Lords Sitting of 26 March 1991

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

Lord Wolfson of Sunningdale
Sir David Wolfson, Knight, having been created Baron Wolfson of Sunningdale, of Trevose in the County of Cornwall, for life—Was, in his robes, introduced between the Lord Grimthorpe and the Lord Mancroft.

South Africa
2.47 p.m.
Lord Hylton Lord Hylton asked Her Majesty's Government:
In what ways they are helping to bring about peaceful change and constitutional progress in South Africa.
The Minister of State, Foreign and Commonwealth Office (The Earl of Caithness): My Lords, we maintain full and regular contact with all sides in South Africa. We are urging all parties to open negotiations on a new constitution. We are helping to build a post-apartheid South Africa through our aid programme. In addition, we believe, as do our European Community partners, that sanctions should be progressively lifted, both to encourage reform and to help restore growth to the South African economy, so that all South Africans may see the benefits of a peaceful transition to a non-racial democracy.
Lord Hylton: My Lords, I thank the noble Earl for his encouraging reply. As a preliminary to constitutional progress, could he be more specific in regard to the Government's policy towards accountability within the South African security forces, especially with regard to shootings, and also in regard to the abolition of single sex workers' hostels?
The Earl of Caithness: My Lords, the accountability of the security forces is a matter for the South African Government. I assure the noble Lord that we regard the violence taking place in South Africa as reprehensible and hope that it will cease as soon as possible. Single sex workers' hostels are a by-product of the apartheid regime and we hope that when apartheid goes they will go too.
The Earl of Kimberley: My Lords, would my noble friend agree that it would be very good if we could begin playing cricket, football and other such sports again with South Africa?
The Earl of Caithness: My Lords, indeed. I believe that all sporting links with South Africa should be reopened and welcomed. I was delighted to hear on the radio a report by the Olympic Committee which is at the moment in South Africa.
Lord Cledwyn of Penrhos: My Lords, while we welcome the initiatives taken by President de Klerk and the improved situation, would the noble Earl agree that an immense amount of work remains to be done in South Africa before any major amendment of sanctions takes place? In view of the historical relationship that exists between this country and South Africa, could the Minister say what steps Her Majesty's Government are taking to speak to representatives of the South African Government in order that some progress may be made? Those talks could include Chief Buthelezi and Mr. Mandela.
The Earl of Caithness: My Lords, the noble Lord the Leader of the Opposition is absolutely right that an immense amount of work remains to be done. We seek to encourage all parties in South Africa to settle their differences so that progress may be made. That touches on the second point raised by the noble Lord. We welcome discussions between Chief Buthelezi and Mr. Mandela. We try to keep in touch with all parties in South Africa in order to help progress.
Lord Walston: My Lords, will the noble Earl agree that one of the most crying needs in South Africa is for an improvement in housing conditions for vast millions of mainly black inhabitants, particularly in the townships? Can the noble Earl say what, if anything, Her Majesty's Government are proposing to do to help the housing situation both now and once sanctions are lifted?
The Earl of Caithness: My Lords, I am aware that the noble Lord has recently returned from South Africa and is able to give the House a first-hand account of the position. I am glad that he has seen a substantial improvement in the housing situation. We have contributed£500,000 to the Urban Foundation's home guarantee scheme which is designed to stimulate the building of low-cost housing.
Lord St. John of Bletso: My Lords, does the Minister agree that the process of peaceful change in South Africa has been substantially accelerated of late by the accord on 2nd February between the ANC and the South African Government on the release of political prisoners, the return of exiles and the resolve on the armed struggle by the ANC? If there is to be any chance of a constitutional resolve working in South Africa, there must be economic growth. Does the Minister further agree that to that end there needs to be an easing of economic sanctions against that country?
The Earl of Caithness: My Lords, I concur with the noble Lord in that we welcome the agreement on the repatriation, return and settlement of exiles. I also welcome the announcement made on 21st March of the UNHCR's involvement. We look forward to seeing the details. The noble Lord is absolutely right to focus on sanctions. It is important for the South African economy and all of South Africa that sanctions should be progressively lifted.
Lord Peston: My Lords, can the noble Earl say whether the Government are yet in a position to make a statement on the future of economic sanctions? The

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noble Lord, Lord St.John of Bletso, raises an important point. Are we yet at the stage where we can talk more generally and publicly about sanctions and the future of the South African economy or is it still too early in view of the fact that clearly democracy has not yet emerged in South Africa, although we all hope that it will?
The Earl of Caithness: My Lords, this is not only a matter for the United Kingdom but for other countries as well, particularly the other EC countries and America. We have lifted the voluntary ban on new investment in South Africa. We have also lifted the voluntary ban on the promotion of tourism to South Africa. We have in addition lifted the ban on certain new investment in South Africa. The Commission is drafting legislation to remove the ban on imports of certain South African iron and steel and of certain South African gold coins.
Lord Peston: My Lords, perhaps I may return to my main point. Will the Minister confirm that I am right in saying that the black population of South Africa is still not enfranchised? In those circumstances does he agree that we have to consider what is happening on that issue before economic sanctions can be totally lifted?
The Earl of Caithness: My Lords, the noble Lord is right to say that the black population has not been enfranchised. However, it is right to boost the economy of South Africa because that benefits all South Africans.
Lord Hatch of Lusby: My Lords, is the noble Earl prepared to tell the House on behalf of Her Majesty's Government that they consider apartheid will not have been removed from South Africa until the majority of the population has constitutional political rights, particularly in view of the fact that it was the British Parliament which initially provided the constitution under which political rights were denied to the majority and political apartheid was introduced?
The Earl of Caithness: My Lords, we are encouraging all sides in South Africa to discuss matters. As regards the all-party congress to discuss the modalities of the new constitution, we welcome Mr. Mandela's call on 8th January for all parties to get together. That reaffirms what President de Klerk said last year.
Lord Hatch of Lusby: My Lords, the point of my question was that, if apartheid is not considered to be abolished until the majority of the population of South Africa has constitutional political rights, does the Minister agree that there can be no question of ending—there is the possibility of modifying—economic sanctions until those political rights are established?
The Earl of Caithness: My Lords, I hope that I do not take it from what the noble Lord has said that he wishes to make it impossible for the black community to prosper through the benefit of lifting sanctions.

Easter Act 1928
2.56 p.m.
Lord Airedale Lord Airedale asked Her Majesty's Government:
What stands in the way of bringing into operation the Easter Act 1928. whereby 1 Easter is to be celebrated during the first half of April every year.
The Minister of State, Home Office (Earl Ferrers): The Churches, my Lords.
Lord Airedale: My Lords, I am grateful for that very full Answer. If the noble Earl is suggesting that the Churches have to agree on this matter, is he not aware that there is nothing in the Easter Act that says that the Churches have to agree? Does the Minister agree that the Act says no more than that regard has to be had to any opinion which may be expressed by any Church or any Christian body? Surely the Minister will agree that that is a very long way from suggesting that the Churches have to agree?
Earl Ferrers: My Lords, I am grateful to the noble Lord, Lord Airedale, for considering that my Answer was full. I did, too. I thought it combined fact with brevity. The noble Lord is perfectly right. The Easter Act says that regard must be given to what the Churches say. This is a theological issue which transcends frontiers. We have naturally consulted the Churches. Basically, the Church of England does not wish to change without the agreement of the Roman Catholic Church. The Roman Catholic Church does not wish to change without the agreement of the Orthodox Church. Hence the difficulty we are in.
The Lord Bishop of Ripon: My Lords, is the Minister aware that as long ago as 1966 the Church Assembly of the Church of England, which was the predecessor of the General Synod, passed a resolution welcoming the introduction of a fixed date for Easter, preferably on the date which the 1928 Act provides? Will the Minister consider that this is a matter on which it is necessary to proceed, as the noble Earl has already indicated, by agreement between the Christian Churches on a worldwide basis and after adequate consultation?
Earl Ferrers: My Lords, I am grateful to the right reverend Prelate for letting us know of the view taken. I agree that we should go ahead provided that there is unity. Perhaps the right reverend Prelate will go back in time in considering the matter further. The First Ecumenical Council of Nicaea had as its timely goal, as one of the documents of the Greek Orthodox Church said, the bringing about of Christian unity through the common celebration of Easter. That was in AD 325, as no doubt the right reverend Prelate will remember. If he can persuade his brother bishops and other Churches to speed up a little then I believe that we shall be able to make the point which the right reverend Prelate has in mind.
The Earl of Onslow: My Lords, would it not be a good idea to repeal the Easter Act? The noble Lord,

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Lord Airedale, would then be deprived of the opportunity of asking the same Question year after year after year.
Earl Ferrers: My Lords, that would be even more controversial than the noble Lord's Question.
Lord Parry: My Lords, as the voice of the right honourable the Lord Merthyr is temporarily not represented in this House and as all the questions so far have elicited replies from the Church of England and from the Catholic Church, perhaps a question on behalf of the non-conformist Church in Wales, from one who was born within the shadow of Merthyr's castle, might be appropriate. If there has been no progress since anno Domini 21, has there been any since Lord Merthyr last asked this question?
Earl Ferrers: My Lords, the noble Lord was a couple of centuries out. It was anno Domini 325. The answer to the noble Lord's second question is, no.
Lord Boyd-Carpenter: My Lords, while admiring the demonstration which the noble Lord, Lord Airedale, has given of the loyalty which a lost cause so often evokes, may I ask my noble friend whether he agrees that to seek to overrule the Christian Churches on the dates and arrangements for the celebration of the most sacred festival of the Christian year would shock and horrify a great many people?
Earl Ferrers: My Lords, I entirely agree with my noble friend. Good Friday and Easter Day are the most solemn dates in the Christian calendar. The view of the Council of Churches for Britain and Ireland is that its members would not wish to move to a common or a fixed date without worldwide agreement.
Lord Lyell: My Lords, can my noble friend explain to me, a simple churchgoer, the existing formula which apparently has existed since AD 325? How is the feast of Easter fixed?
Earl Ferrers: My Lords, that is not a very simple formula. Easter Day is the first Sunday after the full moon which happens upon or next after the 21st day of March. If the full moon happens upon a Sunday, Easter Day is the Sunday after. But the moon referred to is not the real moon of the heavens but a hypothetical moon on whose full the date of Easter depends. The lunations of this calendar moon consist of 29 and 30 days alternatively with certain necessary modifications to make the date of its full agree as nearly as possible with that of the real moon, which is known as the paschal full moon. In simple terms, Easter falls on one of 35 days between 22nd March and 25th April.
Lord Elton: My Lords, in case my noble friend has possibly confused some Members of your Lordships' House, I wonder whether the noble Lord, Lord Airedale, can help your Lordships by always asking his annual Question exactly the same number of days before Easter—
Earl Ferrers: My Lords, my noble friend Lord Elton, who is a past master of the techniques of this
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House, must realise that the normal form is to address his question to the Minister and not to the noble Lord, Lord Airedale. But I have no doubt that the noble Lord, Lord Airedale, will take account of what my noble friend said.
The Lord Bishop of Ripon: My Lords, I am grateful to the noble Earl for drawing our attention to the Council of Nicaea but is he also aware of the Synod of Whitby in 664 at which a predecessor of mine, St. Wilfrid, as Abbot of Ripon persuaded the Church in Northumbria—and eventually the whole Church in these isles—to accept the Roman date? Does he not agree that it would be unwise to undo in the 20th century what was done in the 7th century?
Earl Ferrers: My Lords, I am all for not undoing that. The important point is to try to get others to agree to continue with it.
Lord Airedale: My Lords, does the noble Earl care to remind the noble Lord, Lord Boyd-Carpenter, that all history shows that it matters not when Easter is celebrated provided that it is celebrated?
Earl Ferrers: My Lords, I am always happy to oblige the noble Lord, Lord Airedale. I shall be content to be a postbox on this occasion for the message which he wishes to convey to my noble friend Lord Boyd-Carpenter.

Algeciras-Gibraltar Ferry Service
3.4 p.m.
Lord Merrivale Lord Merrivale asked Her Majesty's Government:
Following the European Commission's reply of 29th May 1990, what active measures they have taken since October 1990 to facilitate the introduction of the Algeciras to Gibraltar ferry service.
The Earl of Caithness: My Lords, my right honourable friend the Secretary of State for Transport wrote to the EC Transport Commissioner, Mr. Van Miert, on 20th March.
Lord Merrivale: My Lords, I am grateful to the noble Earl for that Answer. Does the Minister agree that it has been many months since any action was taken? I last raised this question five months ago and it has taken five months, in effect, for this letter to be sent to the Transport Commissioner. When does my noble friend expect to receive a reply? Does he expect it to be different from the reply given earlier by the Director General for Transport?
The Earl of Caithness: My Lords, I do not know when we shall get a reply and I cannot speculate on the answer. I certainly refute my noble friend's first point. A considerable amount of work has gone into this fairly complex and wide-ranging area. It has been discussed with Spain by officials on a number of occasions.
Lord Cledwyn of Penrhos: My Lords, as the noble Lord, Lord Merrivale, has just said, this matter was dealt with by the House last October. On that

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occasion the noble Lord, Lord Reay, on behalf of the noble Earl, said that several options were open to the Government to pursue. Can the noble Earl tell the House how many of those avenues have been explored and whether there have been discussions on the matter with the Spanish Government?
The Earl of Caithness: My Lords, there have been discussions with the Spanish Government. There was a meeting with officials in October of last year. It was raised in the margins of a meeting with officials on 22nd January this year. It was not, because of time, raised at the Foreign Ministers' meeting on 12th February; but there are regular discussions. We have also been discussing it within the Government and that has resulted in the letter sent by my right honourable friend.

Gibraltar Airport Agreement
3.7 p.m.
Lord Merrivale Lord Merrivale asked Her Majesty's Government:
Bearing in mind the effect of the non-application of the provisions of Council Regulation (EEC) No. 2343/90 on Gibraltar and thus on the economies of air carriers, whether the action brought by the Government of Gibraltar against the EC Council on 28th September 1989 has been declared admissible by the European Court of Justice.
The Earl of Caithness: My Lords, the action taken by Gibraltar on 28th September 1989 was against Council Regulation No. 87/602/EEC not No. 2343/90. The European Court of Justice has not yet reached any decision on this case.
Lord Merrivale: My Lords, I thank the Minister for that Answer. In view of the discrimination against Gibraltar under Article 2.(2) of the Directive 89/463 and Article 1.(3) of Regulation No. 2343/90, will the Minister bear in mind, too, the recent demise of Air Europe and the feelings of the people of Gibraltar on the issue? Will the Government take a more responsive attitude—I say this from the heart—towards Gibraltar when a matter concerns Gibraltar's rightful aspirations and actions?
The Earl of Caithness: My Lords, we take account of what Gibraltarians have said to us on many occasions. We also take into account what has been agreed within Europe. We very much hope that Gibraltar will be able to agree to the Anglo Spanish agreement on the airport.
Lord Cledwyn of Penrhos: My Lords, can the noble Earl tell the House why the Spanish Government are resisting the implementation of this agreement? Is it for economic reasons? Is the noble Earl able to say that there is validity in those reasons?
The Earl of Caithness: My Lords, the Spanish Government are not resisting this agreement on the airport. They are resisting the agreement on the ferry,
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which was the subject of the previous Question. It is the Gibraltar Government who are not agreeing to the 1987 airport agreement.
Lord Bruce of Donington: My Lords, before the Council of Ministers arrived at the agreement to which the noble Lord, Lord Merrivale, referred, did the Government consult with the government and people of Gibraltar before they arrived at their decision?
The Earl of Caithness: My Lords. I do not know the definitive answer to that question; but I should be very surprised if we did not have consultations.
Lord Boyd-Carpenter: My Lords, is my noble friend aware that a great deal of the grievance felt by the Government of Gibraltar was caused because they were not involved in the negotiations between this country and Spain, which ultimately led to the airport agreement?
The Earl of Caithness: My Lords, I was not aware of that fact. However, I shall certainly look into the matter.
Lord Merrivale: My Lords, as it is now 18 months since this action was brought before the European Court of Justice, are there any steps which Her Majesty's Government can take to facilitate an early decision on the matter?
The Earl of Caithness: My Lords, we should like to see this matter resolved as indeed we should like to see the issue on the ferry resolved. However, my noble friend is doubtless aware that further action has been taken under agreement No. 2343/90 by the Gibraltar Development Corporation.

Business
3.10 p.m.
Viscount Davidson: My Lords, at a convenient moment after 3.30 p.m. my noble friend Lord Belstead will, with the leave of the House, repeat a Statement that is to be made in another place on Northern Ireland: political talks. It may be for the convenience of the House to know that, subject to the progress of business, the Committee stage of the Criminal Justice Bill will be adjourned at about 7.30 p.m. for approximately one hour and that during the adjournment the Second Reading of the Darlington Borough Council Bill will be taken.

House of Lords Offices: Select Committee Report
The Chairman of Committees (Lord Aberdare)The Chairman of Committees (Lord Aberdare) rose to move, That the Second Report from the Select Committee be agreed to [H.L. Paper 36].
The noble Lord said: My Lords, this was a particularly important meeting of the Offices Committee especially in view of the first item of the report on the Ibbs Report. Perhaps I should say just a brief word of introduction. Sir Robin Ibbs was asked

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by the Government to conduct an inquiry into the management of another place. His report has now been accepted by the other place and has considerable implications for this House.
The main object of the report was to strengthen financial management and to that end it recommended that all spending on behalf of the House should be borne on the Vote of the House and that the so-called allied service arrangements should be discontinued. In our case, that means that we will be responsible for approving our own expenditure on building work—that is, both capital expenditure and maintenance—and on printing and stationery, rather than relying, as we do at present, on the Department of the Environment for works expenditure and the Stationery Office for stationery and printing.
The Offices Committee and three of its subcommittees—namely, the committees on administration, finance and the staff of the House—have given very careful consideration to the implementation of the Ibbs Report in so far as it concerns this House. Their recommendations appear in this report. Perhaps I may summarise them as follows. First, they recommend a modification of our committee structure to improve financial accountability and control; secondly, that we should join with another place in the new arrangements for building works, including the joint appointment and funding of a Director of Works for the Palace of Westminster as a whole; and, thirdly, the temporary appointment of a professional financial adviser to assist our Principal Finance Officer in the development of the new system.
I believe that the main proposals are clearly set out in the report. However, there is just one other matter in the report to which I think I should draw to your Lordships' attention. It appears under the heading of "Staff of the House". I refer to the recommendation to set up a Select Committee to consider the situation with regard to all the various Select Committees of this House. I beg to move.
Moved, That the Second Report from the Select Committee be agreed to [H.L. Paper 36]—(The Chairman of Committees)
Following is the report referred to:
1 The Ibbs Report
The Committee has considered the implications for the House of Lords of the recommendations of the Ibbs Report on House of Commons services (Commons Paper 38, session 1990–91). The recommendations have been accepted by that House. The Committee believes that they should be applied where appropriate to the House of Lords.
The Committee recommends that the House of Lords should assume direct responsibility for all expenditure on behalf of the House. The "allied service" arrangements, whereby spending on works and on printing, publishing and office equipment arc paid for on the Votes of the Department of the Environment and the Stationery Office respectively, should be discontinued. The House of Lords Vote should thereafter make the necessary provision.
In order to improve financial accountability and control of the House of Lords, The Committee recommends a reform of its own structure—

(a) The membership of the House of Lords' Offices Committee should be reduced in number, while retaining a majority of backbenchers;

(b) The present sub-committees of the Offices Committee should be replaced by the following—

(i) Finance and Staff Sub-Committee;

(ii) Administration and Works Sub-Committee;

(iii) Library and Computers Sub-Committee;

(iv) Refreshment Sub-Committee.

There should no longer be a Select Committee on Leave of Absence and Lords' Expenses or a sub-committee on Works of Art. The Committee recommends that—

(a) Leave of Absence should be brought within the remit of the new Administration and Works Sub-Committee, and Lords' Expenses within the remit of the new Finance and Staff Sub-Committee; and

(b) the Works of Art Sub-Committee should be replaced by an Advisory Panel on Works of Art, of which the chairman should be a member of the Administration and Works Sub-Committee.

The new committee arrangements should come into effect at the beginning of the next parliamentary session.
The Committee also recommends that—

(a) the House of Lords should participate with the House of Commons in new arrangements for works in the Palace of Westminster, including the appointment and funding of a Director of Works for the Palace of Westminster, subject to satisfactory terms being agreed with the House of Commons;

(b) a professional Financial Adviser should be appointed on a temporary basis to assist the Principal Finance Officer in the development of improved arrangements for financial management in the House of Lords.

2 Security
The Committee approved an increase in the complement of the security force for the Palace of Westminster.
3 Staff of the House
A report from the Staff of the House Sub-Committee was made to the Committee, which agreed to—

(a) the creation of a temporary post of Financial Adviser;

(b) the creation of an additional Executive Officer post to assist the Computer Executive.

