Waddington): My Lords, this is one of those rare occasions when there is adequate time for the last Question. In those circumstances, it is only fair that my noble friend should be allowed to ask her question.
Baroness Strange: My Lords, I thank my noble friend the Leader of the House for that. Is the noble Earl aware that I was at the Royal British Legion service at Westminster Abbey this morning and that the former Dean of Windsor made a very powerful plea for the retention of the whole British Army including the Welsh and Scottish regiments at their present levels?
The Earl of Arran: My Lords, I was not aware that my noble friend was at that service this morning but I take particular note of her comments.

UK Pensioners in EC: Medical Costs
3.13 p.m.
The Countess of Mar The Countess of Mar asked Her Majesty's Government:
Why citizens of the United Kingdom who retire and settle in a European Community country before they reach the statutory retirement age are unable to obtain publicly funded medical treatment anywhere within the European Community, including the United Kingdom, until they reach retirement age.
The Parliamentary Under-Secretary of State, Department of Social Security (Lord Henley): My Lords, under the NHS Acts my right honourable friend the Secretary of State for Health has no power to pay for the costs of medical treatment abroad. United Kingdom citizens living elsewhere in the Community may, like other EC nationals, receive emergency treatment, the need for which arose during a visit to the United Kingdom free of charge.
The UK does meet the costs of those living elsewhere in the EC if they have reached state retirement age. The costs of UK citizens retiring abroad before that age can be covered for a period of up to two-and-three-quarter years depending on their record of national insurance contributions.
The Countess of Mar: My Lords, I thank the noble Lord for his reply. No doubt he will realise that I already knew the answer. Does he consider it reasonable that, for example, if a French citizen retires in this country, because he is regarded as being domiciled here he is entitled to full National Health Service facilities and yet if a British person is domiciled in France, he is not accepted either by his own system or by the French system? Are there any proposals to negotiate a satisfactory reciprocal arrangement between the British and the Continental systems so that those people can be treated without having to take out private insurance?
Lard Henley: My Lords, basically we are ahead of the field in this matter in that we are unusual because we have a residence-based test rather than a test based on insurance. In the case which the noble Baroness gave—that is, a British person going to France—such a person could join in the voluntary insurance scheme and pay to be part of the insurance-based scheme which exists in France. We have no plans to extend our scheme to people going abroad. Even if my right honourable friend wished to do that, there would be considerable cost implications and there are many other competing priorities.
Lord Stallard: My Lords, the noble Lord said that we are ahead in this field. Will he accept that that remark will not be very well received by retired pensioners in Canada, Australia and New Zealand? It will certainly not be as well received there as it will be by pensioners in France, Spain, the Bahamas, America, Russia, Yugoslavia, Greece and so on. How does he justify being ahead in the field when thousands of British retired people in Commonwealth countries are excluded?
Lord Henley: My Lords, I know well the noble Lord's views on the position of pensioners in Canada and Australia. However, I believe that the noble Lord will accept that that is wide of the Question.
Lord Ennals: My Lords, as regards the European Community, is there not a strong case to be made for having reciprocal arrangements with all those countries within the Community?
Lord Henley: My Lords, I thought I had explained why we cannot go down that road. Some countries have insurance-based schemes and it is possible to enter those schemes through paying voluntary contributions. In some countries—for example, Denmark and Ireland—there are residence-based schemes. Therefore, residents in those countries can make use of he health service. As I said, there are cost implications and there are more serious competing priorities.
The Countess of Mar: My Lords, I appreciate that the UK system is better than the Continental systems. Is the noble Lord aware that unless one is working in France, one cannot join the contribution system? Therefore, those people are left high and dry. If they take out private insurance, by the time they have reached the age of 60 there are pre-existing conditions which are not covered by private insurance, and yet, they are taken back into our system once they become state pensioners when they reach the age of 65. It seems ridiculous that they cannot be covered for the intervening period.
Lord Henley: My Lords, I am not sure that the noble Countess is correct. I understand—and I shall write to the noble Countess if I am wrong—that in France, as in Germany and Italy, one can voluntarily join the scheme whether or not one is working.

Business
3.16 p.m.
Lord Hesketh: My Lords, at a convenient moment after 3.45 p.m. my noble friend Lord Belstead will, with the leave of the House, repeat a Statement that is to be made in another place on Northern Ireland political talks.

Foreign Corporations Bill [H.L.]
Read a third time.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I beg to move that the Bill do now pass. I am grateful for the welcome that has been given to this Bill and, in particular, for the contributions made by my noble and learned friend Lord Wilberforce and by the noble Lords, Lord Mishcon and Lord Kennet. I am also grateful to the Law Society for the interest it has shown in the Bill and its support for it.
I should like to say a few words about the question of the recognition of states, which was raised in Committee by the noble Lord, Lord Kennet. He suggested that because the Bill, explicitly or implicitly, requires a territory to have a legislature, an executive and a judicature, that is tantamount to the recognition of that territory as a state. However, the accepted international criteria in accordance with which Her Majesty's Government recognise states also include a settled population and a defined territory, as well as some prospect of permanence of all these indices. The territories to which the Bill applies are not recognised states, because not all of these criteria are met, and the Bill does not alter that.
In cases where recognition as a state is withheld, the rule traditionally followed by our courts—although the law cannot be said to be clear—is that, because of that withholding of recognition, they will not give effect to the creation or dissolution of corporations in the unrecognised territory. What the Bill does is to enable our courts to determine the status of corporations in accordance with commercial realities, instead of making them dependent upon unconnected issues of foreign policy.
Our foreign policy is unaffected by the Bill. I must make it quite clear that the Bill does not accord any form of recognition of any territory as a state and should not be read as doing so. It is simply concerned with the legal personality of corporations which come here and how we are to regard them under our law. We need to determine that and to clarify the present position.
I should also mention briefly two matters raised by the noble Lord, Lord Mishcon, and by my noble and learned friend Lord Wilberforce, and which have now been resolved following helpful discussions with the Law Society. First, it was suggested that the phrase used in subsection (1)(a) of Clause 1,
"the laws of a territory",
was inadequate to deal with a situation where two conflicting systems claimed that their laws were the

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laws of a specific territory. I am satisfied that when the subsection is read as a whole it achieves its purpose and that no amendment is necessary.
Secondly, it was suggested that the test laid down by the Bill that there must be a settled court system in a territory at the time when a specific question arises should also be satisfied if there had been a settled court system at an earlier time. In my view we should not legislate so as to require our courts to answer a question as though a previous state of affairs remained true. The Bill cannot offer absolute certainty in relation to the future, whatever changes in circumstances arise.
The Bill is necessary to settle the law as to the status of certain foreign corporations and it does so by adopting an approach which is consistent with commercial reality.
Moved, That the Bill do now pass.—(The Lord Chancellor.)
Lord Cledwyn of Penrhos: My Lords, on behalf of my noble friend Lord Mishcon I apologise for his absence abroad. He asked me to thank the noble and learned Lord for the clarification he has given of the points raised by my noble friend during the debates on this important Bill. I am extremely grateful to the noble and learned Lord.
Lord Kennet: My Lords, in relation to the other question on recognition, the House is most grateful to the noble and learned Lord the Lord Chancellor for the clarifications he has been able to put on record this afternoon. If it were to come about that cases were brought in our courts and use was made of the Act, as it will be, the Polly Peck case, because of the non-recognition of the illegal regime in North Cyprus, might be the first test of the distinction between, on the one hand, our courts hearing a company registered in a territory we do not recognise and, on the other hand, the continued non-recognition of that territory.
Lord Wilberforce: My Lords, I express my appreciation of what has just fallen from the lips of the noble and learned Lord and of his courtesy in replying to a suggestion which I ventured to make after the Committee stage and which I hoped would simplify the Bill. I appreciate that the noble and learned Lord is not able to accede to the suggestion, which, although possibly defective, at least clarified the Bill. Though comprehensive, the Bill remains somewhat obscure. It has to deal with a variety of cases—namely, split states, federal states and places like Taiwan which are not recognised states—all in one phraseology. That may be too ambitious an attempt.
I indicated to the noble and learned Lord that I did not intend to pursue my suggestion. All we can do is to leave the matter with confidence to the judiciary.
The Lord Chancellor: My Lords, I am grateful to my noble and learned friend and to the noble Lords, Lord Kennet and Lord Cledwyn, the Leader of the Opposition. I am sorry that it has not proved possible to hold this Third Reading on a date when the noble Lord, Lord Mishcon, could be present. I understand
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that, with his usual generosity, he agreed that the Bill should proceed, having regard to the fact that we have reached an understanding on the matter.
On Question, Bill passed, and sent to the Commons.

Statute Law Revision (Isle of Man) Bill [H.L.]
3.24 p.m.
Read a third time, and passed, and sent to the Commons.

Badgers Bill
Lord Houghton of Sowerby: My Lords, I beg to move that this Bill be now read a third time. There has been widespread interest in the Bill in your Lordships' House and elsewhere. I crave just two minutes to record my appreciation of the work that has been done.
The Badgers Bill came from the Commons better than anything we have received before. But we have improved on it. It goes back better than anything that has gone back before. That was made possible by a unique combination of interest and individuals in your Lordships' House which in the past have been incompatible, or even in conflict. They have been brought together to produce what is almost a totally agreed Bill. It is quite an achievement for your Lordships' House to be party to it. Such controversial matters as we encountered in the past which obstructed progress on the passage of the Bill have now been resolved.
I thank all who have worked behind the scenes assiduously and in a good spirit to produce a Bill which will be more severe against the digger and the baiter, yet tolerant to those in the countryside and those who want reasonable opportunities to exercise their rights and activities. Overall it offers better protection for the badger.
The noble Lord, Lord Mancroft, who has been my partner in this work, used his influence on one side. I, as best I could, used my influence on the other. With the skilful presiding Minister, the noble Viscount, Lord Astor, we have produced the best Bill yet on badgers.
Moved, That the Bill be now read a third time.—(Lord Houghton of Sowerby.)
On Question, Bill read a third time.
Lord Houghton of Sowerby: My Lords, I beg to move that the Bill do now pass.
Moved, That the Bill do now pass.—(Lord Houghton of Sowerby.)
On Question, Bill passed, and returned to the Commons with amendments.

Badgers (Further Protection) Bill
Read a third time, and passed.

Criminal Justice Bill
3.28 p.m.
The Minister of State, Home Office (Earl Ferrers): My Lords, I beg to move that the Commons amendments and reasons be now considered.
Moved, That the Commons amendments and reasons is be now considered.—(Earl Ferrers.)
On Question, Motion agreed to.

AMENDMENTS AND MOTION MOVED ON CONSIDERATION OF COMMONS REASONS FOR DISAGREEING TO CERTAIN OF THE LORDS AMENDMENTS, COMMONS AMENDMENTS IN LIEU OF ONE OF THE LORDS AMENDMENTS, COMMONS AMENDMENTS TO THE WORDS SO RESTORED TO THE BILL AND A COMMONS AMENDMENT TO ONE OF THE LORDS AMENDMENTS
[Page and line references are to Bill 33 as first printed for the Lords.]

LORDS AMENDMENT
1 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 Commons disagreed to this amendment for the following reason:
1A because the mandatory life sentence is necessary to mark the uniquely heinous crime of murder.
Lord Waddington: My Lords, I beg to move that the House do not insist on their Amendment No. 1 to which the Commons have disagreed for the reason numbered 1A.
In asking your Lordships to accede to the wishes of another place in regard to the mandatory life sentence, I am conscious that I am asking your Lordships not to press a proposal which came from a most distinguished Select Committee of the House. I can assure the House that it was only after the most careful consideration of your Lordships' views that the Government decided that they could not recommend to another place that the mandatory life sentence should go. No purpose would be served by my merely repeating the arguments I advanced before. But the debate, has moved on somewhat because of the decision in another place.
I am certainly not saying baldly to your Lordships that another place has spoken and your Lordships must agree. I am well aware of how often your Lordships have helped shape public opinion and attitudes, and I would not be surprised if at some future date policy on this matter changes as a result of a change in public opinion which this House influenced. I am simply saying that I wonder whether the time for change is now.
The criminal law has always reflected public attitudes. After all we were all rather proud when the law reflected changed public attitudes to the treatment of women and rape in marriage. I believe that the
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public in general feel that a mandatory life sentence is appropriate to mark out the heinous crime of murder from all other crimes and that public opinion has to be listened to. What I personally believe is not important in itself, but I wonder whether this is not an area where the undoubted experience and expertise of your Lordships can necessarily have the last word.
I hope with all due deference that your Lordships will accept that the feeling in another place has to be given due weight. After all, Members of another place face public opinion every day and I would argue that it is for them to take the burden of deciding what should happen in this area at present having, as they have, taken full account of your Lordships' view, because it is on them that the weight of public disapproval can and will fall if they have got it wrong.
Moved, That the House do not insist on their Amendment No. 1 to which the Commons have disagreed for the reason numbered 1A.—(Lord Waddington.)
Lord Campbell of Alloway: My Lords, this grouping of amendments revolves around Lords Amendment No. 1 and Commons disagreement numbered 1A. Lords Amendment No. 2, relating to a court's duty on passing sentence of life imprisonment, falls within the next grouping and was originally cast as an adjunct to Lords Amendment No. 1. This amendment could also stand independently if your Lordships were not to accept the Commons disagreement. What is to be done? It is suggested in The Times newspaper today that we should insist on our Amendments Nos. 1 and 2 and return them to another place; that the issue is constitutional—politicians versus the judges; that financial privilege is not involved; and that there is no manifesto commitment to involve the self-denying ordinance of the Salisbury convention. Even so, to what end shall we stir the embers of this Parliament to provoke a lost Bill knowing that when those amendments are returned to us, as is inevitable, it is unlikely that we shall yet again insist, at all events, on Amendment No. 1?
It is one thing to play ping-pong but quite another to call a bluff hand at the poker table. This Bill, as revised by your Lordships and accepted by another place, is an excellent reform Bill of monumental value and importance. Unless there is agreement between the Houses by the end of this Session it will be lost as another place has not ensured its entitlement to the Bill under the Parliament Acts.
The Government have not ensured its entitlement to this Bill. The Government cannot have their Bill without our assent. On a Bill of this order, in the circumstances which now obtain, unless restraint is exercised the responsibility for a lost Bill will be laid at the door of your Lordships' House. I entertain no doubt that the reason for disagreement to Lords Amendment No. 1 is simply not reasoned, having regard to the speeches in your Lordships' House and in particular to the speech of the noble and learned Lord, Lord Lane. No reason whatever is given for disagreement to Lords Amendment No. 2. It is suggested in The Times that the real reason is that the Government do not trust the judges. I find that

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difficult to accept even in the wake of conflict generated during the proceedings on the Courts and Legal Services Bill. As to the suggestion in The Times today that we should be braver, there are perhaps times when discretion is the better part of valour. Speaking for myself, it is with sad reluctance that, as a matter of judgment to save the Bill and contrary to my own settled conviction on the merits of these amendments, I propose to exercise restraint. Together with my noble friend the Leader of the House I believe that in time the dissensions of today shall dissolve in some amicable resolution.
Lord Hailsham of Saint Marylebone: My Lords, lest it be thought that, sub silentio, I was necessarily agreeing with my noble friend the Leader of the House, I wish to say very briefly why I agree with the speech that has just fallen from the lips of my noble friend Lord Campbell of Alloway.
The reason given by the Commons is frankly, and intellectually, ridiculous. It can only be described in that way. Murder is not the most heinous offence in the calendar. It is an offence because it has to be successfully carried out for quite a variety of different motives. If, for instance, as the Lord Chancellor entered the Chamber I took a pistol and shot at him, hit him and killed him, I should be guilty of treason—under the Treason Act 1351. That might be said to be a uniquely heinous crime. If I missed him and hit his attendant I should be guilty of murder, rather a serious murder. If either of them survived for a year and two days it would be neither murder nor treason, so far as I can say. This is nonsense, and let us record nonsense by its proper name. However, I wholly agree with my noble friend Lord Campbell of Alloway that we should be wrong if we sought to follow the advice given us by the leading article in The Times today. There is the danger that the Bill might be torpedoed over what is, after all, relatively speaking a side issue. Next, there is the fact that what we are really asked to do if we pass the Motion proposed by the Leader of the House is to keep the status quo. One day people will see sense, even in another place, and the hairy heel of populism which they have followed will ultimately disappear. In the meantime, there is no grave crisis if the status quo is preserved. We should allow the other place to have its silly way for once and not try to follow the perfectly rational view we took over the War Crimes Bill.
There is another reason; that is, there are amendments on the Marshalled List which would not really be useful if we were to insist on our original amendment. Some of them will do more good than harm. I hope for that reason alone we shall not insist upon our view, though we may retain our opinions.
Lord Harris of Greenwich: My Lords, I agree with the conclusion of the noble and learned Lord, Lord Hailsham. For a number of reasons I do not intend to repeat the speech I made on the last occasion, most of the points having been made by the noble and learned Lord. I regard the Commons reason as absurd. Most of us who took part in the last debate recognise that it is an absurdity. The fact of the matter is that there
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are other amendments on the Marshalled List which deal with very important aspects of this situation. It would be more profitable for the House to move on from this particular issue to those amendments in order to deal with a number of matters of public policy which otherwise might not be dealt with satisfactorily.
Lord Richard: My Lords, I really cannot let this matter trickle by without saying something on behalf of these Benches. I entirely agree with the noble and learned Lord, Lord Hailsham, that the reasons that have been given by the House of Commons for rejecting this amendment are, frankly, nonsense. We know it is nonsense and I suspect most Members of the other place know it is nonsense. Therefore, one has to ask oneself the question: "Why on earth are we in this position?". I do not want to be overtly political because if ever there was an issue which should not be the subject of party politics it seems to me that this is one of them. This is one of those issues in the life of the country where governments should listen to informed opinion. Opinion on this issue has been more informed in this House than it conceivably could have been in another place. There it is. I very much regret that we are not persisting in our previous view. It was right that we took the view that we did. Indeed I think it would be right today were we to take that view. It is not very often that I find myself in agreement with the leading article in The Times but I am bound to say that I felt a certain sympathy with the thrust of it today.
I cannot avoid commenting on the speech of the noble Lord the Leader of the House. He used three arguments. First, he said that what we have proposed will come at some stage. I suppose that that is a confession that Parliament's position is that we should wait until the time is ripe, whatever that means, or until the time is appropriate, whatever that means. I suspect that what will happen is that the European Court will deliver another judgment in the not too distant future. Then the Government, if indeed the same Government are still in power, will say, "We don't like what the European Court has said. It is all these terrible people in Europe. Nevertheless, we have to do it".
The second argument used by the Leader of the House was that the law must reflect public attitudes. Of course it must, but it must also on occasions lead public attitudes. I am not convinced for a moment that public attitudes on this issue are necessarily the attitudes of the Government. Most of the people I have spoken to on this issue regard as arrant nonsense the present position where a domestic murder is treated in exactly the same way as what would be the most heinous of crimes—a deliberate intentional killing—and think that the law which treats those crimes as being wholly similar is somewhat of an ass. We have heard the argument that on this issue the law must reflect public attitudes. With great respect to the Leader of the House, I believe that public attitudes at the moment are somewhat in advance of the Government's position.
The third argument used by the noble Lord was that feeling in another place has to be given due weight. Of course it does. I entirely accept that.

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However, I am bound to say to the Leader of the House that if the half loaf brigade, if I may respectfully call them that, had not entirely had their way today, I should have been perfectly prepared for feeling in this House to be given its due weight and for the House of Commons to be told so.
Lord Monson: My Lords, following on from the noble Lord, Lord Richard, I find it depressing that so many Members of another place evidently grossly underestimate the intelligence of those who voted them into office. I would guess that at a very minimum 80 per cent.—perhaps nearer 90 per cent.—of the electorate are very well aware that life hardly ever means life; therefore your Lordships' amendment would not mean that those guilty of the most heinous forms of murder spent a shorter time behind bars than would be the case under the law as it stands at present. On the contrary, the reverse might very well be the case. However, I am sure that we must follow the wise advice given by the noble and learned Lord, Lord Hailsham, and others.
Baroness Phillips: My Lords, I shall have the temerity to disagree with my own side—it is getting used to that—and with the noble and learned Lord. I do so for a simple reason—it is the reason the Commons have put forward:
"because the mandatory life sentence is necessary to mark the uniquely heinous crime of murder".
We have already heard about the domestic crime of murder. The person is dead. How easy it is to plead that the dead man or woman has caused someone to commit murder. If someone is dead he cannot speak in his own defence. It is easy to say that we are moving into different times. Sadly, yes, we are moving into times of more, not less, crime. One must ask oneself why. Is it because we are too easy in the courts? If one destroys another human being's life one has to give a reason why. We have the charge of manslaughter and other charges are often used. We all know that the life sentence does not mean anything anyway. Someone will be in prison for only 10 years. Everyone will then be sorry for him. All kinds of things will be arranged for him. He will not have to worry. However, the innocent, the victims and the average person who will never commit a crime feel differently.
Noble Lords have referred to the people to whom they have spoken. The people I talk to do not take the same view. They are anxious about the life sentences imposed. I speak on behalf of the victims. I should like to say that on this occasion we agree with the Commons. What I have had to say will obviously not be very popular in some parts of your Lordships' House but that does not worry me in the least. I say to the noble Lord, Lord Campbell, that if he wants the Labour Party to get rid of the Lords, he is handing it reasons every time. It did not like our attitude on the War Crimes Bill. I found that totally illogical. I find the attitude on this matter equally illogical. I think that the Commons have it right and that we would be very sensible for once to agree with them.
Lord Campbell of Alloway: My Lords, the noble Baroness mentioned my name. The distinction is quite simple. In relation to the War Crimes Bill there was no
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question of a lost Bill. The House of Commons had ensured its entitlement to the Bill by invoking the Parliament Act. In this case there is every prospect of a lost Bill; and it is a Bill of monumental value and importance. That is the distinction.
Lord Nathan: My Lords, I had the privilege of proposing the amendments which are the subject of this discussion. I also have the honour to be the chairman of the Select Committee on whose report the proposals were based. I thought it might be right for me to say that I do not think that we should press this amendment. There is no purpose at this stage in reviewing all the arguments which were so amply put forward in your Lordships' House and so overwhelmingly agreed in it. I believe that that would be unwise for the following reason.
I very much welcome the fact that the Commons amendments have come forward and I hope to put before your Lordships reasoned amendments to improve the Commons amendments. I very much hope that those amendments will commend themselves to the House and will receive the consideration, as I know they will, of another place. If we start by getting into a state of confrontation with another place on the matter raised by the noble Lord the Leader of the House, I believe that the atmosphere in which these Commons amendments, which I regard as a constructive proposition, are discussed will be quite hopeless. I have read the leading article in The Times which is headed "Mr Major's Lapdog". It was suggested to me that I was the lapdog and that the Prime Minister's health was in grave danger.
Lord Waddington: My Lords, I think that it is the wish of the House to move on and therefore I shall be very brief indeed. I respect greatly the views expressed by noble Lords. In the subsequent debate we shall be able to discuss the implications of the decision of the European Court of Human Rights in the case of Thynne and Others. I need not deal with that now.
I said that Parliament has to take account of public attitudes and that the law has to reflect public attitudes. The matter was weighed up by another place. It came to a conclusion which is apparently different from the conclusion reached by certain noble Lords. But there is no doubt that another place reached that conclusion. I agree with the noble Baroness, Lady Phillips. I believe that the crime of murder is unique. It is unique because of its appalling finality. I seem to remember that those who disagreed with me and were so violently opposed to capital punishment were usually violently opposed to capital punishment because they could see the awful finality of the judicial killing. If that was their view on the matter of capital punishment I think that there is an awful finality in the crime of murder, as is recognised by most people. Therefore, I urge your Lordships to agree with another place in its amendment.
On Question, Motion agreed to.

Northern Ireland: Political Talks
3.40 p.m.
The Paymaster General (Lord Belstead): My Lords, with the leave of the House, I will now repeat a Statement being made in another place by my right honourable friend the Secretary of State for Northern Ireland. The Statement is as follows:
"The political talks which have been taking place at Parliament Buildings, Stormont, have been brought to a conclusion. I should like to take this opportunity to explain to the House the background to this decision, to describe what has been achieved during those talks and to set out the Government's hopes for the future.
"Honourable members will recall that my Statement to the House on 26th March was accepted as a basis for political talks which would address, as part of the same process, relationships within Northern Ireland, including the relationship between any new institutions there and the Westminster Parliament; among the people of the island of Ireland; and between the two governments. I announced that talks would take place in three strands corresponding to those three main sets of relationships. To allow an opportunity for the wider political dialogue which the four main constitutional political parties in Northern Ireland and the two governments envisaged, the two governments had agreed not to hold a meeting of the Anglo-Irish Conference between two pre-specified dates, subsequently confirmed as being 26th April and 16th July. This interval, allowing some time at either end for the Anglo-Irish secretariat to complete the business of servicing one conference and to make preparations to service the next, provided 10 clear weeks for substantive political exchanges. The talks began on 30th April.
"It has become clear that it would not be possible to launch the other strands of the talks and thus to complete the process as a whole before the end of this interval, and that this was beginning to inhibit our ability to make further substantive progress. After consultation with the leaders of the political parties, I concluded that the talks should therefore be brought to an end. I have also been in touch with the Irish Government to recount my conclusion. I should now like to take stock of what has been achieved during the talks and of the further prospects for securing constructive political development in relation to Northern Ireland.
"As the House knows, it did not prove possible to move as rapidly as we had hoped to plenary sessions of the first strand of the talks. A range of new procedural issues had to be resolved. A series of bilateral exchanges succeeded in determining the venues for meetings in the second strand of the talks, arrangements for chairing that strand of discussion, the identity of the chairman and the procedural guidelines which would be observed.
"Plenary sessions started on 17th June. After my opening statement the parties presented their initial position papers, after which the papers were
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discussed, examined and clarified. Subsequently, during a more intensive schedule of meetings, there was a debate on themes which had emerged from the initial presentations.
"The commitment and seriousness of purpose shown by all the parties in these talks is a source of encouragement for the future. The plenary sessions provided the forum for some significant and constructive exchanges among the parties and with Her Majesty's Government on a range of fundamental issues. The nature of those exchanges served to confirm the judgment involved in initiating the talks process that the time is ripe for political talks in relation to Northern Ireland which address all the relevant relationships; that the process is of value and has potentially even greater value; that a degree of common ground exists; and that there is a good prospect that a comprehensive political accommodation can be reached. I should like to express my appreciation of the commitment shown by all the participants.
"To those who would say 'I told you so—it would never work', I offer the reality of the past few weeks. While I am naturally disappointed at this moment that the current process has to end, foundations have been laid for progress in the future which neither cynics nor the men of violence will be able to undermine.
"For myself, I hope that it will prove possible in due course to have further exchanges with the parties, and with the Irish Government, to explore, initially on a bilateral basis, whether we can establish terms on which fresh discussions could be held."
My Lords, that concludes the Statement.
3.54 p.m.
Lord Prys-Davies: My Lords, I thank the noble Lord, Lord Belstead, for repeating the Statement which was made in another place. Although the Statement is not a despondent one and although it is not entirely unexpected, it is a cause of sadness for all the people who have longed for peace and reconciliation in the Province. Therefore, one very much regrets that it was necessary for the Secretary of State to bring the political talks to a conclusion. I am sure that there are many lessons to be learnt from the experience of the past 18 months in Northern Ireland, apart from those which are mentioned in the Statement. However, in our view, it would not be helpful today to seek to apportion blame. We have to view the Statement as constructively as we can.
The Statement refers to the Secretary of State having brought the talks to a conclusion. However, no where in the Statement does the Secretary of State use the word "failure". That word carries with it a certain finality, but that is not used in the Statement; indeed, the Statement brings together a number of affirmatives and this has been a source of encouragement for the Secretary of State.
We understand that the talks were terminated because the timetable was too tight, and not because of the nature of the agenda which was presented to the negotiators at the talks. But while we understand the

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Unionist position on the timetable issue and also fully appreciate the Government's firm commitment to the Anglo-Irish Conference, we would have thought, given the grievous losses suffered in Northern Ireland over the past two decades, that the parties had very little to loose by showing some degree of flexibility and understanding. The fact that it proved impossible to find a formula which would accommodate the two conflicting positions on that issue is most worrying. It suggests that there are still limitations, and possibly mistrust, which have yet to be overcome.
The Statement implies that new bilateral talks will be possible in due course, although there is no promise of such talks. That must depend upon the attitude of the other parties. Can the Minister tell us whether the Government consider that there is a possibility, or a chance, that talks about talks will be resumed this side of the general election?
The Statement, especially in the last paragraph, makes it abundantly clear that the Government are not in the process of abandoning the search for a political solution. We welcome that determination. Perhaps the Minister can also confirm to the House that the events of the past 18 months will strengthen the resolve of both governments to continue to work together to achieve a solution and to safeguard and enhance the interests of Northern Ireland.
The Statement speaks of achievements. Of course, it was a considerable achievement in itself that the leader; of the constitutional parties in Northern Ireland were persuaded to come to a conference to discuss the three sets of relationships to which the Minister referred. The Labour Party has made it clear that this is an agenda to which a future Labour Government would be firmly committed.
I said at the beginning of my remarks that we were not in the business of apportioning blame: instead, I want to express our appreciation of the immense efforts which have been made by the present Secretary of State over the past 18 months to reach a settlement and of the many fine qualities which he has brought to the affairs in Northern Ireland. Those factors will be appreciated by people all over the world. At the same time, I wish to congratulate the leaders of the political parties in Northern Ireland who have shown courage in declaring their willingness to embark upon talks which would embrace all three sets of relationships to which the Minister referred.
It appears to us that the Secretary of State and the leaders of the political parties of Northern Ireland have established a valuable precedent upon which others can build in the future.
Lord Holme of Cheltenham: My Lords, I too thank the Minister for repeating the Statement made in another place by the Secretary of State. There is no concealing that this is a major step backwards. It must be deeply disappointing to the Secretary of State after all his efforts, upon which I, like the noble Lord, Lord Prys-Davies, should like to express the warmest appreciation from these Benches. It is disappointing for everyone throughout Great Britain and the Irish Republic, but it is especially disappointing for the people of Northern Ireland because they are the losers from the breakdown in the talks.
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I agree with the noble Lord, Lord Prys-Davies, that this is not the time for apportioning blame, but there are clearly some Northern Ireland political leaders who are more responsive to their most zealous supporters than they are to the great bulk of public opinion in Northern Ireland. I hope that over the next few weeks the citizens of Northern Ireland, most of whom sincerely want peace and progress and are prepared for power sharing in a devolved government, can make themselves heard and act as a source of pressure, and bring the politicians and parties back to the negotiating table in Northern Ireland. If that could be achieved, the breakdown in the talks, could be used as a constructive pause rather than a disheartening ending of hope.
It took a long time for substantive discussions to get under way because of the delicate negotiations over the process, but it appears from the Statement and reports that, once the parties were engaged in discussions, those discussions were serious and substantive. A basis exists upon which to build. We all know that this is a time of year in Northern Ireland when thoughts of the future tend to be displaced by memories of the past; but the autumn will come, and timing is everything in politics. The times may be out of joint now, but they will not be so for ever, and we must hope that they will not be so for too long.
Lord Belstead: My Lords, it is a disappointment to make the Statement today, but I make it clear that my right honourable friend believes that the process has confirmed his view that there is sufficient common ground among the parties to bring a comprehensive political accommodation within reach. We are therefore naturally looking to the future with some hope. The timetable was mentioned by both noble Lords. While the experience of the last three weeks has shown how much progress can be made in a short time, unfortunately it proved necessary to use much of the 10 weeks discussing the important procedural issues. That was the point made by the noble Lord, Lord Holme.
The noble Lord, Lord Prys-Davies, was right when he said that we must face the fact that there are important and fundamental issues still to be hammered out. Again, I make it clear to the House that the talks have reaffirmed that all the Northern Ireland parties wish to discuss matters that can he resolved only in talks involving the three strands. Strands Two and Three of course involve, in turn, the Irish Government.
The noble Lord asked whether it would be possible for the talks to be renewed before the general election. While I do not wish in any way to speculate upon when that day may come, at the end of the Statement it is made clear that my right honourable friend believes that he will be able to explore, initially bilaterally, whether terms can be established upon which fresh discussions could be held. That would not be talks about talks, but would be returning to talks. He also asked whether the resolve of both governments to continue to work together in these matters remains firm. My answer to that is yes.
The noble Lord, Lord Holme, made one or two points that had the same thrust as those raised by the

