HL Deb 12 March 1991 vol 527 cc73-172

3.1 p.m.

The Minister of State, Home Office (Earl Ferrers)

My Lords, I beg to move that the Criminal Justice Bill be now read a second time. I think that the Bill before your Lordships may, in the fullness of time, come to be seen as one of the most important criminal justice measures of our time. It will affect the way in which the courts operate and the way in which offenders are dealt with for many years to come.

It will be seen that the Bill brings about some fundamental and, in some respects, unprecedented changes. Considering the size of the change, your Lordships who take an interest in these matters might think that it has been done with an almost deceptive economy of drafting. Of course changes bring reverberations in any system, but it is not our intention to make changes to what is a well tried and understood system just for the sake of making them; only to try to make the operation and the effect of the criminal justice system better, fairer and more in line with present-day thought.

One of the foremost of these changes is that the law will give guidance to the courts on the criteria which should be followed when sentencing offenders. The proposals are based on the White Paper Crime Justice and Protecting the Public which we published in February last year. In the Bill there are reforms to the parole system which follow very closely the recommendations of the most valuable review which was conducted by my noble friend Lord Carlisle of Bucklow. There are proposals on children's evidence. These are based on the most persuasive report of his honour Judge Pigot, and I think that they will do much to ensure that those who abuse children will not be able to hide behind the difficulties in giving evidence which their victims, at present, face.

The Bill contains important provisions to require the parents of young offenders to take more responsibility for their children's actions. It allows the private sector for the first time to bid for contracts to escort prisoners and to run prisons.

The main purposes of the Bill are to reform sentencing practice—the way in which a sentence is determined—and the way in which sentences are actually carried out. The sentence in an individual case is, of course, a matter for the magistrate or the judge concerned. It is not a matter for Parliament. It is, after all, only the sentencer who will know all the facts of the case. What we seek is consistency of approach in sentencing, not uniformity. We have, therefore, resisted the temptations of those who would like to see detailed and rigid sentencing rules imposed upon the courts, which would require particular offences to be sentenced within only a very narrow range of options.

The principal criterion, when any sentence is passed, must be the seriousness of the offence which has been committed. There are many offences—particularly those of a sexual or of a violent nature —for which the only fitting punishment is imprisonment; possibly a long spell of imprisonment. In the interests of society, the offender must be tucked away from society. But for many other offences, particularly for property offences, it has long been recognised that imprisonment frequently does more harm than good. It can turn inexperienced offenders, who may be verging on the edge of a criminal career, into hardened criminals. It is an alarming thought to realise that prison can, in practice, often be an expensive way of making bad people worse.

Community penalties, on the other hand, cost much less. They can be just as, if not more effective than, custodial sentences in punishing the offender for what he has done and —often equally important—in helping to turn him away from further, worse offending in the future. However, prison has its place. Crime must be punished and the public have a right to be protected from the behaviour of those who break the law and who offend against either person or property. Prison must be kept as the ultimate sanction for those who commit grave crimes or who wilfully disregard the authority of the courts.

The public also have a right to be assured that the alternatives to custody are not just a soft way of dealing with offenders, but that they will provide punishment as well as rehabilitation. It is worth reminding those who may be doubtful about this that there are instances of offenders who have received community sentences telling probation officers that the experience was so disagreeable that they would rather be in prison than be subjected to the community sentence. Community penalties can be both physically and emotionally demanding. They should be constructive. They should not be either degrading or humiliating.

The Bill requires punishments to be commensurate with the seriousness of the offence which has been committed, but custodial sentences should be restricted to those cases where only a custodial sentence is adequate to punish the offender's wrongdoing. There is, though, an exception in the case of offenders who have committed sexual or violent offences and who are judged to pose a danger to the public. In those cases a heavier sentence can, and should be, imposed if this is deemed necessary in order to protect the public from serious harm from the offender. But the punishment should not be deliberately jacked up for a specific offender in order, as happened with Admiral Byng, to encourage others not to perpetrate the same offence.

As I said, one result of the Bill will be to encourage the trend away from the use of imprisonment. This trend has been very marked in the case of young offenders since the Criminal Justice Acts of 1982 and 1988; and we have more recently seen a similar trend in relation to adult offenders. This is much to be welcomed and I pay my modest and lay tribute to the part which the judiciary and the magistracy have played in bringing this about. However, let us he quite clear. This has nothing to do with being soft on crime or of feeling sympathetic to criminals; but it has everything to do with tackling the problem of crime with the knowledge and research which are now at our disposal. That is the underlying philosophy of the Bill.

I shall not trespass upon your Lordships' patience with a recitation of the Bill's detailed contents, but I should like to draw your Lordships' attention to a number of key provisions. First, there are the new principles for custodial sentences which are set out in the first three clauses of the Bill. In general they apply only to offences which are triable summarily—in other words, by the magistrates—and to those which are triable either way; in other words, by the magistrates or the Crown Court. Clause 1 establishes the general principle that a custodial sentence is to be passed only if the court is of the opinion that the offence is so serious that only a custodial sentence can be justified for it. Clause 2 requires the court to apply similar principles in determining the length of a custodial sentence, and Clause 3 sets out the information to which the court is to have regard when it forms its judgment as to whether a custodial sentence is justified and, if so, for how long.

In all cases in which custody is being considered a pre-sentence report is required. Clause 3 also sets out the way in which the previous record of the offender is to be dealt with when sentencing for a new offence.

Community sentences are listed in Clause 5. They are the probation order, the community service order, the combination order, the curfew order, the supervision order and the attendance centre order. The combination order under Clause 10 and the curfew order under Clause 11 are both new types of order. The combination order allows probation supervision to be coupled with a requirement to perform community service. It will combine work, which will be supervised by the probation service, to make the offender face up to what he has done with the discipline and the reparation to society of community service. It will be of particular assistance in dealing with offences which are relatively serious.

The curfew order, if used selectively for suitable offenders, will keep the offender out of trouble at times when he might otherwise be getting into trouble for example, by keeping the offender out of pubs at night if the offence has been connected with late night drinking. The curfew order can be imposed for up to 12 hours in any 24-hour period—consecutively or separately—and it can be imposed for a maximum period of six months. So it can be a pretty stiff check on the offender's freedom, but it should enable the offender both to discharge his responsibilities and to keep up his ties in the community.

The financial penalties are covered in Clauses 15 to 21. The great majority of criminal offences are in fact dealt with by fines. In 1989, 80 per cent. of offenders were punished by means of fines and 99 per cent. of all fines were imposed in the magistrates' courts. The proposals in the Bill seek to encourage the use of financial penalties for offences which do not require the offender's liberty to be curtailed either by a community order or by a custodial sentence.

Clause 16 of the Bill introduces a unit fines scheme for people who are fined in the magistrates' courts. The scheme will enable magistrates' courts to take account of the offender's ability to pay in a way which properly reflects the seriousness of the offence and which makes similar demands of offenders who have different means. We believe that the unit fine scheme will make for greater consistency in the setting of fines. It should also help to reduce the rate of default of payment of fines, as fines will be set with greater certainty at a level which the offender can afford to pay. The power which is proposed in Clause 21 for fines to be recovered by attachment of income support in small amounts each week should also reduce default and imprisonment.

Part II of the Bill introduces a radical reform of the arrangements for granting parole and the remission of sentence, which my noble friend Lord Carlisle of Bucklow advised in his report. The present arrangements are generally agreed to be unsatisfactory. They can lead to anomalies whereby prisoners who are sentenced on the same day but to quite different terms can nevertheless find themselves released on the same day.

It has also been a matter of wide concern that the possibility of release at the one-third point of sentence leads to an unacceptable erosion of the value of the original sentence which was passed by the court. The arrangements which are proposed in Part II are intended to overcome those problems and thereby to give greater meaning to the sentence which is originally passed by the court.

The fundamental point is that no prisoner will be released, other than on exceptional compassionate grounds, earlier than the half-way point of his sentence. Prisoners who are serving less than four years will be released automatically at the half-way point unless the release is delayed for misbehaviour in prison. Once released, those who are serving terms of a year or more and all young offenders will be supervised by the probation service or the social services as a means of protecting the public and in order to assist their re-integration into society.

The Earl of Longford

My Lords, is the noble Earl leaving the question of parole?

Earl Ferrers

My Lords, no. I am only half-way through. I do not wish to frustrate the noble Earl in asking his question, but if he is content to be frustrated I shall be too.

All those offenders will be liable to be returned to prison to serve the remainder of their sentences if they should re-offend before the end of the original sentence. For longer-term prisoners—those who are serving four years or more—release at the half-way point will be discretionary, not automatic. The primary consideration in deciding whether a prisoner should be granted parole in those cases is whether the granting of parole will itself put the public at greater risk of serious harm from the offender.

The Bill makes it possible for the Home Secretary to delegate to the Parole Board the final parole decision in such classes of case as may be specified. It is my right honourable friend's intention initially to delegate that responsibility to the board in cases where the prisoner is serving a term of less than seven years.

The Earl of Longford

My Lords, does the noble Earl accept that unless the judges alter their approach to sentencing the proposals in relation to parole will lead to an increase in the prison population?

Earl Ferrers

My Lords, it is always easy to do an exercise in mathematics. Obviously when the judges make their decisions on sentencing they will take into account the new systems which will exist.

Part III of the Bill makes further important proposals about how children and young persons are to be treated by the courts. Clauses 43 and 46 give effect to recommendations of the Pigot Committee on children's evidence. The objectives are to ease the stress and the burden of criminal proceedings for children, to ensure that their evidence can be properly considered and to make it more likely that child abusers are brought to justice. We have not, however, neglected the right of the defendant to receive a fair trial.

The present technical rules about the competence of witnesses have meant that many young children who have been abused or who have witnessed abuse have simply not been allowed to tell their story to the jury. That is clearly wrong, and the Bill abolishes those unnecessary restrictions.

The rules against hearsay evidence mean that video-recordings of interviews with the child are not allowed as evidence, except in very special circumstances. The Bill ensures that those rules will no longer prevent the video-recording of an earlier interview with the child—for example, with the police or social services—from being introduced as evidence. The Bill will allow such a video to be played to the jury as the child's evidence-in-chief.

The Bill also builds on the provisions of the Criminal Justice Act 1988 by allowing children to give any further evidence by live television link from outside the court room. In permitting this, we have been careful to safeguard the defendant's right to have the case against him properly tested, while at the same time protecting the child from unnecessary stress and trauma.

We are also helping child victims, and witnesses of sexual or violent abuse, by bypassing the magistrates' court committal proceedings where the case is going to be heard in the Crown Court.

The remaining clauses of Part III deal with the way in which young people are dealt with when they come before the courts either as defendants or as offenders. A significant amount of crime is carried out by male teenagers. The peak age for offending is the mid-teens. If we are to tackle crime effectively, their offending behaviour must be tackled vigorously.

It is essential to realise and it is a point which is too often side-stepped—that parents have an essential and a responsible role in bringing up their children and in instilling in them a sense of what is right and of what is wrong. Although parents cannot be responsible for all that their children do, they nevertheless have a responsibility for trying to ensure that they bring their children up in a way which respects the rights and the freedom of others, which the children themselves enjoy. It is not good enough for parents always to say of their children's misdemeanours, "It is not my fault. There is nothing which I can do about it". The fact is that parents have a responsibility for their children's upbringing and thereby to some extent for their actions, and the Bill underlines that.

It does so by strengthening the courts' powers to require the attendance of a parent or guardian at proceedings which involve their children. It does not mean that parents will always have to attend proceedings which involve their children, but if the child is under 16 the parents will have to attend unless the court considers it unreasonable in all the circumstances. It can also require that parents should pay any fine or compensation which may be imposed on their children. If it does so. the parent's means—not the child's means—will be taken into account when assessing the amount of a fine which may be imposed.

The court will also have the powers to bind over the parents of offenders to ensure that they take proper care of and exercise proper control over their children. In the case of offenders aged under 16, the courts will have a duty to exercise these powers unless it would be unreasonable for them to do so.

We are also proposing to change the way in which young people themselves are treated in the criminal justice system. We suggest that 17 year-olds should generally be treated as young persons rather than as adults. The sentence of detention in a young offender institution is to be abolished for 14 year-old boys in line with the situation for girls of that age, but custodial sentences will still be available for those who are convicted of the most serious offences. We shall also be tabling amendments at the Committee stage to pave the way for the abolition of remands in prison department custody of boys who are aged under 17.

Part IV of the Bill provides for the more efficient administration of the criminal justice services. It provides for the appointment of court security officers in magistrates' courts and includes proposals for involving the private sector in the operation of the remand system. My noble friend Lord Waddington, in his former capacity as Home Secretary, announced on 11th July last year that the Government intend to go ahead with the contracting out of court escort work and with competitive tendering for the operation of the new Wolds remand centre, which is under construction at Everthorpe in Humberside. As a result of amendments which were introduced in another place, my right honourable friend the Home Secretary would also have the power to make an order, subject to the affirmative resolution procedure, to enable other types of prison establishment to be contracted out.

The Bill provides a set of rigorous safeguards to preserve public safety, to protect the rights of prisoners and to ensure that Ministers continue to be accountable to Parliament for these matters under any contracted-out arrangements which may be made. A high standard of service will be set. These proposals should help both to improve conditions in the penal system and to give better value for money for the taxpayer.

Perhaps I can draw your Lordships' attention to Clause 79, which requires the Secretary of State to publish information annually about the cost of the administration of the criminal justice system and to help people who are involved in its administration to avoid improper discrimination on racial or other grounds. The information to be published will cover the whole of the administration system from how the police enforce the law, through the sentencing system to the administration of penalties. It will shed light on costs and practices in the police and the Crown Prosecution Service, in the prison service, in the probation service, in the administration of the courts, and also in the courts, for example, about the cost of collecting fines.

It goes without saying that there should be no racial discrimination in our criminal justice system, and I know that those who work in the system are determined that there should be none. The provision of the information, which is mentioned in Clause 79, is specifically designed to help them and to keep this important aspect of fairness in the criminal justice system in the forefront of everyone's minds.

I have taken longer than I wished in introducing the Bill. However, it is an important Bill. It is a reforming Bill which, I believe, in the fullness of time, will be seen as radical. The changes which are proposed encapsulate the best of existing practice. They are supplemented by new ideas which themselves have been subjected to extensive research and consultation. And, of course, many of the changes are based on the work of distinguished independent reviews.

The common aim of all these proposals is to deal with crime and criminals more effectively, more justly and, I hope, more humanely yet in a way which properly protects the rights and property—and the safety—of the general public. I commend the Bill to your Lordships. I beg to move.

Moved, That the Bill be now read a second time. —(Earl Ferrers.)

3.24 p.m.

Lord Richard

My Lords, I begin with a statement which I am sure will be non-controversial, in fact rather pleasant. This is the first time that I have had the pleasure of seeing the noble Earl who opened the debate at the Dispatch Box since his return after illness. We welcome him back and hope that he has fully recovered. We look forward to working with him on the Bill. Secondly, perhaps I may say, if it needs saying, that when the noble Earl expresses a determination to deal with crime in a proper way and reassures the public that criminals will be dealt with appropriately, his view is echoed firmly on this side of the House.

But while we welcome much of the content and the aims of the Bill, I have to tell the noble Earl that we regard it more as a missed opportunity. The criteria for sentencing are to be reformed but without what we believe to be essential; namely. a sentencing council to help promulgate and guide the new criteria. The parole provisions are to be changed but in a way that may in fact increase the prison population. Proposals which I can describe only as doctrinaire—curfews and tagging, parental responsibility and prison privatisation—mar what could have been a good and indeed admirable Bill.

One can understand the difficulties faced by a Conservative Home Secretary. On the one hand, he knows what ought to be done and frequently agrees with what ought to be done. On the other hand, he has to pay attention to the more atavistic wing of his party. All Conservative Home Secretaries tend to square that very difficult circle with which they are faced by descent into gimmickry. Curfews, tagging and the absurd proposal to fine parents fall precisely into that category. We understand why the Home Secretary has made those proposals, but he cannot expect us to support them.

Much of the early part of the Bill is about keeping out of prison people who do not need to be there. One knows that the United Kingdom has a higher prison population, both in absolute numbers and relative to its overall population, than any other member state of the Council of Europe. There is very little evidence —at least, I perceive none—to prove that those other countries have more law abiding populations than we do. If so, perhaps we do tend to send to prison more people than ought to go there.

Part I of the Bill attempts to tackle that problem. In doing so it embodies an aim which we and many others in the House would like to welcome unreservedly. We should like to welcome it unreservedly but in view of some of the comments that I have to make about the rest of the Bill, I cannot do so.

In our view, the establishment of a coherent legislative framework for sentencing is incomplete without the inclusion of a sentencing council. I shall return to that topic later. The Government's proposals are similar to those which since 1989 have governed the sentencing of young offenders. They have resulted in a significant reduction in the number of juveniles held in custody. Estimates contained in this Criminal Justice Bill reveal that the Government expect that an extension of the provisions to adults will result in a net reduction of 1,500 a year in the prison population, with a consequent saving of £25.5 million a year. What is the evidence for that? Taken with the effect on the prison population of the new parole provisions, that estimate seems to me over-optimistic. I should like to see it justified from the Front Bench opposite.

Clause 1 of the Bill was considerably improved during its passage through the other place by refining the definition of "serious harm". What we do not understand—and will attempt to remedy—is why the provisions setting out the grounds on which a custodial sentence may be imposed should not be extended to indictable only offences. Logic and common sense indicate that it should. After all, Clause 1 implies that an obligation to give reasons to justify a custodial sentence on grounds relating to the seriousness of the offence or the need to protect the public from serious harm will concentrate the judicial mind, thereby reducing the likelihood of inappropriate sentences.

If that is the argument, it is certainly not clear to me why these proposals should not be extended to indictable only offences, particularly when the evidence produced by the National Association of Probation Officers shows that about a quarter of offenders convicted of offences triable only on indictment in England and Wales in recent years have been given a non-custodial or suspended sentence. Together with colleagues in other parts of the House we shall try to persuade the Government of the logic and common sense in extending Clause 1 also to cover those offences.

On this side of the House we share the Government's desire to ensure that those who commit the most serious crimes against the individual are appropriately punished. I started by saying that I hoped that that went without saying. Having reiterated it, if it had needed to be said I have now stated it twice.

There is concern over the powers contained in Clause 2 which allow violent or sexual offenders to be sentenced to longer terms of imprisonment than the offence merits if that is necessary to protect t he public from serious harm. That is so despite the main purpose of the clause which attempts to ensure that the length of sentence is commensurate with the seriousness of the offence. NACRO stated, in words which I echo, that, the central objection to this approach is that it is unjust. The principles of justice require courts to seek proportionality between the severity of the punishment and the 'just deserts' of the offender. Offenders sentenced under the new powers could receive sentences for less serious assaults of a severity normally reserved for graver crimes. Moreover, such sentencing decisions would be highly subjective and based not on what the offender has done, but on the judge's guess as to what he might do in the future". There is some force in the argument.

One other problem with the clause has been raised by the gay community. The Government's amendment to Clauses 1 and 2 at Report stage in another place, tightening up the definition of "serious harm", clarified that the Government's intention is not to increase punishment for victimless homosexual offences. It may not be the gravest issue with which we deal on the Bill but, on the other hand, we need to ensure that the new draft adequately reflects the Government's expressed intention not to increase, in a discriminatory way the penalty for homosexual offending". It is an issue on which concern is understandably felt in the gay community and on which I am sure the House will need reassurance.

The confusions and inconsistencies marring the Bill are nowhere more apparent than in Clause 3. The emphasis on matching sentence to the seriousness of the offence rather than to the offender's previous record is thrown into doubt by subsection (3) of Clause 3. That allows courts to take into account the circumstances of previous offences in so far as they are relevant to forming an opinion as to the seriousness of the offence. In our view, that subsection should be removed from the Bill; in particular since Clause I already allows for heavier sentences to be imposed for calculated professional offences—those at which Clause 3(3) seems to be aimed. Removing that subsection would avoid the risk of courts increasing sentences simply because the offender had a previous record. As I understand it, that is not the objective which the Government have in mind.

I turn to the issue of a sentencing council. I entirely agree with the noble Earl that uniformity is not what one seeks; consistency is. Many of the problems of sentencing and of achieving greater consistency could be avoided by the creation of a sentencing council. The Government's approach to the problem as expressed in the Bill has been to lay down criteria on the use of custodial and non-custodial sentences, with the Court of Appeal providing any further guidance that is needed.

With many of the penal affairs groups concerned with such activity, the Labour Party has called for a sentencing council as a more effective and transparent approach to the problem. We therefore intend to propose, in Committee, the establishment of such a council. Its members would consist of the Lord Chief Justice and not less than four judges of the Court of Appeal with the power to appoint advisers with experience in the criminal justice field. I hope that whatever the House thinks of the proposal, it will at least agree that such a council would present little danger of encroaching on judicial freedom. We are as anxious as anyone to maintain such judicial freedom. The advantage of such a council is that it could develop guidance on sentencing, including both custodial and non-custodial sentences, across the board, building on guidelines already issued by the Court of Appeal. We hope that it could do so in a more comprehensive manner.

The rationale behind the proposal is simple. We need greater consistency in sentencing practice. The public needs reassurance that this consistency is being actively pursued. We regret that the Government have so far not been able to agree.

One area about which the Government have been somewhat more accommodating is that of race. The Government's statement at Report stage in another place went some way in the direction that was urged. However, like so much of the Bill, the Government were unwilling to fulfil their determination to avoid discrimination—I accept that they have such a determination—by refusing to accept an amendment which would establish in statutory form the basic principle that decisions in the criminal justice system must be taken without racial discrimination.

The evidence of discrimination is hard to refute. The proportion of the prison population from ethnic minorities has risen from 12.5 per cent. in 1985 to 16 per cent. in 1989, though ethnic minorities constitute less than 5 per cent. of the population. Furthermore, Home Office statistics show that members of ethnic minorities entering prison tend to have fewer previous convictions than their white counterparts. It is an interesting gloss on the situation that when black defendants come to trial they are two-and-a-half times more likely than whites to be acquitted. That seems to imply that a significant number should never have been in court in the first place.

An amendment such as that proposed in the Commons, which we intend to pursue in this Chamber, is designed to be declaratory. It would send a clear signal that the Government attach importance to the establishment of the principle of nondiscrimination while reinforcing the efforts of many working in the criminal justice system to ensure that the system is fair, is seen to be fair, and (just as importantly) is accepted as being fair.

I turn now to the proposals in the Bill for community penalties. They again confirm the Government's commitment to non-custodial sentences, which I accept. However, they also confirm the Government's failure fully to appreciate the importance of such sentences to the offenders. The proposals on curfews and electronic monitoring are entirely negative measures. They betray an inflexibility on the part of the Government in the face of evidence compiled by their own Home Office. The proposals are, in short, gimmicks.

Curfew orders have been available for use with juveniles since the passage of the 1982 Criminal Justice Act but have been rarely used. In 1988 less than 10 were imposed in England and Wales. Why? It is because they are unworkable. The unworkability of the curfew order explains the rarity of its use. Extending it to adults will only, in the words of the Prison Reform Trust, open courts to ridicule by making orders which are clearly unenforceable".

The experiments with electronic tagging have been nothing less than a fiasco. Despite Government expectations, only 50 people were tagged in the three courts used as an experiment during a three-month period in 1989. It is unfortunate that 29 of the 50 were subsequently arrested for further offences, had breached their conditions of bail or had absconded. Is it seriously suggested that curfews and electronic tagging are a major attempt to deal with the problems? I think not.

We are also somewhat critical of the Government's proposals on combination orders. The Bill aims to keep out of prison those offenders who do not need to be there. The new combination order provided for in Clause 10, with its onerous conditions and the consequent danger of a high breach rate, could well lead to the imprisonment of offenders who would not otherwise have been at risk of custody. We shall press for such orders to be used only when the courts would otherwise have passed a custodial sentence.

The prevention of unnecessary imprisonment is even more important in the case of two other groups: fine defaulters and the mentally ill. The system of unit fines is a reform which has been welcomed with some relief by those who have been campaigning on that issue. Indeed, it is one aspect of the Bill which we much welcome, though we should like to see the lowest unit reduced from its present level of £4.

Seventeen thousand fine defaulters are imprisoned annually and the unit fine system should happily reduce this. But the Government should have had the courage to pursue their reforms to the end and abolish imprisonment for fine defaulters except in circumstances where other enforcement methods are quite impractical. As was pointed out recently, fine default should not be used as a back-door into prison for those convicted of offences such as drunkenness which Parliament has decided should not themselves be punishable by imprisonment.

I turn to the problem of the mentally disordered offender. There is a general consensus that he should be diverted from custody wherever possible. Indeed, the Home Office circular states: It is Government Policy that wherever possible mentally disordered persons should receive care and treatment from the Health and Social Services".

But again this is an area of the Bill which represents a missed opportunity. So far the Government have failed to respond to suggestions put forward in another place which would make significant progress towards their own aims.

Amendments were tabled by the Opposition in another place which would have imposed a duty on a court contemplating a custodial sentence to obtain and consider medical opinion on the offender if the court believed that he or she was suffering from a mental disorder within the meaning of the Mental Health Act. The Minister, Mr. Patten, gave a clear undertaking that the Government would examine the issues and return to the matter. I fear that he was less accommodating at the Report stage. The mentally ill should not be in prison. We look forward to the Government's promised amendment in Committee.

I am sorry that my speech is somewhat bitty but your Lordships will appreciate that the Bill is a little like Churchill's pudding—it does not have one theme but about six. I therefore considered that the most appropriate way of dealing with it was to endeavour to make clear to the House the Opposition's position on the various aspects with which we must deal. As regards the early release of prisoners, the danger is that the Government's proposals could result in a substantial increase in the prison population, despite their commitment to reduce the number of people in custody. We welcome the rationalisation of sentences served by prisoners which is provided for by the new system of supervised release. However, the Government have said that judges should shorten their sentences to compensate for the increased quantum of punishment which would be involved in prison sentences after the introduction of the changes. But that is clearly only a hope. A stronger guarantee that that would will actually happen would be if the Government accepted the argument put forward by the Labour Party and others for a sentencing council.

I hope that I have not appeared too negative about the Bill. I fear that in considering a Bill, part of which one accepts, indeed commends, one tends to concentrate on aspects about which one is critical. For the most part we give the Government credit for their good intentions. Our problem is that we believe that the Bill could have been so much better. But as I say, there is much in the Bill that we welcome.

Among those aspects that we welcome is the implementation of the Pigot proposals on video-recorded evidence contained in Part III. Children would benefit from the provisions of the Bill as it now stands, although the NSPCC and other children's organisations believe that they could be further strengthened. In another place the Government were sympathetic to the need for a code of practice on the cross-examination of children. Will the Minister say whether the House can expect any amendments in Committee? What is the Government's present thinking on the issue?

Unfortunately, Part III also contains much with which we disagree. The proposals on the binding over of parents are opposed by many organisations from the Law Society to the National Association of Probation Officers. I do not know of one organisation active in the field which supports the proposal. It is a measure which in our view will serve only further to divide parents from child. Families whose children display delinquent behaviour are families already under stress. Such families need support, help and encouragement and not the exercise of judicial powers against them. I hope that with the assistance of colleagues in all parts of the House the provisions will be deleted from the Bill.

But if we have misgivings about the other parts of the Bill, Part IV is where the Government and the Opposition divide on both ideological and practical grounds. We remain totally unconvinced that the privatisation of even part of the prison service will result in a cheaper and more efficient service. It is a proposition based on a dogma which I hope that this House will reject. More importantly, we believe that it is wrong in principle to profit from the administration of justice and punishment, and that it is even dangerous in practice to try to do so.