Select Committees
The Committee endorses a recommendation from the Staff of the House Sub-Committee that a Select Committee should consider the Select Committee work of the House and make recommendations.
4 Appointment of the Librarian
The Committee recommends that the procedure whereby since 1917 the Librarian has been appointed by the House of Lords' Offices Committee, subject to the approval of the House, should revert to the older arrangement whereby, like other staff, the Librarian is appointed by the Clerk of the Parliaments.
5 Jewel Tower—Parliamentary Exhibition
The Committee agreed to a report from the Administration Sub-Committee which welcomed the projected use of the Jewel Tower for a small permanent exhibition on parliamentary history, to be staffed and funded by English Heritage
6 Permission to Photograph
The Committee agreed to a recommendation from the Administration Sub-Committee that Mr. Peter Lavery, who had received permission from the House of Commons authorities to photograph within the precincts of that House in order to produce a book of photographs as a commercial enterprise, should also be allowed to photograph peers and others associated with the House within the precincts of the House of Lords.
7 House of Lords Fees and Security for Costs

(a) The Committee considered the fees payable on judicial proceedings and peerage claims and approved a revision with effect from 9th April 1991 as follows—

(i)Fees on Judicial Proceedings

£

Lodgment of Petition of Appeal

30

Entering Appearance

7

Issue of Order of Service

30

Lodgment of Petition not referred to Appeal Committee

30

Lodgment of Joint Petition, from each Party thereto

15

Lodgment of Petition referred to Appeal Committee (including report thereon)

35

Application to waive Security for Costs

15

Lodgment of Case, including laying Case on the

145

Table, entering Appeal in Cause List, Bar fee and Counsel attending Lodgment of Joint Case, including laying Case on the

290

Table, entering Appeal in Cause List, Bar fee and Counsel attending Application to set down for Hearing

30

Issue of Final Judgment

35

(ii)Fees on Peerage Claims Petition of Claimant

30

For each of the first 3 days on which the Committee

75

For Privileges meets For each subsequent day

105

Order for Attendance of a Witness

30

Resolution and Judgment

105

(iii)Fees on Irish Peerage Claims On presentation of Petition

30

Lord Chancellor's Report

30

Order made thereon

30

(b) The Committee also approved the following revision in the judicial taxing fee on bills taxed on or after 9th April 1991 to provide for a charge to be levied on the withdrawal of a bill of costs—

(i) on bills where the amount allowed does not exceed£500, a flat rate of£25;

(ii) on bills where the amount allowed exceeds£500, for every£1 or fraction of£1 an amount of 5p;

(iii) on the withdrawal of a bill of costs which has been lodged for taxation, such fee as may be reasonable having regard to the amount of work done;

Provided that the fee shall not exceed the amount payable under paragraphs (i) or (ii) above if the bill had been allowed in full.
(c) The Committee authorised an increase to£12,000 in the amount given by the Appellants as security for costs in appeals to the House of Lords presented on or after 9th April 1991.
8 Healthcare Arrangements for Staff
The Committee was informed of a proposal for a healthcare service for staff within the Palace of Westminster and authorised a proportion of the cost.
9 Revised Scales of Pay
The Committee approved increases in the remuneration of the Chairman and Principal Deputy Chairman of Committees.
10 Hansard Reporting Staff
The Committee authorised payment of revised late night allowances to permanent staff and revised attendance fees to temporary reporters.
11 Official Shorthand Writer
The Committee authorised a revised scale of fees for the Shorthand Writer, subject to a continuing longer term review of the arrangements for shorthand writing in both Houses.
12 Superannuation
The Committee was informed of a proposal to transfer responsibility for superannuation from the Accountant's Office to the Establishment Office. The Treasury would be undertaking the checking of superannuation awards with effect from 1st April 1991. The Committee authorised payment of a proportion of the cost of this service.
The Committee was also notified of the following awards made under the House of Lords Staff Pension Scheme—

(a) Pension and lump sum to Sir John Sainty KCB, Clerk of the Parliaments, who retired on approved early retirement terms on 1st January 1991;

(b) Pension and lump sum to Mr. W. J. Reid, Assistant Editor, who retired on actuarially reduced early retirement terms on 3rd January 1991.

On Question, Motion agreed to.

Criminal Justice Bill
3.14 p.m.
Earl Ferrers: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Earl Ferrers.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Lord Richard Lord Richard moved Amendment No. 1:
Before Clause 1, insert the following new clause:
("Sentencing Council
.—(1) For the purposes of exercising the functions conferred on it by this section, there shall be a body known as the Sentencing Council, consisting of—

(a) the Lord Chief Justice, and

(b) not less than four judges of the Court of Appeal appointed by the Lord Chief Justice.

(2) The Sentencing Council may appoint as advisers one or more persons from any or all of the following categories—

(a) persons who hold or have held judicial office;

(b) members of the prison service;

(c) members of the probation service:

(d) persons who have knowledge of the after-care of discharged prisoners; and

(e) persons who have made a study of the causes of delinquency or the treatment of offenders.

(3) It shall be the duty of the Sentencing Council to consider and review sentencing policy and from time to time to issue guidelines in respect thereof.")
The noble Lord said: Amendment No. I is also tabled in the names of my noble friend Lord Mishcon and the noble Lords, Lord Hutchinson of Lullington and Lord Hunt. It may be for the convenience of the Committee if I speak also to Amendment No. 2 tabled in the name of my noble friend Lord Longford, which is an amendment to the proposed new clause.
The proposed new clause would establish a sentencing council as part of the Court of Appeal with the responsibility for issuing guidance on sentencing. I suspect that there are two main questions that Members of the Committee will wish to ask in connection with the proposal: first, is there a need for it, and, if so, why? The second question is whether the proposed form of the sentencing council is one which makes sense against the background, which I shall submit to the Committee in due course, of apparent need.
The sentencing council would be chaired by the Lord Chief Justice and would include no fewer than four judges of the Court of Appeal. The council would have a discretionary power to appoint and take advice

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from such people as a circuit judge, a magistrate, a prison governor, a chief probation officer and an academic criminologist.
Over the past decade there has been growing interest in the case for establishing a sentencing council as a mechanism for bringing about greater consistency in sentencing practice. That has arisen from concern about disparities in sentencing in both magistrates' courts and in Crown Courts. That concern is shared by many bodies and individuals. I shall presently refer the Committee to some of them. However, that concern has certainly been shared by the Magistrates' Association, which has taken a number of important steps to encourage greater consistency. Those steps included the production of guidelines for magistrates on sentencing and an emphasis in magistrates' training on what is called "structured decision making".
The efforts of the Magistrates' Association to reduce disparities have met with some success. The variations are undoubtedly less extreme than was the case a few years ago. However, it is still possible—indeed, it is very apparent—to find considerable difference between sentencing patterns in courts in similar areas. For example, in 1989, 15 per cent. of adult male offenders in South Tameside received immediate prison sentences, compared with 4 per cent. in Rotherham. The figure in Exeter was 10 per cent., compared with 5 per cent. in Worcester.
There are also variations between Crown Courts to an extent which cannot be readily explained by differences in the pattern of offences. An analysis of Crown Court sentencing figures for 1988 showed that the use of custodial sentences in the first-tier Crown Courts—that is, those able to deal with the most serious offences—varied from 69 per cent. of offenders at Mold to 38 per cent. at Wood Green. In second-tier Crown Courts the figures varied form 63 per cent. at Oxford to 44 per cent. at Durham. Moreover, in third-tier Crown Courts the figures varied from 63 per cent. in Coventry to 33 per cent. in Portsmouth.
The analysis as regards the use of non-custodial sentences also showed that there are very considerable variations. For example, at first-tier Crown Courts the proportion of offenders given probation orders ranged from 4.5 per cent. at Warwick Crown Court to 13 per cent. at Lincoln. Overall, the figures seem to indicate that the more serious the offence the more consistent the sentence imposed. It is significant to note that it is in relation to serious offences that the Court of Appeal has issued the most detailed guidance.
The greatest variations in sentences are to be found in regard to non-violent offences. Taking the figures for magistrates' courts and Crown Courts together, it has been found that 6 per cent. of offenders sentenced in North Wales received custodial sentences in 1988, compared with 16 per cent. in adjoining Cheshire. Moreover, 22 per cent. of offenders sentenced for burglary received custodial sentences in Dorset, compared with 46 per cent. in Cheshire. Further, 5.9 per cent. of offenders convicted of criminal damage in Surrey received a custodial sentence, compared with 32 per cent. in Hertfordshire.
There are bound to be disparities in sentencing figures from court to court and from area to area. One expects that. No court has an identical pattern of crime to another or an identical pattern of criminal to be dealt with. One accepts that too. The implications of those figures are disturbing. What is disturbing about them is that a person's liability to a custodial sentence may be greater if he commits an offence on one side of the geographical boundary than if he commits an identical offence a couple of streets away on the other side of the boundary in another court's area.
Justice demands (does it not?) that the sentencing of offenders should be consistent, reasoned, open and predictable. In no jurisdiction, in no country of which I am aware, is judicial independence interpreted to mean unfettered judicial discretion. Many common law jurisdictions—for example, Canada, Australia and parts of the United States—have already undertaken a careful rethink of sentencing policy and practice. In Britain too, the Government acknowledged the need for a new sentencing framework in their White Paper Crime, Justice and Protecting the Public. The Government argue:
"To achieve a more coherent and comprehensive consistency of approach in sentencing, a new framework is needed for the use of custodial, community and financial penalties"
In Part I of the Bill, which we are now considering, the Government set out the constituent parts of that new framework: the basis upon which custodial sentences should be imposed, what the courts should consider when assessing the length of custodial sentences and the factors to be taken into account in deciding upon a particular non-custodial or community penalty. However, the Government also accept that sentencers will require detailed guidance on the interpretation of their new sentencing framework. They say in the same White Paper:
"The Government hopes that the Court of Appeal will give further guidance, building on the legislative frameworkߪThe Government will look to the Judicial Studies Board to make arrangements for training sentencers to give effect to the new sentencing policies and the more detailed interpretation of the legislation by the Court of Appeal"
Throughout this century at least, the Court of Appeal has developed precedents on the way that courts should exercise sentencing discretion. In the 1980s the Lord Chief Justice, the noble and learned Lord, Lord Lane, handed down a series of guideline judgments; for example, on rape, incest, drug trafficking and social security fraud. Those guideline judgments, as anyone who has looked at them will be aware, are valuable. While valuable in themselves, they cover a small number of offences only. They leave the most common crimes—burglary, handling stolen goods, theft and so on —virtually untouched. The existing guidance excludes almost all non-custodial penalties—the most common offences coming before the Crown Court—and nearly all magistrates 'courts' matters.
In addition, the English guideline judgments do not form an inter-related structure. They have emerged, as they must do coming from the Court of Appeal, in an ad hoc fashion over the years. The Court of Appeal is, after all, a reactive body. When cases come before it,

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it deals with them. Furthermore, it is true to say that the guidelines do not derive from any general analysis of sentencing or the proper use of custody. There cannot be any other social policy which has been allowed to develop in such an unco-ordinated and unpredictable manner.
It is difficult to believe that the basic flaws of a system entirely reliant upon the Court of Appeal will be remedied when the Criminal Justice Bill becomes law. In contrast, a sentencing council would have many important advantages. In particular it would be empowered to develop detailed guidance on sentencing across the board, including those everyday criminal matters which rarely reach the Court of Appeal.
Another advantage that a sentencing council would have is that it could offer guidance across the full range of offences and possible sentences much faster than the Court of Appeal could ever do. It could also set down guidance about matters such as bail which in general is excluded from the overseeing of the Court of Appeal. It could also consider non-custodial penalties which rarely come before the Court of Appeal for the simple reason that few people appeal against non-custodial sentences. A man who has been put on probation is unlikely to go to the Court of Appeal to have his sentence changed.
There is considerable evidence to show that the use of non-custodial penalties is inconsistent. I do not want to weary the Committee with too many figures. But, for example, in only about 50 per cent. of cases is community service used as a direct alternative to custody. Similarly, the suspended sentence seems to have been used in a manner other than that Parliament originally intended.
Many individuals and associations have commented on the present position and have come out in favour of a sentencing council. Foremost among the commentators is Professor Ashworth of King's College, London, editor of the Criminal Law Review. In a series of papers, books and articles, published since the early 1980s, Professor Ashworth has welcomed the series of guideline judgments that the Court of Appeal has produced since the noble and learned Lord, Lord Lane, became Lord Chief Justice. However, Professor Ashworth has nevertheless pointed out the dearth of detailed guidance on the more common and ordinary types of cases such as burglary, theft and lesser assaults—the type of cases in which the variations in sentencing are the greatest. He pointed out, for example, that there is little direct guidance for magistrates' courts in the present stock of Court of Appeal judgments. That is not altogether surprising given that appeals against sentences passed by magistrates do not go to the Court of Appeal.
Professor Ashworth developed that theme in greatest detail in his book Sentencing and Penal Policy 1983. I shall quote just two sentences. He said:
"It is hardly too much to say that the more frequent the type of case the less appellate guidance there is likely to be. Precedents on serious woundings, robberies and rapes abound; precedents on everyday assaults, theft and damage are hard to find and, because the sentence which gave rise to
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the appeal was probably abnormally high in the first place, afford little guidance to the magistrates' court or to the third tier Crown Court".
He proposed, as a means of filling that gap, the establishment of a sentencing council chaired by the Lord Chief Justice to produce recommendations which would be issued as practice directions. He developed that proposal in subsequent pamphlets and literature, but I do not need to take the Committee through that today.
Some prominent magistrates are also backing the idea of a sentencing council. The chairman of the Magistrates' Association's sentencing of offenders committee, Mrs. Anne Rich, has said:
"I would heartily support the idea of a sentencing council, although I know that there are still some who have reservations about it. I feel that the approach to sentencing between us and the higher courts, such as the Crown Court, is very much out of line"
Without supporting a sentencing council as such, the chairman of the Criminal Bar Association, Nicholas Purnell QC, has argued for a standing forum on sentencing in which judges and others in the criminal justice system can discuss,
"on equal terms their differing perspectives, their suggestions and solutions for the developing process of sentencing. This would involve the exchange of information and research, experience and practice from which the judiciary would emerge better informed and to which they would have contributed their unique experience and authority".
He concludes, as a person who has practised for many years in the criminal courts:
"Judicial independence, integrity and vigour will withstand a little bruising from rubbing shoulders with other players on the court".
A committee established by Justice has approved the proposal. A former chairman of the Magistrates' Association, Lady Ralph, chaired the committee which approved it. The Penal Affairs Consortium, which is a group of 18 member organisations, including all the main bodies representing prison and probation staff as well as resettlement agencies and penal reform groups, supports the proposal. Finally—it is not often that a representative of my party can pray this in aid—in an important leader published on 10th November 1990 The Times said:
"The guidelines, though an improvement, still give the judges considerable discretion. Much depends on how the Appeal Court interprets them. All this is hazardous".
It added, and perhaps this is the essence of the case:
"The transmission mechanism between Parliament, Home Office and the judiciary is creaky and ineffective. Judges are notoriously their own creatures, disinclined, through long exercise of power, to heed outside influence. Penal reformers have long advocated the creation of a sentencing council representing all interested parties. Its job would be to formulate detailed guidance on sentencing for the courts"
The Times concluded:
"Justice demands no less".
I see that the noble Lord the Leader of the House is present. I do not know the procedures in this instance but I shall take about another five minutes if the noble Lord can contain himself for that long; otherwise, I shall give way now.
The case for the sentencing council is reinforced by consideration of the contents of the Bill. Without a body of the kind that we propose it is difficult to see from where guidance for sentences can come on the detailed interpretation of some of the sentencing principles contained in Part I of the Bill. Those

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principles cover not only the use and length of custodial sentences but also the use of community penalties.
The Government wish to see more offenders dealt with outside prison by new orders combining such options as probation, community service, curfews, fines and compensation orders. One of the risks involved in the use of new combinations of penalties is that the greater the number of requirements imposed on offenders, the higher the chance that some will he returned to court and imprisoned for a breach. If the new combined orders are used for offenders who would not otherwise have been in prison, this could lead to the imprisonment of offenders who would not otherwise have been at risk of custody. That has to be dealt with.
A further concern is the changes which the Bill makes in the parole system which are likely to increase the prison population. If the Bill's strategy is to succeed, it must counteract the increase in prison numbers resulting from the parole changes, the danger of the new combined orders slipping down the tariff and the prospect of a large increase in the numbers imprisoned for breach of community penalties. This requires much more detailed guidance on sentences than the Court of Appeal has hitherto shown itself able or willing to give.
I have recently been in correspondence with Professor Ashworth, particularly after the debate on Second Reading. He refers to the handbook from the Judicial Studies Board. Members of the Committee who were here at Second Reading may remember that the noble and learned Lord, Lord Ackner, told me that I should go away and read it because it was in the Library, but I am afraid that it is not there. Nevertheless, as any sensible counsel does, I have taken the view of a very senior judge and I have considered it. Professor Ashworth says:
"The briefest of references to this is likely to show that it contains good guidance on a small minority of crimes, mostly indictable-only, and contains absolutely nothing on the hulk of crimes tried in the Crown Court and in magistrates' courts every day of the week. Under the government's White Paper proposals, it expressed the 'hope' that the Court of Appeal would hand down more guideline judgments in the coming years. That is surely an insufficient basis for sentencing reformߪIt is essentially reactive, in leaving too much to the chance of cases coming before the Court of Appeal; the individual judgments are unlikely to form a coherent pattern, because the Court operates case-by-case and has no means of 'spreading the canvas' and looking at proportionality among all the major crimes; the Court has shown no enthusiasm for tackling crimes like burglary, handling and everyday thefts; and the court has no real experience of sentencing problems in magistrates' courts, which seem doomed to remain without authoritative guidance".
Finally—I am obliged for the support I have just received in saying that from the noble Lord, Lord Boyd-Carpenter.
Four minutes ago I said that I would take five minutes, and I am just about on time. Finally, I am afraid that there is an assumption among the judiciary that the judges are really the only people who are qualified to judge and, indeed, capable of judging what sentences are appropriate for particular crimes. There is a feeling also that they are the only people capable of judging what the country or society demands. I do not think that that is an assumption
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that one can necessarily accept. On what is the assumption based'? Why is a High Court judge necessarily in a better position to judge society's demands or its needs than, for example, a Member of Parliament who is at least elected and perhaps more in touch with everyday society and the general public than the judicial ermine allows?
To pose the problem is to answer it. Judges must bear some responsibility for the number of people who are in our prisons; though the noble and learned Lord, Lord Ackner, was insistent in denying that in our debate on Second Reading. I therefore place considerable importance on the ability under our proposals to consult other disciplines. We aim to achieve a greater consistency, not a uniformity in sentencing. We want a greater consistency in sentencing practice throughout the whole criminal justice system, in magistrates' courts as well as in Crown Courts. I do not believe that one can achieve that consistency and fairness which a proper system of criminal justice demands under the present system as at present constituted. I beg to move.
3.30 p.m.
The Earl of Longford The Earl of Longford moved as an amendment to Amendment No. 1, Amendment No. 2:
Before Clause 1, Leave out lines 5 to 16 and insert (" nine members, of whom no more than five shall be judges or magistrates.").
The noble Earl said: I rise with even more than my usual timidity. To use a phrase which will be familiar to a classical scholar like the noble and learned Lord, Lord Hailsham, sum timida; I am as timid as a timid woman. I realise that in this Chamber we perhaps do not apply that phrase or accept it as describing the attributes of the distinguished noble Baronesses who in many cases have predominated in our debates. Nevertheless, it applies to my situation today.
Here I am, after all these years, differing at any rate in appearance from my revered spokesman on the Front Bench. It has never happened to me before and I am sure that it will never happen again. The truth is that I do not believe for a moment that he disagrees with me. He agrees, but for some obscure reason he must propound his amendment.
I feel that this is a most important issue; it is not trivial or incidental. The whole future of penal reform depends on reducing the number of people in prison. I say dogmatically, and I believe that everyone agrees with me, that in this country we send too many people to prison. Even in relation to the crime rate, we send too many people to prison. Why do we do so? Because the much esteemed judges send them there, with some assistance from the magistrates guided by the judges.
The question is how we persuade judges to send fewer people to prison. The problem is as simple as that. I do not feel that my revered and noble friend's amendment covers that at all. The amendment deals with the disparity of sentencing, but with the general level of sentencing it does not deal. My proposition is simply an assertion that the general level of sentencing in this country is too high. It can only be brought

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down if judges are persuaded or induced to pass lighter sentences or send fewer people to prison. One either agrees or disagrees with that.
Now there is the problem of the so-called independence of the judiciary. I hope that by this time every enlightened Member of the Committee—of course, every Member of the House is enlightened—can distinguish between the independence of the judiciary in regard to individual cases and the independence of the judiciary in regard to the general sentencing level. That is the pons asinorum of the discussion. We must surely make that distinction.
I am saying nothing now about the judiciary in relation to miscarriages of justice about which we have had much discussion. There may be a possible confusion here. On this occasion I am not criticising the noble and learned Lord, Lord Lane, or any of his colleagues in regard to anything that may have been said about them lately. The only dealings I have ever had with the noble and learned Lord arose because a prisoner whom he sentenced to many years of prison had abused him. That prisoner asked me to send an apology to the noble and learned Lord who generously accepted it. That is my only connection with the noble and learned Lord, Lord Lane. Whether as an individual or as the Lord Chief Justice, the noble and learned Lord, Lord Lane, does not enter this matter at all. I must make that quite plain. When we discuss the independence of the judiciary, we may also consider the important matter of whether we could improve the arrangements to prevent miscarriages of justice, or we might be talking about something totally different: the general level of sentencing. That is what I am talking about now.
The Committee must decide whether it considers the general level of sentencing too high. If the Committee thinks it is too high, that means the Committee must also think judges send too many people to prison. Does the Committee think it can alter the level of sentencing without interfering with the allegedly sacred principle of the independence of the judiciary? I doubt whether there is anyone in the Committee who does not agree that the average level of sentencing is too high. I refer to the average level of sentencing as I do not wish to enter into details in these few remarks. Therefore, if the Committee is agreed that the average level of sentencing is too high, how does it propose to persuade the judiciary to act differently?
The Government obviously hope that, as a result of this Bill, they will manage to persuade the judges, by rather indirect means, to reduce their level of sentencing. That has been affected very well during the term of the present Government in the 1980s with regard to young people and children by an alteration in legislation. I am on the Government's side in hoping that a similar achievement will result from this Bill and that the level of sentencing can be reduced by changes in legislation. I wish the Government well in that.
However, as my noble friend Lord Richard pointed out, the reform of the parole system, as expounded by the Carlisle Committee, would increase the number of
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people in prison unless a new attitude is adopted on the part of the judges. Therefore it is a question of how we can bring about a new attitude on the part of the judges. That must be done. The general level of sentencing in this country is the responsibility of the elected government of the day, whichever party is in power.
I return to my former question: how can one bring about a reduction in the general level of sentencing? I consider my amendment to be rather wet. However, it is not as wet as the amendment of my noble friend. I say that with the utmost respect. My amendment is a wet measure. It would still leave the judges with a lot of discretion. NACRO has suggested in the past that a much wider body should be established. I imagine NACRO stands by that suggestion now. It has suggested the establishment of some kind of national criminal policy committee that involved Ministers. My amendment represents a half-way house. It does not establish total social control over the judges. However, it goes a long way towards trying to influence them in the right direction. I beg to move.
3.45 p.m.
Lord Hutchinson of Lullington: I wish to support the first amendment. Using the jargon of the day, I do not feel uncomfortable with the amendment of the noble Earl. However, I do not believe the composition of the council is the important provision in the amendment. The important provision is the principle involved. Do we want a council, or a forum, which, as the noble Lord, Lord Richard, pointed out, is largely supported by a whole spectrum of people who are involved in sentencing? I wish to stress the inadequacies of the present situation and explain why a council of this kind is so essential.
The guidelines handed down by the Court of Appeal are handed down as a result of the deliberation of the noble and learned Lord the Lord Chief Justice and probably two or three other senior judges. The guidelines handed down by the Court of Appeal are disseminated throughout the judiciary and the junior judiciary through the Judicial Studies Board. Although the Judicial Studies Board does a good job in the instruction of junior judges and as regards the consistency of sentencing, the guidelines which are handed down from judges of great seniority—one must add they are judges of great age also—are disseminated right through the judiciary. The first thing that a young advocate has to do is to make himself familiar with the guidelines so that when he conducts cases he knows what the guidelines indicate and what kind of sentences will be given for certain offences. Therefore, into the bloodstream of the young advocate flow the views of the senior judiciary; that is, the views of two or three judges at the top of the profession. From those young advocates will be drawn eventually the judges of the future. Therefore, an extraordinarily narrow view is instilled into the whole of the legal profession which deals with crime. A continuing, narrow view of the breadth of sentencing will be propagated. That view starts with