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noble Lord, Lord Prys-Davies. He said that public opinion, especially public opinion in Northern Ireland, should be a vital factor in ensuring that we go further down this road. I feel that I can make clear, because I work there, that the widespread support for this process that exists in Northern Ireland has been a very significant factor. That applies to Northern Ireland, the United Kingdom and overseas. Both noble Lords generously paid tribute to my right honourable friend, and I believe that that is the feeling in Northern Ireland. We now have to see whether public opinion can have the effect that the noble Lord, Lord Holme, wishes.
4.6 p.m.
Lord Harmar-Nicholls: My Lords, is there any way in which the Government can persuade the media to be a little more reticent when they anticipate what they believe will happen in these sensitive matters? The description given by many of the media as to what today's Statement would contain bears no relationship to the Statement itself. It is not helpful to create an atmosphere in which it appears that one side is winning and another is losing. The Statement clearly indicates that this is not, and need not be, the end of the matter; and that some progress has been made. One would not gain that impression from reading many of the reports, and that can be damaging. Could the media be persuaded on the odd occasion to wait for the Statement and not to anticipate it and use their own words to describe what it contains?
Lord Belstead: My Lords, I am glad that my noble friend has asked that question. An agreed draft press statement has been put out by my right honourable friend. It was agreed by the parties to the talks. The last sentence reads:
"The Secretary of State made clear his own wish in due course to explore the possibility of finding terms on which fresh discussions could be held".
That was a valuable agreed press statement.
Lord Mason of Barnsley: My Lords, I am sorry to hear of the stoppage of the talks. The Secretary of State's patience and diplomacy deserve a successful outcome. He must be praised for his diligence and sterling efforts. The major obstacles to making political progress between North and South remain. The first is the deeply held opposition of the major political parties in the North to the Anglo-Irish agreement, which in their opinion sacrificed to the Republic of Ireland some of the United Kingdom's sovereign rights. The second is their understandable attitude and opposition to the Irish constitution, which lays claim to govern their Province of Northern Ireland.
With that background, your Lordships will no doubt remember that a Statement was made on 26th March in which three conditions were laid down. The first was that we should all seek an alternative to and replacement for the Anglo-Irish agreement. The second was that the Anglo-Irish conference should not meet while the negotiations were going on. Those were two clear conditions. Were not those conditions agreed by all the parties to the negotiations before the
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Statement of 26th March? If that is so, does the Minister agree that making the Anglo-Irish agreement and its next meeting appear so sacrosanct undoubtedly played a part in halting the talks and suggests that Her Majesty's Government believe the continuation of the Anglo-Irish agreement and the meetings to be more important than the talks that the Secretary of State started?
Although the Secretary of State says that the talks are concluded, I am pleased to note that he is not disappointed; is encouraged to continue in due course; and believes that he has laid some foundations for progress. However, as he well knows, he is coming up against the buffers of a general election, and I believe that that will frustrate further progress.
Finally, these were not peace talks. The Provisional Sinn Fein, the Provisional IRA and the Ulster Volunteer Force were not involved. Any constitutional changes that are agreed by all parties will not halt the Provisional IRA's campaign of terror. Its objective is the smashing of all democratic institutions in the north and, if it succeeds, in the south as well. We must not lead all those people in Northern Ireland or Great Britain into a false sense of hope and security. The terrorists of the Ulster Volunteer Force and particularly of the Provisional IRA still have to be defeated and we must not take our eyes off that objective.
Lord Belstead: My Lords, perhaps I may make absolutely clear the position concerning the meeting on 16th July, the next meeting of the intergovernmental conference. Her Majesty's Government entered into a commitment with the Irish Government to hold a meeting on that date. The decision was announced after the last intergovernmental conference on 26th April and all the participants in the talks understood that it marked the end of the agreed gap during which the talks would take place. The gap was referred to in the Statement in the House on 26th March to which the noble Lord referred. The meeting on 16th July is therefore part of the framework within which it was agreed back in April that the talks should be held. The Government are under an obligation to honour that decision.
I was grateful to the noble Lord for his final remarks. It is a disappointment to have to make this Statement today. The disappointment is for all law abiding people both within and outside Northern Ireland. The key point to hear in mind is the determination of the British Government and the people of Northern Ireland to resist the activities of the terrorists. That determination is as strong now as it has ever been.
Lord Blease: My Lords, I join noble Lords who have thanked the Minister for making the Statement. I very much share the tone and tenor in which the noble Lords, Lord Prys-Davies and Lord Holme, presented constructive points concerning reconciliation which looked with some hope to the future.
During the course of the talks, discussions took place on other matters which arose when the question of the talks came before the House. I was pleased and welcomed the non-partisan approach of the House to

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reason and the constructive points being made that would help and encourage the Secretary of State, Mr. Brooke, and the Minister in what they attempted to achieve.
In this House we all realise, like many in Northern Ireland, the tremendous task that has been undertaken there. The result today is disappointing. It was without surprise that we heard that this announcement was imminent but I am pleased that the Minister has rounded off the report in the Statement today with a message of hope. I totally agree with him that the talks have not been in vain. They have aroused tremendous interest in Northern Ireland as to the basis upon which trust, faith, confidence and accommodation can be formed. Those possibilities will be explored.
There is a general reaction perhaps not always apparent among people in Northern Ireland, and here I agree with the Minister. This is not the time for making a statement apportioning blame or making any similar comment. I believe that I heard the Minister correctly and that he said that all peaceable people. in Northern Ireland would be disappointed and consider themselves the losers in their disappointment and loss after the cessation of the talks. However, I am sure that they will appreciate the end of the Statement which looks forward to talks being resurrected and put on the agenda again with a positive construction.
I end by repeating that like other Members of the House I appreciate the efforts of the Minister. I and other noble Lords know that behind the scenes he has worked in equal partnership with Mr. Brooke in the talks and we warmly appreciate his efforts.
Lord Belstead: My Lords, I am grateful to the noble Lord for what he said and particularly for confirming that the Statement of my right honourable friend ends with a message of hope. We now anticipate picking up the threads in due course.
Lord Monson: My Lords, I am grateful to the noble Lord, Lord Belstead, for repeating the Statement and the information that a small degree of progress has been achieved. Does he agree that well before the talks began Dr. Conor Cruise O'Brien publicly forecast that because of certain historical and political realities, both north and south of the Border, it was extremely unlikely that the talks would get very far? Once again, he has been proved right. One would never for a moment claim that Dr. Conor Cruise O'Brien was infallible, but does the noble Lord, Lord Belstead, agree that Her Majesty's Government would save themselves an enormous amount of time, trouble and expense if they paid rather more attention to his analysis of the Irish situation?
Lord Belstead: My Lords, the fact of the matter is that Dr. Conor Cruise O'Brien does not have to face the absolutely fundamental problem that the way in which Northern Ireland is administered is not satisfactory. It is not satisfactory to have direct rule. From that flowed the attempt by my right honourable friend the Secretary of State to try to do something about it. He took soundings of the political parties in
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Northern Ireland to see whether there was a basis for talks and found that there was. It is fair to say that that judgment has proved to be right.
Without detaining the House unnecessarily, I feel that we have come away with a confirmation that the time is right for political talks in relation to Northern Ireland which address all the relevant relationships. The process is of value and could potentially be of even greater value. A degree of common ground exists.
Lord Skelmersdale: My Lords, the Statement makes clear that my right honourable friend has achieved a balance among the four political parties which has not broken down. However, it was impossible to further it in the light of another conference under the Anglo-Irish Agreement. We all heard what the noble Lord, Lord Mason, had to say. I hope that it is clearly understood that the United Kingdom believes in obeying both the spirit and the letter of international treaties. A break of 10 weeks in conference meetings was negotiated; that was all the time that was available for talks unless agreement was secured to run them in parallel. That turned out to be impossible.
We have all praised and recognised the achievements of my right honourable friend today. I hope that he will now be able to turn his attention to using the next few conferences as a means of engineering another break so that the constitutional talks in Northern Ireland can be reconvened to the advantage of all people in Northern Ireland. I note what the noble Lord, Lord Blease, said. I hope that my noble friend can give me some comfort in that direction.
Further, like almost all noble Lords who have spoken, both the Minister and my right honourable friend will work to see that no one seeks to cast blame for what I regard as an interregnum. I believe that the last contribution to the short debate was not helpful in that direction.
Lord Belstead: My Lords, my noble friend asked whether my right honourable friend will sieze the opportunity for meetings under the Anglo-Irish Agreement intergovernmental conferences to talk about recommencing the talks. I wish to make it clear that the circumstances surrounding any fresh talks would have to be a matter for discussion with all the interested parties. Having said that, I am grateful to my noble friend for his intervention.
Lord Fitt: My Lords, one could easily be tempted to express sentiments on this occasion which would meet with the overwhelming approval of people in this House who have been desperately seeking a solution to the Northern Ireland problem. However, one must speak with honesty and that is what I intend to do within the next few minutes.
The talks have ended; now we wait for recriminations. Never for a single second did I believe that these talks could be successful. I invite all noble Lords present to read what I said during the course of the debate on the Anglo-Irish Agreement in 1985. I said then that the terms and conditions and the way that agreement was constructed made it impossible for

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any Unionist to take part in talks. The existence of the Anglo-Irish Agreement over these past five years has made it impossible for the Protestant Unionist community to speak in any way to the Catholic community.
These talks began because the representatives of the Protestant Unionist community so detested every single sentence in the Anglo-Irish Agreement that they were prepared to enter into talks which would do away with the agreement, and whip it off the statute book. On the other hand, the SDLP, the Nationalists, and the Irish Government, entered into those talks with the intention of consolidating and reinforcing the existing Anglo-Irish Agreement. So there you have the irresistible force and the immovable object. There was no way that a meeting of minds could take place. One wanted to continue the Anglo-Irish Agreement and one wanted to make certain that it was dead. I have read every single Irish newspaper every day since these talks began and I must say that from the Nationalist point of view there was a great deal of triumphalism —"we have got the Unionists with their backs to the wall". Indeed, an editorial in the Irish Times said: "the Unionists agree with us but we have got the Anglo-Irish Agreement; it is very acceptable to the Government in the Republic, and it is very pleasing to the SDLP in the North." That was the sort of language which inflamed opinions on different sides of the political fence.
The talks have failed. I agree with the sentiments that have been expressed: it is not the end of the road and probably in due course some new path will be taken. Of course, we have all heard of "in due course", and we all know what it means; it means absolutely nothing. No further talks will take place this side of a general election. A statement has been cobbled together which will in some way seek to canonise those who were seeking peace in Northern Ireland. But the fact is that these talks have failed, and no further talks will succeed with the Anglo-Irish Agreement in existence in its present form. While that is there, and while Articles 2 and 3 of the Irish Constitution are in existence, there will be no talk of bringing together the two communities in Northern Ireland. Everyone has been giving credit to the Secretary of State for Northern Ireland; but the luckiest man in this whole process has been the fellow from Australia, Sir Ninian Stephen, who must be thanking God that he has not had to go there.
I have said that the talks are not going to be resurrected this side of a general election. But whatever government is in power after the next election, the Anglo-Irish Agreement in its present form will ensure that there is going to be a continuous divide between the two communities in Northern Ireland.
Lord Belstead: My Lords, the noble Lord, with whom I must say I normally agree—and, no matter whether I agree with him or not, I certainly always respect what he is saying—began his remarks by saying that the talks were pointless. I must point out to the noble Lord that the agreed press statement which was put out this morning says that
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"The Secretary of State and the party leaders agreed that the talks had been valuable and had produced genuine dialogue."
The noble Lord then went on to say that anyway the talks had no possible chance of success. He knows better than I that where there are problems which go back for many, many years what is needed, if there is to be a hope of success in beginning to solve them, is perseverance. We must now see whether the political parties who have been involved in the talks are prepared to persevere.
Finally, perhaps I may say this. When the noble Lord referred to the Anglo-Irish Agreement and to Articles 2 and 3 of the constitution of the south, I apprehend that these are matters which did not form part of the discussions in the first strand because they would have been discussed in the subsequent strands. We have a situation where we have concluded the talks with the first strand still unfinished. The Statement made by my right honourable friend today makes one thing crystal clear: he believes that there is the possibility of a political accommodation if we persevere, and I am sure that the noble Lord wants that as much as Her Majesty's Government.
Lord Hailsham of Saint Marylebone: My Lords, may I put one short point to my noble friend? It is this. He will perhaps remember that I was not uncritical of the Anglo-Irish Agreement in its present form for precisely the reasons that have been put forward by the noble Lord, Lord Fitt. But for the first time in our history as a nation, we are faced with a land frontier which is difficult to police and which is threatened on both sides with terrorism. Would he not therefore agree that some form of agreement by which we can mitigate the results of that is inevitable with the South? That is something which ought to be universally accepted both on this side of the water and on the other side.
Lord Belstead: My Lords, I am most grateful for the intervention from my noble and learned friend. This would have been a matter which we could have come to, and still can come to, if there can be perseverance. One of the major features of the talks that have taken place has been the resilience in the face of terrorist attacks, together with determination by the parties not to be diverted from a dialogue.
Lord Waddington: My Lords, I am sorry, but the 20 minutes is up.

Criminal Justice Bill
4.27 p.m.
Consideration of Commons Reasons and amendments resumed.

LORDS AMENDMENT
2 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

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(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 Commons disagreed to the above amendment but proposed the following amendments in lieu thereof:
2A After Clause 22, insert the following new clause:
Duty to release discretionary life prisoners
'.—(1) A life prisoner is a discretionary life prisoner for the purposes of this Part if—

(a) his sentence was imposed for a violent or sexual offence the sentence for which is not fixed by law; and

(b) the court by which he was sentenced for that offence ordered that this section should apply to him as soon as he had served a part of his sentence specified in the order.

(2) A part of a sentence so specified shall be such part as the court considers appropriate taking into account—

(a) the seriousness of the offence, or the combination of the offence and other offences associated with it; and

(b) the provisions of this section as compared with those of section 27(2) above and section 28(1) below.

(3) As soon as, in the case of a discretionary life prisoner—

(a) he has served the part of his sentence specified in the order ("the relevant part"); and

(b) the Board has directed his release under this section,

it shall be the duty of the Secretary of State, subject to subsection (7) below, to release him on licence.
(4) The Board shall not give a direction under subsection (3) above with respect to a discretionary life prisoner unless—

(a) the Secretary of State has referred the prisoner's case to the Board; and

(b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.

(5) A discretionary life prisoner may require the Secretary of State to refer his case to the Board any time—

(a) after he has served the relevant part of his sentence; and

(b) where there has been a previous reference of his case to the Board, after the end of the period of two years beginning with the disposal of that reference; and

(c) where he is also serving a sentence of imprisonment for a term, after he has served one-half of that sentence;

and in this subsection "previous reference" means a reference under subsection (4) above or section 32(4) below made after the prisoner had served the relevant part of his sentence.
(6) In determining for the purpose of subsection (3) or (5) above whether a discretionary life prisoner has served the relevant part of his sentence, no account shall be taken of any time during which he was unlawfully at large within the meaning of section 49 of the Prison Act 1952 ("the 1952 Act").
(7) The Secretary of State may defer a prisoner's release under this section for a period not exceeding six months if he is satisfied that exceptional circumstances exist which justify such a deferment in the public interest.
(8) In this Part "life prisoner" means a person serving one or more sentences of life imprisonment; but—

(a) a person serving two or more such sentences shall not he treated as a discretionary life prisoner for the purposes of this Part unless the requirements of subsection (1) above are satisfied as respects each of those sentences; and

(b) subsections (3) and (5) above shall not apply in relation to such a person until after he has served the relevant part of each of those sentences.'.

Lord Waddington: My Lords, I beg to move that the House do not insist on their Amendment No. 2 to which the Commons have disagreed, but do agree with the Commons in their Amendment No. 2A in lieu
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thereof. I shall also speak to Amendments Nos. 2AA to 2AG, 2AJ, 2B, 2BA to 2BC, 2C to 2H, 2HA, 2J, 2JA, 2K to 2P, 2PA, 2Q to 2V, 2VA to 2VC, 3, 3A, 4, 4A, 5, 5A to 5C, 6AA, 8, 8A, 9, 9A, 10, 10A, 13, and 13A.
The other place did not find it possible to go along with your Lordships' proposals that there should be a review procedure in murder cases and I believe that, having accepted the continuance of the mandatory life sentence for murder, it would also be right to accept that the question of a murderer's release should be left in the hands of the Home Secretary as part of his responsibility for the protection of the public and the maintenance of the Queen's peace. In an earlier debate I made the point that at the time of the abolition of capital punishment, Parliament not only thought it right to mark the unique nature of the crime of murder by a special punishment but made it clear that the murderer, because he had taken another life, would surrender his own in a very important respect.
He might not spend the rest of his days inside prison but the sentence would last for life and he would not be released without the consent of the Home Secretary, who would be answerable to Parliament if things went wrong. I think that that is still the right approach to adopt. The approach is, we believe, consistent with the decisions by the European Court.
In so far as non-murder cases are concerned, however, I indicated during the Report stage of the Bill that the Government would be happy to respond to your Lordships' views, and we have been as good as our word.
The amendments which have been proposed in lieu of Amendment No. 2, and to the words restored by disagreement to Amendment No. 5, introduce a new system for the administration of discretionary life sentences. This new system, which the government believe will bring our domestic practice fully into line with the requirements of the European Court of Human Rights, is in its essentials quite similar to that proposed in your Lordships' amendments—though it does not of course apply to mandatory life sentence prisoners.
It may be for the convenience of your Lordships if I briefly outline the main features of the amendments in lieu, with particular reference to the points where they differ from those proposed by your Lordships. It may also be convenient if, in doing so, I refer to the further amendments which have been tabled by the noble Lord, Lord Nathan, and others.
First, provision is made, in Amendment No. 2A, subsection (2), for the trial judge to announce in open court the term within a discretionary life sentence which reflects the seriousness of the offence. This corresponds with subsection (1) (b) of Lords Amendment No. 2, but in a form which I hope is rather easier to understand. I think it was the noble Earl, Lord Longford, who said that the language of Amendment No. 2 was incomprehensible. I think it is now clear in our amendment.
The term stated by the trial judge will be an order made as part of a sentence and so will be open to appeal in the normal way. Once that term had been

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served, the prisoner's detention thereafter would be based on the risk he posed to the public rather than the seriousness of the offence.
It would, under the Government's proposals, be open to the trial judge, exceptionally, not to set a term. This would be an indication that the crime which had been committed was so wicked that detention for life was justified according to the seriousness of the offence alone, irrespective of the risk to the public. Such a life sentence prisoner would therefore be in the same position as a mandatory life sentence prisoner. The question of his eventual release would be a matter for the Secretary of State.
At this point, perhaps I could refer to Amendments Nos. 2AA and 2AB which have been tabled by the noble Lord, Lord Nathan, the noble and learned Lord, Lord Ackner, the noble Lord, Lord Richard and my noble friend Lord Campbell of Alloway. They not only seek to apply the new procedures which I have just mentioned to mandatory as well as discretionary cases, but also remove the discretion which the Commons amendments give the sentencing judge not to specify a term if he considers it inappropriate to do so. I want to make it plain why that provision was inserted by the other place.
I think it would be helpful to take as our starting point the remarks of the European Court of Human Rights in the case of Thynne, Wilson and Gunnell. The court drew a clear distinction between the mandatory life sentence and the discretionary sentence; based on the reasoning which it found in the relevant judgments of the Court of Appeal. If I may quote from the European Court judgment, the court said:
"the principles underlying such sentences [i.e. discretionary sentences], unlike mandatory life sentences, have developed in the sense that they are composed of a punitive element and subsequently of a security element designed to confer on the Secretary of State the responsibility for determining when the public interest permits the prisoner's release."
The passing of a discretionary life sentence would therefore normally indicate that there was present an element of mental instability and dangerousness in the offender which were, by their nature, susceptible of change with the passage of time. The court concluded that the lawfulness of the prisoner's indefinite detention in a discretionary case could not therefore be determined at the outset by the act of passing sentence, and that the discretionary life sentence prisoners concerned were therefore entitled, under the convention, and I quote again,
"to take proceedings to have the lawfulness of their continued detention decided by a court at reasonable intervals and to have the lawfulness of any re-detention determined by a court".
It is this reasoning which is reflected in the Government's amendments. First, the procedures set out in the Government's amendments do not apply to mandatory life sentence prisoners. The mandatory life sentence is given not (to use the court's words) in order to provide first a punitive element in the sentence and subsequently a security element. The justification for the mandatory life sentence for murder is the heinousness of the offence alone, whether or not the offender is also judged to present a future risk to the public. It has to be imposed whether or not the
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offender presents a future risk. That is the nature of the mandatory life sentence, the continuance of which has now been accepted by this House.
The mandatory life sentence passed for murder does not therefore divide up into punishment and security elements in the same way as a discretionary sentence, and it follows, I think, that one cannot have a similar procedure by which the trial judge announces in open court a period relating to the punishment element of the sentence. It also follows that there is no point in time in the sentence at which its justification switches from being punishment to being the protection of the public, and at which the lawfulness of the prisoner's continued detention must be reviewed by a body having the powers of a court for ECHR purposes.
So I believe that it would actually be incompatible with the reasoning adopted by the European Court of Human Rights to apply the procedure set out in the government amendments to mandatory life sentence cases, as the amendments put forward by the noble Lord, Lord Nathan, and others seek to do.
Lord Nathan's amendments also seek to remove the discretion which the Commons amendments allow for the trial judge exceptionally not to announce in open court a period related to the punishment of the offence in a discretionary life sentence case. But again this discretion—and I should emphasise that it is not more than a discretion which the trial judge can use or not as he sees fit—is based on the reasoning adopted by the European court.
A discretionary life sentence will nearly always be imposed because there is some element of mental instability which makes it impossible to know at the time of sentencing when it will he safe to release the prisoner. In these cases, clearly the new procedures should apply. But there may very exceptionally be a discretionary life sentence which is imposed purely because of the seriousness of the offence.
I do not need to give more than one simple example; namely, that of a terrorist who sets out to blow up a jumbo jet and by merciful providence the bomb is discovered just before the plane takes off and therefore no crime of murder is committed. It is perfectly possible to imagine a set of circumstances in which a judge would come to the conclusion that the crime committed was in itself so ghastly, and the seriousness of the offence was so grave, that a life sentence should be passed, not because there was any danger of the person at some point in the sentence then becoming a danger to the public again, but because life imprisonment was necessary to mark the full horror of the offence that had been committed —the attempted murder of hundreds of people by a terrorist act.
Under the proposals in the Commons amendments, in every discretionary life sentence case in which the judge had stated a term at the time of sentencing, the prisoner would be entitled to have his continued detention after the term reviewed by an independent body having the status of a court for the purposes of the European Convention on Human Rights. We propose that that body should be the Parole Board. We thought it right to entrust the task to the Parole

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Board rather than some completely new body because the members of the board have great expertise and know ledge in matters relevant to assessing the early release of prisoners. We think that there would be considerable benefit in bringing their expertise and knowledge to bear on the release of discretionary life sentence prisoners.
However, in order to satisfy the European Court of Human Rights' requirement that those cases should be considered by a body having the powers and status of a court, the Parole Board will have to operate under special procedures in those cases. First, and crucially, the board's decision on release will be binding on the Secretary of State, not just advisory. More detailed procedural matters will he laid down in rules made by the Secretary of State under clause 26(5) of the Bill. The panel of the Parole Board, which will consider discretionary life sentence cases, would be chaired by a judicial member of the board and one of its members would be a psychiatrist. The prisoner would be entitled to appear before the panel and to be legally represented. He would be eligible to receive legal aid. We are confident that the procedures concerned will satisfy the requirements of the European Court of Human Rights and that it is not necessary for them to be spelt out in the Bill for that purpose. We shall come to Amendment No. 2AH, in the name of the noble Lord, Lord Harris of Greenwich, later.
If the panel concluded that the prisoner's continued detention was no longer necessary to protect the public, the Parole Board would direct the Secretary of State to release him. The Secretary of State would then be obliged to release the prisoner on licence, subject only to a power, exceptionally, to delay release for up to six months if it was in the public interest to do so.
I can understand why some of your Lordships will be concerned about that power, and that concern is reflected in Amendment No. 2AG, but there is good reason for it. The European Court recognised in its judgment that a limited power to delay release might in some circumstances be justified on the grounds of what it termed "expediency".
We believe that it may be necessary on very rare occasions for the Home Secretary to delay a life sentence prisoner's release when there are compelling reasons, such as the prospect that release at the particular time in question would cause public outrage and public danger. Again, I can give a simple example which I am sure will bring home to the House how necessary it is to have that power. The release of a terrorist at the time when a particular anniversary of the tragedy caused by his actions is being marked by a public meeting might turn a peaceful demonstration into a public riot. The Home Secretary should be able to pre vent that by delaying release for a short period, but he would use the power only in the most exceptional circumstances and he would of course be accountable to Parliament for any decisions to use that power.
The prisoner's release would be on licence and, under the Government's proposals, licences would, as now, last until the offender's death, unless he was recalled to prison in the meantime. Amendment No. 2AC, on the other hand, proposes that in
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discretionary cases there should be an option of waiving the licence after a certain period rather than having it continue in force until the offender's death. I cannot recommend that to your Lordships. It seems to me that that would undermine the concept that a life sentence is a sentence for life, even though a proportion of it will be spent on release on licence rather than in custody.
Furthermore, bearing in mind that the offender will have been given a life sentence in the first place because of some element of instability which makes it impossible at the time of sentencing to predict when it will be safe to release him, it seems odd not to guard against a situation in which, for instance, a sex offender, after apparent rehabilitation, shows signs of once again wanting to molest children. So long as the life licence remains in force, the offender can be supervised, additional conditions can be attached if necessary to keep him out of contact with potential victims, and ultimately the offender can be returned to prison. We would fail in our duty to protect the public from offenders of that kind if we did not retain that ability to supervise their activities and prevent their committing further offences for the rest of their days.
In conclusion, I should point out that, unlike the amendments introduced in your Lordships' House, the amendments proposed by the other place include transitional provisions for prisoners who are already serving discretionary life sentences. They will become eligible for review by the Parole Board in its new capacity once their existing tariffs have been served. The prisoners whose cases were the subject of the ECHR judgment will therefore benefit from the new arrangements. The amendments proposed by the other place also cover a number of other cases not dealt with in your Lordships' amendments, including prisoners sentenced concurrently to more than one life or determinate sentence, and prisoners transferred from other jurisdictions to serve their sentences in England and Wales.
Your Lordships will see from that explanation that the Government and the other place have accepted the wisdom of your Lordships' view that the opportunity should be taken in this Bill to bring our law and practice on discretionary life sentences into conformity of the requirements of the ECHR. That in itself is a notable achievement for your Lordships' House. The Bill, and our law and practice hereafter, will be the better for those changes which have been made at your Lordships' behest. By accepting the amendments made in the other place and not insisting on your Lordships' amendments on the mandatory life sentence and on life sentence procedures, your Lordships can ensure that the Bill becomes law without delay, so that those and the other important changes introduced by the Bill may be implemented as soon as possible. I beg to move.
Moved, That the House do not insist on their Amendment No. 2, to which the Commons have disagreed, but do agree with the Commons in their Amendment No. 2A in lieu thereof.—(Lord Waddington.)
The Deputy Speaker (Lord Strabolgi): My Lords, I must now call Amendment No. 2AA as an amendment to Commons Amendment No. 2A.
4.45 p.m.
AS AN AMENDMENT TO COMMONS AMENDMENT No. 2A
2AA Line 2, leave out subsection (1) and insert:—
("(1) This Part applies to a person sentenced to—

(a) life imprisonment, whether or not for an offence the sentence for which is fixed by law; or

(b) during Her Majesty's pleasure or for life under section 53 of the 1933 Act; or

(c) custody for life under section 8 of the 1982 Act.

where the Court by which he was sentenced ordered that this section should apply to him as soon as he had served a part of his sentence specified in the Order.").
Lord Nathan: My Lords, I beg to move Amendment No. 2AA. My Amendment No. 2AA stands in the names of myself, the noble and learned Lord, Lord Ackner, and the noble Lords, Lord Richard and Lord Campbell of Alloway. I shall speak also to Amendments Nos. 2AB, 2AC and 2AG. There are therefore four substantive amendments to which I shall speak. They have been grouped together for convenience of debate, but I should make it clear that none of them is dependent on another and each therefore can stand on its own feet. I shall therefore move them separately in due course. The remainder of the long list of amendments that have been grouped together are consequential and I need not refer to them further at this stage.
I preface my remarks by saying that it will certainly come as a disappointment to many of your Lordships as well as to myself that the amendments to the Bill, adopted so overwhelmingly by your Lordships' House, have been rejected by another place. It is rare, if not unique, for a substantive amendment to be introduced after Third Reading in both Houses, especially when the subject has for long been known and under discussion. However, I draw comfort from the Commons amendment that is now before us. It is designed to bring the law and practice of this country into conformity with the ruling of the European Court of Human Rights on discretionary life sentences in the case of Thynne, Wilson and Gunnell. It embodies provisions for the court to determine the penal term and for an independent tribunal (the board) to determine questions relating to release.
My purpose in moving these reasoned amendments is to invoke the support of your Lordships' House as a revising Chamber —which, after all, is one of its main functions—to improve the drafting and to ensure compliance with the ruling of the European Court of Human Rights. The amendments also include provisions to extend their application to all life sentences for similar reasons, to which I shall refer later.
I turn first to Amendment No. 2AG which would delete subsection (7) of the Commons Amendment No. 2A. Subsection (7) provides that:
"The Secretary of State may defer a prisoner's release … for a period not exceeding six months"
after the board has directed that he be released. A key feature of the decision in the Thynne case is that
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questions of release of discretionary life prisoners shall be determined by a court or a court-like body which is independent of the Executive.
The problems which can be confronted and to which the noble Lord the Leader of the House referred —problems about riots and so forth on release of a prisoner—apply not only to those who are sentenced to life imprisonment. They could well apply to others also. If that argument were to prevail, it must be applied across the board to the release of all prisoners and not just to life prisoners or, indeed, discretionary life prisoners. The existence of a power for the Secretary of State to defer for six months a release ordered by the board would, in the opinion of many who are well qualified to speak, be a direct contravention of the Court's ruling. Amendment No. 2AG is designed to rectify that situation.
Secondly, I refer to subsection (3) of Commons Amendment No. 2A, which provides that any release of a discretionary life prisoner shall be on licence. The judgment in the Thynne case makes it clear that in the case of a discretionary life prisoner (which was the subject of the decision) a court—or in this case the board—must have power to bring the licence to an end. That is the background to the amended paragraph (3) (b) contained in Amendment No. 2AC. Noble Lords will note that under Amendment No. 2AC the revised subsection (3) (a) provides that in the case of any other prisoner—that is to say, a mandatory life prisoner—the licence shall continue until death. So the distinction is clearly made there.
I come now to Commons Amendment No. 2A subsections (1) and (2) which adopt the principle that the trial judge shall determine the period during which the life prisoner shall remain in custody as punishment. The function of Amendment No. 2AB is to clarify that and to ensure that it applies in all cases. It seems to me that if the point made by the noble Lord the Leader of the House were to be pressed forward, then the court should determine that it was not to be a fixed period during which the prisoner was to be held in prison but indeed for the remainder of his life. That would be preferable to inserting a provision which, on the face of it, looks as though the court has an option whether or not to exercise the power and to make the order. If the court had that option (which, on the face of the clause as I read it, it has), the criteria according to which it should exercise that option would have to be clearly defined.
Finally, I refer to Amendment No. 2AA, which would make the Commons amendment, subject to the other amendments to which I referred, apply not only to discretionary lifers but also to those awarded a mandatory life sentence. The reasons for proposing Amendment No. 2AA are principally two. First, although the Thynne case related to discretionary life sentences, it is widely felt that when the case of a mandatory life sentence comes before the European Court of Human Rights it will apply the same principle that it has established for discretionary life sentences.
The United Kingdom played a significant part in creating the European Convention on Human Rights and therefore the establishment of the court. The

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convention reflects much which lies at the foundation of English law. England has been regarded over the centuries as the cradle and indeed the bastion of the rule of law. It is therefore particularly distressing—I know that this view is shared in all quarters of your Lordships' House—when this country is condemned for failure to maintain its heritage. That was the situation in which we found ourselves: condemned in the Thynne case and indeed the Weeks case before it. It is surely appropriate that every step should be taken now to ensure that the condemnation in Thynne does not recur when the case of a mandatory life sentence comes before the court, as I am advised that it shortly will.
There is a further point of great significance. Your Lordships' House considered at an earlier stage of the Bill the very wide range of offences, and the circumstances in which they may be committed, in which a life sentence, be it discretionary or mandatory, may be awarded. Under the Commons amendment the provisions relating to the term of imprisonment as punishment and for release apply —for instance, in the case of a convicted rapist sentenced in the discretion of the court—to life imprisonment. On the other hand, under the Commons amendment it is clear that in the pathetic case of a husband who kills his wife at her request when she is suffering from some terminal and painful disease, and is therefore guilty of murder, will not come within those provisions. He will be dealt with as at present by decisions made in secret by the Home Secretary or, more frequently, by a junior Minister; decisions which were so strongly condemned by your Lordships at an earlier stage of the Bill.
Approving our amendments in your Lordships' House will enable them to be considered by another place. To do so does not create conflict or confrontation but would, I hope and believe, promote the substantial step forward represented by the Commons amendment. It is in that spirit that I put them before noble Lords and hope that they will commend themselves to your Lordships in all quarters of the House. At the appropriate time I shall move as required each of the amendments which has been grouped with this one. For the present I confine myself to Amendment No. 2AA. I beg to move.
Moved, That Amendment No. 2AA, as an amendment to Commons Amendment No. 2A, be agreed to.—(Lord Nathan.)
Lord Richard: My Lords, I rise to support this amendment. I shall do so very briefly indeed. There is a veil of secrecy which governments like to try to maintain in as faintly transparent a form as possible about the way in which Ministers approach the very difficult It instances of people sentenced to life imprisonment. The veil has been lifted a little—I am not sure to what degree intentionally—within the past few years and some figures have been given to the Select Committee.
The fact of the matter is that in most cases Home Office Ministers required prisoners to serve longer minimum periods than trial judges considered appropriate. As the House knows, the present procedure is that when someone is sentenced to life
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imprisonment for murder the trial judge makes a recommendation as to how long the person should serve. That recommendation goes to the Lord Chief Justice, who considers it and makes his own recommendation. It is then forwarded to the Home Office. There is therefore some kind of judicial action —or at least, judicial thought—given to the appropriate time during which an individual sentenced to life imprisonment for murder should stay in prison.
If the position is, as these figures seem to show (perhaps I may give them in a moment) that Ministers required prisoners to serve longer minimum periods than trial judges considered appropriate, then I am bound to say that I find it an extraordinary and disturbing position and one which the House should not lightly accept.
Between 1st April and 30th September 1988 minimum periods were set for 106 persons sentenced to life imprisonment for murder. In 63 of those cases Home Office Ministers laid down longer minimum periods than the trial judge recommended. In 34 cases they accepted the trial judge's recommendation. In only nine cases out of 106 they set lower minimum periods than the trial judge. More recently published figures indicate that of 274 mandatory life sentences considered in 1990 Ministers set a longer period than that recommended by the trial judge in 90 cases and a shorter period in 43 cases.
The point is simple and can be made briefly. It is wrong in principle for Ministers to lengthen sentences by Executive decree in this manner. Unlike a judge, the Minister makes his decision without having heard the evidence in court. The effect of the decision is that it is a sentencing decision. It is a decision taken by the Executive in the absence of any great knowledge of the case. The Executive has not been present and heard the evidence. It is a decision taken behind closed doors as to how long someone should spend in prison. That decision having been taken behind closed doors, the prisoner cannot appeal against it. Frequently he does not know about it until he tries to apply for parole. Then, by some strange process of mathematical calculation, he may be able to work out when he is likely to be released.
Similarly, decisions for or against the eventual release of life sentence prisoners and on the recall of such prisoners on licence can result in further lengthy periods of imprisonment; yet those decisions also are taken by an executive process whereby the parole board makes recommendations to Ministers. The amendment proposed by the noble Lord, Lord Nathan, ensures that decisions on the release and the recall of life sentence prisoners will be made by a process which, unlike the current system, will satisfy the requirements of natural justice. I hope that we all agree that those of our fellow citizens who are sentenced to life imprisonment for murder are entitled to treatment firmly based and clearly seen to be based upon the principles and requirements of natural justice. In my view, the present position is not so based. The half-way house that the Government propose is not so based.

