Criminal Justice Bill

HL Deb 04 June 1991 vol 529 cc543-640

3.5 p.m.

Read a third time.

Clause 1 [Restrictions on imposing custodial sentences]:

Lord Windlesham moved Amendment No. 1:

Page 1, line 10, leave out subsection (2) and insert:

("(2) Subject to subsection (3) below, a magistrates' court shall not pass a custodial sentence on the offender unless it is of the opinion that the offence, or the combination of the offence and one other offence associated with it, was so serious that only such a sentence can be justified for the offence.

(2A) Subject to subsection (3) below, the Crown Court shall not pass a custodial sentence on the offender unless it is of the opinion£

1. (a) that the offence, or the combination of the offence and one other offence associated with it, was so serious that only such a sentence can be justified for the offence; or
2. (b) where the offence is a violent or sexual offence, that only such a sentence would be adequate to protect the public from serious harm from him.").

The noble Lord said: My Lords, in moving Amendment No. 1 I shall speak also to Amendments Nos. 2 and 4. In this series of amendments we return for the third and last time to the restrictions on the imposition of custodial sentences which are contained in Clause 1. We return also to the special provision in Clause 2 enabling the courts to pass sentences longer than would otherwise be justified in certain defined circumstances, up to the maximum permitted by law.

I remind the House of these circumstances: first, where the offence is of a violent or sexual nature; and secondly, where in the opinion of the court it is necessary to protect the public from serious harm. The key terms in that formulation are defined in the Bill, and may be found in what is now Clause 30:> 'violent offence' means an offence which leads, or is … likely to lead, to a person's death or to physical injury to a person". The reference to serious harm is construed as follows: protecting the public from serious harm", means protecting members of the public: from death or serious personal injury, whether physical or psychological".

So it is evident that we are talking about grave offences likely to cause serious harm or even the death of the victim. I ask the House to keep those definitions drawn from the Bill in mind as we debate these amendments.

The issue before us is how to relate the objectives, questionable though they may be—but that is something to be left on one side at this stage—to the sentencing powers of the courts. As it is now drafted, the Bill does not distinguish between the magistrates' courts and the Crown Court. The fact that it makes no such distinction does not represent any stable policy on the part of the Government, since the wording of this part of the Bill has been changed several times during its passage through Parliament.

When the Bill was originally introduced in another place last November, only the Crown Court had the power to pass a longer sentence for a violent or sexual offence in order to protect the public from serious harm. Curiously, the power was limited to what are known as either way offences; that is, offences which can be tried either in the Crown Court or in the magistrates' courts. It excluded the most serious offences triable only on indictment in the Crown Court. On Report in another place the Bill was amended to include offences triable either way in the Crown Court or in the magistrates' court, and also offences triable summarily in the magistrates' court.

In this House, after the illogicality of excluding indictable offences—the most serious offences triable only in the Crown Court—had been strongly argued in Committee, the Government amended the Bill to bring within its scope the more serious offences, as now indicated in Clause 2. However, the extension at the other end of the sentencing range—if I may put it like that—to the lesser offences which are tried and sentenced only in the magistrates' courts remained unchanged. It is the aim of these amendments to remove the power to top up sentences from the magistrates' courts. My noble friends whose names are appended to this all-party amendment and I contend that it is quite inappropriate to the language of the Bill and its stated purpose that the magistrates' courts should have this power.

On Report the noble Earl, Lord Ferrers, gave an example of why the Government believed the power was justified in the hands of the magistrates. The noble Earl mentioned a rather complicated matter which concerned reckless driving. I believe it is charitable to say that he did not entirely succeed in convincing the House that the offence cited would constitute a violent offence within the meaning of the Bill. The central fact is that the maximum terms of imprisonment allowed to the magistrates' courts are six months for a single offence and consecutive sentences up to a maximum of 12 months' imprisonment, with 50 per cent. remission applicable in both instances. Those sentencing powers effectively define the gravity of the offences with which magistrates are empowered to deal. The idea of the protection of the public from serious harm does not square with imprisonment for a few extra weeks.

I am sure we can all agree that any proposal to pass sentences that are more severe than an offence deserves is an altogether exceptional one. That must be so. Any proposal of this kind runs counter to the principle of proportionality in sentencing which is incorporated in the Bill. It also runs counter to existing sentencing practice. The justification for its introduction must therefore be stronger than anything we have yet heard from the Government Front Bench.

The magistrates' courts do not have this power now and they do not need it in the future. If they are given it by this legislation, one of two things will happen. Either it will be disregarded, with some routine formula being found to state why it is inapplicable to the circumstances of a particular case, or it will be used and in the process it will stretch the meaning of a violent offence to include what are essentially property offences such as taking and driving away a motor vehicle.

On Report my noble friend Lord Ferrers, speaking for the Government, acknowledged the concern that had been expressed by noble Lords in all parts of the House. He undertook to reflect further on the matter, although his undertaking to do so was given without commitment. On that basis the amendments were not pressed. Unless my noble friend can satisfy the House today, it may not be possible to be so accommodating. I beg to move.

3.15 p.m.

The Chairman of Committees (Lord Aberdare)

My Lords, if this amendment is agreed to, I shall not be able to call Amendment No. 1A.

Lord Richard

My Lords, I did not expect to be on my feet quite so soon. I support the amendment and I wish to emphasise to the House the purpose behind it. This group of amendments would restrict to the Crown Court the power to impose on certain kinds of offender sentences more severe than their offences deserve. The whole structure of sentencing as proposed in the Bill seeks to ensure that the severity of a sentence should be proportionate to the just deserts of the offender. In the Bill there is one major exception to that general principle. Clause 1 permits the courts to impose custodial sentences, even though the seriousness of the offence would not require custody, when the courts judge it necessary to protect the public from serious harm in the case of violent or sexual offenders.

It is the view of those of us who have been concerned with this amendment that it is absurd to suggest that a short period of imprisonment of a length which magistrates can impose could ever be said effectively to protect the public from serious harm. Serious harm is defined in the Bill as death or serious personal injury, whether physical or psychological. As the noble Lord, Lord Windlesham, pointed out, the maximum sentence a magistrates' court can impose is six months. Even if such a court were to impose two consecutive sentences, that would still only constitute a maximum sentence of 12 months. We are talking about an absolute maximum of six months in custody. It cannot seriously be argued that imprisonment for such lengths of time can effectively protect the public from death or serious personal injury.

In our view the logic of the argument inevitably points in the direction of restricting this power to top up sentences —to impose punishments greater than the just deserts principle would produce—to courts which try serious offences; namely, the Crown Court. I shall not weary the House with any further examples or indeed with any further argument. This is a fairly simple point and I believe the House has heard it three, if not four, times already in the course of the passage of the Bill. I hope that even at this late stage the Government will recognise the force of the logic of the argument and accept the amendment.

Lord Ackner

My Lords, your Lordships have heard it announced that Amendment No. 1 A must be considered with Amendment No. 1. If that is not done, Amendment No. 1A will fall. Therefore I rise to my feet to deal with Amendment No. 1A. I learn slowly through my mistakes but I imagine that because Amendment No. 1 proposes an alteration to a subsection, if it is passed it will swallow up my amendment.

Unlike Amendment No. 14 to Clause 28 which proposes to remove the whole of Clause 28, my Amendment No. 13 merely seeks to alter Clause 28. However, it is taken before the amendment which seeks to delete Clause 28. That is a procedural nicety which explains why we must deal with Amendment No. 1A together with Amendment No. I. Amendment No. 1A in no way conflicts with Amendment No. 1. I had hoped that the groupings list would stand. On that list Amendment No. 1A is grouped with the next batch of amendments. However, in view of the warning I have been given, I rise to my feet to speak on a subject which, although related, is significantly different to the matter we are discussing. It must seem quite remarkable to your Lordships that a Bill which is heralded as laying down a coherent sentencing principle should require the amendment which I propose. That amendment would add to line 14 on page 1 the words: that the offence of which he has been convicted or found guilty is one of a series of similar offences committed by him which together were so serious that a non-custodial sentence cannot be justified". I ask your Lordships to consider the following scenario. It concerns an appeal.

Lord Hutchinson of Lullington

My Lords, I wonder about the procedure being followed here. I do not know whether the noble Lord the Leader of the House can help us. Are we now going to debate the noble and learned Lord's amendment at the same time as Amendment No. 1 in the name of the noble Lord, Lord Windlesham? Is that the correct procedure, and is it the procedure that we are now to follow? I understood that all that we had been told was that if Amendment No. 1 is carried Amendment No. 1A falls. Does that mean that both amendments have to be debated together?

Lord Hailsham of Saint Marylebone

My Lords, perhaps I may say to my noble friend the Leader of the House, in an interrogatory tone, that surely if it has been ruled that Amendment No. 1A falls if Amendment No. 1 is passed, the only way of discussing Amendment No. 1A, which has been grouped with it, is in conjunction with Amendment No. 1. I stand to be corrected, but that is what I understand.

Lord Harris of Greenwich

My Lords, the problem is that the amendments are not grouped.

The Lord Privy Seal (Lord Waddington)

My Lords, I do not know whether or not I can help your Lordships. I adopt the argument advanced by my noble and learned friend Lord Hailsham. Whatever may be the legal niceties of this matter, the fact is that the noble and learned Lord, Lord Ackner, will have no opportunity of deploying his arguments unless we accept the procedure which he adopted. Therefore, in fairness to the noble and learned Lord, we must allow him to express the arguments in favour of Amendment No. 1A.

Baroness Phillips

My Lords, far be it from me to suggest a way round the problem to these legal gentlemen, who are experts, but surely the situation arises because the noble and learned Lord was honest and referred to Amendment No. 1A. He could have debated Amendment No. 1 and brought in his argument in relation to Amendment No. 1A. Honesty does not pay. However, if he likes to return to the argument without referring to his own amendment we shall all know what he is talking about.

Lord Waddington

My Lords, in fairness to the noble and learned Lord we must allow him to proceed.

Lord Ackner

My Lords, this is no legal nicety; it is the procedure of the House as I understand it. If I am to be heard it requires me to be heard only at this stage. I should have much preferred Amendment No. 1A to be wholly separate from Amendment No. 1 because it has no connection with that amendment. As I understand it, the relevance is that an attempt is being made to remove a subsection, and if that is successful my prospect of amending that subsection goes out of the window.

Perhaps I may continue. I was saying to your Lordships that it is remarkable that the amendment is required at all. One would have thought that any coherent sentencing policy would enable a judge to deal appropriately with an habitual criminal. I was asking your Lordships to contemplate a scenario. Imagine that the Court of Appeal Criminal Division has heard an appeal against the imposition of a custodial sentence. The question of the length of that sentence is not at issue, merely the fact that the person has been sent to prison.

The presiding judge sums up his judgment in this way. He points out that the appellant is an habitual offender. He has stolen from his employers £100 a week over a long period so that there is outstanding a total of £10,000. He has done that before. The judge of the Court of Appeal begins by saying: "The learned trial judge imposed a sentence of three years' imprisonment. There is no issue about the length of the term, merely that imprisonment was imposed at all. The learned judge first said, have considered your response to previous sentences imposed upon you. You have been subjected to conditional discharges. You have in the past broken all those conditions. You have been subjected to probation orders. You have failed to comply with those orders. Notwithstanding that fact, community service has been imposed upon you on no fewer than three occasions. You have fallen down on the requirements of those orders. Much as I dislike sending anyone to prison on that basis I have no alternative but to send you this time to prison'."

The presiding judge at the Court of Appeal continues: "The learned judge's approach is wholly common sense. It has now been rendered impossible by the Criminal Justice Act 1991 because, if you look at Section 28"—which is subject to amendments by myself and by the noble Earl, Lord Ferrers, but his amendment does not touch this point—"you are not allowed to have regard to responses to previous sentences. That cannot any longer be considered".

The judge in the Court of Appeal continues: "The next basis for the trial judge sending the accused to prison was the large number of outstanding offences which the offender asked to be taken into account. They were all of a similar kind, numbering 50, and involving losses to various people of £100,000." Again, everybody would conclude that that in itself was a clear pointer to a custodial sentence. But under Section 30 of the Criminal Justice Act 1991 (which I seek to amend with my Amendment No. 15A) you can only take into account one of those 50 outstanding offences. The judge could not even take that into account, for reasons which I shall explain. So that basis for sending him to prison goes.

The learned trial judge based his custodial sentence on a third criterion. He said, "You have been convicted of these offences on no fewer than 20 occasions over the past three years. In those circumstances prison is clearly a pointer in your case". The judge in the Court of Appeal says: "Unfortunately, under the Criminal Justice Act 1991 you cannot do that".

That is certainly the case as Clause 28 is intended to be amended by Amendment No. 14, which we shall discuss later. Your Lordships have only to read the first paragraph of that amendment to see that. So once more the learned trial judge, acting in a way which was full of common sense, has been unable to impose just deserts—the platitudinous philosophy which has been constantly stressed through the passage of this Bill.

Lastly, one comes to the fourth basis of the trial judge's justification for a custodial sentence. He says, "I have before me 10 offences. You pleaded guilty to five of them just before the trial took place. You contested the other five and you have been found guilty of those five. Each is a specimen charge relative to the theft of £100 a week, and on those 10 charges prison is clearly appropriate". Not so, says the Court of Appeal presiding judge, having regard to Section 1(2) of the Criminal Justice Act 1991 (the very section that I seek to amend) the trial judge can aggregate only two offences. If he aggregates the two offences, he cannot take into account any outstanding offences which the accused has asked him to take into account. Noble Lords have only to look at Clause 30 to see that.

So, says the Court of Appeal judge, the appellant has to be sentenced for two dishonest thefts involving £200 in the aggregate. For that prison is clearly not appropriate if you disregard his response to previous sentences, as the judge has to do under the new Act; if you disregard the number of offences to be taken into consideration, as you have to do under the new Act; and if you disregard his previous convictions, as you have to do under the new Act. Accordingly, once more the most that can be done to that man —and perhaps that is straining the matter—is to put him on probation.

All that is the result of a sentencing policy that places the judge in blinkers. He is not allowed to look with reality as he did before or to have regard to the response to previous sentences, to the number of offences to be taken into consideration and to the previous convictions. That is why I have sought to incorporate this amendment which makes specific reference to a case in which a person is found guilty of one of a series of similar offences committed by him which, together, are so serious that a non-custodial sentence cannot be justified.

I cannot conceive how that argument can be faulted on any jurisprudential basis because it is wholly consistent with the sentence complying with the just deserts. The noble Earl, Lord Ferrers, is not only always courteous and fair but makes wise concessions in his speeches, although he does not necessarily implement them in any amendments. In the debate on 14th May at col. 1501 of Hansard, dealing with the case to which I referred, he said that, if you look at Clause 3(2) (a)—it is now Clause 3(3) (a); I invite your Lordships to look at it in a moment—you can take all those previous conviction cases into account. I have looked at Clause 3(3) (a) and I invite your Lordships to look at it again. The rubric is: Procedural requirements for custodial sentences". The subsection states: In forming any such opinion"— that is, on the seriousness of the matter— a court shall take into account all such information about the circumstances of the offence". The phrase "circumstances of the offence" does not include offences to be taken into consideration. It does not include responses to previous sentences, and I do not think that it includes previous convictions. If it is intended so to cover them, my proposal must be justified. However, there is a slight feeling about the Government protestation that this provision covers them which makes one recall the War Crimes Bill. It was said then that, even though the Government supported legislation for trials in criminal cases to take place 45 years or more after the event, a judge had the inherent jurisdiction to strike out the indictment on the basis that the delay was such that justice could not be done. As noble Lords will recall, that is what stimulated my noble and learned friend Lord Bridge of Harwich to say that that was not apparent from the clause; if that is what the Government wanted, it should be in the Bill. This is a similar situation. There should not be clothed within Clause 3(3) (a) this hidden provision which is meant to be a cure-all.

As I indicated at the outset, I am sorry that procedure obliges me to ask your Lordships to consider this aspect and I apologise sincerely to the noble Lord, Lord Windlesham. I would not have it this way, but it appears to be the only way.

3.30 p.m.

Lord Henderson of Brompton

My Lords, perhaps at this stage I may make an intervention which is partly procedural and partly substantive and which may help the House. Many Members of the House may like to have in the Bill both Amendments Nos. 1 and 2. As we have been told, if Amendment No. 1 is carried, it pre-empts the moving of Amendment No. 1A, but it would be possible for this to be achieved if Amendment No. 1 was agreed to. Amendment No. 1A and perhaps Amendments Nos. 13 and 14 could then be inserted into the Bill in the House of Commons as amendments to the Lords' amendments. I say that merely so that noble Lords may not be impaled on what would otherwise seem to be a dilemma from which they could not extricate themselves.

I wish to say only one thing in support of the amendment of the noble Lord, Lord Windlesham. In the Government's White Paper last year, entitled Crime, Justice and Protecting the Public, it was proposed that the power should be confined to the Crown Court. I, and I am sure a number of others who read that White Paper, thought that there was a good case for it to be included, provided that it was so confined. Some of us have been dismayed by its extension to the magistrates' courts. I regard the arguments then put forward in the White Paper restricting the power to the Crown Courts as as strong today as they seemed to those of us who read it a year ago.

Lord Hutchinson of Lullington

My Lords, I should like to echo what the noble Lord, Lord Henderson, has said because we have not so far heard any explanation from the Government as to why the White Paper restriction, which seems to so many of us in the House to be absolutely sensible, has now been changed. We have never been given any reason for the change, and it would be most helpful if the noble Earl could give us the reason for that change.

The last thing in the world that I wanted to do by rising to my feet earlier was to shut out the noble and learned Lord. It seems to me that the procedures of the House are absolutely extraordinary. If his long and interesting speech in support of his amendment comes in the middle of the debate on the amendment of the noble Lord, Lord Windlesham—I am sure that most noble Lords will have forgotten a great deal of what the noble Lord said in moving Amendment No.1—and if noble Lords have been moved by the words of the noble and learned Lord, I suppose that it behoves one to answer the argument of the noble and learned Lord in case anyone here feels that they do not wish to vote for Amendment No. 1 because they do not want to shut out the excellent arguments in support of Amendment No. 1A. Speaking personally, I do not intend to do that. The whole procedure would become completely confused. In supporting Amendment No. 1, I simply wish to comment that when one puts forward a Bill which has a fundamental philosophy and fundamental principle—although the noble and learned Lord has just called it platitudinous—and if there is then to be an exception to it, that exception must be absolutely clear and sensible.

At Report stage, the noble Earl answered the argument of the noble Lord, Lord Windlesham, by giving the example of driving a car recklessly as an offence for which the retention of this power by magistrates would be useful. In doing so it seems to me that he exemplified the reason for accepting this amendment. Reckless driving is surely not a violent offence. It is an offence which may result in violence, but it is not a violent offence. If it is considered as a violent offence, magistrates will be in a state of great confusion unless this amendment is accepted. Driving a car recklessly involves driving in a certain manner with no necessary proof of injury to anybody and no necessary proof even that the offender was aware of such danger.

It seems to me difficult, as I am sure it will to many magistrates, to accept that reckless driving is a violent offence. It is therefore difficult to accept that this power is useful to magistrates. If it is useful, one must ask: what about all those offences of conduct likely to cause breaches of the peace? They may lead to some form of Violence. What about threats and insulting words arid behaviour? What about distributing material which is threatening or insulting under the Race Relations Act? All sorts of offences may lead to violence. Even under the Theatres Act, having material which stirs up hatred in the audience may do so. There are innumerable offences which may lead to violence.

It seems to me that in bringing forward that example the noble Earl has made the argument for the proposer of the amendment and has shown how necessary it is that it should be accepted by the House. I hope that noble Lords will accept it.

3.45 p.m.

Lord Roskill

My Lords, I start by echoing what the noble Lord, Lord Hutchinson, said. For my part, if I were free to do so, I should vote in favour of both amendments. As to the first amendment, I was present, as indeed were many of your Lordships, when this matter came up on Report. I recall that in defending the Government's attitude the noble Earl gave the Chamber an example of reckless driving. My recollection is that my noble and learned friend Lord Hailsham of Saint Marylebone said that he did not think that reckless driving was a violent offence.

If I may respectfully say so, that is absolutely right. It is also worth saying that what is said by the Minister or anyone else in your Lordships' House or in another place is not admissible for the purpose of construing the statute if the matter comes up in court. If there is some doubt or ambiguity as to the meaning either of Clause 28 or of the clauses that we are now discussing, that ought to be put on the face of the statute. I respectfully echo what the noble Lord, Lord Windlesham, said. There is at the moment an indefensible inconsistency that ought to be put right.

Amendment No. 1A was debated on Report and, I believe, in Committee. Perhaps I may give your Lordships an example to show how absurd the position would be unless the House is prepared to accept the amendment of my noble and learned friend Lord Ackner, or something like it. I recall a case which the noble Lord, Lord Hutchinson, may also remember. It happened at Hampshire Quarter Sessions when I was chairman a good many years ago. I had the advantage of listening to the noble Lord on many occasions in that court. In central Hampshire there was a hospital for geriatrics, the dead and dying. Over a period of years the hospital manager had stolen old age pensioners' money when it was drawn and when they were dead he forged their weekly pension books. If my memory is right, there were perhaps 80 or 90 offences. He pleaded guilty to some. The amounts involved in each offence were of the order of £5 or £10. With the Bill as drafted I believe that I should have been constrained to say, "I must not look at anything else except two offences of £5 or £10 and therefore I shall fine". If I had done that, I should have expected a justifiable howl at the inadequacy of the sentence. Indeed, were it possible, I should have expected the Attorney-General to use his powers to refer the matter to obtain an increased sentence under the Criminal Justice Act.

That is quite wrong. There is nothing inconsistent with what any noble Lord has said about the general policy. All we want is for the court to be able to look at the reality of the situation. Without both these amendments I respectfully suggest that we are barring the courts from doing so. It will lead to the Court of Appeal having to adopt the ridiculous attitude that my noble and learned friend Lord Ackner illustrated.

Baroness Phillips

My Lords, I hasten to say to the noble Lord, Lord Hutchinson —I think he would be disappointed if I did not respond to him—that I can give a personal example of a case in which reckless driving caused violence. I have referred to this matter before. Just two months ago in Parliament Square I was sitting in a stationary Mercedes car at the lights when a van driven at a reckless speed collided with it and completely destroyed the back of the car. The impact caused my driver to be knocked out. He was taken to hospital. Therefore he was the victim of some violence, whichever way the noble Lord likes to look at it. I can assure him that he need not worry because under the criminal evidence Act no one will bother to take the young man to court. He has not done anything wrong. The noble Lord, Lord Hutchinson, need not worry; there is no danger of any injustice but only, once again, injustice to the victim. So certainly reckless driving can cause violence and lead to violence.

The noble Lord's argument illustrates one of the reasons why sometimes one does not obtain justice in our courts. The convoluted arguments put forward by the legal profession in the end produce such confusion that proper justice cannot be administered. I have given the noble Lord, Lord Hutchinson, an example of someone who experienced reckless driving which caused violence.

Earl Ferrers

My Lords, it is perhaps unfortunate that the practices and procedures of the House or indeed the amendments tabled have resulted in a somewhat unstructured debate on this matter. I do not blame the noble and learned Lord, Lord Ackner, for speaking to his amendment when, as he put it, he suddenly saw it going out of the window. For reasons that we shall come to later I like to think that he need not worry that it will go out of the window. However, in the rare event of Amendment No. 1 being accepted, the noble and learned Lord's amendment, Amendment No. 1A, will go out of the window. He was therefore quite right to speak to it and make his point quite clear.

I am glad to know that the noble Lord, Lord Hutchinson, did not wish intentionally to shut out, as he put it, the noble and learned Lord, Lord Ackner. He does not often shut him out. I am glad to know that that was not his intention by the intervention today. But I had thought that it heralded such sparring as we have seen before between the two noble Lords, one of whom is noble and learned.

To refer to the amendment of my noble friend Lord Windlesham, he said that we were now returning to the subject for the third time. The noble Lord, Lord Richard, said that he was returning to it for the fourth time. I was aware that we had considered some of the amendments previously. I considered the position with regard to the Marshalled List this morning. I put up a marker as to the practice that I believe is creeping in of debating the same subject at Committee, Report and Third Reading. The practice always used to be to use Third Reading only for fulfilling Government undertakings, improving drafting and raising new matters. Indeed the Companion to the Standing Orders states that, The principal purposes of amendments on Third Reading are to clarify any remaining uncertainties, to improve the drafting and to enable the Government to fulfil undertakings given at earlier stages of the Bill". I raise that marker. I am entirely happy to debate any of the amendments. However, I wonder whether we are not having a lot of bites at the same cherry on a number of different occasions.

Lord Windlesham

My Lords, does the noble Earl accept that when a Minister agrees at the end of a debate on Report to give further consideration to arguments that have been put forward, and an amendment is withdrawn on that basis, it is entirely proper to return to the matter again on Third Reading?

Earl Ferrers

My Lords, that may be so. But it is interesting to note that of the 25 non-government amendments that have been tabled for consideration at Third Reading, 22 were considered either on Report and/or in Committee either in exactly the same form or in a very similar form; 13 were considered on Report; 10 were the exact wording of today's amendments; and nine were considered both on Report and in Committee, one of which had exactly the same wording.

It would be far outside my business to try to suggest to your Lordships what we do. I am entirely happy to answer all the amendments. I accept that when undertakings have been given to consider them, of course we shall consider them. However, I just make the point that a number of amendments listed today have been considered previously in either exactly the same or a similar form.

I turn to the point of the amendment of my noble friend Lord Windlesham. We believe that the power to impose a custodial sentence on a violent or sexual offender, in order to protect the public from serious harm from him, should continue to be available to a magistrates' court as well as to the Crown Court. It was always intended that it should, as was indicated in the White Paper. The White Paper proposed that only the Crown Court should have the power to impose a longer custodial sentence under Clause 2, but on reflection we concluded that this would have been inconsistent with preserving, under Clause 1, the magistrates' courts' powers to impose a protective custodial sentence under Clause 1. I explained on Report why we had to bring Clause 2 into line with Clause 1.

The noble Lord, Lord Hutchinson, asked why there was a change from the White Paper. In fact there is no change in the power of the magistrates to give a custodial sentence to protect the public. The only change relates to the length of sentence which can be imposed. Originally the magistrates had a power to give a prison sentence to protect the public, but not a longer sentence. That was illogical, as we now accept. The change that we made removes that illogicality.

My noble friend Lord Windlesham said that magistrates' courts do not now have the power to sentence on the ground of protecting the public. I am not sure that my noble friend is entirely right. The criteria for sentencing in the magistrates' courts are not now defined in statute. I think that it is open to doubt whether or not magistrates can now impose a sentence on the ground of protecting the public. However, it is my impression that magistrates have in mind the need to protect the public in their sentencing.

Any example of how magistrates' courts might use their power to give a sentence which protected the public is necessarily hypothetical and unlikely to be representative of the vast variety of cases with which magistrates' courts have to deal. I gave one example on Report and the noble Lord, Lord Mishcon, then pounced upon it. My noble friend Lord Windlesham pounced upon it today, as did the noble Lord, Lord Hutchinson. It dealt with reckless driving. The noble Lord, Lord Hutchinson, stated that reckless driving is not a violent offence. I agree with the noble Baroness, Lady Phillips, that reckless driving can be a violent offence as defined in Clause 30. The definition refers to an offence which is likely to lead to death or physical injury to a person. That will certainly catch some cases of reckless drivers.

Perhaps I could give another example. I am hesitant to do so in case some other noble Lord pounces upon that too. But I believe that examples are always helpful.

Lord Hutchinson of Lullington

My Lords, not always.

Earl Ferrers

My Lords, the noble Lord, Lord Hutchinson, says, "Not always", and that is perfectly true. But I always try to be helpful even though I may not succeed. I hope that I carry the noble Lord, Lord Hutchinson, with me in the clarification that I am trying to give arid that he will not reckon that every example is necessarily a strict format of what will happen.

Let us take a young offender who is convicted of common assault. The current offence may not be very serious. The offender may have been alone and no great injury may have been inflicted. But it may be clear that he has committed other such offences involving a group of other people in more serious acts of violence. A six-month sentence which would include three months in custody and three months' supervision could help to protect the public. That is one example.

If we were to accept my noble friend's amendments, we would have to be absolutely sure that no circumstances could ever arise in which a magistrates' court would be justified in sending a violent or sexual offender to prison in order to protect the public from serious harm from him. I simply do not believe that it is in fact possible to be confident that no such situation could ever arise. I think that it would be most unwise to leave magistrates' courts with no power to pass a sentence de signed to protect the public. That is, after all, one of the main functions of the criminal justice system.