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the views of the senior judiciary. It is because of that process that we have now reached the point where the narrowness must be broadened.
The judiciary must have at its fingertips the views of other people who have far greater experience in all kinds of other areas of the sentencing process. The Court of Appeal has no staff to provide research material, to measure the effect of sentences and to institute inquiries into areas of ever increasing complexity. There is no machinery to achieve that essential co-operation between all the other agencies working in this area of which Lord Justice Woolf speaks so strongly in his report.
As has already been said, there are 27,000 magistrates whose work the senior judges are extremely ignorant of. They have no contact with that work. Court of Appeal guidelines rarely refer to it. It took 10 years from the introduction of the community service order before a guideline judgment came down from the Court of Appeal. At the moment there are 10,000 people in prison on remand, mostly as a result of justices' decisions. Yet there is really no guidance for them on the principles governing bail.
There is no mechanism whatever for addressing a number of key matters which the Committee may consider to be important in the whole sentencing process. Those matters are, for example, the significance and incidence of previous convictions; the level of sentencing scales; the effectiveness of repeat penalties; the deterrent value of the effect of custody; and the success of reparation schemes, intermediate treatment or compensation for particular types or age groups. There is no mechanism to research the appropriateness of certain penalties for young persons, the treatment of ethnic minorities, or the effect on victims or the reaction of the public to different offences and different sentences.
The only other organisation in this area is the Judicial Studies Board. It is significant that Lord Justice Glidewell, who heads that organisation, has himself called for broader discussion among the judges, in some appropriate forum, of principles of sentencing. The Times put the matter very well, saying that:
"Sentencing is not an abstract and sacrosanct judicial privilege to he exercised in isolation from its social consequences—it is a professional decision".
Without a sentencing council of some form sentencing will continue to be inadequate and amateur whereas, as The Times said, it is a professional matter.
Mr. Patten has spoken in another place of the dead hand of conformity and the removal of judicial discretion. That is entirely to misrepresent the role of a sentencing council. I hope that the noble Earl will not repeat those views when he replies to the submissions. The reports and guidelines of a sentencing council would not be binding on the courts unless adopted by the Court of Appeal or given legal force in subordinate legislation, when they would be open to interpretation by the Court of Appeal.
The council would have no executive role, any more than the Law Commission has. It would be an invaluable adjunct to the Court of Appeal. I know that many sentencers would welcome the creation of such a body. The concept reflects very closely the
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thinking behind Lord Justice Woolf's recommendation in his report of a national forum on the penal side. We must move forward in this area. We must progress. Here surely is the first step.
Lord Hailsham of Saint Marylebone: I do not wish to speak in as much detail as the previous speakers, but the variety of sentencing which exists in our courts is a problem. It will always remain a problem because sentencing is very much an art rather than a science. There are many factors which have to be taken into consideration which it is almost impossible to enumerate owing to their great number.
I feel with some conviction that what is proposed, whether in the form proposed in Amendment No. 2 or in its original form as proposed by the noble Lord, Lord Richard, and supported by the noble Lord, Lord Hutchinson, is the creation of a new quango. It will provide not the fifth wheel of the coach but probably the sixth or seventh, and will create greater confusion than the status quo.
The wheels of the coach are rather more numerous than the noble Lord, Lord Hutchinson, seemed to think. He knows better than I that 97 per cent. or 98 per cent. of the criminal work in this country is dealt with by lay magistrates all over the country. There is an appeal from those courts to the Crown Court, which has so far not received any notice in the speeches that we have heard. Secondly, the Court of Appeal is entirely the creation of Parliament. Its jurisdiction is that which is conferred on it by Parliament and its duties are laid down by Parliament. One of the purposes of Part 1 of the Bill is to define more accurately the factors that ought to be taken into account either in the court of first instance, whether that is the magistrates' court or the Crown Court, or by the Court of Appeal on appeals from the Crown Court.
The wheels of the coach are very much more numerous than the previous speakers seemed to think. They have rightly emphasised the importance of the role of the Judicial Studies Board. That is a recent addition to our judicial armoury. In my opinion it can be further improved. I believe that it was the creation of Lord Gardiner, and it has certainly justified its existence extremely well. In addition there are initial courses for magistrates, seminars and textbooks, all dealing with this complicated subject. The Court of Appeal itself issues guidelines—in the nature of things, in the more serious cases. If this Chamber desires to lay down further duties for the Court of Appeal there is no reason why it should not do so.
I feel a considerable degree of disquiet about the additional work laid on the Lord Chief Justice by the proposed amendment, in either of its two forms. The Court of Appeal is probably one of the most overworked bodies in the judicial firmament. I say that with humility in the presence of former members of it. To suggest that the Lord Chief Justice can chair an additional body of this importance, instead of performing his work as chairman of the Court of Appeal Criminal Division, is to overload him rather too much. The truth is that in addition to the Court of Appeal there is the Crown Court over the magistrates, there are textbooks, there is the Judicial Studies

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Board, there are visits to prisons and lectures—sometimes compulsory—by social workers, police officers, prison governors and probation officers. All those factors enter into judicial studies of one sort of another. The addition of another quango is not the way forward. It will only make matters more complicated.
There was a very distinguished medieval philosopher whose name was Occam—he was, I think, a Yorkshireman—upon whose judgment I shall rest. He gave, in medieval Latin, the precept that entities are not to be created without necessity.
Lord Hunt: My name appears on the Marshalled List in support of the first amendment. I should like to echo—silently because the Committee will not wish me to repeat what has been said—the case that has been made so ably by the noble Lord, Lord Richard, and my noble friend Lord Hutchinson of Lullington.
At Second Reading I spoke briefly in favour of a sentencing council. I also expressed concern about the likely effects of Parts I and II of the Bill in increasing the prison population, in the case of Part II due to the longer period which prisoners will have to serve before they become eligible for consideration for parole, and in the case of Part I because of the likelihood that the more stringent and punitive community orders and other sentences will result in more breaches and consequently in more prison sentences.
I suggest to your Lordships' Committee that we simply cannot afford to adopt a Bill which will have as one of its consequences an increase in the prison population. That is particularly so when the need to reduce the numbers in prison is common ground among all political parties and has been voiced in report after report these past 20 years and has been so clearly demonstrated in the prisons themselves. My belief in the value of a sentencing council which will include a non-judicial component to assist the judges, and it is clear that the first amendment means to assist the judges—
Earl of Longfordam sorry to interrupt the noble Lord. I am less frightened of him than I am of some of the other speakers. I know that he is more benignant. I should like to ask him a question. He realises that these non-legal people are only advisers. They are not members. The noble Lord speaks of a component, which is an ambiguous word.
4 p.m.
Lord Hunt: I am sorry to have used the wrong word and to have displeased the noble Earl. But I am very clear on this point. After all it is an amendment in which I have had a hand. I entirely support its wording. The purpose is to advise the judicial members of the sentencing council.
My support derives from my experience as chairman of the parole board for nearly seven years. I mention that only because I want to make the point that it was an experience from which all the members of that board gained a great deal, not least the judges. There was a wide range of knowledge and experience among our colleagues. As many Members of the
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Committee will know, the judicial members were working with members of the medical profession and with people from the prison service, as well as from the education, probation and social services. They were working with criminologists, magistrates and many others. As the noble and learned Lord, Lord Hailsham, pointed out, we travelled and visited prisons and many other places.
The judges, both past and present, would wish to speak for themselves. However, in my time my judicial colleagues—I think I am right in saying all of them, including the Lord Chief Justice before he was exalted to that office—told me how valuable it was to hear opinions and advice not from time to time but constantly from people outwith their own professions who had such varied experience of crime and criminals not in the courts but in the community and prisons.
The Committee may well feel that that example of shared experience in the context of the parole system may not be closely relevant to the proposal in the first amendment. But I believe that it supports the case for what would amount to an advisory panel—the amendment makes clear that that is the intention—which the judicial members would have the power to create. The responsibility for drawing up guidelines for sentencing would lie with the judicial members. Judicial independence would therefore not be infringed.
It would help to ensure that sentences, particularly for the most frequent kinds of offence not involving serious violence, rape, drug offences, serious fraud and so on, were more consistent than at present. It would probably help to bring about fewer and shorter sentences of imprisonment for the less serious crimes. I see such a council as a necessary piece of equipment to help the courts to interpret the Bill and in particular Part I in the way in which the Government at present and eventually Parliament intend.
Lord Elton: In considering the merits of the principal amendment which is now before us, I hope that the Committee will also consider that there is a further reason for variation in sentencing practices in different areas which is not the result of different views being taken by the sentencers. In future under this Act every sentencer will be under the requirement, as those in the juvenile system have been for many years, to consider first what other sentence will suffice before sentencing an offender to a custodial sentence. In that consideration they have to take into account what other sentences are available. Some of them are rendered suitable or unsuitable by the character or circumstances of the offender. Others are rendered suitable or unsuitable by the nature of the alternative provisions available. That is particularly true of the juvenile sector in which such resources as intermediate treatment are available as an alternative to custody.
The level of provision is dramatically different in different areas. It seems to me that a means of reducing the percentage of custodial sentences in areas in which they are high will often be the provision of non-custodial facilities in which the courts can have confidence. As long as they do not have confidence they will not use them and the prisons will continue to bear the weight of corrective duty.

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I hope that in his reply my noble friend will say something about that issue. Possibly in an aside I might ask him also to hear in mind that, whatever the system, one will not achieve uniformity of practice unless the practice is handed down uniformly. Sadly I remember an occasion in 1984 when I was taken severely to task by two Recorders, both of whom had long been practising, for having myself, it would appear, invented and introduced the system of remissions of sentences. There can be a degree of lack of knowledge of a rather serious nature which can only be overcome by administrative improvement and not by legislative change creating yet more bodies for us to finance and supervise.
Lord Gisborough: When I first became involved with this issue one of the first things I noticed was that even in a county with three courts there were variations in the penalties for quite simple offences such as speeding and having no insurance. Those offences are not particularly diverse one from another compared with other crimes. In fact the magistrates in each court guarded their own independence and set their own rates for such offences.
It struck me that surely within a county they could agree to a single figure. If the magistrates in the courts, as they do now, are to set a benchmark, surely the Magistrates' Association, subject to control, could set a benchmark for the whole country. There can only be starting points. Some benches would always need to go higher than other benches because of a greater tendency in the area for such a crime to take place. For example, on a motorway probably the starting point would always be higher. However, I see no reason why the starting point should not be laid down or suggested nationally. Therefore I tend to agree with the spirit behind the amendment.
Earl Ferrers: In moving this amendment the noble Lord, Lord Richard, said that he was anxious that there should be more consistency in sentencing. That theme has run through the speeches of all noble Lords who have spoken. The noble Lord gave examples from every part of the country, as did my noble friend Lord Gisborough. They said how in different parts of the country different sentences could be given. We too are of the view that there should be more consistency. That is one of the objectives of the Bill.
The way to do that according to the noble Lord, Lord Richard, is to set up a sentencing council which would consist of the Lord Chief Justice and not more than four judges of the Court of Appeal, to which he would add some advisers. The noble Earl, Lord Longford, would go a little further and secularise the council somewhat more. The noble Earl says that religion does not come into it but I thought that he would appreciate that word and would understand its context. He would like to have five judges—not Court of Appeal judges but magistrates, all five of them—and four other people whom one might describe in a not derogatory way as worthies; in other words people who are not judges or magistrates.
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The noble Lord, Lord Richard, asked what I thought was an extraordinary question: why are judges better able than MPs to decide upon sentencing? The noble Lord shakes his head.
Lord Richard: The noble Earl provokes me to rise to my feet. I did not say that they were as well qualified to sentence. I said that they were as well qualified to judge public opinion.
Earl Ferrers: They will judge public opinion, yet they will be part of a sentencing council which will lay down the parameters of sentencing. I suggest that the correct people to deal with that are those who are involved with the judiciary and who have had the professional expertise, with years of such experience.
The noble Lord, Lord Hunt, and, I think, the noble Lord, Lord Richard, and the noble Earl, somewhat let the cat out of the bag when they said that the purpose of the sentencing council would be to reduce the prison population. I accept—as I believe we all accept—that the prison population ought to be kept down so far as possible. People should not be put into prison who would be better looked after outside. That is one of the purposes behind the Bill. Indeed, that is what we ask Parliament to agree to. But to set up a sentencing council in order specifically to lessen the prison population would be overriding Parliament in the parameters which it sets and overriding the judiciary in the way in which it acts within those parameters.
The noble Lord, Lord Richard, asked two questions. Oddly enough, I wish to ask two questions. They are not the same as those of the noble Lord. Those who favour the creation of a sentencing council need to ask two questions. First, how would it improve the arrangements for ensuring consistency in sentencing? Secondly, at whose expense would it exercise its authority? I suggest that it might be at the expense of the judges or of Ministers in Parliament, or both.
Perhaps I may deal with the second question first. It is one which advocates of a sentencing council tend to avoid. At the moment the authority over sentencing is very clear. Parliament sets maximum penalties for offences. Under the Bill, Parliament will set out criteria for use in sentencing. The sentence in an individual case is a matter for the sentencer who is guided by precedent and by the judgments of the superior courts. If the Committee were to accept the new clause, a sentencing council would issue guidelines in respect of sentencing policy. The courts would be required in some way to follow the guidelines. That is bound to involve encroachment on Parliament's authority to determine the sentencing policy and the courts' authority in applying that policy.
It has been suggested, although not today, that the problem could be avoided by having the sentencing council's guidelines promulgated in a statutory instrument. If that were to happen, it would reduce Parliament and indeed Ministers to the role of a rubber stamp. If Ministers or Parliament disagreed with the council's recommendations, whose views would then prevail? Expert as the members of a sentencing council might well be—although not in the

973
council proposed by the noble Earl, Lord Longford—I suggest that it would not be right for them to impose their views on Parliament, Ministers and the judiciary. It would be a constitutional innovation.
I suggest that it would be a very grave step to ask Parliament and the courts to cede some of their authority to a sentencing council. Before we contemplate that, we must ask ourselves what the proposal achieves. How would it improve the arrangements for ensuring consistency in sentencing? The Bill sets out clearly the criteria for sentencing in the vast majority of cases. The Court of Appeal has already given guideline judgments on a number of offences. It is not a fact that Court of Appeal judgments are confined to major offences such as rape. Guidance has been given, for example, on sentencing for social security fraud and such offences. The Bill will give a basis for extending such guidance to many other offences. I suggest that this combination of legislation and the Court of Appeal guidance is perfectly adequate to bring about consistency in sentencing.
What would a sentencing council add? If it made any difference, I fear that it would be only in the direction of replacing the consistency which is the hallmark of justice with uniformity. We all know that bureaucratic bodies, especially quangos—to which my noble and learned friend Lord Hailsham quite rightly referred—soon acquire, curiously enough, a momentum and life of their own. I fear that the sentencing council would soon devise sentencing rules for any and every kind of case. Indeed, the noble Lord, Lord Richard, referred to the possibility of it giving guidance on sentencing for such offences as burglary.
At the end of that road lies what is called the sentencing grid. That is a practice in some parts of the United States. It dictates a narrow range of sentences for each offence leaving sentencers with very little discretion to take account of the circumstances of each case. That has two results—rigidity, and injustice in individual cases. In a most interesting speech on Second Reading, my noble friend Lord Howe quoted the case of a man who was sentenced to 10 years' imprisonment for tweaking the bottoms of two ladies. He was given that sentence because that was what the sentencing commission had decreed to be the immutable penalty for indecent assault. Saddled with such rigidity, jurors might prefer to acquit rather than expose offenders to what they considered would be unjust penalties.
The second result—one which the noble Earl, Lord Longford, would not like—is that there might be more rather than fewer people in prison because sentencers were given less discretion to mitigate the penalty where appropriate. A further consequence reported in the United States is that the discretion tends to shift to the prosecutor because the prosecutor's decision about which charge to bring effectively determines the sentence that can be awarded.
I know that the Committee is anxious to see more consistency in sentencing. I have great sympathy with that. I know that the Committee is anxious to ensure that people who would better be dealt with outside do
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not go to prison. With that I agree. However, I hope that the Committee will agree that our system at the moment is better, more flexible and less rigid without having a sentencing council than it would be were we to have a sentencing council.
4.15 p.m.
The Earl of Longford: Many years ago Sir Winston Churchill was interrupted by some hot-blooded Back-Bencher. When he had time to collect himself, he replied, "I do not feel altogether extinguished by that observation". I cannot say that I feel extinguished by any observations on my amendment today. There have not been many, but those that were made seemed to be based on a misapprehension.
The noble Earl, Lord Ferrers, talked about taking power from Parliament and issuing instructions. He obviously has not read the amendment. He is a busy man, and there are many amendments to come. I know how devoted he is to the House. He might consider it worth reading the amendment of the noble Lord, Lord Richard, even if he did not consider mine worth reading. Amendment No. 1 states:
"It shall be the duty of the Sentencing Council to consider and review sentencing policy and from time to time to issue guidelines in respect thereof".
No one can say that that refers to issuing instructions. It refers to guidelines. The noble Earl ought to speak to his advisers. They mostly do a good job but not today; they have got it absolutely wrong. He has been wrongly advised. I do not expect much more from him today on this particular subject.
I realise that my amendment needs some meditating on. People will have to think about it a bit. Most people do not know anything about it: they do not get the beauty of it at all. So although I may not be able to return to that at the next stage, perhaps I can turn to something still more enlightened and if people read my few remarks in Hansard they may get some idea. In other words, I shall be back next time. I am not withdrawing the amendment. I do not expect any support on this occasion but next time things may be different.
On Question, Amendment No. 2, as an amendment to Amendment No. 1, negatived.
Lord Richard: Perhaps I may at this stage compliment the noble Earl, Lord Ferrers, on making a speech which, so far as I could see at any rate, he did not believe a word of.
Noble Lords: Oh!
Lord Richard: No, really. In time-honoured parliamentary fashion, what the noble Earl did was to set up two arguments, neither of which has been put forward from this side of the Committee, and then proceed to knock them down with considerable forensic skill. There is nothing whatever in the amendment about this being done by parliamentary instrument; there is nothing in it which says that Parliament would merely rubber-stamp what the sentencing council said. The amendment is quite specific in its wording as to how the decisions or the advice of the sentencing council would emerge. They would emerge as the Court of Appeal's decisions and

975
determinations now emerge: namely, by guidelines which the courts would have to look at and follow if the circumstances were right.
Secondly, the Minister again raised the question of the grid. Nobody is suggesting that there should be anything like that. Nobody is contemplating for an instant that we should move to a situation similar to that in some parts of the United States of America, where I agree that there is perhaps an absurd degree of rigidity in the way this matter is approached. We are suggesting that the judges of the Court of Appeal should be assisted by advice from external disciplines and then, having had the benefit of that advice, they should probably get guidelines in respect of matters which at the moment they have not considered.
My noble friend Lord Longford said that he thought his proposal was "wet", but if his was wet mine is sodden. However, having heard the non-arguments against the amendment put by the noble Earl, Lord Ferrers, I feel obliged to test the opinion of the Committee.
4.22 p.m.
On Question, Whether the said amendment (No.1) shall be agreed to?
Their Lordships divided: Contents, 91; Not-Contents, 152.

Division No. 1

CONTENTS

Addington, L.

Hylton, L.

Allen of Abbeydale, L.

Irvine of Lairg, L.

Ardwick, L.

Jacques, L.

Birk. B.

Jay, L.

Blackstone, B.

Jenkins of Putney, L.

Blease, L.

John-Mackie, L.

Bonham-Carter, L.

Kagan, L.

Boston of Faversham, L.

Kennet, L.

Bottomley, L.

Kilbracken, L.

Bruce of Donington, L.

Listowel, E.

Campbell of Eskan, L.

Llewelyn-Davies of Hiastoe, B.

Carmichael of Kelvingrove, L.

Longford, E.

Castle of Blackburn, B.

Lovell-Davis, L.

Cledwyn of Penrhos, L.

McIntosh of Haringey, L.

Clinton-Davis, L.