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The noble Lord the Leader of the House sought to erect an edifice to justify the present position based upon an argument that murder is the most heinous of crimes and therefore demands different treatment. That, frankly, is nonsense. I shall not go through the arguments again. Many of us have practised in courts or have sat as a judge. The noble Lord, Lord Waddington, has practised in the courts at some stage of his political and legal career. He knows as well as any of us that one cannot simply say murder is murder and is therefore the most heinous of offences. Sometimes it is not. Sometimes it is a pathetic offence committed for humanitarian motives. To treat all murderers in a similar category and to give a discretion to the Home Secretary to decide when they should be released is something which I find offensive. The amendment of the noble Lord, Lord Nathan, and others goes some way towards rectifying that situation.
Lord Campbell of Alloway: My Lords, I also support the amendment. Superimposed on the text of the Bill is a four-tier drafting process which tends to obscure the nature of the essence of the disagreement as it now arises between the two Houses. There are the Lords amendments; there are the Commons proposed amendments and new clauses; there are the Lords proposed amendments and the Commons proposed new clauses; and there is a Lords amendment to a Lords proposed amendment, Amendment No. 2AH. That interesting, if somewhat perplexing process of law making, is worthy of the pen of A. P. Herbert and the satirical revelries of the honourable Mr. Justice Cocklecarrot.
However, we have to get right away from the misconception that the release of life prisoners be left to the will of the Home Secretary, because he is answerable to Parliament. That is a total misconception. Surely we have to accept that the question of release is a judicial function and not an Executive function. We have to set our face against the lengthening of sentences by Executive decree behind closed doors, to which the noble Lord, Lord Richard, referred. It is simply no longer acceptable.
I shall return to the argument of my noble friend the Leader of the House in one moment. The broad principle is no longer open to question in view of the reasoning of the Court of Human Rights. It should not be open to question anyway, apart from the reasoning of the Court of Human Rights, for the reasons given by the noble Lord, Lord Nathan.
What is the essence of the disagreement as it now arises? It is not in the same context as it arose before between the two Houses. I mention that to clear the air. First, another place wishes to confine the machinery for early release of life prisoners to discretionary life sentences, whereas the Lords proposed amendments apply to all life sentences. Surely it is wrong in principle and unacceptable in practice that in our country we should have a disparate regime on release of life prisoners as between the mandatory sentences or sentences where the term is not set, on the one hand, and the discretionary sentences on the other. It makes no sense. I join issue
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—respectfully of course, but totally—with my noble friend the Leader of the House on his interpretation of that Court of Human Rights decision. If we maintain this nonsensical disparity, assuredly, as I read the decision—I am open to correction of course—Her Majesty's Government will find themselves again in the pillory in the Court of Human Rights as regards mandatory sentences with a case which is on its way at present.
The second essence of disagreement—I have time only to deal with the essence—is that another place proposes that the machinery for release shall be the parole board, an advisory institute, with power in the Secretary of State to defer release for six months after the board directs release; whereas the Lords proposed Amendment No. 2AH (to which we shall come in a moment; it is relevant to the essence of disagreement) requires the board when exercising those functions to consist of a High Court judge as chairman with two other members, and to act as a judicial tribunal independently of the Secretary of State. Amendment No. 2AG, referred to by the noble Lord, Lord Nathan, removes the power of the Secretary of State to defer release for six months.
I found the concepts of public outrage and public riot a little dramatic and rather far fetched. I do not accept that questions of release should be left entirely to the will of the Secretary of State. If the Parole Board is to discharge its functions in accordance with the reasoning of the Court of Human Rights, surely it is utterly essential not only that it should act but that it should be seen to have acted judicially and independently of the Secretary of State and the Executive. That requirement should appear on the face of the statute.
Apart from wishing to forestall criticism of the Government, whom I support in other contexts, at the Court of Human Rights, I believe that if the amendments which I support were carried into the Bill it would tend to mitigate one of the most serious causes of unrest in our prisons according not only to the findings of your Lordships' Select Committee but to an express finding in the Woolf Report. As was said by the noble Lord, Lord Nathan, there is no hint of confrontation with another place; no insistence on any Lords amendments that have been disagreed by another place; no question of any lost Bill; and no question of any pressure. All that we ask is fair consideration by another place of these amendments in the new context in which they arise in the light of your Lordships' debate today. Surely, that is a reasonable stand to take, so that we may afford before Royal Assent a uniform, simple, intelligible procedure for the release of life prisoners consistent in all respects with the reasoning, as I understand it, of the Court of Human Rights. It is a procedure which is seen as fair, not only by your Lordships but also by the general public, to the victim, and, according to the evidence that we have received, to the prisoner.
5.15 p.m.
Lord Morton of Shuna: My Lords, I too support the amendments. That will come as no surprise to your Lordships as I am a member of the Select Committee.

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I wish to ask two questions. As I understand the Commons amendment, the present procedure for life sentences for murder remains as it is and the new procedure applies only to the discretionary life sentence. I speak as a Scottish judge and not as an English judge. I understand that the English judge will write a recommendation in secret as regards the mandatory life sentence but under these provisions will make a recommendation in public as regards the discretionary life sentence. Is there logic in telling a prisoner receiving a discretionary life sentence, who will probably be mentally disturbed, what the punitive period is but keeping it secret from the person who everyone in the court knows is never likely to commit that offence again? Why is it necessary to keep the punitive element secret from the person convicted of murder? That appears to be one question totally unanswered in the Commons amendment.
The second question is covered neither by the Commons amendments nor by the amendments proposed to them. It is: is there to be a right of appeal against the punitive element in a life sentence?
Lord Ackner: My Lords, the reason why murder is not the most heinous of crimes is that unlike many other countries we have no categories of murder. That fact only has to be stated to make one realise that murder covers a wide range. On the other hand, the Government are intent on taking this uncategorised crime and putting it into, so to speak, a hermetically sealed compartment. The noble Lord, Lord Waddington, said with almost the nostalgic ring of an advocate, 'Consider the ultimate finality of the crime". That is known in the profession as a good jury point but when analysed it is not over full of substance.
There is a terrible finality in relation to the victim who is killed by reckless driving. There is a terrible and equal finality to the victim of manslaughter. In the case of manslaughter the intention to kill or to cause grievous bodily harm will be identical in many cases. The only reason why murder is not the right category is that the offender has managed to set up provocation or diminished responsibility. Therefore, the justification for this categorisation is totally wanting.
As a member of the judiciary I am anxious that the quality of the administration of justice in our country is not laughed at. There is now to be a new regime, not because the Government have seen the light, which necessitates according little more than the principles of natural justice to a prisoner, but because the Court of Human Rights has said so. That is quite rightly so. The new regime will give the discretionary life sentence prisoner the right to hear how long the penal element is and, I imagine, a right to appeal. That was proposed by the Lord Chief Justice. It will also give him the right to make an application to be released when that period has ended, to be represented and to have legal aid. All those aspects are most sensible. However, that regime is not to be accorded to the subject of a mandatory life sentence. Why on earth not? It is a sound, sensible, straightforward process that takes the art of sentencing away from the Executive where it should never be and entrusts it, together with all other sentences, to the judiciary.
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Thinking back, I feel a deep sympathy for whoever is retained on behalf of the Government to argue their case before the Court of Human Rights. He must justify that absurdity. No doubt it will be pointed out that there are examples other than those provided by the noble Lord, Lord Nathan. I was going to instance the unsuccessful terrorist. But the Government wish them to be put into a separate category although the life sentence imposed upon the terrorist is clearly imposed because he remains, at least for many years, a continuing danger.
Let us take the case of an arsonist who has managed to burn down several houses, just avoiding, by chance, killing a number of people. He will be the subject matter of a discretionary life sentence. He will be accorded all those privileges wrung out of an unenthusiastic government and only forced into this Bill by your Lordships' initiative. Let us compare him with an elderly gentleman who, because he must live in an urban area where the prospect of being mugged is very high, unlawfully but I think understandably, carries with him a swordstick—and there has been a recent case. He is attacked by a very large but unarmed assailant. He unsheathes his swordstick, runs his assailant through and kills him.
I ask your Lordships to accept that in the circumstances that is using more force in the operation of self defence than is reasonable and that that, in law, however wrong it may be, is murder. Therefore, that man goes down for murder. He is not to be told how long is the penal period and he is not to have any right of appeal in that regard. He is not to be able to apply to any judicial body to be released. He can have no representation. He is in the hands of the bureaucrats and the politicians.
That is why I rise to speak to your Lordships. I believe that that is an insult to the quality of justice which we are here to administer in this country.
The Earl of Longford: My Lords, any resistance to the House of Commons raises the question of whether a matter of principle is involved. I find that there is a very serious issue of principle involved with regard to this amendment. I do not say that a question of conscience is involved in whether a life sentence or a determinate sentence should be passed for murder. However, as to whether we treat those serving mandatory life sentences humanely involves a very deep question of principle.
I recognise that the Government and Members of the House generally have a very high regard for the protection of the public. However, there is also the question of whether an individual should be treated humanely in accordance with the ethics of a Christian country or even a humanist country, if such a country came into existence. Therefore, I believe that it would be monstrous, for reasons already adequately set out, to say that those serving discretionary sentences should be able to go before a tribunal, be represented and so on, but that the same treatment should not be accorded a different category of life prisoner.
I suppose that there are other Members of this House who, like me, are in contact with life prisoners. I shall not dwell on that at great length. The other day I was asked whether I felt anything in common with

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one of those gentlemen who had committed terrible crimes. I said, "I have everything in common with him. He is a member of the human race". That is true of all your Lordships.
That is how I see the matter. One must think not only of the public but also of the treatment of the individual. Hardly anyone is in favour of flogging the individual although that may be a far less severe penalty than keeping him in prison for many years. However, there are those who are ready to lock up people indefinitely. To put it crudely, I believe that that is wicked.
Let us take the immediate issue before us. I know of one prisoner who has served 25 years for two rapes. He has never had access to a tribunal and has never been given any reason for the length of his sentence. Under the new beneficent proposals of the Government, possibly improved as they should be, he should come before a tribunal, be given representation and so on. That is the case of the man serving 25 years for rape.
I know another man who has been in prison for 25 years for murder. Equally, that prisoner has had no opportunity of putting his case before a tribunal. None of those minimum conditions of humanity is observed and if the Government have their way that will continue. It will continue to be a hole in the corner decision reached, almost certainly in this case, on political grounds.
I regard this as an issue of principle and conscience. I shall certainly support the amendment moved by the noble Lord, Lord Nathan.
Lord Hailsham of Saint Marylebone: My Lords, the Government have made a definite advance in the amendment which my noble friend has proposed. To some extent we can give ourselves the credit for that because the amendment would never have been proposed if we had not taken the line that we did about mandatory life sentences. That very definite advance is due to the action of this House. The House of Commons has made a considerable advance in proposing the amendment to us as an alternative to our original view.
Having said that, I wish that I could persuade my noble friend and the Government to take a more sensible view about mandatory life sentences and the unique heinousness of murder. Perhaps I may give one or two reasons for saying that. Many have been rehearsed and I do not wish to take up too much time. First, let us reflect upon the fact that the laws of Scotland and of England with regard to homicide are not identical. Let us then consider that neither the laws of America nor those of most of Europe are identical with our own law of murder. Either everybody else is out of step and we alone are in step or murder is not a uniquely heinous offence. There is no escape from that dilemma.
I shall give one or two examples. Before doing so I wish to deal with the European Court, which was referred to by the noble Lord, Lord Nathan. It is quite true, as my noble friend said, that the European Court has distinctly not yet decided upon the separate question of mandatory as distinct from discretionary
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life sentences. However, for the life of me I cannot believe but that the European Court will be asked to decide that very point in the near future. If I were a betting man, which I am not, I should wager at least 20 to 1 that the court will decide that the same principles apply to the mandatory life sentence as apply to the discretionary life sentence. In that case, this country will once again be put in the humiliating position of having to legislate because it has broken the European Convention on Human Rights.
My noble friend is entitled to his opinion that I am wrong about that. It is a matter of opinion and it will remain so. However, I wonder whether it is worth yet another humiliation, even if there is a respectable risk of it. I thought I heard my noble and learned friend Lord Ackner rather share that view.
Let us consider a few cases because there is a grey area surrounding murder. First, let us consider the defence of necessity in the case of Dudley and Stephens, regarding the edible cabin boy. That was decided in the middle of the 19th Century. It was ultimately decided that the defence of necessity was not available in cases of murder. And, although that was the period of the heyday of capital punishment, the two accused were only made to serve either six or 18 months. That is the uniquely heinous offence we are asked to accept as a matter of principle. I cannot do it. It seems to me to be nonsense.
Let us consider the cases of duress. Lynch in the House of Lords was decided in the last decade. Duress was allowed on a charge of being an accessory before the fact in a terrorism case where a man was forced, under threat of a pointed gun, to drive the murderers to the place where the deed was actually committed. It was followed by the case of Abbott in the Privy Council, which decided that duress was not available to the perpetrator of the murder. Lynch, in its turn, was overruled by this House in its appellate capacity in the case of Howe and Bannister. It decided that duress was not available in cases of murder at all and that Lynch was wrongly decided.
It may be that we are all fools. I am quite prepared to accept that as a logical possibility. The only other conclusion is that murder is not a uniquely heinous offence. Enormous grey areas exist—which I shall not paint in; they were referred to by my noble and learned friend Lord Ackner and others—in cases involving, for instance, provocation. The grey areas between manslaughter and murder are almost infinite. In all gentleness I say this to my noble friend: either as a judge or as counsel I have probably been involved in not less than 50 murder cases at some time or other in my misspent life. I have prosecuted and defended in cases where the charge was murder but it was agreed on all sides that it was proper for the prosecution to accept a plea of manslaughter, which does not carry a mandatory life sentence, and in which the person concerned was sentenced to a period of imprisonment which did not amount to more than a few years.
I remember a case I defended in which a man was charged with murder. In the end the prosecution accepted a plea of manslaughter. I made the following plea in mitigation, "My Lord, if this case had been tried by the magistrates, as it ought to have been, there

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would have been a very small fine imposed and that would have been an end of the matter". The judge let the man off and placed him on probation.
When we are dealing with an area such as this, to say that we are dealing with a uniquely heinous offence is absolute rubbish. I do not want to torpedo this Bill and I do not know what the results of the voting will be. But the idea that a mandatory life sentence should be excluded from the ambit of the, in many ways, excellent advance made by the Commons in the first series of its amendments on the Marshalled List, is one that cannot for a moment be entertained. Murder is not a uniquely heinous offence and there is no rigid distinction between murder and manslaughter which can be set up on that basis.
5.30 p.m.
Baroness Platt of Writtle: My Lords, it is with heartfelt relief that I heard this afternoon of the retention of the mandatory life sentence by your Lordships' House for the crime of murder. I am sure that that is the right decision. We now come to the consideration of Commons Amendment No. 2A, and Amendments Nos. 2AA to 2AJ and many others subsequently being proposed by Members of this House as amendments to Amendment No. 2A. I am not a lawyer and I find the language of the amendments on pages two and three difficult to elucidate. I thank my noble friend for his clarification.
My understanding, as far as it goes, is that the other place, in its Amendment No. 2A, is allowing that in the case of a discretionary life prisoner the part of the sentence decided by the judge at the time of trial to deal with retribution and to act as a deterrent should be stated in open court and be subject to appeal. I welcome that Commons amendment wholeheartedly. I believe it is referred to as the "relevant part". However, I do not believe that that is defined.
When that part of the sentence allowing for remission and parole has been served, the board will assess the risk to the public in terms of possible future violent offences and decide the terms of release or further detention to protect the public. I welcome that wholeheartedly. It is good practice because, having suffered his punishment, the prisoner is encouraged to reform to prove that he is no longer a risk to the public in order to obtain release, whether under supervision or on licence. It is therefore a positive incentive to good behaviour. If taken seriously it could result in a reduction of the prison population while continuing to safeguard the public, which everybody welcomes.
The amendments proposed by the noble Lord, Lord Nathan, and others, take the provision a step further in that they make it applicable also to those sentenced for murder under the provision of the mandatory life sentence. That is logical. Once again it would be a positive incentive to reform and the safeguard to the public would continue. If the risk remained and the prisoner was still of a violent turn of mind at the end of the "relevant part" of his sentence, he would not be released. If he were released and it was felt that he might commit another violent offence after release, either under supervision or on licence, he
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could be recalled to prison by the Home Secretary at any time during his life. That is the real protection to the public of a life sentence.
I have doubts about some of the detailed amendments, particularly Amendments Nos. 2AC(b), 2AG and 2AH, or indeed if the Home Secretary continues to be accountable to Parliament for the prisoner's release. But I ask my noble friend the Lord Privy Seal to look at the general gist of these amendments; that those receiving a mandatory life sentence, like those receiving a discretionary life sentence, should be sentenced in open court, such sentence to include a statement of the minimum period for retribution and deterrence, which should be subject to appeal. That is the most important part of the amendments before the House this afternoon.
After that "relevant period" has been served, with remission, the decision as to whether or not the prisoner constitutes a risk to the public and can be released under supervision or later on licence should be made based on the prisoner's subsequent behaviour. That would place all lifers on a par, which seems to be fair and logical, and would give the prisoner a positive incentive to reform and cease his violent behaviour. If the prisoner did not reform, he could only look forward to a long period in prison in order to protect the public; for some, that could mean literally imprisonment for life. I hope that my noble friend will seriously reconsider his views on the incompatibility of this amendment as I feel that it would result in a much more just situation in the future, when this important Bill is enacted.
Baroness Phillips: My Lords, I should like to point out that cases have been quoted during the course of this debate, but as a mere lay magistrate I have always understood that it is very dangerous to quote examples. However, I suppose if noble and learned Lords do so, that is different. I always feel that they have a doubled-edged sword; they can come here and make comments on the laws which they will administer. Other Members of your Lordships' House are not in quite the same situation. It is rather like the grocer deciding the parliamentary rules that will go with his particular profession—but that is by the way.
So far as I am aware, I do not know any murderers. Sadly, I did know two victims. I noticed that the noble Lord, Lord Nathan, used the case of the husband who killed his wife at her request. Since she is dead we cannot actually check that. That is my first point. I did once ask the opinion of my son-in-law who has been a general practitioner for many years. He said: "During a long time in practice I have known many people who ask for poor old auntie, poor old mother, or poor old father to be put out of their agony, but I have never known a patient to ask me to put them out of life". I respect what he said. He was not making that up. He has nothing to gain. He also said, "In any case, why should I commit murder three times a week to please the state?". Therefore, we must be very careful.
It is very easy to plead in court that the victim was violent. The victim is dead. Then we come to the case quoted from my own locality. I do not know which noble Lord referred to that case, but he did not seem to know the end of it. In fact, that person was not

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convicted of murder; he was convicted of manslaughter and I think he was finally put on probation because it was proved that he had acted in his own defence. Therefore, in quoting cases and when making laws we must be very careful to be accurate.
It is my view that murder is not difficult to decide. As I understand it, the question is: was it premeditated? That should not be very difficult to decide. My noble friend Lord Richard nods his head. Obviously the Law Lords have found something else to bring in. When I listen to their explanations I can see how, as a magistrate, I become confused. That is what they are paid to do. I knew at the beginning what the crimes were, but after I had listened to a defence for an hour I was not quite sure. Therefore, they achieved their object.
Murder is a very serious offence. It is an offence in which the victim cannot have anything to say. Therefore, we have to treat it differently. I can only say that both the cases that have been quoted do not seem to be very valid when called in aid to vote against the amendments of the House of Commons. I am sure the noble Lord, Lord Nathan, will say that he did know such a case. I am merely saying that if a person is dead it is very easy to say that he or she wanted to die. Most people do not want to die; they will hang on until the very last moment, even if they are in great pain. It is sad, but it is often easier for the person who is looking after them to say, "Poor thing. She wanted to die". I have a brain surgeon in my family and I am keeping out of his way. If I am admitted to his hospital I shall have all my organs removed, no doubt for the benefit of mankind.
However, to be serious, it should not be difficult to determine murder. It is much more difficult to determine some other crimes. But surely in this day and age, this crime should have much more straightforward implications that we can call in aid. I see that my noble friend Lord Richard is nodding his head. He has obviously had to defend quite a number of murderers. Perhaps he will tell us how he did that.
I believe that the Commons amendments meet the case and that it would be foolish to prolong the debate on such a point.
5.45 p.m.
Lord Hutchinson of Lullington: My Lords, I should like to enter into this debate on one point, and one point only, and to do so briefly. We have been discussing the great principles of justice. We have been discussing the principles which will ensure that those who receive the most serious sentence known in our calendar are treated with openness, fairness, judicially, according to principle and not secretly, unfairly, bureaucratically and politically according to the whim of some Minister.
The whole of this debate rests on one case—that of Thynne and Others—which has been referred to by most speakers. Thynne is not just a case; Thynne is, in fact, a human being. Thynne is a man who has been in prison for 16 years on a discretionary life sentence —and not for murder. He is a man whom no one can
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describe as mentally disturbed or a danger to the public. It is equivalent to a determinate sentence of 24 years.
A number of us have been for years fighting for the justice of his case. Having been blocked by our courts and the Home Office we have had to go to the European Court of Human Rights with the greatest difficulty and at a great length of time. Eventually, in October last, as your Lordships know, Thynne was vindicated. The case had been made over and over again that he should be entitled to have this unending sentence reviewed judicially, in public, and reviewed in circumstances in which he could make his case and know why he was being kept for this inordinate time. That court said, "Yes, you were right all along".
One can imagine the effect of that decision on Mr. Thynne. After all these years he had, through his lawyers, triumphed. What is the reaction of the Home Office to that situation? Its reaction to that defeat is set out in a letter from the noble Lord's previous department, the Home Office, four months after that decision. The Home Office stated:
"This judgment does not have any immediate effect on Mr. Thynne's case. In the meantime, his case will continue to be dealt with under the existing arrangements. It has been decided that his case should be referred to the local review committee at his local prison in February 1992 as the first stage towards a further review by the Parole Board".
Another two, three, or four years is the result of this man going to the European Court of Human Rights. That looks very much like a bunch of sour grapes.
I do not know what the House thinks of that reaction. It is—is it not?—a reflection of the small-mindedness and of the inflexible determination of the Home Office to cling on to its own decisions and its own procedures. I suggest that it underlines the importance of voting for the amendment of the noble Lord, Lord Nathan. I ask the noble Lord the Leader of the House, when he replies to this debate, to tell the House whether the Home Office will now, immediately, release this man, Mr. Thynne, about whom we have heard so much in this debate.
Lord Harris of Greenwich: My Lords, I shall try to be brief. I speak as a former chairman of the Parole Board and not as a person who has had any experience in the courts. I very much agree with the view of the noble Baroness, Lady Platt. She and I, and indeed the rest of the Select Committee, did not agree on mandatory life sentences but I am glad to say that we now find ourselves on the same side of this argument.
The noble and learned Lord, Lord Ackner, dealt with the rather unhappy situation which he will face, assuming we are unsuccessful this afternoon. Counsel for the British Government in the case that will come before the European Court of Human Rights will have to explain why there are two wholly different release procedures—one for people sentenced to mandatory terms and one for those who have received a discretionary term. I do not know how counsel will begin his argument. Will he use the "murder is a heinous offence" argument? I do not think he will get very far with that.
Perhaps I may put the problem to the noble Lord, Lord Waddington, in terms of how the Government's position will be perceived by those both in this country

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and outside it who follow matters of this kind with care and attention. At the beginning of his speech the noble Lord. Lord Waddington, said, in respect of the discretionary life sentence case, that one of the issues that will have to be dealt with by the tribunal which is to be set up—the word "tribunal" is not used in the government amendment but in reality there will be a tribunal within the Parole Board—concerns the risk that will be posed to the public by the release of that man or woman. That is precisely the issue that will come before the tribunal.
But what does the noble Lord believe happens at the moment when issues are being discussed by the Parole Board in regard to mandatory life sentence cases? It is precisely that issue. The Parole Board does not spend its time arguing about what is the appropriate length of the penal term. It discusses exclusively, in regard to mandatory life sentence cases, the risk that would be involved to the public were that man to come out of prison. I do not begin to understand—with great respect, the noble Lord the Leader of the House did not satisfy me or, I suspect, many other noble Lords—how one can possibly differentiate between those two groups of offenders. The concern is precisely the same.
In fact the position is even worse than that. Speaking on the basis of my own experience as chairman of the Parole Board, I can say that in a number of murder cases the character of the crimes was truly appalling; in other cases people who had been convicted of murder had committed offences of a kind which would create a degree of public understanding as to why the offence had been committed. However, when one considered the case of manslaughter on the ground of diminished responsibility one was often considering some of the most dangerous people in custody. What I do not understand is how one can possibly justify having a tribunal for the most dangerous people in custody but allow Ministers to deal with all the other cases. There seems to be no logical or rational basis for such an argument. Accordingly, I very much hope that the House will agree with the amendment which we are now debating.
Lord Waddington: My Lords, I do not know whether it was some diabolical plot on the part of the noble Lord, Lord Nathan, which persuaded him to start off with what many might think his worst rather than his best point. I urge the House to think carefully about these arguments concerning deferment of release.
On one point we can all agree—in its judgment the European Court of Human Rights said that in certain circumstances release could be delayed. It said that release could be delayed on grounds of expediency. What precisely is meant by expediency is a very difficult question to answer, but no one will argue that the European Court of Human Rights did not say that release could be deferred in certain cases on grounds of expediency. I merely pointed out that it seems only sensible to recognise the danger that could occur if a person's release coincided with some demonstration or the like. My noble friend Lord Campbell of Alloway thinks that that is entirely fanciful. I should
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have thought that it was a commonsensical illustration of what could occur. With the greatest respect to your Lordships, it hardly seems to be a very good argument to say that, because a person who has a determinate sentence cannot have his release deferred, therefore one should not defer the release of a lifer. That is like saying, "We are in an awful mess with regard to people who have determinate sentences which is leading us into great difficulty; we shall make quite sure that we get ourselves into precisely the same difficulty in the case of lifers". I cannot see much force in that kind of argument.
It was then argued by the noble Lord, Lord Nathan, that it was wrong that the court should have power to bring the licence to an end in order to satisfy the European Court of Human Rights. I have taken certain advice on that. The Home Office does not think that there is anything in the judgment of the European Court of Human Rights which can be interpreted in that way. The issue before the court was the lawfulness of the prisoner's continued detention. The court at no time examined or even commented on the question of how long licences for released prisoners should last. If my advice is correct I do not think that the noble Lord can sustain the argument that the amendment carried in another place is faulty for that reason.
Then one comes to the crucial amendment, Amendment No. 2AA. It is said that the European Court of Human Rights will eventually apply to mandatory life cases the same principles which it has applied to discretionary life cases. All I can do is repeat what I said in my opening speech. That was certainly not the argument advanced by the European Court of Human Rights in its judgment. The European Court of Human Rights said precisely the opposite. The court said that the principles underlying discretionary life sentences, unlike mandatory life sentences, have developed in the sense that they are composed of a punitive element and subsequently of a security element designed to confer on the Secretary of State the responsibility for determining when the public interest permits the prisoner's release. The court drew a clear distinction between the mandatory life sentence, when the term was decided at the time of the sentence, and the non-mandatory life sentence, when it was recognised that a life sentence had to be passed because it was impossible to assess at that stage what should be the length of time for which the person should remain in custody because of mental instability or some other defect in his character.
The noble Lord, Lord Richard, said that the Home Secretary had required people to stay in prison longer than had been recommended by the judges in their cases. The reason for that—there is no secret about it —is that Ministers take into account other factors in setting the tariffs in murder cases. One of the reasons for departing from judicial advice in particular cases is to discharge a policy which has been stated quite plainly to Parliament. I think, for instance, of the policy announced by one of my predecessors as Home Secretary, Sir Leon Brittan, in 1983, when he said that certain categories of murderer, including those who commit terrorist murders, murders of police or prison

1029
officers or sexual or sadistic murders of children, should serve at least 20 years in custody. I do not see that there is anything wrong in a Home Secretary coming to Parliament and saying, "I believe that sadistic murderers of that sort and people who murder police officers must expect to remain in prison for 20 years". That is a policy decision made by the Home Secretary. It may differ from the tariff which has been recommended to the Home Secretary by the trial judge.
I see that the noble Lord, Lord Richard, wishes to intervene. I am happy for him to do so.
6 p.m.
Lord Richard: My Lords, I am much obliged to the Minister. Does he not realise that, if the Government decide that sort of issue as a matter of policy, their proper course should be to present a Bill before Parliament and put it through the legislative branch of our system? They should not do so by trying to influence judges to pass sentences which judges themselves would not pass; or, alternatively, trying to produce the same result by executive action.
Lord Waddington: My Lords, I do not know whether the view just expressed by the noble Lord, Lord Richard, was one expressed by the party to which he belongs at the time the announcement was made in 1983 by the Home Secretary of the day. I cannot recall that that announcement was greeted by great dismay, shock, horror and cries that it was unconstitutional and usurping the powers of the judges. I know certainly that it was widely welcomed by the public, who felt very strongly at the time that a clear marker should be put down that people who murder police officers should remain in prison for a very long time; indeed, for a minimum of 20 years.
I see that my noble friend Lord Campbell of Alloway wishes to intervene. I give way.
Lord Campbell of Alloway: My Lords, I am much obliged to my noble friend. I think that it would be most unfortunate if this, which is essentially a non-political problem of very great consequence, should be put into the field of politics. My noble friend the Leader of the House appears to have misunderstood the whole essence of the argument which has been advanced in support of these amendments.
Lord Waddington: My Lords, in my own defence, I must point out to my noble friend that I was replying to an intervention by the noble Lord, Lord Richard. I think that I was entitled to say that I did not believe there was much substance in his criticism of a decision taken by a former Home Secretary in 1983. It was a peripheral point and one which I would not have raised. It arose as a result of the noble Lord's intervention.
It has been said that there is no justification for the difference between the mandatory and the discretionary life sentence. But of course there is justification for the difference. It is inherent in the mandatory life sentence. My noble and learned friend Lord Hailsham said that murder was not a uniquely heinous offence
1030
and that to say so was rubbish. However, with respect to my noble and learned friend, he was really arguing the case against the earlier amendment. Parliament has marked murder as a heinous offence and a uniquely heinous offence by the mandatory life sentence which has now been agreed to by this House. Therefore, my noble and learned friend mounted a very strong argument against the mandatory life sentence—one which has been rejected—but no argument against the government amendment which recognises the fact that Parliament has drawn the sharpest possible distinction between murder cases and other cases and has said that it believes that murder is a unique offence. That is why there must be a unique penalty; namely, the mandatory life sentence.
I shall deal now with one of the lesser points raised by my noble friend Lord Campbell of Alloway. He said that in his belief there ought to be a High Court judge at the head of the tribunal or court which was dealing with these review matters. I have discussed the matter with my noble and learned friend the Lord Chancellor. He feels strongly that very experienced people—for example, judges—on the Parole Board can carry out that function. He believes that he would find it very difficult to operate the system if it had to be operated entirely by High Court judges.
I see that the noble Lord, Lord Hunt, wishes to intervene. I will gladly allow him to do so.
Lord Hunt: My Lords, I am most grateful to the noble Lord for giving way.
Perhaps I may remind the noble Lord that, from the very beginning when the Parole Board was set up in 1967 and throughout the time that I was its first chairman, the board always chose High Court judges—and I am looking at my noble and learned friend Lord Roskill for confirmation—to deal with life sentences in an advisory way. Surely that applies even more strongly when a tribunal which has executive powers is to be created within the board.
I should like also to remind my noble and learned friend Lord Roskill that, within a matter of months of the board being set up, we found a pretty scandalous state of affairs in the Home Office. We found a great pile of dossiers relating to forgotten men in the room of the then under-secretary. It was two High Court judges—indeed, the only two whom we had on the board—who cleared the backlog. In 1972 it was, of course, a High Court judge, no less, who, with other members of the board and under the chairmanship of the chairman of the Parole Board, formed a joint committee with the Home Office.
Lord Roskill: My Lords, as the noble Lord, Lord Hunt, has mentioned my name, perhaps I may add to his remarks. Under his chairmanship of the board in 1967, the noble Lord, Lord Jenkins of Hillhead, appointed me the first vice chairman and the first High Court judge to sit on the Parole Board. The other was the late Lord Justice James. Every single case of life sentence which came before the Parole Board was, I think I can say without exception, always dealt with by a panel of which a High Court judge was a member. Moreover, if the noble Lord, Lord Hunt, was not able