We should not forget that the Bill already limits the sentencing powers of the courts in a variety of ways. It requires them to concentrate mainly on the seriousness of the offence committed in passing sentence. It lays down carefully circumscribed rules about the account which can be taken of matters such as multiple offences or the offender's previous record. Exceptionally, the courts can give a heavier sentence to protect the public, but only if the offence is sexual or violent and—in the words of Clause 30, subsection (3)—the public needs to be protected from death or serious personal injury caused by the offender.

My noble friend's amendment would limit the courts' powers even further, by taking away the magistrates' courts' powers to pass sentence on grounds of protecting the public. I suggest that it is really up to my noble friend to justify this further curtailment of the magistrates' courts' powers, and to demonstrate how this would be in the public interest, rather than for me to go on producing further examples of how the power might be used.

I fear that if my noble friend's amendment were accepted, it would have one of two results, both undesirable. Either the public would be denied proper protection in respect of offenders sentenced in the magistrates' court; or the magistrates would commit more offenders to the Crown Court for sentence, under the provisions of Clause 23 of the Bill. If that were to happen, this would be contrary to the efforts that we are all making to ensure that cases are not committed unnecessarily to the Crown Court for trial or sentence, so that the best use is made of Crown Court resources and delays in cases coming to trial are reduced.

For those reasons I hope your Lordships will not accept my noble friend's amendment. Indeed, I hope that on reflection my noble friend will consider that the Bill is better as it stands.

Perhaps I may refer to the amendment tabled by the noble and learned Lord, Lord Ackner. He kindly said that I made wise concessions. That was most courteous but he went on to say that they were not represented in the amendments that I have put forward. I hope that on reflection he will consider the comment to be a little harsh because some of the amendments that I have tabled are aimed at meeting his points and those raised by other noble Lords.

The noble and learned Lord's amendment raises the question, to which he referred at the Report stage, of the offender who is being sentenced for multiple offences. He expressed anxiety about whether the rule in Clause 1(2) (a) that only two offences can be considered in combination means that the courts are required artificially to ignore other offences committed by the offender for the purpose of deciding whether a custodial sentence is justified. I have some considerable sympathy with the noble and learned Lord's point, but I hope to be able to persuade him that the Government's response to it, a concession which is set out in Amendment No. 14, is to be preferred.

I hope that your Lordships will permit me to foreshadow the contents of Amendment No. 14 in replying to the noble and learned Lord. I am sorry that such a course will take us wide of Amendment No. 1 which we were originally discussing but I believe that it is necessary to do so. It is relevant to my response to Amendment No. 1A tabled by the noble and learned Lord, Lord Ackner.

As I explained at an earlier stage, we do not regard it as right that the courts should aggregate large numbers of very minor offences to justify a custodial sentence. The effect of the noble and learned Lord's amendment is that any number of offences, however minor individually, could be aggregated to justify a custodial sentence, if it could be shown that they were part of a series of similar offences. That would seem to mean, for example, that someone who had perhaps stolen a variety of small items from different shops over a period of time might end up with a custodial sentence, even if it were clear that his behaviour was compulsive rather than calculated. The Government do not believe that custody is the right answer in these circumstances. Our approach to the issue is contained in Amendment No. 14 which substitutes a revised version of Clause 28.

The key aim of Clause 28 is to discourage what is known as sentencing on record. That is giving a heavier sentence than the offence itself might deserve because of what the offender has done in the past—

4 p.m.

Lord Ackner

My Lords, I thank the noble Earl for allowing me to intervene. We shall shortly debate Clause 28 but I understand that it deals with only one of the four matters to which I referred; that is, previous convictions. It does not deal with, except to prohibit, response to previous sentences, with outstanding offences taken into consideration because they are not previous convictions, nor with multiple offences all of which are the subject matters of convictions contemporaneously—that is arising out of one trial.

Earl Ferrers

My Lords, that may well be the case but in replying to Amendment No. 1A it is right to consider the amendments that we have tabled in an attempt to meet a majority of the points that worry the noble and learned Lord—

Lord Ackner

My Lords, it is most irritating to be interrupted and I apologise. With great respect, Amendment No. 1A has nothing to do with previous convictions. It deals with a course of conduct which is the subject matter of a given prosecution. It all relates to the present and not to the past, and I associate previous convictions with convictions that have occurred in the past.

Earl Ferrers

My Lords, I understand what the noble and learned Lord is pointing at but Clause 28, as amended, deals with multiple current offences. Indeed, that is the point of our amendments. Perhaps the noble and learned Lord will bear with me because I think he will see that I attempt to meet his points.

If we asked the courts to ignore completely the offender's past conduct—or indeed other current offences of which he has been convicted—this would quite artificially prevent them from considering information which can in some cases be highly relevant to their judgment about the seriousness of the offence for which sentence is now being given. I gave some examples at the Report stage. There can be patterns of offending which show for example that an assault was racially motivated or that a shopkeeper selling bad food was not just an isolated lapse but showed deliberate disregard for his customers' safety.

The point about these examples is that the circumstances of the other offences show that the new offence is in fact more serious than it would have been if it had occurred in isolation. In other words, they point to aggravating factors of the offence. Your Lordships will recall that under Clause 3(3) (a) the court is required to have regard to an offence's aggravating and mitigating factors in assessing its seriousness, and hence the type of sentence it should receive. The revised version of Clause 28 brings out in subsection (2) more clearly the fact that here we are concerned with factors which aggravate the seriousness of the offence.

The revised version of Clause 28(2) also ensures that there is no ambiguity as regards the significance of other current offences as opposed to other past offences. The noble and learned Lord, Lord Ackner, drew to our attention at the Report stage—and has quoted again today—examples, such as the dishonest employee who regularly steals sums of money from his employer over a considerable period of time. The noble and learned Lord, Lord Roskill, was anxious about similar cases. I indicated that I thought that the fact that an offence was part of, for example, a systematic and persistent fraud would be regarded as an aggravating factor. The court would obviously have to take note of the other offences which had been committed in order to reach that conclusion and the Bill as originally drafted would not I think have prevented them from doing so.

But it was put to me that there was a doubt about that matter. Since Clause 28(2) as originally drafted referred only to offences of which the offender had previously been convicted, it might have been interpreted as meaning that the circumstances of offences of which the offender had been convicted at the same time could not be taken into account in the same way. That would obviously lead to anomalous and unjust results and the new version of Clause 28(2) therefore makes it clear that the circumstances of any other offence can, where appropriate, be taken into account as aggravating factors.

For that reason I hope that your Lordships and the noble and learned Lord, Lord Ackner, will agree that the new version of Clause 28 is an improvement on that tabled by him. I realise that the procedures that we are obliged to adopt make the matter confusing. However, Amendment No. 1A tabled by the noble and learned Lord, Lord Ackner, is relevant to Amendment No. 14 that I have tabled. I hope that the noble and learned Lord will agree that my amendment is better. I hope also that your Lordships will agree that it would not be correct to include the amendment tabled by my noble friend Lord Windlesham in the Bill.

Lord Hughes

My Lords, I am persuaded by the Minister that Amendment No. 14 is a reasonable alternative to that tabled by the noble and learned Lord, Lord Ackner. With due respect to his position, I do not believe that the noble and learned Lord has read Amendment No. 14 in its entirety. He read it as though it applies only to previous convictions. However, if lie looks at the caption at the side of the first part of the amendment he will see that it states: Effect of previous convictions etc.". The "etc." must refer to the second part of the provision which has nothing to do with previous convictions—

Lord Roskill

My Lords, it is a rule of construction that in construing a statute one must not look at the side note.

Lord Hughes

My Lords, that is where one has an advantage if one is a layman because one can apply common sense instead of judicial preference.

I had not finished what I intended to say. I am quite certain that whether the "etc" must be taken into account or ignored, it is clear that the second part is not confined to previous convictions but concerns any aggravating factors of an offence. There is nothing about previous convictions in the second part. Therefore, the noble Earl, Lord Ferrers, has defined clearly the effect of Amendment No. 14.

Having said that, without Amendment No. 14, I should like to vote for both Amendments Nos. 1 and 1A, but we are told that it is not possible to do that. That would have been possible if the noble and learned Lord had tabled his amendment as an amendment to Amendment No. 1 rather than as an amendment to the Bill. If Amendment No. 1A had been tabled for insertion at line 11 after the word "offence", we could have dealt with both amendments at the same time with the exception that it would not have applied to the magistrates' courts.

Lord Elton

My Lords, I am not sure that it is the custom of the House to entertain interventions from any noble Lord other than the mover of the amendment after the Minister has spoken.

Lord Hughes

My Lords, in that case, I must apologise for what I said but I hope that your Lordships will remember what I said.

Lord Windlesham

My Lords, this has been an unexpectedly disjointed start to the proceedings on Third Reading. We have been debating two unrelated amendments and have had some helpful suggestions on procedure thrown in as well.

Perhaps I may return to Amendment No. 1 which is in my name and that of other noble Lords and which I moved over an hour ago. In his reply the Minister relied en the power contained in Clause 1 to allow magistrates' courts to impose a custodial sentence where the offence was of a violent or sexual nature in order to protect the public from serious harm. However, he did not deal with the main thrust of my argument; namely, that in Clause 2 the magistrates' courts may top up—to use a distasteful expression —a sentence of imprisonment if it had already decided that a term of custody was necessary under Clause 1.

The simple point is this. Despite the Minister's efforts to persuade the House, he has not convinced me that the type of offence which is triable in the magistrates' court—the less serious criminal offence which is triable summarily—is of sufficient gravity to warrant the exceptional power to pass a sentence of disproportionate severity. On that point, I shall seek the opinion of the House.

4.14 p.m.

On Question, Whether the said amendment (No. 1) shall he agreed to?

Their Lordships divided: Contents, 104; Not-Contents, 121.

Division No. 1
CONTENTS
Ackner, L.	Kirkhill, L
Adrian, L.	Kissin, L.
Airedale, L.	Listowel, E.
Allen of Abbeydale, L.	Llewelyn-Davies of Hastoe, B
Ampthill, L.	Lloyd of Hampstead, L.
Attlee, E.	Lloyd-George of Dwyfor, E.
Beaumont of Whitley, L.	Lockwood, B.
Blackstone, B.	Longford, E
Blease, L.	McNair, L.
Boston of Faversham, L.	Mason of Barnsley, L.
Bottomley, L.	Mayhew, L.
Brain, L.	Milner of Leeds, L.
Broadbridge, L.	Mishcon, L.
Callaghan of Cardiff, L.	Molloy, L.
Campbell of Eskan, L.	Monson, L.
Carmichael of Kelvingrove, L.	Morris of Castle Morris, L.
Carter, L.	Mulley, L.
Chester, Bp.	Murray of Epping Forest, L.
Cledwyn of Penrhos, L.	Nicol, B.
Craigavon, V.	Ogmore, L.
David, B.	Parry, L.
Dean of Beswick, L	Phillips, B.
Donaldson of Kingsbridge, L.	Pitt of Hampstead, L.
Dormand of Easington, L.	Prys-Davies, L.
Ennals, L.	Richard, L.
Ewart-Biggs,B.	Richardson, L.
Faithfull, B.	Ritchie of Dundee, L.
Falkland, V.	Robson of Kiddington, B.
Fisher of Rednal, B.	Rochester, L.
Gallacher, L.	Sainsbury, L.
Gladwyn, L.	Sefton of Garston. L.
Glenamara, L.	Serota, B.
Graham of Edmonton, L. [Teller.]	Shepherd, L.
	Stallard, L.
Grey, E.	Stedman, B.
Hanworth, V.	Stoddart of Swindon, L.
Harris of Greenwich, L.	Stokes, L.
Hatch of Lusby, L.	Strabolgi, L.
Hayter, L.	Taylor of Blackburn, L.
Henderson of Brompton, L.	Taylor of Gryfe, L.
Hirshfield, L.	Thomson of Monifieth, L.
Holme of Cheltenham, L.	Tordoff, L. [Teller.]
Howie of Troon, L.	Turner of Camden, B.
Hughes, L.	Underhill, L.
Hunter of Newington, L	Wallace of Coslany, L.
Hutchinson of Lullington, L.	Whaddon, L.
Hylton, L.	White, B.
Irvine of Lairg, L.	Wilberforce, L.
Jacques, L.	Willis, L.
Jenkins of Putney, L.	Wilson of Rievaulx, L.
John-Mackie, L.	Windlesham, L.
Kennet, L.	Winstanley, L.
Kinloss, Ly.

4.22 p.m.

Lord Ackner moved Amendment No. 1A:

Page 1, line 14, at end insert:

("(aa) that the offence of which he has been convicted or found guilty is one of a series of similar offences committed by him which together were so serious that a non-custodial sentence cannot be justified, or").

The noble and learned Lord said: My Lords, I beg to move.

Earl Ferrers

My Lords, for the reasons which I gave in the earlier debate I hope that your Lordships will agree to Amendment No. 14 in preference to Amendment No. 1A.

Lord Ackner

My Lords, I shall not weary the House with another speech. I commend the amendment to your Lordships.

4.23 p.m.

The Chairman of Committees

The Question is, That the amendment be agreed to. As many as are of that opinion will say "Content"; to the contrary "Not-Content". I think the "Not-Contents" have it. Clear the Bar.

Division called.

4.26 p.m.

The Chairman of Committees

My Lords, the Question is, That Amendment No. 1A be agreed to. As many as are of that opinion will say "Content"; to the contrary "Not-Content".

Noble Lords

Not-Content.

The Chairman of Committees

The "Not-Contents" have it.

Amendment negatived.

Clause 2 [Length of custodial sentences]:

[Amendment No. 2 not moved.]

The Earl of Longford moved Amendment No. 3:

Page 2, line 13, at end insert ("suitable for the offender and shall be").

The noble Earl said: My Lords, I rise to move the amendment standing in my name. At the last stage, when I withdrew the amendment after discussion, I said that I attached tremendous importance to it. Without it the Bill contains no reference to the interests of the vast majority of offenders. There is no reference to the interests of the prisoner.

I feel that the Bill is incomplete. The Bill should not go on to the statute book, especially a far-reaching Bill of this kind, without some reference to the interests of the vast majority of offenders. I shall explain what I mean when I say the "vast majority" of offenders.

Reference has been made to the fundamental philosophy of the Bill. I would not credit the Bill with anything novel in the way of a philosophy except on one important point—punishment in the community, which is very important. The reference to "just deserts" is simply retribution dressed up under another name. I have always said that there is room for retribution, but there must be room also for the reformation of a prisoner. In the vast majority of cases, without my amendment, there is no such reference. There is some reference made to the interests of offenders and the way in which they should be considered.

It is laid down in the Bill that where a community service order is passed as sentence, it should be suitable for the offender. Let there be no mistake about that. When a sentence of community service is passed it is a punishment. There is no distinction between that and a sentence of custody. Therefore, in logic the sentence should be suitable for the offender when a sentence of community service is considered, and likewise where the offender is sentenced to custody. There is no distinction in logic.

As regards mentally disordered prisoners there is reference to the effect on their mental condition which has to be considered. That is taken into account. The interests of those who receive community service orders and those who are thought to be mentally disordered are considered. The vast majority of prisoners have no reference made which helps them at this time. Personally, it will be a terrible and historic blot on the Bill if it were passed into law without any reference to the effect on the lives of the vast majority of those who are sentenced. I beg to move.

4.30 p.m.

Lord Campbell of Alloway

My Lords, I fully understand why the noble Earl has moved this amendment. It surely stems from a false premise. He said that in a sense retribution equals or rides with the concept of just deserts. That is a strange starting point for the argument. The concept of sentencing is that it should be related to just deserts. If the court sentences in error then, with the present appellate system, the Court of Appeal can correct it. I can see no need whatever for putting the judge under some kind of statutory restraint as proposed by the amendment.

Lord Richard

My Lords, I support the thrust of the amendment and the intention behind it. My noble friend wants statutory recognition of the principle that imprisonment should attempt to rehabilitate the offender and not just punish him. As I say, I support the thrust of the amendment and the intention behind it. However, I am not entirely happy that the appropriate place is in Clause 2 of the Bill. That establishes the criteria governing the length of prison sentences and lays down the general principle that the length of sentence must be commensurate with the seriousness of the offence.

No doubt the Government are considering the Woolf Report at the moment. One assumes that at some stage legislation about prisons will be introduced following the Government's consideration of the report. In that legislation it would be appropriate to lay down the principle that prison regimes should be geared to the offender's needs for training and rehabilitation and not merely, to use the words of my noble friend, to retribution for the offence for which the individual has been sentenced.

At that stage it would be highly appropriate for an amendment of the kind proposed by my noble friend to be included in legislation. I have a great deal of sympathy with his intention, but I am not convinced that Clause 2 of the Bill is the appropriate place to put it.

Lord Henderson of Brompton

My Lords, I agree with what has just been said about this not being the right place for the amendment. It is a matter that we should consider for the future especially in the light of the Woolf Report and proposals. The question of being ''suitable for the offender" ought to be a consideration. Not only is the measure suitable for the offender but if he is appropriately treated he will not offend again. Therefore such a provision would not only be suitable for the offender but for all of us. I very much hope that that principle will be pursued by the noble Earl in future though it is incompatible with the Bill.

Lord Hutchinson of Lullington

My Lords, I support the thrust of the noble Earl's amendment. He has made a very good point by indicating that under Clause 5 and community sentences, these very words appear. If the words appear for community sentences where the court is told to consider the most suitable disposal for the offender, why should it not also take the same attitude and approach when dealing with a normal sentence of imprisonment? It seems to me that if the provision appears in one context it should appear in the other. The noble Earl said that under Clause 5 the court has a choice and therefore the words appear referring to the number of different types of order as set out in Clause 5(4). The court has, and should have, a choice when sentencing a person to imprisonment. As I have mentioned on a previous occasion, if the words appear in the Bill judges should then be able to specify the institutions to which they send convicted people. At the moment they are not equipped to do that. Naturally, in future I would like the judges to be so equipped. For those reasons I support the thrust of the amendment.

Earl Ferrers

My Lords, the noble Earl, Lord Longford, has returned to a subject which we debated at Report stage. He said that he would return to it again and that he had every intention of tabling a similar and perhaps a better phrased amendment at the next stage of the Bill. I believe that the amendment he has tabled today is exactly the same as the one he put forward at Report. The observations which I made during my opening remarks concerning the first amendment passed through my mind again as regards the noble Earl's amendment.

The noble Earl explained at Report, and he has done so again, that his main concern is with the rehabilitation of prisoners. That is a thoroughly worthy aim. He believes that the aim of rehabilitating prisoners is valuable. He also believes that it is in danger of being lost and that it is necessary to insert into the Bill a statement of its importance. I do not think that is so. The extent to which prisoners can and should be reformed is an extremely important issue. It is one that has occupied a number of your Lordships for a long while during the passage of the Bill.

I do not believe that this is the right occasion for a debate on the subject. I remind the noble Earl of the Prison Board's statement of purpose to which he himself referred at Report stage. Part of that report reads: Our duty is to look after them [that is, prisoners] with humanity and to help them lead law-abiding and useful lives in custody and after release". That is a very positive statement of aim of the prison service. Lord Justice Woolf dealt with its implications for the prison service in Section 10 of his report. He concluded: while we would not suggest that an offender should be sentenced to imprisonment for reformative treatment, we regard it as part of the Prison Service's role to ensure, where that is practicable, that a prisoner, while serving his sentence, should have an opportunity of training". Those are the views of Lord Justice Woolf. As the noble Earl knows and as the noble Lord, Lord Richard, has said, the Government intend to respond to Lord Justice Woolf's report in a White Paper later this year. I do not share the noble Earl's view that the reformative ideal has been lost sight of and that this Bill offers one last opportunity to reaffirm it. The issue is firmly inscribed in the Prison Board's statement of purpose. But, however you look at it, I do not think that the Bill is the right vehicle for the noble Earl's idea.

The Earl of Longford

My Lords, may I interrupt the noble Earl? Where is it clearly stated? The noble Earl tells us that it is clearly stated in the Bill.

Earl Ferrers

My Lords, what I was saying was that it is clearly stated in the Prison Board's statement of what they do and what their intent is. I do not think that it is necessary to state these aims in the Bill as it is, and for this reason. The Bill sets out in Clause 1 the reasons why someone might be sent to prison. These are either that the offence is very serious or that the offender is a danger to society or some combination of the two. Clause 2 establishes similar criteria for determining the length of a prison sentence.

But I think it would in fact be a mistake to do as the noble Earl's amendment seeks, to make the possibility of reforming the offender a reason for giving a prison sentence, or a sentence of a particular length. Reform and rehabilitation may well result from a prison sentence, and we hope that they will; and, as I have said, the prison service has set itself the aim of bringing this about in as many cases as possible. But it is simply unrealistic to sentence people to imprisonment in order that they may be reformed or rehabilitated, and the danger in suggesting that reform or rehabilitation should be a reason for sending people to prison is that this might result in more people being sent to prison in the vain hope that it will somehow cure them of their offending ways. I know that this is not what the noble Earl would wish.

The fact of the matter is that the reasons for sending people to prison—which is what Clauses 1 and 2 are concerned with—are to punish their offences and to protect the public, and it is confusing the issue, in a way which may be quite counter-productive, to ask the sentencer to consider also whether prison would be suitable from a reformative or rehabilitative point of view.

The noble Lord, Lord Hutchinson, referred to community sentences. Of course the question of suitability for the offender arises if a court is considering a community sentence because the reform and the rehabilitation of the offender can be a realistic reason for giving a community sentence in a way it cannot be if you are giving a prison sentence. A court will have a range of several different types of community order from which to choose, and suitability for the offender in those cases could quite clearly be a factor.

I do not think that a court can choose between prison establishments, and the question of which prison is most suitable for the offender does not come into the sentencing decision. While it is right for the court to consider the methods of sentencing and whether a certain sentence will benefit the offender when dealing with community sentences, I do not think that the argument can carry the same weight when a prison sentence is being considered. Having said that, of course it is common knowledge, and a common purpose of all people connected with the prison service, that once you have prisoners in your custody you have to do all that you can to reform them, to look after them with humanity, and to see that they leave the prison better than they went into it.

The Earl of Longford

My Lords, the House has a great deal of business before it today and I shall be brief. I am grateful to those who sympathised with my intentions or even supported the thrust of my argument. I found the noble Earl's remarks totally unconvincing. If a fair minded person such as the noble and learned Lord, Lord Ackner, or some judge was asked to take the argument of the noble Lord, Lord Hutchinson, and put it against the reply it would be unlikely that he would decide that the noble Earl, Lord Ferrers, had answered the noble Lord's point.

I shall not go on to discuss these matters today. The noble Lord, Lord Richard, made an important suggestion, with which I am sure the noble Earl, Lord Ferrers, sympathises, that if anybody has anything valuable to say on this subject it can be said perhaps often and strongly when we debate the report of the Woolf Committee. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 4 not moved.]

4.45 p.m.

Clause 3 [Procedural requirements for custodial sentences]:

Earl Ferrers moved Amendment No. 5: Page 3, line 1, leave out subsection (4).

The noble Earl said: My Lords, I beg to move Amendment No. 5 and, if I may, speak to Amendments Nos. 6, 10, 12, 15 and 34. All these amendments fulfil, so far as is possible within the confines of this Bill, the undertakings which I gave at Report stage to bring forward amendments concerning mentally disordered offenders. These respond to the concerns expressed by your Lordships about the way in which such offenders are treated within the criminal justice system. These concerns are ones with which the Government have great sympathy, and I am therefore very glad that we have been able to find ways of meeting at least some of the points which have been raised.

The amendments to and after Clause 3 deal with the question of medical reports, and take up the suggestion made by my noble friend Lord Mottistone that where pre-sentence reports are called for, these should, where appropriate, include a psychiatric assessment by a qualified practitioner. I hope that my noble friend will find that the amendments meet the spirit of his suggestion, though we have, on reflection, adopted a somewhat different approach from the one he suggested to meet the desired end. There are, we think, difficulties about making the psychiatric report actually part of the pre-sentence report. Clause 3(6) provides that a pre-sentence report must always be in writing, whereas the psychiatric report could be, and should be, capable of being given orally, particularly of course if a duty psychiatrist is available and the scheme operates at the court concerned. Moreover, the psychiatric report will contain the doctor's independent clinical judgment and it did not seem to us right that this should be subsumed in, or subordinated to, a pre-sentence report being prepared by a probation officer or social worker. We felt that it should be different.

The new clause after Clause 3 therefore provides that when a pre-sentence report is being obtained, and the offender is or appears to be mentally disordered, the court should also obtain a medical report before it passes a custodial sentence. An exception is provided in subsection (2) for cases where the court is of the opinion that it is unnecessary to obtain a medical report. This might for instance be where sufficient information about the offender's mental state is already available to the court without the need for a new report.

The proposed new clause after Clause 26 responds to the suggestions from the noble Lord, Lord Richard, and the noble Lord, Lord Harris of Greenwich, that the courts should be given access to better information about the facilities available for guardianship or hospital treatment for mentally disordered offenders, and that the time limits for the admission of mentally disordered offenders to hospital should be tightened up. The new Section 39A of the Mental Health Act 1983, which subsection (1) of the new clause inserts, requires local social services authorities to inform the courts, if requested to do so, whether they or any other person approved by the authorities would be willing to receive the offender into guardianship. If so, the court can additionally request the authority to give such information as it reasonably can about the way in which it, or the approved person, could be expected to exercise the powers of guardianship conferred by Section 40(2) of the 1983 Act.

The amendment which we discussed at Report stage also extended to the provision of information in connection with remands of accused persons to hospital for reports or treatment under Sections 35 and 36 of the Mental Health Act 1983. I had hoped that we would be able to cover this in the government amendment, but I have, I am afraid, been advised that this would go beyond the scope of the Bill, Part I of which deals only with the position of convicted offenders and not of accused persons. I hope, nevertheless, that your Lordships will agree with me that the new Section 39A will be helpful in ensuring that the courts will have access to information which will help them when they are minded to make guardianship orders. This will not, of course, preclude the Government from extending the scope of Section 39 of the 1983 Act to cover cases of accused persons in the way envisaged should a future legislative opportunity arise.

Subsection (2) of the new clause after Clause 26, Amendment No. 10, fulfils the undertaking I gave to introduce a power to reduce, by statutory instrument, the time periods for the admission of mentally disordered offenders to hospital. This amendment actually goes further than the amendment which we discussed on Report, since it relates not only to the time limits mentioned in Sections 37 and 40 of the Mental Health Act but also those in Sections 38 and 44.

A reduction in the present time periods could be made only if hospitals were in a position to admit mentally disordered offenders within the new timescales; otherwise, the effect would be that mentally disordered offenders could be committed to prison because the hospital could not admit them within the prescribed time limit. But we shall he working towards the speeding up of the admission of mentally disordered offenders to hospital, and the power provided in subsection (2) of the new clause after Clause 26 will help to encourage that process.

The remaining amendments are either paving amendments or consequential drafting amendments. I beg to move.

Lord Harris of Greenwich

My Lords, I am grateful to the noble Earl for having moved to take account of the amendments put forward in Committee by the noble Lord, Lord Richard, and myself. Before coming on to the substance of the matter, as the noble Earl chose to make a number of general observations about the procedures of the House during the course of his reply to the first amendment, perhaps I may make a few myself.

I do not believe that the debate on Amendments Nos. 1 and 1 A reflected well on the procedures of the House. Even in the brief time that has elapsed since that debate there has been a recognition among many noble Lords on both sides of the House that it will be necessary to look again at our procedures to see whether we can avoid a recurrence of the problem. I say at once that it will not be easy to find a solution to it—I recognise the difficulties that are involved—but I very much hope that the Procedure Committee will look at the matter. Many noble Lords felt deeply dissatisfied. We were discussing two matters simultaneously and creating in the minds of a number of noble Lords some degree of confusion as to what they were being asked to decide upon.

The first substantial amendment in the group requires the courts normally to obtain a medical report before sentencing a mentally disordered offender to custody. This represents a significant improvement on the present legal position and goes some way to meet our view that the courts should always have to obtain a medical opinion in circumstances of this kind. However, if the provision is to work properly the establishment of duty psychiatrist schemes will be required, a matter which we discussed fairly fully at the previous stage of the Bill. These schemes will be required throughout the country to enable reports on mentally disordered offenders to be prepared speedily. If such schemes are not established there is the risk that courts will remand defendants in custody; into the suicide-inducing conditions of prison medical wings. That is what this well intentioned and highly desirable amendment could lead to.