Mason of Barnsley, L.

Cocks of Hartcliffe, L.

Molloy, L.

David, B.

Morris of Castle Morris, L.

Donaldson of Kingsbridge, L.

Mulley, L.

Dormand of Easington, L.

Nicol, B.

Ewart-Biggs, B.

Northbourne, L.

Ezra. L.

Oram, L.

Falkland, V.

Parry, L.

Fisher of Rednal, B.

Peston, L.

Foot, L.

Pitt of Hampstead, L.

Gallacher, L. [Teller.]

Prys-Davies, L.

Galpern, L.

Richard, L.

Gisborough, L.

Ritchie of Dundee, L.

Gladwyn, L.

Robson of Kiddington, B.

Glenamara, L.

Rochester, L.

Graham of Edmonton, L.

Sainsbury, L.

Grey, E.

Seear, B.

Hampton, L.

Sefton of Garston, L.

Hanworth, V.

Serota, B.

Harris of Greenwich, L.

Shaughnessy, L.

Hatch of Lusby, L.

Shepherd, L.

Hayter, L.

Stallard, L.

Henderson of Brompton, L.

Stedman, B.

Holme of Cheltenham, L.

Stoddart of Swindon, L.

Howie of Troon, L.

Strabolgi, L.

Hughes, L.

Taylor of Gryfe, L.

Hunt. L.

Thomson of Monifieth, L.

Hutchinson of Lullington, L.

Tordoff, L. [Teller.]

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Underhill, L.

L.Williams of Elvel, L.

Walston, L.

Winchilsea and Nottingham, E.

Whaddon, L.

Winterbottom, L.

White, B.

NOT-CONTENTS

Abinger, L.

Joseph, L.

Ailesbury, M.

Killearn, L.

Aldington, L.

Kimball, L.

Alexander of Tunis, E.

Kimberley, E.

Alexander of Weedon, L.

Kinloss, Ly.

Allenby of Megiddo, V.

Kintore, E.

Alport, L.

Kissin, L.

Ampthill, L.

Knollys, V.

Arran, E.

Knutsford, V.

Astor, V.

Lauderdale, E.

Auckland, L.

Layton, L.

Belhaven and Stenton, L.

Leathers, V.

Belstead, L.

Lloyd of Hampstead, L.

Bessborough, E.

Lucas of Chilworth, L.

Birdwood, L.

Lyell, L.

Blatch, B.

Mackay of Clashfern, L.

Bledisloe, V.

Macleod of Borve, B.

Blyth, L.

Mancroft, L.

Boyd-Carpenter, L.

Manton, L.

Brabazon of Tara, L.

Margadale, L.

Bradford, Bp.

Marsh, L.

Brain, L.

Merrivale, L.

Brightman, L.

Mersey, V.

Brougham and Vaux, L.

Middleton, L.

Butterworth, L.

Milverton, L.

Byron, L.

Monckton of Brenchley, V.

Caithness, E.

Montgomery of Alamein, V.

Caldecote, V.

Morris of Kenwood, L.

Campbell of Alloway, L.

Mottistone, L.

Campbell of Croy, L.

Mountevans, L.

Carnarvon, E.

Munster, E.

Carnegy of Lour, B.

Murton of Lindisfarne, L.

Carnock, L.

Nelson, E.

Cavendish of Furness, L.[Teller.]

Nelson of Stafford, L.

Clanwilliam, E.

Norrie, L.

Cochrane of Cults, L.

Nugent of Guildford, L.

Coleraine, L.

O'Brien of Lothbury, L.

Colnbrook, L.

Onslow, E.

Constantine of Stanmore, L.

Orr-Ewing, L.

Cork and Orrery, E.

Oxfuird, V.

Cottesloe, L.

Park of Monmouth, B.

Cross, V.

Pender, L.

Cullen of Ashbourne, L.

Perth, E.

Davidson, V. [Teller.]

Peyton of Yeovil, L.

Downshire, M.

Platt of Writtle, B.

Elibank, L.

Plummer of St. Marylebone, L.

Ellenborough, L.

Portsmouth, Bp.

Elliot of Harwood, B.

Rankeillour, L.

Elliott of Morpeth, L.

Reay, L.

Elphinstone, L.

Renton, L.

Elton, L.

Renwick, L.

Erroll, E.

Saltoun of Abernethy, Ly.

Ferrers, E.

Shannon, E.

Rather, B.

Sharples, B.

Fortescue, E.

Simon of Glaisdale, L.

Fraser of Carmyllie, L.

Skelmersdale, L.

Fraser of Kilmorack, L.

Slim, V.

Gainsborough, E.

Soulsby of Swaffham Prior, L.

Geddes, L.

Stanley of Alderley, L.

Grantchester, L.

Strange, B.

Gridley, L.

Strathcarron, L.

Hailsham of Saint Marylebone, L.

Strathclyde, L.

Hardinge of Penshurst, L.

Strathspey, L.

Harmar-Nicholls, L.

Sudeley, L.

Harmsworth, L.

Swinfen, L.

Harvington, L.

Swinton, E.

Henley, L.

Tenby, V.

Hesketh, L.

Terrington, L.

Hirshfield, L.

Teviot, L.

Howe, E.

Thomas of Gwydir, L.

Hylton-Foster, B.

Trumpington, B.

Johnston of Rockport,

Tryon, L.

Ullswater, V.

Vaux of Harrowden, L.

977

Waddington, L.

Wise, L.

Wade of Chorlton, L.

Wynford, L.

Whitelaw, V.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
Lord Reay: This might be a convenient moment to take a Statement. I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Northern Ireland: Political Talks
4.31 p.m.
The Paymaster General (Lord Belstead): My Lords, with the leave of the House, I shall repeat a Statement being made in another place by my right honourable friend the Secretary of State for Northern Ireland. The Statement is as follows:
"Mr. Speaker, I am pleased to be able to inform the House that, following extensive discussions with the main constitutional political parties in Northern Ireland—the Alliance Party of Northern Ireland, the Social Democratic and Labour Party, the Ulster Democratic Unionist Party and the Ulster Unionist Party—and with the Irish Government, a basis for formal political talks now exists. I frankly acknowledge to the House that this would not have been possible without the goodwill and determination of the Northern Ireland parties and the helpful and constructive approach taken by the Irish Government. The stated positions of all these parties are well known. Her Majesty's Government reaffirm their position that Northern Ireland's present status as a part of the United Kingdom will not change without the consent of a majority of its people.
"The endeavour on which we have all agreed to embark is an ambitious one. We are setting out to achieve a new beginning for relationships within Northern Ireland, within the island of Ireland and between the peoples of these islands. While a successful outcome cannot be guaranteed in advance, I am confident that all the potential participants are committed to a forward-looking and constructive approach. For their part, the two signatories of the Anglo-Irish Agreement—the British and Irish Governments—have made clear that they would be prepared to consider a new and more broadly based agreement or structure if such an arrangement can be arrived at through direct discussion and negotiation between all of the parties concerned.
"To allow an opportunity for such a wider political dialogue the two governments have agreed not to hold a meeting of the Anglo-Irish conference between two pre-specified dates. All of the parties concerned will make use of this interval for intensive discussions to seek the new and more broadly based agreement which I have just described.
978
"As the conference will not be meeting between the specified dates the secretariat at Maryfield will accordingly not be required for that period to discharge its normal role of servicing conference meetings provided for in Article 3 of the agreement.
"It is accepted that discussions must focus on three main relationships: those within Northern Ireland, including the relationship between any new institutions there and the Westminster Parliament; among the people of the island of Ireland; and between the two governments. It is common ground between all the parties that hope of achieving a new and more broadly based agreement rests on finding a way to give adequate expression to the totality of the relationships I have mentioned.
"Talks will accordingly take place in three strands corresponding respectively to the three relationships. Some arrangement will be needed for liaison between the different strands of these complex discussions. All the Northern Ireland parties will participate actively and directly in the North/South discussions. The Unionist parties have made clear that they wish their participation in those talks to be formally associated with my presence and that they will regard themselves as members of the United Kingdom team.
"It is accepted by all those involved that, so as to make full use of the interval between meetings of the conference to achieve an overall agreement satisfactory to all, it will be necessary to have launched all three sets of discussions within weeks of each other.
"A first step towards getting related discussions under way in all three strands will be the opening, as soon as possible, of substantive talks between the parties in Northern Ireland under my chairmanship. These will commence with a round of bilateral meetings before moving on, as soon as possible, into plenary sessions. It has been agreed by all the participants that before long, when, after consultation, I judge that an appropriate point has been reached, I will propose formally that the other two strands should be launched. My judgment as to timing will be governed by the fact that all involved have agreed that the three sets of discussions will be under way within weeks of each other.
"The internal talks, like the talks in the other strands, will follow a demanding and intensive schedule. In order to ensure a full airing of the issues, it will be open to each of the parties to raise any aspect of these relationships including constitutional issues, or any other matter which it considers relevant. All concerned have assured me that they will participate in good faith and will make every effort to achieve progress.
"It is accepted by all the parties that nothing will be finally agreed in any strand until everything is agreed in the talks as a whole and that confidentiality will be maintained thereunto. However, in the final analysis the outcome will need to be acceptable to the people."
My Lords, that concludes the Statement made by my right honourable friend.
4.37 p.m.
Lord-Prys-Davies: My Lords, the noble Lord, Lord Belstead, has been the bearer of good news, and we on these Benches warmly welcome the long-awaited Statement that the Minister has just repeated. We congratulate the Secretary of State for Northern Ireland on his triumph. It is a considerable achievement. We would also place on record our appreciation of the understanding and the flexibility of the political parties in Northern Ireland and of the approach taken by the Irish Government.
After years of appalling atrocities, divisions and mistrust it is immensely encouraging that the leaders of the main political parties in Northern Ireland have been persuaded to sit around a table to have these substantial talks embracing the internal government of Northern Ireland, the relationship between the people of Northern Ireland and the Republic, and the relationship between Ireland and Britain. At times during the past 15 months we greatly feared that the initiative of the Secretary of State might be coming to nothing. There was, and there still remains, a great deal of scepticism about the initiative in some quarters, but that the initiative did not break down is due to the skill, patience, and tenacity of the Secretary of State.
There is no guarantee, of course, that the discussions will lead to a settlement. No doubt the Secretary of State will have to draw on his skills and the good will he has built up over the past 15 months in order to achieve the evasive settlement. Indeed, it is fairly clear from the tenor of the Statement that the success of the talks will in no small measure depend upon the parties having learnt to place their trust in the Secretary of State's judgment.
I have three or four short questions for the Minister. First, what are the two pre-specified dates which are mentioned in the Statement between which the Anglo-Irish conference will not be sitting? When are the talks likely to begin? Secondly, will there be an overall timeframe within which it is hoped the talks will be completed? Thirdly, and particularly in the light of the last sentence of the Statement, is it envisaged that the settlement, if it is achieved, will be the subject of a referendum in Northern Ireland?
I am sure that there is no need for me to say that the Opposition fully support the Secretary of State and all the parties in their endeavours to bring about an enduring settlement which will achieve peace and reconciliation in Northern Ireland.
Lord Holme of Cheltenham: My Lords, we on these Benches recognise the considerable achievement of arriving at this new basis for talks. The 15 months of talks to which the noble Lord, Lord Prys-Davies, referred had reached deadlock. The fact that the deadlock has been broken by the personal initiative of the Secretary of State is quite a remarkable and extraordinary achievement.
We now have the first talks since 1976. They are all the more hopeful now because all parties in Northern Ireland and the Irish Government are involved. We would wish to associate ourselves with the tributes paid to the Secretary of State. He has shown both
980
patience and nerve. We and our sister alliance party had urged the initiative on him, but it should be said that the Secretary of State deserves all possible personal credit for his political helmsmanship through these very troubled waters. In the Statement which has been repeated the Secretary of State uses the words "good will and determination" and applies them to the parties in Northern Ireland. That is certainly true, but those are qualities which the Secretary of State has shown consistently over the past months.
The Northern Irish parties, together with the Irish Government, have been positive in their response. I trust that the parties are becoming aware of how much ordinary people in every part of the island yearn for a more stable relationship based on mutual respect for the traditions of the communities. If the Northern Ireland parties listen to those people rather than the opposing minorities of zealous activists, I am sure that they will be constructive in the talks ahead.
On these Benches we believe that devolution for Northern Ireland, with a substantial measure of self-government, can be achieved in the end only by the pressure of and with the consent of the people of Northern Ireland. Therefore, I should like to echo the question of the noble Lord, Lord Prys-Davies. If the talks are successful, how will the consent of the people be established?
Finally, British general elections have destabilised delicate situations across the Irish Sea on several occasions during our mutually troubled history. On these Benches we urge tripartisanship throughout the period of these vital talks. Each of the principal United Kingdom parties should commit itself unequivocally to that process so that we can provide a stable context for the talks over the months ahead. Those talks are certainly much too important to be allowed to become an incidental casualty of all the tensions of a British election.
Perhaps I may ask the noble Lord to give us as much detail as possible on the timetable. I feel sure that the Secretary of State is right to try to achieve the greatest possible momentum by tight timetabling, but we should be grateful if the noble Lord could share with us more details as regards the timetable.
Lord Belstead: My Lords, I thank both the noble Lords, Lord Prys-Davies and Lord Holme of Cheltenham, for their reaction to my right honourable friend's Statement which I have repeated today. I agree with both noble Lords—and it was a point made early on by the noble Lord, Lord Prys-Davies—that no one should underestimate the scale of the task which lies before us. It will require determination and commitment of a high order by all concerned to bring the talks to a successful conclusion.
Both noble Lords asked me about the timing of the talks. We intend that talks should begin before the end of next month; in order words, before the end of April. Although I do not believe that my right honourable friend has discussed this with the co-chairman of the Anglo-Irish Agreement, the Irish Foreign Minister, Mr. Collins, we propose that the interval occupied by the talks should not be less than 10 weeks. Therefore,

981
we propose that an intergovernmental conference which is due to fall within those two periods should not, according to the Statement, take place.
Both noble Lords asked about the reference at the end of the Statement to the need to see that the outcome is acceptable to the people generally. It has been accepted during the discussions which have taken place so far that the outcome of the talks would need to be subject to a process of validation. The major question will be whether the outcome is likely to prove widely acceptable within Northern Ireland. I should not wish to go further than that today.
4.45 p.m.
Lord Colnbrook: My Lords, I join in the sincere congratulations to my right honourable friend the Secretary of State on having managed to bring the parties together in Northern Ireland to talk about the future. That is very difficult. I tried to do it 11 years ago and did not succeed because the Unionists refused to attend. This achievement is a great step forward.
I should like to pass on two observations to my right honourable friend. I hope that he will not drop his guard against the IRA. More than anything else the IRA dreads agreement among the people who live in Northern Ireland and between the North and the South. The IRA will do anything to prevent such an agreement from taking place. I hope that my right honourable friend's guard will be kept up during the course of the discussions.
Secondly. will he do everything possible not to raise too high public expectation for any immediate result? The problems with which we are all familiar have been present for too long. The trenches into which the political parties in the North have dug themselves are too deep for them to be able to climb out very quickly. I fear that if public expectation is raised that all the problems will be solved very quickly, people will be disappointed. We all hope and wish that there will be progress, but I do not believe that it will be speedy and it is dangerous for people to believe that it will be.
Lord Belstead: My Lords, I take very seriously any intervention by my noble friend on this subject. I would be the first to say that I heed his warning and that given by the Front Bench opposite that we must not look at this through rose coloured glasses. There is much hard work to be done and many obstacles to be overcome in the weeks ahead.
My noble friend raised the point about keeping entirely alert as regards terrorism. I assure your Lordships that our firm policies for the defeat of terrorism will continue in parallel with our efforts to promote constructive political development. It is worth adding that most of the participants in the talks have clear views on security matters which they have put to my right honourable friend from time to time with both force and eloquence. I do not believe that they would have joined in this process if they thought it was likely to prove inimical to our efforts to defeat terrorism.
Lord Mason of Barnsley: My Lords, I place on record my congratulations to the Secretary of State on
982
his patience, perseverance and skill in obtaining agreement from all major political parties to discuss jointly the prospects of constitutional change. That is quite an achievement especially since the signing of the Anglo-Irish Agreement, which was an agreement bitterly opposed by the Unionists, and that still remains the position. It is only an agenda but it is a useful first step, having constructed a structure for all-party dialogue which involves government in both Dublin and London.
Is the Minister aware of the position of the two blocs? I refer to a United Ireland versus a Province whose desire is to remain part of the United Kingdom. Those positions have not changed. I refer also to Dublin's constitutional claim on the Province of Northern Ireland, which still exists. It is not only a major irritant to the Unionists but will overshadow the talks on constitutional change, and the Unionists will not brook any interference by a foreign government in their affairs. Those are facts which are most worrying.
In spite of the foreseen difficulties, I sincerely hope that the Minister succeeds. It is a delicate path to tread but he knows that better than anyone. At least the Secretary of State may establish in the minds of both governments a better understanding of each political party's views. That too would be an advance since the aggravation and misunderstandings caused by the Anglo-Irish Agreement. He may also create a more peaceful political atmosphere. That too would auger well for the future.
It is too early to expect much more. For all those who wish to see an eventually peaceful Province, we wish the Minister well in his endeavours; and I earnestly believe that he deserves to succeed.
Lord Belstead: My Lords, I am grateful to the noble Lord, Lord Mason of Barnsley, for intervening. He was another distinguished Secretary of State for Northern Ireland who realises only too well from personal experience how difficult these matters are.
In reply to the main thrust of what the noble Lord said, perhaps I may assure the House that there is no hidden agenda; we have an open agenda. As the Statement said, it will be open to all who wish to do so to contribute in the talks. We are working towards a transfer, if we can achieve it, of political responsibility to locally elected representatives on a widely acceptable basis but within a wider framework of stable relationships. That is the broad thrust of what we are trying to achieve.
Viscount Whitelaw: My Lords, perhaps my noble friend would give a voice from the distant past on this subject an opportunity to say to my right honourable friend the Secretary of State how much we hope that he will succeed and how much we admire his great tenacity in getting this far.
Perhaps my noble friend will appreciate and pass on to my right honourable friend my one thought regarding what the noble Lord, Lord Holme, said in regard to general elections. It is a nostalgic view from the past; it is something I deeply feel, for I know that it was the worst thing in my life that there was a general election in 1974. Neither the noble Lord, Lord

983
Holme, nor anyone else in this House should believe that we can stop problems arising by any pact between the parties in this country. The parties in Northern Ireland will have to fight each other at a general election on exactly the same basis as before, and that will cause the trouble. That cannot be avoided; it is a bridge that must be crossed.
Lord Belstead: My Lords, the substantive point made by my noble friend Lord Whitelaw is one quite rightly in our minds as a result of it being raised by the noble Lord, Lord Holme, this afternoon in your Lordships' Chamber. It is not one I shall pursue, although I assure the House that it is also in the mind of my right honourable friend.
Before we conclude the debate on the Statement, perhaps I may thank each noble Lord who has spoken, including no fewer than three former Secretaries of State for Northern Ireland, for the generous congratulations given to my right honourable friend.
Lord Blease: My Lords, as another voice from the past with memories too, perhaps I can join my noble friend Lord Prys-Davies and other noble Lords in welcoming this Statement. It is a message of hope for all peaceable citizens in Northern Ireland. It is an opportunity that must be genuinely grasped by all. I also express my warm appreciation, with others, for the quiet patience, the courteous determination and the political skills of the Secretary of State, Peter Brooke, and his ministerial team, for the open and responsible way they have undertaken their difficult and sometimes personally dangerous parliamentary duties and efforts.
Would the Minister agree that this House should give every encouragement to the people of Northern Ireland—that is, the Churches, the business community and the trade unions—to support in every possible way the political parties enjoining in these political talks regarding the future of Northern Ireland? They must exercise a spirit of principled give and take, which is often absent in political dialogues. I dislike using the word compromise because it has a sense of giving too much away, but there are points where give and take is necessary in these circumstances.
Is it not a fact that unless the search for a reasoned and fair accommodation is firmly based on parliamentary democracy, we in Northern Ireland will all be losers? We shall continue to suffer further economic, social and political deterioration and deprivation. Having some knowledge of the talks that have been taking place over a number of years, I ask the Minister whether consideration has been given to the administrative difficulties experienced by some of the parties involved. I know that other aspects of their involvement have been taken care of. Some members of parties that are involved have papers to present and arrangements to make. Therefore, a little help in the form of an independent central secretariat for the clearance of press notices and the making of arrangements should be genuinely considered.
With those remarks, I wholeheartedly welcome and appreciate everything that has been said in this House regarding the affairs of Northern Ireland.
Lord Belstead: My Lords, I am grateful to the noble Lord, Lord Blease. It is very much in the mind of my right honourable friend that a little time will be necessary for people to bring their case, position and arguments together. As a result of the talks about talks, there is good consultation between my right honourable friend and the parties. That is why we would intend, if it can be agreed, that the talks should start by the end of next month; exactly at what moment will depend on the points made by the noble Lord. I wish to make two further comments. I have been asked whether your Lordships' House should encourage the people of Northern Ireland down this particular path.
I believe that noble Lords have been answered by the exchanges we have had this afternoon. However, no one knows better than the noble Lord, Lord Blease, that success in talks of this kind, if they can improve the basis of the democratic process in Northern Ireland, will be important not only for peace and parliamentary democracy, but also for prosperity. The noble Lord worked hard in his life in the position that he held in the Northern Ireland Congress for Trade Unions for the prosperity of the people of Northern Ireland.
Lord Elton: My Lords, my right honourable friend the Secretary of State deserves every word of congratulations on his patience and wisdom. Does my noble friend agree that it will take at least as much patience and wisdom to bring the ship which he is now launching into port, in part for the reasons mentioned by my noble friend Lord Colnbrook? Does he also agree that some credit should go to those other participants who agreed to join in the consultation? It has been difficult not to lose patience with some of the refusals for dialogue we have witnessed over the years. They have been based upon or been reactions to genuine pressures and fears.
Noble Lords would do well to welcome this beginning of statesmanship among the various parties in Northern Ireland, which we welcome at least as heartily as we welcome the honourable and successful courage and perseverance of my right honourable friend.
Lord Belstead: My Lords, I am grateful to my noble friend Lord Elton for intervening. It is right that at the end of these exchanges I should pay tribute to the sincerity, patience and determination of all those who have been interlocutors with my right honourable friend. They have all shown a readiness to address essential interests of other participants and a willingness to work constructively towards accommodating those interests. In case noble Lords with more experience of Northern Ireland than I have feel that perhaps during these exchanges I have forgotten, I repeat that we are now going to be in for a difficult and hard time in the talks.
However, there is a belief that there is sufficient common ground to make these talks worthwhile. The statement which my right honourable friend made to that effect about 10 days ago provoked a degree of scepticism. I believe that my right honourable friend was right. I believe that the discussions he has had,

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although they have addressed preliminary issues, have expanded the area of common ground and created a firm basis on which at least to start talking.
Lord Harmar-Nicholls: My Lords, following on the point behind the question asked by my noble friend Lord Elton, will my noble friend, in recognising the great breakthrough that has taken place, pass on to his right honourable friend the importance of recognising for some time the fragile relationship that is bound to exist between the parties to this agreement? That makes it even more essential that when any further steps are taken, however small, they are steps which have been agreed by the various parties before any notice of them appears in the press. There has been the suggestion of slight irritation caused by this announcement being made today without all the parties to it being aware of it. Will my noble friend keep in mind that if ever there was a time and a negotiation which did not require anything by way of unauthorised leaks which would prejudice coming to real agreement at the end of the day, then this is it?
Lord Belstead: My Lords, all the exchanges that my right honourable friend has had with the various parties over the past 14 months have been conducted on a basis of confidentiality. We have made a degree of progress on that basis that encourages us to believe that the latest round of talks should be handled in the same way. Therefore, I very much agree with what my noble friend Lord Harmar-Nicholls has said.
Lord Lyell: My Lords, will my noble friend pass on my congratulations, together with those of all my distinguished predecessors who have spoken this afternoon? But above all does he agree that what he has stressed in his replies to some of the questions that preceded my own intervention, is that patience is the watchword of my right honourable friend? He has had immense patience and success. I believe that the two go hand in hand. Does my noble friend consider that my right honourable friend requires all patience and flexibility in the timetable which has been proposed, particularly at this first step of the talks between the parties in Northern Ireland? We hope that when any successful conclusion is arrived at my noble friend will be able to give us some good news. Until that time we wait and hope with great optimism.
Lord Belstead: My Lords, I am grateful to my noble friend Lord Lyell for his generous words about my right honourable friend. We must now hope that his patience and that of the other parties will be rewarded.