1031
to be present, either Lord Justice James or myself would be in the chair. I believe that I am right in saying that that process has continued throughout.
Perhaps I may also refer to a point which I intended to make but which the noble Lord, Lord Harris of Greenwich, took out of my mouth. We never considered at any stage whether we were dealing with a mandatory life sentence or a discretionary life sentence. The question was, subject to the issue of the penal element: "Is it safe to release this person?" I am most flattered that the noble Lord, Lord Hunt, recalled the mess that the Home Office was in and the work which had to be carried out by the judges, and others, to clear the arrears.
Lord Waddington: My Lords, I have to tell your Lord ships that we are not now considering whether or not there was a mess in the Home Office some years ago; we are deciding a very narrow point as to whether Crown Court judges should be able to preside over the courts which are reviewing these cases. I am advised by try noble and learned friend the Lord Chancellor that there will be a great deal of work to do and many reviews to be undertaken. That is the essence of the matter. If that is so, it will put an intolerable burden on the High Court judges if they are the only ones to carry out the work. I must point out to the House that Crown Court judges now sit on Parole Board lifer panels. That seems to be a perfectly good reason for them to carry out this work.
The noble and noble Lord, Lord Morton of Shuna, talked about judges writing in secret in mandatory life sentence cases. That is certainly a very good question; indeed, why should such a recommendation be kept secret? However, with the greatest respect to him, that is not the matter we are discussing today. What is at issue is whether in a mandatory life sentence case a judge should make to the Home Secretary a recommendation which the Home Secretary would then be able to take into account, but not necessarily follow; or, alternatively, whether there should be the complete review procedure. That is the issue we are discussing today.
The noble and learned Lord also asked whether there is a right of appeal. The answer is that under our scheme—that is, under the amendments carried in another place—there will be a right of appeal because it will be an order of the court.
I turn now to the points raised by the noble and learned Lord, Lord Ackner. He did not like my jury point. I certainly do not blame him for that. However, it is still correct to say that there is a terrible finality about murder. Obviously, there is a terrible finality about any death including one caused by an accident or a natural death. But murder is different because the person brought about that terrible finality as a result of an intentional act.
Lord Hailsham of Saint Marylebone: My Lords, I am sorry to interrupt my noble friend, but will he not say I hat there is the same finality in a bad case of manslaughter?
Lord Waddington: My Lords, of course there is, but again Parliament has recognised the distinction
1032
between the two offences. If the House wishes to bring forward recommendations to redefine the crime of murder, which of course was something considered by your Lordships' Select Committee as a possibility, that is one matter. We might get out of many of these difficulties if some day we were to address the problem of the definition of murder. With the greatest of respect to my noble and learned friend, it hardly seems to be a good argument against these amendments that we do not have the right definition of murder. Sometimes it is not entirely easy to justify why one person is convicted of manslaughter and another is convicted of murder.
I agree with the noble Earl, Lord Longford, who said that individuals had to be treated humanely. That is so, but the Home Secretary has the final responsibility for the protection of the public, and that is why, in mandatory life sentence cases, he has to decide whether a person is released or not, and he is responsible to Parliament for that decision.
My noble and learned friend Lord Hailsham said that the Government have made a definite advance by producing the amendments which would set up a review procedure in non mandatory life sentence cases. I am grateful to him for having said that. It is right that at the outset we made it plain that we had to react and change our law to bring it into conformity with the decision of the European Court of Human Rights. Your Lordships put a spur behind the Government and made the Government act more quickly than they otherwise might have done.
The noble Baroness, Lady Phillips, is not in her place. She, by my lights, was again on the side of the angels. I am grateful to her for her contribution. She made a good point: we are too keen to talk sympathetically about mercy killings when the relaxation of our attitudes might cause danger to vulnerable people. That is something we should bear in mind in the future.
The noble Lord, Lord Hutchinson, talked about the case of Thynne. What the court said was, not that he should be released or that he had served too long, but that his case should be reviewed and that there should be a system for that review other than that which is at present in existence. It is important to make that point. Stories have gone around that that man is somehow being illegally detained and kept in longer than is justified by the gravity of the offence that he committed. That remains to be seen. So far, the Parole Board has taken the view that he has not been kept in longer than is justified by the gravity of the offence that he has committed, but it may well be that when he comes under the new system a different view will be taken.
The noble Lord, Lord Harris of Greenwich, said that a case involving a mandatory life sentence prisoner was due to come before the European Court of Human Rights. I know nothing about that case. I have had no details of it from the Home Office. I merely repeat what I said before—that in the case of Thynne and Others the European Court of Human Rights drew the clear distinction between mandatory life sentence cases and other life sentence cases. In those circumstances, I ask your Lordships to take the

1033
view that we have made a great advance with these amendments in another place. A good scheme for the review of discretionary life sentence cases is presented to your Lordships. That good scheme provides, as the judgment of the European Court of Human Rights allows for there to be, in special circumstances, a short delay before a person is released. I do not believe that there has been any criticism by noble Lords today that the scheme put forward in another place does not meet your Lordships' concerns in that respect.
The only concern left for your Lordships is whether the review procedure should apply to mandatory life sentence cases as it does to non-mandatory life sentence cases. Those arguments have been rehearsed and rehearsed again. No purpose would be served by my re-emphasising that Parliament has said that murder is a unique offence and that it is right that there should be a different way of dealing with such cases from cases where a life sentence is passed, not to mark the heinous nature of the offence but because the judge cannot make up his mind at the time of sentencing whether it will he safe to release the person into the community in 10 years, 15 years, 20 years or whatever the period may be.
6.15 p.m.
Lord Nathan: My Lords, I am happy to endorse what the noble Lord the Leader of the House has said, and which I said when I opened my remarks; namely, that I very much welcome the Commons Amendment, and that the reasoned amendments that I tabled were designed to improve the amendment put before us. I have no doubt that that is a step forward.
The noble Lord referred to what he thought was my weakest point. I do not believe that it was my weakest point. I thought that it was my simplest point, and that it would be better to start with something simple, because, despite what the noble Lord has said, if an order is made, and it will be an order, that a person serving a discretionary life sentence be released, as the situation presently stands with the Commons Amendment, it is extraordinary that by Executive action, the Home Secretary, or perhaps a junior Minister as has occurred previously, should defer that release for a period. That is not compatible with the position which I believe is basic to English law: that when, for instance, a person has served his determinant sentence, no Secretary of State or Minister in the Home Office, can say, "Oh no, you shall not be let out for another six months".
Reference has been made to the possibility—if I may put it this way—of hell and damnation being let loose by reason of the release of a person at a particular time. I cannot see that that is applicable, as is suggested, in the case of a discretionary life sentence any more than it would be in the case of a terrorist or other person who created a great disturbance who was sentenced to some determinant sentence. I put forward that proposition, first, because I thought that was a simple one and because that argument did not seem to make much sense. It seemed to be a desire to hang onto power by one's teeth. It was not a sensible thing to provide for. Secondly, there seems to be a
1034
difference of view about whether, in the case of a discretionary life sentence, it is requisite, under the decision in the Thynne case of the European Court of Human Rights, that there should be a provision under which the licence upon which such a prisoner may be released could be terminated so that he was free thereafter.
My reading of the case is that such a provision is necessary, because Article 5(4), which is in such classic terms as representing the provisions of English law that it might have been—perhaps it was—drafted in the Lord Chancellor's office here, says that a representation may be made to the tribunal to be created—in this case the Board —for termination of the sentence, or rather, in this case, termination of the licence. That was the ground upon which I put the proposal forward.
I turn to the questions which have been most canvassed, and rightly so, because they impinge on real questions of principle upon which we all feel strongly on one side or the other. It is interesting that in this debate, as in others on this difficult subject, a distinction has been drawn between a discretionary life sentence and a mandatory life sentence. The truth is that a life sentence is a life sentence. In the discretionary case, it is awarded in the discretion of the judge. In the mandatory case, the law prescribes that he shall sentence a person to life imprisonment. The relevance is that, as I am informed by those who are knowledgeable on the subject, when questions of release of people sentenced to life imprisonment come before the life panel, whether the life sentence is mandatory or discretionary is not under consideration. The crime as a result of which the prisoner is sentenced to life, and his release after coming before the Parole Board, are the matters in question. In the discussion which has taken place, there has been a tendency to regard the mandatory life sentence as a special creature, but I do not think it is.
I do not intend to review the powerful and interesting speeches that we have heard. It is not my place, nor have I the capacity to do so. One point that is very much in my mind is that Parliament resolved and decided that in the case of murder there should be a mandatory life sentence. That decision was made in 1965. So far as I am aware, Parliament has never, except by implication, decided upon the process by which the term of imprisonment should be determined, nor on how the release should be effected. As I understand it, these practices have grown over the years like Topsy and only came into the open in about 1983 when Sir Leon Brittan, as he is now, was at the Home Office.
Regretfully but firmly I agree with the Commons and with the noble Lord the Leader of the House that we should not press our amendment concerning the abolition of the mandatory life sentence. However, I do not believe that the other two elements are by any means so sacrosanct. The Commons have taken a great step forward by introducing their amendment and I have no doubt about that. However, its effect is limited. We always seem to be creeping forward as slowly as we can—as some say, being dragged screaming into the 21st century. We can never take the

1035
bold step, the big view of what is the right course, taking account of the case of Thynne, but also of what is right and appropriate.
It is particularly significant to me, as the noble Baroness, Lady Platt, knows, that she should support the views that are being expressed on the penal term and release. As a member of the Select Committee, she expressed her views clearly and strongly in favour of retention of the mandatory life sentence. She expressed those views today and I recognise the sincerity and genuineness of her views. It is significant that she should feel as she does. It is unfortunate that we should move so slowly in this direction. Past history is that we have lost a succession of cases. We have been dragged down, and this is a sorry sight for us.
I speak now only to Amendment No. 2AA, concerning the decision to be taken. A vote in favour does not torpedo the Bill. If it is approved by your Lordships it will present the Commons with the opportunity of considering these amendments. If they so decide, they can reject some or all of them. This is not a matter of confrontation, it is this House exercising its proper function as a revising Chamber. I believe that the time has come to take the opinion of the House.
6.25 p.m.
On Question, Whether Amendment No. 2AA, as an amendment to Amendment No. 2A, shall be agreed to?
Their Lordships divided: Contents, 134; Not-Contents, 83.

Division No. 1

CONTENTS

Ackner, L.

Galpern, L.

Addington, L.

Gisborough, L.

Airedale, L.

Gladwyn, L.

Banks, L.

Glasgow, E.

Beaumont of Whitley, L.

Graham of Edmonton, L. [Teller.]

Birk, E.

Blease, L.

Greenway, L.

Bonham-Carter, L.

Grey, E.

Boston of Faversham, L.

Hailsham of Saint Marylebone, L.

Bottomley, L.

Brain, L.

Halsbury, E.

Brightman, L.

Hampton, L.

Bristol, Bp.

Hamwee, B.

Campbell of Alloway, L.

Hanworth, V.

Carmichael of Kelvingrove, L.

Harris of Greenwich, L.

Carnock, L.

Havers, L.

Carter, L.

Henderson of Brompton, L.

Cledwyn of Penrhos, L.

Hilton of Eggardon, B.

Cobbold, L.

Holderness, L.

Cocks of Hartcliffe, L.

Hollis of Heigham, B.

Darcy (de Knayth), B.

Holme of Cheltenham, L.

David, B.

Hooson, L.

Dean of Beswick, L.

Houghton of Sowerby, L.

Desai, L.

Howie of Troon, L.

Donaldson of Kingsbridge, L.

Hunt, L.

Dormand of Easington, L.

Hutchinson of Lullington, L.

Ennals, L.

Hylton, L.

Erroll, E.

Hylton-Foster, B.

Ewart-Biggs, B.

Jauncey of Tullichettle, L.

Ezra, L.

Jay, L.

Faithfull, B.

Jenkins of Hillhead, L.

Fisher of Rednal, B.

John-Mackie, L.

Fortescue, E.

Judd, L.

Fraser of Kilmorack, L.

Kirkhill, L.

Gainsborough, E.

Kitchener, E.

Gallacher, L.

Lawrence, L.

1036

Layton, L.

Rochester, L.

Listowel, E.

Roskill, L.

Lockwood, B.

Russell, E.

Longford, E.

St. Albans, Bp.

Lovell-Davis, L.

Seear, B.

McIntosh of Haringey, L.

Sefton of Garston, L.

Mackie of Benshie, L.

Serota, B.

McNair, L.

Shackleton, L.

Mallalieu, B.

Shannon, E.

Masham of Ilton, B.

Sharples, B.

Merrivale, L.

Shaughnessy, L.

Monkswell, L.

Shepherd, L.

Monson, L.

Skelmersdale, L.

Morris, L.

Stedman, B.

Morris of Castle Morris, L.

Stockton, E.

Morton of Shuna, L.

Stoddart of Swindon, L.

Mountgarret, V.

Strathcarron, L.

Munster, E.

Taylor of Blackburn, L.

Murray of Epping Forest, L.

Taylor of Gryfe, L.

Nathan, L. [Teller.]

Templeman, L.

Newall, L.

Thurso, V.

Nicol, B.

Tordoff, L.

Pender, L.

Underhill, L.

Perth, E.

Varley, L.

Pitt of Hampstead, L.

Wharton, B.

Platt of Writtle, B.

White, B.

Prys-Davies, L.

Wilberforce, L.

Raglan, L.

Williams of Elvel, L.

Rea, L.

Willis, L.

Redesdale, L.

Winstanley, L.

Richard, L.

Winterbottom, L.

Robson of Kiddington, B.

Wyatt of Weeford, L.

NOT-CONTENTS

Alexander of Tunis, E.

Killearn, L.

Arran, E.

Kimball, L.

Astor, V.

Lane of Horsell, L.

Bellwin, L.

Long, V.

Beloff, L.

Mackay of Ardbrecknish, L.

Belstead, L.

Mackay of Clashfern, L.

Bessborough, E.

Macleod of Borve, B.

Blake, L.

Mancroft, L.

Blatch, B.

Marlesford, L.

Boardman, L.

Mottistone, L.

Boyd-Carpenter, L.

Mountevans, L.

Brabazon of Tara, L.

Nelson, E.

Brigstocke, B.

Norrie, L.

Brougham and Vaux, L.

Oppenheim-Barnes, B.

Caithness, E.

Orkney, E.

Cavendish of Furness, L.

Pearson of Rannoch, L.

Cockfield, L.

Plummer of St. Marylebone, L.

Coleraine, L.

Rankeillour, L.

Colnbrook, L.

Reay, L.

Colwyn, L.

Renton, L.

Constantine of Stanmore, L.

Renwick, L.

Davidson, V. [Teller.]

Rodney, L.

Denham, L.

Romney, E.

Denton of Wakefield, B.

Sanderson of Bowden, L.

Dudley, E.

Savile, L.

Eden of Winton, L.

Selborne, E.

Elliott of Morpeth, L.

Shrewsbury, E.

Ferrers, E.

Stevens of Ludgate, L.

Flather, B.

Strathclyde, L.

Fraser of Carmyllie, L.

Strathmore and Kinghorne, E.

Gainford, L.

Sudeley, L.

Glenarthur, L.

Swinfen, L.

Gray of Contin, L.

Tranmire, L.

Harmar-Nicholls, L.

Trefgarne, L.

Harvington, L.

Ullswater, V.

Henley, L.

Vaux of Harrowden, L.

Hesketh, L. [Teller.]

Waddington, L.

Hives, L.

Wade of Chorlton, L.

L. Hooper, B.

Wedgwood, L.

Howe, E.

Wise, L.

Jeffreys, L.

Wrenbury, L.

Jellicoe, E.

Resolved in the affirmative, and Amendment No. 2AA agreed to accordingly.
6.33 p.m.

AS AN AMENDMENT TO COMMONS AMENDMENT No. 2A
2AB Line 14 at end insert:
("(2A) A court shall make an order under subsection (1) above whenever it passes a sentence of imprisonment for life.").
Lord Nathan Lord Nathan My Lords, I beg to move Amendment 2AB, as an amendment to Commons Amendment No. 2A. This amendment, as we have discussed, requires that the court shall make an order under subsection (1) of the Commons amendment, as amended by the amendment which your Lordships have just approved. This means that the court will not have the option whether it shall do so or not. I beg to move.
Moved, that Amendment No. 2AB, as an amendment to Commons Amendment No. 2A, be agreed to.—[Lord Nathan.]
6.35 p.m.
On Question, whether Amendment No. 2AB, as an amendment to Amendment No. 2A, shall be agreed to?
Their Lordships divided: Contents, 110; Not-Contents, 73.

Division No. 2

CONTENTS

Ackner, L.

Hilton of Eggardon, B.

Addington, L.

Hollis of Heigham, B.

Airedale, L.

Holme of Cheltenham, L.

Banks, L.

Hooson, L.

Birk, B.

Houghton of Sowerby, L.

Blease, L.

Howie of Troon, L.

Bonham-Carter, L.

Hunt, L.

Boston of Faversham, L.

Hutchinson of Lullington, L.

Bottomley, L.

Hylton, L.

Brain, L.

Hylton-Foster, B.

Brightman, L.

Jay, L.

Campbell of Alloway, L.

Jenkins of Hillhead, L.

Carmichael of Kelvingrove, L.

John-Mackie, L.

Carnock, L.

Judd, L.

Carter, L.

Kirkhill, L.

Cledwyn of Penrhos, L.

Lawrence, L.

Cocks of Hartcliffe, L.

Listowel, E.

Darcy (de Knayth), B.

Lockwood, B.

Dean of Beswick, L.

Longford, E.

Desai, L.

McNair, L.

Dormand of Easington, L.

Mallalieu, B.

Ennals, L.

Masham of Ilton, B.

Erroll, E.

Merrivale, L.

Ewart-Biggs, B.

Monkswell, L.

Ezra, L.

Monson, L.

Faithfull, B.

Morris, L.

Fisher of Rednal, B.

Morris of Castle Morris, L.

Fortescue, E.

Morton of Shuna, L. [Teller.]

Gainsborough, E.

Mountgarret, V.

Gallacher, L.

Munster, E.

Galpern, L.

Murray of Epping Forest, L.

Gisborough, L.

Nathan, L.

Glasgow, E.

Newall, L.

Graham of Edmonton, L. [Teller.]

Nicol, B.

Pender, L.

Greenway, L.

Pitt of Hampstead, L.

Grey, E.

Platt of Writtle, B.

Hailsham of Saint Marylebone, L.

Rea, L.

Redesdale, L.

Halsbury, E.

Richard, L.

Hampton, L.

Robson of Kiddington, B.

Hamwee, B.

Rochester, L.

Hanworth, V.

Roskill, L.

Harris of Greenwich, L.

Russell, E.

Havers, L.

St. Albans, Bp.

1038

Seear, B.

Taylor of Blackburn, L.

Sefton of Garston, L.

Taylor of Gryfe, L.

Serota, B.

Templeman, L.

Shannon, E.

Tordoff, L.

Sharples, B.

Underhill, L.

Shaughnessy, L.

Varley, L.

Stedman, B.

Wharton, B.

Stockton, E.

White, B.

Stoddart of Swindon, L.

Wilberforce, L.

Strathcarron, L.

Williams of Elvel, L.

Swinfen, L.

Winstanley, L.

NOT-CONTENTS

Alexander of Tunis, E.

Kimball, L.

Arran, E.

Lane of Horsell, L.

Astor, V.

Long, V.

Bellwin, L.

Mackay of Ardbrecknish, L.

Beloff, L.

Mackay of Clashfern, L.

Belstead, L.

Macleod of Borve, B.

Bessborough, E.

Mancroft, L.

Blake, L.

Marlesford, L.

Blatch, B.

Mottistone, L.

Boardman, L.

Mountevans, L.

Boyd-Carpenter, L.

Nelson, E.

Brabazon of Tara, L.

Norrie, L.

Caithness, E.

Oppenheim-Barnes, B.

Cavendish of Furness, L.

Orkney, E.

Clanwilliam, E.

Pearson of Rannoch, L.

Cockfield, L.

Plummer of St. Marylebone, L.

Colnbrook, L.

Rankeillour, L.

Colwyn, L.

Reay, L.

Constantine of Stanmore, L.

Renton, L.

Davidson, V. [Teller.]

Rodney, L.

Denham, L.

Romney, E.

Denton of Wakefield, B.

Sanderson of Bowden, L.

Dudley, E.

Savile, L.

Elliott of Morpeth, L.

Selborne, E.

Ferrers, E.

Shrewsbury, E.

Flather, B.

Stevens of Ludgate, L.

Fraser of Carmyllie, L.

Strathclyde, L.

Gainford, L.

Strathmore and Kinghorne, E.

Glenarthur, L.

Sudeley, L.

Harmar-Nicholls, L.

Trefgarne, L.

Harvington, L.

Ullswater, V.

Henley, L.

Vaux of Harrowden, L.

Hesketh, L. [Teller.]

Waddington, L.

Hives, L.

Wade of Chorlton, L.

Hooper, B.

Wedgwood, L.

Howe, E.

Wise, L.

Kenilworth, L.

Resolved in the affirmative, and Amendment No. 2AB agreed to accordingly.
6.43 p.m.

AS AN AMENDMENT TO COMMONS AMENDMENT No. 2A
2AC Line 15, leave out subsection (3) and insert:
("(3) As soon as a life prisoner has served the part of his sentence specified in the order ("the relevant part") and the Board has directed his release under this section it shall be the duty of the Secretary of State to release him.

(a) on licence, which shall remain in place until his death, in the case of a life prisoner convicted of an offence the sentence for which is fixed by law; and

(b) in any other case, on licence, which shall remain in force for such period as the Board shall direct.").

Lord Nathan: My Lords, I beg to move, as an amendment to Commons Amendment No. 2A, Amendment No. 2AC.
Moved, That Amendment No. 2AC, as an amendment to Commons Amendment No. 2A, be agreed to.—(Lord Nathan.)
The Earl of Erroll: My Lords, I know that this has been spoken to but, as a layman, I should like to find

1039
out what is going on. So far as I can make out, on the first amendment your Lordships' House voted fairly considerably in favour of the principle of putting discretionary and mandatory sentences on the same footing for review. If we are amending the Commons amendment we have to do so consistently, so the word "discretionary" will have to be removed throughout the amendment.
Is the noble Lord the Leader of the House intending to divide us on every one of these amendments, or is he just trying to mess up our proceedings so that we leave the word in somewhere and he can then say, "I warned your Lordships that if you started tinkering you would get yourselves into a mess? What is going on?
Lord Waddington: My Lords, I can assure the noble Earl that there is no such trickery afoot. This is an entirely different issue, and I am sure that noble Lords will recognise that it has nothing whatever to do with the arguments that have been advanced about mandatory and non-discretionary life sentences. It is a completely odd suggestion that there should even be a review procedure, as it were, before you can keep a chap on licence.
6.45 p.m.
On Question, Whether Amendment No. 2AC, as an amendment to Amendment No. 2A, shall be agreed to?
Their Lordships divided: Contents, 92; Not-Contents, 77.

Division No. 3

CONTENTS

Ackner, L.

Hanworth, V.

Addington, L.

Harris of Greenwich, L.

Airedale, L.

Hilton of Eggardon, B.

Banks, L.

Hollis of Heigham, B.

Birk, B.

Holme of Cheltenham, L.

Blease, L.

Hooson, L.

Bonham-Carter, L.

Houghton of Sowerby, L.

Boston of Faversham, L.

Howie of Troon, L.

Bottomley, L.

Hunt, L.

Brain, L.

Hylton, L.

Brightman, L.

Hylton-Foster, B.

Campbell of Alloway, L.

Jenkins of Hillhead, L.

Carmichael of Kelvingrove, L.

John-Mackie, L.

Carnock, L.

Judd, L.

Carter, L.

Kirkhill, L.

Cledwyn of Penrhos, L.

Lawrence, L.

Cocks of Hartcliffe, L.

Listowel, E.

Darcy (de Knayth), B.

Lockwood, B.

Dean of Beswick, L.

Longford, E.

Desai, L.

McNair, L.

Dormand of Easington, L.

Mallalieu, B.

Ennals, L.

Merrivale, L,

Erroll, E.

Monkswell, L.

Ewart-Biggs, B.

Monson, L.

Ezra, L.

Morris, L.

Fisher of Rednal, B.

Morris of Castle Morris, L.

Gainsborough, E.

Morton of Shuna, L.

Gallacher, L.

Munster, E.

Galpern, L.

Murray of Epping Forest, L.

Graham of Edmonton, L. [Teller.]

Nathan, L.

Nicol, B.

Greenway, L.

Pitt of Hampstead, L.

Grey, E.

Rea, L.

Hailsham of Saint Marylebone, L.

Redesdale, L.

Richard, L.

Halsbury, E.

Robson of Kiddington, B.

Hampton, L.

Rochester, L.

Hamwee, B.

Russell, E.

1040

St. Albans, Bp.

Taylor of Gryfe, L.

Sefton of Garston, L.

Templeman, L.

Serota, B.

Tordoff, L. [Teller.]

Shannon, E.

Underhill, L.

Sharpies, B.

Varley, L.

Stedman, B.

Wharton, B.

Stockton, E.

White, B.

Stoddart of Swindon, L.

Wilberforce, L.

Taylor of Blackburn, L.

Williams of Elvel, L.

NOT-CONTENTS

Alexander of Tunis, E.

Lane of Horsell, L.

Arran, E.

Long, V.

Astor, V.

Mackay of Ardbrecknish, L.

Bellwin, L.

Mackay of Clashfern, L.

Belstead, L.

Macleod of Borve, B.

Bessborough, E.

Mancroft, L.

Blake, L.

Marlesford, L.

Blatch, B.

Masham of Ilton, B.

Boardman, L.

Mottistone, L.

Boyd-Carpenter, L.

Mountevans, L.

Brabazon of Tara, L.

Mountgarret, V.

Caithness, E.

Nelson, E.

Cavendish of Furness, L.

Norrie, L.

Clanwilliam, E.

Orkney, E.

Cockfield, L.

Pearson of Rannoch, L.

Colnbrook, L.

Pender, L.

Colwyn, L.

Platt of Writtle, B.

Constantine of Stanmore, L.

Plummer of St. Marylebone, L.

Davidson, V. [Teller.]

Rankeillour, L.

Denton of Wakefield, B.

Reay, L.

Dudley, B.

Renton, L.

Elliott of Morpeth, L.

Romney, E.

Faithfull, B.

Sanderson of Bowden, L.

Ferrers, E.

Savile, L.

Flather, B.

Selborne, E.

Fraser of Carmyllie, L.

Shrewsbury, E.

Gainford, L.

Skelmersdale, L.

Gisborough, L.

Stevens of Ludgate, L.

Glenarthur, L.

Strathclyde, L.

Harmar-Nicholls, L.

Strathmore and Kinghorne, E.

Harvington, L.

Sudeley, L.

Henley, L.

Trefgarne, L.

Hesketh, L. [Teller.]

Ullswater, V.

Hives, L.

Vaux of Harrowden, L.

Hooper, B.

Waddington, L.

Howe, E.

Wade of Chorlton, L.

Joseph, L.

Wedgwood, L.

Kenilworth, L.

Wise, L.

Kimball, L.

Resolved in the affirmative, and Amendment No.2AC agreed to accordingly
6.50 p.m.

AS AN AMENDMENT TO COMMONS AMENDMENT No. 2A
2AD Line 22, leave out ("discretionary").
Lord Nathan: My Lords, I beg to move Amendment No. 2AD.
Moved, That Amendment No. 2AD, as an amendment to Commons Amendment No. 2A, be agreed to.—(Lord Nathan.)
Lord Waddington: My Lords, clearly Amendments Nos. 2AD, 2AE and 2AF are all consequential. We have to come to Amendment No. 2AG before a separate issue is raised. That is the issue of whether there should be the power to delay release for six months.
On Question, Amendment No. 2AD agreed to.

AS AN AMENDMENT TO COMMONS AMENDMENT No. 2A
2AE Line 27, leave out ("discretionary").
Lord Nathan: My Lords, I beg to move Amendment No. 2AE.
Moved, That Amendment No. 2AE, as an amendment to Commons Amendment No. 2A, be agreed to.—(Lord Nathan.)
On Question, Amendment No. 2AE agreed to.

AS AN AMENDMENT TO COMMONS AMENDMENT No. 2A
2AF Line 39, leave out ("discretionary"),
Lord Nathan: My Lords, I beg to move Amendment No. 2AF.
Moved, That Amendment No. 2AF, as an amendment to Commons Amendment No. 2A, be agreed to.—(Lord Nathan.)
On Question, Amendment No. 2AF agreed to.

AS AN AMENDMENT TO COMMONS AMENDMENT NO. 2AG.
2AG Line 43, leave out subsection (7).
Lord Nathan: My Lords, I beg to move Amendment No. 2AG.
Moved, That Amendment No. 2AG, as an amendment to Commons Amendment No. 2A, be agreed to.—(Lord Nathan.)
Lord Monson: My Lords, on this amendment I have a certain sympathy with the Government's position as set out by the Leader of the House earlier this afternoon, but I ask him to explain why the period needs to be as long as six months. Surely six weeks would be more than adequate.
Lord Waddington: My Lords—
Lord Tordoff: My Lords, perhaps I may dare to intervene at this stage. There has been considerable debate on this subject and we are now at a stage at which we should put the matter to the vote rather than reopen the debate.
Lord Waddington: My Lords, I was about to say the same thing. Although I would like to say something, we debated the matter earlier and therefore it would not be right to reply.
6.56 p.m.
On Question, Whether Amendment No. 2AG, as an amendment to Amendment No. 2A, shall be agreed to
Their Lordships divided: Contents, 91; Not-Contents, 74.

Division No. 4

CONTENTS

Ackner, L.

Brain, L.

Addington, L.

Brightman, L.

Airedale, L.

Campbell of Alloway, L.

Banks, L.

Carmichael of Kelvingrove, L.

Birk, B.

Carnock, L.

Blease, L.

Carter, L.

Bonham-Carter, L.

Cledwyn of Penrhos, L.

Boston of Faversham, L.

Cocks of Hartcliffe, L.

Bottomley, L.

Craigmyle, L.

1042

Darcy (de Knayth), B.

Morris, L.

Dean of Beswick, L.

Morris of Castle Morris, L.

Desai, L.

Morton of Shuna, L.

Dormand of Easington, L.

Munster, E.

Ennals, L.

Murray of Epping Forest, L.

Ewart-Biggs, B.

Nathan, L.

Fisher of Rednal, B.

Newall, L.

Gainsborough, E.

Nicol, B.

Gallacher, L.

Pender, L.

Galpern, L.

Pitt of Hampstead, L.

Graham of Edmonton, L. [Teller.]

Rea, L.

Redesdale, L.

Greenway, L.

Richard, L.

Hailsham of Saint Marylebone, L.

Robson of Kiddington, B.

Rochester, L.

Halsbury, E.

Russell, E.

Hampton, L.

Seear, B.

Hamwee, B.

Sefton of Garston, L.

Hanworth, V.

Serota, B.

Harris of Greenwich, L.

Shannon, E.

Hilton, B.

Sharples, B.

Hollis of Heigham, B.

Stedman, B.

Holme of Cheltenham, L.

Stockton, E.

Houghton of Sowerby, L.

Stoddart of Swindon, L.

Howie of Troon, L.