The Government, for reasons which I found difficult to understand, were opposed to laying a duty on the Secretary of State to establish duty psychiatrist schemes, on the same basis as community service when it was first introduced. They resisted it and won a vote on the question, using the argument that they wanted such schemes but were not prepared to have such a duty imposed on the Secretary of State. However, without an extension of duty psychiatrist schemes, there is a risk that the present wholly unsatisfactory position of mentally ill people being remanded into the often appalling conditions of medical wings in Brixton and elsewhere will continue and in some circumstances will be accelerated because of the requirement of this amendment.

I turn now to Amendment No. 10. The second part of this new clause will give the Secretary of State power to reduce to 28 days the time limit by delegated legislation. As I indicated when we discussed this on the previous occasion, I think that this is a sensible way of approaching the problem. Most of us recognise that the 28-day limit is now too long. We very much hope that it will be limited in the way that is set out in the new clause.

I welcome the fact that the Government have moved on matters that were raised by the noble Lords, Lord Richard and Lord Mottistone, and myself. However, without duty psychiatrist schemes there is a risk that the situation could become a great deal more difficult.

Lord Mottistone

My Lords, I thank my noble friend for reflecting in Amendment No. 6 what I sought to put before your Lordships on Report in Amendments Nos. 21 and 22. What he has proposed is slightly different in that the report will not be part of the ordinary probation report. Perhaps that is beneficial. On the other hand, I very much agree with the doubts expressed by the noble Lord, Lord Harris, that the provision will work properly only if we can be sure that a duty psychiatrist is available. It is said that between 10 and 15 per cent. of people in prison today are mentally ill. Psychiatrists will be needed in all courts, not just in a few trial courts. I hope that my noble friend has fully taken on board the implications of Amendment No. 6. I shall not go further than that at this stage except once again to thank him very much.

I also welcome Amendment No. 10. That too could be most helpful for mentally disordered offenders. I hope that it will come about as well. Well done the Government! They have actually done what they said they were going to do, and done it effectively.

Lord Mishcon

My Lords, I think I detect a note of surprise in the remarks of the noble Lord, Lord Mottistone.

Earl Ferrers

Not surprise, my Lords, only congratulations.

Lord Mishcon

My Lords, the noble Lord may have limited himself to congratulations but he was frank enough to express surprise.

On behalf of these Benches I wish to thank the Minister for making a concession with these amendments. I do not intend to repeat speeches admirably made on the need for the duty psychiatrist schemes if we are to see anything practical as a result of the amendment now before us at the instance of the Government.

I wish to make a point on Amendment No. 6 which I realise will only be useful, if I am entitled to use that adjective, in another place when these amendments may be considered and where the Government still have an opportunity to make their own amendments. I am a little worried about the loose wording of the exemption in Amendment No. 6. The amendment refers to "the circumstances of the case" as providing an exemption from the need for the medical report. The Criminal Justice Act 1982 made provision in regard to the necessity for a social inquiry report where the courts were dealing with the sentencing of young offenders.

It is possible that the case law which we have in regard to that section may conceivably be applicable here when dealing with "the circumstances of the case". However, that is not set down and it may be that the Government will see fit to narrow the phraseology in order to give an element of certainty. One can imagine instances where the circumstances of the case will be taken into consideration. One such instance which immediately occurs to a practising lawyer is the situation where there happens to be in the possession of the defendant's lawyer a copy of a recent psychiatrist's report. In such a case it would be a nonsense to call upon this section to enforce the provision by the court of a further report.

That is one sort of instance concerning "the circumstances of the case". Another one is where the accused person, who has now been convicted, has already spent some time in custody on remand and it is intended that there should be a nominal sentence in order that he may be released immediately. How nonsensical in such a situation to demand that the court obtains a medical report! The Government may think that leaving the matter to the broad wording which we have in the amendment could produce a lack of certainty in the future. I merely throw in that suggestion and do so quite humbly.

Obviously, one welcomes the spirit behind Amendment No. 10. However, what is lacking in that amendment is that it does not enable the court to direct how the information will be provided. I should have thought that it would be a practical necessity to ensure that the court could demand the attendance of a representative of the authority. The other comment I should like to make is that it does not extend Section 39 of the 1983 Act to the use by the courts of their remand powers, as is the case under Sections 35 and 36, where it is accepted that hospitals—this is a point often and correctly made by the noble Lord, Lord Harris of Greenwich—are often unwilling to make beds available. For that reason, the amendment as it stands may appear to be lacking in practical weapons for practical enforcement.

Having said that, I make these observations purely with the intention—that is, unless the Minister has some comments to make which show that what I have suggested is quite unnecessary; a procedure he uses very often but with the greatest courtesy—in order to try to strengthen amendments which are obviously desirable in so far as they go some distance. The Minister has carefully considered what was said during previous stages of the Bill from these Benches, from the Benches of the noble Lord, Lord Harris, and also by the noble Lord, Lord Mottistone, who expressed his gratitude in words which I shall always remember.

5 p.m

Baroness Phillips

My Lords, I have a very simple point to make about Amendment No. 6. It is not in contra diction to anything that has been said thus far. It is possible that the courts may have changed in character since I sat as a magistrate; indeed, I appreciate the fact that I may be out of date. However, as regards a medical report which had been submitted, I was always somewhat concerned that when the expert concerned was put in the witness box he could often, in my view, be bullied by the defendant's counsel if he did not like the report. In other words, the expert could be persuaded to say that the defendant was not quite as mentally disturbed as had been thought.

It seems to me that there is no protection in such a situation because subsection (5) of Amendment No. 6 says that the, 'medical report' means a report as to an offender's mental condition made or submitted orally or in writing by a registered medical practitioner who is duly approved". Does that mean that if it is in writing it will not be questioned, but that if it comes before the court it will be?

Earl Ferrers

My Lords, the noble Lord, Lord Mishcon, is in cracking form, if I may say so, this afternoon. He said that he only made observations in a stance of great humility and that if I thought that what he said was unnecessary then I had merely to tell him so. I should stress that whatever the noble Lord says it is never unnecessary; indeed, it is always of enormous interest and a great delight to hear. I can assure him that I entirely accept the fact that what he said this afternoon was said in an effort to be helpful.

That is usually the stance that the noble Lord, Lord Mishcon, adopts. However, I thought that he was a little unfair when he said that my noble friend Lord Mottistone had thanked me with an element of surprise in his voice. I hoped that the noble and learned Lord, Lord Ackner, would be present—indeed I see that he is now in his place—because I thought that he might have choked just a little when my noble friend thanked me for the concessions which we were able to make. The noble and learned Lord said that I sometimes made helpful remarks which were not reflected in the concessions in the amend vents. These amendments are all concessions to my noble friends and to other noble Lords who have spoken on the matter. Therefore, I think that it was not so much with surprise but with elation that my noble friend Lord Mottistone spoke.

The noble Lord, Lord Mishcon, was concerned about the exemption in subsection (2) of Amendment No. 6. I shall certainly look again at the points he made. In my view we need a certain amount of flexibility; for example, where a report is already available. I think that the present wording covers the noble Lord's concern. However, as I said, I shall certainly look at it again to see whether it should be improved—that is, if improvement on anything the Government do is possible.

The noble Lord, Lord Mishcon, also referred to the fact that there was no power to direct how the information would be provided in Amendment No. 10. I believe that it is agreed that the amendment is a useful advance. I am just a little wary of adding yet more prescriptions as to how things should be done, down to the last detail. However, those are my initial reactions and I shall certainly consider what the noble Lord said.

The noble Baroness, Lady Phillips, was concerned about expert witnesses being bullied by defence counsel. I can see that the noble Lord, Lord Hutchinson, is sitting in his seat. I am sure that he thinks that witnesses would never be bullied by defence counsel—

Lord Hutchinson of Lullington

Hear, hear!

Earl Ferrers

—but I am not sure whether witnesses would share the same view. In any event, whatever view one holds, it is not a matter for the Bill. I have no doubt that those noble Lords who are members of the Bar will pass that point down to their colleagues.

The noble Lord, Lord Harris of Greenwich, and my noble friend Lord Mottistone referred, as indeed did the noble Lord, Lord Mishcon, to the duty psychiatrist schemes. Clearly these have been of enormous help. Both my noble friend and the noble Lord, Lord Harris of Greenwich, said that the amendments would require a universal duty to provide duty psychiatrist schemes. I do not think that that is necessarily the implication of the amendments. We are talking about a situation where, in any case, a pre-sentence report on the offender will be prepared. That process is bound to take a few days and the offender will probably be remanded either on bail or in custody. The psychiatric report could be prepared in that interval. However, I accept the fact that the duty psychiatrist schemes have been most helpful. I am most grateful to noble Lords for having given these amendments such a welcome.

Earl Ferrers moved Amendment No. 6:

After Clause 3, insert the following new clause:

Additional requirements in the case of mentally disordered offenders

(".—(1) Subject to subsection (2) below, in any case where section 3(1) above applies and the offender is or appears to be mentally disordered, the court shall obtain and consider a medical report before passing a custodial sentence other than one fixed by law.

(2) Subsection (1) above does not apply if, in the circumstances of the case, the court is of the opinion that it is unnecessary to obtain a medical report.

(3) Before passing a custodial sentence other than one fixed by law on an offender who is or appears to be mentally disordered, a court shall consider—

1. (a) any information before it which relates to his mental condition (whether given in a medical report, a pre-sentence report or otherwise); and
2. (b) the likely effect of such a sentence on that condition and on any treatment which may be available for it.

(4) No custodial sentence which is passed in a case to which subsection (1) above applies shall be invalidated by the failure of a court to comply with that subsection, but any court on an appeal against such a sentence—

1. (a) shall obtain a medical report if none was obtained by the court below; and
2. (b) shall consider any such report obtained by it or by that court.

(5) In this section— duly approved", in relation to a registered medical practitioner, means approved for the purposes of section 12 of the Mental Health Act 1983 ("the 1983 Act") by the Secretary of State as having special experience in the diagnosis or treatment of mental disorder; medical report" means a report as to an offender's mental condition made or submitted orally or in writing by a registered medical practitioner who is duly approved.

(6) Nothing in this section shall be taken as prejudicing the generality of section 3 above.").

Clause 16 [Increase of certain maxima]:

Earl Ferrers moved Amendment No. 7:

Page 11, line 42, leave out ("or disobediences").

The noble Earl said: My Lords, I shall speak also to Amendments Nos. 8, 9, 42 and 42A. On Report I undertook to consider how we might best meet the concerns expressed by the noble Lord, Lord Henderson, and others about the effect of a statutory minimum unit value of £4 in the unit fine scheme for very low income offenders. Amendment No. 9 provides a helpful and sensible solution to the difficulties identified. It allows the courts sufficient flexibility to take account of the circumstances of such offenders where there is a need to do so.

As I said during our earlier debate on this matter, in my view the problem arises where the £4 minimum results in a fine which the offender could pay off only over an excessive period of time. Such circumstances might arise where the offender is given a very stiff fine of, say, 40 units. A £4 minimum unit value would result in a fine of £160. If the offender has no savings to pay the fine and can afford to pay only £2 a week out of his or her income, it would take the offender 80 weeks to discharge the fine. That is clearly undesirable. Such a large fine might also arise where the offender is fined for a number of different offences on the same occasion.

Subsection (2) of the proposed new clause therefore allows a court to remit the whole or part of a unit fine where the value of the unit has been set at the statutory minimum and the court considers that that results in a fine that could not be paid by the offender within 12 months without causing undue hardship. The court can remit the fine at any stage but must inquire into the offender's means—that is, his or her savings as well as income—before doing so. That provision avoids the unit fine scheme falling into disrepute because very low, derisory fines are set. However, it provides a safeguard to ensure that, where the offender is genuinely poor, unjust financial demands are not placed on him or her.

Subsection (3) of the proposed new clause clarifies and replaces the existing provision in Clause 17(9). This allows a court to remit all or part of a fine in circumstances in which insufficient information was available to the court at the time of sentencing to make a precise determination of the value of the unit and, in the light of better information about the offender's disposable weekly income, the court judges that it would be unjust to enforce a fine based on the original determination.

Amendment No. 8 is consequential on the new clause. Amendments Nos. 7, 42 and 42A correct a difficulty that arises in the application of the unit fine provisions to financial penalties imposed for failure to comply with a court order under Section 63 of the Magistrates' Courts Act 1980. Special arrangements exist for the enforcement of such penalties which render the unit fine scheme inappropriate. Amendments Nos. 7 and 42 therefore remove those penalties from the scope of the scheme. Amendment No. 42A is merely consequential. I beg to move.

Lord Henderson of Brompton

My Lords, I greet the amendment with elation and gratitude. Remarks have been made about the procedures of the House. I am not sure that they need amendment. In this case they have worked admirably. This matter was mentioned on Second Reading. It was resisted, I thought unreasonably, in Committee. On Report reason seemed to enter into the Government's mind and they proffered hope. The hope has been realised on Third Reading. That is a paradigm of the good workings of the procedures of the House. I congratulate and thank the Minister.

Lord Harris of Greenwich

My Lords, I agree with the noble Lord, Lord Henderson of Brompton. When we first discussed this matter, as he said, a number of us were worried by the Government's attitude. All the more so because it flew in the face of the views of magistrates' courts' clerks in the experimental areas. A number of us found it difficult to understand why the Government did not accept their advice. Nevertheless, the matter has been discussed on the Floor of the House and we had some informal discussions with the Minister, which I welcomed. It is right to congratulate the noble Lord, Lord Henderson of Brompton, on behalf of the whole House. Without his persistence, we should not have had the amendment today.

5.15 p.m.

Lord Mishcon

My Lords, how right is the noble Lord, Lord Harris, to extend those congratulations and to say that they come from the whole House. We are consistently indebted to the noble Lord, Lord Henderson of Brompton. He talked about this matter being a victory for the procedures of the House. We are acquainted with the procedures of the House, which are invariably Second Reading, Committee stage, Report and Third Reading. The procedures are all right. What is wrong is that, despite all those stages, the Government still hold firmly to a view of which some of us disapprove. It is an occasion to say thank you also to the Minister for removing to a great degree the concern expressed at other stages of the Bill. I echo that gratitude from these Benches.

Earl Ferrers

My Lords, I am deeply grateful to your Lordships for the gratitude for the amendments which has been expressed and for the fact that the noble Lord, Lord Mishcon, approves of them. He said that 111; agreed with the noble Lord, Lord Henderson of Brompton, that this was a victory for the procedures of the House. Of course it is. I agree with him. That is because the procedures of the House have worked as they are supposed to. An amendment was tabled in Committee and resisted for good reasons. Your Lordships did not like that and so an amendment was tabled on Report. The Government considered it further. Your Lordships did not table an amendment on Third Reading. It was the Government who tabled the amendment on Third Reading. That is what Third Reading is for.

What I was complaining about earlier was that other noble Lords tabled amendments in Committee and on Report and then again on Third Reading. In other words they were having three bites of the cherry. That seems to me —did the noble Lord, Lord Harris, say "shame"?

Lord Harris of Greenwich

My Lords, I made what I intended to be a high quality joke. I was saying that there could not be much of the cherry left if three people had bitten into it.

Earl Ferrers

My Lords, we did not hear the high quality joke because the noble Lord does not normally make them—in debate, at least. I am glad that it was of such a high quality that he was able to repeat it to us. That has now completely distracted me from what I was saying, which was to thank your Lordships for approving of the amendment.

Clause 17 [Fixing of certain fines by reference to units]:

Earl Ferrers moved Amendment No. 8:

Page 13, line 17, leave out subsection (9).

Earl Ferrers moved Amendment No. 9:

Before Clause 20, insert the following new clause:

Remission of fines fixed under section 17

(".—(1) This section applies where, in the case of a fine the amount of which has been fixed by a magistrates' court under section 17 above, the determination of the offender's disposable weekly income—

1. (a) would have been of a lesser amount but for subsection (5) (a) of that section; or
2. (b) was made by virtue of subsection (8) of that section.

(2) In a case falling within subsection (1) (a) above, the court may, on inquiring into the offender's means or at a hearing under section 82(5) of the 1980 Act (issue of warrant of commitment for default), remit the whole or any part of the fine if the court considers that its payment by the offender within twelve months of the imposition of the fine would cause him undue hardship.

(3) In a case falling within subsection (1) (b) above, the court may, on inquiring into the offender's disposable weekly income or at such a hearing as is mentioned in subsection (2) above, remit the whole or any part of the fine if the court thinks It just to do so having regard—

1. (a) to the amount of that income as determined by the court under this subsection in accordance with rules made by the Lord Chancellor; and
2. (b) if applicable, to the provisions of subsection (2) above.

(4) Where the court remits the whole or part of fine under subsection (2) or (3) above after a term of imprisonment has been fixed under the said section 82(5), it shall also reduce the term by an amount which bears the same proportion to the whole term as the amount remitted bears to the whole fine or, as the case may be, shall remit the whole term.

(5) In calculating the reduction in a term of imprisonment required by subsection (4) above, any fraction of a day shall be left out of account.").

The noble Earl said: My Lords, I spoke to the amendment with Amendment No. 7. I beg to move.

Earl Ferrers moved Amendment No. 10:

After Clause 26, insert the following new clause:

Treatment of offenders under 1983 Act

(".—(1) After section 39 of the 1983 Act there shall be inserted the following section— Information to facilitate guardianship orders.

39A. Where a court is minded to make a guardianship order in respect of any offender, it may request the local social services authority for the area in which the offender resides or last resided, or any other local social services authority that appears to the court to be appropriate—

1. (a) to inform the court whether it or any other person approved by it is willing to receive the offender into guardianship; and
2. (b) if so, to give such information as it reasonably can about how it or the other person could be expected to exercise in relation to the offender the powers conferred by section 40(2) below; and that authority shall comply with any such request."

(2) After section 54 of that Act there shall be inserted the following section— Reduction of period for making hospital orders.

54A.—(1) The Secretary of State may by order reduce the length of the periods mentioned in sections 37(4) and (5) and 38(4) above.

(2) An order under subsection (1) above may make such consequential amendments of sections 40(1) and 44(3) above as appear to the Secretary of State to be necessary or expedient."

(3) In section 143(2) of that Act (general provisions as to regulations, orders and rules), after the words "this Act" there shall be inserted the words "or any order made under section 54A above".").

The noble Earl said: My Lords, I spoke to the amendment with Amendment No. 5. I beg to move.

Lord Hylton moved amendment No. 11:

After Clause 26, insert the following new clause:

("Amendment of Criminal Justice Act 1961 to facilitate the transfer of prisoners

. In section 26(4) of the Criminal Justice Act 1961 for the words "his sentence shall be treated" there shall be substituted the words "his sentence may be treated".").

The noble Lord said: My Lords, I explained the background and intent of the amendment at earlier stages of the Bill. I do not intend to repeat myself now. On Report the Minister was kind enough to say: I accept that the current arrangements sometimes create difficulties for the families of prisoners who have to travel a long way to visit … We are considering further what can be done … We hope to conclude our consultations very shortly".—[Official Report, 20/5/91; col. 32.] That was a positive statement, given that we are considering the hardship imposed on these families living 500 miles or sometimes more away from relatives imprisoned in England. Each visit thus requires a round journey of 1,000 miles or more, with many changes of transport and overnight stops. The effort and cost involved in such visits over the period of a 15 or 20-year sentence almost defies the imagination.

My intention therefore in moving the amendment today was to draw from the Government their ideas on mitigation of this hardship and on the better maintaining of family relationships. As it happens, the noble Earl wrote to me in a letter dated 3rd June. Perhaps I may quote from it. He says: We have decided, therefore, in consultation with colleagues in Northern Ireland and Scotland, that the arrangements governing such movements should now be reviewed comprehensively. This will provide the opportunity to consider appropriate ways in which inmates might be afforded greater access to their families and to their home communities".

This review will be undertaken by officials from all three departments and will look at the statutory and other provisions which govern transfers. Your helpful suggestions about the possible increased use of temporary transfer powers will also be fully considered. We expect the outcome of the review to be available by the autumn and I can assure you that its recommendations will be given early and careful consideration". Perhaps I may ask the noble Earl to confirm that when he used the word "movements" he meant both the transfer of prisoners and visits by the families to people in England.

In practice, the effect of the letter means that we shall probably have to wait six months or a year for major improvements. I therefore wish to invite the Government to bring in minor and transitional improvements now, without further delay. For example, the practice could be avoided of moving prisoners in such a way that their relatives arrive at a prison only to find that the prisoner has gone, that he has been shifted elsewhere. I beg to move Amendment No. 11 standing in my name and in the names of the noble Lord, Lord Hunt, and the noble Baroness, Lady Faithfull.

Earl Ferrers

My Lords, this is an example of the high quality joke of the noble Lord, Lord Harris of Greenwich, backfiring. The amendment was put down at Committee and Report stages and evidently there is plenty of the cherry left for the noble Lord, Lord Hylton, to pick at on Third Reading. He has spoken and written to me and to my right honourable friend Mrs. Rumbold. He knows our concern about the complexity of the problems involved, not least because they cut across historically different jurisdictions. As he said, I wrote to him to explain the position. The noble Lord knows that although the Government have sympathy for his intentions and we share his concern for the welfare of inmates and their families, we do not see the amendment as a suitable vehicle for bringing about change. In our view the amendment would introduce an unnatural and unworkable mix of the present distinct and separate statutory and discretionary powers exercised by Ministers in administering prisoners within their jurisdictions. This would only create confusion both for the administrators and for the inmates concerned.

I was able to advise the House when this matter was last considered that my right honourable friend Mrs. Rumbold was considering further the scope for alleviating the problems caused to inmates and their families by the operation of the 1961 Act. I am sure that your Lordships will be glad to learn that, in consultation with colleagues in Northern Ireland and Scotland, we have decided to instigate a comprehensive review of the present arrangements which will be able to take full account of the problems to which the noble Lord has drawn attention. I confirm that they will cover both problems about which he is concerned.

The review will be carried out by senior officials from the Home Office in consultation with their counterparts in the Scottish Office Home and Health Department and the Northern Office. It will consider the present statutory and discretionary arrangements for transfers and make recommendations to facilitate these, if necessary by considering the need for any legislative changes. Detailed arrangements for the conduct of the review will need to be considered in consultation with Scottish and Northern Ireland colleagues, but it is intended that the results of the review should be available by the autumn.

Lord Hylton

My Lords, I regret a little that the noble Earl should find it necessary to say that I am picking at the cherry. After all, we are considering a major human problem, even if it does not affect a large number of people. What is more, the problem has been outstanding for 15 or more years. I believe I am entitled to ask the Government to press on with their consideration at the maximum possible speed and not to elaborate the matter by bringing in Scotland because there are so few transfers between Scotland and England. If the noble Earl wishes to intervene I shall give way.

Earl Ferrers

My Lords, with the leave of the House, the description "picking at the cherry" was not supposed to reflect the importance of the problem, but merely the conduct of the proceedings of the House by the noble Lord, Lord Hylton.

Lord Hylton

My Lords, I accept that rather barbed reassurance and in doing so also beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 27 [Savings for mitigation and mentally disordered offenders]:

Earl Ferrers moved Amendment No. 12:

Page 20, line 5, leave out ("Mental Health Act 1983") and insert ("1983 Act").

Clause 28 [Effect of previous convictions]:

Lord Ackner moved Amendment No. 13:

Page 20, line 11, leave out ("or any response of his to previous sentences").

The noble and learned Lord said: My Lords, this is the first and only possible bite at the cherry. The noble Earl knows why I could not put the proposal forward at Committee stage. He also knows how an assignation—temporary though it was—frustrated my attempt to put it forward at Report. This is my only opportunity and I hope that the raised stick will not be levelled at me. I also hope that in the process of having the cherry in this manner I shall not choke, as the noble Earl thought I had done (although I had not) in regard to one of the previous amendments.

I seek to persuade your Lordships that there should not be removed from the sentencer, when considering whether or not a sentence merits custody, the response of the offender to his previous sentences. This is no judicial philosophy that I am airing for the first or last time. I seek to support what Parliament itself provided as recently as three years ago in the Criminal Justice Act 1988. Section 123(3), (4A), dealing with young offenders, provides that an offender qualifies for a custodial sentence if—and I shall read only paragraph (a): he has a history of failure to respond to non-custodial penalties and is unable or unwilling to respond to them". Parliament therefore thought that it was a relevant sentencing factor that needed to be spelt out in terms that a failure to respond to non-custodial penalties and an inability to do so justifies a custodial sentence.

Now we have a total reversal: the sentencer is not allowed to have regard to that. The reaction of the intelligent layman—if I am allowed so to describe him —was provided by the noble Lord, Lord Elton, on 26th March this year on the first day in Committee on the Criminal Justice Bill. He said: Those of us who work directly or indirectly with offenders are closely interested in how they react to sentences. It seems to me, at least, a bit like telling a doctor that he may consider that the patient has had a disease in the past but may not consider what response he has made to the treatment he was given for that disease".—[Official Report, 26/3/91; col. 995.]

The way in which the public will react to this measure, was commented on in an exchange between the noble Lord, Lord Hutchinson of Lullington, and the noble Lord, Lord Gisborough, in the debate on 16th April on the second day of the Committee stage.

The noble Lord, Lord Hutchinson, said: Here at last is a Bill which is going to stop that eternal practice and make it perfectly proper to impose community sentence, not prison sentences, over and over again".— [Official Report, 16/4/91; col. 1386.]

The noble Lord, Lord Gisborough, with his knowledge of the problems experienced on the magistrates' bench replied at col. 1387: The noble Lord, Lord Hutchinson, referred to people going to prison over and over again. However, there are some villains who continue to do the same thing over and over again and are a danger to the public. I dread to think what the public w mild say if such offenders were just given more and more community service which they failed to carry out and could not go to prison". That is one of the examples that I mentioned when we were debating Amendment No. 1A of the Government requiring the sentencer to sit in blinkers. This is one aspect of reality which Parliament is insisting upon, and will no doubt seek to justify, as it is a reversal of the policy laid down in a section of the Criminal Justice Act 1988 to which I have already referred which makes it, to this extent, impossible to bring reality to bear. That is all I am seeking to do. I beg to move.

5.30 p.m.

Lord Hutchinson of Lullington

My Lords, I hope the House will resist the amendment. As I understand it, the purpose of the amendment is to permit the courts to regard the offence with which they are dealing as a more serious offence because the offender has failed to respond to previous sentences which have been passed upon him; that is, the amendment seeks to make the offence before the court a more serious one. It is not a question of how the courts are dealing with the sentence before them at that moment. The amendment states that the offence can be looked upon as a more serious one, and that therefore a custodial sentence would be justified when the gravity of that offence would not justify such a sentence.

I suggest that the amendment simply seeks to undermine the whole philosophy of this Bill. It is trying to maintain the status quo. The noble and learned Lord is a frustrated biter of this cherry. I hope I may describe him in that way. He quoted a noble Lord who referred to accused persons as villains. I far prefer Amendment No. 14 standing in the name of the noble Earl, Lord Ferrers. That amendment seems to me to be quite unexceptional and to fill the purpose of the Bill. It is unexceptional because it refers back to the seriousness of the offence which is at the very root of the philosophy of the Bill. It refers back to Clause 3(3)—which has been ignored so often in the arguments used by those who wish to maintain the status quo—where all along aggravating factors have been permissible as being relevant to the matter of seriousness.

Subsection (2) of the proposed new clause in Amendment No. 14 states: Where any aggravating factors of an offence are disclosed by the circumstances of other offences committed by the offender, nothing in this Part shall prevent the court from taking those factors into account for the purpose of forming an opinion as to the seriousness of the offence". That amendment seems to me to fill the purpose of the Bill. I believe Amendment No. 13 should be resisted.

Lord Campbell of Alloway

My Lords, I fully understand and sympathise with the purpose of the amendment of the noble and learned Lord, Lord Ackner, but the problem is that it runs counter to Amendment No. 14. Amendment No. 14 goes a long way to meet the objections which have been raised on this matter. Amendment No. 13 also runs counter to what I understand to be a central concept of this Bill. When the noble and learned Lord, Lord Ackner, says the measure in the Bill makes a court sit in blinkers, I wonder whether it really does. I seek help on this matter from other noble Lords. Admittedly, the court may not have regard to the response in this context but surely—I seek the assistance of any noble Lord, in particular that of my noble friend the Minister on this matter—the proposed subsection (2) in Amendment No. 14 allows the court to have regard to previous convictions, as distinct from the response to those previous convictions, as an aggravating factor where appropriate. Therefore I do not believe that the court is totally blinkered.