We have several anxieties about the issue. The first and most obvious is that the proposal could lead to the development of an industry with a real financial interest in expanding the prison estate. The irony of the situation is surely obvious. It runs totally counter to the Government's stated policy of reducing the prison population. Indeed, it is against the very spirit of the Bill now before us.

Another objection, which in many ways is more fundamental, is the handing over to the private sector of the responsibility for guarding people whom the state has chosen to imprison. I accept that private interests operate in the penal system at the shallow end, so to speak, in community homes and so forth. But prisons are very different institutions; they are places where considerable force may be needed to restrain individuals or to put down disturbances. I firmly believe that the power should remain the sole responsibility of the state.

Moreover, under the Government's amendment introduced in another place, when disturbances are threatened or arise the Secretary of State is empowered to send in a prison governor to take charge. That is an admission that ultimately the duty of guarding prisoners is, and should be, the responsibility of the state, whose officials are directly accountable to Parliament and not to a body of shareholders.

Another worry and a real anxiety follows on from Judge Tumim's report into suicides and self injury—in an effort to increase profitability corners will be cut. Those private contractors who gave evidence to Deloit's on the potential of the private sector to run remand homes stressed that they would rely on high technology to reduce staff-inmate ratios. I repeat that they stressed that they would rely on high technology to reduce staff-inmate ratios. I was not surprised to see eyebrows raise at that comment; mine did too when I read it. It is a recipe for yet more suicides. Remand prisoners are notoriously vulnerable. They need more and not less human contact. Neither should we forget that the inmates of what might turn out to be quasi-electronic cages might well be found innocent of any crime when their trial comes to court.

Finally, there is the question of the private sector's competence to carry out the sensitive task of guarding prisoners sent to prison by Her Majesty's courts. Members on both sides of the House acknowledge that something needs to be done, and done urgently, about the unregulated private security industry in this country. Too often it pays its workers abysmally low wages, gives them sparse training, does little to vet their background and often delivers far from adequate services. It is true that the Bill contains a schedule which will certificate private prison guards. However, as yet we know little about what that means and about the guarantee that can be given that their training will be adequate. This part of the Bill is an unnecessary and dangerous distraction. The Government could have profited more from the inclusion of provisions to improve prison regimes.

I apologise for taking so long but I wish to comment briefly on two other matters. They are not directly raised by the text of the Bill but both are apposite and relevant. The first is the proposal that the mandatory life sentence for murder should be abolished. I have had the opportunity of reading the amendment which the noble Lord, Lord Nathan, hopes to propose. At this stage I merely inform the House that the Labour Party will be supporting that amendment. This is not the time to debate it in detail. I say merely that the argument appears to have much to commend it, particularly against the background of our proposals for a sentencing council which will doubtless give guidance and help to judges on how to approach their new responsibility.

Finally, there are the issues raised by the Woolf Report. I have already expressed our gratitude to Lord Justice Woolf and his colleagues for the thoroughness of the report. I hope that we shall be able to pursue some of the issues raised by him in the course of the Committee stage of this Bill.

The people of this country will not understand a situation in which a Criminal Justice Bill—a fundamental Bill, so it is said by the Government—is going through its stages in Parliament and yet the very important provisions contained in the Woolf Report are not before the House for a full debate. Therefore, we shall pursue that matter.

I return to where I started. Unfortunately, in our view, the Bill is an opportunity missed. I hope that the House will be able to improve upon it in Committee. We shall certainly try.

3.50 p.m.

Lord Hutchinson of Lullington

My Lords, for penal reformers, this is an era of great interest. There has been the Carlisle Report, the Government White Paper and the Woolf Report. We now have this Bill which sets out for the first time the sentencing framework for the courts and establishes that sentencing policy is subject to parliamentary control.

I congratulate the noble Lord the Leader of the House, Lord Waddington. After all, this is his Bill. In mentioning his name, I point out that the other illustrious names relevant in this context—Carlisle, Woolf, Tumim, Pigot and Scarman —are all lawyers each following the long tradition of radical empiricism which we should appreciate has always existed in a reputedly reactionary profession.

In general, the Bill must be warmly welcomed; in particular as regards the supervised release of short-term prisoners, unit fines, the abolition of partly suspended and extended sentences, the sweeping away of the competency tests for children and custodial sentences for boys of 14, and raising the age of offenders to 17 for the youth court. I welcome very much the noble Earl's opening remarks about amendments being brought forward to end the remand of young persons in prison establishments.

There are controversial and questionable provisions to deal with privatisation, curfew, tagging and the disciplining of parents. I know that those issues will be addressed by other speakers. Also, there are notable omissions, as the noble Lord, Lord Richard, said, on race, a sentencing council and on the political interference with life sentence tariffs.

I wish to limit my observations to Part I which, as the noble Earl said, is the main purpose of the Bill. That focuses upon the central problem of crime prevention and how to deal most effectively with those who offend against the law. Those provisions will affect every judge, magistrate and justices' clerk in the country as well as those who come before the courts, their families and those charged with supervising offenders in custody or in the community.

What is the background against which we must set those provisions? Every relevant report or inquiry of recent years has established that the exceptionally punitive and isolationist approach of our courts to sentencing has failed in its purpose. That failure has given rise to the White Paper with its clear message that for most crimes punishment in the community is better for victim, for the public and for the offender. That failure caused the Carlisle Report to proclaim that its parole proposals, which are largely adopted in Part II, provided a springboard for a thorough reassessment of present sentencing levels and a plea for a determined attempt by government and the judiciary to secure a reduction in sentencing at all levels—and I emphasise "at all levels".

That failure has been recognised once again by Woolf in an historic document. I quote only one passage from the report. Paragraph 10:154 states that, if without any regard to the accommodation which is available at the time, the Courts were to send more and more prisoners to prisons, in the absence of a safety valve (such as would be provided by executive release) there will come a stage when the Prison Service will be overwhelmed by the task with which it is faced".

Therefore, I suggest that we must approach Part I of the Bill from that viewpoint. As has already been mentioned, Clause 42) sets out the criteria which are to govern the imposition of custodial sentences—seriousness and protection of the public.

Clause 2(2) contains the criteria for the next stage; that is, the assessment of the length of the sentence. Clause 3 contains the statutory procedures which the courts must follow in observing those criteria; that is, obtaining the essential information on which to make a just disposal. Those criteria and procedures are admirably clear. Indeed, a framework for sentencing is spelled out, as promised in the White Paper. That framework can be understood and operated by judges and magistrates in every court.

However, for reasons which the House will be anxious to discover and examine, complications and complexities appear which I fear may jeopardise the good will of sentencers and which, I notice, have already given anxiety to the Magistrates' Association and the Criminal Bar Association. Clauses 1(1) (b) and 2(1) introduce at once an exception to the statutory criteria—a "get out" based on the type of offence coming before the court, to which the noble Lord, Lord Richard, referred.

Surely the type of offence cannot be a sensible or workable basis for exceptions unless the sentence is fixed by law, which is covered in the clause. Every type of offence has infinite variations and inevitable anomalies will immediately be created. These clauses except offences triable only on indictment. The criteria are removed entirely as regards length. As regards custody they are removed if the offender has anywhere in his record a sentence of imprisonment, however short and however long ago.

Therefore, the result is that for the more serious offences, except where young persons are involved, judges are to be free from the statutory constraints and free to pass sentences which are not commensurate with the seriousness of the offence or which are longer than is adequate to protect the public. Furthermore, such sentences may be passed without any obligation to obtain pre-sentence reports or to state in open court why the sentence has been passed.

I feel sure that the House will wish to ask why senior judges should be exempt from applying the criteria which Parliament will lay down and how it is that those exemptions have found their way into this Bill. Seriousness is clearly the basis of the exemption. It is already the very essence of the criteria which we find in Clause 1. Surely when faced with the awesome task of imposing a sentence measured in years rather than months or weeks, any court should be under a duty to obtain every scrap of relevant information to ensure a just disposal. The longer the sentence surely the more appropriate a public justification. In longer sentences, above all, the principle of "just deserts" should apply to the mature no less than to the young.

As the noble Lord, Lord Richard, said, Home Office statistics establish that at present approximately 25 per cent. of those types of offence receive non-custodial sentences. If Carlisle and Woolf are loyally regarded by the courts, then that percentage will substantially increase in the future. Even now, approximately 2,500 cases a year will carry what will be called community sentences. All judges will have to bide by the equivalent restraints to be found in Clause 5. Therefore, one is bound to ask why that is not the case for all remaining offences as well.

Mr. Patten said in another place that there was a qualitative difference between young offenders and mature offenders in regard to rehabilitation and that it would be a waste of judges' time for them to go through those statutory hoops. With the greatest respect, I suggest that it is wholly to misunderstand the art of sentencing and the role of the judiciary to break the pattern—I mean no pun—in an offender's record. To seize on a sudden change in the circumstances of an offender's life may break the pattern of his offending. It is surely to break the long punitive tradition of the Bar and the Bench that these criteria appear in the Bill. I suggest that if they are to succeed they must apply in every court howsoever superior that court may be and however tedious the statutory discipline may appear.

Other complexities follow. How will the sentencer decide what makes an offence sufficiently serious for custody or for a long term? Under Clause 1(2) (a) the court may take into account one other associated offence, which includes one offence the offender asks to be considered. As I understand it, the purpose is to prevent the aggregation of a number of less serious offences in order to justify custody; in other words, the mischief of sentencing someone on their record, which the Bill so rightly seeks to prevent.

However, in Clause 2(2) (a), in regard to the length of sentence, the court may consider any number of associated offences. It is certainly not clear to me what justifies that distinction. There will be difficulties in persuading offenders to clear up crimes that they have committed if one such offence can tip the balance. Difficulties will arise also in establishing the circumstances of previous convictions, particularly in the magistrates' courts.

Under Clause 3 the sentencer must consider any aggravating factors about the circumstances of the offence. Normally the fact that the offender committed similar offences five or six times before would be such a factor. Yet Clause 3(2) makes clear that that is no longer to be so. As the noble Lord, Lord Richard, pointed out, the next subsection appears to change the goal posts and set at naught what the Bill is seeking to achieve. I agree with him that the Bill would be a better Bill without that subsection.

Finally, where sex or violence are concerned, as defined in Clause 25, in order to protect the public courts may impose sentences longer than is justified by the seriousness of the offence. The House may want to question the wisdom of including sex cases, as such, in that clause when imprisonment is now widely recognised as being destructive and counterproductive for most sex offenders, and particularly in view of the hostility and aggression directed at such offenders uniquely in British gaols. That is a matter which greatly concerned the Woolf Committee. It is also difficult to understand on what basis the court is to assess the future behaviour of the offenders in such circumstances.

Those complications muddy the clarity and simplicity of the statutory criteria. They may well confuse the magistracy and the Circuit Bench. I hope that in Committee they will be removed or amended. In a wholly non-political manner I have sought to indicate the central role which this part of the Bill will play in the future conduct of our criminal courts. I suggest to the House that one of our main tasks in improving the Bill should be to ensure that the guidance Parliament gives to the courts is clear, simple and universally applicable wherever criminal justice is being dispatched.

4.8 p.m.

The Lord Bishop of Liverpool

My Lords, the Bill is moving in some right and important directions. I welcome especially the hope that fewer people will spend time in prison which is ineffective in achieving what we hope from it. I was first persuaded how ineffective during my 12 years in Canning Town in East London when I had much to do with young people who were in trouble with the law. Typically, I remember visiting a young man in Borstal whom I knew well. He wanted to make all kinds of promises as to how everything would be different when he returned home. I tried to persuade him not to make promises other than that we would meet to think about practical steps forward when he returned to the environment in which he would have to work out those new hopes. In the event, on his first day back he was round at the scrap yard in the company which had got him into trouble in the first place and he and I never had that conversation.

Surely the White Paper is right in saying that, provided the public is properly protected, the prospects of reforming offenders are usually much better if they stay in the community. It goes without saying that there are some dangerous people for whom we need tough security. But the Bill is moving in the right direction. It is fair to ask the Government and Ministers, as other noble Lords are beginning to ask, whether they have the courage of their convictions. Should they not be braver in ensuring that we move away from so much custodial sentencing, especially of young offenders? I support the Children's Society in its commitment to the ending of penal custody for juvenile offenders. I agree that for those few who cannot be safely dealt with in the community appropriate secure facilities should remain available.

The Bill follows a coherent rationale of punishment. It is based on just deserts. That goes right back to the Old Testament. "I cannot punish you because I say it will do you good but because you deserve it". I believe that the old law of "An eye for an eye and a tooth for a tooth" bears more examination than at first modern sight. In the context of tit-for-tat tribal revenge, what it was really saying very firmly was, "No more than an eye for an eye or a tooth for a tooth".

In my first year or so of experience of urban jungle in East London, I recall taking the funeral of a young man from Canning Town who had been murdered in a gang fight by a young man from Barking. The big-mouthed talk in those days was that if he did not get life they would go and hang someone from Barking. It was a real tribal jungle. That is not an argument in favour of mandatory life sentences for murder. But the boy did get life. That was accepted as his just deserts and they left the matter there.

A Christian approach to penal policy must be based on a realistic understanding of human nature. But it insists that every human being, every victim, every offender, is valued and loved by God and is not to be thrown on the scrap heap. It insists, too, that none of us can speak simply in judgment and condemnation; for we, as well as parents, are involved in sin, and we have tolerated a growing divide between rich and poor. There is no doubt that the inadequate resources offered to the poor connect with crime. A Home Office research bulletin in 1989 said the obvious—that in general children from the poorest families living in slum housing and whose parents or guardians have low-status occupations tend to become offenders.

That experience of poverty is one of the factors we need to acknowledge when we look at why so many black people are in prison. I am not saying that poor people are poor things who are not responsible for their actions. In the Gospels Jesus said "To whom much is given, of him shall much be required". There is a corollary that "To whom little is given, of him shall little be required". The point I really want to make is that the Lord never said, "To whom nothing is given, of him nothing shall be required", for all human beings are responsible people and should be treated as such.

The fact that some poor people triumph heroically over their circumstances does not encourage us to tolerate the poverty that has been growing, especially in the last three years, through the introduction of the social fund arrangements and inadequate income support. If we want to do something about reducing crime, we should change policies here. It is highly significant that the Association of Chief Probation Officers reported in detail on poverty and its connections with crime just over a year ago. It declared a central point: "The principle of meeting individual need should be reinstated in social security policy and legislation". The social fund replaced the system of single payments which had served the poor flexibly and reasonably well. The social fund rejects many victims, as a victim support scheme study shows, and it treats victims, offenders and inadequate people alike, frequently rejecting them without looking at the merits of their case or their need when their lives are in a tangle.

The chief probation officers say that the provision of grants rather than loans should be the normal method of helping needs which cannot be met from income support. In particular, they say that the meaning of "resettlement" should be widened so that any change of accommodation qualifies the applicant for a grant. We are told that probation officers spend so much time helping offenders to survive that they cannot find time to offer the professional help which we expect of them. They call for an urgent review of existing social security legislation and scrutiny of future proposals to ensure that benefits policy supports rather than negates strategies for the prevention of crime. Our clergy of all denominations tell us that more desperately poor people without the necessary resources are in touch with them than for a great many years.

There is one specific respect in which I hope your Lordships' House will amend the Bill. It concerns eradicating racism from the criminal justice system. The Government recognise that black men and women are disproportionately likely to be in prison. The noble Lord, Lord Richard, spelled this out carefully. The noble Earl the Minister drew attention to Clause 79, which I understand was an amendment in another place, providing that the Secretary of State shall publish such information as he considers expedient to ensure that persons engaged in the administration of justice should not discriminate against any person on the grounds of race. So the problem is recognised. It is another matter to do something about it. We need a more robust amendment offering victims of such discrimination access to appropriate legal remedies. If we want to eradicate racial prejudice and discrimination we need to put in place a firm system of monitoring.

Perhaps I may mention another authority with which I suspect the Government would not much like to be compared. Six years ago we had a militant administration in Liverpool. The Commission for Racial Equality undertook a survey of black people in public housing in south Liverpool. The report carefully spelled out that the one serious way of ensuring that action would take place was to establish a clear system of monitoring. The militant leadership of Liverpool City Council made it clear before the press conference at which the report was issued that they would not implement the proposed system of monitoring because they said they had established all the policies that were needed to ensure that there would be fairness in housing.

Racial prejudice is an extremely subtle matter. There is no way in which we shall catch up with it without a determined system of monitoring. I hope that the Government will not take the same attitude as the Liverpool militants did. We need a more robust, tight amendment.

The White Paper says: The rule of law will be maintained only if those charged with criminal offences are treated fairly and justly in the courts. There must be no discrimination because of a defendant's race, nationality, standing in the community".

We need a clear statement in the Bill about the standards which are expected from all those operating the criminal justice system, from the arresting officer to the High Court judge. That would be a signal to the black community that the British legal system firmly opposes discrimination, and it would give members of that community a platform from which to take action if they claim they have been discriminated against.

There is one other group I should like to mention, at once the most despicable and the most vulnerable in the prison population. I refer to the Rule 43 prisoners. The noble Lord, Lord Hutchinson, has just spoken about them. Sex offenders are considered fair game to he the scapegoat for violent prisoners who in a curious self-justification see their own crimes as straight. In another place the Minister, John Patten, referred to the excellent work being done in Grendon Underwood Prison. That is so; but it is not typical of prison life. Rebuilding the dignity of a human being, twisted in this way, has disappeared in the normal systems of most of our prisons. Nothing is done by way of treatment. Prison for Rule 43 prisoners is a matter of fear—one might say of terror—of hiding, pretending and surviving.

These offenders, who are the most despicable, are also redeemable. I commend one of Tony Parker's remarkable studies The Twisting Lane. That book reminds us that they are human beings too. It is right for our country to spend money to extend the kind of provision made at Grendon Underwood. I hope that we shall pass the Bill, having improved it in some important areas. That would be a step on the way towards a realistic understanding of human nature and an insistence on the value of every human being, every victim and every offender.

4.20 p.m.

Lord Windlesham

My Lords, unlike most Criminal Justice Bills, the measure that is before us today is based on some detectable principles. In their early stages other Bills may start with some principles but they do not often survive onto the face of the Bill. That is not so in this instance, as has already been said. What are these principles? I suggest the most important are the following: first, that punishment for an offence should be directly related to the gravity of the offence; secondly, that a prison sentence should be imposed on an adult offender only where it is strictly necessary to protect the public from serious harm or where the offence is so serious that only a custodial sentence can be justified. Thirdly, it is an objective of criminal justice policy to reduce crime as well as to punish offenders and that for many less serious offenders a spell in prison is not necessarily the most effective sanction. We have heard my noble friend Lord Ferrers reiterate that point from the Dispatch Box earlier this afternoon.

Other welcome commitments which have been translated into the wording of the Bill are changes in the parole system based largely, though not entirely, on the recommendations of the review committee under the chairmanship of my noble friend Lord Carlisle of Bucklow and a statutory framework for the introduction of means-related fines. All that is encouraging. There were high hopes when the Green Paper, Punishment, Custody and the Community, was presented to Parliament in July 1988. Those principles and policy objectives still remain. But am I alone in sensing that there has been an almost imperceptible, although cumulatively significant, move away from the carefully thought-out purity of the original design.

Each Home Secretary—there have been two so far in succession to my right honourable friend Mr. Hurd, who was the original architect of this legislation—seems to have felt a compulsion to add his own imprint of toughness to the Bill, presumably for presentational reasons. For example, there was the proposal added at the White Paper stage to give the courts power to top-up certain sentences. Thus we find in Clause 2 (2) (b) of the Bill something quite out of step with the declared policy of a more coherent and consistent approach to sentencing based on proportionality and just deserts. This provision will enable the courts to give certain categories of violent or sexual offenders sentences longer—that is the word used—than their crime deserves if, in the opinion of the court (it) is necessary to protect the public from serious harm from the offender".

That is the wording of Clause 2(2) (b).

As a result of amendments in another place, this power has been extended downwards to offences triable summarily in the magistrates' court, as well as the either way offences that can be tried either in the magistrates' court or in the Crown Court. But indictable offences, which are the most serious criminal offences and triable only in the Crown Court, are excluded. The rationale is not clear. I suggest it will need to be tested very thoroughly in Committee. Another matter that will require careful scrutiny is the relevance of previous convictions to the view to be taken by the sentencing court of the seriousness of the offence and the need to protect the public from serious harm.

So much for what is in the Bill, but what about what is not in it? The most surprising omission to many Members of your Lordships' House will be the failure to implement, or virtually to mention at all, the recommendations made in the report of the Select Committee of your Lordships' House on murder and life imprisonment. I remind the House that that committee dates back to July 1988, following the debates on the previous criminal justice legislation. A number of noble Lords present today, including myself, took part in those debates three years ago. At Report stage and Third Reading in November and December 1987, there were amendments on life imprisonment, the administrative practices determining the release of life-sentence prisoners and the sentence for murder.

These amendments aimed to make life imprisonment the maximum rather than the mandatory sentence for murder, and to reform the objectionable procedures which it was found had grown up around the setting of a tariff; namely, the penal period contained within a life sentence, which at that time was only just becoming publicly known. Widespread dissatisfaction was expressed in the course of the debates as to the state of the law and administrative practice. It was not confined to the Back Benches. No less an authority than my noble and learned friend Lord Mackay of Clashfern, speaking for the Government at Report stage said: I believe that the law in this area requires review and very serious consideration. The precise machinery of review is a matter on which your Lordships' views would be important".—[Official Report, 19/11/87; col. 319.]

At Third Reading I suggested a Select Committee of this House in order that an all-party expert review could be carried out and, furthermore, one in which the higher judiciary could take part. That proposal was given sufficient encouragement by my noble and learned friend the Lord Chancellor to enable the amendments to be withdrawn. The Home Secretary, Mr. Hurd, was consulted personally about the terms of reference. The then Leader of the House, my noble friend Lord Belstead, was co-operative, as he often was and always tried to be. The Lord Chancellor made sure that Scotland was included in the scope of the review.

Duly on the 21st July 1988 the House appointed a strong committee under the chairmanship of a respected independent Peer, the noble Lord, Lord Nathan, with the following terms of reference: To consider, (a), the scope and definition of the crime of murder in England and Wales and in Scotland; (b), the question whether imprisonment for life should remain a mandatory rather than a maximum penalty for murder; and, (c), the working of the arrangements for reaching decisions on the release of those serving life sentences for murder".

The sub-committee sat for the best part of a year. It took evidence from 81 witnesses in London and in Edinburgh. One of those witnesses was the noble and learned Lord the Lord Chief Justice, Lord Lane, whom we shortly look forward to hearing this afternoon, and the committee reported in July 1989.

In addition to the detailed consideration that was given to the definition of murder, especially the difficult questions of the mental element in murder, the committee recommended —with one dissentient voice —the abolition of the mandatory life sentence for murder, and pointed the way (this time unanimously) to changes in administering life sentences in such a way as to bring practice into line with common law requirements of procedural fairness.

The report concluded that the procedures which I may remind your Lordships are still in place; the same procedures that were so strongly criticised three years ago remain unchanged—gave Ministers an inappropriate degree of power to determine the length of time to be spent in custody by life sentence prisoners, finding that they were unnecessarily secretive, and, as is so often the case with fallible public policies never consciously designed to operate as they do, that they had grown up piecemeal over a long period of years.

Since then the Select Committee's belief that the proper functions of the Executive and the judiciary had become distorted has been reinforced by a judgment in the European Court of Human Rights at Strasbourg last year. This related to the lawfulness of the continued detention of three British prisoners serving discretionary life sentences after the expiry of their tariff or after their recall to custody. While it is true that the judgment, which was in plenary session —that is, the entire court—against the United Kingdom was given only in November of last year, the applications had been before the European Commission and the European Court of Human Rights for no less than five years. Moreover the substantive issue had been raised before those same tribunals in the Weeks case, which was decided even earlier.

I hope I have not taken too long in rehearsing this sequence of events. I do so to establish the simple point that these matters cannot be put off any longer. The Government have referred to the careful consideration that they are giving to these complex issues surrounding the European Court of Human Rights judgment and the recommendations of the House of Lords Select Committee on murder and life imprisonment.

I am aware that many—perhaps most—worth while, enduring reforms do not come quickly or easily, but, as I have shown, these proposals have been held over from the previous Criminal Justice Bill three years ago. The further examination that was then felt necessary, encouraged both by the Lord Chancellor and the Home Secretary, has taken place. The problems have been analysed. The arguments have been fully assessed, and solutions have been proposed. Now it is time to act.

4.36 p.m.

Lord Irvine of Lairg

My Lords, a Bill commencing with the principle that a custodial sentence is to be passed only if the court is of the opinion that the offence is so serious that a custodial sentence is justifiable must be applauded. Any measure which will have the effect in practice of reducing the prison population is good, but it is legitimate to question whether the central provisions of the Bill, Clauses 1 to 3, are as clear and comprehensible as they ought to be.

I took heed particularly at the outset of this debate when the noble Earl, Lord Ferrers, said that a main purpose of the Bill is to reform sentencing practice and to promote consistency of approach. The noble Lord, Lord Hutchinson, applauded the principle that sentencing policy was to become subject to parliamentary control. He, however, I am sure, would be the first to agree that it should be subject to clear, sensible and comprehensible parliamentary control.

We should remember that most sentences in this country are passed by lay magistrates. If we are to lay down by statute basic principles of sentencing, then it is worth doing only if it is done clearly and well. As I read Clause 1(2) its effect is that a custodial sentence may not be passed on an offender unless the court is of the opinion that the offence, together with one—I emphasise one—other custodial offence, is so serious that nothing short of a custodial sentence is justifiable for it; or, in the case of a violent or sexual offence, that nothing short of a custodial sentence is sufficient for the protection of the public from the offender. So these are the standards by which the sentencer must restrain himself when considering the option of imprisonment.

But there are two exceptions where the sentencer is not restrained. The first is where the law itself fixes the sentence—for example, murder, where the sentence is life imprisonment. The second is the defendant who has been convicted of one of the more serious offences which are triable only by judge and jury—for example, rape—and who has been sent to prison for it.

But let me give a typical example of where Clause I will apply that is not a case of one of the exceptions. The defendant is charged with taking a car without consent—one of the most common offences committed by young persons. One such offence would obviously not justify imprisonment. Say that the one offence of taking without consent is combined with stealing goods from the car. Again imprisonment would probably not be justifiable. Suppose next that the same offender is bailed by the police after he has committed these two offences only. Then he commits, as so often sadly happens, any number of repeat offences.

Eventually he is caught and admits a catalogue of identical offences. He comes to court and he pleads guilty to them all or asks for them to be taken into consideration. What may the court do? As I read the Bill, it cannot look at the totality of the criminal conduct and its impact on the public. It can ask itself only whether the offence charged plus one—I emphasise one—associated offence entails that nothing but imprisonment is justifiable. The court is debarred from considering the totality of the criminal conduct in asking itself the question: is nothing but prison justifiable? It can consider only two of those offences. But if it does decide that, for only two, nothing but prison is justifiable, it has to decide on the length of the custodial sentence. Then Clause 2(2) (a) tells the sentencer that he can, for that purpose, have regard to the totality of the criminal conduct; that is, that he can have regard to the seriousness of the offence and all—I emphasise the word "all"—the other offences associated with it. But in deciding the threshold question, prison or no, he must look artificially at only two. Your Lordships may think that the sentencers will find the logic of that baffling.

Let us then suppose that this offender has a long history of previous convictions for similar offences. In other words, he has run the gamut of non-custodial sentences—discharge, probation and community service. In such a case, the sentencer must refer to Clauses 3(2) and 3(3). As has been said by other speakers, the sentencer is bound to find these provisions baffling. Clause 3(2) tells him in fully unqualified language that, an offence shall not be regarded as more serious by reason of any previous convictions of the offender".