Taylor of Blackburn, L.

Hylton, L.

Taylor of Gryfe, L.

Hylton-Foster, B.

Templeman, L.

Jenkins of Hillhead, L.

Tordoff, L. [Teller.]

John-Mackie, L.

Turner of Camden, B.

Judd, L.

Underhill, L.

Kirkhill, L.

Varley, L.

Lawrence, L.

Wharton, B.

Listowel, E.

White, B.

Lockwood, B.

Wilberforce, L.

Longford, E.

Williams of Elvel, L.

McNair, L.

Winstanley, L.

Mallalieu, B.

Wyatt of Weeford, L.

Monkswell, L.

NOT-CONTENTS

Alexander of Tunis, E.

Kenilworth, L.

Arran, E.

Kimball, L.

Astor, V.

Lane of Horsell, L.

Belstead, L.

Long, V.

Bessborough, E.

Mackay of Ardbrecknish, L.

Blake, L.

Mackay of Clashfern, L.

Blatch, B.

Macleod of Borve, B.

Boardman, L.

Mancroft, L.

Boyd-Carpenter, L.

Marlesford, L.

Brabazon of Tara, L.

Merrivale, L.

Caithness, E.

Mottistone, L.

Cavendish of Furness, L.

Mountevans, L.

Clanwilliam, E.

Mountgarret, V.

Cockfield, L.

Nelson, E.

Colnbrook, L.

Norrie, L.

Colwyn, L.

Oxfuird, V.

Constantine of Stanmore, L.

Pearson of Rannoch, L.

Davidson, V. [Teller.]

Platt of Writtle, B.

Denton of Wakefield, B.

Plummer of St. Marylebone, L.

Dudley, E.

Reay, L.

Elliott of Morpeth, L.

Renton, L.

Erroll, E.

Romney, E.

Faithfull, B.

Sanderson of Bowden, L.

Ferrers, E.

Savile, L.

Flather, B.

Selborne, E.

Fraser of Carmyllie, L.

Shrewsbury, E.

Gainford, L.

Skelmersdale, L.

Gisborough, L.

Stevens of Ludgate, L.

Glenarthur, L.

Strathclyde, L.

Harmar-Nicholls, L.

Strathmore and Kinghorne, E.

Harvington, L.

Sudeley, L.

Henley, L.

Trefgarne, L.

Hesketh, L. [Teller.]

Ullswater, V.

Hives, L.

Vaux of Harrowden, L.

Hooper, B.

Waddington, L.

Howe, E.

Wade of Chorlton, L.

Joseph, L.

Wedgwood, L.

Resolved in the affirmative, and Amendment No.2AG agreed to accordingly.
7.3 p.m.

AS AN AMENDMENT TO COMMONS AMENDMENT No. 2A
2AH Line 46, at end insert:
("(7A) When the Board exercises its functions under this section it shall consist of —

(a) a judge of the High Court, who shall be the Chairman;

(b) a registered medical practitioner who is a psychiatrist; and

(c) a chief probation officer

and shall act as a judicial tribunal independently of the Secretary of State.").
Lard Harris of Greenwich: My Lords, I beg to move Amendment No. 2AH. We are in a somewhat confusing situation in that the noble Lord the Leader of the House has already replied to the amendment although in fact I have not yet spoken to it. I now propose to do so.
This is a matter of considerable importance. It arises directly from a recommendation of your Lordships' Select Committee on Murder and Life Imprisonment and relates to the character of the tribunal. In my view "tribunal" is the way to describe the group of members of the Parole Board who will now have to make executive decisions in relation to whether life sentenced prisoners should be released into the community. The question therefore is who should be members of that tribunal.
The view of your Lordships' Select Committee was that there should be a high court judge, a consultant psychiatrist and a chief probation officer. I believe that that is right. Since the earliest days of the Parole Board, as my noble friend Lord Hunt pointed out and the noble and learned Lord, Lord Roskill, confirmed, High Court judges have been members of panels which advised the Home Secretary whether to release a life sentenced prisoner. In my view it would be an extraordinary situation were a High Court judge not to be chairman of the tribunal. If there is a High Court judge as a member of the committee or board, which makes an affirmative recommendation—and recommendation only—to the Home Secretary, it would be very strange indeed were we not to say that when the board has executive responsibilities it should not include on it a High Court judge.
Putting the mandatory life sentence on one side, I should like to speak for a few minutes about the discretionary life sentence case. Here one is dealing with some of the most difficult prisoners in custody. Highly sensitive and extremely difficult decisions will have to be reached and, in order to maintain public confidence in the arrangements, it is in my view essential that a High Court judge should be in the chair.
The only other issue that I want to raise with the noble Lord, Lord Waddington—I gave notice of this question to his officials—is whether the new tribunal will be overseen by the Council on Tribunals. It is a matter of considerable importance. The Council on Tribunals was established for just such a purpose and I should be reassured, as I am sure would other noble Lords, were we to be told that the Council on Tribunals is to be asked to take on the responsibility.
Moved, That Amendment No. 2AH, as an amendment to Commons Amendment No. 2A, be agreed to. —(Lord Harris of Greenwich.)
Lord Hailsham of Saint Marylebone: My Lords, I have every sympathy with this amendment but I thought I understood my noble and learned friend or perhaps my noble friend on the Front Bench at some stage to say that there were logistical difficulties about providing a High Court judge for this work. I myself would be perfectly content, in spite of the importance of the work, to have in the chair an Old Bailey judge, a retired High Court judge, a circuit judge or even one who is qualified to sit as a deputy High Court judge. I wonder whether my noble and learned friend on the Woolsack would comment on that matter before we reach a decision on the amendment.
Lord Renton: My Lords, there is a point which I wish to raise on this amendment. It relates to the words in the last line:
"and shall act as a judicial tribunal independently of the Secretary of State".
This is a matter of the Parole Board's function. The Parole Board is appointed by the Secretary of State and, I understand, is answerable to him. I wonder why we need those words there; what would be their constitutional significance; and do we really need to include them?
Lord Morton of Shuna: My Lords, I support this amendment. Perhaps I may take up the point raised by the noble Lord, Lord Renton. The reason is that the Parole Board is not wholly independent of the Secretary of State. The independence of this tribunal has to be demonstrated. I believe that that is the reason. It is for the European court to be satisfied that the tribunal taking the decision is totally separate from the Executive. That is the reason for the word "independently".
My membership of the Select Committee is not the only reason why I support the proposition that the judicial member should be a judge of the High Court. It is a tribunal that will have to have the fullest confidence of the public. It would therefore be appropriate for the judicial member to be a High Court judge rather than a Crown Court judge, a retired judge or a deputy judge.
When I was very new to the House in 1985, I had the temerity to suggest in debate on the Law Reform (Miscellaneous Provisions) (Scotland) Bill that the Secretary of State for Scotland and the Lord Advocate might consider having temporary judges in Scotland as they had in England, whereupon the noble and learned Lord, Lord Rawlinson of Ewell, stated that we should do no such thing—we have of course done such a thing since, but that is by the way—because of great trouble caused to the Bar in England through the use of too many deputies and retired judges and too few appointments for High Court judges. If there is a shortage of High Court judges, I am sure that there is no shortage of people qualified to be High Court judges. The answer is fairly simple. It costs nothing like the annual salary of people within some major companies to appoint a High Court judge.
Lord Campbell of Alloway: My Lords, I support the amendment. I shall be brief. In answer to my noble friend Lord Renton, it is because the Secretary of State appoints the Parole Board, and because the Parole Board is answerable to the Secretary of State, that the last line of the amendment has to be inserted in order to satisfy the firm requirements of the decision of the European Court of Human Rights. With respect there can be no answer to that.
I spoke on the other matter previously. I support the argument that a judge of the High Court should be chairman. I pray in aid everything said by the noble and learned Lord, Lord Roskill, and by the noble Lord, Lord Hunt, earlier in the debate. Those were totally convincing reasons why someone with the status of a High Court judge should be appointed. I agree with the noble and learned Lord, Lord Morton. Old retired judges, recorders, or circuit judges, who are brought back, do not have the same status or quality. If they had, they would be High Court judges.
Lord Renton: My Lords, what about Law Lords?
Lord Campbell of Alloway: My Lords, my noble friend Lord Renton asks, "What about Law Lords?". It would be impertinent for me publicly to reply to that question. I have my own views, some of which are reflected in what I have said.
I am firmly in support of the recommendation of the Select Committee that the tribunal should be chaired by a judge of High Court status, no more and no less. If there are not enough High Court judges, for heaven's sake let us appoint more. I understand that there are about 200 cases in the pipeline at the moment which warrant consideration. If there are not enough judges, let us have more. There is no reason why not. We are not totally governed by the Treasury. In support of the amendment, I can say no more.
7.15 p.m.
Lord Ackner: My Lords, I support the amendment. There is a great tendency nowadays to downgrade judicial work. We have a mass of work being sent from the High Court to the county court to be dealt with by circuit judges. Of course if the present volume of work increases, as it is bound to do, the High Court judges' strength of numbers at present is quite inadequate. The strength of the High Court is quite inadequate to deal with its present workload. That has been the result of a consistent Treasury refusal to make up the required number of High Court judges. It is a scandal that at least one-third of High Court judges' work is done by deputy or circuit judges.
The size of the Bar has increased more than threefold since I was called to the Bar. The size of the High Court Bench has increased nothing like that. We, in the Appellate Committee, have the privilege of hearing a fairly extensive number of silks. There must be over 600 silks at the Bar. The only resistance to their appointment is not ability, but the fact that the Treasury will not agree.
The Lord Chancellor: My Lords, it has been suggested by my noble and learned friend that I comment on the matter. My noble friend the Leader of the House is agreeable to that.
High Court judges have a very considerable workload, and I must do my best to make use of their skill and expertise to the best possible advantage. It may well be appropriate for a judge of the High Court to be chairman of such a tribunal. I should have thought that it may also be appropriate for a particular circuit judge to be chairman. After all, particular circuit judges try cases of murder. If they are able to try cases of murder, I should have thought that it would be perfectly appropriate that they chair such a tribunal.
If your Lordships were to pass the amendment in this form, it would be impossible to use the services in this connection of a circuit judge, however highly qualified and however many murder cases he had tried. I suggest that that is an unnecessary restriction on the flexibility that is required if we are appropriately to use the resource of High Court judge talent.
The suggestion is readily made that all we need to do is to appoint a few more. However, there are difficulties. There is such a thing as competition for resources in the various matters that count in public expenditure terms. I do not believe that it would be appropriate for me to enter further into detail in what I am sure has been a considerable debate already.
I suggest to your Lordships that a circuit judge might well be qualified suitably to chair a tribunal in these circumstances and that it would therefore be unnecessary to restrict the judicial chairman in the way that the amendment proposes. I have so advised the Leader of the House in discussions.
Lord Hailsham of Saint Marylebone: My Lords, before my noble and learned friend sits down, do I infer from what he says that on behalf of the Government he gives an undertaking that the chairman should be a judge?
The Lord Chancellor: My Lords, there is no question in my mind but that the chairman should be a judge. The only question is whether the chairman should necessarily be a High Court judge or, for example, whether a circuit judge approved to try murder cases might be perfectly suitable. Perhaps I may elaborate a little. One has to remember that the nature of the work which High Court judges have to undertake these days can involve a great variety of different types of case. A circuit judge approved to try a murder case may well have as much experience of dealing with murder cases in court as some of the High Court judges.
All I suggest to your Lordships is that it would be wise to allow a reasonable flexibility in the matter in order that the status of judicial officer, as between a High Court judge and a circuit judge, should be left open.
Lord Ackner: My Lords, before my noble and learned friend sits down, will he agree that there is all the difference in the world between the function of a

1047
judge presiding in the trial of a murder case—not, usually, the most difficult of cases—where the decision is made by the jury, and that of the judge presiding over such a tribunal where he must take a leading part in making what may often be a difficult decision?
The Lord Chancellor: My Lords, I appreciate that there is a difference between a judge charging a jury in a murder case and a judge presiding over a tribunal of this kind. However, I believe that circuit judges qualified to try murder cases would be qualified to preside over such a tribunal. I agree that the situations are different but I do not so denigrate the talent of the circuit Bench as to believe that a circuit judge of that character would not be appropriate for the purpose. I am not saying that necessarily the appointment should be of such a person; merely that it would be right for your Lordships to leave the issue open as a matter of qualification. In other words, the qualification for being, the chairman should be a judge of the High Court or a circuit judge.
Lord Waddington: My Lords, Amendment No. 2AH seeks to set out on the face of the Bill the composition of the panel that will consider the case of discretionary life sentence prisoners and to declare that it will be an independent tribunal. My advice is that the final words of the amendment add nothing. The question is whether such a body so composed would be a court within the meaning of the judgment of the European Court of Human Rights. I said earlier that the tribunal would be headed by a judge; that the right of appearance would be given to the person detained; that there would be the right of representation; and that the person would have the right to apply for legal aid. Therefore, the body would be headed by a judge and would have all the hallmarks of a court. Accordingly, I see no reason whatever to believe that the scheme put forward by amendment in another place, suggested by the Government, would not meet the needs of the situation.
The matter has been dealt with to a large extent by my noble and learned friend the Lord Chancellor. It is right to say that the judge concerned can be a circuit judge who has had wide experience of trying serious cases of crime. It is certainly the case that the judge will have been a member of the Parole Board. Surely in those circumstances there is no reason why after making such decisions as a member of the Parole Board he should not be capable of carrying out this particular function. It is not for me to add to the arguments advanced by my noble and learned friend about the possible practical problems, bearing in mind the considerable burden of work that might be involved.
The panel that we propose will, in addition to the judge, include a medical member with a psychiatric qualification. The third member might well be a chief probation officer. However, it is not desirable to make an inflexible rule about that because many wise and distinguished members of the Parole Board are not chief probation officers and they may be equally suitable to undertake these duties. I should not like to rule them out.
1048
I am satisfied that taken together the provisions set out in the Commons amendments will ensure that the European Court of Human Rights will regard the Parole Board as a court in Strasbourg terms. The European Court will not be concerned about whether provisions appear in the Bill, in the rules, or in a mixture of both; it will look at the substance of our arrangements. The Government have no doubt that it will find our arrangements adequate.
The noble Lord, Lord Harris of Greenwich, asked whether the Parole Board will be supervised by the Council on Tribunals. We have not made statutory provisions for that but we shall explore the possibility of the council providing advice on an informal basis about the procedures which the Parole Board will adopt in discretionary life sentence cases. I also give an undertaking that we shall consult the council on the draft rules to be made for that purpose under Clause 26(5). In those circumstances, I ask your Lordships to reject Amendment No. 2AH and accept that the scheme put forward by the Government meets the needs of the moment, meets the requirements of the European court and will provide a workable and proper system for carrying out these reviews.
Lord Harris of Greenwich: My Lords, I hear what the noble Lord the Leader of the House said about the Council on Tribunals. However, he will be aware that the council looks into other matters. For instance, mental health tribunals have responsibilities similar to those of the new organisation and in their annual report they criticise the substantial delays which occur in hearing cases. I remind the noble Lord that criticisms of precisely that character have been made in respect of the parole system. Therefore, it is highly desirable that the Council on Tribunals has the right to look into the matter. I should be grateful if the noble Lord would write to me because I recognise that the issue is wide of the amendment.
I do not wish to rehearse the arguments again. The fact of the matter is simple. Since the creation of the Parole Board a High Court judge has been a member of the panel in all life sentence cases. He has been that notwithstanding the fact that in that capacity he is acting as an adviser to the Secretary of State. The new tribunal will be an executive body and not an advisory body to the Secretary of State. It will have executive responsibilities. As I pointed out earlier, in addition to other cases the tribunal will be dealing with cases of manslaughter on the grounds of diminished responsibility. Such cases are some of the most difficult ever considered by the Parole Board because there is a real risk of a repetition of a serious criminal offence. In the light of that and for the need to maintain public confidence in the new procedures I believe that it is desirable to have a High Court judge in the chair. I commend the amendment to the House.
7.27 p.m.
On Question, Whether Amendment No. 2AH, as an amendment to Commons Amendment No. 2A, shall be agreed to?
Their Lordships divided: Contents, 65; Not-Contents, 73.

Division No. 5

CONTENTS

Ackner, L.

Lawrence, L.

Addington, L.

Listowel, E.

Airedale, L.

Longford, E.

Banks, L.

McNair, L.

Brain, L.

Mallalieu, B.

Campbell of Alloway, L.

Masham of Ilton, B.

Carmichael of Kelvingrove, L.

Monkswell, L.

Cocks of Hartcliffe, L.

Monson, L.

Darcy (de Knayth), B.

Morris, L.

Dean of Beswick, L.

Morris of Castle Morris, L.

Desai, L.

Morton of Shuna, L.

Dormand of Easington, L.

Nathan, L.

Ewart-Biggs, B.

Nicol, B.

Fisher of Rednal, B.

Pitt of Hampstead, L.

Gallacher, L.

Rea, L.

Galpern, L.

Redesdale, L.

Graham of Edmonton, L. [Teller.]

Richard, L.

Robson of Kiddington, B.

Greenway, L.

Rochester, L.

Halsbury, E.

Seear, B.

Hampton, L.

Sefton of Garston, L.

Hamwee, B.

Stedman, B.

Hanworth, V.

Stoddart of Swindon, L.

Harris of Greenwich, L. [Teller.]

Taylor of Blackburn, L.

Taylor of Gryfe, L.

Hilton, B.

Templeman, L.

Hollis of Heigham, B.

Tordoff, L.

Holme of Cheltenham, L.

Turner of Camden, B.

Houghton of Sowerby, L.

Underhill, L.

Hylton-Foster, B.

Wharton, B.

John-Mackie, L.

White, B.

Judd, L.

Williams of Elvel, L.

Kilmarnock, L.

Winstanley, L.

Kirkhill, L.

NOT-CONTENTS

Arran, E.

Kenilworth, L.

Astor, V.

Kimball, L.

Belstead, L.

Lane of Horsell, L.

Blake, L.

Long, V.

Blatch, B.

Mackay of Ardbrecknish, L.

Boardman, L.

Mackay of Clashfern, L.

Boyd-Carpenter, L.

Macleod of Borve, B.

Brabazon of Tara, L.

Mancroft, L.

Brentford, V.

Marlesford, L.

Caithness, E.

Mottistone, L.

Cavendish of Furness, L.

Mountevans, L.

Clanwilliam, E.

Mountgarret, V.

Colnbrook, L.

Nelson, E.

Craigmyle, L.

Newall, L.

Davidson, V. [Teller.]

Norrie, L.

Denton of Wakefield, B.

Orkney, E.

Dudley, E.

Oxford and Asquith, E.

Elliott of Morpeth, L.

Pearson of Rannoch, L.

Erroll, E.

Platt of Writtle, B.

Faithfull, B.

Plummer of St. Marylebone, L.

Ferrers, E.

Rankeillour, L.

Flather, B.

Reay, L.

Fraser of Carmyllie, L.

Renton, L.

Gainsborough, E.

Rodney, L.

Gisborough, L.

Romney, E.

Glenarthur, L.

Savile, L.

Hailsham of Saint Marylebone, L.

Sharples, B.

Shrewsbury, E.

Harmar-Nicholls, L.

Skelmersdale, L.

Harvington, L.

Strathclyde, L.

Henley, L.

Strathmore and Kinghorne, E.

Hesketh, L. [Teller.]

Trefgarne, L.

Hives, L.

Ullswater, V.

Hooper, B.

Vaux of Harrowden, L.

Howe, E.

Waddington, L.

Hylton, L.

Wade of Chorlton, L.

Joseph, L.

Wyatt of Weeford, L.

Resolved in the negative, and Amendment No. 2AH disagreed to accordingly.
7.35 p.m.

AS AN AMENDMENT TO COMMONS AMENDMENT No. 2A
2AJ Line 50, leave out ("discretionary").
Lord Nathan: My Lords, I beg to move.
Moved, That Amendment No. 2AJ, as an amendment to Commons Amendment No. 2A, be agreed to.—(Lord Nathan.)
Amendment No. 2AJ, as an amendment to Commons Amendment No. 2A, agreed to.
On Question, Amendment No. 2A, as amended, agreed to.

COMMONS AMENDMENT
2B After Clause 22, insert the following new clause:
Life prisoners transferred to England and Wales
'.—(1) This section applies where, in the case of a transferred life prisoner, the Secretary of State, after consultation with the Lord Chief Justice, certifies his opinion that, if—

(a) he had been sentenced for his offence in England and Wales after the commencement of section (Duty to release discretionary life prisoners) above; and

(b) the reference in subsection (1) (a) of that section to a violent or sexual offence the sentence for which is not fixed by law were a reference to any offence the sentence for which is not so fixed,

the court by which he was so sentenced would have ordered that that section should apply to him as soon as he had served a part of his sentence specified in the certificate.
(2) In a case to which this section applies, this Part except section 28(2) above shall apply as if—

(a) the transferred life prisoner were a discretionary life prisoner for the purposes of this Part; and

(b) the relevant part of his sentence within the meaning of section (Duty to release discretionary life prisoners) of this Act were the part specified in the certificate.

(3) In this section "transferred life prisoner" means a person—

(a) on whom a court in a country or territory outside England and Wales has imposed one or more sentences of imprisonment or detention for an indeterminate period; and

(b) who has been transferred to England and Wales, in pursuance of—

(i) an order made by the Secretary of State under section 26 of the Criminal Justice Act 1961 or section 2 of the Colonial Prisoners Removal Act 1884; or

(ii) a warrant issued by the Secretary of State under the Repatriation of Prisoners Act 1984,

there to serve his sentence or sentences or the remainder of his sentence or sentences.
(4) A person who is required so to serve the whole or part of two or more such sentences shall not be treated as a discretionary life prisoner for the purposes of this Part unless the requirements of subsection (1) above are satisfied as respects each of those sentences; and subsections (3) and (5) of section (Duty to release discretionary life prisoners) above shall not apply in relation to such a person until after he has served the relevant part of each of those sentences.'.
Lord Waddington: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 2B.
Moved, That the House do agree with the Commons in their Amendment No. 2B. —(Lord Waddington.)

AS AN AMENDMENT TO COMMONS AMENDMENT No. 2B
2BA Line 7, leave out from ("above") to end of line 10.
Lord Nathan: My Lords, I beg to move Amendment No. 2BA.
Moved, That Amendment No. 2BA, as an amendment to Commons Amendment No. 2B, be agreed to.—(Lord Nathan.)
Amendment No. 2BA, as an amendment to Amendment No. 2B, agreed to.

AS AN AMENDMENT TO COMMONS AMENDMENT No. 2B
2BB Line 16, leave out ("discretionary").
Lord Nathan: My Lords, I beg to move Amendment. No. 2BB.
Moved, That Amendment No. 2BB, as an amendment to Commons Amendment No. 2B, be agreed to.—(Lord Nathan.)
Amendment No. 2BB, as an amendment to Amendment. No. 2B, agreed to.

AS AN AMENDMENT TO COMMONS AMENDMENT No. 2B
2BC Line 34, leave out ("discretionary").
Lord Nathan: My Lords, I beg to move Amendment. No. 2BC.
Moved, That Amendment No. 2BC, as an amendment to Commons Amendment No. 2B, be agreed to.
Amendment No. 2BC, as an amendment to Commons Amendment No. 2B, agreed to.
On Question, Amendment No. 2B, as amended, agreed to.

COMMONS AMENDMENTS
2C Page 20, line 10, leave out 'discharges functions' and insert 'makes recommendations'.
2D Page 20, line 14, leave out '(4)' and insert 'and'.
2E Page 20, line 17, at end insert:
'(4) The Board shall deal with cases as respects which it gives directions under this Part on consideration of all such evidence as may be adduced before it.'.
2F Page 20, line 24, leave out 'making any recommendations' and insert 'discharging any functions'.
2G Page 20, line 31, leave out subsection (7).
Lord Waddington: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 2C to 2G en bloc.
Moved, That the House do agree with the Commons in their Amendments Nos. 2C to 2G en bloc.—(Lord Waddington.)
On Question, Motion agreed to.

COMMONS AMENDMENT
2H Page 22, line 6, leave out subsection (5) and insert:
'(5) The Secretary of State shall not include on release, or subsequently insert, a condition in the licence of a long-term or life prisoner, or vary or cancel any such condition, except—

(a) in the case of the inclusion of a condition in the licence of a discretionary life prisoner, in accordance with recommendations of the Board; and

(b) in any other case, after consultation with the Board.'.

Lord Waddington; My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 2H.
Moved, That the House do agree with the Commons in their Amendment No. 2H.

AS AN AMENDMENT TO COMMONS AMENDMENT No. 2H
2HA Line 6, leave out ("discretionary").
Lord Nathan: My Lords, I beg to move Amendment No. 2HA.
Moved, That Amendment No. 2HA, as an amendment to Commons Amendment No. 2H, be agreed to.—(Lord Nathan.)
Amendment No. 2HA, as an amendment to Commons Amendment No. 2H, agreed to.
On Question, Amendment No. 2H, as amended, agreed to.

COMMONS AMENDMENT
2J Page 23, line 5, leave out from ("Where") to end of line 7 and insert 'on a reference under subsection (4) above the Board—

(a) directs in the case of a discretionary life prisoner; or

(b) recommends in the case of any other person,

his immediate release on licence under this section, the Secretary of State shall give effect to the direction or recommendation.'.
Lord Waddington: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 2J.
Moved, That the House do agree with the Commons in their Amendment No. 2J—(Lord Waddington.)

AS AN AMENDMENT TO COMMONS AMENDMENT No. 2J
2JA Line 3, leave out ("discretionary").
Lord Nathan: My Lords, I beg to move Amendment No. 2JA.
Moved, That Amendment No. 2JA, as an amendment to Commons Amendment No. 2J, be agreed to.—(Lord Nathan.)
Amendment No. 2JA, as an amendment to Amendment No. 2J, agreed to.
On Question, Amendment No. 2J, as amended, agreed to.

COMMONS AMENDMENTS
2K Page 24, line 14, leave out 'the Prison Act 1952'.
2L Page 25, line 15, leave out 'directed' and insert 'ordered'.
2M Page 25, line 19, leave out subsection (2).
2N Page 27, line 11, leave out from 'above' to end of line 19 and insert 'in subsection (5) (a) after the wordy "in the case of there shall be inserted the words "the licence of a long-term prisoner or", and subsection (6) shall be omitted.'.
Lord Waddington: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 2K to 2N en bloc.
Moved, That the House do agree with the Commons in their Amendments Nos. 2K to 2N.—(Lord Waddington.)
On Question, Amendments Nos. 2K to 2N agreed to.

COMMONS AMENDMENT
2P Page 27, line 26, at end insert:
"'discretionary life prisoner" has the meaning given by section (Duty to release discretionary life prisoners) above (as extended by section 36(2) above);'.
Lord Waddington: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 2P.
Moved, That the House do agree with the Commons in their Amendment No. 2P.—(Lord Waddington.)

AS AN AMENDMENT TO COMMONS AMENDMENT No. 2P
2PA Line 2, leave out ("discretionary").
Lord Nathan: My Lords, I beg to move.
Moved, That Amendment No. 2PA, as an amendment to Commons Amendment No. 2P, be agreed to. —(Lord Nathan.)
Amendment No. 2PA, as an amendment to Commons Amendment No. 2P, agreed to.
On Question, Amendment No. 2P, as amended, agreed to.

COMMONS AMENDMENTS
2Q Page 27, line 27, leave out '28(4)' and insert '(Duty to release discretionary life prisoners) (8)'.
2R Page 27, line 35, at end insert:
"'sexual offence" and "violent offence" have the same meanings as in Part I of this Act.'
2S Page 27, line 39, at end insert:
'(3) Nothing in this Part shall require the Secretary of State to release a person who is serving—

(a) a sentence of imprisonment for a term; and

(b) one or more sentences of imprisonment for life,

unless and until he is entitled under this Part to he released in respect of each of those sentences.'.
2T Page 27, line 39, at end insert:
'(4) Subsections (2) and (3) of section 25 of this Act shall apply for the purposes of this Part as they apply for the purposes of Part I of this Act.'.
2U Page 90, line 26, at end insert:
'Repatriation of Prisoners Act 1984 (c.47)
.—(1) In section 2 of the Repatriation of Prisoners Act 1984 (transfer of prisoners Out of United Kingdom), in subsection (4) (h), for sub-paragraph (i) there shall be substituted the following sub-paragraph—
"(i) released on licence under section 27(1) (b) or (2), (Duty to release discretionary life prisoners) (3) or 28(1) or (2) of the Criminal Justice Act 1991;".
(2) In section 3 of that Act (transfer of prisoners into United Kingdom), after subsection (8) there shall be inserted the following subsection—
"(9) The provisions contained by virtue of subsection (1) (c) above in a warrant under this Act shall, in the case of a prisoner to whom section (Life prisoners transferred to England and Wales) of the Criminal Justice Act 1991 (discretionary life prisoners transferred to England and Wales) applies, include provision specifying the relevant part of his sentence within the meaning of section (Duty to release discretionary life prisoners) of that Act (duty of Secretary of State to release discretionary life prisoners)."
(3) In paragraph 2 of the Schedule to that Act (operation of certain enactments in relation to prisoners transferred into United Kingdom) —
1054

(a) in sub-paragraph (1), for the words from "section 60" to "of that section" there shall be substituted the words "section 27(1) (b) or (2), (Duty to release discretionary life prisoners) (3) or (5) or 28(1) of the Criminal Justice Act 1991 whether the prisoner has at any time served a particular proportion or part of his sentence specified in that provision,"; and

(b) in sub-paragraph (2), for the words "one third" there shall be substituted the words "ant' particular proportion or part".

(4) In paragraph 3 of that Schedule, for the words "section 61 of the Criminal Justice Act 1967" there shall be substituted the words "section 28(2) of the Criminal Justice Act 1991".'.
Lord Waddington: My Lords, I beg to move Amendments Nos. 2Q to 2U en bloc.
Moved, That the House do agree with the Commons in their Amendments Nos. 2Q to 2U. —(Lord Waddington.)
On Question, Motion agreed to.

COMMONS AMENDMENT
2V Page 93, line 13, at end insert:
'6A.—(1) This paragraph applies where, in the case of an existing life prisoner, the Secretary of State certifies his opinion that, if—

(a) section (Duty to release discretionary life prisoners) of this Act had been in force at the time when he was sentenced; and

(b) the reference in subsection (1)(a) of that section to a violent or sexual offence the sentence for which is not fixed by law were a reference to any offence the sentence for which is not so fixed,

the court by which he was sentenced would have ordered that that section should apply to him as soon as he had served a part of his sentence specified in the certificate.
(2) In a case to which this paragraph applies, Part II of this Act except section 28(2) shall apply as if—

(a) the existing life prisoner vivre a discretionary life prisoner for the purposes of that Part; and

(b) the relevant part of his sentence within the meaning of section (Duty to release discretionary life prisoners) of this Act were the part specified in the certificate.

(3) In this paragraph "existing life prisoner" means a person who, at the commencement of Part II of this Act, is serving one or more of the following sentences, namely—

(a) a sentence of life imprisonment;

(b) a sentence of detention during her Majesty's pleasure or for life under section 53 of the 1933 Act; or

(c) a sentence of custody for life under section 8 of the 1982 Act.

(4) A person serving two or more such sentences shall not be treated as a discretionary life prisoner for the purposes of Part II of this Act unless the requirements of sub-paragraph (1) above are satisfied as respects each of those sentences; and subsections (3) and (5) of section (Duty to release discretionary life prisoners) of this Act shall not apply in relation to such a person until after he has served the relevant part of each of those sentences.'.
Lord Waddington: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 2V.
Moved, That the House do agree with the Commons in their Amendment No. 2V.—(Lord Waddington.)

AS AMENDMENT TO COMMONS AMENDMENT No. 2V
2VA Line 5, leave out from ("sentenced") to end of line 8.
Lord Nathan: My Lords, I beg to move.
Moved, That Amendment No. 2VB, as an amendment to Commons Amendment No. 2V, be agreed to.—(Lord Nathan.)
Amendment No. 2VA, as an amendment to Commons Amendment No. 2V, agreed to.

AS AN AMENDMENT TO COMMONS AMENDMENT No. 2V
2VB Line 14, leave out ("discretionary").
Lord Nathan: My Lords, I beg to move.
Moved, That Amendment No. 2VB, as an amendment to Commons Amendment No. 2V, be agreed to.—(Lord Nathan.)
Amendment No. 2VB, as an amendment to Commons Amendment No. 2V, agreed to.

AS AN AMENDMENT TO COMMONS AMENDMENT No. 2V
2VC Line 27, leave out ("discretionary").
Lord Nathan: My Lords, I beg to move.
Moved, That Amendment No. 2VC, as an amendment to Commons Amendment No. 2V, be agreed to.—(Lord Nathan.)
Amendment No. 2VC, as an amendment to Commons Amendment No. 2V, agreed to.
On Question, Amendment No. 2V, as amended, agreed to.

LORDS AMENDMENT
3After 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 Commons disagreed to this amendment for the following reason:
3A because it would involve a charge on the public revenue and the Commons do not offer any further reason trusting that the above reason may be deemed sufficient.
Lord Waddington: My Lords, I beg to move that the House do not insist on their Amendment No. 3 to which the Commons have disagreed for the reason numbered 3A.
Moved, That the House do not insist on their Amendment No. 3 to which the Commons have disagreed for the reason numbered 3A.—(Lord Waddington.)
On Question, Motion agreed to.