The other point that I seek help on relates to factors to be taken into consideration. Can those factors to be taken into consideration be dealt with under the terms of the proposed subsection (2) of Amendment No. 14? Those do not relate strictly to previous sentences; they are previous offences for which the accused is asking to be sentenced. I am a little confused at the moment as to whether those factors may be taken into account under the proposed subsection (2) of Amendment No. 14 in its construction setting in the Bill as a whole. I seek assurance from any noble Lord that that is the case. As regards factors to be taken into consideration, one does not take into account in sentencing those offences to which there is a plea of guilty which have no relationship to the offence with which the offender has been convicted or to which he has pleaded. However, what happens with offences that are of the same nature?

Lord Ackner

My Lords, we shall shortly reach Amendment No. 15A which stands in my name. That is an amendment to Clause 30 and it deals specifically with offences to be taken into consideration. It might be more helpful to wait until we reach that amendment as the matter is dealt with specifically under that amendment. No doubt we shall have to study Clause 30 in relation to that matter. The amendment relates to subsection (2) (b).

Lord Campbell of Alloway

My Lords, I am very much obliged to the noble and learned Lord. I am fully content to leave any matter over to a subsequent stage. If it is dealt with at this stage, assuming that TICs may be taken into account in one way or another where appropriate, I for my part would prefer Amendment No. 14. For that reason, and the other reasons, I would reject the amendment.

Lord Richard

My Lords, I rise to support the opposition to the amendment as expressed by the noble Lord, Lord Hutchinson, and the doubts expressed by the noble Lord, Lord Campbell of Alloway. I hope that the Government will resist the amendment. It would allow courts to regard an offence as more serious because of the offender's response to previous sentences. That would mean that a court could pass a custodial sentence on grounds of seriousness for an offence whose gravity would not otherwise justify custody if the offender had failed to respond to previous non-custodial penalties.

However one looks at the noble and learned Lord's amendment, it would clearly seriously undermine the Bill's emphasis on matching sentences to the seriousness of the offence rather than to the offender's previous record. That runs counter to the whole thrust of the Bill and we could not support it.

Lord Boyd-Carpenter

My Lords, I find myself in support of the amendment of the noble and learned Lord, Lord Ackner. If one is considering what is an appropriate sentence to impose upon anybody it seems to me that the response of that person to previous sentences is relevant and should not be excluded as the Bill in its present form suggests. After all, if one is considering whether or not a custodial sentence is necessary it is surely relevant to observe whether other and lesser sentences on that particular individual have been effective. If they have not been effective that is surely a matter at least to be taken into consideration in deciding to impose a custodial sentence.

When an amendment of this sort is moved by someone with the vast experience of these matters of the noble and learned Lord, Lord Ackner, my noble friend the Minister ought to take it seriously.

5.45 p.m.

Earl Ferrers

My Lords, of course I take the amendment seriously, as I do all the amendments which the noble and learned Lord has put forward. However, because one takes them seriously one is not necessarily obliged to agree with them. The noble Lord made a very pertinent point. I could not help thinking that the noble and learned Lord had had quite an interesting experience with this Bill in one way or another. He was unable to be here at Committee stage, which he told me about. He referred to the prospect of sticks, cherries and choking. He has had an assignation and has unfortunately failed to say, "not content" to an amendment. Judges normally have a very wide experience of life. The higher up the judicial ladder one goes the greater one's experience becomes. It is interesting to see that the noble and learned Lord's experience of the procedures of the House has been widened during the course of the Bill.

At an earlier stage we discussed Amendment No. 1 in conjunction with the noble and learned Lord's Amendment No. 1A, at which stage I was able to refer to our Amendment No. 14. We discussed the principle of whether or not the courts should be able to take account of previous convictions in deciding the appropriate sentence for the offence before the court in the context of our consideration of Amendment No. 14. As I explained then, I do not believe that the mere fact of the offender having previous convictions should lead necessarily to a heavier sentence. The circumstances of previous offences may point to aggravating factors and Clause 28 now makes it quite clear how those are to be dealt with. However, in general, we would wish to avoid sentencing on record.

My noble friend Lord Campbell of Alloway said that he preferred my amendment. He was concerned about whether subsection (2) allows the courts to have regard to previous offences as aggravating factors. My noble friend was quite right. The circumstances of other offences can be taken into account as aggravating factors. I can confirm that that also applies to offences which the offender asks to be taken into consideration—which are the TICs.

The point to which the amendment of the noble and learned Lord, Lord Ackner, directed our attention is whether the offender's response to a previous sentence should affect the sentence which he receives for a new offence. The principle which is enunciated in the Bill is that as a general rule the sentence for each offence should be that which is commensurate with its seriousness. An important strand of the policy is that community penalties will be punishments in their own right. They will not be what used to be known as alternatives to custody, namely, a second chance to go straight, failing which the offender would receive a custodial sentence. Each community penalty includes restrictions on the offender's liberty. It is those restrictions which are the punishment for the offence. Once the offender has taken his medicine, whether it is in the form of a custodial sentence or a community sentence, that ought to be the end of the matter so far as concerns that particular offence.

My noble friend Lord Boyd-Carpenter was concerned about what happens when people do not respond to previous community penalties. The idea of increasing the penalty for a new offence because the offender has somehow failed to respond to a previous community penalty is incompatible with the approach to sentencing. It is, I fear, another version of the practice which has been called sentencing on record to which I referred earlier.

The noble and learned Lord, Lord Ackner, pointed out at Report that Section 1 of the Criminal Justice Act 1982, as amended by Section 123 of the Criminal Justice: Act 1988, allows a young offender to receive a custodial sentence if: he has a history of failure to respond to non-custodial penalties and is unable or unwilling to respond to them". We have not translated that provision into the Bill because, as I have explained, it should be the offence which the offender has committed rather than how he has responded to previous sentences which ought to determine the sentence which he is to receive.

It is interesting to see that in interpreting the provision the Court of Appeal has taken the view that failure to respond to non-custodial sentences in the past should not necessarily be taken as meaning that an offender will not respond to them if they are imposed again. Clause 28(1) tries to reflect the Court of Appeal view on the matter.

The noble and learned Lord is concerned that courts should have proper powers to deal with offenders who receive community sentences but who then either fail to carry them out properly or commit further offences. I agree, but I suggest that the right way to achieve that is not by increasing the penalty for the new offence. The new offence ought to be punished according to its seriousness. If there has been a breach of the requirements of an earlier community sentence that breach should be dealt with under the provisions of Schedule 2 to the Bill.

Breaches of community sentences can be punished under Schedule 2 by means of a fine, a community service order or an attendance centre order. The order which has been breached can be revoked and the offender can be sentenced afresh in any manner in which he would originally have been sentenced. If the offender wilfully and persistently breaches the requirements of a community sentence, that can be treated as a refusal to consent to the order concerned, making the offender liable to receive a custodial sentence in accordance with Clause 1(3) of the Bill.

Therefore, the courts will not lack powers to deal with offenders who breach the terms of their orders. The commission of further offences during the currency of a community sentence is a different matter. A further offence will not in itself be a breach of the terms of the order, but the offender can receive a suitable penalty for that offence.

I hope that from what I have said the noble and learned Lord will see that the Bill already gives the courts ample powers to deal with offenders who fail to comply with the requirements of the community sentences that they are given. I hope that he will therefore find that the Bill is suitable in its present form.

Lord Gisborough

My Lords, before my noble friend sits down, perhaps he will confirm one point. I believe that he said that, if a community punishment was not carried out properly, an offender could be awarded a further community service punishment. Is there much likelihood that that would be carried out well either?

Earl Ferrers

My Lords, if the community sentence is breached, action could be taken in respect of that breach. If the offender then commits another offence, the sentence which is given for that offence will be the one appropriate to that offence.

Lord Ackner

My Lords, perhaps I may reply with three distinct points. First, the noble Lord, Lord Hutchinson of Lullington, said that if my amendment went through—I quote his words—it would undermine the whole philosophy of the Bill. That is an odd statement to make when one bears in mind that Parliament specifically provided for what I seek only three years ago in relation to young offenders in an Act which was designed essentially to try to keep them out of prison. It was not merely a matter of the judge having power if there was a failure to respond to previous sentences; Parliament provided that an offender qualified for custodial sentence. I venture to suggest that, if the amendment strikes at the whole philosophy of the Bill, there is something deeply suspect about that philosophy. I suggest that it aims to keep out of prison those whom the public would in many respects expect to be protected from as regards further offences.

Secondly, we have yet to debate Amendment No. 14. I have not touched on it because I like to keep some of my powder dry, but it does not in terms or by implication give any entitlement to have regard to a failure to respond to previous sentences. In fact, quite the contrary is true because subsection (2) limits aggravating factors to circumstances of other offences committed by the offender. The failure to respond to previous sentences is in no way mitigated or permitted under subsection (2), so the answer offered by the noble Earl, Lord Ferrers, is no answer at all. The answer which was sought by the noble Lord, Lord Campbell of Alloway, is that, as the Bill now stands, a failure to respond to previous sentences cannot in any way be used to reflect upon the seriousness of the offence or offences before the courts.

Finally, I ask your Lordships to consider what the public will make of this situation which applies to all those blinkers that we place upon the judiciary. In this case there stand side by side to be sentenced one man with no previous convictions, asking for no offences to be taken into consideration, and therefore the question of response to previous sentences is irrelevant; and another man with a string of previous convictions. You have also a man who has asked for a large number of offences to be taken into consideration and a man who has been treated over and over again unsuccessfully with non-custodial sentences. Both their offences are to be treated as being of the like seriousness. I submit to your Lordships that that is a farce and it should not be permitted.

On Question, amendment negatived.

Earl Ferrers moved Amendment No. 14:

Leave out Clause 28 and insert the following new clause:

Effect of previous convictions etc

(".—(1) An offence shall not be regarded as more serious for the purposes of any provision of this Part by reason of any previous convictions of the offender or any failure of his to respond to previous sentences.

(2) Where any aggravating factors of an offence are disclosed by the circumstances of other offences committed by the offender, nothing in this Part shall prevent the court from taking those factors into account for the purpose of forming an opinion as to the seriousness of the offence.").

The noble Earl said: My Lords, I spoke to Amendment No. 14 when speaking to Amendment No. 1A moved by the noble and learned Lord, Lord Ackner. I explained why in those circumstances we considered that Amendment No. 14 was to be preferred to his amendment. I do not wish to weary your Lordships by repeating all the arguments that I gave then. I merely say that the courts might have some difficulty in interpreting the expression a series of similar offences". There seems to be scope there for appeals where an offender who was sentenced on that basis disputed whether the offences concerned were similar or not.

I merely remind noble Lords of the main points of the amendment. The first is to make Clause 28 clearer in relation to the exclusion of the practice of sentencing on record and the second is to make clear nevertheless that circumstances of other offences can be taken into account as aggravating factors. That goes quite a long way to meet the noble and learned Lord's concerns. I beg to move.

Lord Ackner

My Lords, with great respect I venture to submit that there is clearly on the face of it a contradiction between subsections (1) and (2). New subsection (1) states in terms —I leave out the response to previous sentences: An offence shall not be regarded as more serious for the purposes of any provision of this Part by reason of any previous convictions. That is clear and unequivocal. We then go on to new subsection (2) and say that previous offences can be considered as aggravating factors. That is a conflict between new subsections (1) and (2). At least the existing clause began by saying Subject to subsection (2) below", but this answer to everyone's prayer does not even contain that provision. There is therefore a clear conflict and the new clause cannot achieve what the noble Earl says it achieves.

Lord Mishcon

My Lords, I hesitate to cross swords with the noble and learned Lord when it comes to interpretation of a statute in regard to which he has an enviable reputation, but is what he said a moment ago correct? As I read subsection (1) of the amendment, it was perfectly clear that the one thing to which you could not go back was the conviction. The other thing to which you could not go back was a failure to respond to a previous sentence after conviction. I read subsection (2) of the amendment as dealing not with the conviction as such or the behaviour after sentence, but with particularly aggravating factors of an offence, not in regard to the sentence, the conviction or the response to previous sentences. Perhaps I may make a personal point. I wish that there was some definition of what might be deemed to be aggravating factors, but, having said that, new subsection (2) definitely relates to the factors of an offence and does not relate to the conviction, the sentence or the reaction to a sentence.

Lord Ackner

My Lords, before the noble Lord sits down, I wonder whether he can help me. Is he concluding from subsection (2) that one can have regard to the offender's previous record in deciding on the seriousness of the offence by reason of that clause?

Lord Mishcon

My Lords, with the leave of the House, my answer is that the way in which I read it is that one can look at the circumstances of other offences committed by the offender but only when there are aggravating factors of an offence which are disclosed by the circumstances of the other offences.

Perhaps I put forward a ridiculous example, but suppose that on the previous occasion of an offence, while a man was being sentenced he struck out and hit the learned judge who was sentencing him. That, I imagine, would be an aggravating factor which related to a previous offence, but it has nothing to do with the conviction as such or the reaction to the sentence, which is what the noble and learned Lord prayed in aid when he moved Amendment No. 13. I may be right or wrong but that is how I read the two subsections and did not therefore find them in conflict.

6 p.m.

Earl Ferrers

My Lords, I am grateful to the noble Lord, Lord Mishcon, for explaining his view of the amendment. It is in fact the same as mine. I hesitate to take issue with the noble and learned Lord, Lord Ackner, on a subject on which he is such an expert and I do so in a humble way. However, he said that there was a conflict between subsections (1) and (2). I do not think that there is a conflict because Clause 14(1) states: An offence shall not be regarded as more serious for the purposes of any provision of this Part by reason of any previous convictions of the offender or any failure of his to respond to previous sentences. Subsection (2) states: Where any aggravating factors of an offence are disclosed by the circumstances of other offences. That does not refer to the convictions. Subsection (1) refers to the convictions; subsection (2) refers to other offences. I believe that that is the reason why it is perfectly possible, when sentencing, for the aggravating factors of other offences to be taken into account.

Clause 30 [Interpretation of Part I]:

Earl Ferrers moved Amendment No. 15:

Page 20, line 43, leave out ("Mental Health Act 1983") and insert ("1983 Act").

The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 5. I beg to move.

Lord Ackner moved Amendment No. 15A:

Page 21, line 25, leave out paragraph (b).

The noble and learned Lord said: My Lords, this was the amendment to which I referred when the noble Lord, Lord Campbell of Alloway, was kind enough to allow me to intervene. Perhaps noble Lords would be kind enough to go back to Clause 1(2), which is the subsection that places the embargo on aggregation of more than one other offence: Subject to subsection (3) below, the court shall not pass a custodial sentence on the offender unless it is of the opinion—

1. (a) that the offence, or the combination of the offence and one other offence associated with it, was so serious that only such a sentence can be justified for the offence."

One inquires: What does "one other offence associated with it" mean? Turning to page 21 of the Bill, at Clause 30(2) one reads: For the purposes of this Part, an offence is associated with another if—

1. (a) the offender is convicted of it in the proceedings in which he is convicted of the other offence"—

there is the multiple offender— or (although convicted of it in earlier proceedings) is sentenced for it at the same time as he is sentenced for that offence". A typical example is where an offender pleads to three out of 10 charges and fights the other seven. Then comes paragraph (b); it is that paragraph which I invite our Lordships to excise: [or] the offender admits the commission of it"— the word is in the singular— in the proceedings in which he is sentenced for the other offence and requests the court to take it into consideration in sentencing him for that offence".

So the position is quite simple. If one aggregates two offences, that is the end of the matter; one cannot take into consideration any outstanding offences for the purpose of considering the seriousness of the offence in order to consider whether a custodial sentence is appropriate. If there is no aggregation, one can take one of the assumed, hypothetical 50 or 60 outstanding offences and one only.

I invite the House to say that such a piece of blinkering—it is yet another example—is quite uncalled for. An accused person voluntarily going through the procedure of signing the appropriate document and having the matter explained to him wants a clean sheet and therefore says to the judge, "Here are outstanding offences which I admit. When you sentence me, which means when you decide how serious my offence is and what justice demands, I want you to take them into consideration". As the noble and learned Lord, Lord Scarman, said in a much cited case in the sentencing encyclopaedia, this is a very desirable procedure for the purpose of the administration of justice; it clears up outstanding offences and enables the accused to start with a clean sheet.

When he makes the offer now, the judge has to say, "I cannot take into account 49 of your offences or even all 50 of them"—or even one of them—if he is going through the process of aggregating two offences. He has to say, "I cannot take them into account in considering the seriousness of your offence for the purpose of deciding upon whether or not you should have a custodial sentence".

I respectfully submit that that is wholly unjustified. What is one seeking to achieve'? Is the judge to say in terms: "Since the Criminal Justice Act of 1991 came into force, I am not prepared to take into account in considering the seriousness of your offence for the purpose of deciding whether to impose a custodial sentence more than one offence. You can offer me one but the rest will have to remain unresolved"? Or is he to say: "Since I am aggregating two offences, you yourself even cannot offer me one; so I cannot take them into account"? I venture to submit that there is not the slightest justification at all for that. There is no jurisprudence which indicates that the courts are in any way going wrong in adopting the current procedure. It has been expressed by no less a person than the noble and learned Lord, Lord Scarman, as being a highly desirable process. What on earth are we trying to do? That is why I have raised the amendment. I beg to move.

Lord Richard

My Lords, the noble and learned Lord may be surprised that I support the amendment. However, I support it on totally different grounds from those upon which he moved it.

The noble and learned Lord and the Minister will be aware that one of the arguments raised during the course of discussion on the Bill is that there is a difference not only in degree but in kind between a conviction and an offence which is being taken into consideration. Those of us who have taken part in debates on the Bill from the beginning will know of that argument raised by this side of the House. While one can aggregate a previous conviction if it is associated with the conviction for which somebody is being sentenced, one should not be able to aggregate an offence which is being taken into consideration with the offence for which the person is being sentenced.

The amendment proposed by the noble and learned Lord would have precisely that effect. I hope that it is not too much of a surprise to him that therefore we support his amendment although on totally different grounds from those on which he moved it.

Lord Hutchinson of Lullington

My Lords, I always like to come to the assistance of the noble Earl. It is some indication of the complexity of the Bill that these different views are being put forward on one amendment.

I suggest that when the noble and learned Lord talks about "blinkering" he really means establishing a new approach to sentencing. That is the effect of all the clauses. There seems still a confusion between Clauses 1 and 2 in the noble and learned Lord's mind. With reference to Clause 1, his picture of an accused person putting forward—to use his phrase—offences that he wants taken into consideration in order that the court may justify giving him a custodial sentence seems completely to confuse the issue. Of course an accused person will not do that at that stage. The last thing that he will wish to do is to put forward a TIC in order to enable the court to justify sending him to prison.

Clause 2 is phrased differently. The accused person will put forward his TICs at the moment of sentence. Clause 2 states: The custodial sentence shall be for such term … as in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and other offences associated with it. That is different phraseology.

Surely the purpose of the Bill is to try to stop putting forward a series of TICs and to encourage the prosecuting authority to put the offences into the indictment. When the offences are put into the indictment, the appropriate wording is in Clause 30, "Interpretation of Part I": an offence is associated with another if the offender is convicted of it in the proceedings of which he is convicted of the other offence". Therefore if it is properly put in the indictment it will be dealt with properly. One other TIC can be regarded by the court, and only one.

That is a new approach for sentencing. It does not seem to me to raise any great problem once one understands that the Government are trying to establish a completely different 4approach to sentencing. It is described by the noble and learned Lord repeatedly as "blinkered". I hope that the amendment will be resisted.

Earl Ferrers

My Lords, I accede to the request of the noble Lord, Lord Hutchinson of Lullington, as best I can. If the amendment of the noble and learned Lord, Lord Ackner, were accepted, it would make it almost impossible to continue with the valuable system of enabling courts to take account of offences which they are asked to take into consideration. The noble and learned Lord seeks to remove subsection (2) (b) of Clause 30, which states: The offender admits the commission of it in the proceedings in which he is sentenced for the other offence and requests the court to take it into consideration in sentencing him for that offence. Clause 30(2) states, For the purposes of this Part, an offence is associated with another if. That describes an associated offence. I believe that the noble and learned Lord is wrong in saying that the use of the word "it" reduces the number of offences to only one. The word "it" explains the offence which is associated with another. If the noble and learned Lord considers Clause 2, it is quite right that in deciding whether to give a custodial sentence only one additional offence, including one which the offender asks to be taken into consideration, can be taken into account. That is only in deciding whether to give a custodial sentence. Once it has been decided that a custodial sentence is correct, when considering the length of sentence, under Clause 2 all the offences of which the offender has been convicted or which he asks to be taken into consideration can be considered. I do not believe that there is any conflict. I believe that the noble and learned Lord has considered that "it" refers only to one sentence when it refers to the description of an associated offence.

6.15 p.m.

Lord Ackner

My Lords, the suggestion by the noble Lord, Lord Hutchinson, that a person is being invited to put forward his outstanding offences or seeks to do so in order that the court should put him inside is absurd. What the accused seeks, after the trial and a series of convictions, is to achieve a clean sheet.

I refer to a few words of the noble and learned Lord, Lord Scarman, in a case in 1973. I invite your Lordships to observe them. In R. v. Walsh the noble and learned Lord (then Lord Justice Scarman), in giving the judgment of the Court of Appeal (Criminal Division), referring to offences to be taken into consideration, said: The practice is beneficial to the administration of justice and beneficial to the accused man personally. It is beneficial to the administration of justice in that it enables a number of matters which might otherwise have to come to trial to be taken into consideration in a proper case when a man is being sentenced. In fact it removes a work load from the overburdened system of administration of criminal justice. It is of great benefit to the accused man, because it means as a matter of agreement that after the sentence he will be able to face life freed of the threat of punishment for the offences that have been taken into consideration at his request. As I understand the way in which the issue is put forward, henceforth a person who is being wholly articulate can say to the judge, "I have signed a statement"—and this is the procedure—"admitting that I have committed 50 offences. Now, Judge, would you be kind enough to listen very carefully, and I say this with deep respect. I don't want you to have regard to these outstanding offences when you decide whether or not to send me to prison. Don't do that; you are not allowed to do that. But once you have decided to send me to prison you can decide for how long I should go to prison in the light of the outstanding offences".

Therefore one could reach a situation where, viewed without the benefit of the new legislation, the outstanding offences would have justified in themselves a sentence of three years. However, in the light of this legislation any custody would not be permitted because one cannot take into account more than one offence in deciding whether to impose a custodial sentence. Again, I venture to suggest that that is a farce. I do not see how it will be operated because it is a matter for agreement between the judge and the accused as to whether the judge will take into account outstanding offences.

If I were a judge faced with 50 outstanding offences of some substance—but not, when taken individually, of sufficient substance to warrant a custodial sentence —such as to justify the public being protected from this clearly habitual offender, I doubt whether in future I should agree to considering the offences at all. It is again in order to attempt to seek reality that I move the amendment.

On Question, amendment negatived.

Clause 49 [Transfer by order of certain functions to Board]:

Earl Ferrers moved Amendment No. 16:

Page 30, line 40, leave out ("in subsection (1)").

The noble Earl said: My Lords, I shall speak also to Amendments Nos. 17 and 18. These are technical drafting amendments which are consequential on the amendments made at an earlier stage on the review of life sentences. They are needed in order to ensure that the Bill leaves your Lordships' House in a technically sound state. They make no changes of substance.

The amendments are of course without prejudice to the Government's position on murder and life imprisonment as was explained on Report by my noble friend the Leader of the House. I beg to move.

Earl Ferrers moved Amendment No. 17:

Page 30, line 42, leave out ("subsection") and insert ("section").

Clause 50 [Interpretation of Part II]:

Earl Ferrers moved Amendment No. 18:

Page 3l, line 15, leave out ("35(4)") and insert ("32(11)").

Clause 53 [Video recordings of testimony from child witnesses]:

Earl Ferrers moved Amendment No. 19:

Page 33, line 5, leave out ("and proceedings in youth courts").

The noble Earl said: My Lords, I shall speak also to Amendments Nos. 20, 21, 22 and 23. This set of amendments closes a loophole which we have identified in the Bill's provisions concerning the arrangements for the giving of evidence by children in cases which are dealt with by a youth court.

As drafted, the Bill's provisions allow for video recordings to be given as the child's evidence-in-chief and for the use of television links in cases dealt with by a youth court. But there is a right of appeal to the Crown Court against the findings of the youth court and if that right is exercised the Crown Court re-tries the case. As it stands, the Bill would not allow video recorded evidence or live television links in such a case. This is inconsistent with what the Bill provides for appeals from the Crown Court and it would undermine the objective of the provisions in the Bill to save children from the trauma of giving evidence in open court.

The proposed amendments ensure that such an eventuality does not arise by ensuring that the arrangements in Clauses 53 and 54 of the Bill concerning the giving of evidence by children will extend to appeals to the Crown Court against the findings of a youth court.

I apologise to your Lordships for bringing forward this amendment at this stage in the Bill. I am sure, however, that your Lordships will agree that this loophole ought to be closed. I beg to move.

Earl Ferrers moved Amendments Nos. 20 and 21:

Page 33, line 7, leave out ("and").

Page 33, line 11, at end insert ("and (c) proceedings in youth courts for any such offence and appeals to the Crown Court arising out of such proceedings.").

Clause 54 [Further amendments of enactments relating to children's evidence]:

Earl Ferrers moved Amendments Nos. 22 and 23:

Page 35, line 15, leave out from ("links)") to ("for") in line 16 and insert:

1. (a) for the words from "on a trial" to "1968" there shall be substituted the words "in proceedings to which subsection (1A) below applies"; and
2. (b)") .

Page 35, line 21, at end insert:

("(2A) After that subsection there shall he inserted the following subsection—

"(1A) This subsection applies—

1. (a) to trials on indictment, appeals to the criminal division of the Court of Appeal and hearings of references under section 17 of the Criminal Appeal Act 1968; and
2. (b) to proceedings in youth courts and appeals to the Crown Court arising out of such proceedings.").

Clause 55 [Attendance at court of parent or guardian]:

Baroness Faithfull moved Amendment No. 24:

Page 36, line 49, 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 noble Baroness said: My Lords, the amendment requires youth courts to hold at least one sitting a fortnight in the evening or at the weekend when it is justified by the number of cases which would be more appropriately dealt with at such times. I bring forward the amendment yet again in particular because I wonder whether my noble friend saw a report published in the Guardian on 29th May. Mr. Jonathan Caplan, chairman of the public affairs committee of the Bar Council wrote an article in which he stated that the Bar Council was setting up a committee to investigate the possibility of late night sittings. Therefore, not only Members of your Lordships' House have put forward the suggestion; members of the Bar have set up a committee.

The Magistrates' Association has agreed that such a course would be reasonable not only from the point of view of young people appearing before the court but because many magistrates would prefer an evening or Saturday morning court sitting.

Amendment No. 26 deals with fining and binding over. In my experience young people appearing before the court do not have either parent present or sometimes only the mother is present. Perhaps I may deal with the situation of a young person appearing before the court in the absence of either parent and on the assumption that Amendment No. 26 becomes part of the Bill. In such circumstances what is the magistrate to say to the child? Is he to say, "Will you please tell your mother or father that we shall not bind you over because…?" The child will not understand a word of what is being said. If the parents consider that they must attend, which would be most laudable, they will often lose their wages for that week and might even lose their jobs. Often the mother appears at court but in these changing times many more women go out to work. They do so for two reasons; first, because they are needed and, secondly, because the financial situation in their homes means that they must work to pay for the mortgage, the rent and so forth. Therefore both the mother and the father will lose money and might even lose their jobs. The presence of the mother alone, the father alone and certainly the child alone does not underline the importance of the family. Such an appearance in court is a family affair and should be dealt with by the whole family.

On 21st May the Minister said that it may be difficult for his department to deal with listing. He said that listing is a judicial function. He said: In the light of what my noble friend Lord Boyd-Carpenter and the noble Baroness, Lady David, said, I shall look at the matter again to see whether it is possible, but my advice is that listing is a judicial function. I shall look at the point further".—[Official Report, 21/5/91; col. 154.]

If it is not possible to put this onto the face of the Bill, surely it should be possible to issue guidance on listing practice. I believe it is untenable for the Minister to suggest that the Government cannot issue guidance on listing practice. For example, in 1984 a joint circular entitled Reducing Delay in Magistrates' Courts was issued to the courts by the Home Office and the Lord Chancellor's Department.

This amendment is very important and I hope that the Minister will be able to accept it. I beg to move.

6.30 p.m.