So the fact that he is a persistent offender is to be ignored. However, Clause 3(2) is subject to Clause 3(3). It proceeds to tell the sentencer that he can take into account the circumstances of any offences of which the offender has been previously convicted if those circumstances are relevant for the purpose of forming an opinion as to the seriousness of the offences for which the sentencer has to sentence and therefore the appropriate length of sentence. I must confess that I do not know how Clause 3(3) is intended to work in practice. I agree with my noble friend Lord Richard that it would be best if it were to be removed.

If the circumstances of previous offences means the circumstances surrounding the offences, then in practice a sentencer will know nothing, or very little, that is reliable about the surrounding circumstances of previous offences. Of course the sentencer will know the nature of the previous offences and from the sentences imposed how seriously they were regarded by past sentencers. However, that is altogether different. That would simply bring in what Clause 3(2) took out; namely, previous convictions.

Moreover, the muddle becomes worse. Quite apart from the question of what these provisions about previous convictions actually mean, there are problems about when they will apply. The answer seems to be "not at all" if the offender has been convicted of an indictable only offence and has previously been sentenced to imprisonment. But if he has been convicted of an indictable only offence and has not previously been sentenced to imprisonment, those provisions apply to the question of whether a custodial sentence can be applied but not to the question of its length. That is because Clause 2, as the noble Lord, Lord Hutchinson, pointed out, does not apply to indictable offences; it only applies to offences which are triable either way—that is, on indictment or in the magistrates' court—or only in the magistrates' court. But in the case of an either way offence (an offence triable either on indictment or in the magistrates' court), those provisions apply both to the question of whether a custodial sentence can be passed and what its length should be.

I have to say that all this is absurdly complex. If it has any logic it is not apparent. Hours will be wasted in the courts working out what principles apply in what case. The authors of the Bill seem to assume that offenders limit their crimes to particular categories. The reality is that the same offender will be sentenced on the same occasion for a number of crimes, some triable only on indictment and others either way. The judge will have to pick his way through all those provisions to decide which to apply to the first count, which to apply to the second, and so on. That task will be made even more difficult when there are a number of defendants in the dock.

I am also perturbed by Clause 2(2)(b) which empowers the sentencer to enlarge the sentence given to a violent or sexual offender if he thinks it necessary for the protection of the public from serious harm from the offender. The source of that provision would seem to be Section 41 of the Mental Health Act 1983, but the clause has none of the detailed substantive and procedural protections for defendants which are found in that section of the Act. That is a very broad and far too subjective a discretion to give to the sentencer. I am also puzzled that that power to enlarge the sentence is available only with either way or summary offences. In his most interesting speech, the noble Lord, Lord Windlesham, drew attention to that anomaly. The consequence is that if the offender is convicted of an offence triable only on indictment—for example, rape—he is not eligible for an enlarged sentence, although an offender convicted of indecent assault will he. That is bizarre.

I predict that that provision as it stands will lead our country into further challenge in the European Court of Human Rights. I say that because an offender who receives an enlarged sentence under this provision on the ground that he is dangerous receives no special treatment under the parole process, contrary to a recent decision of the European Court.

Surely the Bill calls for the most detailed scrutiny in Committee. I do not understand why it needs to be so complicated. Clause 1 could be modified to allow the sentencer to take a realistic view of the case as a whole. Clause 2(2) (a) could easily be modified to give the court adequate discretion to mitigate the severity of a sentence on grounds personal to the defendant or his history; that is, grounds which do not affect the seriousness of the offence itself. But fundamentally I do not see why—and I echo the words of my noble friend Lord Richard—Clauses I and 2 should not simply be that the basic principles of sentencing laid down in the Bill apply to all custodial sentences, whatever the nature of the offence charged. I am sure that these are questions, among many others, which noble Lords will wish to consider with the greatest care in Committee.

4.48 p.m.

Lord Lane

My Lords, perhaps I may take a few moments of your Lordships' time to mention the question of the life sentencing policy. There is very little that I need to add to what the noble Lord, Lord Windlesham, has already said. But it is a great disappointment to note that all the work which was put in by the Select Committee of this place on the subject seems not to have been reflected in any way in the Bill which is now before the House.

I venture to suggest that the mandatory life sentence for murder is no longer necessary. It is perfectly true that there are some murderers for whom a life sentence will continue to be necessary. For example, I refer to those whose crime is truly heinous and especially to those who represent a danger to the public if they are at large—a danger of such a nature that its extent and duration cannot be forecast at the time that the sentence is imposed. Those are two classes—no doubt there are others—which will continue necessarily to be the subject of a life sentence. There is a large body of other murderers for whom there is no more difficulty in imposing a determinate sentence than there is in selecting the proper determinate sentence for those guilty of rape, arson or wounding with intent, all of which crimes carry a maximum sentence, if necessary, of life imprisonment.

If it is the stigma of the life imprisonment which it is the object to preserve, it is not the stigma of the life sentence which sticks; it is the stigma of the name "murderer". Nor does the release of that type of murderer, after a term of years, present, as I see it, any greater danger than does the release of the rapist, the arsonist or the attempted murderer.

During the debate on the Murder (Abolition of the Death Penalty) Bill—as long ago as 1965—my predecessor spoke in favour of the discretionary life sentence for murder. I echo his view which was then supported by a large body of parliamentary judicial opinion. Such a change would enable the court to deal realistically with cases to which the very words "imprisonment for life" are wildly inappropriate.

Sentencing principles could be established, although it would no doubt take a little time, by the Court of Appeal (Criminal Division) if the change were made, just as sentencing guidelines have been established in so many other branches of the criminal law. It is a change which would have indirect advantages, as the noble Lord, Lord Windlesham, indicated.

The Select Committee heard much criticism of the arrangements by which the Home Secretary obtains the private views of the trial judge and of me as to the period to be served by the life prisoner—to satisfy the demands of what are called deterrents and retribution —that is to say, the tariff or penalty period. I have myself to blame, and only myself to blame, for accepting the invitation in, I believe 1983, from Mr. Leon Brittan to undertake the task, not realising the full import and implications of what it was that I was agreeing to do.

There is no doubt that the present system is badly in need of reform. When passing a life sentence, the trial judge should be able to announce in open court the tariff or penal period that he considers to be necessary for punishment and deterrence, having heard submissions from the defendant himself or the counsel or advocate appearing for him. That determination, expressed in open court, would be subject of appeal to the Court of Appeal (Criminal Division) where again the matter would be heard openly and in open court as it should be. The effect, in short, would be to bring into the open what is now not open but which should be.

There are also many advantages to be put forward in principle for the recent judgment in the European Court of Human Rights in the case of Thynne and Others. That judgment decided that a prisoner who has been made the subject of a discretionary life sentence was entitled at the end of the tariff or penal period to have the lawfulness of his continued incarceration determined by a court at reasonable intervals. That should be made part of any alteration to the law. It would be a step forward for justice if those alterations in the present law were introduced. I hope that at some stage in the Bill's passage those alterations will be made part of it.

4.55 p.m.

Lord Elton

My Lords, if I do not follow the noble and learned Lord the Lord Chief Justice into the fascinating and important debate on life sentences, it is because I look forward to listening with much greater information to the debate on the amendments, which will provide us with an occasion for much more informed debate in Committee.

A great part of the Bill is concerned with sentencing. Sentences occupy a spectrum ranging from a token fine at one end to prolonged prison sentences at the other. There is a great deal of business at the latter end of the spectrum. A large number of our fellow citizens go to prison every year. On average, almost 48,000 of them were inside prisons every day in the most recent year reported on by Her Majesty's Prison Department— 1989–90.

As the Bill is closely concerned with the machinery of putting those people there, we must have our prisons much in mind when we consider the Bill. What do prisons do to the people inside them? By the "people inside them" I would normally mean both the staff and the prisoners, but in the context of the debate it is the prisoners whom we should consider.

Prisons have always been intended to do two things: to reform, or rehabilitate, prisoners and to protect the public. That they do not reform prisoners is now generally accepted. That point has been endorsed in this debate. They have in fact an almost exactly contrary effect. If one reviews all the background circumstances that make it likely that a man or a woman will go to prison, nothing— not one thing— has a more powerful effect in that direction than the fact that he or she has been there before.

The protection of the public is therefore also limited to the duration of imprisonment and to some extent to the period of supervised liberty that follows the sentence. It does not consist of any general improvement in the prisoner's behaviour once he is returned to society. He is more than likely to reoffend.

The period of supervised liberty after release, and the timing and system of release itself, are therefore of great importance. So are those parts of the Bill that deal with the recommendations of my noble friend Lord Carlisle. I congratulate Her Majesty's Government on a thorough and general response to his report which speaks for itself. As to the imprisonment that precedes that release: I repeat that it is not a constructive experience either for the person who undergoes it or for the society that imposes it and pays so much for that imposition. The reasons for that are not for this debate; but the effect of it is.

From that fact it follows— does it not— that a prison sentence must always be a sentence of last resort. Not only humanity, but logic and economy demand that that should be a universal principle to sentencing by our courts. It is now almost nine years since your Lordships applied that principle of the sentencing of young offenders in the Criminal Justice Bill 1982. I was the Home Office Minister in charge of that Bill. Even the resounding defeat your Lordships inflicted upon these Benches in the first Division did not diminish my pleasure in that reform. I hope that my noble friend's pleasure will not be marred by any such event.

The provision has since been effective, with the support of many agencies in the voluntary and other sectors, in reducing the custodial detention of young people. I therefore warmly welcome the extension of that principle to almost all other offenders, in Clause 1. That, and the ending of detention of 14-year olds in young offender establishments, will be equally welcome to the noble Lords who inflicted the defeat to which I have referred and their successors.

There are other provisions in the Bill which deserve an early and approving mention, such as the new system of unit fines. Gilbert and Sullivan were no doubt right to expect that the punishment should fit the crime, but it has also to fit the criminal. While we must all be equal before the law, what we seek is equality of justice, not equality of treatment. Fines which cut deep into the family budget of one offender will merely shave a fraction off the deposit account of another. If the courts can adjust the scales of justice to reflect that difference more accurately, fines will not only be fairer, they will be more effective. They will come closer to the criteria clearly restated by the right reverend Prelate the Bishop of Liverpool.

As chairman of the Intermediate Treatment Fund and a member of the council of the Rainer Foundation, I believe that your Lordships will expect me to have a particular interest in the effects of the Bill on young people. The term "young people", I may add, is elastic, or has been so far. The various age-based distinctions between individuals in criminal law are both confusing and often inappropriate.

The Bill does something to bring us closer to having a single age of majority— the 18th birthday— and that is welcome. So is the transfer of 17 year-olds into the youth court with other young people. We must, however, beware of assuming that whichever birthday we choose, the choice will bring about a startling change, either in the character of the individual offender on that day, or in the treatment that will have the best chance of reforming him on the next.

Imprisonment has long been the sentence of last resort for young offenders. The importance of the provisions for other court disposals in their cases is therefore obvious and we can expect to spend some time on them in Committee. The provisions of Clause 1, by extending that principle to adults as well, imparts equal importance to the availability and extent of other adult sentences. The conversion of the probation order into a sentence of the court is a proper recognition of its importance in the new scheme of things and may contribute to the all-important effort of securing the confidence of the courts in this and other non-custodial disposals. We may have the most magnificent array of disposals but they will not be used by the courts unless the courts are confident that they will afford proper protection to the public and a reasonable chance of rehabilitation.

I suggest that securing that confidence in this and other non-custodial disposals is the proper response to the anxiety of the noble Lord, Lord Richard, based on the report of the National Association of Probation Officers. It is necessary to achieve confidence in the voluntary sector treatment by having it monitored and validated by such organisations as the Intermediate Treatment Fund, which I have already mentioned.

From what I have said, your Lordships will realise that I believe that practitioners in the young offender field have a great deal to offer that is relevant to the diversion of young adults from offending, and to the rehabilitation of those people when they do offend. We need to be confident that nothing in this Bill will prevent that useful and cost-effective application of skills, which exist in abundance in the voluntary as well as the statutory sectors, to the adult offender. In the process, we shall need to cast a careful eye over such measures as electronic monitoring.

There is one area of procedure for the handling of young people suspected of criminal offending which is, I think, ripe for a modest reform and which the Bill does not at present address. However, I believe it is now under review and we shall no doubt hear more in the later stages, perhaps at the end of this debate. The procedures are for bail and remand. My particular concern is for juveniles subject to Section 38 of the Police and Criminal Evidence Act. This section was, I regret, not drafted with complete clarity and its interpretation was for long subject to doubt. That doubt has recently been resolved by the courts in what is, I think, the way that will be least beneficial to young people.

The result, as I understand it, is that there is no presumption that such young people should, if at all possible, be transferred out of police custody and into local authority secure or other appropriate accommodation overnight, after arrest. I hope that the Minister will be able to tell us whether, in the Government's view, there should be such a presumption and whether he proposes to bring in an amendment to establish it. I apologise for not giving him notice of that question, but he has a long time to go before he will be required to answer it. If he does not, I shall ask your Lordships in Committee to look at a proposal for this purpose.

I gave warning in your Lordships' last debate on sentencing policy of an amendment that I was preparing for the Bill. It arose from my anxiety to take pressure off remand wings by removing a large slice of business from the Crown Courts. I meant to do so by changing the law on the handling of goods of minimum value. I regret that, though that would be desirable, it would be outside the scope of the Bill. I await the next vehicle with great impatience.

There are many other areas of interest which I hope we shall explore in Committee. If my noble friend has ever been fox hunting, he will find himself now in the position of the huntsman after hounds have been thrown into a large and interesting cover. Many of them speak and he has to determine which are speaking to the scent of the fox and which to that of a rabbit. It seems to me that a number of rabbits are already being hunted but also one or two foxes. I hope to join in the chase.

Among the areas of interest is the duty proposed in Clause 49 for magistrates to bind over parents. It is a duty, not a power, to bind over parents to control their offending child with what amounts to a fine of up £ 1,000 if they fail to agree to do so. The duty is subject to waiver where circumstances make it unreasonable to expect them to fulfil it. However, the presumption remains that it will be performed and that the waiver will be exceptional.

I do not differ one whit from Her Majesty's Government in their wish to make parents recognise their responsibilities and discharge them via their children. Indeed, I asked them in a recent report to the Government on discipline in schools to examine legal means of doing so. The fact is, however, that the experience of the courts suggests that circumstances will often make this desirable step inappropriate. The question arises whether the Bill should suggest, as it does, that binding over should be the norm. I hope that in Committee we may consider whether that duty should rather be expressed as a power. There will be parallel considerations, I imagine, in considering fines under Clause 49. However, others will speak on that.

My concern for prisons and prisoners leads me to make only two other brief comments on the Bill. I think that the contracting out of the court escort service makes sense and will benefit both the police and the prison service. I am less confident about the experiment with private prisons. It will need careful monitoring. The terms of the contract will have an enormous importance and my initial view is that the key elements ought to be set in law and not by negotiation. That will need careful consideration in the later stages.

The justification for undertaking this experiment, as with so many others, is that the present system does little or nothing to turn criminals into honest citizens. That may be a necessary feature of imprisonment in itself, but it is not certain. As long as it is uncertain, we must try to provide constructive, as opposed to merely negative or destructive conditions and regimes. No experiment will be justified which is not both free to provide those conditions and regimes and required to do so. It must, of course, also provide security at least as great as that at present afforded by Her Majesty's Prison Service, and do so without some of the restraints that the history of the service has generated. I look forward to hearing in Committee the views on that point of the noble Lord, Lord Harris of Greenwich, in particular.

I have attempted to follow a lot of foxes and several rabbits. I long to speak about racial discrimination, which exists, and I doubt whether legislation on the face of the Bill to ban it will be as simple or effective as some people suggest. I suspect that the careful monitoring and explicit observations suggested by the right reverend Prelate may be a more fertile and effective means of eliminating it, particularly as a great many people are unable to recognise discrimination when it is put before them.

This is a very important Bill. I wish my noble friend the greatest success in taking it through your Lordships' House. I believe that it will look slightly different when we have finished with it and I hope that my noble friend will be as enthusiastic about it at the end of our debates as at the beginning. That will be my intention when I seek to help him improve it.

5.10 p.m.

Lord Hunt

My Lords, it is inevitable at this stage in a debate that most of the major points of principle and substance have already been raised by other noble Lords. I feel sure that noble Lords would not wish me to cover that ground again. However, there is one respect in which I am happy to follow other noble Lords and that is to start on a commendatory note. As the noble Lord, Lord Elton, has just said, there is no doubt that this is an important Bill. It remains to be seen whether in retrospect it will be considered to be one of the most important pieces of legislation in this century, as the noble Earl suggested in introducing the Bill.

I have many commendatory remarks to make about the Bill. I shall direct most of my remarks to Part II of the Bill. The points I wish to make on that part may seem points of detail. I shall finish by making a few remarks on Part I. My first words of commendation are to commend the Government for having in large part accepted the recommendations of the Carlisle Committee with regard to parole. I hope the Minister will not regard it as churlish if I say that the provisions in the Bill for parole have been a long time coming. It is now 11 years since a debate was held on an Unstarred Question in the name of the noble Earl, Lord Longford, in July 1980. I referred in that debate to the widespread calls which had been voiced by such bodies as the association representing chief probation officers, the Howard League for Penal Reform and various academic bodies for an independent official inquiry into the parole system. That led the House of Commons Expenditure Committee to endorse the need for such an inquiry as long ago as 1978. It was only nine years later, in July 1987, that the Government set up the Carlisle inquiry. The reforms, many of which were foreseen some 15 years ago, are only now approaching the status of law. Having said that, now that radical proposals in regard to parole are before us, I must say that I largely agree with them. Several speakers have made comments on this part of the Bill. I wish to touch only on a few salient points.

First, I am particularly glad that remission time is to go. It was always excessively long for the needs of prison discipline and it constituted too large a reduction of the intended sentence of the court. It is quite interesting to recall that its retention in 1967 was the reason why— the matter arose when we were discussing the criminal justice legislation in 1967— parole eligibility had to be fitted in during the middle third of a sentence and could be awarded after only one-third of a sentence had been served. It was quite unlike any other conditions obtaining in other countries which my colleagues and I on the then Parole Board visited in order to discuss early conditional release systems. That fact did not endear parole to a number of people, including the judges, in the early days, and it has been alleged that it may have led to some lengthening of prison sentences.

Secondly, I am especially glad to welcome the automatic combination of imprisonment with release under supervision for all prisoners serving fewer than four years. This provision also has a long history and has therefore been a long time coming. The general principle was mooted in a government White Paper in 1981 and it was commended by the House of Commons Home Affairs Committee in that same year. It was one of the recommendations which the All-Party Penal Affairs Group made to the Carlisle Committee. On behalf of that group I moved an amendment to the 1987 Criminal Justice Bill on 29th October of that year containing a closely similar proposal. I do not wish to hark back to my amendment, but I simply wish to applaud the Government for their bold decision to accept the recommendation of the noble Lord, Lord Carlisle, that the provision should apply to all prisoners serving fewer than four years, rather than to prisoners serving fewer than three years as was the case in the all-party group amendment.

I was particularly glad to hear the Minister say that the Government intend to delegate executive decision-making powers in regard to parole for prisoners serving sentences of between four and seven years. The parole boards over the past 23 years have had an outstanding record in that annually only about a dozen of their recommendations were turned down by the Home Secretaries of the day. I hope that when the Minister replies to the debate he will confirm that it is the Government's intention to delegate the final decision on release in regard to all prisoners serving the length of sentence I have referred to. The Government's White Paper refers to delegation of the decision for some prisoners. I understood from what the Minister said that the Government intend to delegate that decision for all prisoners. If delegation is only to take place in regard to some prisoners, I hope the Minister will say what criteria the Secretary of State will use to identify the prisoners concerned.

There is concern lest the proposals in Part II of the Bill regarding the longer proportion of the sentence which is to be spent in prison before supervised release begins— one-half of the sentence instead of one-third — may result in an increase in the prison population. It is worth reminding ourselves that when parole was placed on the statute book in 1967 its primary purpose was not to reduce the prison population. At that time there was not a serious problem regarding the prison population. It would be most unfortunate if the reforms that have now been proposed should have the opposite effect and increase the size of the prison population.

I should like to share the optimism of the noble Lord the Leader of the House who is reported to have said about the White Paper when he was Home Secretary: It should result in a significant reduction in the numbers of offenders in custody".

I understand that the noble Lord was referring to other measures in Part I of the Bill as well as to measures in Part II. The end result will depend on whether the courts under the terms of this Bill make more use of community penalties and whether they also reduce the length of prison sentences for most offenders. I shall say no more than remark that I live in hope. I am in favour of a sentencing council.

I wish to refer to a point of detail before I leave Part II. That point has some importance in view of the decision-making powers that are to be given to the Parole Board. Clause 26(5) of the Bill would empower the Secretary of State to make rules for the proceedings of the board. These would include provision for cases to be dealt with by a prescribed number of its members.

Paragraph 6.19 of the White Paper states: The Government intends that the panel members should be three, with a quorum of two". Your Lordships may think that is a detail, but it has some importance in this matter. I do not believe that a quorum of two is adequate to make decisions on behalf of the board regarding offenders, some of whom have committed serious offences and are serving sentences of up to seven years. The board reflects experience and knowledge from four main angles: judicial, social work, criminological and medical. All of those angles are expected to be brought to bear on the cases which the board considers. In my opinion a minimum of two members as a quorum is not enough; the minimum number should be four with a quorum of three. I hope that that will be borne in mind when the rules are drawn up.

Finally, I turn briefly to Part I of the Bill, which has been covered by my noble friend Lord Hutchinson of Lullington and others. I welcome the enhanced role which is envisaged for the probation service in the Green Papers which preceded the White Paper bearing on this Bill. However, I also share the anxiety of many probation officers about the implications of Clauses 5 to 14 for their traditional role of supervision and after-care of released offenders. Enforcement of curfews and monitoring by electronic tagging are a form of policing; they do not accord with the relationship between probation officers and their clients— the offenders— which is essential for the deployment of the skills of probation officers.

Clauses 9(4), 11(4), 12(3) and 14(3) (c) appear to imply that those duties will fall to persons other than probation officers. There is reference at various points to "the relevant officer", "a person responsible" and "other persons" in those clauses. Do the Government intend that the probation service should find and contract with those other persons? Whom will they be? Will they be the police, officers seconded from the prison service, or someone else? Can the Minister please clarify that point?

Having started on a commendatory note, I am bound to join some other noble Lords in taking a slightly different tone in concluding. I am doubtful whether curfews and electronic monitoring of offenders will work. They certainly have not done so to date and have been proved not to do so. I fear that the Government's psychology in this matter is wrong. So is a punitive philosophy in regard to young offenders. That attitude is the best way to get the worst out of young people. Bad though their offences may be, many young people are "acting out"— as even some of your Lordships and I used to do in our teens — but in social and environmental circumstances infinitely worse which reflect the nature of their crime. They are rebels in their teens, as we were. Given a constructive lead, encouraged to gain self-respect and to care for other people they will come through and adopt more responsible behaviour as they grow older.

5.23 p.m.

Lord Nathan

My Lords, I shall confine myself to the omissions from the Bill relating to murder and life imprisonment and the recommendations of the Select Committee appointed by your Lordships in 1988, of which I had the honour to be chairman.

The noble Lord, Lord Windlesham, has already spoken of the origins of that Select Committee, of the debates in 1987 on the previous Criminal Justice Bill and the support for the amendments in consideration of these very difficult matters from all quarters of the House, as a result of which the idea of the Select Committee, and its eventual appointment, emerged. I shall not repeat the history of the matter, which the noble Lord explained so well.

A debate on the Select Committee's report took place on 6th November 1989, shortly after publication. The advantage of the short interval following publication was that the Government could take account of the views expressed by your Lordships in reaching their conclusions on the recommendations in the report. The disadvantage was that the Government could not possibly be expected in so short a period to have formulated their own views.

On publication there was widespread favourable public reaction, which was echoed in your Lordships' House. There has been no formal government response. I hope that that indicates that the Government have an open mind and are prepared to listen to argument for incorporation of the Select Committee's recommendations in the Bill.

I turn first to the mandatory sentence of imprisonment for life for murder. We carried out an exhaustive study of the advantages and disadvantages, which are set out fully in the report. We explored the possibility of introducing categories of murder. That was tried with notable lack of success between 1957 and 1965. We rejected that option.

The scope of the crime of murder is wide and would remain wide under the Select Committee's recommendations. It ranges from the pathetic case of the terminally ill wife seeking help from her husband to bring her suffering to an end to the most vicious murder in the course of rape. It is remarkable that the law should prescribe one sentence only which is available to the trial judge and which he must impose — life imprisonment. Yet flexibility to relate the degree of punishment to the circumstances of the crime is essential.

Since the trial judge is bound to award the one sentence of life imprisonment, the Home Office, the Home Secretary and his Ministers have intervened under a complicated and secretive procedure, to which the noble and learned Lord, Lord Lane, referred in his very clear speech. It was a reinforcement both to confidence in the conclusions that we reached and to the support for our recommendations that we have the backing of the noble and learned Lord in those respects.

Suffice it to say that, having in open court sentenced the prisoner to imprisonment for life, as he is bound to do, the trial judge, through the Lord Chief Justice, writes to the Home Secretary privately with his recommendations as to the length of time the prisoner should remain in custody to satisfy the requirements of deterrence and retribution— in plain English, punishment. There is a remarkable conflict of ideas in those two steps. The Home Secretary, or more commonly a junior Minister, reviews that recommendation and may vary the term proposed without reference to the trial judge.

Many thought that the review resulted occasionally in reduction of the term proposed on compassionate or similar grounds. However, in its evidence the Home Office told us that in one period of six months in 63 of the 106 mandatory life sentences the Home Secretary set a higher tariff than that privately indicated to him by the trial judge. In 34 cases he set the same tariff and in nine cases he set a lower tariff. The evidence that we received was that increases in tariff are regularly made.

The effect of the mandatory sentence has been to move from the judiciary to the Executive decision as to the period to be spent as punishment in custody. What at first glance looks like a statutory requirement imposing on the judiciary an obligation to impose a fixed penalty of life imprisonment has been turned into a power in the hands of the Executive to decide the period to be spent as punishment in custody.

It has sometimes been suggested that in cases of murder the period a particular criminal is to remain in custody may raise political issues and that therefore a Minister with responsibility to Parliament should exercise those powers. Yet introducing political factors into sentencing a person convicted has been rejected in all civilised societies throughout history. That constitutional question of the proper function of the judiciary and of the Executive lies in the special province of the Lord Chancellor, as the noble and learned Lord who sits on the Woolsack explained in a remarkable lecture last week. I gave notice to the noble and learned Lord who sits on the Woolsack that I intended to make that remark.

Sentencing is part of the judicial function in every case other than murder. The potential for the politically motivated abuse of executive power in the process of sentencing has been too often experienced elsewhere. Restoration of the sentencing function to the judiciary entails giving to the judiciary the duty to exercise its discretion.

The sentence of life imprisonment must be available in the court's discretion. The period in custody as punishment— the so-called (it is a horrible word) tariff— when a discretionary life sentence is imposed is likely to be longer than the term at present given under the mandatory sentence. As the noble and learned Lord, Lord Lane, mentioned, the tariff should be set in open court, published and made known and not given by an obscure and secret procedure.

So the proposal in this context does not represent a soft option. The tariff period, being publicly known, should be subject to appeal by the prosecution as well as the defendant, as in other cases. So too lenient sentences in that context can be corrected.