War Crimes Bill
Brought from the Commons endorsed with the certificate from the Speaker (pursuant to the Parliament Act 1911) that the Bill as compared with the War Crimes Bill 1990 contains only such alterations as are necessary owing to the time which has elapsed since the date of that Bill.
Read a first time, and ordered to be printed.

Wildlife and Countryside (Amendment) Bill
Brought from the Commons; read a first time and to be printed.

Criminal Justice Bill
5.5 p.m.
House again in Committee.
Clause 1 [Restrictions on imposing custodial sentences]:
Lord Hutchinson of Lullington Lord Hutchinson of Lullington moved Amendment No. 3:
Page 1, line 11, leave out paragraph (b).
The noble Lord said: In moving this amendment I shall speak at the same time to Amendment No. 7A. I suggest that this amendment is as important as any that the Committee will consider during the passage of the Bill. Part I of the Bill introduces a new framework for the sentencing of offenders. In Clauses 5 to 14 it introduces what are to be called "community sentences". The courts are to be encouraged to impose restrictions on the liberty of offenders, within the community wherever possible, rather than within the negative, corrupting and degrading atmosphere to be found within prisons.
To make this framework successful conditions are set out in Clause 1(2) and (4) which must be met by the courts before imposing a custodial sentence. These criteria are based on very similar criteria which have so successfully governed the sentencing of young persons since 1982. Further conditions are set out in Clause 2(2) and (3) governing the length of the sentence to be imposed. In that way a statutory discipline is imposed for the first time on the courts which will, it is hoped, at long last prevent inappropriate custodial sentences being passed. The measure will also give assistance to everyone involved in the appeal procedure to decide whether the sentencing court's reasoning was or was not acceptable.
In addition to those criteria, in Clause 3 clear, procedural requirements are spelt out which the courts must observe before imposing custody, obtaining pre-trial reports and the like. So in that way here we have a clear, straightforward framework. For reasons which have not been made clear so far and which receive no mention in the Notes on Clauses, these criteria, on which the success of this part of the Bill very largely depends, are not to apply to offenders, as far as custody is concerned, committing offences triable only on indictment if anywhere in their record there has been a sentence of imprisonment, the sentence of imprisonment not having to be for the same type of offence and having no time limit of any kind. As regards length of sentence the criteria are not to apply to any offender committing any indictable offence of any kind.
It means that as regards the more serious offences, senior judges may impose custody when the seriousness of the particular offence does not justify it or for a longer period than is adequate for the

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protection of the public, and they may do so without either any duty to state in open court the reasons for the course which they are taking or any necessity to obtain pre-sentence reports.
Furthermore, in such cases the essential information will not necessarily be available to the court on appeal, although it is in respect of these more serious offences and longer sentences that appeals are most likely to be launched and it is such cases which will cause most concern to all those who are involved in them. At Second Reading I quoted passages from the White Paper and from the Carlisle and Woolf Reports, all emphasising the vital importance of courts reducing the length of sentences, as the Carlisle Report said, "at all levels". As Members of the Committee will know, two Select Committee reports, the expenditure committee report and the All-Party Penal Affairs Group have said the same thing on numerous occasions.
It is accepted officially that our sentencing level in the United Kingdom is the highest in Europe. Statistics show that a higher percentage of men convicted of indictable offences are sent to prison, for longer terms, than was the case 10 years ago. Strangeways prison contained 630 prisoners over and above the certified complement when it erupted. Each of those was costing the taxpayer more than£300 a week to be there: and more than half of them would be reconvicted within two years—a wholly counter-productive operation. If this situation is ever to be remedied—one of the main purposes of Part I of the Bill—these clear criteria must surely apply in every criminal court to all offences and must be observed by all judges, not just magistrates, circuit judges and recorders. Above all, the criteria must apply to all classes of crime. If that is not the case the recommendations of Carlisle and Woolf will simply be frustrated.
There is a very general misconception, which was expressed at Second Reading by the noble Lord, Lord Campbell of Alloway, who I am sorry to say is not in his place, that it is the magistrates and not the judges who fill up the prisons. The most recent Home Office figures that I have show that at any one time 45 per cent. of those sentenced to immediate custody come from the magistrates' courts and 53 per cent. come from the Crown Courts. Because of the shorter sentences coming straight from the magistrates' courts at any one time 88 per cent. of the prison population comes from the Crown Courts and only 10 per cent. from the magistrates' courts. Moreover, the average sentence length in the magistrates' courts has decreased, whereas in the Crown Courts it has increased. It is in the Crown Courts that the statutory disciplines are all important.
Indictable offences cover a wide spectrum and in many of these community sentences will be entirely appropriate even though the class of offence is a serious one. According to Home Office statistics, in recent years an average of 25 per cent. of those convicted of indictable-only offences received non-custodial sentences, all of which will now become community sentences. The judges imposing them will all be subject to the equivalent disciplines set out in
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Clause 5. Surely it is even more important that these same judges should be subject to the equivalent disciplines when imposing terms of imprisonment. It is all the more important that they should call for pre-trial reports and should express publicly their reasons for the sentences they impose.
Finally, excluding indictable-only offences will lead to innumerable anomalies, as excluding classes of offence always does. For instance, criteria will be applicable to theft but they will not be applicable to conspiracy to steal. They will be applicable to sexual intercourse offences with a girl of 12, but not with a girl of 13. Bank robbery is covered, but so is pick-pocketing in the Underground. The only reason given in another place for excepting senior judges from these obligations was that it would be an unnecessary burden to impose upon them, when everyone could see that a prison sentence was inevitable, to ask them to go through these hoops, as it was put by Mr. Patten. I can only say that, on a matter of such fundamental importance, the convenience of the senior judiciary cannot be a good reason for undermining the very basis of this Bill and putting its success in jeopardy.
It was also said that there was nothing to stop every court calling for reports and following the procedures in Clause 3. That is true, but the reason for having Clauses 1 and 2 in the Bill is that the judges simply do not follow similar policies and that some form of statutory discipline has now become essential.
If a previous sentence of imprisonment is to be enshrined in the Bill as a reason for removing the need to apply the criteria, the mischief of imposing unnecessary custodial sentences will leave its mark on the system for years to come. These amendments seek to remove that possibility, remove the exceptions and ensure that the Bill makes a fresh start right across the board. I am sure that the Committee will want to hear how these exceptions came to be in the Bill in order to decide whether their inclusion justifies the damage that will follow. I beg to move.
5.15 p.m.
Lord Richard: I am happy to join the noble Lord, Lord Hutchinson of Lullington, in proposing these amendments. As I understand it, we are now considering Amendments Nos. 3 and 7A and not, at this stage, Amendment No. 11. I think that is right.
This amendment would extend the criteria governing the use of custodial sentences to offences triable only on indictment. It is a fairly simple and short point to state, but, like my noble friend Lord Hutchinson, we are waiting for some justification from the Government as to why the Bill has been drafted in this way.
The basic argument for the criteria in Clause 1, as I understand it, is that having 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 is a valuable discipline which should help to reduce the likelihood of inappropriate custodial sentences in the future. That is the object of the exercise. A subsidiary argument, but also an important one, is that if there is a subsequent appeal

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against the sentence then the existence of a statement of reasons helps everyone involved in the process to decide whether the reasoning of the sentencing court was acceptable. If that is right—it certainly seems to be the purpose behind the Bill—those arguments surely apply just as much to custodial sentences imposed for indictable-only offences as they do to custodial sentences imposed for summary and either way offences. There is no logical distinction that I can see between the two.
As my noble friend pointed out, many indictable-only offences cover a very wide spectrum in some of which—it is interesting to look at the way in which they have been dealt with in the past—a community penalty is entirely appropriate. Robbery is a good example. Robbery ranges from armed robbery to offences in which the degree of force is relatively slight and the amount stolen is small. In recent years about one-quarter of offenders convicted of offences triable only on indictment in England and Wales have actually been given non-custodial or suspended sentences. Therefore, if the statutory criteria do not apply in indictable-only cases, the discipline of applying them would not be present in many cases where at the end of the day a community penalty is a realistic possibility.
It is true that the exclusion of indictable-only cases from the criteria leads to some highly artificial distinctions. Moreover, the Bill applies the criteria to offenders convicted of indictable-only offences who have not previously served a sentence of imprisonment as an adult. That produces an anomaly. An offender sentenced to detention in a young offenders' institution for a serious robbery at the age of 20 would have to satisfy the criteria for custody if charged with another robbery as an adult.
On the other hand, an offender who served 14 days' imprisonment for a minor offence when aged 21, who subsequently stayed out of trouble for 40 years but was then convicted for a minor role in a robbery when he was in his sixties, would not be subject to those criteria. It is almost impossible to justify that kind of anomaly. The best way to avoid such anomalies must surely be to apply the criteria to all indictable only offences.
In Standing Committee in another place on 29th November 1990, when a similar amendment was under discussion, Mr. Patten said:
"We are trying to give guidance to judges about the way that Parliament will seek, in future, to see sentences handed down, but not to go so far as to make a judge sit up straight and say. 'This is ridiculous. Why should I have to give a reason for sentencing someone who has just committed a dreadful aggravated burglary or a rape? Why should I have to go through the hoops and say in open court why this man, or more rarely, this woman, should get an immediate custodial sentence?'"
All the judge would have to do to satisfy the criteria in such serious cases is to say that the offence was so serious that only a custodial sentence could be justified. I should have thought that that was hardly likely to place a serious burden on the courts. Indeed, it seems a very small price to pay for the benefit of
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applying the discipline of the criteria to other indictable only cases where a non-custodial sentence is a realistic possibility.
Finally, the ultimate illogicality—it seems to me—of the present proposal by the Government is that criteria for custodial sentences similar to those in Clause 1 have applied to the use of custodial sentences for young offenders under the age of 21 since 1983. They have applied to all custodial sentences for young people, including offences triable only on indictment. That does not appear to have given rise to any difficulty in the courts. Therefore, for the life of me, I do not see what difference it makes in principle whether the individual is under or over the age of 21. If the system has operated perfectly well for young people since 1983, we submit to the Committee that it can operate perfectly well now.
Lord Henderson of Brompton: My name is also attached to the amendment. However, there is hardly any need to add to what has been said to justify what is proposed. It is clear from what has been said that the onus is on the Government to justify exceptions from the general rule, which we were all expected to believe would take place. As has been said, the 1982 Act, which I suppose came into force in 1983, applied across the board to young people. We were led to believe at that time that that provision would ultimately be extended to all offenders irrespective of age.
During consideration of what became the 1988 Criminal Justice Act, 1 attempted to extend the provision to cover the ages above that of juveniles. I was told that the experiment with juveniles had to continue before any extension could be considered to cover adults. When it was extended to adults, I thought, as did many others, that it would he extended across the hoard. However, that does not appear to be the case. We very much want to know the reason why this is so.
Part I of the Bill is a good measure and long anticipated. I am most grateful to the Government for bringing it before Parliament. However, I cannot understand why offences on indictment should be excluded from the provisions of this part of the Bill. As I said, the Bill is long overdue and, as the noble Lord, Lord Hutchinson, pointed out, it will inevitably give rise to anomalies. I cannot see any reason for excluding indictable offences, except possibly the amour proper of the power of the judiciary.
I do not think that it is infra dig for the higher judiciary to have to state clearly when the only possible sentence for an offence is custody. I do not see why the judge should not be compelled by an Act of Parliament to say those few words. All he needs to say is that the offence is so serious that only a custodial sentence can be justified. That will not impose any great hardship on the higher judiciary, especially as we know that at present one-quarter of the offences on indictment are dealt with by way of non-custodial sentences. It means that in something like three-quarters of the disposals with which the High Court deals those words will need to be said. As I said, I cannot believe that that will he a great hardship. That seems to me to be the only reason for the current

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restriction. However, if the noble Earl can give me any other reason for the present situation, I shall be most interested to hear it. I support the amendments.
Earl Ferrers: Amendments Nos. 3 and 7A would extend the restrictions on the use of custody in Clauses 1 and 2 of the Bill and the associated procedural requirements in Clause 3 to all indictable-only offences except those where the penalty is fixed by law—that is, in the case of murder or high treason. Included would be people convicted of indictable-only offences who have previously served sentences of imprisonment.
Members of the Committee have argued that we should not draw a distinction according to the type of offence. I do not agree. Offices which are triable only on indictment are serious offences. In 1989, 78 per cent. of adult offenders sentenced for such offences had committed violent or sexual offences, or robbery. Some of these offences will he more serious than others. But there can usually be little doubt that an offence such as robbery or rape properly deserves a custodial sentence—and quite probably a long sentence. Current sentencing patterns reflect this view. In 1989, 76 per cent. of adults sentenced for an indictable-only offence were sentenced to immediate imprisonment. Moreover, in many cases, the sentences received were long; 70 per cent. of sentences for rape, for example, being in excess of five years. For those kinds of offences, imposing the kinds of restrictions on the use of custody and the procedural requirements set out in Clauses 1 and 3 for every case would, I suggest, pose an unnecessary and an unhelpful burden on the court and on the probation service which would have to provide the reports.
There is already a good deal of clear Court of Appeal guidance about sentencing for such offences; for example, Regina v. Billam in 1986. In that case the Court of Appeal gave firm and clear guidance on the appropriate sentence for rape and the factors which might aggravate such an offence. I see that the noble Lord, Lord Hutchinson, wishes to intervene. I am happy for him to do so.
Lord Hutchinson of Lullington: I am most grateful. Is the noble Earl seriously saying that when there is the possibility of the imposition of a lengthy sentence—that is, one of perhaps two, six, eight or 10 years' duration—the judge should not obtain a pre-trial report and that he should not discover everything he can about the accused, and about the offence, in order to decide on the length of the sentence?
Earl Ferrers: I believe that the majority of judges already do so. It is inconceivable that judges do not take into account every conceivable matter relevant to the case. However, as matters stand, they can require a report to be made. The point is that they will not be obliged to do so in every case. I have no doubt that where the court considered the case to be borderline—that is, as between imposing a custodial or community penalty—it would indeed ask for such reports to be made.
It could be argued that indictable only offences should be excluded from the new sentencing
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framework. There are already restrictions on imposing custody upon young offenders and those who have not previously served a term of imprisonment even if the offence is triable on indictment only. We believe that it is right to ask the courts to think carefully before imposing custody in such cases. It would be wrong to require Crown Courts to follow the detailed procedures set out in Clauses 1 and 3 in every case. We are referring to those convicted of an offence triable only in the Crown Court and who have served a previous term of imprisonment. Those are the worst cases. It would be wrong to make all those cases subject to the same provisions.
5.30 p.m.
Lord Donaldson of Kingsbridge: Before the Minister sits down, he quoted the figure of 74 per cent. for one of the years in respect of those who served long custodial sentences. That means that 26 per cent. did not. That means that in one in four cases the judges, by the proper procedures—it has nothing to do with the Bill—were obliged to make such an inquiry before they decided not to impose a custodial sentence. It is inconceivable that anyone should seriously say that we cannot ask the judges to announce that it is a matter that has been dealt with. We must try to obtain a better explanation.
Earl Ferrers: The noble Lord, Lord Donaldson, will be well aware that when people are tried the judge will make every conceivable effort to reach the right conclusion. In the Bill we say that those who are tried summarily, or either way, or on indictment only, but who have not yet served a prison sentence, should be subjected to the restrictions to ensure that fewer people go to prison.
It is unreasonable to say that a Crown Court judge should be obliged on every occasion to go to the trouble of asking for reports from the probation service and others for those who have been to court previously. The judge may wish to do so, but it is unnecessary to impose an obligation upon him to do so in those cases.
Lord Elton: My noble friend seems to object, in particular, to what may be thought to be elaborate procedures set out in Clause 3 being applied to the type of offender described in the passage that the amendment seeks to remove from the Bill. It would be helpful if he would tell us whether he objects to the judge being required to make the considerations required in Clause 1(2) (a); that is, to arrive at an opinion:
"that the offence, or the combination of the offence and one other offence associated with it, was so serious that only such a sentence can be justified"
and so forth. It sounds as if he would be content for the judge to form an opinion, as it were, prima facie, because the offence itself and the preceding offence were so serious. In other words, is he seeking to avoid placing an administrative burden on the judiciary as opposed to avoiding judicial consideration? Perhaps the Committee will forgive me for floundering over terminology with which once again I have become unfamiliar.