Lord Harris of Greenwich

My Lords, I agree with the noble Baroness. She puts her case extremely persuasively as she did on the last occasion when we debated this matter. The Minister will probably complain and make the rather repetitive statement about the cherry, but he did undertake to look again at this matter. In the light of that situation it was obviously absolutely right for the noble Baroness to give the noble Earl an opportunity to correct the record because, as she pointed out, on the last occasion we were advised by the noble Earl: I was asked whether it was possible to issue guidance. There are difficulties in issuing guidance on what is listing practice". [Official Report, 21/5/91; col. 154] We now learn that there is nothing in that argument whatever. The present Government issued a circular in 1984 dealing with questions involving listing practice. Therefore, at least the noble Earl will have an opportunity to deal with that in his reply.

I regret to say that I have said this on two previous occasions but that will not prevent me from saying it again now: this procedure is followed in Scotland without any difficulty whatever. Juvenile panels in Scotland want the attendance of both parents and so should we. In its previous form this amendment was rejected by the noble Earl on the grounds that courts would be required to meet out of hours in circumstances where there may be no business to be conducted. The noble Baroness's amendment deals with that issue by saying that the procedure should be followed only when there is such business to be conducted.

I have dealt with this matter on two previous occasions but I do not believe that we have had the advantage of a clear reply from the noble Earl. How can it be right to create a situation in Scotland where both parents attend as a result of these panels meeting out of hours and yet to resist the same approach for England and Wales? Surely we wish to create a situation in which, if there are pressures upon a family and the breadwinner or winners do not wish to put their jobs at risk by attending once or sometimes more than once at the court, they should have an opportunity to attend in the evening rather than in the morning or afternoon. That seems so manifestly sensible that I find it difficult to understand why the Government have resisted it. On this occasion I hope that the noble Earl will be persuaded—particularly in the light of the undertaking which he gave to reflect on the situation—to accept this amendment.

Lord Mishcon

My Lords, I hope that the fact that a plea is being made from various parts of your Lordships' House will influence the Minister into giving a positive reply to this important amendment. It never does to repeat points which have been made by other speakers. The noble Lord, Lord Harris, rose with his usual alacrity and made the points which I was going to make. I do not intend to repeat those.

As regards Scotland, very often Ministers have replied that the law is different in Scotland and therefore there are reasons for Scottish law not being copied by the law which is operative south of the Tweed. This is not a question of Scottish law; it is a question of practice—a practice which is exercised in Scotland in order to see that justice is done without undue hardship being suffered by innocent parties, such as parents very often are when they attend court to speak for a child or youngster who happens to be before the court. Indeed their attendance may be required to answer questions which the court requires to be answered in order to deal properly with the youngster concerned.

This has all been said on previous occasions and I shall quote only one sentence from the Magistrates' Association which stated: There are occasions when parents or more realistically a single parent experiences great difficulty in attending court. The parents may have to attend on several occasions. The Justices' Clerks' Society stated: We are aware from our daily experience that the repeated attendance of parents at court may jeopardise their employment. Those words were uttered by the noble Baroness, Lady Faithfull, and, as she knows, they are echoed by those two worthy associations which are most intimately involved. The magistrates are saying that this procedure should be followed and the justices clerks, who must make the administrative arrangements, are saying that they are prepared to make those arrangements.

If the Minister cannot accept that this amendment should be put on the face of the statute, I ask him, as he has been asked before, to give an undertaking to the House that he will see to it that a guidance circular will be issued which covers the points raised in this amendment.

It has been said on two occasions now that the argument that it would be wrong for the Home Office to issue guidance as to listing does not appear to be correct because of previous experience. That was read out to the House by previous speakers. I have most of the circular which was issued in 1984 and I shall quote only one paragraph from it. It was a joint circular by the Home Office and the Lord Chancellor's Department which was entitled: Reducing Delay in Magistrates' Courts. It began by stating: Court sitting cases have often been determined in the past by local traditions. Ministers recommend that each Bench should examine its sitting hours with a view to determining whether those hours make the most effective use of the court space available for hearings. Obviously a circular could be issued in very similar language, whether by the Home Office on its own or in conjunction with the Lord Chancellor's Department, stating that Ministers would recommend that this procedure be adopted.

On a previous occasion the Minister made the point that if this amendment were passed in its original form in Committee and on Report, courts may be forced to sit when there is no business and that that would be quite foolish. The amendment now before the House makes it clear that this procedure would be carried out only when the courts think it proper because they have cases to decide.

As I said, something must be done along those lines. An opportunity is now before us and it may not occur again for a very long time. In the interests of the youngsters of this country who have the misfortune to appear before our juvenile courts and the parents who must plead for them or answer questions by the court, I hope that the Minister will not allow this opportunity to pass.

Lord Mottistone

My Lords, I wish to support the amendment. I am very much seized of the point made by the noble Lord, Lord Mishcon, that the whole tenor of the amendment has changed. It has not made the provision compulsory but dependent upon a decision of the court. The sitting times given are not too onerous—the amendment says "fortnightly". Magistrates' courts in my part of the world frequently sit at odd times for other reasons. I say "frequently"; that is not correct. But the courts must meet at different times for many other types of situation.

The amendment is entirely reasonable. I hope that in some way the sense of it can be incorporated into the Bill.

Lord Hutchinson of Lullington

My Lords, I support the amendment and would like to refer to the question of listing. The noble Earl said that there are problems in putting into a statute matters affecting listing because listing is a judicial function. I remind him that sentencing is a judicial function, but at long last Parliament has taken hold of that issue and has made it clear that sentencing is too important to leave to sentencers.

I am sure that all those who practise in the courts agree that listing is of crucial importance. It is high time that Parliament took a hand in the matter. So often listing decides the question of delay in the courts and listing should be the point at which public consideration is given priority. Because it is a judicial function, the trouble with listing in the courts at the moment is that the convenience of the tribunal comes first. It is the convenience of the magistrates, the judge or, I accept, the lawyers which comes before the convenience of the public.

It is high time that Parliament took a hand in the crucial matter of listing. It is another example of the division of responsibility between the Lord Chancellor's Department and the Home Office. Because of that division nothing is done and the buck is passed from one to the other. I implore the Minister to take notice of the feeling of the House in regard to the amendment.

Lord Campbell of Alloway

My Lords. I broadly support the amendment. The problem is that, although listing was a judicial function for many years, it has been taken over by a form of civil servant. It is no longer strictly within the immediate control and remit of the judge or the Recorder as it was in the old days of the Assizes and Quarter Sessions.

Listing is of such great importance that this amendment should receive the consideration of the Government. The division of responsibility between the Home Office and the Lord Chancellor's Department not only affects this issue but is of far more general application. It is a matter upon which the Government, by Act of Parliament, should provide means by which directions may be given to the administration which is now responsible. With respect to noble Lords, it perhaps should still be a judicial function; it has not been so for a long time.

Baroness David

My Lords, there has been such competition to support the amendment that I hesitate to join the debate. However, as my name is added to it I shall do so.

All the relevant points have been made, but I should like to emphasise two. The first is that it is important for two parents to be present. That is more likely to happen in the evening than in the morning or afternoon. The second point was made by the noble Lords, Lord Hutchinson and Lord Campbell, in regard to listing being a judicial function. Certainly when I was acting as a magistrate, even before I was chairing the Bench, I was never consulted about when we were sitting. One was expected to be there and the sitting could be cancelled an hour or so before it was due to take place.

It is right for there to be an opportunity to have a sitting at a different time. I am sure that magistrates would be willing to oblige; in many cases it might be more convenient for them. I hope that with this all-round and strong support the Minister will be willing to accept the amendment.

6.45 p.m.

Earl Ferrers

My Lords, I am conscious of the considerable support for the amendment throughout the House. We are debating the amendment for the third time. The noble Lord, Lord Harris of Greenwich, said that he expected me to make the rather repetitive remark regarding the cherry. I thought he said that in a slightly derogatory fashion. I am entirely happy to answer any amendments tabled by your Lordships as frequently as they are tabled. My only concern in mentioning this factor in the first place was because of the procedure of the House. Noble Lords sometimes believe that the procedure of the House is a very good thing until it comes to their own amendment. They are then quite happy to waive the procedures in a generous fashion for the advantage of stating their views yet again.

On this occasion my noble friend Lady Faithfull changed the wording of the amendment in response to points made on previous occasions. The earlier amendment would have required the youth court to sit outside normal court hours on a regular basis whether or not there was any business to transact. Amendment No. 24 qualifies the duty to sit outside normal hours by giving the courts some discretion in the matter. If the court believes that there are sufficient cases to make an evening or weekend sitting desirable, then it must sit in the evening or at the weekend.

The amendment merely exchanges one set of problems for another. The court staff would have to inquire into each parent's circumstances in order to establish whether that parent would find it more convenient to attend outside normal hours. The court would have to make a judgment on whether there was a sufficient number of cases of difficulty to justify a special sitting, and it is not easy to determine how many cases necessarily justify that. What is more, if every parent found it difficult to attend during normal working hours, all the relevant cases would have to be heard in the evenings or at weekends. That would not be a good use of court resources.

We should not forget that attending court is inconvenient for many people. Making it easier for parents to attend may involve making it harder for witnesses and in some cases victims. They deserve as much consideration as the parents of the defendants, to say nothing of the inconvenience which may be caused to magistrates, who also give their service voluntarily.

For all those reasons it would not be wise to incorporate my noble friend's amendment into the Bill. It would be more sensible to leave the frequency and timing of youth court sittings to local discretion. Courts may sit when they like. Court staff can already take into account the needs of the various parties in deciding when a case should be heard.

Having said that, I sympathise with the aims which underlie the amendment and I have noted the feeling of the House this evening. I shall certainly be happy to draw the points made in this and in our earlier debates to the attention of the Magistrates' Association and the Justices Clerks' Society so that they may be aware of the importance your Lordships attach to flexibility in the scheduling of hearings and the need to avoid jeopardising a parent's employment by requiring his or her attendance at the wrong time.

In view of the expressions of opinion which your Lordships have given I shall certainly be prepared to consider how guidance can best be issued on the subject. If it is issued it would no doubt have to cover advice on how courts can arrange sittings to help parents to attend at times which will not jeopardise their employment and so forth. I shall certainly consider how that can be done.

Lord Mishcon

My Lords, are those who advise on these matters aware of the criticism which, amidst praise, sometimes goes to civil servants; namely, that they manage to find problems for every solution? The noble Earl read out a series of problems which he thought would be created and which, in his more serious moments, I am sure that he would not have uttered. They were so facile that they do not do justice to the way in which the noble Earl always manages his affairs before the House. This is an important point. He concluded by saying that possibly a solution might be to write to the Magistrates' Association and the Justices' Clerks' Society about the matter. I read out what the Magistrates' Association has already said. It knows about the provision and it is prepared to help. The Justices' Clerks' Society is also prepared to help. Before we leave Third Reading and this amendment, will the noble Earl give very active consideration to sending a note by way of guidance to the magistrates' courts throughout the land in order to make them aware of the desirability, on the Minister's recommendation, of listing in the way that is set out in the amendment? If the noble Earl can go that far it will he something. I hope that he can go even further than that.

Earl Ferrers

My Lords, the noble Lord, Lord Mishcon, is normally very courteous. He said that the remarks that I made this evening were facile. I thought that was going a little beyond his normal range of' courtesy. My noble friend Lady Faithfull tabled an amendment which she wishes put into law. I addressed that amendment. I said that if that amendment were included in the Bill it would cause the kinds of problems that I had enunciated. I did not think that it was facile to say that, I thought it very right to do so. The amendment might be tabled to have a certain effect. It is only right for a Government Minister to point out the other kinds of effects which it would also have.

I have listened very carefully to what noble Lords have said. I am completely aware of the concern which has been expressed. I give the undertaking for which the noble Lord, Lord Mishcon, asks. We shall be issuing guidance generally on the implementation of the whole Act. The point can be reflected in the general guidance. However, that does not go as far as the noble Lord, Lord Mishcon, wants. He said that he wants me to give active consideration to whether guidance can be given. I shall do that. I draw back slightly from giving a wholehearted commitment that guidance will be issued because I want to take further advice on the matter. I could not refuse the invitation from the noble Lord nor the views which have been expressed throughout the House. If guidance can be given and it is proper to do so, then I am sure it will be done.

Baroness Faithfull

My Lords, I am in some difficulty. The Minister has said that he will consider whether some guidance can be given. Earlier on he cited a long list of terrible difficulties that there will be. At one stage he said that if the magistrates wanted to implement the provision they could do so. They have not done so and they feel that they have not been allowed to do so. I am encouraged by the fact that the Bar Council has set up a working party. It thinks in exactly the same way as we do. The press release put out by the Bar Council states: The Bar Council is to set up a Working Party to look into the establishment of night courts. As part of a wider scheme by the Bar to review how courts can be made more user friendly and consumer orientated, the Working Party will examine whether certain courts should open in the evenings". That takes up the point made by the noble Lord, Lord Hutchinson, that the courts should consider the consumers. I believe it was my noble friend Lord Campbell of Alloway who said that the problem lay with the civil servants. If they have put forward the terrible difficulties which are going to ensue, then with all the wonderful promises that my noble friend has made about looking at guidance, will the scheme be possible?

Earl Ferrers

My Lords, with the leave of the House, perhaps I can help my noble friend because I want to be helpful. She referred to a list of complaints (which is not the correct description) about what would happen if the amendment were put in the Bill. I am aware of the Bar Council's study. We look forward to seeing its results. Even if it is suggested that there would be real advantages in arranging youth court sittings in the evenings, that can be done without any change in the primary legislation. My noble friend wants youth courts to sit in the evenings. That can be done within the primary legislation and therefore her amendment is unsuitable.

The next point is how we achieve what my noble friend wants within the context of the legislation as it is. I said that there will be guidance given about the whole Act. It is 80 per cent. certain that it will be possible—I do not wish to go to 100 per cent.—to give guidance on this specific issue. I do not think I can go a great deal further than that. If my noble friend wants her amendment included in the Bill to achieve her ends, that can be done without this amendment. We have to see how the ends can be achieved within the legislation as it is. I have said that I shall consider guidance.

Baroness Faithfull

My Lords, I am in very real difficulty here. My noble friend the Minister has been most generous and forthcoming in saying that he will see whether guidance can be given. However, having worked in juvenile courts for over 20 years, I feel that this is a most important amendment and that I must take the opinion of the House.

6.58 p.m.

On Question, Whether the said amendment (No. 24 ) shall be agreed to?

Their Lordships divided: Contents, 79; Not-Contents, 75.

Division No. 1
CONTENTS
Ackner, L.	Kirkhill, L
Adrian, L.	Kissin, L.
Airedale, L.	Listowel, E.
Allen of Abbeydale, L.	Llewelyn-Davies of Hastoe, B
Ampthill, L.	Lloyd of Hampstead, L.
Attlee, E.	Lloyd-George of Dwyfor, E.
Beaumont of Whitley, L.	Lockwood, B.
Blackstone, B.	Longford, E
Blease, L.	McNair, L.
Boston of Faversham, L.	Mason of Barnsley, L.
Bottomley, L.	Mayhew, L.
Brain, L.	Milner of Leeds, L.
Broadbridge, L.	Mishcon, L.
Callaghan of Cardiff, L.	Molloy, L.
Campbell of Eskan, L.	Monson, L.
Carmichael of Kelvingrove, L.	Morris of Castle Morris, L.
Carter, L.	Mulley, L.
Chester, Bp.	Murray of Epping Forest, L.
Cledwyn of Penrhos, L.	Nicol, B.
Craigavon, V.	Ogmore, L.
David, B.	Parry, L.
Dean of Beswick, L	Phillips, B.
Donaldson of Kingsbridge, L.	Pitt of Hampstead, L.
Dormand of Easington, L.	Prys-Davies, L.
Ennals, L.	Richard, L.
Ewart-Biggs,B.	Richardson, L.
Faithfull, B.	Ritchie of Dundee, L.
Falkland, V.	Robson of Kiddington, B.
Fisher of Rednal, B.	Rochester, L.
Gallacher, L.	Sainsbury, L.
Gladwyn, L.	Sefton of Garston. L.
Glenamara, L.	Serota, B.
Graham of Edmonton, L. [Teller.]	Shepherd, L.
	Stallard, L.
Grey, E.	Stedman, B.
Hanworth, V.	Stoddart of Swindon, L.
Harris of Greenwich, L.	Stokes, L.
Hatch of Lusby, L.	Strabolgi, L.
Hayter, L.	Taylor of Blackburn, L.
Henderson of Brompton, L.	Taylor of Gryfe, L.
Hirshfield, L.	Thomson of Monifieth, L.
Holme of Cheltenham, L.	Tordoff, L. [Teller.]
Howie of Troon, L.	Turner of Camden, B.
Hughes, L.	Underhill, L.
Hunter of Newington, L	Wallace of Coslany, L.
Hutchinson of Lullington, L.	Whaddon, L.
Hylton, L.	White, B.
Irvine of Lairg, L.	Wilberforce, L.
Jacques, L.	Willis, L.
Jenkins of Putney, L.	Wilson of Rievaulx, L.
John-Mackie, L.	Windlesham, L.
Kennet, L.	Winstanley, L.
Kinloss, Ly.
NOT-CONTENTS
Alexander of Tunis, E.	Astor, V.
Allenby of Megiddo, V.	Auckland, L.
Allerton, L.	Belhaven and Stenton, L.
Alport, L.	Benson, L.
Arran, E.	Bessborough, E.

Birdwood, L.	Lucas of Chilworth, L.
Blatch, B.	Lyell, L.
Blyth, L.	Mackay of Clashfern, L.
Boardman, L.	Macleod of Borve, B.
Borthwick, L.	Mancroft, L.
Boyd-Carpenter, L.	Manton, L.
Brabazon of Tara, L.	Marsh, L.
Bridgeman, V.	Mersey, V.
Brookeborough, V.	Middleton, L.
Brougham and Vaux, L.	Montgomery of Alamein, V.
Caithness, E.	Morris, L.
Campbell of Croy, L.	Mottistone, L.
Carnarvon, E.	Mountgarret, V.
Carnegy of Lour, B.	Munster, E.
Carnock, L.	Nelson, E.
Cavendish of Furness, L.	Norfolk, D.
Chalfont, L.	Norrie, L.
Clitheroe, L.	Nugent of Guildford, L.
Cockfield, L.	Onslow, E.
Colnbrook, L.	Orkney, E.
Constantine of Stanmore, L.	Orr-Ewing, L.
Cottesloe, L.	Oxfuired, V.
Cullen of Ashbourne, L.	Park of Monmouth, B.
Davidson, V. [Teller.]	Pearson of Rannoch, L.
Deedes, L.	Peyton of Yeovil, L.
Eden of Winton, L.	Plumb, L.
Ellenborough, L.	Quinton, L.
Elles, B.	Rankeillour, L.
Erne, E	Reay, L.
Ferrers, E.	Rodney, L.
Flather, B.	Roskill, L.
Foley, L.	Sanderson of Bowden, L.
Fraser of Carmyllie, L.	Seccombe, B.
Fraser of Kilmorack, L.	Selborne, E.
Gainford, L.	Shannon, E.
Gardner of Parkes, B	Sharples, B.
Gibson-Watt, L.	Skelmersdale, L.
Gisborough, L.	Smith, L.
Goold, L.	Somerset, D.
Gray of Contin, L.	Stockton, E.
Gridley, L.	Stodart of Leaston, L.
Grimthorpe, L.	Strange, B.
Haddington, E.	Strathcarron, L.
Haig, E.	Strathmore and Kinghorne, E.
Halsbury, E.	Strathspey, L.
Henley, L.	Sudeley, L.
Hesketh, L. [Teller.]	Terrington, L.
Hood, V.	Thomas of Gwydir, L.
Hooper, B.	Trumpington, B.
Howe, E	Vaux of Harrowden, L.
Hylton-Foster, B.	Waddington, L.
Ironside, L.	Whitelaw, V.
Johnston of Rockport, L.	Wolfson, L.
Killearn, L.	Wynford, L.
Knollys, V.	Young, B.
Lane of Horsell, L.

On Question, amendments agreed to.

Division No. 2
CONTENTS
Addington, L.	Carmichael of Kelvingrove, L.
Airedale, L	Carter, L. [Teller.]
Allenby of Megiddo, V.	Cledwyn of Penrhos, L.
Ardwick, L.	Cocks of Hartcliffe, L.
Beaumont of Whitley, L.	Craigavon, V.
Boston of Faversham, L.	Darcy (de Knayth), B.
Brooks of Tremorfa, L.	David, B.

Dean of Beswick, L.	Molloy, L.
Donaldson of Kingsbridge, L.	Morris of Castle Morris, L.
Dormand of Easington, L.	Mottistone, L.
Elliot of Harwood, B.	Moyne, L.
Ewart-Biggs, B.	Mulley, L.
Faithfull, B. [Teller.]	Nicol, B.
Falkland, V.	Ogmore, L.
Fisher of Rednal, B.	Palmer, L.
Fraser of Kilmorack, B.	Park of Monmouth, B.
Glenamara, L.	Parry, L.
Graham of Edmonton, L.	Peston, L.
Grey, E.	Phillips, B.
Hampton, L.	Pitt of Hampstead, L.
Harris of Greenwich, L.	Prys-Davies, L.
Hatch of Lusby, L.	Rea, L.
Hayter, L.	Richard, L.
Henderson of Brompton, L.	Rochester, L.
Hughes, L.	Sefton of Garston, L.
Hutchinson of Lullington, L.	Serota, B.
Hylton, L.	Shackleton, L.
Hylton-Foster, B.	Sharples, B.
Jenkins of Hillhead, L.	Shepherd, L.
Kilbracken, L.	Somerset, D.
Kirkhill, L.	Stoddart of Swindon, L.
Lawrence, L.	Taylor of Blackburn, L.
Lockwood, B.	Taylor of Gryfe, L.
Longford, E.	Vaux of Harrowden, L.
Macaulay of Bragar, L.	White, B.
McNair, L.	Williams of Elvel, L.
Masham of Ilton, B.	Windlesham, L.
Mason of Barnsley, L.	Winstanley, L.
Mayhew, L.	Winterbottom, L.
Mishcon, L.

Resolved in the affirmative, and amendment agreed to accordingly.

7.7 p.m.

Lord Cledwyn of Penrhos

My Lords, may I bring up a procedural matter that is of some importance? In the Division Lobby during this Division the right reverend Prelate the Bishop of Chester entered the Lobby to vote. The right reverend Prelate was told, when he approached the desk, that he was not permitted to vote on the grounds that he was not robed.

This fact was not known to me, and those other colleagues of all parties in the Lobby were not aware of this rule. We took the view nevertheless that it was an absurdity that the right reverend Prelate was not able to cast his vote. Therefore, I should like to ask the noble Lord the Leader of the House, who I am glad to see is in his place, if he will consider this and look into it as a matter of some urgency.

Lord Harris of Greenwich

My Lords, may I make a few remarks? I agree entirely with the Leader of the Opposition. It seems to me quite absurd that a Member of this House would be denied the opportunity to vote in circumstances described by the noble Lord, Lord Cledwyn. I hope that this matter will be clarified as quickly as possible because it seems to be a true absurdity.

Lord Waddington

My Lords, as a new boy in this House a number of things happen that surprise me, and this surprises me more than most. Obviously the point raised by the noble Lords opposite is an important one, and of course it will be looked into at once.

Lord Glenamara

My Lords, could the noble Lord bear in mind that the noble and learned Lord the Lord Chancellor can vote without his gown? It is nonsense that a bishop cannot vote without his gown.

Clause 56 [Responsibility of parent or guardian for financial penalties]:

Baroness David moved Amendment No. 25:

Page 37, line 41, at end insert:

("(c) an order shall not be made against a local authority unless the court has first considered a report in writing from the Chief Inspector of Social Services, drawing attention to the particular needs of the child or young person for whom a local authority has parental responsibility, and to any other matters to which the Chief Inspector may wish to draw attention, and unless the Court considers that in all the circumstances including those specified in section 1 of the Children Act 1989, to make an order would be better for the child than making no order at all.").

The noble Baroness said: My Lords, I am bringing forward an amendment which is not the same as the amendment that I brought forward at the Committee and Report stages. I have attempted to meet the criticisms of the amendment which I then brought forward.

The amendment does not ask for the deletion of subsections (2) and (4) but proposes to give guidance to the courts when they have to decide about this difficult matter of whether a local authority should be responsible for the fine of a child in its care. The essence of the proposed amendment is that, before making an order for payment of a fine by a local authority, the court shall consider a written report from the chief inspector of social services and shall have regard to all the circumstances of the case before it, including the circumstances set out in Section 1 of the Children Act 1989.

The amendment proposes that the court must take account of the interests of the child or young person and must positively consider that it would be better for the child to make an order against the local authority than not to do so. This brings the provision of Clause 56, equating a local authority with a parent or guardian for the purposes of considering financial penalties, entirely into line with the philosophy and principles set out in the Children Act 1989. In brief, the objection to Clause 56 as it now stands is that it is contrary to the principles of child care particularly set out in that Act. There is a clear potential for conflict between the interests of the local authority having regard, on the one hand, to the welfare of a child in its care, and having regard, on the other hand, to the need to avoid taking action or being afraid of taking action which might make it liable to have imposed on it the fine of the court.

In Committee the noble Earl said that if the function of exercising parental responsibility falls to the local authority then the local authority should be liable to pay a fine. The amendment I now propose to Clause 56 does not deny the ability of the court to impose a fine on a local authority which is exercising parental responsibility but it sets out requirements and criteria which should be considered before an order is made requiring a local authority to pay a fine. In the light of the previous discussions in Committee and on Report we have proposed an amendment which establishes a better balance between the interests of society to impose a fine on a statutory authority acting as a parent or guardian on the one hand, and to encourage a statutory authority, on the other hand, to act in the very best interests of the welfare of a child in its care.

The requirement for a report in writing from the chief inspector ensures that there is an impartial look at all the circumstances surrounding the decisions made by a local authority in respect of a child or young person in its care. The court would then be able to consider whether the local authority acted as a parent or guardian reasonably or whether there are grounds which would justify the imposition of a fine.

The requirement to have regard to the circumstances contained in Section 1 of the Children Act 1989 enables the court to have proper regard to the philosophy and principles set out in that Act. Section 1 of the Act states that when a court is determining any question in respect of a child's upbringing, that child's welfare is to be the paramount consideration. The proposed amendment will bring Clause 56 fully into line with that philosophy and will require a court to be satisfied that it is in the paramount interests of the welfare of the child to impose a fine against a local authority acting in its capacity as a parent or guardian. In particular, a court would have to have regard to the ascertainable wishes and feelings of the child concerned, to its physical, emotional and educational needs, and its age, sex, background and any relevant characteristics. Furthermore, before making a decision to impose a fine on a local authority acting in the statutory capacity of parent or guardian, the court t will need to be certain in the terms of Section 1 of the 1989 Act that it would be better to make an order imposing a fine than not to do so in the interests of the child in question.

I hope that the compromise we have tried to make will appeal to the noble Earl and that he will feel able to accept this modest and moderate amendment. I beg to move.

Baroness Faithfull

My Lords, I shall be very brief because the amendment has been moved so well by the noble Baroness. I rise simply to support it.

7.15 p.m.

Lord Richard

My Lords, I rise to support the amendment. It is a genuine attempt on the part of those interested in the matter on both sides of the House to produce an amendment which is a half-way position between the position which we took up previously and that which the Government seemed to hold. It is a genuine attempt at a compromise. I hope the House will think that it is a sensible attempt at a compromise. In those circumstances, I rise only to support the amendment. I hope that the noble Earl will be able to accept it.

Earl Ferrers

My Lords, the noble Baroness made an impressive appeal on behalf of the amendment. I listened to her with interest because I wanted to be clear about its exact purpose. I understand the noble Baroness's concern about the provision for local authorities to be required to pay the financial penalties imposed on children in their care for whom they have parental responsibility. She feels that that is inappropriate. She made her concern clear at earlier stages and I did my best to put the Government's position. We believe that it is right that, where parental responsibility lies with the local authority, it should assume the duty that would otherwise fall on the natural parent to pay any financial penalties imposed on the children. It is worth remembering that this means compensation to the victim, as well as fines; compensation that might not otherwise be paid.

Unlike the amendments moved at earlier stages, this amendment would not entirely remove courts' power to order local authorities to pay. The noble Baroness has moved some way towards the Government's position, and, to that extent, I am most grateful to her. But I am bound to say that the amendment would make it so difficult for the courts to exercise their power as to make it inoperable in practice. Under the amendment, in every case in which the court considered ordering a local authority to pay, it would have to obtain a written report from the chief inspector of social services about the child's needs. The chief inspector has nothing to do with this; nor could his view of the position of the child have any relevance to the problem in hand.

In our view it is wholly unnecessary to produce a report at all, especially one which focuses on the child's needs, when what the Bill seeks to deal with is an order against the local authority. I do not see the connection between the two. A similar point arises later in the amendment. It provides that the court must take the view that making an order against the local authority would be better for the child than making no order at all. I find it difficult to see that connection.