The mandatory life sentence is not part of the ancient heritage of English law embedded in our tradition. It was introduced by statute in 1965, which is just over 25 years ago. It does not have the inviolability of antiquity and long custom. However, it has been with us long enough for us to acquire experience of how it works in practice and to look at the outcrop of developments which have come in its train. Arrangements for release on licence after the end of the tariff period are one of those developments.

Having myself been without experience in this branch of the law, I at first found these procedures incomprehensible and when, with the assistance of expert members of the committee and witnesses who came to help us in our inquiry, I first started to understand them, I was filled with disbelief. They have indeed been condemned by the Court of Human Rights as being in contravention of the European convention. The decision came as no surprise, for the reasons given by the noble Lord, Lord Windlesham. The decision related to discretionary life sentences but in my view there is every reason to believe that it would apply equally to mandatory sentences. The decision followed a chain of cases before that court and the Government have had ample time in which to consider what should be done. A judicial procedure openly exercised should be substituted for the present obscure procedure exercised in secret.

The opportunity is presented by this Criminal Justice Bill to address these problems systematically and radically rather than make some attempt to tinker with them. I hope that the Minister, in winding up, will support amendments which we shall put forward to implement the recommendations of the Select Committee.

5.34 p.m.

Lord Campbell of Alloway

My Lords, perhaps the first landmark of this great reform Bill is the new approach to sentencing in Part I, which has already had a generous welcome in principle in the debate on sentencing policy introduced by my noble friend Lord Elton, subject to the customary caveat on this subject entered by the noble Earl, Lord Longford, with whom we had an agreeable exchange of views. However, that debate was in effect the curtain raiser to Part I of this Bill and for my part, in view of the constraints of time, I do not propose to say more about it.

The second great landmark is the new approach to children's evidence in implementation and extension of the Pigot recommendations. Broadly speaking, that is generally welcomed.

Thirdly, there is the new approach to parental responsibilities, which for my part I greatly welcome but accept that it may well require a certain amount of drafting examination, as the noble Lord, Lord Irvine, and my noble friend Lord Elton suggested. Indeed, reverting to Part I of the Bill, I wholly accept that there are problems of construction to which the noble Lords, Lord Richard, Lord Hutchinson and Lord Irvine, referred and which will require examination in Committee.

But, great as the Bill is, there are serious defects of omission arising out of the failure to implement the recommendations of your Lordships' Select Committee on Murder and Life Imprisonment, about which my noble friend Lord Windlesham, the noble and learned Lord, Lord Lane, and the noble Lord, Lord Nathan, chairman of the committee, have already spoken. It is understood— the noble Lord, Lord Richard, adverted to this point— that the Government propose to remedy one aspect of omission identified in paragraph 10.120 of the Woolf Report; namely, to regulate the diversity in the use of the statutory powers to ensure that mentally disordered offenders are removed from custodial disposal as part of the system, presumably under Clauses 1 and 3 of the Bill.

Perhaps the main defects of the Bill— with respect, at all events to my mind they are serious and fundamental defects — are first of all the failure to abolish the mandatory life sentence for murder. A new clause before Clause I will be introduced at Committee stage. Secondly, the failure to abolish the confidential procedure under which a judge passing a life sentence for any offence may make recommendations to the Home Secretary as to release gives rise to serious concern. Indeed, as the noble Lord, Lord Nathan, said, during the six months ending September 1983, 63 of 106 mandatory life sentences for murder in fact were set by the Home Secretary at a higher tariff than that indicated by the judge. As we sit here today, the judicial tariff is increased by the Home Secretary as a matter of course as he so wills. With respect, it is intolerable.

The third failure of the Bill, which is again a serious matter of fundamental importance, is the failure to supplant this unacceptable confidential procedure with an open system under which the tariff for life or long-term prisoners is stated with reasons by the judge in open court. The noble and learned Lord the Lord Chief Justice has dealt with this point. It is otiose for me to do more than seek to add a puny measure of support. That goes to the nub of the problem which will be dealt with seeking to strike down such administrative control and set up a judicial control for the release of prisoners, life prisoners and long-term prisoners. That will be under the control of a judicial review body. That will be achieved by two new clauses before Clause 26 of Part II. The composition and procedures of the tribunal will be included in a detailed schedule which will be proposed to be inserted before Schedule 4.

The next failure almost beggars belief. Let us assume that the Government have made up their mind; they will not accept the recommendation to abolish the mandatory sentence of imprisonment for life. Even on that assumption, the failure to abolish that confidential procedure and use of administrative discretion, which has been condemned by the European Court of Human Rights as in contravention of Article 5(4) of the convention in the Thynne case, failing in any way to deal with the necessary implementation of that decision by proposing in the Bill any form of consideration or amendment, beggars belief. This comes as no surprise to the Government, as my noble friend Lord Windlesham has pointed out. The history of the matter has also been dealt with by the noble Lord, Lord Nathan. The only surprise is that nothing whatever is done. No reason has been given. The noble Lord, Lord Nathan, in a speech on the Address respectfully asked the Government to give consideration to this (Official Report, col. 76 of 8th November). Nothing has been done.

The last failure is related but it is not to be ignored. It is the failure of government to recognise that the sense of injustice felt by the long-term prisoners over the release system and the want of reasons for decisions which materially and adversely affect them was a most serious and potent cause of the trouble in our prisons. That was evidence which we received on the committee on which I had the privilege to sit as a member. However, reading the Woolf Report the other day, I found it expressly confirmed at paragraph 14.306. Is it not astonishing that the Government do not come forward with a system which we have recommended and which accords with the Convention on Human Rights that there should be some form of judicial control on release?

There is little more that I wish to say, but I conclude with two points. The point first struck home with me when raised by the noble Lord. Lord Donaldson of Kingsbridge: it was building on the success of the Grendon type disposal. It was touched upon by the right reverend Prelate the Bishop of Liverpool. It was referred to by my noble friend Lord Elton and the noble Lord, Lord Hunt. Many noble Lords have already referred to this matter in the debate, and only 11 speeches have been made and there are 22 to come. Surely the Government ought to take note of this. It would be apposite perhaps to include it in the Bill.

The last matter I wish to deal with is another defect of omission which lies within another category which may lie outside the intendment of the Bill. It is in context with the article of the noble and learned Lord, Lord Scarman, in The Times on 5th March at page 10; "Justice in the Balance". One of his proposals was that no one should be convicted upon an uncorroborated confession, thus assimilating English law with that of Scotland. I respectfully suggest that a provision to such effect is ripe for inclusion in any Criminal Justice Bill by extension of the Long Title if needs must be. It is, however, accepted that the noble and learned Lord's other proposals, including, for example, an independent forensic science service, and the setting up of a new review body with power to quash convictions, may well warrant further discussion and debate— a White Paper— and that such matters are premature to consider for inclusion in the Bill.

Having roundly, and I hope forthrightly, criticised the Bill where I sought to criticise it, I nonetheless broadly welcome the Bill as one of monumental importance.

5.47 p.m.

The Earl of Longford

My Lords, I rise with even more than my usual enthusiasm to support the remarks made by noble Lords on this Front Bench. The noble Lord, Lord Irvine of Lairg, has left us. I strongly agree with the point made with immense authority by the noble Lords, Lord Campbell, Lord Windlesham, Lord Nathan, and, eminently, by the noble and learned Lord the Lord Chief Justice. The noble Lord, Lord Nathan, was chairman of the relevant committee. The demand that the mandatory life sentence for murder should be abolished must surely prevail. I cannot believe that, in the face of what we have heard this afternoon, the Government will for some obscure reason of their own dig their toes in. I do not expect the noble Earl to capitulate today but very soon afterwards.

I hope that equal importance will be attached to what might be called the other part of that policy. It will mean that those serving life sentences will come up for judicial review at regular intervals. That would be all important. I shall not dwell on a particular case. I refer to someone who has been in prison for 25 years. After 20 years— and again, I believe, recently— the prisoner was recommended for parole by the local review committee. However, in practice, under present plans the prisoner will be in prison for 30 years at least with no immediate prospect of release. Is that justice? Is it Christianity? Is it a matter about which we can be proud? I understand that under new plans there will be opportunity for judicial review long before such an appalling length of time has elapsed. That is an aspect of the matter that I hope the Minister will bear in mind.

I am often asked publicly and privately whether the prospects for the more humane treatment of prisoners will improve during the next 10 years. I feel unable to make a clear pronouncement; the chances are about 50/50. I understand that the Minister may have to leave the House. Before he escapes I shall ask early in my speech the question about which I have given him notice. As was mentioned by the noble Lord, Lord Campbell, last year I opened a debate on sentencing. I then asked whether the Government stood by the official forecast of the Home Office that there would be an increase of 12,000 prisoners in the years immediately ahead. No answer was then given and I understand that the Home Office's official estimate has since been revised. The latest forecast provided to me is of an increase of 7,900 prisoners by 1998. Is that the prospect which has unfolded under the Government's plan to reduce the prison population? If so it will be understood why I cannot give a clear answer to the question whether prisoners will be treated any better in the next few years.

I wish nothing but good to the Home Secretary and the other Home Office Ministers, who are much respected. They have a difficult task ahead; it is the terrible prospect of coping with their party conference which is looming up. I readily recall what happened to the then popular Home Secretary, the noble Viscount, Lord Whitelaw, when he tried to advocate progressive policies to the Conservative Party conference. He had a bad time and had to drop the idea. Therefore, Home Office Ministers must face the fact that their party conference is a big obstacle to penal reform.

Perhaps impertinently I applied last year to be a visitor to the Conservative Party conference. I was turned down on grounds which were undisclosed to me. Some noble Lords may sympathise with those who turned me down. Afterwards I was relieved not to have been present when the conference passed into a state of advanced ecstasy at the very mention of hanging. That is the type of Conservative Party conference with which the noble Earl and his colleagues must cope and I wish them luck.

The present Bill contains some good proposals but has been viewed with suspicion by penal reformers. I support the idea of punishment in the community. It is a progressive idea, as I have said previously. There are also other good aspects of the Bill. There are various defects, however, that I shall not list this afternoon. Many of my noble friends have already dealt with them. I shall merely say in passing, but with some fervour, that the idea of privatising prisons and making money out of helpless prisoners is an obscenity. I cannot believe that the British public will ever accept such a disgusting proposal. However, that is said in passing in a friendly spirit. The argument was expressed more eloquently by my noble friend Lord Richard.

I shall confine myself to a single topic. It will come as no surprise to those noble Lords who heard my opening speech in last year's debate on sentencing. I submitted then, and submit again, three propositions. Logicians such as the noble and learned Lord, Lord Hailsham, will not accept this as a syllogism but it is close to it. We all agree that there are too many people in prison because the judges send them there. I believe that it follows that judges must be encouraged to send fewer people to prison—

Lord Hailsham of Saint Marylebone

My Lords, might it not be that they are in prison because of what they have done?

The Earl of Longford

My Lords, the noble and learned Lord made that remark on an earlier occasion and laughed just as heartily as he does now. If he enjoys the joke perhaps we should all join in the farce if we feel able. If he wants an answer in a sentence it is that there is no reason why we in this country should send more people to prison than is the case in other countries. Our crime rate is not higher than that of other countries; it is just that our judges are more severe—

Lord Campbell of Alloway

My Lords, the noble Lord makes the same old point that he made previously. It is not the judges who send people to prison; about 90 per cent. of people are sent to prison by lay magistrates.

The Earl of Longford

My Lords, noble Lords who practise at the Bar may put the noble Lord right about that. Whether or not the figure is 90 per cent., the fact is that magistrates take their guidance from the highest judicial authorities. Therefore it all begins with the judges.

If I were a judge— and I know that I should not be selected for that honourable role— I should feel in no way ashamed if my views were not shared by ignorant outsiders such as politicians and the general public. Of course, judges are also attacked for being too mild, as they are in the Sun. It will be difficult to make them believe that up till now they have been on the wrong lines. If I were a judge I should find that argument difficult to accept. However, somehow or another we must persuade them to be less severe in future and send fewer people to prison.

The question is how to do that. I know that the Government are worried about doing so without interfering with the independence of the judiciary. We all value its independence and do not wish to interfere with individual sentences. Occasionally the Executive does so but by and large it would be a bad day if it began to interfere with individual sentences. However, I say with all conviction— and I shall go to my grave saying so— that the general level of sentencing is the responsibility of the elected government of the day. One either agrees with that proposition or one does not, but that is my view. One listens to the judges because they are the experts. However, in the last resort this country is not ruled by experts; it is ruled by the representatives of the people. Therefore, we shall make no advance and prisoners will be treated in the same way. The amount of overcrowding will not decrease unless steps are taken to encourage the judges to pass less severe sentences. That is what the argument amounts to, although it can be wrapped up in all kinds of ways.

In order to do that I suggest that we must turn to the idea of a sentencing council. No doubt there are many different ways in which that can be organised. It would mean that sentencing was considered to be too serious a matter to be left entirely to the judges. Therefore, in their general sentencing policy, though not in respect of individual sentences, judges would be brought under public control. Without that change nothing much will happen and I therefore hope that it will be achieved. I wish the Minister success in his gallant endeavours.

5.58 p.m.

Viscount Colville of Culross

My Lords, I shall not follow the argument of the noble Earl — indeed, I doubt whether I am equipped to do so. I prefer to deal with Part II of the Bill. Your Lordships will be pleased to hear that I am so much in agreement with what was said by the noble Lord, Lord Hunt, that there is no necessity for me to repeat the argument. Part II provides for the implementation of the recommendations of the Carlisle Committee on the role of the Parole Board. As the current chairman of that body, I hope it will be thought appropriate if I say a few words about it. I agree with my noble friend Lord Ferrers that it is not easy to see how the Bill implements the recommendations of the Carlisle Committee because it is drafted in an extremely economical way. However, there will be underlying statutory instruments and directions which will pick up many of those points.

In preparation for those changes there have already been truly admirable consultations with my noble friend's officials. Those consultations have not only been with the Parole Board staff but with a great number of its members from all sorts of disciplines. There was a residential conference. I hope that we have been able to put some of our ideas before the Home Office in a useful and constructive way. I am sure that more consultations will take place.

The first major change which will take place under the present Bill is that, as my noble friend said in his opening speech, the Parole Board will have an executive function for the release of prisoners serving from four to seven years. I understood it to be for all of them, but that is a question which has been asked. I should tell the House that, given the resources and staff— and that is under discussion— I am fully confident that the Parole Board can do that job.

One of the great elements which moved the Carlisle Committee towards the direction which it took was its experiences in Canada. Those experiences have been continued. There has been reciprocal consultation with the Canadian parole board. There have been visits in both directions across the Atlantic and we have learnt a great deal from the Canadians on all aspects of the job which will have to be done. That will include appeals from decisions which the prisoner does not like. I suppose it is possible in the future that there may be appeals by victims but I understand that that is not envisaged at present. At any rate, members of the Carlisle Committee found the Canadian example to be of considerable interest and use.

The directions as to the way in which the Parole Board will carry out its executive role have yet to be formulated but I say to the House and to my noble friend— and I am sure that he will know it already — that the way in which the decisions are given will certainly be subject to judicial review. Therefore, the directions on the reasons on which it is legitimate either to grant or refuse release on parole must be clear cut and, I should have thought, comparatively few in number. Otherwise, it will turn into a lawyers' paradise. We shall have to take account also of the fact that open reporting of the conduct of the prisoner will be available. Therefore, there will be a great deal of material on which challenge can be made but, also, on which sensible decisions can be founded.

Open reporting will only be possible— and likewise I believe, the sensible giving of reasons for or against release— if there is the introduction of a system of sentence planning, some method by which the index offence for which the offender is in prison is addressed. The right reverend Prelate touched on that matter when speaking of sex offenders. However, there are many other problems which afflict people in prison. It should be possible to address those problems while that person is still inside the prison.

I can tell your Lordships that the system will not work unless something of that sort starts more or less as soon as the new system comes into being. It will not be possible to give open reasons one way or the other unless there is a plan which is open to the prisoner as well as to the staff and which has been discussed with him and as a rule, I hope, agreed. It will then be possible to judge progress and to see whether the moment has been reached for a release.

I have seen that in operation in Canada in a prison which specialises in sexual offenders. It appears to work in Ontario and I see no reason why it should not work here. Of course the provision of treatment in prison must be followed up by other treatment while the person is on licence in the community. Therefore, I looked with great interest at Schedule 1 to Part II of this Bill. I grant that that deals with probation but, if those facilities are available to the probation service when a probation order is made, I can see no reason why they should not be made available to the probation service when it is supervising parolees on licence. A very full list of provisions will be available in the community. Therefore, I hope that the treatment in prison and the treatment once a person comes out will dovetail together.

The other major change which I should like to commend to the House is that Clause 39 takes deportation cases out of the hands of the Parole Board. I doubt whether anything in our proceedings causes more dispute than what is to be done with deportees, particularly drug couriers, though there are others. The problem is simple. The main concept of parole is that that is a continuation of the sentence under supervision in the community. That cannot be done if the person is to be deported except in a very few cases on the Continent of Europe. Therefore, there is a great division of opinion among my colleagues as to what should be done with such cases. I am afraid that there is a possibility that some will fall into the error of re-sentencing. All that will be taken away from the Parole Board and will be dealt with by the Secretary of State and, I should have thought, the immigration department.

I should like to draw one other point to the attention of the House. It arises in Clauses 31 and 32; that is about the recall of prisoners who are out of prison under supervision on licence. That will be done differently according to whether they are short or long-term offenders. If they are short-term offenders, it will be done by the magistrates, who can impose a fine or can recall the man or woman to prison. In the case of the long-term prisoner, it will be the job of the Parole Board, which cannot fine but can recall.

The one fear which I have about that dichotomy is that there will be very great difficulty in achieving consistency in the approach between the multitudinous magistrates' courts and the proceedings of the Parole Board. Perhaps my noble friend Lord Ferrers— and he is not expected to reply to this matter this evening, because I have not given him notice of it — will ask that attention is paid to that and preparation made in order to avoid gross discrepancies in the way people are treated in those two different fora. That would be very valuable.

Having said that, I hope that I have given the impression to the House that Part II of the Bill seems to us to be well conceived and workable. We look forward to putting it into effect.

6.9 p.m.

Baroness Seear

My Lords, I intend to deal with only one theme in speaking this evening because I am in no way an expert in the way in which so many of the other speakers in your Lordships' House are expert on the subjects covered by the Bill.

However, I briefly add my voice (because every extra voice is worth having) to noble Lords who have said that the Bill should include the abolition of the mandatory life sentence for murder. Secondly, I give every possible support to those who have advocated an extension of the development of prisons run along the lines of Grendon. That is a prison which has attracted the most favourable comment. I was privileged to visit Grendon while taking part in a seminar there and I was enormously impressed by what I saw. I urge your Lordships to give every support, and perhaps that can in some way be reflected in the Bill.

I turn to my main theme. I take it that the purpose behind the legislation is ultimately to have less crime, fewer people appearing before the courts, and above all fewer people sent to prison and kept there for long periods of time. The points I intend to make I have made in various forms before in your Lordships' House. I make no apology. They must be repeated and emphasised again and again until we obtain results.

We shall not cut down the number of people appearing before the courts; we shall only marginally cut down the number of people in prison unless we can cut down the rate of recidivism. Recidivism is inevitable unless people who have offended are able to obtain work. Work is the centre of rehabilitation. At the end of the day work means a structured existence; it means money; it means status; it means the possibility of having a home of one's own, one's own family and paying one's own bills. Without work there is no choice for the ex-offender except to settle for making the best he can of a life of crime, paying for his periods of freedom by his periods inside.

Therefore I stress again that of first importance is the giving of adequate training to enable people to obtain jobs. We are living increasingly in an economy where there are fewer opportunities for people without skills. If one has no skill and a criminal record to boot, one's chance of obtaining work is very low indeed. The first requirement is to enhance the opportunity for the offender to obtain work. That greatly applies to the people serving community sentences. There is no reason why people who are serving their sentence in the community should not combine it with rigorous and effective training.

At the moment an interesting programme is taking place between the probation service and the organisation in Berkshire with which I am concerned, the Apex Trust. It is well supported by the prison service. Its aims are to provide real training for the people serving sentences within the community so that they have a better chance of re-establishing themselves and not returning to crime afterwards.

First, I must stress that along with the whole idea of sentencing in the community we should examine the ways in which that period can be used for training and for the finding of appropriate work and therefore money. Money may be the root of all evil but without it one cannot get very far. One cannot obtain money without first having a job. That is what it is all about.

Secondly, we need the extension and development — "extension" is a flattering term— of such training as is already taking place in prison. It must be real training. I am happy to say that I spent one morning last week in the rather surprising company of the Minister of the Department of Employment, Mr. Robert Jackson, trudging around Pentonville Prison where a new experimental programme for training is taking place. People from outside the prison service are carrying out the training and they are expert in doing so. They have the full support of the prison governor. The prisoners are obtaining training.

I know I shall be told that the prison service always provides training inside prison. If one is lucky one may receive it, but a great deal of the time one does not. It is not enough to say that one must have training. It must be relevant training which will lead to employment. If people are given training and find that after they have been trained they cannot get a job, it will lead to the development of cynicism— which is already rife inside prison— in relation to training. It is important that steps should be taken to link employers with special training programmes inside the prisons relevant to the labour market.

It is possible to do that. Steps are being taken and employers are becoming genuinely interested in ways in which they can work with the prison authorities in providing training. In some industries, such as the construction industry, if one has done training in prison there is a reasonable chance that one may find a job in different parts of the country because construction occurs everywhere. But one of the basic problems is that where prisoners are sent to serve their prison sentence may be a long way from where they will live when they come out of prison. Therefore the chance of their taking an interest in training and being linked with an employer with the prospect later that if things go right they will get a job, is nil. They will not be in that area.

I raise that matter because around nine months ago at a consultation in which I was involved at St. George's, Windsor, we were joined by representatives from Germany and elsewhere who had been working on this subject. The German representative was most impressive. He said that since 1975 they had re-organised their sentencing system— we always come back to sentencing— with two objectives. The first was security, and that must be right. The second objective was training. If training is to be of the highest importance then one must examine the ways in which training can be carried out when the sentence is passed. As a governor who attended that consultation said, "I run a prison in Norfolk. We train our people in stitching. Then they return to Wapping where all they can do is work for The Times, or in something completely different from that for which they have been trained".

If one is to take training seriously rather than as a marginal thing that one puts in because there is nothing better to do and there is plenty of time to spare, it must feed right back to the process of sentencing. Where people go when they are sentenced and what they can do there is relevant to what they do when they come out. That is a revolutionary suggestion. But the Germans have been doing it with considerable success. I ask your Lordships' House to consider that and I ask the Government to look at it as a way of reducing recidivism. The rate of recidivism is ridiculous.

When the offender leaves prison he may be totally inadequately trained or he may not be trained at all. Many efforts have been made to provide appropriate training. Under the Employment Training Scheme money was forthcoming so that appropriate training could be given to ex-offenders. They are far more difficult to train than someone who fell out of employment two weeks ago and has a long record of good employment behind him and no criminal record around his neck. That work was going ahead, and in many cases successfully. What happened?

The funds available for the training have been drastically slashed. In the case of Apex we have had redundancies of around 40 per cent. of the people employed on the training schemes. That must be madness. I was telephoned only the other day by a man, who turned out to be an ex-offender, in one of our workshops saying that we were in breach of contract because we had taken him in and were now turning him out. We had had to shut the establishment for lack of money.

We are told repeatedly that the Training and Enterprise Councils are aware of that and must take it into account. Speaking in the Commons, Mr. John Patten said that the TECs would be contractually obliged to meet equal opportunities' commitments and provide for ex-offenders, and they must show that they intend to do that. But 30 per cent. of the money for the TECs has been cut. What makes the matter more difficult is that they have been told that they are judged and their payments will depend on their success. Success is getting people into jobs and helping them to acquire qualifications.

If what I was to be paid depended on my placing trainees in jobs, the last trainees I would look for would be ex-offenders. I would look for the people who needed the least amount of training and who had the best possible record. I maintain that unless this is taken into consideration the statement by Mr. John Patten does not stand up. With the 30 per cent. cut and their being told that it is their placement record on which they will be judged, how can TECs be expected to take on ex-offenders when a great deal of work has to be done before they can get started on the skill training? To build up confidence, to establish some degree of self-value, to get them to believe that there is something at the end of it which is worth doing— all this takes time. More money, not less, is needed.

I would argue that the success of getting a placement for someone who has served two or three sentences in prison is far greater than getting a placement for someone who has only been out of work for a fortnight. Even in economic terms this could well be true. Let us not forget that it costs £ 310 a week to keep people in gaol; and one could do a great deal of training for £ 310 a week.

We need to take the whole issue of training very seriously indeed. One of the problems which confuses all of us who are trying to work in this field is, to put it bluntly, that there are far too many government departments with their fingers in this pie. The Home Office tells us that this is exactly the sort of thing that they want done, and the next day the Department of Employment cuts our money. It would be of enormous help if the government departments concerned with this matter would get their act together so that one could deal with them as an entity, and not have to go from one government department to another with the deep suspicion — this may be unworthy, but it is almost inevitable— that one department is playing off against the other. This is a central matter to the ultimate purposes of the Bill, and I beg the Government to take it into consideration.

6.22 p.m.

Lord Boyd-Carpenter

My Lords, the noble Baroness is a formidable debater. I am therefore particularly happy to find that on this occasion I am very much in agreement with her. Given the emphasis which has been placed on serving part of a sentence in the community, training really does become a matter of first-class importance. There will be some people so criminally inclined that they go back into crime anyhow, but for the majority of people released to serve a sentence in the community everything will depend on whether or not they get a good, interesting and remunerative job. Therefore, I hope that the sensible words of the noble Baroness will be given full attention by my noble friend Lord Ferrers.

This is a very important Bill, probably a historic one. It is natural, therefore, that on Second Reading each of us should make our criticisms. Obviously there are points that we wish to see raised and perhaps included in the Bill in Committee. Nonetheless, I begin by congratulating my noble friend on introducing a Bill of such enormous significance and importance. In particular, I pick up what my noble friend Lord Windlesham said. The object must be to reduce crime. I believe that on the whole, with some qualifications, the effect of the Bill will be in that direction.

I listened with ironic amusement to the very considerable discussion on the subject of the mandatory life sentence for murder, notably by the noble and learned Lord the Lord Chief Justice, by the noble Lord, Lord Nathan, and others. I say that because in 1965 and in 1969, when the Bills to abolish capital punishment were going through another place, I ventured to warn the Government of the day that although they could abolish capital punishment they would find very real difficulties in instituting a proper substitute for it. That has proved to be the case.

I am sorry that my noble friend the Leader of the House is not on the Front Bench. I believe that he has some sympathy with my view that it was a mistake to abolish capital punishment. Capital punishment is the final and most powerful deterrent to murder. As a result of its abolition, while the lives of a number of murderers have been saved, a number of innocent people must have suffered. Murders have been committed which might have been deterred had capital punishment been continued.

I should not like the debate to pass without it being on record that at any rate one of your Lordships feels that the abolition of capital punishment was a great mistake that sooner or later has to be put right. It will be put right, although probably now as a result of some horrific action. If put right, it would certainly have a great measure of public support. It would be extremely interesting for a referendum to be taken on the matter. The result might be more encouraging to those who share my view than to those who take a different one.

On the deterrent effect, perhaps I may recount an experience of my own when 1 was defending at the Central Criminal Court one of a gang of robbers and it was going to be suggested that they were armed. I went to see my client in the cells: it was important for me to know whether the prosecution's attempt to suggest that they were armed was going to be introduced. I asked him "Were you armed?" He said "No, governor. If I had had a gun and used it and killed somebody I would swing for it, wouldn't I?" I confirmed to him his view of the law. The fact that a man who was prepared to risk a serious term of imprisonment in the commission of a serious criminal offence was deterred from carrying a gun by the knowledge that the consequences of using it might be to produce the ultimate death penalty was enormously significant. That has always been in my mind.