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In Clause 3 there is a peculiarity which I should like my noble friend to clarify. I apologise to him for not signalling my intention to ask this question by tabling an amendment. I was overtaken by events. In subsections (2) and (3), we find that the court may consider the relevant circumstances of previous offences, but is precluded from considering any response to previous sentences. Those of us who work directly or indirectly with offenders are closely interested in how they react to sentences. It seems, to me at least, a bit like telling a doctor that he may consider that the patient has had a disease in the past but may not consider what response he has made to the treatment he was given for that disease.
I am making this point slowly so that my noble friend may be sustained by the usual supply of wisdom from the usual quarter if it is not already resident in his impressive cranium. I believe that I have made the point clear, and I hope that my noble friend will be able to answer the question.
Earl Ferrers: I shall answer those two questions as best I can. My noble friend generously said that he was floundering when he asked his first question. His floundering caused me to flounder in comprehension. I should like to consider the question he asked so that I can understand what he is getting at. I am prepared to consider the point.
With regard to my noble friend's point about the treatment for the disease, we are concerned with those who have already served a period of imprisonment. It is important to consider that people have been sentenced and spent time in prison rather than necessarily to discover how they reacted when they were in prison.
Viscount Bledisloe: The noble Lord, Lord Elton, mentioned a point that I confess also puzzled me. As I understand it, the proposers of the amendment suggest that the only consequence of deleting paragraph (b) is that the courts will then have to go through what have been described as the hoops and give reasons for imposing custody, if they do. As I understand it, subsection (2) debars the court from considering a man's previous record except in so far as one other offence is concerned—it is associated with the offence in question. From subsection (8) we see that that means an offence for which he is convicted or sentenced at the same time.
If the amendment is accepted, a court would be debarred from saying, "You have a record as long as my arm; you have been to prison 14 times before, but I cannot take that into account when deciding whether or not to pass a custodial sentence upon you". That is a rather more important change than ensuring that a judge utters certain ritual words before he passes the inevitable sentence of imprisonment upon a serious rapist. I may have misunderstood. If I have not, surely the amendment goes much too far if it means that no regard can be had to the previous convictions of someone tried on indictment when deciding whether he is to go to prison.
Earl Ferrers: We are trying to say to those people who fall within the lower categories—those who are tried summarily, either way or on indictment—that they will be subjected to the provisions of Clause 3 to ensure that they go to prison, only if that is the correct course for them. The courts have to go through the other hoops to keep them out of prison. If the amendment were to be accepted, that would also apply to those who have committed an offence which is only triable in the Crown Court and to those prisoners who have already been subjected to a prison sentence. They are therefore the worst types of offenders. Those people who, the noble Viscount said, had sentences as long as their arm and who had been in before would be excluded from the restrictions which are placed on court sentencing for other offenders. If the amendment were included, the courts would be subject to those restrictions. That would be correct because those are the people who committed the worst offences.
Lord Hutchinson of Lullington: I am a little shocked by the noble Earl's reply. He has not seen fit to tell us how this exception came into the Bill. It is perfectly clear from what he said that it is simply for the convenience of the senior judiciary. No doubt all Members of the Committee will draw the conclusion that it is clearly part of a package deal in regard to Clauses 1 and 2.
Earl Ferrers: Perhaps I may interrupt the noble Lord. I feel he is going a bit over the top to say that it is just for the convenience of the judiciary and that it is a package deal. It is nothing of the kind. I have tried to explain more than once the reasoning. It is that those people have been convicted of the most serious offences and have already spent a period in prison. For them, we say that it is not right to impose on the judge that there should be a report in all cases. There may well be cases where the judge will want a report.
Lord Hutchinson of Lullington: The question before the Committee is whether or not the criterion that the sentence passed must be commensurate with the seriousness of the offence should apply to all judges when passing any sentence.
There is no possible explanation of why some judges, for some offences, should not be subject to that criterion. No reasoned argument has been put forward as to why a judge, faced with whether he should impose two, three, six, 10 or 20 years, should not have to face the criterion. A sentence commensurate with the seriousness of the offence is the question that will have to be decided.
The amendment states that that criterion should apply to all judges in all sentences. The fact that 25 per cent. of non-indictable offenders are not given custodial sentences indicates a large swathe of offences where the judge must consider whether there should be a custodial sentence. In 25 per cent. of the cases he decides not. He must have been considering it in a great many more cases.
Another point is that over and over again imaginative sentencing means sometimes breaking the

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pattern for an offender who has continually offended. Anyone who has been involved in sentencing knows that there are moments in the career of any criminal or any person who has committed offences where, through some change in their lifestyle, their age or for some other reason, it is suddenly not worth repeating the custodial ladder. A judge passing sentence, besides having to consider information received, must also take account of the criterion of having to pause to consider what is necessary in a certain case and whether the sentence is commensurate with what a man or woman has done. It is essential that this should happen across the board.
The noble Earl said that the judge would go to every possible length to obtain the proper information in any case. The trouble is that extremely long sentences out of proportion with the offence have largely arisen because some judges are pressed for time and deal with a great many pleas of guilty on one day in a senior court. They do not pause sufficiently to consider the information before the court. Nor do they ask for information as they should.
As the noble Earl said, the current pattern reflects the use of long sentences. The Bill is all about that current pattern. Clauses 1 and 2 seek for the first time, through parliamentary intervention, to change that pattern at long last. That is why it is so important that the criteria should apply right across the board.
Perhaps I may say to the noble Viscount, who raised the relevant matter of previous convictions, that the question will arise later when we come to the amendments involving that subject. I do not believe that it should enter our decision on this amendment.
5.45 p.m.
Viscount Bledisloe: Before the noble Lord continues, does he accept that the effect of his amendment would be that no court could in any circumstances have regard to someone's previous record, however ghastly, in deciding whether or not to send him to prison?
Lord Hutchinson of Lullington: No, I do not accept that. It will be a matter for argument later when we explain why that is not so. I agree that it may well be so in many cases, but not all. It may be so as the Bill is drafted but perhaps it will be drafted differently by the time we finish.
Lord Elton: Since the noble Lord has already been interrupted, perhaps he could give his reaction to the point I tried to make. It is that there may be two categories and not one here. He includes all categories. By disapplying Clause 1(1) (b) he also disapplies the operation of Clause 3 which concerns the procedures that must be gone through by the judge in the process of carrying out Clause 1(1) (b). Would the noble Lord find it attractive to abandon that and to disapply only the Clause 3 procedures in what my noble friend would call obvious cases? That would save an enormous amount of time and administrative expense.
Lord Hutchinson of Lullington: I entirely understand what the noble Lord said. He is absolutely right in demonstrating that there are two different
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points in the procedure where the criteria apply. The first is the one to which I referred of whether the sentence is commensurate with the seriousness of the offence criterion. It is vital that that should be followed. Clause 3 involves the administrative pre-trial details, the paper work and so on.
I see that it may be possible at a later stage in the Bill's progress to insert an arrangement whereby, if both parties, the prosecution and defence, agree that there is no need to follow the procedures in Clause 3, one does not follow them. That may be a way out of the problem. However, I could not possibly go so far as the noble Lord suggested and say that there was no necessity for the senior judge to follow the Clause 3 procedures. With the agreement of the other side—the defence—it may well be so, but not otherwise.
I feel inclined to divide the Committee on the matter because it is of such importance. However, having regard to the time, it may well be wiser in the circumstances for the situation to be understood by more noble Lords than are present in the Chamber at the moment. In view of the great importance of the matter I shall return to it at a later stage. For the moment I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Richard Lord Richard moved Amendment No. 4:
Page 1, line 21, at end insert:
("( ) A court may deem that an offence is serious if that offence involves violence, robbery, arson, drug trafficking or a sexual offence.").
The noble Lord said: I have a query on a procedural matter. I wonder what will now happen to Amendment No. 11. As I understood the position, Amendment No. 1 I had originally been grouped with two amendments we have just been considering as it covers a similar point. Amendment No. 3 extended the criteria to offences triable only on indictment. Amendment No. 11 extended the criteria to pre-sentence reports for offences triable only on indictment.
Earl Ferrers: I also thought that that amendment would be discussed with the amendments we have just dealt with. I did not intervene to suggest that we should follow that course because I thought that the noble Lord, Lord Hutchinson, had for some reason decided to speak to only two amendments. It appears to me obvious that Amendment No. 11 is connected with the other two amendments, but it is up to the person in whose name the amendment is tabled to decide what to do in this matter.
Lord Hutchinson of Lullington: Amendment No. 11 stands in my name.
Earl Ferrers: As that amendment has not been spoken to, it can always be debated when it is called. However, I hope that for the convenience of the Committee the same arguments will not be rehearsed all over again.
Lord Hutchinson of Lullington: As I understand the position, if the amendments in the name of the noble Earl are accepted, Amendment No. 11 will not be called. If Amendment No. 10 in the name of the noble

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Earl, Lord Ferrers, is accepted Amendment No. 11 will fall, and in that case I shall be perfectly prepared to withdraw Amendment No. 11.
Lord Richard: I am obliged for that explanation. Amendment No. 4 is a probing amendment. The amendment seeks to insert the following words at the end of Clause 1(2) (b):
"A court may deem that an offence is serious if that offence involves violence, robbery, arson, drug trafficking or a sexual offence"
The amendment is perhaps not the most felicitously drafted measure one could devise. However, the object of the exercise is simple. The Bill proposes that a person shall not be gaoled unless the offence he has committed is serious, so it would be nice to be told what offences will be deemed to he serious. The Bill does not define "serious". That will lead to inconsistent interpretation, judicial confusion and even further regional variation in the use of custodial sentences. The clause, somewhat roughly, attempts to offer the judiciary some guidance on the circumstances in which it may wish to deem an offence serious. It is, however, worth noting that approximately half of all persons who have been gaoled did not commit an offence that came into any of the categories mentioned in the amendment. The main objective of the amendment is to discover whether the Government have a definition in mind for "serious" and, if so, what that definition is. I beg to move.
Earl Ferrers: Clause 1(2) (a), as currently drafted, prevents the courts imposing a custodial sentence unless the offence was so serious that no lesser disposal would do. We have left it to the courts to decide in each particular case whether the offence is serious enough for a custodial sentence. We do not think it right to spell out the provision. That is because the circumstances of each case vary. Depending on the circumstances, for example, some sexual offences may be serious and others may not. In exercising their discretion the courts will benefit from the guidance given by the Court of Appeal.
This amendment would qualify Clause 1(2) (a). If it is simply intended to provide guidance on what types of offence might be serious enough to justify a custodial sentence 1 do not think it is needed. The courts do not need to be told that violent offences or drug trafficking may be serious offences for which they might consider imposing a custodial sentence. On the other hand, the amendment might be intended to restrict further the courts' use of custody under Clause 1. Not only would the offence have to be serious enough for a custodial sentence, it would also have to fall within the range of offences listed in the amendment.
The noble Lord, Lord Richard, was kind enough to say that his amendment was not felicitously drafted. The problem is that it omits a number of offences for which the courts might justifiably want to impose a custodial sentence. The amendment omits to mention a domestic burglary where the victim's home was systematically wrecked by a gang of professionals who stole items worth many thousands of pounds in value. It omits to mention large scale fraud or financial
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wrongdoing, as in the Guinness case. I am certain that the noble Lord did not intend to exclude such offences. Obviously the courts would have to pass prison sentences for those kinds of offences. We believe it is right not to spell out exactly what constitutes a serious offence but to leave that decision to the sound judgment of the courts.
Lord Richard: I am not impressed with that reply as this is a matter which is bound to cause a certain amount of judicial confusion. The courts and judges will have to determine what is or is not serious. I should have thought some guidance from the Government or from Parliament in this Bill would have been helpful. However, it appears that not much guidance or help will be forthcoming. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Richard Lord Richard moved Amendment No. 4A:
Page 1, line 21, at end insert:
("( ) An offence shall not be regarded more serious by reason of any previous convictions of the offender or any response of his to previous sentences".).
The noble Lord said: This is a paving amendment to Amendments Nos. 15 and 16 and it may be for the convenience of the Committee if I speak to the three amendments together. If certain amendments tabled by the Government are accepted a provision in Clause 3 will be deleted. However, it reappears in an identical form in another part of the Bill. As I understand the position, that provision is now relevant to Government Amendment No. 72. At this stage I shall speak to Amendments Nos. 15 and 16 on the basis of the Bill as it is currently drafted.
The object of these amendments is to delete the provision enabling the courts to consider the circumstances of previous offences when assessing the seriousness of the current offence. It is worth noting that the Government have drafted the provision in that fashion. They believe the relevance of previous offences lies in the assessment of the seriousness of a current offence. That is an exercise of judicial determinism that I find hard to follow. As I see the position, the Government are saying to a judge, "You cannot consider the circumstances of previous offences in terms of the sentence you are going to pass, but on the other hand you can consider the circumstances of previous offences when you are assessing whether or not the current offence is serious enough for you to pass a sentence". To put it mildly, that seems a somewhat artificial situation.
For the most part the criteria for custodial sentences contained in the Bill emphasise the need to match sentences to the seriousness of the offence rather than to the offender's previous record. That is fine so far. I understand that policy. Home Office Research Study No. 103,Sentencing Practice in the Crown Court(1988), found that in cases of theft where the value of the goods stolen was under£200, 39 per cent. of offenders received immediate prison sentences. That is a staggering statistic. In such cases imprisonment is often a response to persistent petty offending in the past. It cannot be justified by the

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gravity of the offence for which the judge is supposedly sentencing. As the White Paper put it, injustice is more likely if courts do not focus on the seriousness of the offence before them when they sentence.
Clause 3(3) of the Bill, which the amendments would delete, modifies that principle by stipulating that courts can 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 current offence. An example of that, which was cited by Mr. Patten when the Bill was in Committee in the other place, might be when the circumstances of previous offences helped the court to conclude that a burglary for which it was sentencing was a calculated, premeditated and professional offence as opposed to an opportunist one committed on the spur of the moment.
I suggest to the Committee that subsection (3) is not necessary in order to achieve that result. Courts could, in any case, legitimately sentence more heavily for calculated, professional offences under the criteria which already exist in Clauses 1 and 2, which deal with the seriousness of the offence.
Since the Bill was published it has become clear that many magistrates, Members of Parliament, journalists and others—including some peers, myself among them—find the distinction between subsections (2) and (3) confusing and difficult to grasp. We give the Government credit for good intentions to the extent that we do not believe that subsection (3) is intended to allow courts to increase sentences simply because the offender has a previous record. However, there is a very serious risk that that is precisely how it will be interpreted in practice by some judges and many magistrates. If that is so it undermines the aim of restricting custodial sentences to serious cases. Because of that risk—dare I say that serious risk?—in our view subsection (3) should be removed from the Bill. That is what the amendments seek to achieve. I beg to move.
6 p.m.
Lord Hutchinson of Lullington: I support the amendments. I agree with what the noble Lord, Lord Richard, said about the problem of the two subsections and that the Bill would be far better without subsection (3).
As I understand it, the intention is that the courts should observe the principle that if the offender has already been punished for an offence it is unfair and unjust to punish him twice over by increasing the penalty for the subsequent offence. Lesser offenders should not be imprisoned because they have done the same thing before. Persistent lesser offenders should, as far as possible, be dealt with in the community.
The Bill is trying to remove what might be called the ladder principle which at present is built into the way in which judges approach the persistent offender. Community sentences are tried, fines are tried, and so on all the way up the ladder until the judge says that everything has been tried and the offender must now go to prison. Subsequently when somebody comes before the court again the court finds no difficulty in
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saying that he must go to prison again. There is no problem at the moment in repeatedly sentencing offenders to prison. The Bill is intended to ensure that, for a change, repeated sentences should be imposed which are not prison sentences. Courts should appreciate that for people who offend continually it may be far better to deal with them by means of repeated sentences in the community and that additional offences should not make the instant offence more serious because of what has happened previously.
That would produce a completely different attitude to sentencing, one which has to be instilled into the judiciary and into the magistracy. They should not necessarily follow the ladder principle. They should be prepared to impose community service orders more than once. There is nothing wrong in doing that two, three, four or five times. That is no more wrong than imposing a short term of imprisonment two, three, four or five times. It is likely that the imposition of custodial sentences will be totally destructive and non-productive. There is a good chance that the imposition of community sentences will have the desired result. One has to have patience and it may succeed.
That is the purpose of the proposed subsection. It is intended to try to alter that approach, which at present is built into the judicial system. Therefore, I wholeheartedly support the amendment.
Earl Ferrers: I understand the anxieties which the noble Lords, Lord Richard and Lord Hutchinson of Lullington, have expressed. In principle there is not a great deal between us. The new sentencing provisions in the Bill require the courts, in passing sentence, to concentrate on the offence or offences immediately before them. That must be right. They do not allow the courts to take account of an offender's previous convictions when determining the seriousness of an offence except to the limited extent provided in Clauses 3(3) and 6(4), or any responses to his previous sentences.
Perhaps I may explain why we have included those subsections in the Bill. The noble Lord, Lord Richard, gave the Government a very generous accolade, saying that he thought that the Government were trying to do the right thing. That came as nectar, coming from the noble Lord. The provisions are not intended to allow sentencing on the basis of record to creep in by the back door. They are intended to provide for those particular cases—and not to go further than that—where the instant offence may legitimately be regarded as more serious by virtue of something in the offender's past. I accept that that is a delicate area. For example, there is a great deal of difference between an opportunist burglar, who tries a back window on impulse, finds it open, and steals something, and someone whose previous offending of a similar character shows him to be someone who offends in a systematic and premeditated way.
Another example is the shopkeeper who sells bad food, and who makes the excuse that it was an oversight because he did not check his stock carefully enough. The first time, or perhaps even the second time, the court might accept that; but what if it is the

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tenth time? Are we really to say that the court cannot look at the circumstances of the previous nine offences and conclude that the offender is guilty not of an oversight but of a deliberate and sustained disregard of the law and of the public's safety?
I give one more example. An offence of criminal damage against property in a particular area, which formed part of a pattern of such offences, might rightly be regarded as more serious if all the offences had been against the property of members of the ethnic minorities, showing them to be racially motivated.
It is important to note that the circumstances of previous offences must be relevant to the seriousness of the current offence before that can be taken into account. Previous offences of a completely different character would be unlikely to be relevant. Even if there were recent similar offences those would not necessarily be relevant to the seriousness of the current offence. For example, if the offender is a compulsive shoplifter, the tenth offence is not made any more serious by the previous nine offences; for an habitual inebriate who goes to Tesco every week and pinches a bottle of whisky, the tenth offence is no worse than the previous nine. It would be a different matter were the offender a member of a professional shoplifting gang. Then the circumstances of the previous offences might well be relevant to the sentence for the latest offence.
The account that is to be taken of the offender's previous record in sentencing raises a difficult issue. It is one to which we have given a great deal of thought. I am quite clear—I agree with the noble Lord, Lord Hutchinson of Lullington—that generally speaking, sentencing on record (punishing an offender twice over for the same offence) is wrong in principle and harmful in practice. Clauses 3 and 6 rule that out. On the other hand, if the circumstances of previous offences are genuinely relevant to the seriousness of the offence then almost by definition we would produce the wrong result if we told the courts completely to ignore them.
I believe that Clauses 3 and 6 strike the right balance. I hope that the Committee will agree.
Earl Nelson: Before the noble Earl sits down perhaps I may revert to the example he gave of the inebriate who goes every week to Tesco and steals a bottle of whisky at a value, let us say, of£9. I believe that I understood his point. On the one hand, there is the drunk who goes to Tesco and steals a bottle of whisky which is valued at only£8 or£9 and on the other there is, say, the professional pickpocket with 20 previous convictions which cover perhaps five years but who steals only£5 each time. Are we then to treat the professional pickpocket in the same way as it is suggested that the drunk who steals whisky from Tesco should be treated?
Earl Ferrers: It is always difficult to say what one would do in one case as opposed to another. I gave the example of the bottle of whisky at Tesco. The person who stole in that way week after week in fact could not help doing it. Therefore, the cumulative sum of offences does not affect the main principle that the
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man could not help acting in that way. Had that man been part of a gang and removed the bottle in order to stock up some other shop—a case of deliberate knavery—then the other offences ought to be taken into account.
As regards the pickpocket, obviously the judge would have to consider whether or not that was a matter which fell within the scope of these clauses. I do not think that it would be right for me to comment on that.
Viscount Tenby: Perhaps the Minister will permit me to ask another question on this matter. I am not exactly shifting the goal posts. I understand the point about judging the offence under consideration in relation to a past criminal record. Let me consider the other side of the coin. What about the man who has a record and comes again before the court although he has not offended for a considerable period of time? Should not the court take that fact into mitigation? Is it able to do so?
Earl Ferrers: Yes, I think that it is able to do so and would do so.
6.15 p.m.
Earl Fortescue: I should like to ask my noble friend a question to which, had I studied the Bill in proper detail, I should probably know the answer. I am concerned about the offender who has been in trouble on several other occasions and been sent to prison two, three or maybe four times. To impose a community sentence is a great risk to take. I wonder whether it will now be possible to combine a community sentence with a suspended prison sentence. It seems to me that that might be the best and easiest answer.
Earl Ferrers: I believe that in fact it is not possible to combine a suspended prison sentence with a community sentence because the two sentences cover different aspects.
Lord Richard: I am obliged to the Minister for his response. However I ask him to look again at this matter. The provisions of Clause 3(3) create confusion as to the extent to which courts are entitled to look at previous offences. The noble Earl said that they can only do it for the purpose of forming an opinion as to the seriousness of the offence. I understand that. But an hour or so ago, charmingly as always, he was not prepared to define "serious" because it would hamper the activities of the judges in the courts.
Clause 1(2) says that:
"the court shall not pass a custodial sentence on the offender unless it is of the opinionߪthat the offenceߪwas so serious that only such a sentence can be justified for the offence".
For the life of me I do not understand why, when that is in Clause 1(2) (a), one then needs the provision in Clause 3(3) which, from the way in which it is drafted, will only complicate matters so far as concerns sentences. Clause 3 does not add anything to the provisions of Clause 1(2) (a). I suppose that it is simply an attempt to remove what the draftsmen thought might be confusion arising from Clause 3(2). If that is

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the basis, all I can say to the noble Earl is that it has not succeeded in removing confusion but has compounded it.
If subsection (3) were omitted from the Bill, a judge who had an offender in front of him with a number of previous convictions, under the provisions of Clause 1(2) (a) would clearly say to himself: "Let us look at this man's background. Is he a professional burglar, pickpocket or stealer of whisky from Tesco? If I decide that he is a hardened criminal to that extent, ergo I come to the conclusion that this offence is more serious than the offence of the inebriate who goes into Tesco and steals a bottle of whisky because he or she is drunk and who does it on a fairly regular basis".
The judge can do that under Clause 1(2) (a). If he can do it already under that clause, why on earth do we want to repeat in Clause 3(3) in rather complicated and difficult language precisely what he can do in Clause 1(2) (a)? Subsection 3(3) is a complicated provision which adds nothing to the powers of the judges and does not do anything for the Bill. I suggest that this is a matter which the noble Earl might be so kind as to look at again.
Earl Ferrers: Perhaps I may say a few more words on this point. I understand the difficulty of the noble Lord. He is concerned about the definition of seriousness. One cannot go too far down that road. It is rather like people saying that in Bills one ought to define reasonableness—what is or is not reasonable. I believe that it must be for the courts to decide what is serious and what is not serious.
I accept that this is a difficult area. I shall of course consider all that has been said but I am advised that subsection (3) is needed so that the court can take into account everything that is relevant to seriousness. What the Committee has said is of great importance and I shall certainly look at this matter but without any commitment. I would not wish the noble Lord to think that that is an indication that I shall accept his amendment. But I realise that we are in quite delicate and difficult areas and I should be prepared to look at what the Committee has said to see if there is any way in which we can make the point better and clearer.
Lord Richard: I am obliged to the noble Earl for what he has just said. Personally, I do not see why subsection (3) is necessary. No doubt at some stage someone will tell me why it is. However, as the noble Earl will look again at the matter, I ask leave of the House to withdraw the amendment. If, after he has looked again at it, he decides to stick where he is, I reserve the right to bring the amendment back at a subsequent stage of the Bill.
Amendment, by leave, withdrawn.
Lord Richard Lord Richard moved Amendment No. 4B:
Page 2, line 11, after ("language") insert ("(with interpretation if necessary)").
The noble Lord said: This is a small amendment but it raises a fundamental point. The Committee will see that it is the peg on which to hang the hat. It amends line 11 on page 2 by inserting in subsection (4) (b),
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"in any case, to explain to the offender in open court and in ordinary language with interpretation if necessary why it is passing a custodial sentence on him"
There is evidence to suggest that some defendants who cannot communicate effectively in English appear before the court without access to properly qualified and relevant interpreters. Those few Members of the Committee who were present late one night may remember that I raised the issue in the passage of the latest code of conduct under the Police and Criminal Evidence Act. The evidence that I have since received confirms my fears.
The national and local courts should have a responsibility to ensure that services are accessible to all defendants and witnesses in a multilingual and multiracial society such as ours. They must make special provisions for people who cannot communicate in English. The need for interpreters was highlighted in a recent Policy Studies Institute survey which noted that within the adult Asian population, 62 per cent., and among Pakistani people, 48 per cent., speak either little or no English. Within all age groups, women on the whole are less fluent than men. Over 70 per cent. of Bangladeshi and Pakistani women were reported as speaking little or no English.
Most agencies recognise the need for interpreters in the criminal justice system. But there is no set policy for employing them, for testing their language skills, their efficiency or their suitability for the job. Interpreters are often recruited in a very ad hoc manner where staff cannot find the member of the team who speaks the required language. It is self evident that the use of untrained, casual interpreters can lead to difficulties. It may lead to wrong interpretation if the translator does not understand the jargon used by the court personnel or lawyers. He or she may have a personal bias, may distort the issue and not keep confidentiality. There may be serious consequences if the interpreter cannot understand the client's dialect or language properly. The same is true if the interpreter's English is modest.
Courts should not take advantage of volunteers. That may often lower the standard of service provided. In order to give an efficient court service, interpreters should be trained, paid properly for the service, and supported adequately. Perhaps I may cite two examples recently brought to my attention where defendants probably suffered because of the absence of, or casual attitude towards, interpreters. An Asian with a limited command of the English language, having no previous convictions and no contact with the probation service, was sent to prison in the Midlands for four months. She had pleaded not guilty to making a false instrument but was found guilty at the Crown Court. No social inquiry report was prepared. Her case had been allocated to an assistant probation officer when she was committed to the Crown Court. She had been processed by the magistrates' court without the probation service or the court authorities picking up her language difficulty.
The probation officer to whom the case was allocated wrote to her solicitor to establish her not guilty plea but never contacted her. The solicitor later used a member of her family to interpret in the preparation of the case. When the case was heard at