There are other difficulties with the amendment, but I do not wish to take the time of the House unnecessarily by rehearsing them. The long and the short of the problem is that the Government believe the provision in the Bill to be necessary and that the amendment would hinder rather than help. I hope that the noble Baroness will understand our position even if she cannot agree with it.

Baroness David

My Lords, I do not think that I understand the position very well. In my view, the Government have not moved a millimetre from their earlier position. I take the point about the chief inspector; indeed, I thought that it might be raised. I understand that the term "chief inspector" is used as a general term and that a local inspector would probably be required to produce the report. However, that would not happen on every occasion.

I must say that I am extremely disappointed with the Minister's response. It shows that there is still no real understanding of what goes on in the social services world and what some of these children may be like. As the noble Baroness, Lady Faithfull, said on Report, a child may commit an offence after having been in the care of a local authority for only a day or two. It seems most unfair to put this burden on a social services department which, of course, may be very short of money. It seems to me to be a bad use of resources.

As I said, I am most disappointed with the response. I do not believe that there is a proper understanding on the part of the Government. However, I do not feel that I can pursue the matter to a Division. I shall watch with interest what happens as a result of this provision. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 57 [Binding over of parent or guardian]:

Baroness Faithfull moved Amendment No. 26:

Page 38, line 4, leave out from ("offences") to end of line 7.

The noble Baroness said: My Lords, the amendment would remove from the Bill the requirement for courts to give reasons if they do not bind over the parents of juvenile offenders. In its original form, the Bill provided that, when a juvenile was convicted of an offence, the court must bind over the parents, to take proper care of him and exercise proper control over him", unless it considered that this would be "unreasonable".

On Report, the Government removed that statutory presumption in favour of binding over parents. That is a welcome modification of a measure which was likely to increase rather than reduce juvenile crime by placing an additional burden on many families which are already under severe pressure. I should like to thank my noble friend the Minister for having taken note of the concerns which were expressed.

I cannot quite understand the point of requiring the courts to give reasons for not binding over. I should have thought that it was much more important to give reasons why they do bind over. Looking at the situation from a parent's and a consumer's point of view, if the courts are not going to bind over or fine, the minute the parents are informed of the decision that will be the end of the matter for them; in other words, they will not take note of the reasons. Therefore, I wonder whether it would be better to reverse the provision and to stipulate that the courts, if they must bind over or fine, should give reasons in the opposite direction as to why they are doing so. This is a rather complicated business; but, then, it is a complicated affair. I shall be most grateful if my noble friend the Minister can tell me why it is that parents are to be told why they are not being bound over. What is the purpose of the provision? I beg to move.

Earl Ferrers

My Lords, one of the main points of Clause 57 is that a court will always have to consider whether or not to bind over the parent or guardian of a young offender aged under 16. Either it exercises its power to bind over, or it gives reasons for not doing so. My noble friend's amendment would remove the second half of this provision. We would effectively be returning to the law as it stands at present.

At present courts have the right to bind over but they do not frequently do so. The Government believe that magistrates' existing discretion to bind over parents or guardians is not being used as often as it might be. If my noble friend's amendment were accepted, there would be no additional obligation on the magistrates even to consider whether they should exercise their powers to bind over. In other words, the powers would be there but they need not bother to exercise their discretion over them.

My noble friend Lady Faithfull asked why reasons had to be given for not binding over. The answer is that it will enable the magistrates to address their minds as to whether the parents should be bound over. If they decide not to bind them over—which is perfectly within their powers—then they simply have to state the reasons behind their decision.

We believe that the powers to bind over the parents of juvenile offenders can be used more effectively by the courts to help prevent further offending. That is why we want to strengthen the law so that the courts always consider using their powers, even if they do not always exercise them. We are not putting pressure on magistrates to bind over parents in inappropriate cases. Whether the magistrates exercise such powers will depend upon the circumstances of the case. We wish to ensure that they do consider whether they should use those powers and that they are obliged at least to consider that aspect. Of course, whether they decide to bind them over is entirely a matter for the magistrates. Alternatively, they will have to state why they have decided not to do so.

Baroness Faithfull

My Lords, I shall certainly not divide the House on the matter. However, in view of the fact that it is already possible for magistrates to bind over and fine and they have not done so, it seems to me that this is something of a carrot to wave in front of them and to say, "Don't forget you can bind over and fine". The magistrates are well aware of that fact. They have not found that binding over and fining is a good thing in such cases. It very often causes dissension in the family and does not help the child, the parent or the relationship in the family.

I am sorry that my noble friend cannot accept the amendment. However, as I said, I shall not press the matter. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 59 [Remands and committals to local authority accommodation]:

Earl Ferrers moved Amendment No. 27:

Page 42, line 32, at end insert:

("(3) In the case of a child or young person who has been remanded or committed to local authority accommodation by a youth court or a magistrates' court other than a youth court, any application under section 25 of the Children Act 1989 (use of accommodation for restricting liberty) shall, notwithstanding anything in section 92(2) of that Act or section 65 of the 1980 Act, be made to that court.").

The noble Earl said: My Lords, during the Report stage I gave notice of my intention to bring forward an amendment on Third Reading to rectify a difficulty which arises in the provisions of the Children Act 1989. It concerns juveniles who are remanded to local authority accommodation and who are held in secure conditions.

The Children Act separates criminal proceedings involving young people from civil proceedings in which they are also involved. The criminal proceedings will normally be dealt with by a juvenile or a youth court and the civil proceedings by a family proceedings court. The drafting of the Children Act produced the unintended effect of requiring two courts —that is, a youth court and a family proceedings court —to be involved when juveniles remanded to local authority accommodation are being held in secure conditions otherwise than under a security requirement. That is obviously undesirable. The amendment proposed deals with that difficulty and ensures that only one court, usually a youth court, need be involved in such procedures. I beg to move.

7.30 p.m.

Clause 61 [Transitory provisions pending provision of secure accommodation]:

Baroness Faithfull moved Amendment No. 28:

Page 43, line 7, after ("appoint") insert ("which day shall be no later than the end of the period of four years beginning with the day this Act is passed").

The noble Baroness said: My Lords, this amendment stipulates that the remanding of juveniles in custody should be ended within four years. As it stands, the Bill sets out new and stricter criteria for the remanding of juveniles in custody in the short term and provides for the ending of such remands in the long term. The most important short-term change is that such remands will be restricted to cases where they are needed, to protect the public from serious harm from the defendant.

That is a welcome and substantial step in the right direction. However, the real need is to end completely the remanding of juveniles to adult prisons and remand centres. Where it is necessary to remand a juvenile to secure conditions, this should be a secure place in a community home staffed by those specialised in work with children and not a prison department establishment.

I have received several communications from various members of the Association of Directors of Social Services. The directors tell me that, to a man, they want to offer support, and to do all they can to prevent juveniles from being remanded in custody in prison. They are very worried about the fact that, if children are to be remanded to local authority establishments, they do not know which ones they will be sent to.

Long ago, in time past, there were remand homes run by what were then the children's departments. Long stay homes were for children who were permanently in care. It is important that children on remand do not go to ordinary community homes. If they go to prison they learn from the prisoners things that they did not know before, and, by the same token, if children on remand who are alleged to have committed offences go to an ordinary children's home, they may teach the children there who are in care for civil reasons what is going on in the world of crime. It is important that places should be specified for remand cases but not in ordinary community homes.

We come, then, to the issue of resources. Local authorities are worried because, even if there are not many cases, they do not see how they will provide secure remand accommodation within the social services department without a specific amount of money being made available to provide and to run the homes.

I have worked in a remand home. It is possible to run a juvenile remand home along welfare, social work lines rather than criminal lines. That is what the directors of social services would like to do. They are in difficulty because of the resources needed. They realise that the amendment provides a period of four years. I believe that it would be possible to arrange matters within one or two years. Some directors of social services have suggested that a feasibility study should be undertaken to discover how to make the necessary arrangements as quickly as possible. We want to identify a date towards which we must work, and we hope that it will be an earlier one. I beg to move.

Lord Richard

My Lords, I have to confess that of all the issues that we have discussed during the course of the Bill I find the Government's attitude on this amendment the least understandable. I say that for two reasons. The first relates to the scope of the problem and the second to what the Government have said about their present attitude. What is the scope of the problem? As at 30th April 1990—a day picked at random, I understand—there were 65 untried and 19 convicted but ^*unsentenced boys under 17 in prisons and remand centres in England and Wales. That is the scope of the problem. At any one time we may be dealing with 80–100 at the outside, I suppose—individuals. With such numbers it is surely possible to plan a timetable strategy to end such remands.

The second reason why I do not understand the Government's position is that in their consultation paper they estimated that the necessary secure accommodation should be ready within four years. As the noble Baroness, Lady Faithfull, said, four years is an inordinate length of time to take the decision necessary, to provide the resources—which, Heaven knows, are relatively small—needed to fulfil that task and to iron out any institutional difficulties that there may be, provided that decisions are taken now and people then get on with implementing those decisions.

It is important that the Government should make a firm commitment to end custodial remands of juveniles within four years. If the Government say that they should be able to do that anyway and if the scope of the problem is as small as it is, then, with great respect to the Government, for them not to accept the firm commitment for which we are asking, makes their position incomprehensible and is disappointing.

Lord Harris of Greenwich

My Lords, I share the views expressed by the noble Lord, Lord Richard, about the Government's position on this matter. In the overwhelming majority of issues that we have debated in Committee, on Report and on Third Reading we have understood why the Government have taken the position that they have. We may not have accepted it, but we have understood it. I do not understand their view on this matter.

I return to the issue of Wandsworth. If Wandsworth had not shut its 25 secure places, we should have nearly solved the problem on the basis of the Government's own figures, because they have talked of 30 to 35 places. It was a grave misfortune that those Wandsworth places were shut. Severe criticism should be directed at those responsible for a decision which means that young children go to prison.

On the last occasion the Minister told us that secure accommodation was a specialist and sophisticated resource which took a considerable time to plan as it did to build new secure units and so forth (Hansard, col. 178). When the Government want to take action they can, as they did with slopping out, do so with dramatic speed. They went further than the recommendations of Lord Justice Woolf. Why cannot a similar attitude apply to these children who are in prison? I have seen such children in prison. It is a distressing experience. It causes deep disquiet to many prison officers, who hate having to deal with children of such an age in custody. The overwhelming view of the prison service is that those children should not be in Prison Department accommodation.

As the noble Baroness said—and I apologise for not being in the Chamber for her first few remarks —the amendment provides the generous timetable of four years. No one can possibly suggest that four years is an unreasonably short period. We must consider what will happen if the Bill leaves the House without some form of timetable. We stand a high possibility of having another case similar to that of Philip Knight, the 15-year-old child who killed himself in Swansea Prison. None of us can contemplate another episode of that character.

For those reasons I hope that the Minister will accept the amendment. He may well have been advised not to accept it, but such a generous timetable would not pose a serious problem for the Government. For that reason, and the others to which I have referred, I hope that the House will, if necessary, insist upon the amendment.

Earl Ferrers

My Lords, we discussed this issue on Report. As I said then, the Government are firmly committed to ending prison remands for juvenile boys. In her amendment, my noble friend wants to put a date to that. I understand people wanting a date to galvanise the mind. However, it is difficult to produce the required number of places by a specified date. A careful study has to be made to determine how many places will be needed and where they should be. The noble Lord, Lord Harris of Greenwich, referred to the case of Knight and said how distressing it was. I agree, but cases were reported in the media only last week which show how careful we must be to ensure that the provision of accommodation for juveniles is properly supervised, managed and resourced. We are committed to taking the necessary measures to that end without any unnecessary delay.

I explained on Report the measures which are already in hand to bring about a position in which it is possible to end juvenile remands to prison sooner rather than later. But it would be wrong to set a deadline of the kind proposed in the amendment. If we were to end prison remands at an arbitrary date before the proper local authority facilities were available, we should only make matters worse. They would be worse, not only for the public who have to be protected from those juveniles who are dangerous, but also for the juveniles themselves. I believe it is much more sensible to end prison remands when we can get it right rather than to attempt now to prescribe a specific date. I know that that will be a disappointment to my noble friend Lady Faithfull and others who are concerned to have a fixed date. However, I assure your Lordships that it is important not only to get the buildings right but also to get the management, resources and provisions right. The Government are seized of the urgency of the task and will not allow prison remands to continue for a day longer than absolutely necessary.

Baroness Faithfull

My Lords, I shall not divide the House on this amendment because I have faith in the Association of Directors of Social Services; they will see that something is done within less than four years. I do not believe that it is impossible to do something in under four years. For example, I know that a voluntary home will shortly close which could be used almost overnight as a remand home for young juveniles. For children to go to prison is counterproductive. The financial consequences are serious because they simply become future prisoners. Therefore, we are building up extra costs for ourselves in the community, quite apart from the fact that from a moral point of view it is wrong.

I shall not divide the House on the amendment but I ask my noble friend the Minister to help the Association of Directors of Social Services to deal with the problem, particularly where resources are involved. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Ferrers moved Amendment No. 29:

Page 43, line 22, at end insert:

("(4A) A court shall not declare a person who is not legally represented in the court to be a person to whom subsection (5) below applies unless—

1. (a) he applied for legal aid and the application was refused on the ground that it did not appear his means were such that he required assistance; or
2. (b) having been informed of his right to apply for legal aid and had the opportunity to do so, he refused or failed to apply.").

The noble Earl said: I beg to move Amendment No. 29 and it may be convenient for the House to consider Amendment No. 30 at the same time in the names of the noble Lords, Lord Richard and Lord Harris of Greenwich.

My amendment fulfils an undertaking that I gave during the Report stage of the Bill to bring forward an amendment to ensure that any remanded juvenile is offered legal representation before he can be placed in prison custody.

As I said during our consideration of the issue at Report stage, I understand that this is already existing practice. However, I see the value of reflecting the practice in legislation and that is what Amendment No. 29 achieves. I am grateful to the noble Lord, Lord Richard, for drawing my attention to the matter.

Amendment No. 29 achieves exactly the same end as Amendment No. 30 which stands in the names of the noble Lords, Lord Richard, and Lord Harris of Greenwich. I hope that they will feel content to withdraw their amendment in order to allow the Government's amendment to proceed. I beg to move.

Lord Richard

My Lords, I am grateful to the noble Earl for what he said and for moving the amendment which fulfils an undertaking that he gave at an earlier stage of the Bill. On behalf of these Benches I express our gratitude to him for having accepted the point and incorporating it in the legislation. The noble Earl is quite right that if this amendment is accepted, then Amendment No. 30 standing in my name and that of the noble Lord, Lord Harris, becomes superfluous. I therefore do not propose to move it.

Lord Harris of Greenwich

My Lords, I agree with the noble Lord, Lord Richard.

[Amendment No. 30 not moved.]

7.45 p.m.

Clause 83 [Contracting out of certain prisons]:

Lord Richard moved Amendment No. 31:

Page 55, line 15, leave out from ("above") to end of line 20 and insert:

1. ("(a) the word "(a)";
611
2. (b) the word "and" immediately following paragraph (a); and
3. (c) paragraph (b)").

The noble Lord said: My Lords, I put this amendment down to see whether or not the Government have had any change of mind since the last occasion on which we examined it. We put it down in a particular form in the hope that we could match the precision and incomprehensibility of the Bill. Your Lordships will remember that in order to divine the fact that the Government are taking to themselves powers to extend private management to existing prisons by means of a statutory instrument, one would have to look at the Bill not merely with a magnifying glass and a fine toothcomb but also in the most incredible detail. One would have to consider the most insignificant minutiae in order to arrive at that conclusion.

The amendments that the noble Lord, Lord Harris, and I propose would restrict the private management of prisons to new prisons by deleting the provisions of subsection (3) which allow the Home Secretary to extend private management to existing prisons by means of a statutory instrument. I do not propose to repeat the arguments we had at earlier stages of the Bill. They are well known to the House and do not need repetition. I merely urge the Government once more to consider whether or not they need this provision. It would be a radical change in present attitudes towards prisons.

Do the Government really need the provision to be able to extend the privatisation of prisons by means of a statutory instrument? The Government say, "We have no intention of doing it anyway". The answer is obvious. If they have no intention of doing it, what on earth do they want the provision for? They may then say, "We might want it at some stage in the future". If so, then they could introduce positive legislation so that not only the House but interested parties outside the House could consider it before it happened. This is the wrong way of going about achieving a questionable aim. I beg to move the amendment.

Lord Harris of Greenwich

My Lords, I quote what the noble Earl, Lord Ferrers, said at col. 211 of Hansard for 23rd May 1991: I muse emphasise once again that my right honourable friend has no plans to contract out the management of existing prisons. There is no hidden agenda of wholesale contracting out of existing prisons". That is clear; except that the Government take powers in this Bi11 to do just that, as I explained on the last occasion and as is common ground between us. They do so by means of a procedure which limits debate in the House of Commons to about one and a half hours and in a situation where this House does not use its powers to vote against delegated legislation of this character. This House would disqualify itself from having any decision-making role in a such a matter.

Who would believe that a Government would give themselves power to transfer the ownership of every prison in England and Wales into private ownership without primary legislation? I believe that it was the noble Lord, Lord Richard, who said on the last occasion—and in my view he was absolutely right—that were this to be done, there would be appalling consequences for our prisons. It would be or would be seen to be a threat to the jobs of every prison officer in the country.

I sometimes wonder about the Government's common sense. At a time when the noble Earl has to come here and tell us how saddened he is at the appalling industrial relations situation in our prisons —as he did in answer to a Question I put to him a few weeks ago—the Government come forward with legislation of this kind. Do they want peace and tranquillity in our prisons or are they so involved in ideological obsessions that they are prepared to contemplate such a provision? It seems to me a sad, dispiriting piece of legislation.

Many years ago, an old friend of mine, Randolph Churchill, used a phrase which I thought was appropriate when he was discussing a government proposal. He said, "This is the work of silly billies". I believe that phrase was used later by Denis Healey. If ever there was a provision that has been brought forward to satisfy some of the silly billies in the House of Commons, it is this one. In my view this provision will do nothing but further damage industrial relations in our prisons. It has no serious effect other than that. It seems to me an appalling pity that we are being obliged even to discuss this matter.

Earl Ferrers

My Lords, the only reason we are obliged to discuss this matter is because the noble Lord, Lord Harris, has tabled an amendment on it. The noble Lord, Lord Richard, complained on a previous occasion about the difficulty of understanding the wording of the Bill, as did the noble Lord, Lord Harris, and my noble friend Lady Faithfull. Even I admitted that there was a certain difficulty in understanding the wording without giving it a lot of thought. However, that incomprehension was nothing compared with the incomprehension of the noble Lord's amendment. I salute the noble Lord on having thought of such an ingenious and complicated form of words which is even more complicated than that of parliamentary draftsmen.

The noble Lord, Lord Richard, said he tabled the amendment to discover whether the Government had had a change of heart on the matter. The noble Lord used the clever lawyer's argument when he said that if the Government have no intention of privatising prisons what is the point of including this provision in the Bill, but as the provision has been included, the Government clearly wish to privatise prisons.

The noble Lord, Lord Harris, went slightly over the top when he said this measure was a threat to every prison and that we would let ourselves in for great industrial relations problems. The noble Lord must not let his imagination run away with him. The position is perfectly clear and I can only repeat it once again. We intend, subject to the receipt of satisfactory tenders, to contract out the operation of the new remand prison at Wolds in Humberside. Clause 83(3) enables the Home Secretary to make an order, subject to affirmative resolution, to allow the contracting out of other prisons, whether existing or new prisons, if it seems desirable to do so in the light of the experience at Wolds.

The first thing that must happen is the privatisation of Wolds. We must monitor that privatisation. The system at Wolds is a highly innovative one. I agree with the noble Lord, Lord Harris, on that point. The noble Lord does not know whether that privatisation will work, and the Government do not know exactly how it will work. However, we think it is the right thing to do. If the privatisation of Wolds proves to be satisfactory and the Government believe that other prisons could benefit from such privatisation, my right honourable friend would then consider making an order. He would only do so at that point in time. It is not a question of privatising all prisons, including Wandsworth prison. Of course such a step would create enormous problems, such as problems of scale, finance, contractors and industrial relations.

I do not think that the noble Lord, Lord Harris, or anyone else should feel that this measure represents the wholesale privatisation of all prisons. We have merely included in the Bill a provision of which my right honourable friend can avail himself if he feels that it is the right thing to do. The provision enables him to come before Parliament with an order to proceed with such action.

The noble Lord, Lord Harris of Greenwich, pooh-poohs the affirmative resolution procedure. He should not do so, as it is a well known fact that any such order has to pass through both Houses of Parliament. If there is a great deal of antagonism against a measure, even though in theory the House of Lords cannot reject a measure which another place has accepted, governments withdraw orders which have proved to be unacceptable. I have seen evidence of that.

We want to see how contracting out works at Wolds before we take any decisions on whether to extend the scope of privatisation. I can only repeat that the Government have no plans at the moment to privatise any other prisons. However, we wish to include a provision in the Bill to allow the Government to take such a step subject to parliamentary approval, should the experience at Wolds show that such a step is a worthwhile thing to do.

Lord Richard

My Lords, the noble Earl used the phrase "a clever lawyer's argument" in relation to my comments. If the adjective "clever" was meant to refer to "lawyer" I thank the noble Earl for that compliment. However, if the adjective was meant to refer to my argument, it has a pejorative flavour for which I do not thank the noble Earl. But, however the noble Earl characterises the argument, it is rather a good one. If the Government do not need this power, why are they including it in the Bill? It is all very well for the noble Earl to huff and puff and say that the Government would not dream of taking such a power unless such and such a thing were to happen. The Government are taking residual powers to privatise any prison in this country by means of a statutory instrument. That is the reality of the situation, and it is a staggering proposition.

If, a few years ago, anyone had advanced that proposition, it would not have been given any credibility at all. I am sorry that my amendment did not find favour with the draftsmen as it appears it was a little complex even for them.

Earl Ferrers

My Lords, I would not wish the noble Lord to ascribe any mental difficulty to the parliamentary draftsmen. It was I who found difficulty with the amendment.

Lord Richard

My Lords, I am sure the noble Earl did not find any difficulty with the amendment. The draftsmen would have considered the amendment and explained it to the noble Earl on paper. The noble Earl is fortunate to receive such pieces of paper. I can only say that the amendment was deliberately drafted in the form in which it has appeared to illustrate yet again the way in which the Government have slipped this measure into a piece of legislation at the last moment. To use the Common Market phrase, it was hardly a transparent thing that the Government have done.

I am disappointed that my attempt to initiate a change of mind, or at least a change of heart on the part of the Government, has failed. However, at this stage I do not propose to divide the House. I am bound to inform the Government, however, that by taking these powers in this way they are treading a difficult path. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Longford had given notice of his intention to move Amendment No. 32:

After Clause 87, insert the following new clause:

("Medical services in contracted out prisons

. Medical services in contracted out prisons shall be provided as part of the National Health Service.").

The noble Earl said: My Lords, as my noble friend has just said, it is too late to begin dividing the House at this stage. However, the matter I am about to discuss is of great importance. As I said on a previous occasion, I view with detestation the idea of any privatisation. Therefore we are discussing a matter that I hope will never come to pass. As regards the National Health Service, I hope very much that before long the prison medical service will be integrated into the National Health Service and will become part of it. In those circumstances there is not a lot that can honestly be said about this proposed new clause. It is bad enough to face the prospect of the privatisation of this service, but it is even more revolting to think of it being bought up by some predator. In the circumstances it seems best not to move this amendment and to repeat at a later stage how strongly I feel about these disgraceful proposals. I shall not move the amendment.

[Amendment No. 32 not moved.]

Clause 93 [Cash limits for probation services]:

8 p.m.

Lord Richard moved Amendment No. 33:

Page 62, line 22, leave out subsection (2).

The noble Lord said: My Lords, the noble Earl will be pleased to know that I believe this issue has not been raised at any stage in the passage of the Bill up until now. The difficult issue that we have to deal with here is why the Government are pursuing this matter while they are at the same time introducing cash limits which in themselves will serve to control both probation committee expenditure and the number of probation officers the committee will be able to appoint.

At Report stage in another place the Minister, Mr. Patten, put it thus: The intention … is not to usurp the role of committees in deciding how many probation officers are needed, but simply to allow local authorities to object to expenditure on them, and to allow either the committee or the local authority, in default of agreement, to seek a determination from the Secretary of State. The subsection is necessary to prevent the cash limit from becoming de facto a precept on the paying authority".—[Official Report, Commons, 25/2/91; col. 738.]

I have to point out to the Government that there is a de jure precept on the local authority and has been for many years. The Minister's explanation is very difficult to understand. In the Powers of Criminal Courts Act 1973 the expenses of probation and after-care committees are to be borne by local authorities. The Act uses the phrase: shall be defrayed, in accordance with rules so made, by the local authority in whose area the probation and after-care area is situated".

The Government's present clause is an improvement on the original. It at least acknowledges that the probation committee in the first instance is responsible for determining probation officer numbers. However, the clause still introduces the notion of requiring the agreement of yet another party, namely the local authority, in addition to any prescription and approval by the Secretary of State to a matter which should remain within the competence of the probation committee itself. That should be particularly so since the probation committee is to be held ultimately accountable for the management and performance of the local service under the default powers being introduced by the Government.

Let us be clear about this. Probation committees are bodies, corporate. They are statutorily responsible for the probation services in their areas. They are not local authority services. In each of the 56 services in England and Wales the probation committee has a statutory responsibility to act as governor and employer and as such to set a budget for its own service. Both in the shire counties and the metropolitan areas probation committees are required to send to each relevant local authority each year an estimate of the expenses which the committees expect to incur in the subsequent financial year. In general probation committees are funded both by central government and local authorities. Some 80 per cent. of their expenditure on probation is reimbursed to the local authorities by means of a specific grant from the Home Office.

The ability of the probation committees to be free to determine their own staff requirements has been eroded in recent years. The present clause advances that process. Despite that curtailment of probation committees' powers in relation to the appointment of some staff, the Criminal Justice Act 1988 allowed the power of committees to appoint probation officers to continue. The clause in the present Bill seeks to modify that power, curtailing even further the freedom of probation committees to determine their own staff and resources, albeit within tightly prescribed limits.

The clause contains seeds for possible confusion and needless argument in the future between public bodies, namely, the probation committees and the local authorities. Local authorities will not be in a position to know what is a sufficient number of such officers yet their agreement will be required. It is conceivable that they will apply local authority policies and standards towards the staffing of the probation service, which may not be appropriate.

The relative independence of what is essentially a judicial, court-based service is critical. This clause fundamentally alters the constitutional relationship between the probation committee and the local authorities in discharging their respective duties regarding the probation service. That is an undesirable innovation. To introduce further control by local authorities is unnecessary and excessive. I beg to move.

Earl Ferrers

My Lords, the amendment moved by the noble Lord, Lord Richard, would prevent local authorities from being able to object to expenditure proposed by probation committees on probation officers within their cash limits. I believe that it is based upon the concern that probation committees should be free to decide how many probation officers their areas need and that if local authorities are involved in that decision it would create unresolvable tensions between the parties.

We have received a number of representations on this issue. We are still of the opinion that local authorities must be able to object to expenditure on probation officers proposed by the committees, and thereafter to seek a determination from the Secretary of State on this significant part of the committees' budgets. But the amendment to subsection (2) which I tabled, and which was accepted in Committee, made it clear that it is not necessary for the probation committees and their paying authorities to reach agreement as a matter of routine on the number of probation officers.

Our intention is not to usurp the role of committees in deciding how many probation officers are needed, but simply to allow local authorities to object to expenditure on probation officers and to allow either the committee or the local authority, if they cannot reach agreement, to seek a determination from the Secretary of State. If subsection (2) were omitted the local authorities would continue, under a system in which cash limits were set by national government, to be obliged to meet 20 per cent. of whatever probation committees proposed to spend, within their cash limit, without any right to object or appeal. The subsection is therefore necessary in order to prevent a significant amount of the cash limit from effectively becoming a precept on the local authorities. I am sure that the noble Lord, Lord Richard, would not want that.

I find it difficult to accept that local authorities should be able to object and to seek a determination on probation officers only on grounds of inefficiency, as has been suggested in some representations made to us, because there may be other perfectly legitimate reasons for a local authority to object which the Secretary of State would wish to take into account in making a determination.

Clearly a probation committee is best placed to assess local needs, in the light of the amount of cash-limited grant allocated to it. However, the local authority needs to be able to object. In the last resort the decision would be for the Secretary of State in making a determination, taking the advice of his professional advisers and Her Majesty's Inspectorate of Probation as necessary.