As some of your Lordships know, it fell to me to administer capital punishment at a superior military government court in Italy during the latter part of the war, and it has always been in my mind that this was the really effective deterrent. I shall not waste more of your Lordships' time on the matter apart from expressing my regret that Her Majesty's Government have not decided to move in this direction.

On the question of the effect of controlling and releasing prisoners under the system of the parole board, there is no doubt about the considerable risk of undermining the deterrent effect of sentences by the court. When the judge says, "You have committed a series of abominable offences and you will go to prison for so many years" the experienced criminal knows that he will not go to prison for anything like that length of time. This must seriously undermine the deterrent effect of sentences in the courts. I therefore very much welcome the provision in the Bill for reducing the scope of the grant of parole.

In parenthesis, may I say that the word "parole" is being misused. Historically, "parole"— which means "word"— was given by a member of the armed forces of one country, generally an officer, who had been taken prisoner by an opposing army. Instead of being kept as a prisoner of war, he gave his word that if he were released he would not serve further in the war. It was a wholly honourable provision. Now the word is used to describe the system of releasing prisoners from sentences imposed on them. I am glad that the Bill proposes to increase the proportion of the sentence that will have to be served before a prisoner can be released.

I am less happy about the proposal that for sentences of between four and seven years my right honourable friend the Home Secretary will have no power to intervene but that the matter will lie solely with the parole board. That raises a serious parliamentary question. The Home Secretary is responsible to Parliament ultimately for law and order and for the safety of the citizen. If the Home Secretary has no control over the release of prisoners serving sentences of between four and seven years— there are substantial numbers of them— he will be in the position of having to say to this House or another place, "I am sorry, I cannot do anything about it; the matter is within the ambit of the parole board". That is a great pity. Whatever one may think of the parole board, it would be wrong to leave it with complete discretion, free of any parliamentary control or control by the Home Secretary. That is a part of the Bill which I hope we shall consider further.

I cannot say that I like Clause 3(2) where the courts are told to disregard previous convictions from the point of view of sentence. It is very difficult to judge an appropriate sentence if one disregards the fact, if it be a fact, that the convicted man has committed a great many other offences of the same kind. With other types of offence such as being drunk in charge of a motorcar or heavy sexual offences like those committed in 1988 by Mr. Cannan, it is difficult to disregard previous convictions. The argument put in the papers which have been circulated is that the accused has already paid the penalty for the previous offence and should not be punished again for it. The fact that he repeats the offence surely indicates that his earlier punishment was not adequate enough to deter him.

That is the main quarrel that I have with the Bill. I am very unhappy that Clause 23 proposes to reduce the sentences for non-domestic burglary and theft respectively from 14 years to 10 years and from 10 years to seven years. It may well be the case that it is not very often necessary for offences of that kind to carry sentences of that weight. Despite all the efforts of the Government, crime of this kind is still rising. It seems a very curious proposal to reduce the maximum sentence which may of itself have some deterrent effect. There can also be singularly vicious cases in which it is highly desirable to impose the maximum sentence. To deliberately reduce the sentence at this time seems a very odd proposal.

I have one other point. I understood that the Government were proposing to increase the maximum sentence awarded to those poisonous citizens who indulge in hoax telephone calls threatening bomb outrages. I understood that the present maximum term of imprisonment of three months was to be increased. When my noble friend comes to reply, I shall be grateful if he can tell your Lordships whether the Government propose to do so in this Bill, which seems to be the appropriate vehicle, or elsewhere. At any rate, I hope that my noble friend can confirm that that is to be done. I am sure that public opinion demands that those who wantonly cause enormous inconvenience and fear to their fellow citizens by these hoax calls should, in appropriate cases, receive a sentence a good deal heavier than three months. I hope that my noble friend will confirm the statement made the other day that the Government had such a proposal in mind.

Having uttered one or two criticisms of the Bill, I still say that it is a remarkable example of reform. I wish my noble friend all good fortune in the conduct of the Bill in the weeks and months that lie ahead. He will understand me when I say that those good wishes include the hope that he will show extraordinary stamina.

6.36 p.m.

Lord Ackner

My Lords, it is a wise trial judge who, while listening carefully to the evidence, makes a note of the points that he expects a witness to cover, ticks them off as they are covered and intervenes only to ask those questions which remain unanswered. As I knew that I was going to be the fifth member of your Lordships' Select Committee on Murder and Life Imprisonment to speak. I carefully ticked off those points in my notes which have been covered by my noble and learned friends. I hope that what I now say is not repetitious.

There is a strange degree of contradiction to be found in the Government's approach to this question. In paragraph 2.1 of the Government's White Paper Crime, Justice and Protecting the Public, published a little more than a year ago, their aim was stated to be: to ensure that convicted criminals in England and Wales are punished justly and suitably according to the seriousness of their offence".

That is the just deserts approach, as it has been called. That is the theme that runs through the Bill before your Lordships. However, in paragraph 6.15 it is stated that the Government, believes that the mandatory sentence of life imprisonment for the crime of murder should remain to mark the heinous nature of the crime".

In the debate in another place on 20th February on this Bill, as amended, the Minister of State, Mrs. Rumbold, said that murder: is unique because many people regard the crime of murder as a uniquely bad and heinous crime".— [Official Report, Commons, 20/2/91; col. 371.]

That of course is quite wrong. As my noble and learned friend Lord Hailsham observed in 1987 in his speech in R. v. Howe: Murder, as every practitioner of the law knows, though often described as one of the utmost heinousness, is not in fact necessarily so, but consists in a whole bundle of offences of vastly differing degree of culpability, ranging from the brutal, cynical and repeated offences, like the so-called 'Moors murders', to the almost venial, if objectively immoral, mercy-killing of a beloved partner".

Mrs. Rumbold continued by saying that the Government, believe that murder should attract a unique sentence".

But it has ceased to do that. Imprisonment for life is not a unique sentence. It is available for a wide variety of other crimes such as manslaughter, rape, arson, causing explosions and so on. A little later (at col. 372) Mrs. Rumbold said, We believe that the crime of murder is unique".

That is axiomatic. Any crime that contains ingredients that other crimes do not contain is a unique crime. That applies to all other crimes. However, it must be borne in mind that the intention to murder is not limited to an intent to kill but includes the much less intent to cause grievous bodily harm. That is why the offence of murder covers such a wide spectrum. What unfortunately is unique about murder is the automatic imposition of the life sentence. That is its only unique quality. This might be justifiable if we were able to isolate and define particular categories of serious murder. However, it has been concluded, after several unsuccessful attempts, that the gravity of the murder may depend on so many circumstances that to select one or two of them to put the murder into a special category leads to unacceptable anomalies. It is because we have not divided murder into categories that the automatic sentence of life imprisonment is bound to fail to comply with the principle that the Government are seeking to enshrine in this very legislation, that convicted criminals are punished justly and suitably according to the seriousness of the offence.

There is no novelty about the proposal of the Select Committee in your Lordships' House. A similar proposal was supported by the Butler Committee on mentally abnormal offenders in 1975, the Advisory Council on Penal Reform in 1978 and the Parliamentary All-Party Penal Reform Group in 1986.

What then is the Government's reason for making an exception in the case of murder, frustrating their own policy? Leaving aside the cynical view that politicians and bureaucrats in particular hate giving up any power that they hold, may I suggest that probably the answer is political. Quite wrongly, in my view, the Government fear that if life sentences for murder cease to he mandatory but become discretionary by enabling the judge, where appropriate, to give a determinate— that is a definite— period of imprisonment, the public might think that the Government have gone soft.

The committee had this point well in mind and dealt with it in paragraph 178 in these terms: After the introduction of a discretionary sentence for murder, the Committee anticipate that the average length of time served under life sentences would be considerably longer than it is now".

That is because the life sentence would be reserved essentially for the particularly outrageous murders and for those where there would be a high degree of uncertainty about the risk, by reason in particular of the accused's mental condition, of releasing a prisoner at the end of a determinate sentence.

The committee went on to say this— and it really should put the Government's mind at rest— The Committee expect that their proposals will lead to very lengthy penal sanctions being set in the most grave cases. In some cases, this may result in imprisonment for the rest of the prisoner's life".

As matters stand at present the life sentence has become devalued. The public believe that it involves no more than nine years in prison because that figure may well represent the average period served in prison when you lump together the less grave cases with the serious ones.

I now turn to the philosophy underlying Part I of the Bill. It is of course axiomatic that the greater number of offenders that one can properly avoid sending to prison the better. More than a decade ago my noble and learned friend the Lord Chief Justice in the case of R v. Bibi, giving the judgment of the Court of Appeal (Criminal Division) emphasised even then that prisons were dangerously overcrowded, that a non-custodial sentence must be passed if such a sentence was appropriate and that such a sentence must be as short as possible, consistent only with the duty to protect the interests of the public and to punish and deter the criminal.

No one nowadays— although they did when I first became a recorder— regards prison as an effective means of reform for the majority of prisoners. Indeed, we all know that it can be counter-productive. Therefore, in so far as this Bill extends the range of non-custodial sentences, it is to be welcomed, but I do so with caution. The restrictions on sentencing contained in the Bill have largely been modelled on Section 1 of the Criminal Justice Act 1982, as amended by the Act of 1988, which imposed restrictions on custodial sentences for those under 21.

But "the big question", as the Minister of State, Mr. John Patten, frankly admitted in another place during a Standing Committee, is whether these new penalties— more intensive forms of supervision … will work with more difficult adult customers". Understandably enough he said that he could not guarantee that they would work, and added that he considered that Opposition Members would share his unease.

Again during another Standing Committee in another place he explained that the Government's aims are to ensure that tough and demanding penalties outside prison are available for some of those who, if the sentencers can be persuaded it is right, will be sentenced thus rather than to a term of imprisonment. However, he said, this was not just an argument about persuading the sentencers. It was an argument also about persuading the general public that punishment in the community was a real punishment.

As the noble Lord, Lord Waddington— as he then was not— said in another place during the Second Reading of the Bill on 20th November (at col. 141): Community penalties have often not been perceived as real punishments".

They have been perceived as, a bit of a let-off".

They have not been, in some respects as rigorous as they should have been".

The range of community penalties has not been wide enough to provide suitable punishment for all offenders who could otherwise have been dealt with effectively in the community.

I once more refer to Mr. Patten's observations: The Bill is not an exercise in trying to empty our prisons. Instead, it is designed to ensure that offenders are punished correctly on conviction— those that should go to prison, go to prison; while those who should not be punished in prison, are punished outside".

These are principles that every judge currently seeks to apply and if he gets it wrong the Court of Appeal is there and puts him right.

I have additional grounds for my cautious welcome. The noble Lord, Lord Hutchinson of Lullington, gave an anticipatory welcome to the Bill during the debate on sentencing policy on 12th December last. He said (at col. 519): Sentencing on an offender's record, and by ideas of the protection of the public in general"—

and I stress those words— are concepts which have been swept away".

I fear that there is more than a grain of truth in those disturbing observations.

Of course it has for long been established that an offender is not to be punished twice for the same offence, and accordingly must be sentenced for the crime or crimes which brought him before the court. However, in evaluating the seriousness of that crime or crimes, with particular regard to the need to protect the public from further offences committed by him, hitherto, among other things, a history of failure to respond to non-custodial penalties or an inability or unwillingness to respond to them were understandably considered to be highly relevant.

Indeed, in relation to persons under 21 it is enshrined in Section 1(4)A introduced by the Act of 1988. Not only is there no such provision in this Bill, but Clause 3(2) forbids its consideration. That is introducing unreality into the sentencing operation. Moreover, in evaluating the seriousness of the conduct of the multiple offender you can only under this Bill aggregate two offences— see Clause 1(2)(a). What then is to happen in relation to the large-scale fraudulent scheme which can only be represented by specimen charges when each seen separately is quite minor?

Similar problems will arise in certain sexual cases, for example, when a person in a position of trust towards young people has persistently committed offences of indecency which may be considered relatively minor if committed in isolation. Moreover, it looks as if offences taken into consideration (which in a given case may be numerous) cannot, however extensive when combined with the offence charged, tip the balance and justify custodial sentences.

If an extension of non-custodial sentences to an area where custody has previously been imposed is to receive public acceptance, the sentences must not only be perceived by the public to be tough and demanding; they must also contain an appropriate punitive element. Merely to recycle back into the community those who would previously have received a custodial sentence, will not prove acceptable to the public. Of course, Parliament is entitled to establish a framework within which judges are to operate; but if that framework is distorted, then so will be the decision of the court.

The noble Lord, Lord Hutchinson of Lullington, referred to the exceptional punitive approach of the judiciary. That is a recurring theme. Perhaps I may draw the noble Lord's attention to the following simple statistics, which are taken from the most recent criminal statistics of 1989. I refer first to committal for sentence to the Crown Court. As noble Lords will know, under Section 38 of the Magistrates' Court Act 1980, magistrates can commit an accused for sentencing to the Crown Court where they consider that, having regard to information as to the accused's character and antecedents, their powers of punishment are inadequate to deal with the matter. Of course, the magistrates can impose terms of imprisonment of up to 12 months' duration. The criminal statistics for 1989 disclosed that 4,000 offenders were thus committed. However, on arrival at the Crown Court, the figure for those committed to prison for immediate custodial sentences was only 58 per cent.; on the other hand, the other 42 per cent. of those in respect of whom the magistrates thought their powers inadequate received no sentence of imprisonment. That is hardly an indication that the judges are trigger happy about imprisonment.

Secondly, perhaps I may deal with the length of custodial sentences and their imposition. In respect of those convicted of serious offences, by no means is it true to say that all of them necessarily go to prison. The same statistics reveal that for robbery more than one person in 10 receives a non-custodial sentence. Moreover, in sexual offences, three persons out of 10 retain their liberty; and in the case of drug offences and burglaries almost four out of 10 persons retain their liberty. Further, as regards adults convicted of violence, over 50 per cent. retain their liberty.

In regard to the constant complaint made by some people that excessively long sentences are imposed, I should point out that the average length of sentence for robbery was 48.2 months. The average sentence for sexual offences was 37.3 months; for drug offences it was 32.3 months and for burglary it was 17.2 months. However, the average length of time spent in custody by adult males sentenced to determinate sentences was only 7.5 months, against an average sentence of 16.18 months. The average period served by male adults sentenced to terms of more than 12 months' and up to 18 months' imprisonment was only 6.5 months. Moreover, for those sentenced to more than three years' and up to four years' imprisonment, the average time served was 22.3 months.

When one bears in mind the fact that, out of those whose previous convictions were investigated, one quarter had from six to 10 previous convictions and that more than one third had 11 or more previous convictions I respectfully submit to your Lordships that the public are not being over protected by the judges.

Lord Mishcon

My Lords, before the noble and learned Lord sits down, I hope that he will be able to help the House and especially myself on a certain matter. I ask him this question as he is a most distinguished judge. If the sentences passed by our judges are so lenient, what is the explanation for us having more people in prison than any other country in Western Europe? What is the reason for it? Are we in fact more criminally minded? What is the explanation?

Lord Ackner

My Lords, the explanation cannot be provided by the judiciary; it must be provided by those who look at the nature and prevalence of the offences in such countries and the extent to which members of the public in those countries are satisfied with the sentencing which is carried out. However, perhaps I may point out to the noble Lord that the noble Lord, Lord Richard, and others, have pressed upon us the need for a sentencing council. In the debate which took place in November 1988 the noble Lord, Lord Irvine of Lairg, said that there had been, and that there currently is, a sentencing council or commission working very successfully in Canada.

In Canada, the proportionate number of persons sent to prison is higher than that in England and indeed higher than in any other country in Europe. I do not know the reason for this, but Canada has the benefit of a sentencing commission. In the United States the Executive has interfered and provided a points scheme which requires a computer rather than a judge to sentence. That country sends to prison three-and-a-half times more people proportionately than is the case in this country. As I said, I do not know the answer and it is not a question which should be addressed to the judiciary. We just do not have the material to deal with it.

I firmly stress the point that sentences are imposed in accordance with the sentencing guidelines published in the law reports and also in the handbook from the Judicial Studies Board. I am delighted to know that, following my reference to that handbook last December, there is now a copy of it in the Library of the House. Despite that facility, the noble Lord, Lord Richard, had no criticism to make of any of those sentencing guidelines. Nevertheless, he desires the establishment of a sentencing council.

Lord Richard

My Lords, as the noble and learned Lord referred to me at least three times during his speech, 1 feel that I am entitled to reply.

Lord Hailsham of Saint Marylebone

Come on!

Lord Richard

My Lords, I must return to the point made by my noble friend which the noble and learned Lord has not in fact answered.

Lord Hailsham of Saint Marylebone

This is not a Committee stage!

Lord Richard

My Lords, there must be some explanation—

Noble Lords


Lord Richard

With the greatest respect, I am not going to take an exercise in good manners from the noble and learned Lord, Lord Hailsham. If he wishes to explode at me, he may do so. But, if I am out of order, I shall apologise to the House and not to him.

Lord Hailsham of Saint Marylebone

My Lords, I should point out to the noble Lord that in a Second Reading debate he has the right to speak a second time but only by leave of the House.

Lord Richard

My Lords, with the greatest respect, I was not asking for leave to speak for a second time. I was merely putting a point to the noble and learned Lord, Lord Ackner, before he sat down. As I said, he referred to me about three times. I repeat the question: is there no explanation that he, as a distinguished judge, can give us as to why there are so many people in prison in this country as compared with similar countries in Western Europe? There must be some explanation for the situation.

Lord Ackner

My Lords, I thought that I answered the question most clearly. I said that it is not a matter upon which the judiciary can comment. However, no doubt Dr. David Thomas, who is one of the distinguished criminologists and who writes books on the subject and presides over the postgraduate criminology department in Cambridge will be able to assist the noble Lord. We should have to have intense research into the levels of crime in the country with which the comparison was being made, the nature of the crimes in that country and the tolerance by the public of short sentences resulting in repeated crimes, and so on and so forth. I cannot supply the answer. I am sure that others can if the noble Lord will apply to the proper quarter.

7 p.m.

Lord Morris of Castle Morris

My Lords, I take it that the bell has gone to signal the end of the round in what seems to have become a private fight. If that be the case, perhaps I may offer a few comments. The Bill, in the form in which it has come to your Lordships' House, is like the curate's egg, in that it is a very good Bill— in parts. It is unlike the curate's egg in that the longer it stays on the table the sweeter it will come to smell. Many of your Lordships, especially those who are learned in the law, have drawn attention to the many themes and leitmotifs of the Bill. I wish to comment on three lesser issues only, which, nevertheless, give cause for widespread and deep concern.

It has been called "a themeless Bill", "an anthology of a Bill" and "a Bill of missed opportunities". Indeed, there are strange lacunae and omissions. For example, on the question of cruelty to animals there is a deafening silence. We may search the Bill in vain for any proposals to deal with a crime about which the British people feel most passionately, as my postbag regularly tells me— a crime which is increasing to alarming proportions. The RSPCA reports that between 1989 and 1990 convictions increased by 28 per cent., including those for malicious cruelty to dogs through sadistic offences like baiting, beating and shooting, which rose by 61 per cent. Cruelty to horses and donkeys trebled, and there was a 60 per cent. increase in abuse of farm animals. Yet the Government seem to feel that that matter is not sufficiently urgent or serious to require inclusion or rectification in the Bill. However, many people have informed me that they will be calling for an amendment to provide for mandatory disqualification from keeping an animal upon conviction for cruelty.

At the moment, bans are imposed at the discretion of magistrates. The RSPCA spokesman recently said that they must ensure that unfit owners are not allowed to cause further suffering. I am well aware that that is a complicated proposal: how does one monitor such a ban? Does it not bear unequally upon some, like farmers, whose living depends upon animals? But those problems must be solved, in the name of compassion and justice. As Richard Davies, head of the RSPCA's inspectorate put it: It is deeply frustrating when convicted cruelty offenders are not deprived of the opportunity to ill treat more victims".

The Bill is shatteringly silent on the whole subject, and it is a silence to be deplored.

One cannot say, however, that the Bill is silent on the matter of racial equality and discrimination. In its origins it spoke with a halting and uncertain voice, hut, to their credit, on Report in another place, the Government introduced a clause on racial discrimination. Clause 79(1) now includes paragraph (b), which adds that: the Secretary of State shall in each year publish such information as he considers expedient for the purpose of facilitating the avoidance by such persons of discrimination against any persons on the ground of race or sex or any other improper ground". But is that clause now sufficient? As Evelyn Waugh put it, up to a point, Lord Copper", or, like the curate's egg, it is good so far as it goes. But there are arguments for further amendment, as my noble friend Lord Richard powerfully proclaimed.

The Minister may care to ask himself three questions in relation to Clause 79(1) as it now stands: who monitors, and how, those key decisions in the criminal justice system so that the Secretary of State is enabled to publish relevant information? Secondly, will it, or will it not, be a duty for the criminal justice agencies to take remedial action if the published information suggests that discrimination has taken place? Thirdly, if discrimination on racial grounds were alleged, what recourse would be open to the individual? Surely, we need more and stronger safeguards than the Bill presently provides if we are to ensure that in the processes of criminal justice people are treated in a manner that is without racial discrimination. We on this side of the House shall at a later stage be bringing forward an amendment to that effect.

On cruelty to animals, the Bill is silent; on racial discrimination, it is uncertain; on children and children's evidence it is insufficient. In June 1988 the Home Office set up the Advisory Group on Video-Recorded Evidence under Judge Pigot, and the Pigot Report was published in December 1989. The group took time to consider the matter with great care. The Government have had more than a year to consider the report. It was immediately warmly welcomed by legal practitioners, social workers and psychiatrists who work with children involved in criminal proceedings.

We must be careful to ensure a just balance in those cases and we must be vigilant to maintain the full rights of defendants at every stage, but it is widely felt among many organisations concerned with the welfare of children, including the Children's Legal Centre, the NSPCC, the National Children's Bureau and Childline, that the Bill does not go far enough in implementing Judge Pigot's recommendations. For example, the Pigot Report recommended that child witnesses: ought never to be required to appear in public as witnesses in the Crown Court".

That is not a casual proposal. It was made in the full knowledge of the difficulties that it would create — like the practical problem of ensuring that the same judge presided over all aspects of a trial, and the possibility that the practice would lead to a large number of recalls. Nevertheless, it is a clear and unambiguous recommendation. The Bill, as we have it, would make a video recording of the testimony of a child witness admissible, but only on condition that the child was available for cross-examination at the trial if required. It is left entirely to the judge's discretion whether such cross-examination should take place in open court or by means of a television link. That means of course that it is impossible to inform a child witness before the trial about the way in which evidence is to be given. The child's fears cannot be allayed; the stress may well be considerable; and in some cases the child, and the trial, will break down.

There are other insufficiencies, especially perhaps in the area of preliminary hearings, but enough has been said to show that there is still a great deal to do if the Bill is to improve significantly the administration of justice in cases involving children.

The Bill is silent on cruelty to animals; it is uncertain on racial equality; and it is insufficient on the protection of children. There are errors both of omission and commission. The Bill has: left undone … things which it ought to have done, and done … things which it ought not to have done".

But we on this side of the House will try to exercise the divine prerogative of mercy on it, and so strive to amend and improve it that when it leaves your Lordships' House it may be enabled to live a godly, righteous and sober life.

7.9 p.m.

Lord Mancroft

My Lords, the clock has struck seven, luncheon is but a memory and dinner is on the horizon. I shall keep my remarks short as I notice that several other noble Lords wish to make their views known on this important Bill. I shall also confine my remarks to one area: the treatment of drug users by the courts. Noble Lords may know that I have much interest in the subject.

There are roughly three groups of offenders in this category: those who contravene the Misuse of Drugs Act; those who commit crimes to finance their drug use and those who commit offences under the influence of drugs. Some might fit into all or several of the categories. It is difficult to know, however, how many people fit into them. In 1989 38,500 people were proceeded against in the courts or by cautioning or impounding. Only 3,855 were given custodial sentences.

We know that far too many people are in prison with drug or alcohol problems. To release them without attempting to tackle the drug use in any way is inviting them to re-offend. The noble Baroness, Lady Seear, mentioned the importance of training, and that is very important. If we wish to move people away from a criminal career into a non-criminal career, it is important to train them to work. However, if they habitually use drugs or alcohol, no amount of training will help them. Let us take one thing at a time.

There are presumably several objects to the Bill, four of which I wish to address tonight. The first simple one is lowering the prison population. That is a useful aim. However, we must not lower the prison population in its simplest form if we do not do something with those who at the moment make up too much of the prison population. Secondly, on the same lines, we must prevent recidivism. The third aim is to take a more appropriate and constructive view towards sentencing.

The fourth and most important ultimate aim mentioned by my noble friends Lord Windlesham and Lord Boyd-Carpenter is ultimately to reduce crime. It is difficult to do that if, for example, the offender has contravened the Misuse of Drugs Act. If he is addicted to drugs and goes back on the street, the chances are that he will re-offend. If he is in prison for a crime committed to finance his drug use and his addiction to drugs, he will go back to committing similar crimes. If he has committed a crime under the influence of drugs, such as domestic violence or violence outside a pub, if he is addicted to a drug or to alcohol and nothing is done about it, he will commit that kind of crime again.

In attempting to reach those goals, we must bear in mind some worrying side effects. It would be disastrous if drug using offenders were to get the idea that treatment orders were a way of escaping punishment. It is essential, not least for the offender, that the use of or addiction to drugs or alcohol is not used as an excuse for criminal activity. Addicts are people who do not face up to their responsibilities. Few of them voluntarily seek treatment until they face a crisis. One of' the most important crises in the life of many addicts is when they appear before the courts. If we were to lose the use of that crisis in order to steer them in the right direction it would be sad.

It is equally important that treatment orders do not become, as prison often is, simply a temporary interruption in drug use. The courts, however, will require expert evidence and expert advice if they are to use treatment orders constructively. They need to be assured that an offender is an appropriate subject for whichever facility is recommended, and they will need access to various different types of facility, whether day care or residential.

As yet, no mention has been made of the training that probation officers and social workers will need if they are to take on this work or who will pay for it. Treatment orders will only work if the courts have access to a full range of facilities, most of which are only available in the private and voluntary sector. The noble Lord, Lord Richard, mentioned the Labour Party's disapproval of private operators running prisons or escorting prisoners. I do not wish to enter into that argument but must point out that if the private and voluntary sector were excluded in the treatment of drug offenders, there would be no treatment for them.

If they are to be included, as I believe they must be, then how will these services be paid for? I cannot honestly see health authorities wishing to foot the bills, nor can I see the social services departments, overstretched as they are, wishing to do so. Perhaps my noble friend the Minister can tell the House how the Home Office intends to surmount this hurdle. I am sure that they have sorted it out. The Bill provides for area probation committees to enter into service agreements, but it gives no indication of additional resources.

I can go into greater detail of the problems raised by this area of the Bill and maybe even a few solutions, as I have some experience of court referrals to treatment. Indeed, I introduced a system of court referrals to treatment in the Midlands last year which was welcomed by magistrates and the Law Society alike. It has been quite successful, though on a small scale.

Nine years ago I also spent some time helping to run a day programme in a prison in the United States. If I tell noble Lords that Stillwater state penitentiary was the kind of place where one keeps one's views on prison reform to oneself if one wishes to leave in one piece, they will understand the type of prison that it is. However, the drug programmes and the referrals to rehabilitation produced remarkable results. This is a road well worth going down, one that was touched on by my noble friend Lord Colville.