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the Crown Court she was finally allowed the services of an independent female interpreter. On a finding of guilt, the judge asked her barrister whether a social inquiry report would be required. The barrister took instructions and declined. She was then sentenced and taken down to the cells. It is of concern that the probation service did not give a higher priority to interpreting services. The solicitor also failed to employ an independent interpreter in the preparation of the case even though that cost could have been covered by legal aid.
Another example, although not similar, is in the same vein. An Indian man with a limited command of the English language was recently sentenced to six months' imprisonment for offences of driving with excess alcohol and breach of a suspended sentence for indecent assault on a young woman. He had no previous convictions. The man was seen in order to be assessed for a bail address because he was listed as being of no fixed abode. The solicitor maintained that he was able to understand so long as he was spoken to slowly. The probation service was asked to clarify the man's financial situation. It became clear that he had a permanent address. He was therefore not in need of a bail address but was in need of help in relation to his immigration status. The police had already been alerted by the immigration office that the man was subject to deportation. The probation service advised lawyers to have the case put back so that appropriate interpreters could be found. However, due to the man's status, bail was refused.
Those two cases are relatively undramatic. At the Crown Courts, the Old Bailey and the major courts where trials take place, interpretation services are provided in the serious cases. It is at the lower end of the ladder that frequently they are not provided. It is there, unless we are very careful, that defendants tend to fall through the net. Many courts now routinely supply interpretation but the coverage is patchy. If the courts had a statutory duty to obtain and provide appropriate interpreter services, then the possibility of misunderstandings and even miscarriages of justice would be minimised.
This is not a minor issue for the ethnic minorities in this country. It is a matter that the Government should take on board. I hope that the noble Earl will give some undertaking.
Lord Renton: I was hoping that the noble Lord would be able to add a postscript. I listened with great interest and some sympathy to his remarks. He said, if I heard him aright, that the court should not simply call on volunteers as interpreters. However, there is nothing in his amendment which requires anything other than the mere obtaining of interpretation. Before we go any further, will he explain what he is getting at?
Lord Richard: I was thinking of an instance in which a defendant appeared in court. There was no interpreter readily available and the police were advised to contact the local race relations board. They did so. It was claimed that the interpreter was able to speak the language which the defendant spoke. It
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became clear during the course of the case that he did not. Fortunately it became clear sufficiently early. To rely on such a casual approach in order to provide an interpretation service in court has dangers. Sometimes those dangers result in people being convicted who should not be convicted. They are sent to prison. The Home Office should ensure that the interpretation services provided in our courts are sensible and work properly.
As a result of considerable work in an experiment in Cambridge, the interpretation services provided in the Cambridge area, with the co-operation of the police, are extraordinarily good. I should like to see that extended. Reliance upon volunteers is dangerous.
Lord Hylton: The noble Lord has raised an important and valuable point. However, his amendment seems to bear only on sentencing. Will the Government consider the matter in a much wider context involving the whole trial and judicial process?
Lord Renton:It is within the knowledge and experience of many Members of the Committee that the courts never hesitate to try to find an interpreter when an interpreter is needed. There is already ample power to do so. In the course of time the courts have taken upon themselves the duty to try to find an interpreter. Very often the interpreter is a friend from within the immigrant's own community. There could be no better person, because the court will understand what the accused is trying to get at, what he needs to know and so on. In a perfect world one would wish to find the services of qualified interpreters available all the way down the scale; but that is not what the noble Lord's amendment requires. As it stands I do not think that it adds anything to the present obligations under the law.
6.30 p.m.
Earl Ferrers: The noble Lord, Lord Richard, draws attention to a point to which the Government attach considerable importance—that is, the provision of adequate arrangements to provide competent interpreters in court proceedings which involve defendants who do not understand English. The Home Office at the moment are participating in the steering committee for the community interpreter project, which is being funded by the Nuffield Foundation and which has developed a model for the selection, training and assessment of community interpreters for the criminal justice system as a whole. That is a point that the noble Lord, Lord Hylton, was concerned about. We hope that this work will prove helpful in identifying what further needs to be done in order to ensure that no one who appears in court is disadvantaged because of an inability to speak, to understand or indeed to hear the language of the court.
We shall certainly be bearing in mind, in the light of progress with this work, the case for statutory rules about the provision of interpretation or a statement of best practice. This is inevitably some way off, because the fact is that there are very few qualified interpreters in relation to the demand for them, and their numbers cannot quickly be expanded.

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Section 144 of the Magistrates' Courts Act 1980 provides for statutory rules concerning the conduct of proceedings in magistrates' courts. These could be used to make provision in regard to interpretation, if it turned out that a statement of best practice would not he sufficient. There are equivalent powers to make rules for Crown Court proceedings. The purpose of Clause 1(4) (b) of the Bill is so that the reasons for a decision to pass a custodial sentence should be explained to the offender in a way the offender can understand. I am sure that the courts will recognise that special care would be needed if the offender could not understand, or had difficulty in understanding, English. However, I do not think it is necessary to refer expressly to this in the Bill. As I have said, we can issue guidance and we can make statutory rules if it should appear that interpretation is not being provided where it should be or if further guidance on the best way of providing interpretation should prove to be helpful.
It is the law, which has been settled for over 75 years, that where a defendant does not understand English the evidence must be translated, and there are already regulations for the payment of interpreters out of public funds for that. I think therefore this is a matter for organisation and not for legislation, but I understand the difficulty to which the noble Lord has drawn attention.
Lord Harris of Greenwich: I wonder whether it would be possible for the noble Earl to give us some indication of when the Nuffield study will be completed.
Earl Ferrers: I cannot tell the noble Lord now when that will be; but I shall try to find out and will let him know.
Lord Richard: I thank the noble Earl for his response. The noble Lord, Lord Renton, is quite right. My amendment is a very narrow one but it was designed to provoke a response on a much more general approach, and I think that the noble Earl has provided that. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 5 not moved.]
The Deputy Chairman of Committees (The Viscount of Oxfuird): In calling Amendment No. 6, I have to advise your Lordships that if this amendment is agreed to, I cannot call Amendment No. 7, due to pre-emption.
Earl Ferrers Earl Ferrers moved Amendment No. 6:
Page 2, line 25, leave out subsections (7) and (8).
The noble Earl said: I beg to move Amendment No. 6 and, if I may, I should like to speak also to Amendments Nos. 76, 101 and 102. These amendments all tidy up the drafting of the Bill and they make no substantive changes to its provisions. If your Lordships wish me to give an explanation I shall do so, but as the amendments do not make any substantive changes to the provisions of the Bill, I hope that you will accept such a brief explanation. I beg to move.
On Question, amendment agreed to
[Amendment No. 7 not moved.]
Clause 1, as amended, agreed to.
Clause 2 [Length of custodial sentences]:
[Amendment No. 7A not moved.]
Lord Windlesham Lord Windlesham moved Amendment No. 8:
Page 3, line 1 leave out paragraph (b).
The noble Lord said: I beg to move Amendment No. 8, standing in the names of the noble Lords, Lord Hutchinson of Lullington, Lord Morris of Castle Morris, and myself. This is the first time that I have spoken in the Committee on this Bill, and I should like to say at the outset that I applaud the aim to produce a coherent legislative framework for the sentencing of offenders. That is a worthwhile objective and one that is fully deserving of support.
In many ways the sentencing provisions in the first five clauses are the core of this important Bill. They were forecast in the notable Green Paper on Punishment, Custody and the Community and in the White Paper which followed it. But it was always going to be a difficult task to translate the intentions and principles of the policy into statutory form.
I ask your Lordships to consider the aim that the punishment for an offence should be commensurate with the seriousness of the offence: what could he clearer than that? The precept that punishment should fit the crime is one of the basic principles upon which the administration of justice depends. I am sure we can all agree upon that. The idea of proportionality and just deserts was a theme of the White Paper, but now we have in this part of the Bill in Clause 2(2) (b) a provision that empowers the courts in certain circumstances to give violent or sexual offenders sentences which are longer than the offence deserves if, in the opinion of the court, it is necessary to protect the public from serious harm from the offender. In such cases, excluding the most serious, the courts are allowed—indeed encouraged—to impose sentences that are disproportionate with the current offence.
What is the justification? So far as I can tell from speeches made by Ministers in another place, it is that the protection of the public from further crimes by persistent and dangerous violent or sexual offenders is so vital that an exception should be made to the rule of law—for that is what it is—that a man should be punished for what he has done rather than for what he may do. If any authority is needed for that proposition, I would cite three recent cases in the Appeal Court: Smith in 1987, May in 1989, and Richardson when the same principle was upheld as recently as last year.
This is not the first time it has occurred to legislators that public support can be gained in this way. There is very little that is original in the perennial questions of crime and punishment. As long ago as 1908 in the Prevention of Crime Act preventive detention was introduced. In the Criminal Justice Act 1948 corrective training was introduced. In the Criminal Justice Act 1967 extended sentences were introduced. All have failed to fulfil expectations and have been discontinued. It is an irony that in this very Bill Clause 4 abolishes extended sentences of imprisonment for persistent offenders.
It is true that, unlike extended sentences, the current proposal for the topping up of sentences will need to be within the maximum penalty prescribed by the statute. But that does not overcome the objections. There are several, but let me concentrate on only two. The first is that persons sentenced under Clause 2(2) (b) could receive sentences for less serious crimes of a severity that is normally reserved for more serious crimes. Secondly, the inconsistency that will result is surpassed by the fact that under the Bill the power to increase the sentence beyond what the crime deserves does not extend to the more serious offences that are triable only in the Crown Court.
As amended in another place, Clause 2 of the Bill applies where a person is convicted of an offence which is triable either way, or only summarily in the magistrates' court. Thus when an offence triable either way is heard before a jury in the Crown Court, what happens'? The judge must remember that he has a power, given him by this Act when it becomes a statute, to set aside the rule of law that punishment should fit the crime. But that same judge, sitting in the same Crown Court, when trying the case of a person charged with a more serious offence—again of violence, or a sexual offence but one triable only on indictment—must remember that he is now bound by the rule of law. He has no power to disregard it in the second case; in the first case he does.
That cannot be right. It is illogical. It will only cause confusion among the judiciary. There is a strong probability that problems would result with the application of the European Convention on Human Rights and the jurisprudence of the Court of Human Rights. The omens for this proposal—and that is all it is at present—are no more favourable than the previous attempts at disproportionate sentencing. It is for that reason that I and a number of others from all parties in both Houses believe that this part of the Bill is better omitted. I beg to move.
6.45 p.m.
Lord Hutchinson of Lullington: I support the amendment and add to what has been so powerfully said already by the noble Lord, Lord Windlesham, when he was pointing out the ridiculous situation as regards the difference between the two cases that come up. It would be even more ridiculous if there were two or three people in the dock in relation to one situation where one of them had committed the lesser offence on the indictment and another had committed the more serious offence on the indictment, and that same judge would then have to say, "Well, so far as the more serious offence is concerned, I am bound by the common law rule of proportionality, and I shall sentence you to two years' imprisonment because that is what you deserve on the offence. But for you, No. 2, it is a lesser offence, but there I have the statutory right under the Act in Section 2(2) (b) to follow the words of the statute, and I may extend the two years. I won't give you two years. One year would be what is proportionate to the offence, but because of your record and so on I shall extend it to three years". He
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would be bound by two completely different principles. That is a ridiculous situation, as the noble Lord, Lord Windlesham, has already said.
The noble Lord also mentioned the Court of Human Rights. The Court of Human Rights has just delivered a judgment exactly on this point in the case of Thynne and others. In that instance, of course, it was a life sentence, but what the Court of Human Rights said was that when a life sentence prisoner has served that proportion of the sentence which is for the penal part of it—that is, the just deserts part of it—he is entitled to have a review by a judicial body of when he should be allowed out on "the safety of the public part" of the sentence, and exactly based on the same principle to which the noble Lord, Lord Windlesham, referred. Not only will it come up; it has already come up in the Court of Human Rights.
Looking at the words of this objectionable subsection, it says,
"for a violent or sexual offence, for such longer term".
As has already been pointed out by the noble Earl, sexual offences vary between the absolutely trivial and the most appalling and violent offences. The trouble is that sexual offences in the main are the worst possible offences for sentencing people to long periods of imprisonment. The whole policy at the moment everywhere is to try to keep these offenders out of the negative procedure that would be the result of imprisonment.
Such offences arise emotionally and they are bound to arouse an emotional response in magistrates' courts, and indeed in the higher courts. As a result, it is easy for the court to give the response, "You must be put away for the protection of the public". That is a very easy response. The mischief of this topping-up subsection is that it is exactly that kind of offence where the wrong sentence will be passed because the court has the power to top up sentences. I suggest that that is another mischief.
How long should the protection be? That introduces an assessment of an accused's future behaviour which is bound to be a very subjective judgment. Do the public need one, two, or five years' protection? People sitting in the public gallery will say, "This sex offender is an absolute monster. He has interfered with children on two occasions and five, six or even eight years' protection is needed". It is a totally subjective judgment about what the future behaviour of an accused might be. That is not a good basis for sentencing policy. For those reasons and for the reasons so powerfully urged by the noble Lord, Lord Windlesham, I support the amendment.
Lord Renton: I too support the amendment but I do so for slightly different reasons from those already advanced by my noble friend and the noble Lord, Lord Hutchinson of Lullington.
When the courts find that they have to interpret this clause they will be obliged to apply the well-known rule of statutory interpretation which, if I may dare to use a short Latin tag, can be expressed as expressio unius est exclusio alterius. In plain English that means that if Parliament gives one example, other examples must be presumed to have been excluded.

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Here we are given the two hypotheses of violent and sexual offences. However, there are many other offences from which the public need to be protected, sometimes for a long time. What about those offenders who persistently break into people's homes by night or even by day? Do not the public need to be protected from them? What about those rather disgraceful fraudsters who find an excuse to enter an old lady's house by posing as an official and who then rob the old lady while her attention is diverted? That is a crime which is too easy to commit and is frequently committed more than once by the same person. I should have thought that taking the view that such persistent offenders as I have mentioned ought to be given a sentence which will protect the public for some time the court will read the subsection and find that it has no power to do so because of the very sound rule of' interpretation.
When legislating, those who instruct the draftsman sometimes ask him to cover particular hypothetical cases. They may not be the most frequent or even the most serious hypothetical cases. This is a glaring example of selective hypothesis. I feel that we should exclude this subsection for the reasons already given.
Perhaps I may back-track to say that we may very well have had the same sort of discussion on Clause 1(2) (b). Perhaps at a later stage we should also consider that. I believe that very strong reasons have been given for omitting this subsection.
Lord Morris of Castle Morris: I support the amendment because the present proposal which it is designed to amend is both unjust and ineffectual.
Clause 2(2) (b) empowers courts to give violent or sexual offenders sentences longer than the offence deserves if they consider that it is,
"necessary to protect the public from serious harm from the offender".
However, that provision is not aimed at offenders who commit the most serious offences. Those offences which are triable only on indictment are excluded from Clause 2 and continue to be governed by present sentencing criteria. Those offenders would continue to receive lengthy sentences in line with Court of Appeal guidance which has produced swingeing increases in sentence lengths for violent and sexual offences since the mid-1980s.
According to the White Paper Crime, Justice and Protecting the Public of February 1990, that provision is aimed at offenders convicted of less serious offences but where the court realises that they are a serious risk to the public. The White Paper cited the example of an offender convicted of an offence of causing actual bodily harm which would normally merit a twelve-month sentence. Under the proposed legislation the Crown Court,
"could give a longer sentence, up to the maximum penalty of five years, if it considered this necessary to protect the public from serious harm from the offender"
The central objection to that approach is that it is unjust. Principles of justice require that the courts seek proportionality between the severity of the penalty and the just deserts of the offender. Members of the Committee will recall instantly the kind of case which we in Wales remember coming up in the imaginary magistrates' court at Llanerchymedd which had
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before it on one day four separate and consecutive cases of the alleged stealing of a sheep. The first case was punished with a fine of£10, the second with a fine of£20, the third with a fine of£50 and the fourth with a swingeing fine of£100 on the grounds that, "There is far too much of that sort of thing going on".
Once sentencers abandon the principle of proportionality, they are no longer applying justice but a form of social engineering without a defensible moral foundation. Social engineering in itself is not necessarily bad. Half of the significant reforms in 19th century British history could be so described. However, that is not the responsibility of the courts. Sociologists, economists and even politicians have a part to play in social engineering but judges, I submit, do not.
There is also the question of double punishment. Offenders sentenced under these powers could receive sentences for less serious offences of a severity normally reserved for more serious crimes. Assuming that the risk of serious harm will normally be inferred from previous offences, that amounts to a person being sentenced twice for the same offence: first, when he receives his original sentence and, secondly, when an additional amount is added to the sentence for a later less serious offence. Such sentencing decisions would be highly subjective based not on what the offender has done but on the judge's guess as to what he may do in the future. In the words of the poem:
"What is to come is still unsure".
This sort of measure has a poor history. Previous legislation allowing wholly disproportionate sentences for persistent offenders has proved unpopular with judges. Preventive detention in the Prevention of Crime Act 1908, corrective training in the Criminal Justice Act 1948 and extended sentences in the Criminal Justice Act 1967 have all empowered courts to impose much longer sentences than normal on persistent offenders. All have fallen into disuse and disrepute. I believe that the extended sentence was used only five times in 1988 and this Bill abolishes it.
Clause 2(2) (b) is not only unjust but is also ineffectual especially in the case of sexual offenders. As has already been said, sexual offenders need not so much a long period of incarceration but effective treatment for their condition. The length of sentence should be determined at least in part by the time required to bring about a change in the offender's behaviour. There is reason to believe that the Government are slowly beginning to see the light on this matter.
When he introduced the Government amendment at Report stage in another place on 20th February, the right honourable John Patten, the Minister of State at the Home Office, said:
"These amendments will enable the courts to require many sexual offenders to undergo longer and more intensive programmes of supervision. The purpose is to increase the confidence of the courts—that is very important—and of the public in the arrangements for dealing with sexual offenders, to protect the public from the risk of serious harm from sexual offenders, and to try to help sex offenders to reduce the risk of their committing further sexual offences in future" —[Official Report, Commons, 20/2/91; col. 287.]
Those laudable aims are unlikely to be fulfilled unless the Government are prepared to provide