I believe that it is necessary for the local authority to have the right to object and to have the matter referred to the Secretary of State. I hope that, on reflection, the noble Lord, Lord Richard, will agree that that is correct.

Lord Richard

My Lords, I do not think that the noble Lord, Lord Richard, will agree upon reflection that the present position is right. However, at this stage, on this particular Bill, having aired the issue and heard what the Minister has to say, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 94 [Information for financial and other purposes]:

Lord Ackner moved Amendment No. 33A:

Page 63, line 30, leave out ("against any persons").

The noble and learned Lord said: My Lords, in proposing a similar amendment on 22nd May during the Report stage within a half column of Hansard I enunciated six propositions. They were referred to by the noble Earl, Lord Ferrers, as "bullets", which was not the intention. I doubt whether I can make them any shorter, but I shall try.

The first is that Clause 94 relates to persons engaged in the administration of criminal justice. That includes judges. Secondly, as the noble Earl, Lord Ferrers, percipiently pointed out in the debate on Tuesday, 23rd April, the judicial oath requires the deponent: to do right to all manner of people without fear or favour, affection or ill will".

Thirdly, in Clause 94 discrimination against—and that is the word that I emphasise—is retained and carries with it the implication that discrimination in favour is acceptable. I submit that that is contrary to the judicial oath. Fourthly, the Government's White Paper, Crime, Justice and Protecting the Public, does not use that offending preposition. It expresses itself quite simply in this way: There must be no discrimination because of a defendant's race, nationality, standing in the community or any other reason". Fifthly, on 23rd April the noble Baroness, Lady Flather, in moving her amendment stated clearly and precisely the principle that: no one engaged in the administration of criminal justice should discriminate".—[Official Report, 23/4/91; col. 241.] Again, there is no offending preposition.

On this occasion I have dealt with the problem that the noble Earl said that he experienced when I, by way of amendment, added the words "discrimination in relation to" instead of "against". He said that he had some difficulty in understanding quite what the effect of using the words "discrimination in relation to" a person would be. It is therefore to satisfy him that there was no hidden complication that I have changed the amendment so that it merely cuts out the offending words "against any persons". Clause 94(1) (b) reads: facilitating the performance by such persons of their duty to avoid discriminating against any persons". I propose to cut out the words "against any persons" so that it simply reads: avoid discriminating on the ground of". That dealt with the problem.

I also had regard to the noble Earl's reference to the Sex Discrimination Act 1975 and the Race Relations Act 1976 as being the foundation for including the preposition discriminating "against". With deepest respect, it seems to me that that makes my point. Those two Acts were concerned with making unlawful something which previously had been lawful. They therefore concentrated on discriminating against, leaving one, if one was so minded, to discriminate in favour without committing any offence—and why not? However, we are not concerned with whether or not discrimination against should be an offence. We are concerned here with declaring the undesirability of discrimination. If you make declarations which are unusual in a piece of legislation which is directed to a large extent at persons occupying judicial capacities, whether they be temporary or permanent, but all of whom have taken the oath, you have the peculiar problem of making sure that your declaration does not offend against the oath. It offends against the oath for a person to discriminate in favour because that is a failure to do justice in accordance with that oath.

I am supported in the amendment—or at least I was supported, unless they have changed their minds—by the noble Lord, Lord Richard, and, on the last occasion, by the noble Lord, Lord Harmar-Nicholls, who is not here tonight. I should have thought that those two sources of support indicate clearly how wholly uncontroversial the amendment is. It can do no harm to the philosophy. On the other hand, it might prevent some degree of embarrassment in passing legislation which comes into conflict with the judicial oath. I beg to move.

Lord Henderson of Brompton

My Lords, I rise to support the noble and learned Lord, Lord Ackner. It seems to me that by the simple process of leaving out those three words we should be enabled to reconcile the drafting of the Bill with the judicial oath without altering its meaning. Those words are superfluous. Perhaps it would also be better to alter the word "discriminating" into "discrimination". That change cannot be made at this stage in this House because we cannot accept a manuscript amendment on Third Reading, but it could be done as a consequential amendment in another place if that is acceptable to the House, as I hope it will be.

8.15 p.m.

Lord Campbell of Alloway

My Lords, I agree with the noble and learned Lord, Lord Ackner, that there is no reason why the amendment should not be accepted. It does not affect the Bill. On the other hand, why should it be accepted? If you discriminate against one person, it is apparent that in all probability you discriminate against others. I have listened with great attention to what has been said. It seems to me a highly esoteric form of legalistic reasoning which is no doubt right, but one wonders what it all adds up to. In any event, we are concerned with what the Secretary of State will publish each year. Frankly, I should have thought that we could leave it to the good sense of the Secretary of State not to make nonsense of this affair. I wonder what all this is about. As always, I am open to persuasion.

Lord Richard

My Lords, perhaps I may tell the noble and learned Lord, Lord Ackner, that I am steadfast in my support. I supported his amendment last time and I support it today. I can see that on a certain reading of the clause, when one is spreading out a duty, as one is in this subsection, there may be a confusion between the words which express the duty in a subsection and the terms of the judicial oath. If that can be resolved by a relatively small amendment of the kind proposed by the noble and learned Lord, I see no reason why the amendment should not be made, and I support it.

Lord Hutchinson of Lullington

My Lords, I remind the House that the noble Baroness who moved the amendment which the Government eventually accepted was against this amendment. That point should be remembered. I agree with the noble Lord, Lord Campbell, that this is an awful lot of fuss about nothing. However, what would be the position if a judge, in sentencing an ethnic minority offender, was to say to him or her, "I think that you've been brought up in particularly difficult circumstances. Because of your origins you have had extreme difficulty in getting a job and I'm going to pass a lenient sentence on you because of those special circumstances"? If the amendment is accepted, people will say that that is discrimination. We should leave the matter as it is.

Lord Monson

My Lords, until I heard my noble and learned friend explain the amendment, I had not understood its full purpose, but now that he has explained it so well, I am in full agreement with it, as are most other noble Lords. It would certainly be a great improvement.

However, there is one other matter that I should like to raise in relation to this point which I do not think has been touched on. I have not spoken previously on the discrimination aspect of the Bill. I have not been around when the subject came up, but it is worth pointing out that the inclusion of Clause 94 would produce certain consequences not all of which are necessarily intended.

I am being in no way flippant about this matter. Anyone who has glanced at court cases reported in the newspapers over the past 40 years or so will be well aware that, whenever a criminal gang consisting of men and women in equal numbers is convicted of robbery, causing an affray or any similar offence, the aggregate sentences imposed upon the men in the gang are almost invariably longer than the aggregate sentences imposed on the women. There may be a few exceptions but that is the general rule.

The subconscious assumption which I do not think has changed much since the 1940s or 1950s, is that men are the natural leaders and that strong willed men in the gang have exercised a malign influence upon their impressionable female companions. One would have thought that logically over the years militant feminists would have been outraged at that state of affairs and demanded sentences of equal length for women. Strangely they have remained unusually silent on this matter.

In consequence of Clause 94 shortly becoming law, it now seems that we are to have sentences of broadly equal length. I wonder whether people have fully taken that on board. I believe that it is worth putting on record.

Earl Ferrers

My Lords, the noble and learned Lord, Lord Ackner, explained the intention of his amendment. Put simply, it is properly to acknowledge the principle which is reflected in the judicial oath; namely, that sentencers should act fairly toward all those who come before them and that that means avoiding discrimination in favour of someone because of his or her race or sex as well as discrimination against someone. That principle is absolutely right and on the substance of the matter I do not think that there is anything between us.

As the noble and learned Lord reminded the House, the drafting of this part of the Bill was discussed at Report stage in the context of a similar amendment which he moved at that time. I said then that I would undertake to look again at the drafting of Clause 94 in the light of the views that he expressed in order to make quite certain that what we had in the Bill was correct. I have done so. I quite understand the noble and learned Lord's reasons for wishing to satisfy himself on the matter, but I can assure him that, according to all the advice that I have been given, Clause 94(1) (b) already properly reflects the principle of fairness which is enshrined in the judicial oath.

I believe that the amendment is unnecessary. As I said during the Report stage of the Bill, although no express reference is made to the need not to discriminate in favour of anyone, that is obviously implicit in the provision as it stands. If someone discriminates in favour of people of one race or sex, that indicates that he is discriminating, or at least is prepared to discriminate, against people of another race or sex. The question of discrimination does not make sense unless it is seen in comparison with the treatment of someone else.

More importantly, I believe that the proposed amendment is undesirable. It would mean adopting an approach in the Criminal Justice Bill which is different from the approach that is already well established in legislation concerning the need to avoid discrimination. The noble and learned Lord, Lord Ackner, referred to both the Sex Discrimination Act 1975 and the Race Relations Act 1976. They both use the same wording that we use in Clause 94 of the Bill; that is, discrimination against a person.

Perhaps I may disagree with the noble and learned Lord, Lord Ackner. It is quite clear from both Acts that that includes discrimination in favour of another person of a different race or sex. For instance, there could be no question of a firm operating a "whites only" policy and claiming that that was discrimination in favour of whites, but not discrimination against black people and therefore was not unlawful.

My noble friend Lord Campbell of Alloway asked what was the difference. The noble Lord, Lord Hutchinson, put the question more graphically when he asked what on earth all the fuss was about. It seems to me that if we adopt a different approach in the Criminal Justice Bill it will be confusing and seem to suggest quite wrongly that we intend something different from what is reflected in the 1975 and 1976 Acts.

The noble Lord, Lord Monson, referred to the fact that the provision will have the unintended result of preventing women from continuing to receive more lenient sentences. I do not believe that. It is in any case not true that they receive more lenient sentences. There is some evidence that they miss out on community penalties compared with men. In principle, if a man and a woman have committed equal offences, they should receive equal punishments. If that were the effect of Clause 94, I do not think it would be a worry. But as my noble friend Lord Campbell reminded us, in the end all that Clause 4 does is provide for the provision of information.

I hope that on hearing that explanation the noble and learned Lord will agree that the wording of the Bill is correct and that to leave out the words that he wishes to delete with his amendment would confuse the situation more rather than clarify it.

Lord Ackner

My Lords, I must say with the deepest respect that if this had been not a debate but an action one would have said that it was an undefended claim because there have been no arguments provided to resist the amendment. When the noble Lord, Lord Hutchinson, with his great powers of advocacy, produces not an argument from the noble Baroness, Lady Flather (who spoke on 22nd May) but merely her name as the ground for resisting the amendment, one can see immediately that there were no solid grounds to resist it.

The noble Earl, Lord Ferrers, again referred to two Acts designed to make criminal offences and outlaw a particular activity, leaving discrimination in favour as perfectly permissible. It is significant that it was not I —I was not present—who reminded the House of the judicial oath. It was the noble Earl, Lord Ferrers, who did so on Tuesday 23rd April in the context of cautioning Members of the House that if one puts in what the Government think is unnecessary, one must be very careful because of the existence of the judicial oath. The noble Earl himself quoted that oath and set it out in extenso.

In that situation it is clear that the Government propose to resist this amendment—I say it with the deepest respect —merely because they are not in favour of it and without having any reasons that appear to carry the slightest justification. In those circumstances at this time of night and in view of the small element of the amendment on which perhaps wiser counsel will prevail in another place, I do not propose to take the matter further.

Amendment, by leave, withdrawn.

Clause 98 [General interpretation]:

Earl Ferrers moved Amendment No. 34:

Page 64, line 26, at end insert:

(" "the 1983 Act" means "the Mental Health Act 1983;").

The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 5. I beg to move.

Clause 101 [Short title, commencement and extent]:

Lord Campbell of Alloway moved Amendment No. 34A:

Page 65, line 20, after ("22") insert (", 24, 25").

The noble Lord said: My Lords, this amendment stands in my name and that of the noble and learned Lord, Lord Morton of Shuna. On the last occasion, at Committee stage, it was in substance kindly moved by the noble Lord, Lord Richard. There is no political element in this matter. At col. 259 of the Official Report the noble Lord explained precisely what the objective was. It was the unanimous recommendation of your Lordships' Select Committee that the law on both sides of the Border should be the same; it should be implemented in the same way in context with the abolition of the mandatory life sentence for murder, which your Lordships have already abolished in Clause 24 of the Bill for England, and with implementing procedures in Clause 25 of the Bill for England. The sole objective of the amendment is to achieve parity between England and Scotland. At col. 259 the Minister accepted that that should be the situation. On that basis the noble Lord, Lord Richard —he is my noble friend in another context—withdrew the amendment.

I have drawn the omission to the attention of the Minister. It is accepted that the amendment rectifies the omission and brings the law in Scotland and England into the same mould. I understand of course the position of the Government, who I support, although not on this point. They reserve their position about the abolition of the mandatory life sentence referred to in Clauses 24 and 25. I understand that. Nonetheless it must surely be common ground that having Clauses 24 and 25 in the Bill for England, the amendment must provide an even playing field for Scotland. I beg to move.

8.30 p.m.

Earl Ferrers

My Lords, as your Lordships know, the Government have reservations about Clauses 24 and 25 and we shall be inviting the other place to consider alternative proposals concerning the matters covered by those clauses. However, as I indicated in response to a similar amendment in Committee on 23rd April, the Government accept that, whatever the outcome of these matters, the effects for Scotland should be the same as for England and Wales. I am therefore content to accept this amendment on the understanding that this is without prejudice to the position which the Government will take on the whole matter when the Bill returns to the other place.

Lord Campbell of Alloway

My Lords, I am grateful to the Minister for his helpful attitude.

Schedule 1 [Amendments of 1973 Act]:

Lord Mancroft moved Amendment No. 35:

Page 72, line 12, leave out ("dependent on drugs or alcohol ") and insert ("a drug or alcohol misuser").

The noble Lord said: My Lords, in moving the amendment I should also like to speak to Amendments Nos. 36 to 40 and new Amendment No. 41. Perhaps I may draw the attention of the House to a misprint in Amendment No. 38, which refers to "a drug or alcohol misuse". It should refer to "drug or alcohol misuse". I believe that it is only a misprint.

I fear that I join the group to which my noble friend referred as the cherry nibblers in that we have seen these amendments twice previously. At Report stage they were in almost identical form except that we did not have Amendment No. 41. If your Lordships accept Amendments Nos. 35 to 40, then subparagraph (9) is no longer needed. Sub-paragraph (9) explains the Government's definition of dependency on drugs or alcohol. If your Lordships are kind enough to accept my amendment, such definition will not need explanation; my amendment makes the matter much clearer.

Noble Lords may remember that my amendment contains the terminology that has been recommended by the parliamentary all-party group on misuse. Such terminology has been recommended by the standing conference and by Alcohol Concern. The Advisory Council on the Criminal Justice Working Party recommended it to my right honourable friend the Secretary of State in very much stronger terms.

Perhaps I may refresh your Lordships' memories. The reason that we should like to see this new definition, of "drug or alcohol misuse" as opposed to "dependency" is that those who will be called upon by the courts to give evidence do not use the term "dependency". To them it is a misleading term. Indeed, the advisory council pointed out that it is a vague term. It is not the precise term that my noble friend and his advisers said that it was. It is vague because so few people will tell one what dependency means.

Those are the background arguments to the group of amendments. At the end of the day the amendment is about a meaning in the Bill. Words are the important part of a Bill. They give it its meaning. Without clear meaning a Bill is not of much use.

We therefore come back to the matter of words. At present with the words "dependency" or "dependent" in the Bill we need sub-paragraph (9) to describe what is meant. However, the definition of dependency in that sub-paragraph is a definition of misuse. Therefore if a social worker, doctor or probation officer is asked by a court, "Is this chap dependent on drugs or alcohol?", the answer will be, "I don't know what you mean by dependency". The court will then quote the definition given in sub-paragraph (9), which states that dependency on drugs or alcohol, includes a reference to his having a propensity towards the misuse of drugs or alcohol", to which the answer will be, "Do you mean does he misuse drugs or alcohol? Why didn't you ask me that in the first place?". Therefore we have this unclear definition at present.

When replying at Report stage, my noble friend accepted my argument in all but one area. He told the House that the definition in the Bill at present was more exact, more legally acceptable, easier for lawyers to use and clearer. He said that Bills were designed not so much for use by lay people but for lawyers who would have to argue them in court. That may be so but "misuse of drugs" was good enough in the Misuse of Drugs Act. It was good enough in the National Health Service and Community Care Act. It has been good enough in countless other pieces of legislation over the past 15 years. Why has it suddenly become not good enough?

The phrase is already enshrined in legislation. It is already on the statute book. There is a clear definition of what misuse of drugs means. After all, this part of the Bill is designed to help misusers of drugs, not just those who are dependent on drugs—if anyone can say who is dependent.

I put forward the amendment again today because I did not divide the House at Report stage since I wanted to give the Government another chance to consider the matter again. I wish to give them every opportunity. I do not seek to divide the House against a government whom I support who are undertaking legislation which intrinsically I support too. I therefore gave them another chance. I put this group of amendments forward again in the hope that I shall receive the answer that I wish or another satisfactory answer. I hope that it will not be unsatisfactory. I beg to move.

Lord Harris of Greenwich

My Lords, the noble Lord, Lord Mancroft, made an overwhelmingly powerful case for the amendment on the last occasion that we debated the issue. He has done the same today. I very much hope that the Government will accept it.

Lord Richard

My Lords, the totality of the argument seems overwhelmingly in the direction of the noble Lord, Lord Mancroft. I cannot see why the Government should be resisting the amendments with the vigour that they have done until now. There is a circularity about the Bill at present. We talk about dependency, and in order to discover what dependency is one refers to sub-paragraph (9), which states that it means, a propensity towards the misuse of". In that case why can one not use the word "misuse" in the first place? It would tidy up the drafting of the Bill and, as the Minister knows, we are all keen to tidy up the drafting of Bills. If that were possible the amendment is thoroughly desirable. I look forward with interest to hearing the Government's views.

Lord Mottistone

My Lords, I too support my noble friend's argument which appears to be conclusive. I shall not add to what has been said by noble Lords opposite. I hope that in respect of this small but important point the Government will be able to bend their rigid approach to the wording.

Lord Morris

My Lords, I too support my noble friend. I do not wish to add to the fundamental argument but merely say that this is a proper drafting amendment to table on the Third Reading. If the drafting of the related Acts of Parliament is wrong and if he does not accept the amendment, do the Government intend to amend the current legislation referred to by my noble friend?

8.45 p.m.

Earl Ferrers

My Lords, my noble friend said that he has tabled the amendment to enable the Government to think again and indeed we have done so. The anxiety which lies behind his proposed amendments is not that the policy is wrong in this part of the Bill but that the drafting does not reflect the policy. It may be found to be confusing by those who must apply the provisions. My noble friend said that it was a question of words. My noble friend Lord Mottistone said that he hoped the Government would bend their rigid approach. That was a funny thing to say before I had even spoken, but I accept his sentiments.

I have looked carefully at the drafting of this part of the Bill and I have considered whether it might be improved by my noble friend's amendments. The issue has been raised with parliamentary counsel. His clear advice was that the present draft of the Bill's provisions better meets the desired policy objectives with which my noble friend agrees than his proposed amendments or any alternative formulation that we have been able to devise. I must advise your Lordships that despite the apparent awkwardness of the existing drafting it is, I believe, an accurate and appropriate reflection of the policy. Moreover, I must tell my noble friend that his amendments would not reflect the policy as accurately.

Perhaps I might help my noble friend and other noble Lords to understand the position. We are all agreed that the requirement to undergo treatment for drug or alcohol dependency or misuse as part of a probation order should be available both for those who are clinically dependent and those who may not be dependent but whose behaviour shows a pattern of misuse. In either case the dependency or misuse should have caused or contributed to the offending, and the dependency or misuse should be capable of treatment.

This policy means that such a requirement would not be appropriate for someone who, perhaps as a result of peer group pressure, had misused drugs or alcohol only once even if on that occasion an offence had been committed as a result of the drug or alcohol misuse. My noble friend's amendments, by referring simply to the fact of drug or alcohol misuse, would however allow a requirement of treatment to be imposed in just these circumstances. That is why I say that it would not reflect the desired policy as accurately as the existing text.

Paragraph 6(9) on the other hand makes it quite clear that the provision is available both for those who are dependent on drugs or alcohol and for those who have a tendency or propensity to misuse drugs; that is those who misuse drugs or alcohol on more than one occasion.

It has been argued that the drafting of paragraph 6 is confusing because it uses the word "dependency" in the main text of the paragraph and brings in "misuse" only in an explanatory provision at the end of the paragraph. I understand why that may be thought to be confusing. But without this approach we should, in order to reflect the desired policy effectively, need to refer both to dependency and a propensity to misuse —and not just misuse as the proposed amendment suggests—at several points throughout the text of paragraph 6. This would, I suggest, lead to a great deal of repetition and complexity in the drafting. The solution adopted in the existing drafting is simpler and follows what is in fact quite common practice in legislation when this kind of drafting problem arises.

My noble friend Lord Mancroft has also criticised this part of the Bill for being inconsistent with other legislative provision; in particular, the Misuse of Drugs Act 1971. I do not however believe that the difference in terminology that he has identified in this case is inconsistency; it simply reflects a different purpose and context. The Misuse of Drugs Act is concerned with the criminal law concerning drugs. Section 37 of that Act defines misuse as the unlawful taking of a controlled drug—anyone who unlawfully takes a controlled drug once has therefore misused it. The provisions in the Criminal Justice Bill are not aimed at people who misuse drugs only once. And they are concerned not necessarily with misuse itself but also with criminal behaviour that results from misuse. We should also remember that the provisions in the Criminal Justice Bill also concern misuse of alcohol as well as misuse of drugs. The fact that the expression "misuse of drugs" works in the Misuse of Drugs Act does not necessarily mean that the same expression will work well in the context of the Criminal Justice Bill provisions.

Legislative drafting must be clear, unambiguous and appropriate to the particular policy that it seeks to reflect. That is not immediately obvious to the layman. It also means that concepts have to be expressed somewhat differently from the way in which one would otherwise more naturally express them. I accept that the drafting of paragraph 6 adopts a different approach from the approach that one might use outside legislation. I am however satisfied that the present drafting of this paragraph does give us—that is, the Government and all noble Lords involved—what we want, and that in the context of the Bill it is both precise and accurate. I am sure that the practitioners who must apply the Bill's provisions will soon become used to its wording.

The differences between us are not about policy; they are simply about drafting. As eminent as are the authorities whom my noble friend has consulted on this question, I suggest that they are not experts on legislative drafting. I have consulted those who are expert in this area and their view is that the present draft of the Bill is the right one. I hope that my noble friend will agree.

Lord Mancroft

My Lords, I agree with my noble friend that legislation should be clear and appropriate in its wording. However, I believe that this area of legislation in unclear and inappropriate. The argument that he has put forward today is slightly different from that which he put forward on a previous occasion. In fact, it goes back to the first argument that was discounted on Report. We have now come full circle.

There appears to be a basic difference of opinion between almost every professional in the field, seemly most Members of your Lordships' House, social workers, probation officers, previous Government draftsmen of earlier Acts and the draftsmen of this Bill. When the draftsmen have finished tonight they will be able to put the Act on the shelf to gather cobwebs. However, the probation officers, social workers, doctors, psychiatrists and so forth who must implement the Bill when it becomes an Act will not be able to put it on the shelf; they must use it. Based on my noble friend's figures, they must work it about 3,500 times per year—10 times every day. Every day people must get used to new terminology because the old terminology is no longer good enough according to the draftsman whose copy will be gathering cobwebs.

Therefore, I am sorry to say that I do not believe that I am alone in not agreeing with my noble friend. On this occasion I must test the opinion of the House to see whether your Lordships agree with me or with my noble friend's advisers.

8.50 p.m.

On Question, Whether the said amendment (No. 35) shall be agreed to?

Their Lordships divided: Contents, 33; Not-Contents, 49.

Division No. 2
CONTENTS
Addington, L.	Carmichael of Kelvingrove, L.
Airedale, L	Carter, L. [Teller.]
Allenby of Megiddo, V.	Cledwyn of Penrhos, L.
Ardwick, L.	Cocks of Hartcliffe, L.
Beaumont of Whitley, L.	Craigavon, V.
Boston of Faversham, L.	Darcy (de Knayth), B.
Brooks of Tremorfa, L.	David, B.

Dean of Beswick, L.	Molloy, L.
Donaldson of Kingsbridge, L.	Morris of Castle Morris, L.
Dormand of Easington, L.	Mottistone, L.
Elliot of Harwood, B.	Moyne, L.
Ewart-Biggs, B.	Mulley, L.
Faithfull, B. [Teller.]	Nicol, B.
Falkland, V.	Ogmore, L.
Fisher of Rednal, B.	Palmer, L.
Fraser of Kilmorack, B.	Park of Monmouth, B.
Glenamara, L.	Parry, L.
Graham of Edmonton, L.	Peston, L.
Grey, E.	Phillips, B.
Hampton, L.	Pitt of Hampstead, L.
Harris of Greenwich, L.	Prys-Davies, L.
Hatch of Lusby, L.	Rea, L.
Hayter, L.	Richard, L.
Henderson of Brompton, L.	Rochester, L.
Hughes, L.	Sefton of Garston, L.
Hutchinson of Lullington, L.	Serota, B.
Hylton, L.	Shackleton, L.
Hylton-Foster, B.	Sharples, B.
Jenkins of Hillhead, L.	Shepherd, L.
Kilbracken, L.	Somerset, D.
Kirkhill, L.	Stoddart of Swindon, L.
Lawrence, L.	Taylor of Blackburn, L.
Lockwood, B.	Taylor of Gryfe, L.
Longford, E.	Vaux of Harrowden, L.
Macaulay of Bragar, L.	White, B.
McNair, L.	Williams of Elvel, L.
Masham of Ilton, B.	Windlesham, L.
Mason of Barnsley, L.	Winstanley, L.
Mayhew, L.	Winterbottom, L.
Mishcon, L.
NOT-CONTENTS
Abinger, L.	Henley, L.
Ampthill, L.	Hesketh, L. [Teller.]
Astor, V.	Hooper, B.
Auckland, L.	Howe, E.
Bauer, L.	Johnston of Rockport, L.
Belhaven and Stenton, L.	Lindsey and Abingdon, E.
Bellwin, L.	Lucas of Chilworth, L.
Blake, L.	Mancroft, L.
Blatch, L.	Margadale, L.
Blyth, L.	Morris, L.
Boardman, L.	Mountevans, L.
Borthwick, L.	Napier and Ettrick, L.
Boyd-Carpenter, L.	Nelson, E.
Brabazon of Tara, L.	Norfolk, D.
Caithness, E.	Nugent of Guildford, L.
Campbell of Alloway, L.	Orkney, E.
Campbell of Croy, L.	Pearson of Rannoch, L.
Carnock, L.	Pender, L.
Cavendish of Furness, L.	Rankeillour, L.
Colville of Culross, V.	Reay, L.
Constantine of Stanmore, L.	Renwick, L.
Cork and Orrery, E.	Rodney, L.
Davidson, V. [Teller.]	St. John of Fawsley, L.
Eccles of Moulton, B.	Saltoun of Abernethy, Ly.
Ellenborough, L.	Seccombe, B.
Elles, B.	Skelmersdale, L.
Elton, L.	Stodart of Leaston, L.
Ferrers, E.	Strathmore and Kinghorne, E.
Flather, B.	Teviot, L.
Fraser of Carmyllie, L.	Trefgarne, L.
Gardner of Parkes, B.	Trumpington, B.
Gisborough, L.	Ullswater, V.
Haddington, E.	Vinson, L.
Haig, E.	Waddington, L.
Hailsham of Saint Marylebone, L.	Wedgwood, L.
	Willoughby de Broke, L.
Halsbury, E.	Wynford, L.
Harmsworth, L.	Young, B.

On Question, amendment agreed to.