LORDS AMENDMENT
4After Clause 25, insert the following new clause:
Review of life sentences by Tribunal
(".—(1) The Secretary of State shall refer the case of every life prisoner to the Tribunal for review not later than two years before the expiry of the penal term applicable to his case.
(2) The Tribunal may direct—

(a) the release on licence of a life prisoner convicted of murder;

(b) the release of a life prisoner convicted of an offence other than murder—

(i) on licence; or

(ii) unconditionally.

(3) In determining whether to direct release the Tribunal shall have regard to the risk of the life prisoner's committing further serious offences and the need to protect the public against that risk.
(4) The Secretary of State may revoke the licence of any life prisoner whose release on licence has been directed by the Tribunal and recall him to prison if it appears to the Secretary of State that it is expedient in the public interest to do so and shall in that event refer the case of the prisoner so recalled to the Tribunal for further consideration so soon as practicable.
(5) A life prisoner whose case is referred to the Tribunal under this section shall have the right—

(a) to make representations to the Tribunal either orally or in writing;

(b) to be legally represented before the Tribunal; and

(c) to call witnesses on his behalf,

and shall be given such information about his case and about the matters under consideration by the Tribunal as will enable him effectively to exercise those rights.
Provided that the Tribunal may direct that there shall be no disclosure of any material which the Tribunal considers that it would not be in the public interest to disclose.
(6) If the Tribunal determines not to direct the release of a life prisoner (whether convicted of murder or of some lesser offence) the Secretary of State shall refer his case to the Tribunal for further consideration within such period (not being longer than three years from the date of the previous determination) as the Tribunal may direct.
(7) Where the Tribunal directs the release of a life prisoner other than one convicted of murder it may also direct the length of time for which the licence is to remain in force.
(8) If the Tribunal gives no direction as to the length of a licence under subsection (7) above, it shall review the licence—

(a) within three years from the date of the Tribunal's decision to release the offender on licence; and

(b) before the expiry of any subsequent period of three years,

and shall on any such review either terminate the licence or direct the length of time for which it is to remain in force.
(9) 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.
(10) 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 had it not passed 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 determined number of years' imprisonment.
(11) In this Part "life prisoner" means a person serving a sentence of imprisonment for life.").
The Commons disagreed to this amendment for the following reason:
4A because it would be incompatible with the amendments proposed by the Commons in lieu of Lords Amendment No. 2.
Lord Waddington: My Lords, I beg to move that the House do not insist on their Amendment No. 4 to which the Commons have disagreed for the reason numbered 4A.
Moved, That the House do not insist on their Amendment No. 4 to which the Commons have disagreed for the reason numbered 4A—(Lord Waddington.)
On Question, Motion agreed to.
7.45 p.m.

LORDS AMENDMENT
5 Clause 28, page 21, line 20, leave out subsections (2) to (4).
The Commons disagreed to the above amendment but proposed the following amendments to the words so restored to the Bill:
5A Page 21, line 21, leave out 'and' and insert 'together'.
5B Page 21, line 22, leave out 'a life prisoner on licence' and insert 'on licence a life prisoner who is not a discretionary life prisoner'.
5C Page 21, line 26, leave out subsection (4).
Lord Waddington: My Lords, I beg to move that the House do not insist on their Amendment No. 5, to which the Commons have disagreed, but agree with the Commons in their Amendments Nos. 5A to 5C en bloc as amendments to the words so restored to the Bill.
Moved, That the House do not insist on their Amendment No. 5, to which the Commons have disagreed, but agree with the Commons in their Amendments Nos. 5A to 5C en bloc as amendments to the words so restored in the Bill.—(Lord Waddington.)
On Question, Motion agreed to.

LORDS AMENDMENT
6 Clause 30, page 21, line 44, after ("life prisoner") insert ("who has been convicted of murder").
The Commons disagreed to this amendment for the following reason:
6A because it is an amendment consequential on Lords Amendment No. 1 to which the Commons have disagreed.

MOTION MOVED ON CONSIDERATION OF COMMONS REASON
Lord Nathan 6AA Lord Nathan to move, That this House do not insist on their Amendment No.6 to which the Commons have disagreed for the reason numbered 6A but propose the following amendment in lieu thereof:
Page 21, line 45, leave out ("until his death") and insert ("in accordance with subsection (3) of section (Duty to release discretionary life prisoners) above.").
Lord Nathan: My Lords, I beg to move Amendment No. 6AA.
Moved, That the House do not insist on their Amendment No. 6 to which the Commons have disagreed for the reason numbered 6A, but propose Amendment No. 6AA in lieu thereof. —(Lord Nathan)
On Question, Motion agreed to.

LORDS AMENDMENT
7Clause 32, page 22, line 35, leave out ("or life").
The Commons disagreed to this amendment for the following reason:
7A because it is an amendment consequential on Lords Amendment No. 1 to which the Commons have disagreed.
Lord Waddington: My Lords, I beg to move that the House do not insist on their Amendment No. 7 to which the Commons have disagreed for the reason numbered 7A.
Moved, That the House do not insist on their Amendment No. 7 to which the Commons have disagreed for the reason numbered 7A.—(Lord Waddington.)
On Question, Motion agreed to.

LORDS AMENDMENT
8 Clause 41, page 27, line 6, leave out ("in subsection (1)").
The Commons disagreed to this amendment for the following reason:
8A because it is an amendment consequential on Lords Amendment No. 5 to which the Commons have disagreed.
Lord Waddington: My Lords, I beg to move that the House do not insist on their Amendment No. 8 to which the Commons have disagreed for the reason numbered 8A.
Moved, That the House do not insist on their Amendment No. 8 to which the Commons have disagreed for the reason numbered 8A.—(Lord Waddington.)
On Question, Motion agreed to.

LORDS AMENDMENT
9Clause 41, page 27, line 8, leave out ("subsection") and insert ("section").
The Commons disagreed to this amendment for the following reason:
9A because it is an amendment consequential on Lords Amendment No. 5 to which the Commons have disagreed.
Lord Waddington: My Lords, I beg to move that the House do not insist on their Amendment No. 9, to which the Commons have disagreed for the reason numbered 9A.
Moved, That the House do not insist on their Amendment No. 9 to which the Commons have disagreed for the reason numbered 9A.—(Lord Waddington.)
On Question, Motion agreed to.

LORDS AMENDMENT
10 Clause 42, page 27, line 27, leave out ("28(4)") and insert ("(Review of life sentences by Tribunal)(11)").
The Commons disagreed to this amendment for the following reason:
10A because it is an amendment consequential on Lords Amendment No. 4 to which the Commons have disagreed.
Lord Waddington: My Lords, I beg to move that the House do not insist on their Amendment No. 10 to which the Commons have disagreed for the reason numbered 10A.
Moved, That the House do not insist on their Amendment No. 10 to which the Commons have disagreed for the reason numbered 10A.—(Lord Waddington.)
On Question, Motion agreed to.

LORDS AMENDMENT
11 Clause 47, page 33, line 12, at end insert—
("(3) For the purpose of facilitating the attendance in court of parents or guardians, the youth court in each area shall hold at least one sitting fortnightly outside the times at which the court normally sits if in the opinion of the court this is justified by the number of cases where to require a parent or guardian to attend court at the times at which the court normally sits would jeopardise the employment of the parent or guardian or would be undesirable for any other reason.").
The Commons disagreed to this amendment for the following reason:
11A because it is impractical and unnecessary to make provision by statute as to times at which youth courts are to sit.
Earl Ferrers: My Lords, I beg to move that the House do not insist on their Amendment No. 11 to which the Commons have disagreed for the reason numbered 11 A.
Your Lordships will recall that Amendment No. 11 was inserted in the Bill at Third Reading on 4th June, having been moved by my noble friend Lady Faithfull. I know that my noble friend will be disappointed that another place disagreed with her amendment and that I am inviting your Lordships not to insist upon it. But I would ask her to accept that this is not because we disagree with the principle which is embodied in the amendment, which is that, within the resources available to them, courts should be as flexible as possible in scheduling their sittings so that those who have to attend court are not unnecessarily inconvenienced.
The question is simply whether a statutory provision on the lines put forward by my noble friend is the light way to go about this. As I explained in our debate on 4th June, I fear that the effect of the amendment would, in fact, be to impose a rigid requirement on the courts to make all sorts of unnecessary inquiries. They would have to contact all parenis who were due to come to court on any day of the week in order to ascertain whether such a date was convenient to them. If it was not, and if there were enough other parents of defendants in a similar position, then the court would be obliged to hold a weekend or evening sitting, irrespective of whether or not that would be convenient to the other parties to the case—the witnesses and the victims. The court would have no discretion.
Therefore, the amendment would require inquiries to be made and judgments to be made on the number of cases in which parents could not attend at the normal time; whether the reasons, which the parents put forward, were genuine; whether there were enough such cases to require a special sitting and, if so, when that special sitting should be held —at the weekend or in the evening, and all that without reference to the convenience of the other parties.
That would elevate the interests of the parents of a young offender above those of all the other parties to the case; that is, the victim and the witnesses. It might well suit the parents of a young offender to attend in the evening, for example, rather than during the day, but that might well not be so convenient for other witnesses. The victim of, say, a mugging offence might also be caused additional anxiety by being made to come out after dark to give evidence.
I do not put this forward as the main reason, but the amendment would also involve considerable additional expense, to the tune of £7 million at a prudent estimate. When courts are going to be cash limited, that sum will have to be saved from other court work, and other court cases may be unnecessarily delayed.
The existing arrangements allow the court staff to respond to any serious problems which may be drawn to their attention not just by the parents but by the witnesses or the defendants as well. And the present arrangements permit the courts to sit in the evenings or at weekends when that is considered desirable. It is
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one thing to have a procedure which enables difficulties which arise to be taken into account. It is quite another to require the authorities to ascertain in each and every case whether in fact there are such difficulties.
In our earlier debate I said that I would certainly draw to the attention of the justices' clerks and magistrates the views which have been expressed in your Lordships' House on this subject, and I said that I would give active consideration to the possibility of giving further guidance on this point. Those undertakings still stand, and I hope that in the light of them your Lordships will not insist upon Amendment No. 11.
Moved, That the House do not insist on their Amendment No. 11, to which the Commons have disagreed for the reason numbered 11 A.—(Earl Ferrers.)
Baroness Faithfull: My Lords, I shall not oppose the Commons amendment, but I do that in sorrow. I believe that the Commons are misguided in not accepting the amendment. I am puzzled by the reasons given by my noble friend as to why neither the Government nor the Commons could accept the amendment; they were muddled. First, the amendment does not suggest that every case should be given the opportunity to be heard in an evening court.
With regard to the work that would be involved in ascertaining whether every parent should be informed, it is quite possible when serving a notice on parents to put at the bottom, "If you are not able to attend will you please reply and let me know why you cannot attend". It does not mean that an inquiry has to be made into every case. As regards the question of not coming out in the dark; first, in the summer it is not dark and, secondly, hearings could be on a Saturday morning when presumably it is light. Therefore, that is not a very good argument. From the point of view of the children it is very unfortunate that the provisions of the Children Act 1989 and of this Bill conflict with one another. Part I of the Children Act 1989, which comes into force on 14th October this year, lays a responsibility on parents. How are they to be responsible for their children if they cannot come to court? One must remember that with the present rate of unemployment people are very loathe to miss a day's work and perhaps a day's pay.
The main reason given in another place for turning down this amendment was the cost, but that was not mentioned the first time we debated this amendment. The Commons have thought up the figure of £7 million to £10 million. If we are to accept the Commons amendment we shall want to know, very understandably, how that £7 million to £10 million was made up. The amendment does not say that every court should sit every fortnight during an evening or on a Saturday; it simply says where the case demands it. There are an enormous number of courts in this country where it would not be demanded and it would not be necessary; for instance, such places as Devon and Cornwall. Therefore, I ask my noble friend the Minister whether he can say how the Treasury arrived at the figure of £7 million to £10 million. On what basis did the Treasury work that out? What was the

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formula? How did the Treasury manage to arrive at that figure between the time we last debated the Bill, during its time in the House of Commons, and now?
While not agreeing with the Commons in their amendment I shall not oppose it. However, I should mention to my noble friend the Minister that this amendment has been agreed by the Police Federation, the Magistrates' Association and by the Justices' Clerks' Society. In this day and age, when we are supposed to be considering the consumer, we should think of those who are appearing before the courts.
I have two more points to make. First, I have spoken individually to a number of magistrates. Many of them are working and have jobs but they do not want to give up being magistrates. They would be very happy to come in during an evening or on a Saturday when required. Therefore, the magistrates are fully in approval of this amendment. Secondly, having said all that, I shall not oppose the Commons. However, in not opposing the Commons I consider we have a right to know how that decision was reached.
Lord Richard: My Lords, may I say how much we appreciate the intervention of the noble Earl in our debate. We missed him yesterday when we were debating the four-day limit for people held in police custody. I am glad to see that he is fully recovered from what I understand was his excessive exposure yesterday to the storms of Wimbledon. We welcome him back. We heard with interest what he had to say.
Perhaps I may put one point to the noble Earl. In our previous debates he has from time to time said that he would consider issuing guidance. The Government may not like the amendment that was put down in the House of Lords and have therefore come back with the one now proposed by the Commons. If the noble Earl can say—perhaps with a greater degree of firmness than he has in the past—that guidance will be issued to the courts so that they might take this point on board (a perfectly valid point, in my view) the situation might be somewhat improved.
Finally, since I am being pleasant to the noble Earl tonight perhaps I may say how much I enjoy the ingenuity of his department. I am bound to say that some of the arguments that he produced tonight against the principle of the noble Baroness, Lady Faithfull, were ingenious and novel. Certainly they were arguments that during the three months of discussion on the Criminal Justice Bill we have not heard before.
Lord Harris of Greenwich: My Lords, I join the noble Lord, Lord Richard, in welcoming the noble Earl to our proceedings today. I do not know whether I should congratulate him on the quality of his maiden speech. Unhappily, he did not wholly satisfy us on the substance of the matter for a number of reasons, one of which has just been drawn to our attention by the noble Lord, Lord Richard; namely, some of these remarkably new arguments which have suddenly appeared.
I was particularly interested in the £7 million to £10 million calculation, as was the noble Baroness, Lady
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Faithfull. How did the Government arrive at the figure of £7 million to £10 million? The noble Baroness asked an interesting question. What is the basis of that assumption? How many courts is it assumed will take advantage of this provision in the Bill? Clearly an assumption must have been made, otherwise the figures of £7 million to £10 million could not have been arrived at.
My second point was made by the noble Lord, Lord Richard, in regard to guidance. We heard about guidance on the last occasion we discussed this matter. We have spent a fair amount of time considering whether or not the Government could give guidance. Eventually we concluded—on the basis of what had happened in the past—that they could indeed give guidance.
The noble Earl has this evening repeated, in almost precisely the same terms, the point about guidance. It would give many of us pleasure if he could indicate in rather firmer terms than he has done so far that he will give guidance to the courts. As the noble Baroness rightly says, it does affect a substantial number of offenders. The other point I make, in terms of the hours of darkness, is that a Scottish winter is more severe than an English winter; there are fewer hours of daylight in Scotland. Curiously enough, the Scots can cope with that but apparently we cannot. It is rather puzzling.
Earl Ferrers: My Lords, your Lordships are always particularly courteous and I am grateful for the touching way in which the noble Lords, Lord Richard and Lord Harris of Greenwich, welcomed me to this debate. I did not take part in earlier proceedings because that particular subject matter of the Criminal Justice Bill was taken originally by the Leader of the House and we thought that as a matter of propriety it would be better if my noble friend concluded that responsibility, even though it had hazardous consequences for the Government this evening. That is why my noble friend dealt with those matters.
The noble Lord, Lord Richard, welcomed me back from the hazards of the elements, and that was very kind of him. However, he will of course know that I have a certain responsibility for police matters and periodically one has to go out to the country to see how the police are getting on. That particular part of London is quite difficult at this time of year. I thought your Lordships would understand if I acquired a little first-hand experience of traffic conditions. It was fairly congested. I would not have done that if I had not had total confidence that the matter with which I was concerned was in capable hands—which indeed it was. Therefore, I am grateful to your Lordships for that welcome.
The noble Lord, Lord Harris of Greenwich, really is the most impossibly difficult person to satisfy on any matter. He comes along and says, "Well, here we are this evening. The Government are introducing a whole lot of new arguments that we have never heard before. It is really quite extraordinary how the Home Office digs up these arguments". Then he says that I repeated exactly the same words on guidance that I gave before. If I produce new words the noble Lord, Lord Harris of Greenwich, is dissatisfied. If I use the same words

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he is dissatisfied. I can only assume that despite his convivial and jovial face he really is a disgruntled gentleman who one can never satisfy.
I come to another difficulty. My noble friend Lady Faithfull said that she did not intend to oppose this amendment. I thought that was extremely helpful. I commend that spirit to her to continue. That spirit was noticeably not prevalent at the earlier part of the debates on the Bill. My noble friend referred to muddled reasoning. I do not think that this is a muddled reasoning at all. I tried to explain to her that we agreed totally with the idea that she had in mind, but that we thought it was much better to leave the matter to the courts which have the power to require these weekend and evening sittings, as at present, without putting this statutory obligation upon them. My noble friend said that the amendment does not require that an inquiry should be made in each and every case. However, the court would have to do its homework properly. The amendment states:
"For the purpose of facilitating the attendance in court of parents or guardian, the youth court in each area shall hold at least one sitting fortnightly outside the times at which the court normally sits if in the opinion of the court this is justified by the number of cases where to require a parent or guardian to attend court at the times at which the court normally sits would jeopardise the employment of the parent or guardian".
How will the court ascertain that information unless it takes active steps to do so? That is why I suggest to my noble friend that this would be an extravagant demand to place upon the courts.
My noble friend then asked me to elaborate a little on the costs. She asked where the figure of £10 million comes from, as did the noble Lords, Lord Richard and Lord Harris of Greenwich, the inference being that the Home Office had plucked the figure out of the air—
Baroness Faithfull: Yes, quite.
Earl Ferrers: My Lords, my noble friend has a lovely habit of interjecting in the most delightful way and saying, "Yes, quite"; but in fact that was not so.
The figure is achieved by a simple mathematical calculation except in one respect. I can tell the noble Lord, Lord Richard, where the figure of £10 million came from. In another place my right honourable friend Mr. Patten used the figure of £7 million. That was elaborated by the Opposition to £7 million to £10 million The figure of £10 million is the responsibility of colleagues in another place of the noble Lord, Lord Richard. The figure of £7 million is a straightforward calculation. We assumed that there would be one additional sitting required per fortnight in each petty sessions area—not in each court house but in each petty sessions area—and that each sitting would last for two-and-a-half hours.
The increased costs would be incurred by the police, gaolers, social workers, probation officers, court staff, by legal aid and by heating and lighting. In total, those are estimated at £12,156 per petty sessions area. There are 550 petty sessions areas and £12,156 times 550 equals £6.6 million. Nothing has been plucked out of the air there. That is a straightforward calculation. The additional costs to the Crown
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Prosecution Service are estimated at £0.4 million. That gives a total cost of £7 million. That is how the figures have been arrived at.
In suggesting that my noble friend does not insist on her amendment I said that we did not look upon the cost as a major factor but that it was nevertheless a relevant factor. For all those reasons I hope that my noble friend will be, as my noble friend Lord Waddington said earlier, on the side of the angels this time and will agree to support the Motion.
On Question, Motion agreed to.
8 p.m.

LORDS AMENDMENT
12 Clause 86, page 54, line 31, leave out from beginning to ("also") in line 32 and insert ("The following provisions of this Act, namely—

(a) this section;

(b) sections (Reciprocal enforcement of certain orders), 15(1) and (2), 21, (Sentence for murder), (Court's duty on passing sentence of life imprisonment) and 23(3) and (4); and

(c)Schedule (Reciprocal enforcement of certain orders), paragraph 6 of Schedule 5, paragraph 5 of Schedule 7, paragraph 15A of Schedule 10 to this Act and, so far as relating to the Social Work (Scotland) Act 1968, Schedule 12").

The Commons agreed to the above amendment with the following amendment:
12A Line 5, leave out from ("21") to first ("and") in line 6.
Earl Ferrers: My Lords, I beg to move that the House do agree with Commons Amendment No. 12A as an amendment to Lords Amendment No. 12. This amendment has already been spoken to.
Moved, That the House do agree with Commons Amendment No. 12A as an amendment to Lords Amendment No. 12.—(Earl Ferrers.)
On Question, Motion agreed to.

LORDS AMENDMENT
13 Before Schedule 4, insert the following new schedule:
("SCHEDULE LIFE SENTENCES REVIEW TRIBUNAL
1. The Tribunal shall consist of—

(a) a judge of the High Court, who shall be the chairman;

(b) a registered medical practitioner who is a psychiatrist;

(c) a chief probation officer.

2.The chairman shall be appointed by the Lord Chancellor and the other members by the Secretary of State.
3.A person appointed to be the chairman or other member of the Tribunal shall hold and vacate office under the terms of the instrument by which he is appointed, but may at any time resign his office, and a person who ceases to hold office as a member of the Tribunal shall be eligible for reappointment.
4.In Part II of Schedule 1 to the House of Commons Disqualification Act 1975 (Bodies of which all members are disqualified) there shall be inserted at the appropriate place the following entry—
"The Life Sentences Review Tribunal constituted under section (Life Sentence Review Tribunal) of the Criminal Justice Act 1991."
5.There shall be paid to the members of the Tribunal other than the chairman such remuneration and allowances as the Secretary of State may with the consent of the Treasury determine.
6.The expenses of the Tribunal under paragraph 5 above and any other expenses incurred by the Tribunal in the discharge of its functions shall be defrayed by the Secretary of State.
7.The Tribunal shall as soon as practicable after the end of each year make to the Secretary of State a report on the performance of its functions during that year; and the Secretary of State shall lay a copy of the report before Parliament.
8.—(1) The Lord Chancellor may make rules with respect to the procedure to be followed by the Tribunal in cases referred to it under section (Review of life sentences by Tribunal).
(2)Rules under this paragraph may in particular make provision—

(a) for making available to the person whose case is under consideration by the Tribunal copies of any documents relevant to his case and a copy of any relevant oral information supplied to the Tribunal except where it considers that it would not be in the public interest to disclose such documents or information;

(b) for requiring the Tribunal to furnish reasons for any decision given by it in such circumstances as may be prescribed;

(c) for enabling any matters preliminary or incidental to a review to be dealt with by any member of the Tribunal designated by the chairman.

(3)The power to make rules under this paragraph shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.")
The Commons disagreed to this amendment for the following reason:
13A because it would involve a charge on the public revenue and the Commons do not offer any further reason trusting that the above reason may be deemed sufficient.
Earl Ferrers: My Lords, I beg to move that the House do not insist on their Amendment No. 13 to which the Commons have disagreed for the reason numbered 13A.
Moved, That the House do not insist on their Amendment No. 13 to which the Commons have disagreed for the reason numbered 13A.—(Earl Ferrers.)
On Question, Motion agreed to.

LORDS AMENDMENT
14 Schedule 12, page 95, line 15, at end insert—

("1965 c. 71.

The Murder (Abolition of Death Penalty) Act 1965.

In section 1 in subsection (1), the words from "and" to the end of the subsection; subsection (2); in subsection (4), the words from "in each of the said sections 70" to the end of the subsection; in subsection (5), the words from "but in lieu thereof to the end of the subsection.").

The Commons disagreed to this amendment for the following reason:
14A because it is an amendment consequential on Lords Amendment No. 1 to which the Commons have disagreed.
Earl Ferrers: My Lords, I beg to move that the House do not insist on their Amendment No. 14 to which the Commons have disagreed for the reason numbered 14A.
Moved, That the House do not insist on their Amendment No. 14 to which the Commons have disagreed for the reason numbered 14A.—(Earl Ferrers.)
On Question, Motion agreed to.

Severn Bridges Bill
Brought from the Commons, read a first time, and to be printed.

Social Security (Contributions) Bill
8.4 p.m.
Report received.
Clause 1 [Class 1A contributions]:
Lord Mottistone Lord Mottistone moved Amendment No. 1:
Page 3, line 3 at end insert;
("(aa) for the tax year beginning with 6th April 1991 in calculating the cash equivalent of the benefit of a car or fuel for the purposes only of determining Class 1A contributions under this section the car shall be treated as being unavailable by virtue of paragraph 2 of Schedule 6 to the Income and Corporation Taxes Act 1988 for the purposes of section 158(5) of that Act and paragraphs 2, 3(2) or 5(2) of that Schedule, for each day of the period from 6th April 1991 to the date on which this Act receives Royal Assent but this provision shall be without prejudice to the application of section 158(5), or paragraphs 2, 3(2) or 5(2) of that Schedule to any other periods in that tax year for which the car was unavailable for use.").
The noble Lord said: My Lords, this amendment is designed to ensure that changes in the Bill are not retrospective. It seeks to achieve what was set out by my noble friend Lord Cockfield in Committee on Amendment No. 5 which was put forward by my noble friend Lord Boyd-Carpenter. He said that it was normally the right course to prevent retrospection in taxes. The amendment seeks to do that.
There is a great deal of reason behind the amendment. I shall not bore your Lordships with every detail as time has rattled on. However, I should like to make one or two points which I do not think were made at earlier stages of the Bill. The Bill will generate an income of more than £600 million for the National Insurance Fund. No one can dismiss that as petty cash. Even after one allows for off-set savings, the proposal amounts to a 2.25 per cent. surcharge on the employers' contribution to the National Insurance Fund.
This Government, unlike their predecessor, have always recognised that national insurance surcharges of that order destroy jobs. Indeed, they have said so in the past. That must be a particular danger in time of recession. Nor is it a burden which falls evenly. Where the business car is an essential tool of the trade for marketing or managing distant sites, more employees have them. In those cases, meeting this national insurance surcharge will be like finding the best part of an extra week's pay for every employee involved. No Minister in this Government would think of suggesting that an extra 1 or 2 per cent. on pay could

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do anything other than push up costs in a way which would damage competitiveness. Yet that is precisely what the impact of the Bill will be where the business car is in widespread use.
A second concern about the Bill is the damage that it threatens to our domestic car industry. Clearly, it will depress company car purchases. That will particularly hit our domestic car industry which wins a Lang share of this most demanding market and does so primarily on merit.
Finally, there is the question of practicality. The proposed legislation would be retrospective. It is that which in my amendment I seek to avoid. For many of us here, that is bad in principle. When we come to look at its impact on industry we can see that retrospection would also be bad in practice.
My noble friend the Minister has been consulting on practical arrangements, yet whatever he decides will apply from the date of the last Budget. That is a cause of particular unease because companies not only face new demands from the Department of Social Security but demands which will vary according to something they do not measure with precision now and cannot see how to do so objectively —the precise mileage done by an employee on company business. Perhaps my noble friend the Minister will be able to devise a suitable scheme. But how are employers to apply it retrospectively when they do not know what it is? My amendment effectively means that the national insurance liability could flow only from the date when the Bill is enacted, by which time my noble friend the Minister will have had time to sort out the administrative details. That would remove the objectionable question of retrospection and all the worries about arbitrary regulation that go with it, and because national insurance liability would not start until the Bill became law it would reduce significantly the extra charges in respect of company cars that businesses will face next year as they struggle through to the recovery. The National Insurance Fund would clearly still be the net gainer and the Minister would have moved to a more equal treatment in respect of cash and perk cars, but the cost to industry of the charge would be reduced by perhaps £150 million. That could be of vital help at a crucial moment in the upturn of the country's economy. I beg to move.
Lord Boyd-Carpenter: My Lords, as my noble friend Lord Mottistone explained, the purpose of this amendment is to take out the retrospective character of the charge. As my noble friend the Minister will recall, we had some discussion about this in Committee. I should like now to make it clear to him that, as the Bill stands at present, this is a retrospective provision. In Committee my noble friend disputed that fact. He said that the Bill did not breach any principle of retrospection and that,
"it is a Budget measure". [Official Report, 25/6/91; col. 509.]
He went on to say that Budget measures usually come into force immediately. Of course, my noble friend is perfectly right to say that the intention to introduce such a charge was mentioned in the Budget speech. However, with the greatest respect, that does not make it a Budget measure. Indeed, there is nothing in either of the resolutions or in the Finance Bill which
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would impose the charge. If there had been, there would be no necessity for this Bill. Moreover, what are we doing with the Bill if it was a Budget measure put into effect by the Budget?
What happened was that the Chancellor of the Exchequer, in the course of the Budget speech, indicated, perfectly properly, that it was the intention of Her Majesty's Government to introduce such a proposal. I noticed that fact with regret because I do not think that social security contributions should be dealt with by the Treasury. On the contrary, I believe that they should be dealt with, as is this Bill, by the Department of Social Security.
The point that I ask my noble friend the Minister to understand is that the mention in the Budget speech has no effect at all on the imposition of the charge. The charge will only become lawful if and when this Bill receives Royal Assent. I hope that my noble friend now accepts that fact. If he will allow me to say so, I believe that he has perhaps been a little misled by his ignorance of the Budget procedures. It is perfectly true that under the Provisional Collection of Taxes Act many changes in taxation made by the Budget operate from Budget Day; that is, generally, from six o'clock on Budget Day. Budget resolutions are carried and, under the Provisional Collection of Taxes Act, those taxes are lawfully levied for the rest of the summer until about 5th August generally when the Finance Bill becomes enacted. In fact, if one looks at the Budget it will be seen that there are many such provisions.
My noble friend is also wrong in saying that all Budget provisions normally operate from Budget Day. If he were to look into the matter, he would find out that many taxation changes of a capital nature operate only from about 5th August when the Bill becomes law. I hope noble Lords will forgive my stressing the point. I do not wish to appear repetitive. But, as my noble friend did not appear to understand on the last occasion, I feel it incumbent upon me to spell it out closely. The fact remains that mention by the Chancellor of the Exchequer of such an intention has no effect whatever in imposing the charge. The charge is imposed by the Bill which is before us tonight and which has not yet become law.
At present, the Bill says that the liability will run from the beginning of this financial year which is now nearly three months old, or perhaps a little more. Therefore, the effect must be retrospective because liability will be piling up from Budget Day which was in March. All this is to take place under a Bill which will certainly not receive Royal Assent until the current month of July.
I hope, therefore, that my noble friend will accept first that this is indeed retrospective. If he accepts that fact, I ask him to consider that retrospective taxation has always been regarded as contrary to proper policy and administration. I must confess that it is not unusual to admit retrospection in favour of the taxpayer. But it is very unusual, and has always been regarded as oppressive, to impose retrospective taxation on the taxpayer for the benefit of the state.
The amendment of my noble friend Lord Mottistone will remedy the situation. If accepted, it

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will ensure that the liability to pay this charge will arise from Royal Assent, whenever that may be. That is important from the point of view of principle. Moreover, from a practical point of view, as my noble friend Lord Mottistone said, it will also have considerable advantages. The effect of the Bill, as was made clear on Second Reading and in Committee, is to impose an additional charge on industry. At the very moment when the Government are, very properly, urging industry to keep costs down they are seeking to impose this provision. If the amendment is accepted, at least industry will be broken in gently. It will not have been accumulating a liability over the past three or four months: the liability will arise only from Royal Assent. I ask my noble friend seriously to consider whether that is the proper way to proceed.
My noble friend received due warning that this point would be raised because it was mentioned during the previous two stages of the Bill. I hope that he took advantage of the opportunity to consult with his right honourable friend, and indeed with the Treasury, on the matter. Knowing the position of a junior Minister, I realised that it would be very difficult for him to accept this amendment without reference to his seniors in the department. I trust that my noble friend will be able to tell us that, because of the desirability of softening the immediate effect of this imposition on industry and in deference to the principle that retrospective taxation is a bad thing, the Government will accept the amendment.
8.15 p.m.
Baroness Turner of Camden: My Lords, when the Bill was before this Chamber both in Committee and on Second Reading, we made it clear that our main concern in relation to it was the difficulty which we saw in making a distinction between those who had a car as a perk and those who needed to use a car as a part of the tool of their trade. Indeed, I mentioned sales representatives and I believe that the noble Lord, Lord Banks, mentioned district nurses, health visitors, and so on.
Of course we were a little concerned when the noble Lord, Lord Boyd-Carpenter, pointed out on Second Reading that it looked as though the Bill provided for retrospective legislation. We share the view that that is not a very good principle. However, the Minister claims that it is not retrospective. I shall listen with interest to his reply. I must stress that we on this side of the House welcome attempts to increase the money available in the National Insurance Fund. Therefore, if the noble Lord, Lord Mottistone, decides to press the amendment to a Division, I do not think that we shall be able to support it, even though we understand all the arguments which have been advanced by him and by the noble Lord, Lord Boyd-Carpenter, as to the undesirability of the retrospective effect of this legislation.
Having once accepted the principle that we should like to see more money going into the National Insurance Fund, if the provision were to be adopted it would mean that this time round—that is, this year —there would be rather less money than would
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otherwise have been available. With those few words, I have to say that, although I have much sympathy with the amendment, we on this side of the House would not be able to support it if it were pressed to a Division.
Lord Boardman: My Lords, I support the amendment for three reasons. The first is the retrospective nature of the Bill. My period as Chief Secretary in the Treasury was much briefer and less distinguished than that of my noble friend Lord Boyd-Carpenter, but I am familiar with the procedure and endorse what he said. I believe that this legislation is retrospective. I shall be interested to hear what my noble friend the Minister has to say about it.
My second point was also made by my noble friend Lord Boyd-Carpenter. It relates to the burden that is placed upon companies and employers at a time when they wish to minimise their costs. They will not have prepared for this imposition which, although not payable until next year, must be accumulated in their accounts and provided for in their costs today. This is the one time when every action possible should be taken by the Government to minimise the burdens falling upon industry and commerce.
My third point is a minor one, but for practical purposes it is important. It relates to the administrative troubles that will be created in calculating back what has been happening over the past three months, or whatever it may be. For all those reasons I hope that my noble friend will be able to accept the amendment.
Lord Banks: My Lords, I listened carefully to what the noble Lord, Lord Boyd-Carpenter, said, and, failing some explanation from the Minister, it appears to me that there is a retrospective aspect to the Bill. To that extent, I support the amendment. I agree with the view expressed by the noble Lord, Lord Boyd-Carpenter, and the noble Baroness, Lady Turner of Camden, that we do not like to see retrospective legislation and should like to see the end of it if possible.
Lord Renton: My Lords, the arguments in favour of the amendment have been so well deployed that there is no point in my trying to add much. I should like to reconcile two conflicting factors that have arisen. One understands the view of the noble Baroness, Lady Turner of Camden, when she says that she would like to see the charge on the National Insurance Fund reduced. That is a laudable aim but, on the other hand, in trying to establish the revival of our economy we should be trying to avoid placing extra burdens on industry. As has been said, this charge is a considerable extra burden.
At this stage anything which increases industrial costs should be avoided. If it adds to those costs retrospectively and in a way which, as my noble friend Lord Boyd-Carpenter pointed out, is, in an elementary sense, contrary to our legal principles— namely, by a Minister merely declaring an intention in the Budget Statement, with nothing happening until the Bill was introduced—that in itself is an unsatisfactory way to add to the burdens on industry.