I look forward to raising some of the points in greater detail at the Committee stage. In conclusion, I wish to make one point. The Government have made vast leaps forward in their attitude to offenders with drug and alcohol problems. The Bill introduces court practices way ahead of anything else in Europe and infinitely more constructive than the supposedly liberal ideas expounded in Scandinavia. It is a definite case of learning from the United States experience, but improving upon that experience with flexibility. I congratulate the Government upon the Bill.

7.17 p.m.

Earl Fortescue

My Lords, time is getting on and I shall therefore confine myself to one aspect of Part I of the Bill, the choice of a community service order rather than a custodial sentence. I should declare an interest because although I am no longer an active magistrate, I was active for 20 years. Part of that time was before the introduction of community service orders, part of it afterwards. My co-magistrates and my wife have kept me up to date during the past few years.

Like many others, in theory I am all for sentences in the community. However, I do not think that they will be simple to administer and supervise or that they will produce vast savings in cost. I must admit that my experience has been in a rural area, where the distance from an offender's home to his probable place of work can be considerable and the journey costly. Sentences within the community must be demanding, strictly enforced and supervised; otherwise they will be considered a let-off, as I fear some already are.

Perhaps I should explain that just before the sentence of community service was introduced, Benches were given training by many branches of the legal profession. On more than one occasion I remember the speaker saying, "Before you impose a prison sentence of, say, three months, consider whether 90 or 120 hours of community service would be an adequate alternative". The two sentences are clearly not comparable. Three months' imprisonment deprives a man of his liberty for 2,160 hours, or 20 times the length of the shorter community service order. A youth on community service can go to the pub or take his girlfriend out any evening, if either of those things interest him.

If community service is to be more widely used, there must be plenty of arduous but useful jobs available at short notice which can be properly supervised. To leave two youths for three or four hours to paint the inside of a village hall is not the right kind of work. A little interim supervision by a volunteer or partly trained young probation officer is just not good enough. The supervisor must be a rather exceptional person who combines experience with a sense of humour and fairness with strict discipline. The best type of prison officer or police officer, or the best type of Army NCO would be ideal. However, such supervisors will not only be hard to find but will also be difficult to recruit and expensive.

An offender's few hours of community service will be effective only if they are worked in the evenings and at weekends. In this way normal employment will not be affected. If the offender causes trouble at football matches, some of the community service could be served on Saturday afternoons. I urge that community sentences are not introduced on a large scale too soon. Let us be sure that the jobs and the supervision are ready and available so that the system does not get off to a false start.

7.22 p.m.

Lady Kinloss

My Lords, I wish to speak today on Part III of the Bill only. Many noble Lords who have spoken today are learned in the law. Although I do not speak as a lawyer, I can speak as a mother and as a grandmother of very young grandchildren. I pray that none of them or any of their friends ever find themselves caught up in this process.

In June 1988 the Home Office established an advisory group on video-recorded evidence. The advisory group was chaired by his Honour Judge Pigot. The report of the group was published in December 1989 and became known generally as the Pigot Report. The Pigot Report has been warmly welcomed by social workers, psychiatrists and others who work with children who are caught up in criminal proceedings. Although the Bill goes some way towards implementing the recommendations of the Pigot Report, there are still problems within the criminal justice system with regard to children. The Bill would make a video recording of the testimony of a child witness admissible, but only on condition that the child is available for cross-examination at trial if required. Whether the cross-examination would take place in open court or by TV link would remain at the judge's discretion.

The Pigot Report recommended that child witnesses should never be required to appear in public as witnesses in the Crown Court. The report suggested that child witnesses should be examined or cross-examined at an out-of-court hearing. The introduction of a preliminary hearing where the child could be cross-examined and where the hearing could be video-taped and shown to the jury would ensure that the child never had to come to court. It would also save the child a lot of trauma. While the preliminary hearing would afford the defence the right of cross-examination, it would do so in a far kinder atmosphere and at a far earlier stage in informal surroundings.

The NSPCC feels that one of the main advantages of the preliminary hearing is that it takes place quickly. Thus time does not blunt the child's power of recall to the advantage of the defendant. I believe a child's memory can be selective. Often a child does not remember what one hopes he will. A child's memory can be like a dandelion clock. When one blows a dandelion clock, the bit that one wants to remain may be blown away.

The use of the TV link is better than a child having to appear in court. Some courthouses are frightening to children. There have been occasions when a child witness has come face to face with the defendant on a TV screen. This occurs when the cameras pan around or are misplaced. That is unfortunate. Very young, disabled, emotionally disturbed children or those with learning difficulties find it hard to give evidence, particularly to strangers. The majority of members of the Pigot Committee recommended that particularly vulnerable child witnesses be cross-examined by an appropriate trusted adult who would put questions to the child on behalf of counsel. Those children would be helped if they were allowed to give evidence to a social worker, health visitor, teacher or some other suitable adult whom they know well. Different children have different needs and the Criminal Justice Bill does not appear to recognise this.

The Government are to be commended for having acted on some of the recommendations of the Pigot Report, but there are still problems facing child witnesses. Perhaps we can improve on some of these provisions in Committee.

7.26 p.m.

The Earl of Clanwilliam

My Lords, I thank my noble friend the Minister for introducing this comprehensive Bill. I am delighted to support totally the comments of the noble Baroness, Lady Seear, in respect of training. We discussed that matter in the debate on sentencing which was initiated by my noble friend Lord Elton. I should like to expound upon the system of positive reform which I spoke of at that time.

Where a court has already decided that a young offender should be sentenced to a custodial sentence, the court could, at its discretion, impose a reduced sentence in the shape of a course of positive reform. Such a step would provide a full-time course in education. Many young offenders are not properly literate. Unless they are given an opportunity to learn how to read and write properly, they will have no chance to secure a job when they leave prison. Young offenders need physical fitness training and counselling. As the noble Baroness, Lady Seear, said, they also require technical training. Young first time offenders— they could fall in the 17 to 18 year-old age gap that the noble Lord, Lord Elton, mentioned— could be offered such courses, regardless of their age, to rehabilitate them so that they would at least become more responsible members of society.

It has been agreed by noble Lords on all sides of the House that a primary requirement must be to reduce the number of prisoners in our overcrowded prisons and also to keep young first time offenders out of cells altogether. The scheme I have outlined could achieve that objective while retaining the young offenders in a secure environment. Such an environment could be provided by the Rollestone army camp on Salisbury Plain which was recently used for Iraqi detainees. It is, of course, vital that the young offenders realise they are serving a sentence. They should be strictly supervised. They should agree to the option and understand that the full sentence would be reimposed if they reneged in any way on the contract through failure to comply with the rules.

The courses could reflect a wide range of interests. Different syllabuses could be prepared for differing needs. The courses would be of relatively short duration. The costs of increased supervision of the young offenders would be balanced by the shorter duration of the courses. I suggest that such a provision would be a great deal more effective than allowing young offenders to sit in cells 23 hours a day. The technical training courses and the counselling would not go beyond the scope of existing government resources.

Nor should we ignore army training courses which teach young servicemen every possible skill from plumbing to sophisticated information technology. It may be that those training courses could be channelled into such a scheme as part of the oft-quoted peace divided.

Further educational opportunities are provided by large companies which run training courses to a strict syllabus. Why could those courses not be incorporated into the scheme? Offenders trained to those recognised standards would then have an opportunity to go immediately to the company for employment.

The Bill allows for privatisation, which I welcome. Perhaps as an initial step the company applying for a licence should prepare a suitable scheme on those lines. It is a scheme which at present is largely outside the prison environment and would not therefore clash with existing interests. I hope that it may be possible to introduce an amendment in Committee on those lines. With those words, I welcome the Bill.

7.31 p.m.

Lord Gisborough

My Lords, the White Paper states that the Government will give the courts more flexibility in dealing with offenders in the community. There will be new powers to combine fines with probation and community service. Perhaps I am wrong. I hope that I am, but it seems to me that much of the Bill still ties the hands of magistrates behind their backs when dealing with offenders.

Over and over again the public blame magistrates for being too lenient while politicians think that they send too many people to prison. In my experience magistrates fall over backwards to find a positive solution to punishment if one exists. The most constructive solution would often be to combine punishment with a corrective disposal, but usually that is not allowed and the villain has to be punished with one or the other.

Every case is so different that flexibility and as wide a choice as possible are vital to the magistrate. More confidence could be placed in the desire of magistrates to find equitable solutions to often insoluble problems without tying their hands. The Bill does not free the hands of magistrates to adopt enough combinations of disposals.

A custodial sentence will be far more difficult to impose. I suspect that it will no longer be possible to deal with a persistent offender who disregards the law and is charged with an offence which is itself not suited to a prison term. Many of the concepts in the first six clauses may not be helpful or constructive, nor do they comply with the aims of the White Paper.

Clauses 1 to 3 in particular are not expressed clearly, and without simplification there is likely to be confusion when it comes to sentencing. The problems of the 1988 Act could well be repeated.

There are other inconsistencies which can be discussed in Committee. There is the question of provision of probation officers. Do we believe that probation has a reasonable measure of success? If we do, it must be a cheaper method of dealing with people than prison and a great deal more constructive. However, there is great concern that the new rules will result in an inadequate number of probation officers.

I shall introduce an amendment to enable someone who has been fined to be given work at his own request in order to pay off the fine. That is the same scheme which has repeatedly been rejected by the Home Office, but it must be right to exact payment of a fine as soon as possible by work rather than through protracted and expensive recovery over a number of years. It must be desirable to enable a man who has been fined to retain disposable income to pay for damages and maintenance. It cannot be bad to have an unemployed villain tied up working rather than on the street waiting for an opportunity to commit further crime to relieve his boredom and help with his finances. I have every confidence that the amendment will be rejected, even though all of the objections to the scheme have been satisfied.

Part III of the Bill deals with children and young people. The main criticism is that it does not comply adequately with the recommendations of the Pigot Committee. No provision has been made for pre-trial out-of-court hearings where children can be examined and cross-examined in a place and in conditions which are not frightening and subduing to the child. There have been many cases in which enormous time and expense have been incurred in preparing a case only to find that the child is so overawed by the atmosphere of the courtroom that he or she breaks down and the case has to be abandoned.

There is also no provision in the Bill for drawing up a code of practice to regulate the sensitive area of pre-recorded video evidence. The Bill continues to make a distinction between child victims and those who have witnessed violent and sexual crimes despite clear evidence of the damage caused to all children who witness abuse. Removal of that distinction would ensure that all children distressed and traumatised from whatever cause would receive sympathetic treatment.

There is also the question of delay. The Bill does nothing to reduce the time taken to bring a case to court. It is hard for an adult to remember with determination the fine details of an event after a year and particularly to maintain that opinion against the blandishments of a defence counsel. To expect a child to do so is expecting a great deal, particularly as by then a child, or even an adult, wants only to forget the episode and not to be reminded of it.

The proposal for the binding over of a parent concerns me. Undoubtedly there are parents who would be prime candidates for binding over. However, the great majority do all that they can with their child but the child may be beyond their control. Binding over may well result in ill treatment or the child being thrown out of the family and do more harm than good. Many of the children who come before the courts come from homes which are already fragile and under stress. The parents are in greater need of help than of punishment. Binding over will have to be used very carefully if it is not to do more harm than good. However, it is good that parents should attend court with their children. It is pitiful to see youngsters in court without the support of their parents.

The Magistrates' Association welcomes the abolition of remand in custody for juveniles. I wonder what will be done with the youngster who is totally out of control and a danger to the public. I hope that there is a realistic alternative in view.

There are new rules regarding the ages of young offenders and sentencing. They may not be an improvement. However, it is indisputable that all young offenders have a great deal of surplus energy. Some activity, such as running up hills, to make them dead beat in the evenings would be a great deal better than locking them up, however difficult they are. That reminds me of my local cadets. On the last day of their camp they were given a huge amount of exercise to expend their energy so that their last night was not spent breaking up the camp.

It is absurd to talk about making profits from prisons. Time and again private enterprise has shown that it can make a return and still do a better job more cheaply than the public sector. The private sector has better access to capital from the market as and when it is required and it guards its costs more carefully.

I am interested to read that the power of search by security officers is to be confined to the removal of the outer jacket and gloves. I understand that the Scots keep their skean-dhus in their stockings, so they will be all right. Surely villains will soon find out where it is safe to hide their weapons.

There must be continual response to the lessons learned year by year in dealing with crime, though the results never indicate a cure for the disease. However, we must welcome this important Bill in principle. I hope that it is a success but it will need to be subject to scrutiny in Committee.

7.39 p.m.

Viscount Tenby

My Lords, perhaps I may preface my remarks by declaring an interest as chairman of a medium-sized Bench of some 85 magistrates in Hampshire.

We have now seen the proposals outlined in the government White Paper Crime, Justice and Protecting the Public brought to life in this important Bill, which among other things seeks to remove less serious offenders from the prison system and give them punishment and rehabilitation within the community.

As someone who had the honour to make his maiden speech in this House on the subject of alternatives to custodial sentencing, I can scarce forbear to cheer, and I congratulate the Government on the main thrust of their proposals. It is surely right to do so in general terms since inevitably and properly in what is, after all, a revising Chamber attention is concentrated on perceived weaknesses once detailed proposals are put forward. However, I am sure that, whatever imperfections have been and will be pointed out, nothing can detract from the fact that this is a very important Bill which will advance our interpretation of criminal justice for years to come.

At this late stage, when spirits are flagging and much ground has been covered, with some ground remaining, I shall confine myself merely to one or two points which are of particular concern to magistrates. I turn first to the subject of fines. Much has been made of the fact that in 1989 nearly 17,000 offenders were imprisoned for fine default; that is one fifth of the total number committed in England and Wales. But that figure must surely be taken in context of the fact that 97 per cent. of all summary offences— that is, offences before the lower courts— are settled by fines.

I should like to add that last year in my own courts only 1.6 per cent. of fine defaulters were sent to prison. That fact needs to be emphasised. A fine is a civilised, appropriate and cost-effective penalty for the vast majority of minor offences. But if fines are evaded on a large scale, the fine system is brought into disrepute. Magistrates will inevitably tend to use it less, taking up other sentencing options, which are allocated only limited resources.

The fact is that there is an extraordinary twilight world of persistent— I am tempted to use the word "professional"— offenders. They survive by making use of the system as it now exists, each time avoiding — sometimes by a hair's breadth— the finality of prison and calculating and exploiting the reluctance to imprison of an essentially compassionate Bench. Indeed, it is quite difficult to get sent to prison. I suggest that that tiny minority needs at least metaphorically to be shown the prison gates. In most such cases even a week's imprisonment can have a very salutary effect. Indeed, visible encouragement— for example, the presence of a prison van with its engine running— itself is enough to unlock undreamt of riches from those who previously pleaded total poverty. I recall an episode— not in my court— where that was actually done and the press of offenders wanting to pay their fines was so great that two tables had to be set up on the lawn outside the courthouse in order to accommodate the stampede.

I accept that short sentences can disrupt Home Office costings on value for money. But is that sufficient reason for rejection of a last resort? Of course serious offenders must receive serious terms of imprisonment. But there are other circumstances in which a sentence of imprisonment may be appropriate to protect the public: for those who drive repeatedly while disqualified and for other offences where there is quite simply no alternative. I once had the unpleasant task of sending a lady to prison for the offence of driving while disqualified, committed for the seventh time. We must protect the community in which we live and for which we bear a responsibility.

The next few years will see something of a revolution in fine sentencing. The adoption of the unit fine system, which has been generally welcomed by magistrates and which tailors the fine to the ability to pay, will be an important step forward in uniformity of sentencing. As I said in an earlier debate on this subject, while the sum of £ 100 is of little significance to many, to others it can be a financial Everest. We must, however, be careful not to be so obsessively fair toward the lowest income groups that we correspondingly disadvantage others. I should point out that the imposition of a fine of, say, £ 100 or even less for drunken driving, while in some cases understandable in terms of realism and relevance, nevertheless may diminish the seriousness of the offence in the eyes of a nation which is only just beginning to accept the implications of such anti-social behaviour.

The proposal in the Bill to enable the court to order deductions to be made from income support are long overdue and exceedingly welcome. More offenders are in receipt of income support than are in receipt of regular wages. Nevertheless, employed offenders comprise an important part of those sentenced. It is possible for a court to issue an attachment of earnings order on such people. However, many employers are reluctant to co-operate and the penalty for non-co-operation is, I suggest, ludicrously low. It may be that measures can be taken to remind firms of their obligation to the community in this respect.

Regrettably, another aspect of fine evasion— the premeditated change of jobs to throw enforcement officers off the scent— is more difficult to deal with. Requiring offenders to reveal their national insurance number, for example, or a more positive liaison with the tax authorities in the matter of pay and PAYE might bear fruit.

I turn now to another aspect of the Bill which will have a major impact on the magisterial service; namely, the new measures envisaged to bring the principle of parental responsibility within the legal framework and put it on a more formal basis. The recent Home Office survey on this subject, whose findings so surprised the Minister in another place, indicated a fundamental change in the way in which people nowadays perceive crime prevention. Of those questioned, 53 per cent. identified parents as the prime influences in preventing crime, compared with teachers and the police. Concentration on parental responsibility therefore rightly has an important place in these considerations. But the theoretical acceptance of that principle does not automatically carry with it endorsement of every detail, as I understand was said earlier by the noble Lord, Lord Elton.

Let us examine the proposal to bind over a parent (or parents) to ensure that his or her child should be of good behaviour. Magistrates already have that power but it is only rarely used. We should ask ourselves why. Can it be that the troops in the front line are telling the general staff that in this imperfect world the objective is not attainable? There are two good reasons for the magistrates' reluctance. First, it can lead to protracted cases with many disputed matters and much emotional bloodletting. Secondly, such events usually take place within the most vulnerable, often one-parent, families where any additional pressure can blow apart remaining family links, even leading to children leaving home and perhaps more candidates for London's pavements and shop doorways. Noble Lords can imagine the relevance or indeed the justice of binding over in a certain sum a single mother in an inner city area whose two physically precocious sons of 13 and 15 are already streetwise (if I may use that term) and effectively are already beyond parental control.

The Bill makes clear that the Bench will have discretion in such matters, but I believe that the perceived threat of possible action by authority will be an unfair burden on the accused. Many such parents will also inevitably belong to the lowest income groups and will simply be unable to pay any fines imposed. Are they to go to prison? Additionally, I should like to see at least a nod from the Government toward the idea of a parallel educational programme designed to bring home parental responsibility to those groups most at risk of offending.

Having uttered those caveats, however, I heartily endorse the tougher stance on parental responsibility, even if at the end of the day it results only in those parents of means who refuse to accept their responsibilities being brought to account. I have to warn, however, that over the entire field our keen original expectation may not he realised. I am sorry to say that.

I must be careful about reference to my next point since the reverse side of the coin has already been referred to. I leave that to one side. Another measure ensures that courts sentence only on the matter before them so far as concerns the penalty to be imposed without regard to the offender's previous record. I wish to complicate matters by making another plea: that where an offender has a previous record the court can take into account the amount of time which has elapsed since the last recorded offence as an aid in deciding possible mitigation. Such consideration works both ways.

May I finish by referring to the substantial additional pressure which the new measures will impose on an already overburdened probation service, which in my experience is a dedicated body of professionals who do a first class job. We already know that the emphasis has switched from their being used as a branch of the social services and that it is the future intention that they should play a major role in the rehabilitation of serious offenders. All community orders will require a preliminary social inquiry report. They must also supervise probation orders, curfew orders, attendance orders, CSOs and combination orders.

More reports and more supervision will inevitably require more probation officers. Although the estimated costings are attached to the Bill, my instinct tells me that the financial forecasts err on the side of optimism. They usually do. I state that now— when no one really knows the final costs— not as a criticism but as a plea to the Minister to ensure that the excellent intentions of the Bill are not frustrated by future financial restrictions resulting in the exercise going off at half cock. I hope that the Minister will assure noble Lords in his customary helpful and courteous way that the money will be found if required— as it almost certainly will be.

The Bill is a massive step forward. Let us not spoil it either by unreasonable intransigence over detail or by penny-pinching in its implementation.

7.53 p.m.

Baroness Flather

My Lords, at a moment when the House is about to consider wide ranging and important changes to the criminal justice system, I believe that it is essential that I too bring to your Lordships' notice the concerns of the ethnic minorities.

At present there is a strong suspicion among minority groups that they are unfairly treated by the courts. That feeling has built up over a long period. We cannot write it off simply as a figment of imagination. There is a substantial body of research which not only supports that view but shows that matters are becoming worse.

I do not speak of the level or types of crime but of a comparison of the treatment between white and black offenders on a like-with-like basis. Studies show that black people are more likely to receive custodial sentences as opposed to community service or probation. They are likely to receive custodial sentences at an earlier stage of offending than their white counterparts. They are also much less likely to receive bail than their white counterparts in similar situations.

There is no suggestion, nor will there ever be, that there is anything deliberately discriminatory about the way in which the courts deal with ethnic minorities. It is only that there is sufficient information available to cause disquiet about the way in which they are treated. Discrimination can occur from the way institutions function. I give as examples the forms that may be used, the procedure that may be employed and perhaps the expectations that officials may have.

I spent 19 years on the Bench. I can give many instances of how the lack of knowledge and understanding of my colleagues might easily have led to unfairness. I am very grateful to the Lord Chancellor for encouraging training in race-related matters not only for the magistracy but also the judiciary. It is clear that there is no cause for complacency. Anything which helps to improve matters must be desirable.

It is proposed to introduce two clauses at Committee stage which will place a duty on those involved in the process of criminal justice, and those administering it, to make sure that everyone is treated in a manner free from racial discrimination. In this country we strongly believe that not only must justice be done, but that it must be seen to be done.

There are already procedures for declaratory clauses about which noble and learned Lords in this Chamber know far more than me. There are also many matters to which judges must have regard when considering sentence. Placing racial discrimination on the checklist can only prove helpful.

Sentencing has become a complex matter and is a subject of much academic discussion. As my noble friend Lord Ferrers stated, there is continual effort to achieve consistency. However, we know that that is not always perceived to be the case when the offender is black. It would give the minorities a sense of confidence to know that Parliament has asked the highest in the land to make doubly sure that the sentence passed is merited. If the ultimate purpose of punishment is the rehabilitation of the offender, then that will result only if the offender feels that his punishment is just and fair.

Such a clause will also give the defendant an opportunity to go to appeal where, all things being equal, there is no apparent explanation for a difference in treatment. I believe that that is probably the most important and significant right which would arise from the inclusion of a clause on racial discrimination. It will also go a long way towards alleviating the sense of grievance from which many suffer now.

I am grateful to my noble friend Lord Ferrers. It was a great comfort to hear that no racial discrimination will be tolerated in our criminal justice system, and that the Government are determined to ensure that that is so. I am also grateful to the Government for agreeing to Clause 79(1) which requires the publishing of information to facilitate the avoidance of discrimination. The right reverend Prelate the Bishop of Liverpool argued robustly for a non-discrimination clause and for the monitoring of information collected under Clause 79(1). Clearly, without proper monitoring, the information would not be of value. I strongly support the right reverend Prelate on that issue.

Since we are so close on the intention to avoid racial discrimination, the simplest way to make sure that all concerned are left in no doubt is to embody such provision in the Bill. There is no suggestion that there is at present any conscious discrimination. I am well aware of the judicial oath and the duty that it lays on judges to act impartially. However, that alone cannot take the place of the clearest possible message which only Parliament can send to the nation: that no one is exempt from the need to act in a non-discriminatory way and that the criminal justice system is subject to such a requirement. Such a message will allay the fears of minorities and give them greater confidence in the administration of justice. It will serve to put the nation on notice that racial discrimination has no place in society.

I urge the Government to reconsider the point. If all is well, nothing will change in practice. However, if change occurs we shall know the true value of making such a clause part of the Bill.

8 p.m.

Baroness Faithfull

My Lords, I wish to begin by commenting on Part III of the Bill which concerns child evidence and parental responsibility. The Government are to be congratulated for having set up the advisory group on video-recorded evidence under the chairmanship of Judge Pigot. After reading Hansard of another place, it is clear that a number of the recommendations made in the Pigot Report have been accepted. Notably, abused children will be able to make their initial statement to two people (possibly a member of the police force and one other person) who have been well trained in legal matters and in dealing with children. Therefore a video-recording will be made of the initial statement and will be made available to the abuser, to his legal advisers and to the court.

Unfortunately, Ministers in the other place did not accept a recommendation made in the Pigot Report. It was that the cross-examination of the child should not take place in court. It was recommended that it could take place in a judge's chambers, or in a room with double glass, so that the abuser and his legal advisers could see what was happening. The child could be cross-examined in the presence of the judge and the abuser's legal adviser—

Lord Mishcon

My Lords, I interrupt the noble Baroness in order to be helpful. I know that her speeches are always read with great care outside the Chamber. She continues to talk about the abuser rather than the alleged abuser and I believe that she might wish to correct herself.

Baroness Faithfull

My Lords, I stand corrected and I thank the noble Lord.

Looking round the Chamber I see some members of the Bar who disagree with me because they consider that the child should not be cross-examined anywhere other than in open court. There are other members of the Bar who agree with the recommendation of the Pigot Report. I say with deep conviction that the damage caused to a child by giving evidence in open court goes far beyond anyone's realisations unless they have dealt with that child.

If the first hearing can be carried out as soon as possible after the initial statement is made, the court is more likely to obtain the truth. I have known parents, mothers, persuade their children to say something different as time goes by. I have known children to embroider or to forget what was said in the initial statement. Other noble Lords have spoken on the subject and I believe that my noble friend Lord Mottistone, who is closely connected with the NSPCC, will have more to say about it. I hope that your Lordships' House will support an amendment to the Bill which will enable children to give evidence in a private room.

Several noble Lords, notably the noble Viscount, Lord Tenby, have talked about the responsibility of parents. It is strange that although the present Act provides that parents can be bound over and fined, a provision has been included in this Bill. I know that the Magistrates' Association feels strongly that it has adequate powers to deal with the situation.

I make a personal recommendation. As was said by my noble friend Lord Gisborough, it is most distressing to see children attending alone to face the court. More often, the mother alone attends and therefore she carries the can. The Government are saying that they support the family; but fathers have not been sufficiently involved in the care of their children. That is so in many spheres but particularly so in this one. Will the Government therefore consider, and the Magistrates' Association accept, that at least one court should be held in the evening or on a Saturday in order that fathers as well as mothers can attend? That would provide for a great deal of joint responsibility in the care of children.

I wish to comment on guardians ad litem, although I find difficulty in doing so because there is joint responsibility. There are many guardians ad litem in this country, but the whole country is not covered by them. It has been suggested, and I make no comment about whether it is wise, that guardians ad litem, who are the servants of the court, should be paid by the Lord Chancellor's Department and not by the local authorities, many of which are short of resources. That presents a serious situation in some parts of the country.

I turn to the mentally impaired who are held in prison. The Butler Report was published in 1972. It recommended that secure units for the mentally impaired should be run in isolation from the prisons. That category represents 5 per cent. of the prison population and that is totally unacceptable. Only 600 places are available throughout the country. There should be remand units for the mentally ill and impaired and no alleged offender nor anyone found guilty should be diverted to prison. The time has now come to take a firm hold on the situation that has existed since 1972.

I have spoken on the telephone to many psychiatrists in charge of mental hospitals. I understand that under the Mental Health Act they can refuse to accept a patient. Perhaps that is right and therefore the situation should be turned around. I wish to table an amendment to the Bill providing that no mentally impaired offender or alleged offender should be admitted to prison but should be admitted to a secure unit. I fully acknowledge that if such an amendment were accepted there would be great resource implications. However, I have worked in a prison and I know that the presence there of the mentally ill is a source of great anxiety to the warders. In addition, it does not make for happiness in the running of the prison. I suggest that we should not have so much trouble in our prisons if the mentally impaired were not there. Therefore, any cost expended would be cost-effective in the long run.