Division No. 3
CONTENTS
Airedale, L.	Masham of Ilton, B.
Allenby of Megiddo, V.	Morris, L.
Carmichael of Kelvingrove, L.	Morris of Castle Morris, L.
Craigavon, V.	Mottistone, L.
David, B.	Moyne, L.
Dormand of Easington, L.	Palmer, L.
Faithfull, B.	Parry, L.
Falkland, V. [Teller.]	Peston, L.
Grey, E.	Richard, L.
Harris of Greenwich, L.	Russell, E.
Hayter, L.	Sharples, B.
Hutchinson of Lullington, L.	Shepherd, L.
Kilbracken, L.	Taylor of Gryfe, L.
Lockwood, B.	Walpole, L.
Longford, E.	White, B.
McNair, L.	Winstantley, L.
Mancroft, L. [Teller.]
NOT-CONTENTS
Abinger, L.	Elliot of Harwood, B.
Ampthill, L.	Elliott of Morpeth, L.
Arran, E.	Ferrers, E.
Astor, V.	Haig, E.
Bauer, L.	Harmsworth, L.
Bellwin, L.	Henley, L.
Blatch, B.	Hesketh, L. [Teller.]
Borthwick, L.	Hooper, B.
Brabazon of Tara, L.	Howe, E.
Brougham and Vaux, L.	Johnston of Rockport, L.
Caithness, E.	Lindsay, E.
Campbell of Alloway, L.	Lindsey and Abingdon, E.
Carnegy of Lour, B.	Lucas of Chilworth, L.
Carnock, L.	Margadale, L.
Carr of Hadley, L.	Mountevans, L.
Cavendish of Furness, L.	Orr-Ewing, L.
Colnbrook, L.	Pearson of Rannoch, L.
Cross, V.	Rankeillour, L.
Davidson, V. [Teller.]	Reay, L.
Elles, B.	Seccombe, B.

Soulsby of Swaffham Prior, L.	Waddington, L.
Strathclyde, L.	Windlesham, L.
Strathmore and Kinghorne, E.	Wynford, L.
Trumpington, B.	Young, B.
Ullswater, V.

On Question, amendment agreed to.

8.58 p.m.

[Amendments Nos. 36 to 41 not moved.]

Schedule 4 [Increase of Certain Maxima]:

Earl Ferrers moved Amendments Nos. 42 and 42A:

Page 92, line 43, leave out paragraph 2.

Page 93, line 1, leave out ("that") and insert ("the 1980").

Schedule 12 [Minor and Consequential Amendments]:

Earl Ferrers moved Amendment No. 43:

Page 111, line 44, leave out ("features") and insert ("factors").

The noble Earl said: My Lords, this amendment simply corrects a drafting error in the Bill. I beg to move.

Earl Ferrers

My Lords, I beg to move that the Bill do now pass.

We have reached the end of a fairly long journey. It is customary to make a long speech on such occasions but it may be for the convenience of your Lordships if I restrict myself a little more than one might otherwise do.

I thank all noble Lords who have taken part in these debates. They have been fairly lengthy but seldom have they been acrimonious. Once or twice there was a little flutter here and there. We had the pleasure of seeing the noble Lord, Lord Hutchinson, sparring with the noble and learned Lord, Lord Ackner, which encouraged all who were spectators, as long as we were not participants.

The noble Lords, Lord Richard and Lord Mishcon, both of whom led from the Benches opposite, sought to amend the Bill in a most helpful, constructive and indeed an understanding manner. The noble Lords, Lord Harris and Lord Hutchinson, contributed—usually harmoniously but sometimes in contradistinction to each other—on many parts of the Bill.

This has been an interesting exercise. The Divisions which took place were an exciting experience. We often found ourselves in rare company in the Division lobbies and possibly in the company of noble Lords one does not expect to see together in those lobbies; one expects to see them in happier circumstances outside.

I am grateful for all the contributions which have been made. There is no doubt that the Bill has emerged a better Bill than when it started. In some respects it perhaps went a little over the top from the Government's point of view, but in all respects there was a great concentration of effort, experience and thought. A great deal of time was spent on it by your Lordships and that all helped to improve the Bill which, after all, is making a major contribution to the criminal justice system. For that I express the approval and the thanks of the Government.

Debates were enriched by your Lordships' considerable experience in many areas. The noble and learned Lord, Lord Ackner, gave us the benefit of his long experience as a sentencer. My noble friend Lord Elton knows a great deal about the remand and detention of juvenile offenders. My noble friends Lord Mottistone and Lady Faithfull contributed their experience—not always, I might say, in a helpful fashion from the Government's point of view. The experience of having someone like my noble friend Lady Faithfull sitting behind is unnerving. It is lucky that she does not possess arrows because one would not know quite where they were to end up.

The noble Lord, Lord Nathan, spoke powerfully about murder and life imprisonment, drawing on the weight of his knowledge as chairman of the Select Committee which reported on those issues. Of course we had the powerful support of my noble friend Lord Windlesham and the unique interventions of the noble Earl, Lord Longford, and others.

I like to think, and I am sure your Lordships will agree, that whatever amendments have been made have all been made after considerable thought and concern. The one concern that was pre-eminent throughout all your Lordships' speeches was the effort to make the Bill as good as possible. I hope that your Lordships will agree that the time spent has been worthwhile. I commend the Bill to the House.

Moved, That the Bill do now pass.—(Earl Ferrers.)

Lord Richard

My Lords, on behalf of these Benches I am grateful to the noble Earl for his kind words in regard to our contribution. He was kind enough to say that we had moved our amendments in a helpful and constructive way. I can only say that in that case I wish more of them had been accepted by the Government.

In drawing up a balance sheet as to where the Bill now stands compared with where it was when we started, I drew up a fairly short page of issues on which I thought the Bill had been improved and a very long page of issues where I thought the Bill had not been improved. The Government agreed to extend the criteria for the use and length of custodial sentences to offences triable only on indictment, and for that we are extremely grateful. They agreed to require courts to consider a medical report before a custodial sentence was passed on a mentally disordered offender; for that we are grateful. We voted on the mandatory life sentence issue and we are grateful for the votes of the House on that. The Government made it clear that they will look at the matter again when it goes back to another place.

I could not help reflecting that the argument being used to justify the retention of the mandatory life sentence for murder was that it was part of an understanding which was arrived at when capital punishment for murder was abolished. I cannot forbear from pointing out to the Government that capital punishment for murder was abolished on a free vote. Perhaps the Government—or the party managers responsible for affairs in another place when the Bill goes back—will now consider that the issue of life sentences for murder should also be subject to a free vote with the Whips off when it is reconsidered.

We welcome the amendments introduced by the Government phasing out the remand of juveniles in custody. I do not resile from anything we said in regard to the four-year period and I am sure the noble Earl and other noble Lords who spoke in the debate would not wish me to. I welcome also the Government move on binding over parents. Again, what they said in regard to race we found acceptable.

On the other side, on the longer page—I shall not read it all out—we are still plagued with electronic tagging. We could not persuade the Government to accept a four-day limit for holding people in police cells. We regret that the Government gave no ground whatever on the privatisation of prisons. We regret that the Government rejected our attempts to introduce a sentencing council and the attempts to require the Home Secretary to establish a duty psychiatrist scheme.

All Bills, when they pass through one of the two Houses of Parliament, go through a metamorphosis. At the end of the day one can only draw up a balance sheet of the pros and cons. On any objective examination the Bill is improved. It is being sent back to the other place as a complete Bill in which this House has done its best to produce a more sensible result than the Bill with which we were first presented.

Perhaps I may express my personal gratitude to the noble Earl and all those who took part in the debates. I could not help reflecting that, in a sense, it was a little like a long trial. In a long trial one tends to reflect that that is really rather like a cruise. We are all in the same place unable, for the most part, to get out of it. One sees the same faces day in and day out. One hears the same voices day in and day out—I almost said one hears the same speeches day in and day out, but perhaps that would be a little unfair. The only difference is that at the end of the day here we do not have a jury to whom we can eventually turn. For all the presence of the noble and learned Lord, Lord Ackner, fortunately perhaps we do not have a sentencer of experience. It has been an instructive experience. I am grateful to those on all sides of the House who have made the discussions not only instructive but as pleasant as they could be.

Lord Harris of Greenwich

My Lords, I wish to say a few words on behalf of my noble friends and myself. This has been a long journey, as the noble Earl, Lord Ferrers, told us. I believe that this is the ninth parliamentary day on which we have devoted our attention to the Bill. We do so in a very different way to that followed in the House of Commons where a Bill is sent to a relatively small standing committee. When one goes to a standing committee of the House of Commons one sees a significant amount of work being done by people who are signing letters. The fact is that in this House the matter is taken on the Floor and a very substantial amount of expertise is mobilised from all parts of the House.

The noble Earl, Lord Ferrers, asked for our sympathy because he had the noble Baroness, Lady Faithfull, sitting behind him. We would not share his view of that matter. It is our view that the noble Baroness has excellent judgment in virtually all the matters which we have discussed. It is a great advantage to the House to have some degree of Back- Bench consensus on some of the issues. As the noble Baroness and some of her colleagues are aware, many of the amendments tabled for the Bill were put down on behalf of the all-party penal affairs group. When I refer to it on behalf of all Members of the group sitting wherever they do, I must say how much we are in the debt of the clerk of that committee, Mr. Paul Cavadino. He is a one-man Civil Service. In terms of my experience of a government department and the Civil Service, he is an official of exceptionally high quality. Some of the changes to the Bill owe a great deal to the tremendous amount of work he has carried out on our behalf.

Like the noble Lord, Lord Richard, I do not propose to go through the winners and the losers. On a number of important matters the Bill has been substantially improved in this House. They fall into two categories. The first is where we have persuaded the Government, I hope on the basis of argument, and the second on the basis of the decisions taken in the Division Lobby. There were two such occasions. The vote on mandatory life sentences was of very high significance. The vote was one of the most decisive that I can recall on any issue involving criminal justice policy since I have been a Member of this House. I hope that the Government take account of that vote. I understand their political problems. I hope that the Government take account of the fact that not only was there overwhelming support for the abolition of mandatory life sentences from virtually every quarter of the House, but also strong views were expressed by a virtually unanimous judiciary. The Government would be well advised to take serious account of that fact.

In one respect this House is the last great debating Chamber. When I was sitting in the seat now occupied by the noble Earl I recall that on one or two occasions I would certainly have lost if there had been a straightforward party vote. But there was not. For the period in which I have been a Member of this House there has always been a view that matters of the kind covered by this Bill should be dealt with on a relatively non-partisan basis. I believe that has been done on this occasion. Votes can be swayed by argument in the House of Lords whereas it is almost impossible to do the same in the House of Commons. That was the explanation for the size of the majority on mandatory life sentences.

As the noble Lord, Lord Richard, has reminded us, there have been a number of issues on which we have not made any progress. They include the absurdities of the privatisation of prisons. I do not include the experiment. As I have indicated, these Benches take the view that there is something to be said for it. But on the present provisions in the Bill relating to privatisation we made no progress whatever. Neither did we make any progress on electronic tagging. I do not believe that there is any cause for despair. When we discussed the last Criminal Justice Bill the Government were inflexibly opposed to lowering the maximum sentence of imprisonment for theft and burglary. The House will be aware that in this Bill there is a reduction in the maximum sentences for both theft and burglary. Unfortunately there has been a delay of several years, but nevertheless the view of the House on the last occasion has now been adopted by the Government, and we welcome that.

In winding up from these Benches all I would say is that we are grateful to the noble Earl for the efforts he has made to wring concessions out of his department. The fact of the matter is that he is not responsible for the Criminal Justice Department of the Home Office, and therefore inevitably he must have experienced some difficulties on a number of the issues to which we directed a great deal of attention. But he has been good tempered, on the overwhelming majority of occasions at least, and, after the first two rather difficult days when it appeared that there were going to be no concessions whatever from the Government, I found the noble Earl's attitude entirely reasonable.

On some occasions he had to resist, because that was the position of the Government, but I much appreciated the help he gave to us, particularly at some of the informal meetings we had with him on some of the issues that were debated on the Floor of the House. Having said that, and having thanked all who have participated in the debates on this Bill from whatever quarter of the House, I would wish this Bill well on its way. Although we have some substantial doubts about some of its provisions, it will, I hope, have the effect of reducing the size of the prison population.

9.15 p.m.

Lord Ackner

My Lords, we are in the middle of a long and difficult case in the Appellate Division of your Lordships' House, but I did not wish to miss the opportunity of expressing my great appreciation of the courtesy, good humour, tolerance, and pleasantness which has characterised the various debates on the different aspects of this Bill, largely due to the personality of the noble Earl, Lord Ferrers. Under the Courts and Legal Services Act one does not have to be a member of either the Bar or the solicitors' profession to have a right of audience. In future one will not even have to be a member of the Bar or the solicitors' branch to be a judge from the House of Lords downwards. Having listened to the advocacy of the noble Earl, I think he is well suited to unlimited rights of audience, and I hope that he will join us in the Appellate Division of the House of Lords as soon as this advisory committee has done its job.

I was 25 years at the Bar, and I have known what it is to have a difficult, bad brief. I have for 21 years as a judge listened from time to time to advocates who have been landed with the disadvantage of a bad, inadequate, difficult brief. In listening to the noble Earl I have occasionally been brought back to those occasions, and I thought how admirably he handled the difficulties with which he had to deal.

I attended this debate in really three separate capacities. One has already been referred to as a one-time sentencer—that is, as a Recorder, as a judge of the Queen's Bench Division, and as a member of the Court of Appeal dealing on appeal with sentences. As a judge in charge of what has become known as the judicial OCTU, the Judicial Study Centre for five years, and running sentencing seminars in Cambridge twice a year for some 10 years, I have learned what a difficult job it is to provide the appropriate sentence, and I have been concerned at how much this Bill will add to the difficulties and problems of the sentencer in future. That is largely due—and I am sorry I have failed to mitigate it in any significant way—to the Act insulating the sentencer from reality. Nothing is harder to carry out than when you are inhibited from focusing on really relevant factors. That was the first category in which I appeared here.

I was forensically seduced by the noble Baroness, Lady Faithfull, into concerning myself with the Pigot Committee Report, which I had not read in detail before she asked me to do so. I did not bring to bear or purport to bring to bear any great personal knowledge. That is why I read the report carefully. When I addressed your Lordships' House, I did it by reference to the report, I did it by reference to the memorandum which the circuit judges put forward and I did it, lastly, by seeking the views of the practising Bar through the Criminal Bar Association. It is sad that those concerted views failed. But time will show, and no doubt a careful view as to what is going on may well bring about the full recommendations permitting a child's evidence to be given before trial both in chief, cross-examination and in reexamination.

My last capacity related to the mandatory life sentence. Such input as I was able to achieve was largely the product of having been a member of your Lordships' Select Committee on that subject. What is quite clear is that the Government appear, from what they say they propose to do in the Commons, to overlook two vital factors: first, that the life sentence to the public has become grossly devalued; and, secondly, that the Select Committee made it doubly clear that what it was proposing was not a soft option at all. On the contrary, the life sentence would in some cases, where it was justified, be a sentence for the rest of the person's natural life, and on average would be a great deal greater than it is now.

I am grateful to the noble Earl for his tolerance. It was not he but the noble Lord, Lord Harris of Greenwich, who on one occasion, when I used the well known phrase uttered by the noble and learned Lord, Lord Denning, in a well known dissenting judgment describing his brothers as "timorous souls", said that I had gone over the top. The noble Earl will be the first to realise that one does not win battles by remaining in the trenches, so occasionally one has to show one's head. I repeat my thanks and appreciation and hope that we shall debate again on another matter.

Baroness Faithfull

My Lords, I wish also to pay tribute to my noble friend Earl Ferrers. I realise that I am not in his good books. I realise that he is disappointed with me today but I hope that he will forgive me. Perhaps at this time next week—I shall not say that he will have forgotten what has happened, but at any rate he will not approach me with a gun or a stick in the dark hours of the night.

I should like to make one comment of which notice has been given. The statutory social services and the voluntary child care organisations are deeply concerned that the Criminal Justice Bill as it now stands does not allow for pre-trial hearings in informal surroundings, as the Pigot Report proposed. Instead, cross-examination will take place, usually via TV link, possibly as long as 18 months after disclosure of the offence. At this stage I know that the noble Lord, Lord Mottistone, wishes to speak. He and I wish to pay tribute to the noble and learned Lord, Lord Ackner, for the great interest he took in the recommendations of the Pigot Report.

The Government resisted amendments to introduce pre-trial hearings by arguing that cases should be brought to full trial as soon as possible. The noble and learned Lord the Lord Chancellor said, at col. 140 of the Official Report of 21st May 1991, that, if delays are still endemic in the system, then it may be right to consider this major innovation"— that is, pre-trial hearings. The important question which everyone who works in child care is asking is: how will the Lord Chancellor know whether delays continue to be endemic?

I am grateful to the National Children's Bureau, which has undertaken research and investigations for me. It has informed me that Joyce Plotnikoff from the Institute of Judicial Administration at the University of Birmingham has drawn attention to the deficiencies of the available data in an article which appeared at page 645 of the Criminal Law Review 1990. An extract from it reads: The Home Office and Lord Chancellor's Department do not collect statistics on case disposition times by offence"— I am sorry that the noble Lord, Lord McGregor, is not present this evening. He has always been worried about the lack of statistics— It is therefore not possible to obtain information about categories of offences in which the victims are, by definition, children. Nor is information about disposition times obtainable from special data collection exercises relating to child abuse". The Institute for Judicial Administration has submitted a research proposal to find out the length of delays but the Home Office is not supporting this research. In the interests of children and of justice, it is vital that there should be research in this area. I hope that my noble friend the Minister will be able to tell me whether—and, if so, how—this will be carried out.

A further argument against the need for pre-trial hearings in informal surroundings put forward by the noble and learned Lord the Lord Chancellor was that, there is scope for informality even in a court room as court hearings are developing". [Official Report, 21/5/91; co1.139.] The Family Courts Consortium has strongly recommended that procedure. Therefore, I must ask what mechanism will be developed to look into the question which I put to my noble friend the Minister.

Having said that, I should like to thank the noble Lord, Lord Harris, for what he said, despite the fact that he opposed the Pigot Report amendments. I should also like to thank Members on the opposite side of the House, and the noble and learned Lord, Lord Ackner, for the help which has been given to me.

The Earl of Longford

My Lords, I join all noble Lords in paying a heartfelt tribute to the noble Earl. In my long experience, I cannot remember any Minister who has conducted the proceedings on such a long and difficult Bill with quite so much good humour and buoyancy. In my view, he has made what could have been a painful experience almost a joy.

I am proud to have served under the leadership of my noble friend Lord Richard. I have been happy to find that the noble Lord, Lord Harris, speaks as trenchantly as a member of his present party as he did when he was one of our most distinguished Labour Ministers. However, I am afraid that he takes a more optimistic view than I of the results likely to accrue from the Bill. One has to ask oneself whether these debates will be read in the prisons. If they are, one supposes that they will be read by the more intelligent prisoners, but will they ask themselves: "Are we going to have a better time in the future? Will not so many of us be here? Will we be treated more humanely?" I believe that they are open questions.

The restrictions placed on the judiciary may prove effective. They may curb the ardour of the noble and learned Lord, Lord Ackner, who would like to see some people spending all their lives in prison. However, that has not happened in this country this century. If it were left to the noble and learned Lord, people would indeed spend longer in prison. However, I do not think that that is the prevailing mood of the House.

Therefore, one has to ask whether there will be more people in prison. The noble Lord, Lord Harris, thinks that there will be fewer. I am not so sure. It is true dui in the 1980s the restrictions imposed on the judges, if I may put it that way, led to fewer young people being sent to prison. It is to be hoped that that operate; in this case. But, on the other hand, the parole changes which were acknowledged in the Carlisle Report will lead to an increase in the number of people in prison unless the judges change their tune.

Among all judges, there is no one whom I respect more than the noble and learned Lord, Lord Ackner. However, there is no sign of him having changed his tune, except in what I would regard as the wrong direction. If that is to be the attitude of the judges, the whole system will work in the opposite direction to that for which the noble Lord, Lord Harris, hopes.

I am told that there are plans to impose heavier sentences on people convicted of specified offences. I have told the House previously that not long ago I went to court to give evidence as a character witness. I was told that the defendant would receive a sentence of 10 or 15 years' imprisonment but in fact he received 25 plus five because he could not pay an impossible fine. Last Friday I visited a prisoner who had been convicted of two offences of rape. He said that he was innocent, but let us assume that he was guilty. He was sentenced to 25 years' imprisonment. I daresay that the noble and learned Lord, Lord Ackner, hopes that he will spend the whole of his life in prison for rape. That is one view. It is not mine. It is something I view with revulsion, but it is a free country and a free House.

We do not know how the Bill will work. I hope it will be for the best. If there is a change of government, things may improve. I retain an open mind. However nothing can quell my admiration of the way the Bill was handled by the Minister.

9.30 p.m.

Lord Mottistone

My Lords, I should like briefly, as I believe is the custom for Back Benchers, to thank my noble friend the Minister for accommodating me so well on the various amendments relating to the mentally ill, to the magistrates and to children. I thank other noble Lords who supported the various points that I put forward, with the possible exception of one rare occasion when the noble Lord, Lord Harris, took the Liberals in the wrong direction over the Pigot Report. That was sad. It was an important issue. I hope that it will not be long before we progress what Pigot recommended and reintroduce the proposal in other legislation.

The Bill is good. It is better than it was when it came here. It has shown, as all such debates have shown, that there is a great deal more to be done. I hope that we shall not have to wait too long before we do more. I again thank my noble friend the Minister for the skilful way in which he accommodated all that he could whenever he could.

Lord Henderson of Brompton

My Lords, perhaps I may follow the noble Lord, Lord Mottistone, especially with regard to the amendment based on the Pigot Report. I was sad when that was lost. It was lost, partly because of the defection—if I may put it that way—of the Liberal Democrats and partly because of the golden advocacy of the noble and learned Lord the Lord Chancellor. Those two aspects of the debate proved to be disastrous from our point of view. I am sure we shall return to that matter. I wish to endorse what the noble Baroness, Lady Faithfull, said about the need to gather statistics until we have an opportunity to return to that issue. There is no doubt that our case needs to be buttressed by statistics so as to be so overwhelming that the Government accept it.

I express my gratitude to the Minister for adopting a more conciliatory approach towards the end of our endeavours. I thank him for giving way—something which must be difficult when one has previously resisted the arguments so adamantly. For that I am grateful. I made one effort rather late in the day, though I had adumbrated it on Second Reading, to reinforce efforts to keep people out of the criminal justice system. It is known as diversion. It is designed to divert young people from the criminal justice system. I believe with some confidence that, if that is done early enough, we can keep them out of the criminal justice system for the rest of their lives and thus reduce the prison population.

I do not believe that there is enough to buttress the efforts at diversion in this otherwise excellent Criminal Justice Bill. One way of promoting diversion is to put the police caution on a statutory basis. That caution is an important event in the life of a young offender and of his parents. If it is properly used throughout the country, then I believe that through all the systems for keeping people out of prison and the alternatives to custody which the noble Lord, Lord Elton, is keen on promoting, there will be a dramatic and lasting reduction in the young who are the future customers of the prison system.

Admirable though it is, the police caution is non-statutory. Whether or not it is used varies according to the opinion of the local chief constable. In one area up to 60 or 70 per cent. of young offenders may be cautioned who would otherwise go to a magistrates' court. In the neighbouring area it may be 40 or 50 per cent. That is not right. I would very much like to see the present non-statutory system, which is governed by Home Office circular, beefed up so that all chief constables are aware of the importance of the supreme effort to keep young people out of prison by means of the caution.

It is not merely the disparity between one area and another that concerns me and other people, it is also the disparity in age groups. One finds that chief constables are perfectly happy to use the police caution for 10 to 16 year-old offenders but when they reach the age of 17 it is not used at all. The crimes committed by 16 year-olds are not all that different from those committed by 17 year-olds. Why cannot the police caution be used more frequently for that age group? I should like to see it used much more widely.

I refrained from reintroducing an amendment on Third Reading because I thought it might conform to the noble Earl's views on the repetition of amendments moved on previous occasions and I wished to say a brief word on Bill do now pass. Could the noble Earl encourage the Home Office to beef up its circular? If it would do that, could it also ask the police to consider applying the Home Office circular as much to those young people over the age of 16 as those under that age? Then I would be happy. I regret that the amendment was not agreed to, even though I did not push it to a Division. Much more uniformity could be achieved through a Home Office circular throughout the country without statutory backing.

Lord Windlesham

My Lords, I hope I may add a few words before the Minister replies to this debate. I view the departure of the Bill from this House with mixed feelings. I believe that the objectives in Part I of the Bill—the restrictions on custodial sentences—are potentially of enormous importance. However, I am sceptical as to whether they will achieve the intended result, at any rate in the short term. I still have great problems with the Bill, particularly as regards the ambivalence that still exists towards the treatment of previous convictions and towards offences being taken into consideration. I also believe that the definition of seriousness and serious harm will cause difficulties for the courts. It would be overoptimistic to expect any sudden or dramatic fall in the size of the prison population.

The House is to be commended on the decisions that were taken on the all important amendments dealing with the life sentence for murder. The move away from the mandatory life sentence towards returning discretion to the courts for the most serious criminal offence that is known—that is, murder—must be a move in the right direction. I wish to echo what the noble Lord, Lord Richard, said from the Opposition Front Bench at the start of the debate on the Motion that the Bill do now pass. The Government may be concerned with the popular reaction to the change that has been made by the House of Lords—which will now go to the Commons —and at the argument that the issue of the abolition of capital punishment is being replaced by the issue of the mandatory sentence of life imprisonment. These are issues that have always been handled in another place by a free vote.

There was a vote in the House of Commons on this very Bill on the matter of capital punishment. That vote was taken during the Committee stage in the House of Commons. That amendment only was discussed on the Floor of the House. It was a free vote. The noble Earl and the Home Secretary will play an important part in deciding how the Government should advise another place on the reception of the Lords' amendment dealing with the life sentence for murder. I hope that they will bear the considerations I have referred to in mind.

Finally, I wish to repeat what has been said by every speaker in this short concluding debate in expressing thanks to the noble Earl, Lord Ferrers, for the way in which he has handled the Bill with such skill and patience. We all appreciate that.

Earl Ferrers

My Lords, I hope I may be permitted —I say this with deference to the noble Lord, Lord Harris of Greenwich—to have a second bite at the cherry. I can assure your Lordships that it will be a brief bite as I have only three points to make. First, my noble friend Lady Faithfull asked me specifically about the project which has been proposed by Joyce Plotnikoff. Your Lordships may remember that on Report I gave a firm commitment that the Home Office would evaluate the new provisions concerning the evidence given by children. We propose to commission independent research for that purpose. I can assure my noble friend Lady Faithfull that the research will consider the effectiveness of the new measures in reducing delays.

Although the Home Office is not funding the specific project proposed by Joyce Plotnikoff, I understand that her research into delays in the prosecution of child abusers is now being funded by the Nuffield Foundation. Both the Home Office and the Lord Chancellor's Department are in touch with Miss Plotnikoff and are assisting her with the provision of official data. We shall certainly be interested in the results of that research.

Secondly, I made a vow to refer to the procedures of the House as regards speaking to the same amendments in Committee, on Report and on Third Reading. I thought that we were going to have another speech, if not on an amendment at least about a proposed amendment by so distinguished a person as a former Clerk of the Parliaments on the Question, That the Bill do now pass. The noble Lord said that he had not pressed his amendment at Report stage and had not put it down at Third Reading, and then proceeded to ask me a question about it on the Question, That the Bill do now pass. All I would say to him about beefing up the circular on cautioning, about which he was concerned, is that we put out a new circular only last year. It set national standards. We are monitoring its effects and we need to see the effect of the national standards before we consider the possibility of another circular.

The third and last thing that I should like to do is to thank your Lordships again for the part which noble Lords have played on this Bill and for the very kind remarks which your Lordships have been good enough to express.

One always watches the words of the noble and learned Lord, Lord Ackner, with care because they tend to swing around like a boomerang. One thinks that they are going out in one direction and they swing back and hit one where one is not expecting it. The noble and learned Lord said that some of my remarks reminded him of the days when he was a young barrister and had a bad brief. I was happy to be thought to be in the position of the first part of that description, but I am not aware of ever having had a bad brief on this Bill. If that was the impression that I gave the noble and learned Lord, I can only assure him that it was due to my own bad exposition of a good brief.

When the noble and learned Lord said that, my mind was taken back to the passing of the Manchester Corporation Bill. I remember well that the late Lord Birkett was in charge of that Bill. The noble Lord, Lord Peddie, who used to sit on the other side of the House, got up and made a speech. In his reply Lord Birkett said that Lord Peddie had used some pretty specious arguments. That so infuriated Lord Alexander of Hillsborough, who was the Leader of the Opposition, that he got up to defend his noble friend Lord Peddie and said that he had heard Lord Birkett use some pretty specious arguments. Lord Birkett rose and said that that was perfectly true, and having used them himself he could recognise them when they were used by others.

As this Bill moves on we now pass this package of measures to another place. We shall see what they do with it and with our amendments. I am grateful to your Lordships for having participated so forcefully.

On Question, Bill passed and returned to the Commons with amendments.

House adjourned at twelve minutes before ten o'clock.