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We are now on Report. I do not believe that my noble friend wishes to divide the House on this tonight. The arguments are strongly in favour of asking the Government to think again. They could think again about this proposal between now and Third Reading. If they thought again, it would not involve a heavy cost on the Exchequer. By thinking again in the way proposed, the placing of a heavy burden on industry could be avoided.
Lord Henley: My Lords, my noble friends Lord Mottistone and Lord Boyd-carpenter have founded their case for delaying the start of the Bill on the rules which apply to Finance Bills. They suggest that Budget measures are introduced by Budget resolutions which give them legal status until the Finance Bill has received Royal Assent, and that under that procedure it is acceptable for proposals to be announced in the Budget Statement to take immediate effect once the relevant resolution has been passed. But since that procedure does not apply to this Bill they argue that it would be retrospective taxation for the new charge to apply from 6th April, in advance of Royal Assent.
Following the Committee stage, I looked carefully at, and have been advised carefully about, the arguments advanced by my noble friends. As one who has never been a Member of another place, I say with all due respect to two former Treasury Ministers that my advice is that their arguments are based on a misunderstanding of the procedures used for Finance Bills. As I shall explain, the arrangements proposed in the Bill for Class 1A contributions mirror exactly the arrangements adopted for the introduction of new taxes.
The Finance Bill is brought in on resolutions. The resolutions merely determine the scope of the Bill. They cover every provision in the Bill, including those not due to come into effect until after Royal Assent. But, the important point is that those resolutions give no statutory effect whatever.
However, there is a different set of resolutions which does give temporary statutory effect. Those are resolutions under the Provisional Collection of Taxes Act. They are necessary where it is intended to collect the tax or implement the change before Royal Assent, such as the increased duty on whisky which my noble friend mentioned in Committee. Once passed, and subject to the various conditions which are specified in the Provisional Collection of Taxes Act, such a resolution gives a particular measure legal status on a temporary basis until Royal Assent.
However, a Provisional Collection of Taxes Act resolution is unnecessary for those provisions where it is not intended to take any action to collect the tax until after Royal Assent. They become law only when the Finance Bill receives Royal Assent. But it is accepted practice—indeed common practice—that they can take effect from the beginning of the tax year. If my noble friends examine Finance Acts carefully they will find many examples of provisions increasing liability which take effect from 6th April, which were not introduced under a Provisional Collection of
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Taxes Act resolution and which therefore did not become law until Royal Assent at the end of July or the beginning of August.
One example from this year's Budget is the proposal to charge capital gains tax on non-resident trusts. If the Finance Bill is passed, the charge will have effect from Budget day but no Provisional Collection of Taxes Act resolution was required because no collection of the tax will be made until well after Royal Assent. Another, perhaps even better, example is the new charge in respect of mobile telephones. Again, no resolution granting temporary statutory effect was passed by the House of Commons.
To show that the comparison with what is proposed in the Bill is even closer, I should like to describe the introduction of the then new capital gains tax. When that was introduced in the 1965 Budget, it was covered by a general Budget resolution which was passed by the other place. That was not a Provisional Collection of Taxes Act resolution because that Act did not, and in fact still does not, apply to capital gains tax. Nevertheless, the proposal was to introduce the new charge on disposal of assets on or after 6th April 1965. The new tax did not become law until the Finance Bill 1965 received Royal Assent in the summer. Once the Bill became law, the new charge, legally and properly, ran from 6th April 1965. Like the proposals in the Bill, the introduction of the capital gains tax from 6th April had been announced in the preceding Budget, alerting people to the need to maintain appropriate records for it.
As I have already made clear, the Social Security Bill is not a Finance Bill and is not subject to Finance Bill procedures. But the arrangements proposed in this Bill for bringing the new contributions into effect are exactly the same as those which would apply to a new tax and which commonly apply every year to other Finance Bill measures increasing liability.
Lord Boyd-Carpenter: My Lords, will my noble friend allow me to intervene? Would he care to give examples of cases where provisions which have nothing to do with finance or a Finance Bill but which were wholly separate measures dealing, according to their title, with social security were applied months before they received Royal Assent?
Lord Henley: My Lords, I do not wish to give a precedent of that kind, as I have been trying to make clear. I have stated that the Social Security (Contributions) Bill is not a Finance Bill but the procedures in this case are analogous and they are the best ones to follow. We are doing nothing that has not been done in similar Finance Acts.
8.30 p.m.
Lord Boyd-Carpenter: My Lords, I am sorry, but is my noble friend really saying that this Bill is equivalent to a finance Bill?
Lord Henley: My Lords, I am not saying that it is a finance Bill. I am saying that it is analogous to a finance Bill and therefore it is perfectly proper to follow the same procedures and to make the

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announcement in the Budget that this charge will be introduced and then, subsequently, to bring in the legislation. That is what we have done.
Lord Boardman: My Lords, will my noble friend permit me to intervene? Can he give an illustration of a case where a Bill other than a finance Bill has raised taxes retrospectively?
Lord Henley: My Lords, my noble friend Lord Boyd-Carpenter has already asked that question. I said that I was unable to give such an example. I said that this is not a finance Bill; I accepted that. I said that it was a social security Bill relating to contributions to the National Insurance Fund. However, I feel that the procedure followed by the finance Bills is the correct procedure to follow in this case. It is entirely analogous.
I should like to turn to the question put by all four of my noble friends on the additional charges on business. As I said in Committee, and I have just repeated it—and I have no shame in repeating it—one must see these measures as part of the overall Budget package. I stress the word "package" because at Committee stage my noble friend Lord Boyd-Carpenter misheard me and thought that I was trying to suggest that it was part of the finance Act. It is part of the overall Budget package. It is accepted that there will be an extra £400 million charge to business as a result of these measures.
However, at the same time as that was announced, other changes were announced in the Budget. The main ones which were beneficial to business as a whole were as follows. The main rate of corporation tax was reduced to 34 per cent. for 1990–91 and 33 per cent. for 1991–92. Companies were allowed to carry back trading losses for three years instead of one. The waiting period for bad debt relief was reduced from two years to one year and for small businesses the corporation tax threshold and limit for marginal relief were both increased by 25 per cent. Small firms were allowed to make PAYE and national insurance contribution payments quarterly rather than monthly.
The value to industry of all those changes will be £750 million in 1991–92 and well over £1 billion in 1992–93. I believe that the additional cost of £400 million net as a result of charging national insurance contributions on cars should be seen in that light. I hope, therefore, that my noble friend Lord Mottistone will not feel it necessary to press the amendment to a Division.
Lord Boyd-Carpenter: My Lords, before my noble friend sits down, is he really arguing that a mere statement by the Chancellor of the Exchequer or any other Minister in a Budget speech or in the Budget debate has authority for imposing taxation?
Lord Renton: My Lords, before my noble friend answers that question, will he say what the statement was in the Budget? Did it in any way forecast the very complex provisions of the six clauses of the Bill covering five and a half pages?
Lord Henley: My Lords, I never said that the Budget statement had legislative authority. I said that following the Budget certain resolutions have to be passed in another place for the increases in tax which come into effect immediately. We cited the example of spirits and such items. However, if my noble friend had been listening to me he would have heard that there are many other matters relating to taxation which are not covered by the Provisional Collection of Taxes Act resolutions and do not need to be. I cited capital taxes as one example and also the case in this year's Budget of the proposal to charge capital gains tax on non-resident trusts.
Lord Mottistone: My Lords, I am afraid that I am very disappointed indeed. Although I took the trouble to tell my noble friend what I was going to say, he did not take the trouble to answer what I said at all. I am also unhappy that he was not given examples of Bills that are not finance Bills which have been made retrospective in this way. He only quoted examples that were finance Bill matters.
My noble friend Lord Boyd-Carpenter pressed the Minister on this point and he has still not come up with an example—perhaps because there is none. That may be why my noble friend is unable to give us any example of a retrospective non-finance Bill. Perhaps this is a new ploy that is being tried. I am sorry that noble Lords opposite will not support us if we go any further because it is a matter of importance which transcends the case in question. I think that we are being fiddled and I do not believe that my noble friend gave us a good example which matched the case we have here.
I hope that we shall receive an answer. I shall seek to obtain one as I do not believe it is entirely right that your Lordships' House should not be given a clear-cut example which matches the circumstances which we are tackling. It might have helped—but my noble friend said nothing about it—if he had suggested how businesses could be aided if the Bill goes through as it is at the moment and my amendment is not included in it. For example, he could have given an undertaking —which he more or less gave at an earlier stage of the Bill—to ease industry's concern over the retrospection by giving an assurance that in complying with their obligations under the Act and the 1975 Act, employers themselves need keep no mileage records other than a written statement from each relevant employee of his business mileage and that reliance on good faith in such statements would not result in penalties or imposts on the employer.
Employers fear that this little bit of legislation is the thin end of the wedge to make them responsible for collecting records from their employees. That often happens in other respects, but the Bill itself does not say that. I am surprised that my noble friend had nothing to say on the point. Perhaps he has something to say now.
Lord Henley: My Lords, I am not quite sure that I follow my noble friend. Obviously employers will have to pay the money; it is a charge on employers. We are charging national insurance contributions on employers providing a benefit for their employees.
Lord Mottistone: My Lords, the point is that at the moment employers do not have to keep any close records. The employees are expected to keep a close record of when they use their cars for business purposes. That is what I do and what most noble Lords do in order to claim on the House. However, there is no close record of such movements held by companies; they do not have to do so. What companies are fearful of is that they will somehow be made responsible for telling the Government the detail of the business claims that are made by their employees.
Lord Henley: My Lords, we have never said that detailed records need to be kept. Obviously the employer will have to seek information from the employee, because the employee will have details about his business mileage during the year. However, it is not detailed information that the employer will need. The nature of the business itself will sometimes give an indication as to whether they will come in the band below 2,500 or above 18,000. It will be up to the employer to get that information from the employee and obviously, before using the information to calculate his liability, the employer will have to satisfy himself that it is reasonable and consistent with the nature: of his employee's responsibility. That is common sense, and is no different from the kind of safeguard which a responsible employer would take on other matters.
Lord Mottistone: My Lords, yes, indeed that is true but one wants to be sure that, having said all that— and of course good employers do that automatically —somehow this rather nasty little Bill will not mean that some official somewhere will call upon the employers to keep more detailed records than they find it necessary in order to perform the functions about which my noble friend has just been talking. If I could be reassured on that I should be a great deal happier.
Lord Henley: My Lords, obviously I would hope that officials would not behave in that manner. I have said before that we shall be holding consultations and I repeat that assurance. We shall be publishing detailed guidance later this year following our consultations with employers. We hope that the right solution can be found so that employers, and obviously our own inspectors, will be satisfied.
Lord Mottistone: My Lords, with that tiny reassurance, and the fact that noble Lords opposite are not prepared to go steaming into the Lobbies with me on this amendment, I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Lord Mottistone Lord Mottistone moved Amendment No. 2:
Page 3, line 25 at end insert:
("(d) so far as the figure of 18,000 miles wherever mentioned in this Act or in the Income and Corporation Taxes Act 1988 is relevant to the application of this Act but for no other purpose, there shall be substituted for that figure the figure of 10,000 miles").
The noble Lord said: My Lords, this amendment has been specially phrased to take care of the points made by my noble friend Lord Henley in his
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comments made at col. 497 during our Committee stage on my Amendment No. 1. What this amendment seeks to do is to put into the Bill and into the Income and Corporation Taxes Act of 1988 the more accurate figure in equivalent places, of 10,000 miles.
The amendment deals with two concerns. The first is that there is too little distinction made between the business car and the "perk" car. The business car is supplied because it is a real tool of the trade. As the Bill is currently framed, a company car is only regarded as a business car in these terms if its annual business mileage exceeds 18,000 miles. This is not only arbitrary; it is unfair. Many company cars are provided to salesmen and sales support staff, who simply cannot deal with customers without such vehicles. A salesman based in, say, East Anglia, will easily cover 18,000 miles in contacting his quota of customers but his colleague in south London could drive all day, every working day, at metropolitan speeds and never clock up such a mileage, yet his need to keep in touch with customers is just as great.
Similarly, a site manager on a major construction project may not clock up 18,000 miles but without his car he would have no means of moving around and doing his job. All figures in this area will be arbitrary, but 10,000 miles at least has the merit of reflecting the average mileage of a business car user, as indicated in the Ministry of Transport's survey a decade or so ago in 1975–76.
The second concern is cost. Savings here would be less than if retrospection were to be avoided, and they will not be in excess of £100 million. That is what I am advised, and that would be a very welcome relief to those businesses facing this charge at a time when funds will be tight and cost competitiveness will be at a premium across the emerging single market.
What I said in relation to the pressure on companies at the moment in relation to the earlier amendment applies very much again to this one. My noble friend did not take up that point on the earlier amendment. He did not say that he realised—perhaps he does not realise—that businesses at this moment are in a period of recession when everything matters and every little penny counts. He did not take up that point and as I agreed not to press the earlier amendment I think the very least he can do to show that he understands the problem of business is to accept this one. I beg to move.
8.45 p.m.
Lord Boyd-Carpenter: My Lords, I hope very much that my noble friend the Minister will take the good advice he has just been given by my noble friend Lord Mottistone. The point is of course that 18,000 miles is a very high figure in respect of certain people operating company cars: that is to say, people operating them in metropolitan or built-up areas. As my noble friend said, people in East Anglia, or in country areas, will probably very easily come up to 18,000, but a car is just as necessary for many people in business, many people representing companies and many people securing sales in urban areas, where you would find it extremely difficult even if you drove like mad all day, to build up 10,000 miles. Therefore it is

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not only a severe imposition but also an extremely unfair one and one which, if he will allow me to say so, reflects very little credit on the Government.
Baroness Turner of Camden: My Lords, this of course follows on from what we said when this matter was debated in Committee. Again it is the issue of the sales representative who works in London, who clearly would have great difficulty in clocking up 18,000 miles a year—in fact it would be absolutely impossible—but who still needs his car for business purposes. Even if he uses it all the time so that he has no time left for private use of the car, he would still find it very difficult to reach the figure of 18,000.
Then of course there are people who are employed as district nurses in urban areas or, as my own stepdaughter is, employed as a health visitor in an urban area, who find it very difficult to achieve a total of 18,000 miles a year. It seems to me that what has been suggested is extremely sensible. I understand that when we discussed this in Committee it was felt that the amendment then moved was in some way flawed. I am sure that the noble Lord, Lord Mottistone, will have taken advice on that, and this time round I hope that the Minister may find it possible to accept the amendment.
Lord Boardman: My Lords, I have only one brief point to add in relation to this amendment, and that is, if you calculate 18,000 miles on a daily working day basis, it means something like 80 or 90 miles a day, if my arithmetic is right. To contemplate doing that in an industrial, built-up area, such as in the suburbs of London or in central London, would show how impossible it would be for anyone doing that mileage at the same time to have any time to use the car for recreational or other purposes. I support the amendment.
Lord Banks: My Lords, I also support this amendment. When we discussed this matter on Second Reading I said that I felt the figure of 18,000 was too high. The noble Lord, Lord Mottistone, has explained that the figure of 10,000 was found—a few years ago certainly—to be the average at that time. No doubt it still is, and therefore it seems a much more appropriate figure to have than 18,000. I support the amendment.
Lord Henley: My Lords, my noble friend Lord Mottistone has explained why in his view the threshold for treating cars as tools of the trade is too high and should be reduced. He has supported his arguments by citing 10,000 as being the average business use. I have to say, and would go on to argue this, that I do not think the average business use is necessarily the relevant figure we should be looking at on this occasion. First, my noble friend will remember that at Committee stage his amendment on these lines was defective. He comes forward on this occasion with an amendment which, I am advised, so far as we have been able to make out in the brief time that we have had it, is not defective. However, it would have the effect of disaligning the national insurance and income tax rules in this case. Obviously, the 18,000 would still
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exist for income tax charges on the employee. I do not think that my noble friend would agree that disaligning the two rules would be attractive to employers at this stage.
Lord Boyd-Carpenter; My Lords, if that is a worry, then the Finance Bill is going through another place at the moment. Would it not be simple for the Government to introduce an amendment into that Bill to apply the income tax?
Lord Henley: My Lords, my noble friend makes a point. I was just saying that on this Bill, we would not wish to disalign national insurance contributions. I would go on to say why we think that the figure of 18,000 is the right one, and therefore that it would be wrong for this Bill to take national insurance levels down to 10,000 miles when the income tax figure was 18,000.
The second and most important reason why the figure of 10,000 average business miles is irrelevant is that the charge on company cars will arise because of their availability for private use. The employer will be paying a contribution in respect of the benefits enjoyed by the employee just as if he had paid him in cash rather than making a car available. We know from the 1988–90 national travel survey statistics that on average the level of private motoring is not affected all that much by the extent of business use. But the discount for high business mileage in the income tax scale charge system was introduced to recognise the argument that where business mileage is exceptionally heavy there may be—and I stress may be—some effect on the availability of the car for private purposes.
The noble Baroness, Lady Turner, said that people might be so busy driving business miles that they did not have time to do any private miles. If there is no private use, as we have heard again and again, obviously there would be no national insurance liability because the car would be solely available for business use. The point simply does not arise.
The 18,000 business mile threshold is intended to reflect, therefore, this exceptional category of cars. The threshold proposed by my noble friend is far too low. It would apply to nearly half of all company cars and would not simply deal with the exceptional case. On the contrary, it would move the break right into the middle ground—close to the average business mileage, as my noble friend said.
The system would become anomalous with a big reduction in employers' contributions for cars whose business mileage is just above the average, and no reduction for those just below. The level of the threshold is, of course, a matter for judgment, but I hope that the House will accept that we have it about right. Lowering it to 10,000 would mean that the essential link between the employer's contribution liability and the value of the private benefit enjoyed by the employee would be lost.
My noble friend Lord Boyd-Carpenter and others argued that it was unfair to employers in urban areas. I accept that in some parts of the country employees are less likely to cover 18,000 business miles a year even though they are in their cars for as long as, or for a longer time than, employees operating in rural areas.

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Perhaps the noble Lord and the noble Baroness would like to have different rates for urban and rural areas, but there are a number of other relatively minor points of that kind which arise from the scale charge system. We have to recognise that the scale charge system is a simple method of assessing the value of benefits and for seeing that its application is fair in the vast majority of cases; and that it avoids the necessity for employers to maintain the comprehensive mileage record s that my noble friend Lord Mottistone would have feared m every case.
The argument advanced for a much lower rate because of the problems of people in urban areas could not justify a reduction in the 18,000 mile threshold for all company car users irrespective of where they were. It would be extremely complicated for employers, employees and the department to reflect within the system the different travel conditions both in urban and rural areas. I believe that the case for using the income tax scale charge structure and the supporting provisions of the Bill as drafted are strong. I hope therefore that my noble friend will feel able to withdraw his amendment.
Lord Mottistone: My Lords, I am grateful to my noble friend for his full explanation as to why he thinks the 18,000 figure is more correct. There may be scope for study to see if we agree with it—it is quite impossible for me to disagree with it at this moment—and see whether the CBI, who advise me on these matters, consider my noble friend's reply useful in working out how to secure an alteration in the future.
I was sorry that my noble friend had nothing to say about the plight of industry. It could be that the Department of Social Security, and perhaps the Treasury, deliberately hide under the carpet their understanding—if they have one—that all their moneys come from successful industry. Perhaps my noble friend will note that point.
It is not sensible for these major government departments to ignore the fact that companies are under strain at this moment and need to be helped. If they want to bring in legislation of the sort we are dealing with now, they would have done better to put it off for a year rather than try to do it at this moment. It is sad that the total picture of how the country is kept together by successful business is ignored by these juggernaut departments. They have plans, and they do not stop to think whether those plans will be a disaster this year. It appears from what my noble friend failed to say that they do not stop to think about that. However, I shall try to use the information in the future with regard to this amendment. At this stage I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 [National health service allocation]:
Lord Banks Lord Banks moved Amendment No. 3:
Leave out Clause 4.
The noble Lord said: My Lords, in the Second Reading debate I made it clear that we supported the principle behind the Bill. However, I raised the position of district nurses or community nurses under the Bill. I suggested that they should either no longer
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have contracts which oblige them to have company cars, or else they should be exempt from car tax and employees' national insurance contributions.
In his reply on 7th June the noble Lord, Lord Henley, said at col. 861:
"The noble Lord, Lord Banks, made a point in regard to district nurses. I confirm that there is no tax or national insurance contribution if there is no private usage."
I felt on reflection that this reply was not entirely satisfactory. It seemed to require further probing. I am advised that it is not possible to amend the Bill to secure this point, so I decided to raise it further by seeking to remove Clause 4, the part of the Bill that deals with the health service.
After all, there is private usage in this case. As I mentioned on Second Reading, the district or community nurses pay a contribution to the health authority, their employers, which is held to be a payment in respect of private usage. Would the district or community nurses be able to claim that there had been no private usage in these circumstances? As I understand it they cannot do so at the moment.
The amount that the nurses pay for private use is deducted from the "cash equivalent' which their car is judged to have for the purposes of income tax. The effect is that any tax nurses pay on their car is therefore purely for the business use of the vehicle. Having already made a payment in respect of any private use of the vehicle, community nurses are being taxed to do their jobs.
As if tax on their cars were not enough, many community nurses lose out on petrol costs. Under Whitley Council regulations, nurses are reimbursed petrol expenditure according to manufacturers' published urban cycle miles per gallon rates. However, because the nature of their work demands it, they have continued stops and starts as they carry out the various house calls that they have to make. As a result, most community nurses manage fewer miles per gallon than manufacturers claim. As a result, nurses end up out of pocket. Community nurses already pay for the private use of their cars. Therefore any tax that they pay on their vehicles is solely for the business use. The tax is a personal surcharge on the head of every nurse delivering care in the community. If they were excluded from car tax and employers' national insurance contributions, that surcharge would be lifted. That would appear to be in line with the Prime Minister's stated view while he was Chief Secretary to the Treasury when he said in another place on 9th May 1989:
"there will always be room for some carefully considered and limited tax incentives to meet particular needs".
9 p.m.
Lord Boyd-Carpenter: My Lords, the noble Lord, Lord Banks, has raised an interesting point. The proposal to drop Clause 4 gives one a chance of illustrating the extent to which the Bill is simply an instrument of taxation. As I said earlier, it is misnamed the "Social Security (Contributions) Bill" because here we have a clause under which part of the takings—I use that word deliberately—to be raised will go to the National Health Service. I have no complaints about that. The National Health Service

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requires a great deal of financial support, but it is a rather revealing aspect of the Bill that it is thought necessary to provide in it that some share of the takings shall be diverted from social security to the National Health Service.
As this is the final amendment, perhaps my noble friend will also answer a question that has intrigued me for some time. Perhaps he can tell your Lordships whether the provisions of the Bill apply to ministerial cars.
Lord Henley: My Lords, if my noble friend had taken the trouble to read the Second Reading debate in another place, he would know that that question was put by a Member of another place to my right honourable friend Mr. Scott. My right honourable friend answered it by saying that it did not apply to ministerial cars as they are not provided to individual Ministers but come from a pool, which is somewhat different.
Before I deal with the substance of the amendment, perhaps I may refer to some of the points made by my noble friend Lord Mottistone when he wound up the debate on the previous amendment. I did not answer then because I felt that it was wrong for me to intervene again at Report stage. My noble friend said yet again that I and my department were not aware of the plight of business. I stress that the measure is part of the Budget measures. The overall package has been a good package for business and has brought about quite a dramatic reduction in the burdens on business. I quoted some concessions amounting to £750 million this year, and well over £1 billion next year, which more than takes up the £400 million net that the Bill will take from employers.
Perhaps I may now turn to the amendment itself. I must confess to being completely puzzled as to why the noble Lord, Lord Banks, has tabled an amendment to remove the clause which simply allows a certain percentage of the takings from the new class 1 A contributions to go to the National Health Service. My noble friend Lord Boyd-Carpenter suggested that this was an indication that this was yet another taxation Bill in that the money was going not to the fund but to the National Health Service. My noble friend, who is an old hand, will remember that that has always been the case with the National Insurance Fund. From the earliest days in 1948 through to the days when my noble friend was Minister for Pensions, a certain percentage of the National Insurance Fund has always gone to the health service. That has always been the case. As my noble friend will know from Question Time this afternoon, although the use of the health service is not dependent upon contributions —it is dependent purely on residence—it has always been the case that a certain percentage of the fund goes to the health service. This clause merely mirrors what happens as regards the rest of the fund. There is nothing new about that. I should have thought that my noble friend would be able to remember his days as Minister for Pensions.
Lord Boyd-Carpenter: My Lords, I am grateful to my noble friend for his kindly reminder of a matter of
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which I was perfectly well aware, as he knows. However, I was making the point, which he has not answered, that the fact that some of the proceeds of the Bill will be diverted to the National Health Service indicates, first, that the Bill is misnamed because the contributions go beyond social security, and, secondly, the nakedness of the argument that it is other than taxation, and retrospective taxation at that.
Lord Henley: My Lords, if I accepted what my noble friend said, that would be true of all social security Bills that raised or changed charges on national insurance contributions, including those that were piloted by my noble friend through another place many years ago.
Perhaps I may now address the points raised by the noble Lord, Lord Banks, particularly in relation to district nurses. I reiterate the assurance that I gave both on Second Reading and earlier this evening that there are no tax or national insurance liabilities if there is no private usage. The noble Lord mentioned the case of district nurses who often pay a certain amount for private use. Any tax or national insurance liability will be reduced pound for pound for each pound that they pay for their private usage. So if they pay for the full value of their private usage, there will be no liability whatever. However, if they are paying less than that, their liability will be reduced by that amount only. I hope that that assurance satisfies the noble Lord.
Lord Banks: My Lords, I am grateful to the noble Lord, Lord Henley, for the attention that he has given to the points that I raised. I still believe that the community or district nurses are in an unfortunate position. It is true that, over and above the amount that is deducted as the figure which is set out in the regulations, they pay tax on the amount that represents money that they have spent because of the work done.
I am not happy with that answer. The Minister said that he was puzzled as to why I decided to move this amendment. I explained at the beginning of my remarks that I was moving it because this was the only way to raise the point again at this stage of the Bill. As I mentioned earlier, I am not altogether happy with what he said. I do not consider that he has answered the point that I raised. However I certainly do not want to delay the passage of the Bill any further. Therefore I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

Child Benefit and Social Security (Fixing and Adjustment of Rates) Amendment No. 2 Regulations 1991
9.9 p.m.
Lord Henley Lord Henley rose to move, That the draft order laid before the House on 7th June be approved [21st Report from the Joint Committee].
The. noble Lord said: My Lords, I beg to move that the draft Child Benefit and Social Security (Fixing and Adjustment of Rates) Amendment No. 2 Regulations 1991 be approved.
In his Budget Statement on 19th March, my right honourable friend the Chancellor of the Exchequer announced that from 7th October child benefit is to rise by £1 a week for the eldest eligible child (that is from £8.25 to £9.25), with an increase to £7.50 for all other children in the family. These draft regulations lay the foundations for those increases, and are the first part of a process which will ensure that every family in the country will gain from the extra money. That will include those on income support, family credit and other income-related benefits and also those in receipt of national insurance benefits with child dependency increases. This will bring our total expenditure on child benefit this year to £5.3 billion.
These increases are on top of the extra £1 a week that each family has been receiving in child benefit since April and, together with our undertaking to index- ink from next April, confirm the Government's commitment to child benefit and underline our pledge that child benefit is, and will remain, a strong element in our policies for family support.
It rimy help to put these proposed increases in context if I remind the House that there are two strands to the Government's support for children through social security. Child benefit goes to all families with children as a recognition of the fact that at all levels of income they face greater expenditure than other families. For those families who need it, this universal provision is supplemented by extra help through income-related benefits.
This recognition of the needs of less well-off families was carried through into our 1988 social security reforms. Against a background of rapidly rising earnings and reductions in income tax and national insurance contributions which the majority of families were enjoying, we recognised that there were some who, through no fault of their own, were not sharing in the country's increasing prosperity. The Government decided that extra help for the least well-off families—those on income-related benefits —should be one of their priorities. Therefore, instead of increasing child benefit, we made substantial extra help available to these families—help over and above the annual increases to maintain the value of their benefits. From October the value of that real terms extra help since 1987–88 will be some £½ billion in a full year. These families are now better off than they would have been had we simply uprated child benefit instead. October's increases will mean that in a full year our total social security spending on families with children will be greater than if we had simply increased child benefit each year in line with inflation.
But our concern for families has not been restricted to families with children. We have also recognised that there are other types of families with needs—families with perhaps an elderly member or with someone who is sick or disabled—and we have taken their needs into account in making our decisions about the best use for the available resources. The House will recall that in
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1989, for example, we made an extra £200 million available for older and disabled pensioners and an extra £80 million for 65 to 74 year-olds from April.
This year, after careful consideration, we decided that the time was right to look at families with children generally. Attaching the extra payment to the eldest eligible child in the family, as we have done since April, means that we have been able to give a worthwhile acknowledgement of the additional costs all families incur in having children. It has the advantage too of being transferable to the next child once the original qualifying child is too old for child benefit, so that families will continue to have this additional recognition of the extra expenditure they face so long as they have a child who qualifies for child benefit.
The October increases provided for in these draft regulations build on the April improvements, but we have decided that in fairness the least well off families should benefit as well from these out of course increases, irrespective of any other benefits which might be in payment to them. As I have indicated, we shall therefore be bringing forward regulations to carry the increases through into the benefits system. These further regulations, which will be subject to the negative resolution procedure, are consequential on the regulations we are discussing this evening and can therefore be made and laid only after the present regulations have been approved and made.
The Government's record in providing help for families with children is one of which we can all be proud. I know the concern that has been expressed on previous occasions but I hope that the increases I have outlined amply demonstrate our commitment to child benefit. I commend the regulations to the House.
Moved, That the draft order laid before the House on 7th June be approved [21st Report front the Joint Committee].—(Lord Henley.)
9.15 p.m.
Lord Graham of Edmonton: My Lords, in her unavoidable absence, my noble friend Lady Turner of Camden has asked me to say that from these Benches we support the increases, modest though they are. I have listened to what the Minister said. He acknowledges, as I do, that they are modest. However, he has explained that they form part of the Government's overall policy in respect of child support. I am not in a position—as my colleague might have been—to take issue with the Minister. I know from experience that in general families who benefit will be well pleased. However, the Minister will also be aware that many families who live in wretched circumstances could do with a great deal more money than they will receive. Some families will receive an increase in child benefit of £1 a week in the same week as many well-heeled gentlemen and their families will receive thousands of pounds extra a week by virtue of the position that they hold in previously publicly owned companies. It is that grotesque disparity between the two ends of the spectrum which make my colleagues on this side of the House ask that more beneficial treatment be given to those poorer families.

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The Minister has taken care to point out the context in which the increase has been given. On this side of the House, we welcome what he said.
Lord Henley: My Lords, I appreciate the noble Lord's welcome of these regulations. I am rather pleased that his noble friend was unable to be present to give me a slightly tougher grilling on them. I commend the regulations to the House.
On Question, Motion agreed to.