Will my noble friend explain what is being done about prisoners who have AIDS? I was asked to put the question by a number of medical colleagues. If a prisoner is known to have AIDS, he is shunned by other prisoners despite the fact that often he is not ill. I hope that in setting up secure units for the mentally ill and impaired we can also consider the treatment of AIDS patients. I have worked at Grendon Underwood. I believe that very positive help is given to the men there. However, in Birmingham there is an institution called the Gracewell Clinic and Gracewell Institute. That has been set up with private money and is a purely voluntary organisation. That was very costly and it has received little help and not much encouragement from Her Majesty's Government. I regret that no Minister has visited it.

I have a letter from the clinic which says that it has received 526 referrals mostly from probation officers who want the clinic to take in men who have been found guilty of sexual abuse. Those men have received treatment at the clinic. To date, the cases of all the inmates have been followed up and not one has been found to have carried out further abuse. Therefore, there will be a decrease in the number of men in this country going to prison.

If a man who is convicted of sexual abuse goes to prison for two years, his wife deserts him, perhaps understandably, and when he comes out of prison he goes to a different part of the country where he commits further sexual offences against children. I ask the Minister whether he will acknowledge the work of the Gracewell Clinic; and I hope that a Minister will visit it. The clinic treatment would bring down the number of men in our prisons.

There are many other matters which I should like to raise, but the hour is late. Therefore, I ask that the matters which I have raised should be looked at.

8.12 p.m.

Lord Henderson of Brompton

My Lords, I should very much like to follow the noble Baroness, Lady Faithfull, in what she has said, which was mostly related to Part III. However, I shall concentrate on Parts I and IV and speak particularly about diversion. Before going on to that, I should like to say that I agree with many of the remarks which the noble Baroness made. To take the last first, I approve of her puff for the Gracewell Clinic and I hope that her hints to the Minister will take effect and that a Minister from the Home Office or perhaps from the Department of Health will visit the clinic.

I am also very much in favour of the proposals of the noble Baroness for evening courts, which seem very sensible for anyone who has a family. I support what she said about Clause 48 and the Magistrates' Association's anxieties about that. I shall certainly support any amendment which she tables in seeking to preserve what they have but not to impose a duty to exercise that power.

Perhaps I may congratulate also the noble Baroness, Lady Flather, on what she said. She will certainly have my support, if she wants it, on any amendment which she proposes dealing with race relations. I am chairman of an association called Action on Youth Crime. Last year we produced a very good fact sheet on racial discrimination which I shall ask the association to send to her. It is a mine of information which we may be able to use in our discussions on the subject.

Part I deals with the power of the court to deal with offenders and Part IV deals with the provision of services. I reiterate and buttress the statements made by the noble Lord, Lord Elton, speaking as chairman of the IT fund. I am a member of that body and I have absolutely no doubt about its value. If Part I is to be followed through— and the main thrust of this is to keep people out of the criminal justice system— it is absolutely essential that there should be support for IT schemes all over the country, which the IT fund has helped to initiate.

As I have said already, I am chairman of Action on Youth Crime. That was founded three years ago to try to press for a reduction in the use of custody, especially for young adults between the ages of 17 and 20. Of course, we are delighted with the Bill before us. We wish to congratulate the Government on bringing it forward and any amendments which I table are designed to strengthen and not in any way to weaken the Bill, especially in regard to Clauses 1 and 4.

The House may like to know that the composition of Action on Youth Crime is represented across the board by those who serve the courts. The chief officers of probation are represented by their association, as are the directors of social services— the two most prestigious bodies of the statutory services. Added to that, there are representatives of NACRO, the National Children's Home and the Rayner Foundation. Therefore, on that body are represented all those responsible for the success of the provisions of this Bill in practice in the youth courts. I do not mention those bodies which are there already and which play the primary role— the magistrates' courts and the Crown Courts. As I say, I welcome the Bill.

I shall restrict myself to three aspects of the Bill which I should like to improve. They are all related to what may be called "diversion"; namely, keeping people out of the criminal justice system.

First, I propose that the cautioning of young adult offenders, which has been given such a good fillip by the 1990 Home Office circular, should be placed on a statutory basis. As your Lordships may know, a caution is a formal verbal warning given by the police instead of a prosecution in court. Of course, a finding of guilt would result in a young person having a criminal record.

An Action on Youth Crime fact sheet, which will be published tomorrow, shows a sharp decline in the use of cautioning between 16 year-olds, who are still classified as juveniles, and 17 year-olds. Over 52 per cent. of 16 year-old offenders were cautioned while only 23 per cent. of 17 year-olds were cautioned. That cannot be right. Why should there be a sudden dramatic decline once the age of 17 is reached? There is no substantial difference in the kind of crime committed by people between the ages of 16 and 20 and yet they are being dealt with quite differently by the criminal justice system.

Generally speaking it can be said that the disparity of treatment becomes greater— or worse as I would say— as one grows older. It is generally agreed— and certainly it is Home Office policy— that cautioning is an efficient, effective and economic way of responding to offending. The treatment, if it can be so called, is only given to those who commit relatively minor or opportunistic offences. If it stops people becoming involved in the criminal justice system it must be worth while. Therefore I should like to put it on a more statutory basis and give it more teeth and authority.

Secondly, at a recent conference of Action on Youth Crime it became abundantly clear that the new youth courts would not work effectively unless they had a strong steer from central government, after consultation with the appropriate departments in Whitehall. I should like to table a new clause in Part IV of the Bill to set up an interdepartmental national youth crime policy committee— chaired by a Home Office Minister— to draw up minimum standards for services for young offenders and to produce authoritative circulars. I should like those circulars to be authorised by Parliament in the form of regulations. They should be given effect to through local joint youth planning committees. One cannot have effective implementation of central government directives unless one has proper local bases. It would be their duty to put the Government strategy and policy in place in their area and ensure that the basic services and standards laid down were available.

Thirdly, and following from that, nothing can come of the Government proposals, however admirable, without the necessary resources provided by central government, which should be ring-fenced. Everybody at the conference to which I referred was deeply anxious about both the quantum of money to be made available and the channels through which it would be provided. Perhaps I shall table an amendment so that we can discuss resources in Committee. At this stage I shall illustrate how the Government have underestimated the amount of money needed to implement their proposals in the Bill.

Probation services are told that there will be an increase of 12 per cent. for the new duties to be laid upon them. Today I discussed with a senior probation officer from the North East and Yorkshire what those cash limits would amount to in his area. He said that, if there were strict application of the cash limits, far from funding the new services, the allocation would result in a total elimination of one out of the seven probation services in the area. That is a stark indication of the Government's underestimate of the resources required by the provisions in the Bill. I have received a letter from the chairman of the Magistrates' Association which lays special emphasis on resources and which bears out my remarks.

If it were not so late I should enlarge on a number of the points raised which I support. I have indicated some raised by the noble Baronesses, Lady Faithfull and Lady Flather. However, I should add that I have doubts about the parental responsibility proposals in the Bill, which would have the effect of undermining responsibility and not bolstering it. There is a need for bail support programmes; for an extension of the unit fine system in Crown Courts; for more psychiatric reports and for the abolition of prison for fine defaulters.

That concludes my shopping list and I give way to the next speaker.

8.25 p.m.

Lord Mottistone

My Lords, I shall try to be brief. In relation to this Bill I am advised by the Magistrates' Association, the NSPCC and the National Schizophrenia Fellowship, organisations which are fairly different from each other. I shall touch briefly on the points that they raise and which I strongly support. However, before I begin perhaps I may say that they all believe, and I agree, that the Bill in the round is a great advance. Many other noble Lords agree that the Government are to be congratulated, though there may be areas in which we shall seek amendment. I support specifically the principle of community-based sentences whenever possible and a reduction in custodial measures, as well as the principle of parental responsibility. However, like my noble friend Lord Gisborough, I believe that Clauses 1 and 3 should be expressed more clearly and simply. That will be difficult to do for we shall be up against the parliamentary draftsmen. But that is what is necessary. Community sentences must be credible and realistic in the eyes of the public, the judiciary and the offender if they are to suffice as alternatives to custody. That is a point touched upon by other noble Lords.

Part I of the Bill covers also the difficult problem of how best to deal with the mentally ill people found guilty of criminal offences. As was mentioned earlier, my right honourable friend John Patten clearly stated at the Committee stage of the Bill in another place that he wanted fewer mentally disordered people in gaol. He indicated that he would bring forward appropriate amendments on Report. That was not done. Perhaps the Government plan to introduce amendments in this House. I hope so.

As I have said on other occasions in this House, I have been told from various sources, including the Probation Service and the National Schizophrenia Fellowship, that up to 25 per cent. of prisoners in certain prisons are mentally incapable. Even if they are not classifiable under the Mental Health Act, as seen by the probation officers dealing with them they clearly cannot cope with everyday life. They are out of place in prison. Together with the people who are, if I may put it this way, genuinely mentally ill, they should go to other places.

The Earl of Longford

My Lords, perhaps I may interrupt the noble Lord. Would he agree that many such people do not want to go to hospital and be called nutters? They would rather stay in prison. More emphasis must be laid on an improvement of the prison medical service.

Lord Mottistone

My Lords, we do not want interruptions because it is becoming late. However, I do not agree with the noble Earl. I am not saying that they should go to hospital but that they should go somewhere else. I am not specifying where, but it should not be prison. That is the important point.

With regard to Part III, in which both the NSPCC and the Magistrates' Association have an interest—this was touched upon by many of my noble friends and the noble Lady, Lady Kinloss—we must tackle again the proposal raised in another place that a child's evidence may be taken by video recording at a preliminary hearing of the proceedings. That was expanded upon by other Members of your Lordships' House, mainly noble Ladies. But perhaps I may briefly mention the Pigot Report. What is needed in the Bill at this stage much of the report having been included in the Bill both originally and by amendment—is provision for the introduction of a preliminary hearing system; for the introduction of a code of practice; for judges to record their reasons in writing when they refuse to admit video recorded evidence, and for children to have the right to testify by TV link rather than that being at the judge's discretion. All those points will be the subject of amendment in due course.

On another matter relating to children and young persons, Clause 49(1) introduces a duty on the court to exercise powers to bind over a minor's parent or guardian. Magistrates' courts already have the power to bind over, and wish to retain it, though it is rarely used. Binding over of parents could lead to imprisonment, which would make a difficult situation much worse. Indeed, it would seem to me to run counter to the philosophy of the Bill.

In that connection, if my noble friend the Minister can get his officials to obtain for him the March issue of The Magistrate, the magazine of the Magistrates' Association, he will see that on page 33 there is an excellent article on this subject entitled Punishing Parents for their Children's Sins by the director of the Aycliffe Centre for Children. I commend it to the Minister and to other noble Lords.

I welcome the intention to end the remanding of juveniles in custody. However, it will be necessary to have an assurance that adequate secure accommodation for juveniles is made available for all courts as soon as practicable. That is quite a tall order, but it is what is necessary. It is also necessary to have clarification of the respective powers of the courts and social services departments regarding juveniles remanded with a security condition.

All the points that I have raised, and several others, will be the subject of amendments in later stages of the Bill. I hope that, when we get to that stage, the Government, who in another place seem to have been as understanding as they could be about this Bill, will be able to give favourable consideration to all such amendments.

8.31 p.m.

Earl Howe

My Lords, this important and wide-ranging Bill is the product of much consultation over a period of years and is therefore very much to be welcomed. At a time when our prison facilities are being stretched to the limit and custodial sentences are no longer regarded as a natural remedy but rather as a sterile and often damaging experience, it is absolutely right that we should take a critical look at the types of penalty which our courts have at their disposal and create, if we can, a natural reflex action against prison and towards more constructive forms of punishment for all but the most serious crimes. This is the heart of the Bill, and with the leave of the House this is the part that I should like to talk about tonight.

As my noble friend the Minister and other noble Lords have said, the framework of sentencing which we are now considering has one underlying theme, that a convicted offender should receive his just deserts. This means that the type of sentence meted out by a court should be governed primarily by the gravity of the offence and to a secondary extent—most graphically in the case of unit fines—by the offender's private circumstances. It also means that an offender's previous criminal record should not influence the sentencing decision one way or the other, unless it tells the court something directly relevant to the new offence. I differ from other noble Lords in finding this provision perfectly comprehensible and fair. It means, too, contrary to the stated preference of my noble friend Lord Boyd-Carpenter, but rightly in my humble opinion, that one of the old but quietly rotting planks of penal theory, that of deterrence, is being cast aside.

However, proscribing a deterrent element in sentences is not the same as saying that punishments within the bounds of just deserts, particularly heavy prison sentences or substantial fines, should not serve as a warning to those who contemplate crime. In sentencing offenders, the courts are making a statement about society's attitude to different crimes, a statement which can alter over the years in response to changing public opinion. One hundred and fifty years ago sheep stealing was a serious crime; insider trading was not. Average prison sentences for sexual offences have lengthened noticeably in the past 10 years, reflecting an undoubted hardening of public attitudes. I happen to feel, in common with others of your Lordships, that this is a retrograde trend. But the point is that the way we have traditionally expressed public opinion is to give our courts freedom to impose sentences within limits carefully defined by Parliament, the maximum sentence for each type of crime being in itself a measure of its gravity and of the relativities which we can usefully identify.

The Bill refers to a framework for sentencing. That word is surely appropriate. We are not talking about a framework so dense and rigid that it is effectively a cage. I have listened with care to noble Lords who have advocated the idea of a sentencing council, and I shall continue to listen with care to later statements, but I am bound to say that I have grave doubts about it on the basis of what I have heard and read so far. I am not a lawyer. My training is in banking, so I suppose I tend to look at a new idea in terms of a balance of risk. With this idea the risks look more like certainties. Consistency in sentencing is a worthy aim, but not at the price of pigeonholing offences in a way that takes no account of aggravating or mitigating circumstances in particular cases.

One has to assume that a sentencing council's pronouncement would be both detailed and binding —otherwise there would be little point in it—but I cannot help feeling that it is idle trying to compare the relative wickedness of burglary by Mr. X and unlawful wounding by Mr. Y. One would get bogged down in circular and very subjective arguments. It is as though people feel that there is out there some platonic form of justice, perfectly cross-referenced and credit-scored, whereas justice in sentencing, though it may require the benchmark of precedent, actually differs subtly from case to case.

Towards the end of last year I read a newspaper report that a man in America had been sentenced to 10 years in prison for a sexual assault. You might suppose that there was nothing remarkable in that until you read further and learned that his offence consisted not of attempted rape or molesting unsuspecting women in the street but of tweaking two lady colleagues on the bottom. This might be laughable if it were not so serious, the court having apparently been hidebound by a definition of sexual assault as opposed to passing a sentence for the harm actually done. I admit that that is an extreme case, but it highlights what can happen if judicial discretion is diluted or removed. It reinforces my unease about a proposed system which smacks of judges being told what to do in particular cases, even if the people telling them are other judges.

This is not to suggest that magistrates and judges should be isolated from the world or denied access to a flow of information about the effectiveness of sentencing practices. Indeed, at a time when new penalties are being introduced, it is all the more essential that judges should be able to exchange views with probation officers, police and those who administer sentences at the sharp end so as to keep abreast of what is going on.

The Judicial Studies Board and the Magistrates' Association already serve an important function here which perhaps could be widened. Judges also need to be kept informed of developments in the treatment of certain types of offender. I am thinking especially of sexual offenders, where public opinion can be most at variance with the views of those who know what can be done to rehabilitate such individuals. Pioneering work is taking place at the Gracewell Clinic in Birmingham, as my noble friend Lady Faithfull has mentioned, by a team which maintains that certain types of sex offender can respond well to extended programmes of therapeutic treatment designed to change attitudes and behaviour patterns and so lessen the risk of re-offending.

It was encouraging to read in The Times last week about Home Office plans to commence pilot schemes in five prisons which will apparently be modelled on techniques established at the Gracewell. They go far beyond anything being attempted in our prisons at the moment. I hope that that will give comfort to my noble friend Lord Campbell of Alloway and others and that there will be an opportunity to discuss other aspects of this initiative at later stages of the Bill.

However, this is an area which bears very closely on one of the Bill's more difficult features—which is at least difficult for me and I think for others of your Lordships. It is the proposal that for sexual and violent offenders the courts will have extra powers to impose a longer sentence than the offence deserves if they decide that the public need to be protected. There are two reasons why that idea needs to be unpicked especially carefully. One is that it runs directly counter to the principle of just deserts which is otherwise a consistent theme of the Bill. The noble Lord, Lord Richard, made reference to that. The other is that it confuses two strands of thought—that is to say, the severity of a prison term appropriate to a particular offence and the need to keep certain types of prisoner behind bars to protect the public. To be consistent, what we should be looking at is a way of placing additional sanctions on a prisoner's eligibility for discretionary parole.

Because the Bill postpones the point at which prisoners in general become eligible for parole, there is every reason for sentences as a rule to become shorter and not longer. But even if that does not happen, the sentence should be what a violent or sexual offender deserves: how much of that sentence he serves in prison can be determined separately. Paedophiles and similar types of sex offender are particular cases in point. If they are willing to undergo therapy at the Gracewell Clinic or in prison and that therapy is going to help them control their criminal behaviour, the whole question of protecting the public falls away.

Clause 37 of the Bill seems to recognise that an extended period of supervision is desirable and necessary for a sex offender released on licence. What it does not do is acknowledge that there are important distinctions to be drawn between various types of sex offender and that those with treatable personality disorders, not mental illness, should not necessarily be bracketed with others who are more intractably wicked. It is not enough to leave the courts to distinguish the treatable from the untreatable because, as we know from therapeutic prison regimes like that at Grendon Underwood, an offender's ability and readiness to respond to treatment may emerge only when he is well into his sentence. Meanwhile, he could be somebody who has been labelled a particular danger to the public and received in consequence a longer sentence than the offence deserves.

There is scope here for some additional flexibility in the sentencing framework for sex offenders if the Government are serious in their wish to put the emphasis on remedial therapy as much as on containment. In an ideal world public confidence in the criminal justice system is determined by how effective that system is in dealing with offenders and ultimately in bringing down the levels of crime. In that sense it is often for Parliament and the courts to give a lead and to carry public opinion with them in the process. With this Bill that lead includes devising alternatives to prison that are rigorous and demanding as well as being a force for good in the offender himself so as to reduce the chances of his re-offending.

In that context I would like to think that we get closer to real justice in sentencing by having a well-informed judiciary whose terms of reference include both choice and flexibility in the penalties available. Even if by this Bill we are unable to ensure that the crooked shall be made straight, we can at least go some way towards making the rough places in the criminal justice system a little plainer.

8.45 p.m.

Lord Harris of Greenwich

My Lords, I believe that it will be generally agreed that this has been a debate of considerable quality. A number of matters have been identified by various Members of the House which cause them special concern. I think that the noble Earl, Lord Ferrers, will agree that the number of such issues identified is formidable and therefore we are likely to have a protracted Committee stage.

I join with the noble Baroness, Lady Faithfull, and the noble Earl, Lord Howe, in paying tribute to the work being done in the Gracewell Clinic in Birmingham. I am surprised to hear from the noble Baroness that no Minister has visited it. It is particularly surprising that that is so given the fact that a private citizen has put in substantial sums of his own money to help treat a very substantial number of sex offenders who have been convicted of serious offences. I very much hope that matter will be put right in the very near future.

The House will be relieved to hear that I propose to deal as briefly as possible with five issues this evening. Three of them have been discussed at length in the House; namely, the report of your Lordships' Select Committee on murder and life imprisonment, the proposed amendments to the parole system and the question of privatisation. I intend to discuss first two issues which have attracted rather less attention. One of them indeed has attracted no attention whatever. They are matters to which we shall want to return at the Committee stage of the Bill.

I refer first to the question of the mentally ill which has already been referred to by the noble Lord, Lord Richard, the noble Baroness, Lady Faithful], and the noble Lord, Lord Mottistone. The Government's policy referred to in the speech of the noble Lord, Lord Richard, at the outset of the debate is set out in the clearest terms in Home Office Circular 66/90, which says: It is Government policy that, wherever possible, mentally disordered persons should receive care and treatment from the health and social services". Following the report of the Chief Inspector of Prisons on Brixton Prison, the new Home Secretary, Mr. Baker, again drew public attention to the terms of that circular urging more co-ordinated action to divert or transfer mentally disordered people away from the prisons. However, as we are all well aware, there are still hundreds of mentally disordered offenders in our prisons. Most of them are there because of the refusal of hospitals to take them and the determined opposition of the Department of Health and its predecessor, the DHSS, to take a more positive role in dealing with such offenders.

What is the precise scale of the problem? Professor John Gunn was commissioned by the Home Office to provide a psychiatric profile of the sentenced prison population. I am told that it was submitted to the department some months ago. This is the only question to which I shall be grateful to the noble Earl for a reply: can he say when the report is to be published? Given the fact that we shall be debating these issues during the Committee and Report stages of the Bill, it is wholly reasonable for us to ask for this particular document to be published. As always, parts of it have already been leaked to the newspapers. It is wrong that we should not have this information available to us.

In the meantime the House should be aware of the price being paid by some of our sad and confused fellow citizens as a result of inaction in this area. On 18th February I raised in this House the case of a woman patient at the North Wales Hospital, Denbigh, who had been charged with arson following an incident during which she set fire to her own bedclothes. Subsequently I was given fuller information about this case by the noble Lord, Lord Reay, writing on behalf of the Welsh Office. This woman, a patient in a mental hospital, was remanded in custody on seven separate occasions from 26th November, when she first appeared in court, until 18th February, which is a period of about three months. She was held at Risley.

Then, on 18th February—curiously enough the day on which this issue was ventilated in this House for the first time —accommodation was finally provided for her at Ashworth Special Hospital. Again, despite protests from the Bench, it even took two months to provide psychiatric reports on her condition, and this concerning a woman who was an in-patient in a mental hospital. It seems extraordinary that people who are suffering from mental illness in the way this woman did should be kept for three months in a particularly tough prison department establishment such as that at Risley.

Then we had only last week the inquest on Mr. Kenneth Broadbent, a paranoid schizophrenic who hanged himself in Brixton prison. Why was he in prison in the first place? He had been arrested for not paying a £10 restaurant bill. Mr. Broadbent was held in Brixton for a month without a proper psychiatric examination by a consultant, a failure which was fiercely criticised by the Southwark coroner. The cases of just these two individuals demonstrate the gulf that exists between the Home Secretary's admirable sentiment that the mentally ill should not be in prison in the first place and the reality of the situation. As I have indicated, we shall be tabling amendments on this area of the Bill.

We shall also table an amendment to deal with the continued use of police cells to hold Home Office remand prisoners. Let me, if I may, remind the House of what Lord Justice Woolf said in his report on Strangeways. He said: The Inquiry visited the police cells at Manchester (the Central Detention Centre). While police officers appeared to be doing their best to make the prisoners' conditions tolerable, the conditions were in fact wholly unacceptable. The night before the Inquiry's visit, 101 prisoners had been held in 73 police cells. The cells had no natural light, they were small, they had an objectionable smell, they were overheated and without sanitation. The amount of exercise which the prisoners could have each day was limited to 20 minutes. The exercise area was a cage of modest size on a flat roof patrolled from above by a doghandler. The prisoners spent the major part of the day locked in their cells. They were not allowed radios",

and so on.

It seems to me remarkable that after 10 years or more of such intolerable conditions in which remand prisoners, unconvicted people, are being kept in conditions of this sort that we have to return yet again to this issue, but on this occasion with the difference that we are in a position to move amendments to a Bill precisely following the recommendations set out by Lord Justice Woolf in his report. I hope that we shall not he told that we shall have to wait for a White Paper. I am afraid we are not prepared to wait any longer for action in this area.

Now I come to the three major matters that have been discussed by many this afternoon. First, there is the report of your Lordships' Select Committee on murder and life imprisonment. Like everyone else who has spoken—the noble and learned Lord the Lord Chief Justice, the noble and learned Lord, Lord Ackner, the noble Lords, Lord Windlesham, Lord Nathan and Lord Campbell of Alloway—I favour the abolition of the mandatory life sentence. What is interesting is that not a single Member of your Lordships' House has taken a contrary position. It is also my view that judges and not Ministers should take the final decision on the release of life sentence prisoners.

As a member of the Select Committee I propose to speak on this matter in some detail during the Bill's Committee stage. I hope therefore that the House will forgive me if I do not deal with this issue this evening. I turn next to the important section of the Bill relating to parole. Like my noble friend Lord Hunt, I agree broadly with the recommendations of the Carlisle Committee. There are, as the House must recognise, some problems associated with accepting those recommendations and this particular part of the Bill. As the noble Lord, Lord Richard, rightly said at the beginning of our debate, unless there is a change in sentencing practice there will inevitably he a rise in the size of the prison population.

There is another problem as well. For the first time some prisoners under the terms of Clause 27 of the Bill will be released on parole licence automatically. This will be done at the halfway stage. I am perfectly content that that should be accepted, as was my noble friend Lord Hunt. At present of course some of these prisoners are refused parole because they have demonstrated that they are not believed to be suitable for supervision on licence or the parole board is disinclined to make a recommendation because of their behaviour in prison. As a result of the passage of this Bill, the probation service will be responsible for their supervision on licence. Now in many cases, I am sure, those periods of licence will lead to a successful conclusion of the licence by the prisoner concerned. However, others, unfortunately, will reject the requirements of their licences and will be recalled to prison.

As I have indicated, and I repeat again, I do not suggest for a moment that the Government are mistaken so far as this proposal is concerned. All I want to indicate is that this new approach could lead to a significant increase in the number of recalls to prison, and thus, combined with the other changes that we know are being brought into effect by the Bill, could lead to an increase, possibly even a substantial increase, in the size of the sentenced population.

I turn finally to the issue of privatisation of prisons, of prisoner escort services and of court security services. I see a powerful argument in favour of removing the duty on the police and the prison service to perform these two latter services. This proposal in the Bill, when carried into effect, will lead to a reduction of somewhere in the region of 1,400 police officers as far as their present obligations are concerned and a reduction in the number of about 1,000 prison officers. That seems to me a powerful argument in itself.

But of course, as the noble Earl will recognise, when we discuss these proposals in Committee we shall be asking some questions about the arrangements that will be introduced to ensure that the people concerned will be people of good character. As a report published a few years ago by the Association of Chief Police Officers pointed out, quite a number of people in the private security industry have a formidable number of previous criminal convictions, and that includes also some of the people involved in the management of private security firms. I know that there are proposals in the Bill so far as the schedule is concerned, but I think that these are matters of some importance.

I come now to the rather more difficult issue of private remand centres. When Mr. Douglas Hurd, as Home Secretary, announced his proposals so far as this was concerned I supported the idea, and I still do. I did not object in principle for a whole series of reasons. One of the best arguments appeared to me to be that in such centres—be these one, two or three —conditions would undoubtedly be infinitely superior to the conditions that exist in local prisons at the moment. But what we were talking about then was perhaps an experimental centre, with maybe a second experimental centre and so on. But I believe, as I repeat, that those centres could introduce far more civilised conditions than we have at the moment. One such centre, as the noble Earl pointed out in his opening speech, has already been earmarked for this purpose in Humberside.

But, unhappily, since that time the proposal has changed dramatically. First, we have the remarkable idea contained in Clause 72 which gives the Secretary of State the power to intervene if the "director", as he is described in the Bill, of the private sector remand establishment, has lost, or is likely to lose, effective control of the prison or any part of it". The Bill goes on to state that, in such circumstances, the Home Secretary, may appoint a Crown servant to act as governor". A private sector remand establishment is either a prison or it is nothing. It will either have high professional standards and an ability to handle disturbances or it will not. The idea of bringing in a Home Office official to take charge in the middle of a riot seems to me to be extraordinarily ill-judged. If such a situation were to arise, I believe that the Home Office should keep out of it. It should be left to the director of the establishment and to the local chief officer of police.