Farm Diversification Grant (Variation) (No. 2) Scheme 1991
9.16 p.m.
The Earl of Strathmore and Kinghorne The Earl of Strathmore and Kinghorne rose to move, That the scheme laid before the House on 10th June be approved [22nd Report from the Joint Committee].
The noble Earl said: My Lords, unless any noble Lords object, I intend to speak to all four instruments in my name on the Order Paper and will move the remaining three Motions formally at the end of the debate.
Your Lordships may recall that in July 1990, the farm and conservation grant scheme (or F&CGS) was amended in response to a package of structural measures which had been agreed by the European Council of Ministers in December 1989. This required us to make a number of minor adjustments to the scheme in order to reflect changes in the EC rules. One feature of the "structures package" not implemented last summer, was the addition of farm diversification works to the categories of investment eligible for aid under the terms of EC Regulation 797/85. To take advantage of EC aid, the farm diversification grant scheme (or FDGS) has to be brought into line with EC requirements. The Government decided that the best way to achieve that was to combine the FDGS with the part of the F&CGS which already complied with EC requirements. In order to avoid a major upheaval of grant arrangements so early in the life of the schemes, it was agreed to defer this change until the summer of 1991.
The principal aim of the instruments before the House today is therefore to merge the part EC funded improvement plan side of the F&CGS with the FDGS. We have also taken the opportunity to make other minor changes to grant arrangements including an amendment to the farm woodland scheme.
Before I explain the functions of each instrument I should like to describe briefly the current capital grant arrangements so that the changes may be seen in perspective. The F&CGS, which was introduced in February 1989, consists of two parts: an improvement plan side which attracts 25 per cent. reimbursement from Brussels; and a nationally funded non-plan side for ad hoc investments. The FDGS was introduced in January 1988 and, as I have said, is nationally funded.
The instruments before the House today will implement the following changes. The Farm and Conservation Grant Regulations 1991 extend the improvement plan side of the F&CGS to include
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grants currently covered by the FDGS. The maximum amount of investment on which grant can be paid over any six year period will be increased from£74,000 to £85,000. Diversification work may account for up to £40,000 of this limit. The recent extension of the less-favoured areas is implemented, enabling farmers in newly designated areas to claim some grants at higher rates and obtain some diversification grants which are not available elsewhere. The rule which currently prevents pig farmers with more than 800 pig places from obtaining grant is dropped. Finally, the regulations allow producers of beneficial organisms to qualify for glasshouse grants. Perhaps I may explain this final point. Beneficial organisms are insects reared for the purposes of biological pest control and I am pleased that this worthy initiative will now qualify for help.
The second instrument before the House today is the Farm and Conservation Grant (Variation) Scheme 1991. I am delighted to say that this instrument abolishes the prior notification rule which currently applies to grants for farm waste and traditional buildings under the non-plan side of the F&CGS. This means that farmers who in their eagerness to address farm waste problems bought equipment or started work before their notifications had been acknowledged, thus disqualifying themselves from obtaining grant, will be able to submit fresh claims for consideration without the application of this rule. We very much hope that they will. The instrument also implements the LFA extension, the raised investment ceilings and incorporates beneficial organisms as described for the regulations.
The third instrument, the Farm Diversification Grant (Variation) (No. 2) Scheme 1991, closes the FDGS to new applications and implements the LFA extension. This may benefit current planholders in newly designated areas who wish to vary their plans to include items aidable in LFAs only.
Finally, the Farm Woodland (Variation) Scheme 1991 simply implements the LFA extension. This change will not affect current participants in the farm woodland scheme. Farmers in newly designated areas who enter the scheme in the future will be eligible to receive payments at the lower LFA rates for improved land but will be able to apply for unimproved land for which grant is payable in LFAs only.
The four instruments that I have described will come into force on 18th July. Your Lordships will have gathered that the overall scope of the current grant schemes will change very little as a result of the amendments. The emphasis will continue to be on targeting aid at anti-pollution measures, enhancement of the rural environment and encouraging farmers to seek alternative sources of income through diversification. I am sure that your Lordships will welcome, as I do, the simplification of creating one scheme to cover both farm and conservation and diversification grants. This should ease paperwork for farmers while increasing awareness of the opportunities offered by diversification. I commend the regulations to the House.
Moved, That the Farm Diversification Grant (Variation) (No. 2) Scheme 1991 laid before the House

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on 10th June be approved [22nd Report from the Joint Committee].—(The Earl of Strathmore and Kinghorne.)
9.23 p.m.
Lord Gallacher: My Lords, I thank the noble Earl for introducing the four regulations and speaking to them together. I shall deal with them individually because that is the basis on which I have prepared my comments. I hope that I shall deal with them in the order in which they appear on the Order Paper.
In general we welcome the regulations and are sensitive of the purpose underlying them. My comments are restricted mainly to the explanatory notes which the regulations carry. Many people such as myself rarely have the time or the inclination to plough through the details and, provided that the explanatory notes give the gist of what we are asked to agree to, that is normally sufficient for our purposes. It is therefore about the explanatory notes that I shall speak briefly this evening.
As regards the Farm Diversification Grant (Variation) (No. 2) Scheme 1991, my query is about the bringing forward of the closing date for applications from 30th November 1994 to 17th July 1991. No doubt the noble Earl will tell me that that is to make the whole scheme uniform. Nevertheless, in view of the change of date, will there be any disadvantage to certain applicants?
We welcome also the extension in this order of areas which qualify for grant and the addition of a grant for the ancillary business of the provision of horses and ponies for hire. We know that that is a growth industry, much to the chagrin of motorists. Nevertheless, it represents a useful form of diversification for farmers and the fact that it now qualifies for grant will no doubt please them.
The only query I have is on the vexed question of planning applications for change of use of, for example, an existing farm building to stabling or whatever in order that advantage can be taken of this extension of grant. I know that that is not the responsibility of the Ministry of Agriculture and that in a number of instances local authorities have been somewhat wary of sanctioning changes of use. I wonder whether the Department of the Environment knows of the change and will encourage local authorities to be as sympathetic as possible when applications for change of use are made.
Turning to the second measure, again we welcome the grant which the noble Earl described for producing beneficial organisms for pest control. I thank him, too, for the explanation he gave as to what those beneficial organisms can be. I am sure that horticulturists will be pleased that they will have the opportunity of applying for the grant if they have the capacity so to do.
The extension of land areas included in the measure is also welcome as is the easement in respect of prior notification of certain works. The increase in maxim um grants is also, I am sure, useful at this time and will be accepted with considerable pleasure by farmers.
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To restrict the expenditure on dairy cows, which appears in paragraph (b), to the applicants' quota, seems to me to be an unavoidable limitation. However, since it now has an official place in a measure, we are entitled to ask whether that means that dairy quotas are here to stay. I should be grateful if the Minister would give us his view as to whether or not that is likely to be the position.
Also, there is reference to a change of term as regards qualification; namely, the term "ancillary farmer business" is now to be known as a qualifying business. I wonder whether that is purely terminological or whether it is of greater significance. Perhaps the noble Earl can tell us which it is.
As regards the third measure—the big brother of the four —looking at the very extensive explanatory notes which are attached to the measure—and I shall refer to them briefly by paragraph numbers—it is clear from the first paragraph that European Community regulations and directives now control the whole of our agricultural destiny. That is a fact which needs to be emphasised from time to time because speeches are still made as though, in agricultural terms, we are in charge of our own destinies. That is not so. I am one of those who would transfer the Ministry of Agriculture to Brussels and maintain a branch office in London. In terms of efficiency and economy, that would be a very wise decision to make.
We welcome especially the high rates of diversification grant promised to young farmers and partnerships including young farmers. That is a forward-looking move at this time, particularly when we understand that Commissioner MacSharry is thinking in terms of early pensions for farmers of the age of 55 and above.
The reference in paragraph 3 to grant aid is somewhat complex and I regard it, having read it most carefully, as a statement of intent. If it be so, I hope that it will be sympathetically interpreted. For example, the rather ominous statement that in order to qualify the plan must bring about a lasting improvement of that situation is very noble, very worthwhile and no doubt justified on the grounds of cost. Nevertheless, it applies a standard of assessment which could, if adversely interpreted, be of some disadvantage to certain applicants in certain circumstances.
Paragraphs 4(a) to (j) of the regulations are specific to an almost frightening degree in my experience. Having read them carefully, I ask myself whether the small farmer will be able to cope unaided with all those qualifications if he wished to make application. We are in danger of delivering the small farmer into the hands of professional advisers. If that be so it means that the advice he receives will have to be paid for. The value of his funding will be diminished to the extent that he incurs professional charges in order to take advantage of the new scheme. That prompts the thought that it may be that the Agricultural Training Board, which performs useful work across the whole spectrum, may consider a distance learning course for farmers so that they, like me, may more easily understand the regulations that are now stemming from Brussels.

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The final paragraph in the order again includes an extension of eligible land areas, which we welcome. The improved maximum limits of expenditure under the Farm and Conservation Grant Regulations are also welcome. A query again arises whether the earlier closing date of 17th July for the receipt of applications is not disadvantageous to certain applicants.
Turning finally to the fourth order, the Farm Woodland (Variation) Scheme, we give a welcome to the extension of areas of land to be treated as disadvantaged or severely disadvantaged. That said, should the noble Earl choose to reply to my remarks this evening, perhaps he will consider à propos farm woodlands in general—I emphasise farm woodlands —that there might be merit at some time in your Lordships' House being given the opportunity for a short debate on the future of farm woodland schemes and possible changes to build on the results achieved by farm woodland schemes to date.
All that said, we support the four orders.
9.30 p.m.
The Earl of Strathmore and Kinghorne: My Lords, I am grateful to the noble Lord, Lord Gallacher, for what he has said. He asked me a number of questions, to which I shall attempt a reply. Should I not give the noble Lord satisfactory answers I shall certainly endeavour to write to him.
The noble Lord began under the Farm Diversification Grant (Variation) (No. 2) Scheme asking whether the new closing date would disadvantage anyone. The answer is no, with one minor exception; that is. grants for letting. All the grant available under the FDGS will he available under the Farm and Conservation Grant Regulations. The latter scheme opens as the FDGS closes. Therefore continuity is ensured. Farmers already holding approved plans under the FDGS are unaffected.
The noble Lord asked also whether the instrument would affect planning prospects for equine hire. I happen to know that that is of some interest to a number of noble Lords in this House. The only change with regard to grant in connection with horses for hire is the extension of the less favoured areas. The grant is only available to farmers in less favoured areas. Planning issues are not affected by that instrument.
I move on to the next scheme. The noble Lord asked whether dairy quotas are here to stay. The existing quota system ends on 31st March 1992. It is overwhelmingly likely that the EC Council will extend it for a further period.
The next point raised by the noble Lord related to ancillary farm business, as opposed to qualifying farm business, and the differences between those two terms. Ancillary business was changed to qualifying business because of the introduction of diversification grants into the Farm and Conservation Grant Regulations. Ancillary business covers the range of diversification activities which attract grant. Qualifying business is a wider definition which includes non-aidable activities. That definition is used in the eligibility test and its wider scope enables more farmers to meet the
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eligibility requirements of the regulations. That is mirrored for the scheme but only applies to farmers who wish to obtain grant on traditional farm buildings.
The noble Lord, Lord Gallacher, brought up the subject of whether grants would be sympathetically administered. If a farmer qualifies he will be paid a grant; if he does not, he will not.
The noble Lord referred to rules A to J, which are complicated. He asked whether the Agricultural Training Board would be able to give guidance about the regulations. I assume that the noble Lord is referring to the restrictions of payment of grant in Regulation 6. Most of these rules are EC requirements. They are explained in the explanatory leaflets about the scheme which were issued to farmers. If farmers do not understand them they can ask for help from their local Ministry office. The ATB has no role in this particular issue.
The noble Lord also raised a point on planning. The DoE is familiar with diversification grants. There is no change here as far as concerns planning. The noble Lord asked about pensions. Again, there is no change to grants to young farmers. Young farmers already get higher grants under the existing schemes. Finally, the noble Lord asked about a debate in your Lordships' House on the farm woodland scheme. I can only say—I think he will expect me to say—that this can only be arranged through the usual channels.
I am sure noble Lords will agree that the instruments before the House today represent a welcome rationalisation of capital grant arrangements. The creation of a single scheme to cover both farm and conservation and diversification grants will present to the farmer a simpler method of obtaining aid together with the opportunity of including both types of work under a single improvement plan. This move will also ease administration of these grants and, of course, will enable us to claim reimbursement from Brussels on future plans which include diversification work. I hope that I have answered all the noble Lord's points. I commend these instruments to the House.
On Question, Motion agreed to.

Farm and Conservation Grant (Variation) Scheme 1991
9.36 p.m.
The Earl of Strathmore and Kinghorne: My Lords, I beg to move.
Moved, That the scheme laid before the House on 10th June be approved. [22nd Report from the Joint Committee].—(The Earl of Strathmore and Kinghorne.)
On Question, Motion agreed to.

Farm and Conservation Grant Regulations 1991
The. Earl of Strathmore and Kinghorne: My Lords, I beg to move.
Moved, That the draft regulations laid before the House on 10th June be approved. [22nd Report from the Joint Committee].—(The Earl of Strathmore and Kinghorne.)
On Question, Motion agreed to.

Farm Woodland (Variation) Scheme 1991
TN Earl of Strathmore and Kinghorne: My Lords, I beg to move.
Moved, That the draft scheme laid before the House on 12th June be approved. [22nd Report from the Joint Committee].—(The Earl of Strathmore and Kinghorne.)
On Question, Motion agreed to.

Ms. Champers Tamgh
9.38 p.m.
Lord Hylton Lord Hylton rose to ask Her Majesty's Government whether they will reconsider their intention to deport Ms. Champers Tamgh, who has been in England since 1985, i n view of circumstances calling for compassion.
The noble Lord said: My Lords, one of the prime functions of Parliament is the redress of grievances. Tonight I wish to explain the grievances and the grounds for compassion surrounding the case of one domes tic worker in London who came originally from Nepal. I shall leave it for the noble Baroness, Lady Ewart-Biggs, and other speakers if they so wish, to explore the urgent need for protection and for prevention of abuses among overseas domestic workers generally following the not entirely satisfactory Government reply to the short debate that I initiated on 28th November 1990.
The case of Ms. Champers Tamgh was brought to my attention by her solicitor in the North Kensington Law Centre in early March. Since then I have corresponded at some length with the honourable gentle man M r. Peter Lloyd, the Home Office Minister responsible for immigration. In spite of that, Ms. Tamgh still faces the possibility of deportation.
Her history is as follows. She came from Nepal but worked, married and had children in New Delhi. In 1985 she was recruited to work in London for an Indian couple, Mr. and Mrs. Tanden, who lived in Highgate. She was, and still is, illiterate and in 1985 could only speak Nepali and Hindi, though in the past few years she has acquired a reasonable command of English. She travelled from Delhi to London by air in the company of Mr. Ashuk Kapoor, a friend of her employer.
Ms. Tamgh had no knowledge whatever of British immigration law. As far as I know she was not seen by British officials in India and on arrival in London was asked no questions by immigration officers. It is probable that her passport was stamped as a visitor to
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this country. She was not to know that, since her passport had been retained by Mr. Tanden and she only received it back again several years later.
Ms. Tamgh never had a written contract or conditions of employment either with the original employer or with two subsequent ones. With Mr. Tanden she received £84 a month, paid in Indian rupees, plus board and lodging. Her food was mainly rice and dhal, never eggs, butter, meat or fish—and seldom fruit. She was required to work from 6 a.m. to midnight, seven days a week and was paid about 17p per hour. She suffered constant personal abuse and threats and her private letters were regularly opened. Her employers told her on arrival never to leave the house and garden, and there was a security guard physically to prevent her leaving.
In November 1986, after living under such intolerable conditions for nearly a year, Ms. Tamgh's health was failing. She was suspected of having tuberculosis. For this reason the employers saw fit to imprison her alone in a flat on the fifth floor of Water Gardens in the Edgware Road. After a month she was allowed to go to hospital, from where she succeeded in escaping from her employers.
Wages were unpaid for some four months. These were recovered through an action in 1987 in the Bloomsbury County Court—Case No. 8722081. False imprisonment and personal damages were also claimed, but the case was settled by agreement. The wages were thus eventually paid, but only a nominal sum of £17 was received in respect of the other two heads of claim.
The legal system has therefore afforded limited protection to Ms. Tamgh. It was not able to prevent her suffering financial exploitation at the hands of three separate employers, nor could it protect her against serious health damage. Tuberculosis was confirmed and an operation was done to remove certain neck glands. Goitre was also diagnosed. Following the operation, Ms. Tamgh attended the pain clinic at the Central Middlesex Hospital and was for a time fitted with a transcutaneous nerol stimulator. Her general practitioner, Dr. Jasani, suspected a neuroma formation following the first operation, but Mr. Birch, a senior orthopaedic consultant at St. Mary's Hospital, Paddington, has since advised that a second operation to remove two lymph nodes would be too dangerous.
It will be clear from the details already given that deportation to India would be highly undesirable and unsatisfactory on medical grounds. Ms. Tamgh has herself told me that in India she would not be able to afford the tablets she still has to take in London, let alone other expensive forms of treatment that may become necessary. In my view it would be quite wrong to remove her from the possibility of aftercare by the doctors and surgeons who have looked after her so well in this country.
Here I must comment on a statement contained in letters to me dated 10th May and 18th June 1991 from the Parliamentary Under-Secretary of State, Mr. Lloyd, to the effect that Ms. Tamgh was not entitled under immigration rules to free treatment by the National Health Service. That seems a remarkable

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comment in relation to someone who has worked here for a large part of the past six years. Has she not contributed to the British economy? Has she not helped to make possible the residence in London of wealthy expatriates who employ security guards as well as other domestics? In any case, I think it is most probable that Ms. Tamgh is covered by the exemption provided in paragraphs 3 and 4 of the National Health Service (Charges to Overseas Visitors) Regulations (S.I. 306 of 1989).
I turn now to Ms. Tamgh's work record since 1987. She worked for five months for an Indian family in east Acton, earning £35 per week for a 10-hour day, and later for two years for an Iraqi family in Knightsbridge earning £20 per week, where she was on call from 6.30 a.m. until 1 a.m. the following day. Both jobs were residential. The families treated her correctly, even though they exploited her financially. It is worthy of note that the rates of pay compare very badly with those for au pairs, whose hours of work are strictly limited by official regulations. I have met Ms. Tamgh's present part-time employer, who warmly recommends her as honest, conscientious and reliable. She has cared for his two children, now aged 5 and 7 years.
More important, however, than the work record and the medical history and outlook are Ms. Tamgh's family circumstances. I must emphasise that these have not so far been brought into the correspondence with the Parliamentary Under-Secretary. That is because they have only recently became known to me. Therefore, I urge him and his right honourable friend the Home Secretary to give them the most careful consideration.
The facts, as I understand them, are that Ms. Tamgh's husband in Delhi is an invalid, having been completely paralysed for the past two years. Their two children are cared for by an aunt who is herself a single parent, maintaining her own three dependent children. Thus a total of five children and two adults survive only as a result of money sent to them by Ms. Tamgh from London. Without her earnings, the whole family would soon become destitute. It is clear that her pay in London, even at rates that we believe to be unfair and unjust here, will exceed any remuneration she is likely to receive in India. The welfare and well-being of the whole family is, therefore, at stake in the event of deportation.
I ask Her Majesty's Government to do two things before reaching a final decision. First, I ask them to arrange for Ms. Tamgh to be interviewed in London, as there has been no direct contact so far in this case, only correspondence via solicitors and other intermediaries. Secondly, I believe that the British Embassy in Delhi should verify the circumstances of the family members who live in Delhi, who are in fact as I have described them. I have the aunt's address and can make it available.
Your Lordships will know that in asylum cases, many people who do not qualify as refugees under the 1951 United Nations Convention are granted "Exceptional Leave to Remain" in Britain. The Home Secretary has a discretion just as wide in immigration
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cases. Everything that I have seen and heard about this case persuades me that that discretion should be exercised in respect of Ms. Tamgh. I earnestly trust that the combination of past ill-treatment and exploitation, with the present medical condition and family circumstances, will be sufficient to persuade Her Majesty's Government to reconsider the matter, with or without the verifications which I have already suggested.
9.48 p.m.
The Earl of Longford: My Lords, someone whose name escapes me was once asked to follow the great orator Edmund Burke and could think of nothing to say except, "Ditto to Mr. Burke". I find myself in the same position and can only say "Ditto" to what was so eloquently explained by the noble Lord, Lord Hylton. I shall not detain the House very long this evening, but I shall do so for rather longer than I did last night. According to the Official Report of yesterday's proceedings, I rose to speak at 7.28 p.m. and finished my speech at 7.25 p.m.; in other words, I spoke for minus three minutes. That was quite an achievement. Perhaps it should be copied by some noble Lords.
The story which has been explained to us by the noble Lord, Lord Hylton, is a terrible one. In fact, when one thinks of all these horrors, it brings to mind difficult and wider issues. For example, who is to decide the matter? I do not envy the Minister. Here he is with the best will in the world. We have all been junior Ministers in our time, at least many of us have. He comes to the House with a brief of some sort which he must read. However, I am not quite sure whether that will satisfy him tonight when he goes to say his prayers. Indeed, perhaps he would like to feel that he had done a little better than that and that he had actually held out a ray of hope.
Therefore, let us see whether the Minister can prove that he has initiative and independence of mind—without jeopardising his career, which none of us would wish him to do—by saying that the matter will at least be considered. A flat, negative response would, frankly speaking, be disappointing.
The minimum response should be that demanded by the noble Lord, Lord Hylton. He was asking for an interview. Who will interview this lady? Why not the Minister? We cannot expect the senior Minister to find time to do so with all his other preoccupations, but I suggest that the Minister might ask leave to see the lady and to go into the case. His officials are bureaucrats. They thrive on paper. This is a case that cannot be settled on paper. Someone should see this lady. Perhaps the Minister can answer this question: who will see this lady? He should be the one to see her. In a general sense, I always support any case that the noble Lord raises. This is a terrible story. I do not say that anyone is to blame. It is a tragedy that could be put right with a little kindness and imagination, and I hope for that from the Minister.
9.50 p.m.
Baroness Ewart-Biggs: My Lords, we are all grateful to the noble Lord, Lord Hylton, who has yet again brought to the attention of the House a case which demands a response based on humanitarian grounds. He has described in great detail the tragic case of an Indian woman who was virtually imprisoned by her employers and treated with a total lack of humanity. He also gave details of the intolerable conditions in which she lived and the deterioration in her health which resulted. He has advanced a strong case for a decision to be based on humanitarian grounds.
We should also be grateful to the noble Lord for having championed the cause of this small vulnerable group of overseas domestic workers. They find themselves here for a variety of reasons but are not protected within any kind of framework. For that reason they are open to discrimination and abuse. They should be accorded greater protection under the law.
As my noble friend Lord Longford said, there is nothing we can add to the background of Ms. Tamgh, her present situation, the unspeakable conditions to which she was subjected by her employer, and the predicament in which she now finds herself. The noble Lord, Lord Hylton, has asked the Minister to consider her case carefully, and to change the present intention to deport her. We look forward to his response with hope.
The noble Lord has advanced a good case for special consideration to be given. It is probable that when the lady first arrived she had no knowledge of British immigration laws. As the noble Lord said, she left India in 1985. Due to virtual imprisonment by her employer, she would have been unaware of her employment conditions on reaching London. Nor would she have been in a position to know what her immigration status here was. I was interested to hear from the noble Lord that the honourable gentleman Mr. Lloyd had told him that Ms. Tamgh is not eligible to receive health care in this country. Will the Minister comment on that point? I do not know why she is ineligible to receive health care in this country. I did not know that there was anyone who would be ineligible for health care.
Although the precise circumstances surrounding each overseas domestic worker in this country obviously differ, I believe that the case of Ms. Tamgh reflects the unsatisfactory and uncertain legal position in which workers can find themselves. In order to help him with the background to the debate, the noble Viscount will no doubt have read the debate initiated by the noble Lord, Lord Hylton, in November last year which examined the difficulties encountered by overseas domestic workers in general. The noble Lord was not putting forward a specific case; this evening, he is. 1 am sure that the noble Viscount will have noted the total unanimity of view expressed by all those taking part that the problem surrounding overseas domestic workers was real and needed solving. He will also have noted that the reply by his noble friend Lord Reay in no way satisfied the House.
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It is to be welcomed that information leaflets are issued to employers and employees which set out the legal rights of domestic workers and the protection available to them. This was announced by the noble Lord, Lord Reay, in the debate. However, the problem is that those domestic workers who are already here will not have received such leaflets. Therefore, they will remain unaware of their rights. That would certainly have been the case with Ms. Tamgh and perhaps the Minister will say that the Government are considering issuing leaflets to those overseas domestic workers who were here prior to the date of their first issue. Some questions put in that debate need answers from the Government before we can have any confidence that domestic workers from overseas are sure of being treated with humanity and justice in this country.
I am examining the wider issue: the Minister may not choose to do so. But this is an opportunity to point out the various courses that the Government could take in order to overcome the problem that we encounter with domestic workers who do not have work permits and who do not enter the country under immigration laws but under Home Office concessions. Some courses were put forward by my noble friend Lord Richard in the debate in November. They probably need consideration. My noble friend felt that such people should be treated as though they had a work permit and should be allowed to move around within the same area of work, enabling them to escape from bad employers. Then, after four years, they should be allowed to claim residence if they so wished.
The other approach suggested by my noble friend was that domestic workers should not be admitted on a concessionary basis but on a more regular basis in their own right. That would avoid the problem of their coming to Britain and being bonded to one particular family and in some cases, such as that of Ms. Tamgh, bonded to a very bad employer. They would then have independent legal status before coming here.
Those are ways of solving the dilemma. I do not expect the Minister to give an answer tonight, but I remind him of the wider context of the problem we are considering tonight. We hope that the Government will decide to make a change which will safeguard a small but, as I said, highly vulnerable group of people in this country. In the meantime, the noble Lord, Lord Hylton, is asking the Government to remember the particular case of Ms. Tamgh. Again, I remind the noble Viscount of what his noble friend Lord Reay said when summing up the debate in November, when talking about guarantees to domestic workers:
"Each case will be considered carefully and compassionately before any enforcement action is taken."—[Official Report, 28/11/90; col. 1055.]
I think that is what the noble Lord, Lord Hylton, is asking the Government to do tonight. He has put forward some very strong evidence and there is an extremely good case, which should be considered on compassionate grounds and also as a particular case. I hope very much that the noble Viscount will be able to tell us that that is what the Government will do.
10.4 p.m.
Viscount Astor: My Lords, as the House will have heard, there are without doubt compassionate features in this case to which the noble Lord, Lord Hylton, has drawn attention. I fully recognise the noble Lord's concern for the wellbeing of Ms. Tamgh, as does my honourable friend the Under-Secretary of State for the Home Office with whom the noble Lord has been in correspondence. It is this Government's policy to maintain a firm but fair immigration control and it is against this background that Ms. Tamgh's wish to remain in this country has been fully, carefully and sympathetically considered, having regard to all the facts of her case.
If I may, I should like to review this rather complicated case. Ms. Tamgh entered the United Kingdom on 16th November 1985. Her passport was endorsed to limit her stay to six months and with a condition which prohibited employment. She immediately took up employment without authority as a domestic servant. Indeed by her own admission she was recruited in India and came to this country for that specific purpose. Subsequently, when her six months' stay expired she neither left this country nor sought an extension of stay. Noble Lords will have heard that Ms. Tamgh claims to have been maltreated during her unauthorised employment, alleging that she was poorly fed and imprisoned in her employer's homes. These allegations were the subject of an investigation by the police who referred the matter to the Crown Prosecution Service to consider whether there were sufficient grounds to justify the institution of criminal proceedings against Ms. Tamgh for overstaying and her employer for false imprisonment and other immigration offences, but it was decided to take no further action against any party.
The Earl of Longford: My Lords, may I interrupt? Was it really decided whether she had been maltreated? The fact that nobody was prosecuted does not dispose of that allegation.
Viscount Astor: My Lords, the matter of prosecution is obviously something for the Crown Prosecution Service and not something upon which I can comment. However, the story goes on. On 13th September 1989, the North Kensington law centre, acting as Ms. Tamgh's representative, applied to the Immigration and Nationality Department for Ms. Tamgh to be allowed to remain in the country to receive medical treatment. It is a requirement of the immigration rules that a person who wishes to remain in the United Kingdom for such treatment must pay for that treatment privately and an application for an extension of stay is to be refused if there is reason to believe that the treatment will be at public expense or that the applicant does not intend to leave the United Kingdom at the end of the treatment. Inquiries established that Ms. Tamgh was receiving medical treatment from the National Health Service since she was not in a position to pay for such treatment herself. Notwithstanding this, her application was referred to the medical adviser at the Department of Health who, after consulting Ms. Tamgh's own doctor, advised the
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Immigration and Nationality Department that treatment for her medical condition was available in India and that she was fit to travel. In view of this, and only after fully being satisfied that Ms. Tamgh would not suffer by returning to India and that there were no other special features to her case to justify taking the exceptional step of the grant of leave to remain outside the immigration rules, her application was refused.
Under Section 14(1) of the Immigration Act 1971 an entitlement to appeal against a refusal to vary a limited leave is conferred only on a person whose limited leave to enter or remain has not expired at the time of their application. Ms. Tamgh's leave to enter had long expired on 16th May 1986. She had therefore no right of appeal to the independent appellate authorities and was advised, via the North Kensington law centre on 10th May 1990, to make arrangements to leave the United Kingdom.
On 24th May 1990 the North Kensington law centre applied again on Ms. Tamgh's behalf for leave to remain exceptionally outside the immigration rules on compassionate grounds in the light of her medical condition and because the medical treatment she was receiving was not believed to be available in India. Her case was once again referred to the medical adviser at the Department of Health, who, after obtaining new medical evidence from Ms. Tamgh's doctor, again indicated that appropriate facilities for the treatment of her condition were available in India and that she was fit to travel. In reaching a decision on the application, full regard was given to the difficulties of Ms. Tamgh's position and the strain which a prolonged period of ill health must have placed upon her. But it would have been wrong not to have had regard to the public interest. Ms. Tamgh was an overstayer who had no basis of stay in this country and medical advice indicated that her well-being would not suffer if she were to return to India. Her application was thus refused and on 4th February this year she was advised, via the North Kensington law centre, that she might be liable to prosecution and deportation if she did not make arrangements to leave the United Kingdom.
My Lords, before I can sum up on the case I have to say that the anxieties that the noble Baroness has on issues relating to domestic servants are well known to this House, but the matters that have been raised are not relevant to Ms. Tamgh's wish to remain in this country. She has made two applications to the Immigration and Nationality Department to remain here. Both of these were to enable her to continue medical treatment.
My Lords, the noble Lord, Lord Hylton, in recent correspondence with my honourable friend the Parliamentary Under-Secretary of State at the Home Office, drew attention to a change in Ms. Tamgh's medical condition. While we are not persuaded that this is sufficient to reverse the decision, we have looked again at this case, and, in the light of what the noble Lord has just told the House, we will certainly give full consideration to any further evidence or medical evidence sent to the Home Office. It would be in everyone's interest if this could be received promptly: otherwise my right honourable friend the Home

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Secretary will want to consider whether he should enforce Ms. Tamgh's departure. But I can say to the noble Lord that, if this information is received promptly, no action will be taken in the meantime to remove Ms. Tamgh.
Perhaps I may answer just a couple of points that were raised by the noble Lord and the noble Baroness. One was a request that we should interview Ms. Tamgh. Staff conduct an interview when they consider it is likely to help to resolve a case. Ms. Tamgh is applying to the state for medical treatment. This is something on which expert advice has to be obtained from doctors. At this stage an interview with Ms. Tamgh would not help her case. It is the medical evidence that is required.
The noble Lord asked me if the High Commission should visit her home in Delhi. Again Ms. Tamgh is applying to stay for medical treatment. What is relevant is whether the treatment is available back home in India, and we are assured that it is. Her domestic circumstances are not relevant to the application and a visit by the High Commission staff would not help her case at this stage.
Two other points were raised. I have to say again that the immigration rules approved by this House require that anyone who wants to remain for medical treatment must pay for such treatment. The noble
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Baroness also asked about leaflets for domestic servants. Leaflets are only provided to those who actually apply to stay as a domestic worker. Ms. Tamgh has never applied to stay as one.
Lord Hylton: My Lords, before the noble Viscount finally sits down, I should like to say that he has made some helpful remarks, which I appreciate very much, on the medical side of the matter. Would he go just an inch further and be kind enough to pass on as strongly as he can to his honourable and right honourable friends the family and compassionate aspects of the matter, which, so far as I know, are new to the consideration of the case?
Viscount Astor: My Lords, I shall certainly draw the attention of my honourable friend the Parliamentary Under-Secretary of State at the Home Office to this debate. I must repeat to the noble Lord that further evidence, if it can be sent to the Home Office as promptly as possible, will be looked at.

British Waterways Bill [H.L.]
Reported from the Select Committee with amendments, and recommitted to an Unopposed Bill Committee.
House adjourned at ten minutes past ten o'clock.