I turn now to a far more substantial issue. Between the Bill's Committee and Report stages in another place we had the arrival of subsections (3) and (4) of Clause 68. The drafting is, in the best traditions, almost wholly incomprehensible. What it means is that, far from limiting the Government's proposal to one or two new private sector remand establishments, they are taking power, subject only to the affirmative resolution procedure, to privatise if they so choose every existing prison in England and Wales. That is one of the most remarkable propositions that we have seen from this or any other government. The idea that we should give power to any government to introduce such proposals without detailed parliamentary scrutiny seems to me to be strange in the extreme.

We have heard in this House widespread complaints about the tendency of the Government to give themselves immense powers under similar procedures. Indeed, the noble Lord, Lord Rippon of Hexham, has made a series of notable speeches on the matter. But I can recall no other occasion when strong protest was more deserved than it is now as regards this particular issue. It is an immense pity that the Government have introduced such a divisive proposal in a Bill which contains so many sensible ideas.

There is a great deal in the Bill that we like. We hope that the Government will not only listen to constructive criticism but that they will keep a reasonably open mind when serious amendments are proposed. On the last occasion when we had such a Bill before us, the Government maintained a remarkably inflexible position during the whole of the Committee stage. I hope that we will not have a repeat performance on this occasion. However, having said that, we hope that many of the worthwhile proposals in the Bill will soon be on the statute book. They will certainly receive our support.

9.3 p.m.

Lord Mishcon

My Lords, I humbly take this opportunity to express my appreciation that so many noble Lords who participated in this most useful and interesting debate are still present in the Chamber. I say that because when I first came to your Lordships' House I was informed that it was a convention that if one participated in a debate, one stayed until the Minister had replied at the conclusion. Over the years, I have observed that that is a convention that is more honoured in the breach than in the observance. Therefore, I express my appreciation that so many noble Lords are prepared to stay until this late hour to hear me speak. After about 30 speeches have been made, a winding-up speech at this late hour is something of a misnomer. What is possibly more in your Lordships' minds is the thought that I should wind down my speech rather than wind it up.

This has been a useful debate about a Bill which, as my noble friend Lord Richard said, has many good points. There is no doubting the fact that those points have already been emphasised. But, at the same time, in the course of the debate we mentioned many matters which have been omitted from the Bill and some which should not be in it.

With regard to Part I of the Bill, many of us feel that the Government have done well in doing the job of making sentencing a very much more integrated and consistent affair. I was much moved by the speech made by the right reverend Prelate. He so often lives up to his name by being a shepherd especially as regards black sheep. Many speakers expressed the view that it is good to have consistency of sentencing. We said that we thought it was a good idea to have a sentencing council. Indeed, my noble friend Lord Richard raised that point during his speech.

However, the real objective we had was not just to ensure that fewer people went to prison, that sentences were consistent and that rules were made about sentencing; we also had to consider what is being done in regard to rehabilitation. In other words, what are we doing to ensure that people do not keep returning to prison as is so frequently the case at present? Therefore, during the course of the debate, a plea was made for rehabilitation. The noble Baroness, Lady Seear, made her contribution on the subject as did speakers from these Benches and others from the Cross-Benches.

I hope that the Minister, who is very sincerely moved by what is happening in our prisons and what is happening as regards crime in our country, will give as much attention as he possibly can to the following positive elements. I refer to the training, the rehabilitation and the helping of offenders when they come out of prison to obtain jobs. That will ensure that they retain some dignity and respectability and will give them a part to play in our society which may make them into the good citizens we all pray they will become.

When we moved on to Clauses 1 to 3, I found that there was a missing link— a lacuna. Glibly we passed over the necessity for a social inquiry report when the question arises whether there should be a committal to prison. It is easy— is it not?— to legislate and yet to forget the practical aspects of what we are legislating about. I wonder how long it will take to satisfy all those conditions before a judge sentences, however desirable it may be—and I am sure that it is desirable —to have a social inquiry report with a somewhat attenuated probation service which will be doing so much under the Bill, and which was already doing so much before the Bill even came before your Lordships' House.

I ask the Minister whether proper resources will be available to the probation service in order to ensure that those preparing the reports will be adequate in number and ability and will be paid the respectable salaries that will encourage more people into a service which is vital from the point of view of prison reform or crime reform of any kind. If the Minister puts the clause before us, I hope that he will accept the responsibility of seeing that the social inquiry reports are available in time for the judge. In the meantime, the defendant will not know what to tell his employer, except that he has been convicted and is to return a few weeks later. Will he know that there is to be no custodial sentence or will he have to say to his employer that the judge has said that he must wait for a social inquiry report and all sorts of other information? He will have to say, "I do not know where I stand. I cannot tell you whether I am going to prison". If we have such delays, shall we not be doing harm rather than the good that we intended by including the clause in the Bill?

I move to another matter which rightly engaged your Lordships' attention. It is easy to adopt the principle of parental responsibility. We all agree that in many homes parents unfortunately do not take their responsibilities as they should. Juveniles often come before magistrates in our juvenile courts. They would not be there if they had the right discipline and care and if the right things were taught at home. To walk from that stage, which is a most respectable one ethically, into putting into a Bill not just that the court can, in its discretion, call parents in front of it and, by consent, bind them over, but fine them if there is no consent, is doing something, as many of your Lordships pointed out, which is completely destructive of home and family life. It could end in the most terrible disturbance in the family that the youngster has to return to.

The Law Society has called attention to what we would be doing if the provision were passed. The moderate Law Society, of which I am a proud member, says: Not since the 13th century has there been legislation which has forced an individual to appear before a Criminal Court when that individual has not him/herself been the subject of criminal charges, and then placed that individual at risk of a financial penalty, unless he/she agrees to a proposed action by the Court". Care must be exercised in the remaining stages of the Bill before this somewhat draconian clause appears in it.

I pass to another question. I do not expect the Minister to reply to it tonight but it concerns there being no provision in the Bill for those poor parents who have to appear before the court to receive legal aid. I am sure that under the present regulations they are not entitled to it. This is a vital matter for parents. They have argued the need to receive advice but there is no provision in the Bill for legal aid for them if they are required to appear in court.

I could say much about privatisation but your Lordships have already said it better. There have been arguments for and against. I utter one sentence from these Benches. When one is dealing with the liberty of the subject and detention against that liberty, the power is exercised as a right by the state. Only the state and its own officers ought to carry it through. That is true of those looking after prisoners and taking them to court. It is equally true of remand prisoners. In parenthesis, I say in honesty that I how to the noble Lord, Lord Harris of Greenwich. Until he drew attention to Clause 68 headed, "Remand prisons" I thought that the power under the Bill to privatise existed only in regard to remand prisons. However, if we examine Clause 68(3) it negatives the provision that it must be a remand prison and gives the power by ordinary statutory instrument to privatise all the prisons in our land. If we had known that we should not have been quite so flattering about the Bill during the debate. The noble Lord is absolutely right. We must give careful attention to that clause.

The hour is late and although I could talk about the mandatory life sentence, the noble Lord, Lord Nathan, who so capably headed the committee of your Lordships' House, has dealt with it and the noble and learned Lord, Lord Ackner, also spoke so well, that I have an idea that the Government will have to fight hard to ensure that the necessary amendments are not made to the Bill to carry the recommendations of the Nathan committee.

Undoubtedly this is a hole and corner method. I say that with deep respect because it was almost the language used by the noble and learned Lord the Lord Chief Justice when talking about the procedure into which he was inveigled back in the 1980s. It concerned the private consultation between the Minister, the Lord Chief Justice and the trial judge as to what a sentence should be. Your Lordships' House will not stand for that when we have the opportunity of amending the Bill, as we have now.

In conclusion, the other place must think the world of this House. Its standing committee obviously and quite intentionally left to your Lordships' House much of the revision of the Bill. It clearly meant to say, "Your Lordships' House is where such revisions ought to take place".

9.18 p.m.

Earl Ferrers

My Lords, the noble Lord, Lord Mishcon, always gives us something nice to think about when he sits down. On this occasion, he has resisted the temptation to ask a question of the Minister replying and then promptly to sit down. For that, I am grateful.

We have had a long and interesting debate on the whole panorama which surrounds criminal justice and its implications. Those who have taken part in the debate today are experts. We have had a variety of contributions from all kinds of people with different interests. The Government will take note of what has been said and of your Lordships' views. My noble friends Lord Boyd-Carpenter and Lord Windlesham said that the object of the Bill should be to reduce crime. They are correct. It is also to deal more fairly with criminals or offenders. That in itself will lead, one hopes, to less crime.

I was delighted that the noble Lord, Lord Hutchinson, welcomed the Bill. I believe it must be the first Bill that the Government have ever introduced that the noble Lord has welcomed. I wondered for a moment whether the Government were right to introduce the Bill. However, I believe we were. I could make the same comments in respect of the noble Lord, Lord Henderson, who also welcomed the Bill. With those two noble Lords welcoming the Bill, we must be getting on famously.

The noble Lord, Lord Harris of Greenwich, remarked that the subjects which have been discussed were formidable subjects. Noble Lords have promised in a most courteous way to table a vast number of amendments. I shall not hold noble Lords to their promises: if we are not careful, I rather fancy that that course of action would make severe inroads into the Easter and Whitsun recesses of noble Lords. I caution against over-enthusiasm in that regard. Nevertheless these are important matters and they will have to be discussed in Committee.

I find it difficult to wind up or, as the noble Lord, Lord Mishcon, correctly said, wind down—a debate of this kind. It is difficult to refer to everything, even if it were regarded as essential to refer to everything. On the other hand, it would be impertinent to refer to very few of the matters that noble Lords have raised. All I con do is speak to the main points that have been made. I shall do my best in that regard, and if I miss a few points I hope that your Lordships will not feel I have omitted to refer to those points because they were de minimis, or to my mind of no importance. I may omit a few points merely because it is impossible to refer to everything.

One of the foremost matters which has been raised and which has obviously caused a certain amount of concern is the mandatory life sentence for murder. A formidable assault on the Government took place over this matter. My noble friend Lord Windlesham made a characteristically powerful speech on this subject, as did the noble and learned Lord the Lord Chief Justice. Other noble Lords who referred to this matter included the noble Lord, Lord Nathan—he is the distinguished chairman of the Select Committee —my noble friend Lord Campbell of Alloway, the noble Earl, Lord Longford, the noble Baroness, Lady Seear, the noble and learned Lord, Lord Ackner, and the noble Lord, Lord Harris of Greenwich. All those speakers found the position taken on the matter disagreeable.

As I listened to the assault on this point, my mind was taken back to the time when the Romans used battering rams against the ramparts of the enemy. The assault was formidable hut, if 50 per cent. of your Lordships' Select Committee take part in the proceedings on the Bill, it is not surprising that views are expressed in a formidable manner.

I was interested to hear the views of my noble friend Lord Boyd-Carpenter on capital punishment. Those views may not have been reflected in the speeches of your Lordships this afternoon. However, the views my noble friend expressed are widely prevalent. He was quite right to express those views this afternoon. The Government believe quite simply that murder is the most heinous of all crimes. I respect the opinions of the noble and learned Lord, Lord Ackner, enormously. However, I was surprised to hear him set about my right honourable friend Mrs. Rumbold for her remarks on murder.

I have taken the opportunity to look up the dictionary definition of "heinous", which is utterly odious or atrocious. I believe that murder might fall quite conveniently into that category. The noble and learned Lord said that certain murders may almost be considered murders of sympathy. However, the fact is that murder is the most heinous of all crimes. Before 1965 the fixed sentence for that crime was the death penalty. When the death penalty was abolished, the alternative had to be one which continued to mark out the Unique wickedness of that crime. That is why we have a mandatory life sentence for murder.

When the abolition of the death penalty has from time to time been reconsidered in another place, it has always been voted upon against the background that the alternative to the death penalty was the mandatory life sentence—"life sentence", not "life imprisonment".

The deed requires the person to be imprisoned for life but released at the discretion of the state. The noble Lord, Lord Harris of Greenwich, said that it ought to be the judges and not Ministers who took the final decision on release. There is a difference of view here. Those who take the view of the noble Lord, Lord Harris of Greenwich, would say that the judges are the right people to ascertain whether the criminal has received his just deserts in prison. The other side of the coin is that my right honourable friend the Home Secretary has responsibility for public safety and it is his responsibility to decide whether to allow people back into society.

I believe that to abandon the mandatory life sentence for murder would greatly damage public confidence in the criminal justice system and its ability to punish properly the gravest of crimes. The Select Committee's understanding and belief is very important and it has been expressed very firmly this afternoon. However, I say with the greatest respect and modesty to members of the Select Committee that although that may be their view they must not necessarily expect everyone, including the Government and the public, to accept their views.

The question was also raised as to whether the decision to release life sentence prisoners should rest with a judicial body rather than the Home Secretary. The noble Lord, Lord Harris, also referred to that matter. I believe that my noble friend Lord Boyd-Carpenter is quite right. At present the final decision in this matter rests with my right honourable friend the Home Secretary. The release of life sentence prisoners raises fundamental issues which are central to my right honourable friend's responsibility to protect the public and to maintain the Queen's peace. I am not sure how acceptable it would be to public opinion for offenders who have committed the most serious of crimes to be released into the community under arrangements which did not include the ability to call Ministers to account to Parliament for the consequences of such release. That is not a change to be made without the most careful consideration of all its implications.

With regard to the European Court of Human Rights' judgment we must now look for an alternative procedure which will both meet the requirements of the European Court of Human Rights and be acceptable to public opinion in this country. That is by no means a straightforward matter. I can see the noble Lord, Lord Harris, jumping up and down. Does he wish to jump up?

Lord Harris of Greenwich

My Lords, with the encouragement of the noble Earl I shall jump up. I am grateful to him. Is he aware that that matter has been before us year after year after year? There is now a clear European Court of Human Rights decision on the non-mandatory life sentence case. Are the Government preparing an amendment to the Bill which will be introduced at Committee or Report stage to give effect to that judgment, which we are obliged by treaty to accept?

Earl Ferrers

My Lords, the noble Lord, Lord Harris, always was given to extravagance. The matter has not been in front of us for years and years and years. The European Court of Human Rights gave its judgment last October and that related only to discretionary life sentences. Until that judgment was given there might have been uncertainty about the extent of the application of the Weeks case, but the judgment was clear in distinguishing between discretionary and mandatory life sentences. It does not apply to the mandatory life sentence.

Lord Harris of Greenwich

My Lords, I asked the noble Earl a question about non-mandatory life sentences and the European Court judgment. Do the Government intend to bring in an amendment to this Bill to give effect to that judgment against the British Government? It is a simple question and I should be very grateful if the noble Earl would answer it.

Earl Ferrers

My Lords, it is a perfectly simple question. I had answered it, and the noble Lord was premature in bouncing up and down from his Bench. I said that we now have to find an alternative procedure which will both meet the requirements of the European Court and be acceptable to public opinion in this country. It is by no means a straightforward matter and we have to try to find a solution to it.

My noble friend Lord Campbell and other noble Lords referred to the penal element in the life sentence, believing that it ought to be announced in open court and open to appeal. We are still considering that recommendation of the Select Committee. The issues are not as straightforward as some might think. There are two types of life sentence: the mandatory and the discretionary. As matters stand at the moment, the Home Secretary is bound by the tariff set by the trial judge and the Lord Chief Justice in discretionary life sentence cases, much as the judgment of the appeal court earlier this year confirmed that in the case of a mandatory life sentence the Home Secretary may depart from the judicial recommendation when deciding when the case should first be reviewed. That distinction reflects at least in part the fact that the mandatory life sentence is a penalty fixed by law to reflect the uniqueness of the offence of murder. It is a punishment laid down by Parliament. I suggest that it would be rather difficult and artificial to try to break it down into self-contained elements such as deterrence, retribution or protection.

It has been suggested that it is wrong for the Home Secretary as a member of the executive to be able by departing from the judge's recommendation to vary the sentence given by the court. But we must remember that the sentence is a life sentence and the Home Secretary does not have any power to vary that. The Home Secretary's role is confined to determining the proportions of that sentence which are to be served in custody and out on licence and when consideration of the possibility of release on licence should begin.

My noble friend Lord Campbell of Alloway referred to uncorroborated confessional evidence. That is important. It is one of the matters that is being considered by Sir John May in his inquiry into the Guildford Four and the Maguire cases. With regard to the Birmingham Six case, my noble friend will be aware that the Court of Appeal is still considering the case. As such it would be wrong for me to comment in any detail on it. I can assure my noble friend that the Government have this matter under review and will make a Statement to the House as soon as it is right and proper to do so.

There were a number of references to the sentencing council —from the noble Lords, Lord Richard, Lord Irvine of Lairg and the noble Earl, Lord Longford —all of which came curiously from the Benches opposite. I understand the reasons for that. The arguments were also supported by the noble and learned Lord, Lord Ackner.

Lord Ackner

My Lords, with great respect, all strongly repelled.

Earl Ferrers

I am grateful to the noble and learned Lord. In my haste not to detain your Lordships for too long I wrote down in my notes, "Ackner against". I forgot the last word. I am so glad that he put me right over that. As the noble and learned Lord, Lord Ackner, blasts out of the water everyone who has a contrary view to him, I do not think it is necessary for me to reply to that business about the sentencing council. We take the view that sentencing councils would not be a proper way to do this, not least because it would involve a regimented system of sentencing; whereas what we propose under the Bill is a continuation of the system whereby the Court of Appeal gives guidance.

A number of noble Lords referred to privatising the prisons. These included the noble Lords, Lord Richard and Lord Harris as well as the noble Lord, Lord Mishcon, who, much to my surprise, found that the noble Lord, Lord Harris, had alerted him to something in the Bill which he, as a lawyer, had missed. That is very unusual.

The noble Lord, Lord Richard, said that prisoners ought to be looked after by the state. This Bill is only in reference to remand prisoners—those who are unconvicted or unconvicted but not yet sentenced. The Secretary of State has the power to extend contracting out to prisons holding sentenced prisoners but only after affirmative resolution. The noble Lord, Lord Harris, says that that is not an answer. An affirmative resolution means that the issue has to come before both Houses of Parliament. That is what will happen and therefore Parliament has a view on the matter which can be expressed.

The noble Lord, Lord Harris, asked whether proposals to privatise existing prisons with regard to sentenced prisoners will be subject to parliamentary scrutiny. I had explained that that will be so. At present we plan to put out to tender only the operation of the new Wolds remand centre. Any further proposals depend on the experience that we receive there.

The noble Lord, Lord Harris, was also anxious about the Home Secretary's power to intervene in disturbances in private prisons. Clause 72 puts a private prison in the same situation as an ordinary prison. If there is trouble, the private sector management will he expected to run the place properly in order to avoid trouble. However, if there is trouble, the Home Secretary must be able to take the proper steps to protect the public.

The noble Lord, Lord Richard, referred to longer sentences discriminating against homosexuals. I do not believe that that is so. The extra sentencing powers for sex offences operate in the same way for homosexual and heterosexual behaviour. Clause 1(7) makes it clear that those powers are available only when the offending behaviour involves a risk of serious personal injury to the victim or potential victim. Moreover, sexual offences are defined in Clause 25 in a way which excludes any offence which is in all the circumstances victimless and consensual.

The noble Lord, Lord Richard, and other noble Lords referred to the problem of keeping mentally ill people out of prison. He was right to be concerned about that. We shall bring forward an amendment at Committee on that issue.

In what I agree was a most impressive speech the right reverend Prelate the Bishop of Liverpool referred to the treatment for Rule 43 prisoners—sex offenders. We welcome the recognition of the work at Her Majesty's Prison at Grendon Underwood. It is not the only place where work is being undertaken with sex offenders. Valuable work is being done in other prison establishments such as Wakefield and Littlehey. The sentence planning approach underlying the new parole scheme will focus attention on tackling offending behaviour, helping to prevent offending. My noble friend Lady Faithful] and other noble Lords referred to the Gracewell Clinic. The Government are interested in different treatment methods for sex offenders. The work of the Gracewell Clinic has been drawn to our attention. It is still in its infancy relative to Grendon. We shall watch with interest how it develops.

The noble Lord, Lord Harris of Greenwich, was concerned about mentally disordered people. He asked when Professor Gunn's report will be published. That will he as soon as possible. The noble Lord, Lord Richard, asked why none of Lord Justice Woolf's recommendations was implemented in the Bill. The majority of the Woolf recommendations do not require legislation. Action has already been taken on some of Lord Justice Woolf's recommendations. Careful consideration is being given to the others. A White Paper will be published later in the year to announce the Government's conclusions and to chart the direction of the prison service for the remainder of the century and beyond.

A number of noble Lords referred to problems relating to children. The noble Lord, Lord Richard, asked about children's evidence. In consultation with experts in the field and the main voluntary organisation, we are drawing up a code of practice to provide soundly based advice on how best to produce a video of a child's evidence for the purpose of criminal proceedings. The code will not be statutory or bind the parties, but should promote good practice and reduce the risk of the video being ruled out of court.

My noble friend Lord Elton referred to the requirement to bind over parents which he thought too rigid. Courts already have power to bind-over parents. In the Government's view that power is not used enough. The courts should be under a duty to do so if the child is under 16. The parents of those young people must have their responsibilities brought home to them.

My noble friend was also concerned about Section 38(6) of the Police and Criminal Evidence Act. It is clearly desirable that if at all possible juveniles should not be detained by the police. However, it would not be sensible to abolish police powers to detain juveniles charged with offences. There may be some circumstances in which it is impossible to place a juvenile with a local authority. The new Home Office codes of practice which are issued under the Police and Criminal Evidence Act come into force on 1st April of this year. Those give guidance on the use of police discretion to detain a juvenile.

My noble friend Lady Faithfull, the noble Lord, Lord Morris, and the noble Lady, Lady Kinloss, asked why the Government did not take up the Pigot proposals that a child should never be required to appear in court in public and that there should be a pretrial cross-examination. Such a provision would risk exposing the child witness to recalls and to further such hearings, thereby creating a whole series of mini-trials before and in parallel with the main trial. We believe that that would lead to delay and further stress for the child. Furthermore, it would carry the risk that the defence might unfairly exploit the child's confusion at being questioned on so many occasions. Under our proposals the child need be cross-examined only once and then by live television linked from outside the courtroom.

My noble friend Lord Gisborough said that the Bill made no provision for the codes of practice in respect of video recording children's evidence. Codes of practice will be issued: they will be an important part of the arrangements.

The subject of racism was referred to by the right reverend Prelate the Bishop of Liverpool, my noble friend Lady Flather and the noble Lord, Lord Morris. The Government support the ethnic minority rights in the criminal justice system. Monitoring is in place in the prison service and is being introduced in the probation service. However, that is not the only way to obtain information. In depth research studies can also be invaluable. It goes without saying that the courts should not have any form of racism within them. That is against all the basic principles of British justice. There is a form of monitoring system in Clause 79 referred to by the right reverend Prelate. The onus is put on the whole system to say what it is doing and my right honourable friend the Home Secretary must make an annual report to Parliament.

The noble Lord, Lord Irvine, referred to a number of issues of complexity in Clauses 1 to 3. Much thought went into the procedures set out in those clauses. They were not made complicated for the sake of doing so but in order to answer all the likely eventualities that may arise. I accept that the sentencers will need training and practical guides to help them apply the provisions. The noble Lord asked why only one other offence can be considered under Clause 1(2) (a). This allows flexibility to deal with the multiple offender but prevents a whole lot of petty offences being put together in order to justify custody.

The noble Lords, Lord Richard and Lord Hutchinson, asked why we should not extend the sentencing restriction to all indictable court offences. Indictable-only offences are almost always serious. An unnecessary burden would be placed on the Crown Court in expecting it to follow all the procedures required in the Bill in such cases. An exception is made where an offender has not served a previous prison sentence. The first step into custody is always grave and should be considered with particular care.

The noble Lord, Lord Hunt, referred to a quorum of Parole Board panels. We have made no final decision about that matter. We shall bear his comments in mind together with the argument that there should be three and not two. The noble Lord also referred to delegation to the parole board. My right honourable friend intends to delegate responsibility for the final parole decision to the parole board for all parole-eligible offenders serving sentences of four years but less than seven years. Only a small minority will be excluded; for instance deportees and compassionate releases. A delegation will not be restricted by any criteria.

The noble Baroness, Lady Seear, referred to cuts in training and educational counsel funding. I recognise the difficulties to which the noble Baroness referred. Success in placing trainees in employment cannot be the only criteria for determining how employment training should be provided for ex-offenders. We continue to keep in touch with NACRO and the Department of Employment on those matters.

My noble friend Lord Boyd-Carpenter asked me specifically about bomb hoaxes. I agree with him in his condemnation of those who irresponsibly make hoax telephone calls. In the 24 hours following the Victoria and Paddington bombs, 84 hoax telephone calls were received and by the end of the following week there had been nearly 800. I can confirm to my noble friend that the Government are giving serious thought to what should be the maximum penalty for such behaviour. My right honourable friend the Home Secretary will be announcing our plans on this matter very soon.

My noble friend Lord Mancroft asked about the treatment for drug misusers. Schedule I makes it clear that courts have the power to require offenders who are given probation orders to undergo treatment for drug misuse. The treatment may be provided by any suitably qualified person, not only qualified medical practitioners. Therefore, that includes community treatment facilities, including, if appropriate, those provided by the private and voluntary sector. The funding of the treatment is a matter for the Department of Health and we are taking up with that department the implications of the Bill's provisions for the treatment of misusers.

My noble friend Lady Faithfull referred to AIDS in prison and asked what we are doing about it. The prison service is aware of and sensitive to the problem of AIDS. I assure my noble friend that her remarks will be drawn to the attention of the director of the Prison Medical Service.

The noble Lord, Lord Mishcon, mentioned the requirement for a social inquiry report or pre-sentencing report. He said that it may lead to delay. I give a firm assurance that the probation service will receive the resources necessary to do the job.

My noble friend Lord Colville of Culross referred to the parole scheme. I am glad that the chairman of the Parole Board and his colleagues have been actively involved in consultations on the new scheme. I hope that that will continue. I agree that sentence planning is critical to open reporting and the giving of reasons. The Government will give that priority. It will be important to ensure that there is consistency as regards recalls between the magistrates' courts and the parole board. That will be achieved by ensuring that the probation service is consistent in reporting breaches of licence.

The noble Earl, Lord Longford, referred to the number of people expected to be in prison and asked whether the Government still stick to their figures. Any projection into the future can only be based on what happened in the past. The projection is that there will be fewer people in prison, but that does not take account of the provisions of this Bill. The noble Earl will see in the Explanatory Memorandum how it is expected that the numbers will increase and decrease because of these provisions.

The Earl of Longford

My Lords, can the noble Earl say that more clearly?

Earl Ferrers

My Lords, I said that the projections are that there will be fewer people in prison in future. However, that does not take into account the provisions of the Bill, which was the point made by the noble Earl. The projections are based on what happened in the past, and it is impossible to say what the future will hold. However, I assure him that it is anticipated that there will be fewer people in prison than was the case a short while ago.

I am conscious of the fact that I have taken up your Lordships' time in trying to answer some of the questions put to me. I hope that I shall not be considered cavalier if I have not answered all of them; that is merely to avoid detaining your Lordships any longer. I hope that in Committee there will not be an abundance of amendments but perhaps one or two.

On Question, Bill read a second time, and committed to a Committee of the Whole House.

House adjourned at ten minutes before ten o'clock.

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