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central funding for centres providing specialist treatment and therapy for sex offenders. Such treatment confronts offenders' attitudes to their offending; it requires them to accept responsibility for their behaviour and to acknowledge the serious damage that is done to their victims. It also helps them to control their deviant sexual tendencies. Without such treatment extended periods of supervision and long periods of incarceration will be of little value in protecting the public from sex offenders.
At present there is only one centre in England and Wales—the Gracewell Clinic in Birmingham—which provides such treatment on a residential basis. To-date the Gracewell Clinic has had 526 referrals, 110 of whom have been treated at the clinic. While the Gracewell staff are the first to agree that a rigorous research evaluation needs to be conducted of its effectiveness, it is notable that to-date no one—I repeat, no one—treated at that clinic has been re-convicted. That is encouraging even when allowance is made for the under-reporting of such offences.
At present the Gracewell Clinic receives no central government funding. Since it was established it has depended heavily on the financial generosity of a single individual benefactor. The Home Office agreed that when the probation service places an offender at the clinic it can pay from its area budget for the offender's treatment. However, as your Lordships will be well aware, probation budgets are severely stretched and it is not always possible for them to find money for such a purpose when it is needed.
The provision of treatment for sex offenders is of such importance that a careful and reputable approach like that of the Gracewell Clinic ought to receive government backing. The Government should provide financial support to Gracewell, pending an evaluation of its effectiveness, and other clinics which may then spring up. If such an evaluation indicates that the clinic's approach is effective, the Home Office should seek resources from the Treasury to establish similar centres in other areas. That is the way forward; not that suggested by paragraph (b), which will simply incarcerate a deteriorating condition.
I add one personal note. Last year BBC Radio 4 ran a short series of programmes called, "The Moral Maze". It was a kind of panel programme where witnesses were interrogated on great moral issues of the moment. I was one of the panel together with a splendid rabbi, a professor of law and a journalist. One subject on which we were called upon to interrogate witnesses was pornography and its effects. We interviewed, among others, the director of Gracewell Clinic. I was deeply impressed with his ability, skill, seriousness, sensitivity, and above all his success. The Gracewell programme is hard, relentless and long; it is almost cruel. I was worried in case it amounted almost to brain washing; but it works. People do not re-offend.
It is that approach that we need to adopt towards sexual and violent offenders. It is the way forward, and I support the amendment.
7 p.m.
Lord Harris of Greenwich: The noble Lord spoke of the Gracewell Clinic. As he is aware, amendments have been tabled to deal with a range of issues concerning the clinic. Therefore I shall not follow his interesting observations on that matter.
I return to the speech of the noble Lord. Lord Renton, with which I very largely agree. Why do we refer to "sexual" and "violent" offences? The descriptions are far too broad. As my noble friend Lord Hutchinson pointed out, in terms of sex offences they range from offences of multiple rape incorporating massive violence, to offences such as indecent exposure. It is far too broad a description of a group of offences to be incorporated in the Bill in the way that it is. The same applies to violent offences. The description ranges from a relatively minor assault to acts of extreme violence.
I find it difficult to understand why those two categories of offences are picked out in the way that they are. They do not necessarily reproduce faithfully public attitudes. As the noble Lord, Lord Renton, indicated in his speech, compared with a relatively minor sex offence or a minor offence of violence, there is infinitely greater disquiet felt among elderly people when they have been ripped off by sophisticated fraudsters. That group of people arc not mentioned in the Bill. It is wholly wrong in principle that those two categories of offences should be isolated in the way that they are.
We have been down this path on a previous occasion with Mr. Brittan's parole policy, which led to the establishment of the Carlisle Committee. Specific types of offences were laid out by him in a statement at the Conservative Party conference, where he indicated that there would be a wholly different parole policy for certain types of offences compared with other categories of offenders. What did the Carlisle Committee say about that approach? It said that it was wrong in principle, and it is in the process of being buried in this Bill. In that situation why do we have what, in my view, are unworthy and ill-advised words in the Bill.
Lord Elton: I shall be interested to hear my noble friend's response to the point made by my noble friend Lord Renton on expressio twins est, exclusio alterius.
Leaving that aside, perhaps lay Members of the Committee can have a little help both from my noble friend Lord Windlesham and the Minister. We have been warned of using hypothetical cases, but categories may be stated hypothetically.
I should like to know from my noble friend Lord Windlesham (who moved the amendment) what would be the case if his amendment was incorporated in the Bill and the removal of paragraph (b) was effected. How is it proposed to treat a serious violent offender who maintains both during his trial and during his sentence that his greatest ambition is to repeat the offence on the same category of person? Whether immigrants, Chinese, foreigners or women is immaterial.
I should like my noble friend the Minister to tell me what I should already know: what happens in such

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cases under the law as it now stands, and what would happen in the case, if it occurred, with the Bill unamended?
The Earl of Longford: I shall not detain the Committee for more than a moment. I endorse what was said in regard to the Gracewell Clinic. There is to be discussion about that later. I have visited the clinic and it is doing good work. On the other hand, it is extremely expensive in the sense that the ordinary person cannot afford to attend. I am referring to an individual with a sexual record who has just left prison. Under the present arrangements, he simply cannot afford the amount of money necessary to attend the clinic. I endorse what has been said about the need for Government support.
Generally speaking I regard this as a confused clause which arises from confusion in the mind of the noble Lord. We have heard speeches from lawyers, administrators of the law and others. I speak as an old don—that is to say, a person who is accustomed to putting questions, conducting viva voces and asking people whether they are quite sure they know what they mean. I do not believe that the Government would get a pass degree of any kind on the strength of this clause. I am disgusted at the great deal of confusion here. What does this measure amount to? The Government feel entitled to qualify a matter whenever they feel like it in response to what they believe is public opinion which, I suppose, is the kind of opinion expressed in the Sun newspaper or a similar tabloid.
I am horrified at the idea that one can suddenly have a great principle which is retribution under another name. There is no harm in retribution. Years ago I wrote a book in which I argued for retribution. There is nothing harmful in that provided it is properly understood. But it is qualified by this new and evasive arrangement in which certain selected people who are the targets of public animosity are to be treated worse. Speaking as an old don, I give the Government an omega.
Lord Elton: Obviously my noble friend Lord Renton is volunteering to answer the question I asked of my noble friend Lord Windlesham. Perhaps my noble friend will give me the answer.
Lord Renton: As I see the matter, there is already power in the courts to take into consideration, in cases of persistent offenders, the need to protect the public in quite a wide range of cases. If we are to have a measure replacing paragraph (b) then let us take the principle giving power to the court in general terms instead of using selective hypotheses.
Earl Ferrers: I am very grateful to my noble friend Lord Renton for answering the point raised by my noble friend Lord Elton. If my noble friend Lord Renton wishes to answer the remainder of the questions that I have been asked, I shall be delighted for him to undertake to do so. He is entirely correct. The existing law allows courts to give greater sentences. The existing law will continue in relation to the Crown Courts which deal with indictable only
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offences and where the person has already served a prison sentence. My noble friend Lord Renton shakes his head.
Lord Renton: If we keep paragraph (b) then on all future occasions the courts will look at it and say, "Parliament has selected the occasions when we may imprison for the protection of the public. If Parliament had wanted that protection to be given on other occasions, we have no power to do it. We have to bear in mind what Parliament has now enacted".
7.15 p.m.
Earl Ferrers: I shall bear in mind what my noble friend says. Clause 2(1) says:
"This section applies where a person is convicted of an offence which is triable either way or only summarily".
My advice is that the existing powers of the Crown Courts continue and the curtailment relates only to those cases which are triable either summarily or both ways. My noble friend Lord Windlesham did as he always does. He made a very powerful speech about this amendment. This amendment would prevent the imposition of a longer sentence than the seriousness of the offence would justify in the interests of protecting the public from serious harm from a violent or sexual offender.
It would mean that in future the sentencing powers of the courts would be determined, if my noble friend's amendment were to be accepted, solely by the seriousness of the offence for which the offender was convicted. An important function of the criminal law, namely, to protect the public, would be inadequately provided for in the Bill. That function of the law is carried out now. Most people would agree with the proposition that the courts must have sufficient powers in order to protect the public from serious harm. That is exactly what Clause 2(2) (b) does in a reasonable way. The power to impose a longer sentence to protect the public is available only for violent or sexual offences.
In order to invoke that power the courts have to do various things. The noble Lord, Lord Hutchinson, said that the courts would get it wrong if sentence were passed through topping up. If the courts are to take this course they must be satisfied that there is a risk of death or serious personal physical or psychological injury to members of the public occasioned by the offender committing further such offences. Clause 1(7) says quite clearly:
"In this section and section 2 below any reference, in relation to an offender convicted of a violent or sexual offence, to protecting the public from serious harm from him shall be construed as a reference to protecting members of the public from death or serious personal injury, whether physical or psychological, occasioned by further such offences committed by him".
That is the purpose of having this permission in the Bill. The reasons have to be stated in open court for imposing such a sentence. The courts must not impose a sentence which is longer than the statutory maximum for the offence. In other words, the power is available only where the offender clearly represents a danger to the public and only where the court has very clear grounds for imposing such a sentence and makes those grounds clear. I entirely agree with the

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view expressed that the starting point for sentencing should be the seriousness of the offence and that generally an offender should not be given a longer sentence simply because of previous convictions. That is reflected in the Bill. We must also recognise that in some cases this approach may not give the public adequate protection.
I can give two examples. An assault occasioning actual bodily harm might, on the grounds of seriousness, justify a sentence of 12 months. But it might be clear that the offender has committed several similar offences in the recent past of an increasingly worrying kind. My noble friend Lord Elton made some suggestions about that. In those circumstances the Crown Court may feel it is right to give a sentence longer than 12 months and up to but not in excess of the maximum penalty of five years, in order to protect the public from risk of further serious harm.
Let us consider a case of reckless driving. The particular offence may not of itself be serious enough to justify a six months' custodial sentence. But if it is clear from the offender's previous convictions that he or she has committed a number of reckless driving offences before and by so doing has risked causing serious injury to other drivers or pedestrians, a magistrates' court may judge that a six months' custodial sentence will protect the public by taking the offender out of circulation for a period of time and may bring home to the offender the seriousness of his or her behaviour.
My noble friend Lord Windlesham referred to the power to give longer sentences which did not apply to indictable only offences. The point of the Bill is that in the indictable only case where the offender has previously been in prison, the Bill does not limit the court's sentencing powers. The courts can now give a longer sentence to protect the public. They will still be able to do so. The difference between the two cases cited does not arise in practice. We should be rightly criticised if we did not retain the ability of the courts to give longer sentences to protect the public provided that those sentences are within the maxima laid down by Parliament.
Lord Renton: Before my noble friend sits down, perhaps he will allow me to intervene. I think we can get the best of both worlds. We can meet the principle which he has stated of giving power to the court and we can meet the principle expressed by my noble friend Lord Windlesham and others in the debate by simply leaving out,
"in the case of a sentence of imprisonment for a violent or sexual offence",
and leaving in the rest of paragraph (b). I should have thought that everybody would then be satisfied. It means that the court would have just that power, which, very naturally, my noble friend Lord Ferrers has said the courts should have, of sentencing people, where the circumstances seem to require it, for a longer period in order to protect the public from serious harm.
Lord Elton: My noble friend has slightly extended the operation of the revised amendment by leaving out
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the words "in the case of a sentence of imprisonment". He has thus extended the operation of the whole of the subsection to other sentencing.
Lord Harris of Greenwich: Perhaps I may ask the noble Earl whether he would be good enough to deal with the two issues which were raised and to which he has not responded. First, is what the Government propose here consistent with our obligations under the European Convention on Human Rights? That question was put to him, as he may recall, by two of my colleagues. Many of us look forward to hearing his response. He may remember that the noble Viscount, Lord Whitelaw, when Home Secretary, was asked precisely the same question on a matter involving immigration. The answer given was, "Yes, we are wholly satisfied. It is consistent". The Government then lost the first case that went to the European Court on the issue. We should like to know and to be reassured that this matter has been examined by the Government and their legal advisers.
Secondly, I asked, as did others, why sexual and violent offences have been isolated in this fashion. How can it be right for us to return to the policy which was announced when Mr. Brittan was Home Secretary? Mr. Brittan identified particular types of criminal offences as being wholly different from other types of criminal offences in relation to the administration of the parole scheme. The Carlisle Committee said that that was wrong in principle. Are not the Government returning to precisely the same attitude so far as concerns this subsection? I should be immensely grateful if the noble Earl would answer those two questions.
Earl Ferrers: My advice is that we are not in contravention of the European Court of Human Rights and that we are not likely to be. I do not see any incompatibilities with our obligations. The noble Lord referred to the Brittan policy. I do not think that this is the same thing. Sexual and violent offences have been isolated in this case because we are in the business of protecting the public. It is in regard to sex and violent cases that the public is most vulnerable.
My noble friend Lord Renton made a helpful drafting suggestion. He has, as always, the advantage over me in that he takes pride in being a draftsman, in which happy position I am not. I should like therefore to be able to consider his advice. It would be wholly inappropriate for me to comment off the cuff on such a fine piece of drafting as he has suggested. I shall certainly take note of it and get in touch with him later to tell him what I think.
Lord Windlesham: The heart of the noble Earl's reply on behalf of the Government was contained in his final words. He said that the Government wish to retain the ability of the courts to protect the public from serious harm. That is not what this subsection does. What the amendment is proposing is to maintain the status quo. It aims to retain the existing powers of the courts. It is the Government, in this subsection, who wish to extend them, and to do so in a way which is open to the objections that have been raised in the past 50 minutes or so. This is not a provision which

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has been sought by the judiciary. The judiciary has not asked for any additional sentencing powers to protect the public. The judiciary wishes to protect the public as much as the Government do and it has the necessary powers to do so.
Questions of "dangerousness" and "risk" are the hardest of all to weigh up and to estimate. Anyone who has been on the Parole Board, as the noble Lords, Lord Harris of Greenwich, Lord Hunt, and myself have been, know that to be the case. Once attached, "dangerousness" is a difficult label to remove. It is not quantifiable in a judicial procedure, least of all in the critical act of sentencing.
My noble friend Lord Elton asked me a question which was answered immediately and eloquently by my noble friend, Lord Renton. My noble friend raised a hypothetical situation. The answer I would give is the same as that given by my noble friend Lord Renton; namely—echoing what I said in reply to the noble Earl, Lord Ferrers—that the court already has powers under the existing law to take into account any aggravating circumstances in deciding upon the sentence.
Lord Elton: Can my noble friend reassure me on this point'? Am I mistaken in thinking that subsection (2) (a) which immediately precedes subsection (2) (b) does not limit the existing law in the respect that subsection (2) (b) at present seeks to restore it? I understand that his amendment will not restore the law to its present state because subsection (2) (a)—in this case the expressio unius—will be in the Bill and the exclusio alterius will be out of it.
Lord Windlesham: Subsection (2) (a) refers to a sentence commensurate with the seriousness of the offence. That is entirely acceptable and in accordance with the principles of just deserts and proportionality. We shall have to leave on one side the question of previous convictions, which was discussed in the earlier amendments. The reference to the term "commensurate with the seriousness of the offence" is in line with the existing law, and indeed the principles behind this Bill.
We have had a full debate—
Lord Elton: I do apologise for being so importunate but the point I am trying to make to my noble friend is a sound one. The Bill gives only one basis on which a sentence can be founded for such term and so on. No other consideration therefore is allowed to be caught. If it is right that inclusion of violent and sexual offences excludes all other offences, then surely the inclusion of only one basis for founding a term of the sentence excludes all others. That is the simple point I am trying to make. I apologise for making it so often and so badly.
Lord Windlesham: I appreciate my noble friend's concern. It is an issue which would need to be looked at carefully, as would the suggestion made by my noble friend Lord Renton, if the amendment were to be carried.
I believe that the Committee would like to express an opinion on the matter. We have had a full and well-informed debate. The amendment has received
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support from all sides of the House. If it were to be carried, the Government would need to look at the drafting of the remainder of the section, taking note of what my noble friend Lord Elton said, and also at the counter suggestion made by my noble friend Lord Renton. However, in the event of the amendment not being carried, we have heard my noble friend Lord Ferrers say that the Government will consider the suggestion made by my noble friend Lord Renton. In my view it is certainly worthy of consideration.
Earl Ferrers: I am sorry to interrupt my noble friend, but I believe that he is trying to lick the butter off of both sides of the bread. I said that I would consider the suggestion made by my noble friend Lord Renton. When one gives such undertakings, they are usually given on the understanding that the amendment is not pressed to a Division.
I see that I have upset the noble Lord, Lord Harris of Greenwich. However, perhaps he will contain himself a little longer and allow me to continue. The noble Lord is shaking his head, but he should wait to hear what I have to say.
As I said, normally when one gives such an undertaking it is given in order to facilitate the procedures. It would seem that my noble friend Lord Windlesham wishes to press the matter to a Division in the belief that, if the Government lose it, we shall nonetheless reconsider the matter. It would be discourteous of me to say that I shall not consider the very helpful suggestion made by my noble friend Lord Renton. I was merely trying to make the point that I believe my noble friend Lord Windlesham is trying to lick the butter off of both sides of the piece of bread.
Lord Windlesham: There will be further stages of the Bill. Noble Lords will have the opportunity on Report to table such amendments as they wish. At that time, my noble friend Lord Ferrers can tell us what he thinks about the merits of the proposals.
7.32 p.m.
On Question, Whether the said amendment (No. 8) shall be agreed to?
Their Lordships divided: Contents, 52; Not-Contents, 69.

Division No. 2

CONTENTS

Airedale, L.

Houghton of Sowerby, L.

Broadbridge, L.

Hutchinson of Lullington, L.

Cledwyn of Penrhos, L.

Kilbracken, L.

Cocks of Hartcliffe, L.

Kinloss, Ly.

Craigavon, V.

Lawrence, L.

Darcy (de Knayth), B.

Longford, E.

David, B.

Macaulayi of Bragar, L.

Dean of Beswick, L.

Masham of Ilton, B.

Donaldson of Kingsbridge, L.

Mason of Barnsley, L.

Dormand of Easington, L.

Morris of Castle Morris, L.

Faithfull, B.

Morris of Kenwood, L.

Fisher of Rednal, B.

Nathan, L.

Galpern, L.

Nicol, B.

Graham of Edmonton, L. [Teller.]

Parry, L.

Pitt of Hampstead, L.

Greenway, L.

Renton, L.

Grey, E.

Richard, L.

Halsbury, E.

Ripon, Bp.

Hampton, L.

Rochester, L.

Harris of Greenwich, L.

Seear, B.

Henderson of Brompton, L.

Sefton of Garston, L.

1021

Stoddart of Swindon, L.

Walston, L.

Taylor of Gryfe, L.

White, B.

Tenby, V.

Winchilsea and Nottingham, E.

Tordoff, L. [Teller.]

Windlesham, L.

Turner of Camden, B.

Winstanley, L.

NOT-CONTENTS

Abinger, L.

Henley, L.

Alport, L.

Hooper, B.

Ampthill, L.

Jenkin of Roding, L.

Astor, V.

Johnston of Rockport, L.

Beloff, L.

Joseph, L.

Belstead, L.

Kimball, L.

Blatch, B.

Long, V.

Boardman, L.

Lucas of Chilworth, L.

Brabazon of Tara, L.

Lyell, L.

Brougham and Vaux, L.

Macleod of Borve, B.

Butterworth, L.

Mersey, V.

Caithness, E.

Milverton, L.

Caldecote, V.

Mottistone, L.

Carnegy of Lour, B.

Murton of Lindisfarne, L.

Carnock, L.

Napier and Ettrick, L.

Cavendish of Furness, L.[Teller.]

Nelson, E.

Orkney, E.

Clanwilliam, E.

Oxfuird, V.

Cochrane of Cults, L.

Peel, E.

Crathorne, L.

Rankeillour, L.

Davidson, V. [Teller.]

Rees, L.

Derwent, L.

Renwick, L.

Downshire, M.

Sharpies, B.

Elliot of Harwood, B.

Skelmersdale, L.

Elliott of Morpeth, L.

Stanley of Alderley, L.

Elton,L.

Stodart of Leaston, L.

Ferrers, E.

Swinfen, L.

Fortescue, E.

Swinton, E.

Fraser of Carmyllie, L.

Trumpington, B.

Gisborough, L.

Ullswater, V.

Grimston of Westbury, L.

Vaux of Harrowden, L.

Hailsham of Saint Marylebone, L.

Waddington, L.

Wade of Chorlton, L.

Harmsworth, L.

Wise, L.

Harvington, L.

Wynford, L.

Hemphill, L.

Resolved in the negative, and amendment disagreed to accordingly.
Viscount Long: I beg to move that the House do now resume. In moving the Motion, I suggest that the Committee stage resumes at twenty minutes to nine.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Darlington Borough Council Bill [H.L.]
7.39 p.m.
Lord Dormand of Easington: My Lords, I beg to move that this Bill be now read a second time.
As a county Durham man, I have been visiting Darlington for more than 50 years. I have done so because of the great pleasure I always derive from being in a town which has a unique character, with such pleasant and courteous citizens and an atmosphere which is welcoming from the moment one enters the town. It is one of the jewels in my county's crown. I hasten to point out that I am in no way connected to Darlington, whether in business, government (local or national), culturally or any other aspect.
I am glad to be associated with the Bill because I have no doubt that its proposals will lead to physical improvements in the town—improvements from which other benefits will flow.
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Darlington has had a cattle market since medieval times. That fact is of considerable interest and importance. It is something which should not be disturbed unless there are good reasons for doing so. Nevertheless, despite that long tradition of people having the right to bring and buy cattle and other livestock in the town, the time has now come to introduce a Bill of this nature.
The enshrining of those rights in a local Act (the Darlington Extension and Improvement Act 1872) arose from a long-standing clamour to ban sales of livestock because of the general inconvenience that they caused and, not least, the effect on public health and hygiene. Your Lordships will note that environmental factors were also important in those days.
The effect of the Act was to allow those responsible for the health of the town to take action to deal with the problems while at the same time preserving the common law rights of farmers and others to hold their livestock sales at a convenient location.
Under the Act, power was given to the council to close down an unsatisfactory market (which was becoming a health risk) but only on condition that the council provided an alternative market,
"fit and proper for its purpose".
However, we have now to put the position into perspective. After 120 years, the market has become less and less fit for its purpose, and there can be little argument that its location in a residential area is completely unsuitable. The council has little choice but to look for alternative sites—a matter which it pursued with due diligence, realising that a number of requirements had to be satisfied. As might be expected, certain problems arose. It could not find a site which it already owned, but it eventually found one on land owned by someone else close to the new Darlington by-pass.
A further problem arose when the council came to consider, as it had to, the cost of building a new market and the cost of purchasing the necessary land. For that it would have had to budget for no less than £5 million. For Darlington, whose population is fewer than 100,000, that sum is large, and not one with which in normal circumstances it would even contemplate dealing. The difficulties are exacerbated because of the present relationship between central government and local authorities. Your Lordships will be aware that government controls on council spending these days are severe. As a former councillor, I feel that the very nature of local self-government has been changed fundamentally. I could give several examples of that if time permitted, but I shall mention the most important: Darlington's basic credit approval—the amount the Government will permit the council to borrow—is about £2 million only, and most of that has to be spent on essential requirements such as housing.
If your Lordships were to ask about other possible receipts, I should reply with two examples. The council's expectation of capital receipts from land disposals has been severely reduced as a result of the depressed property market. That is a fact of which your Lordships will be acutely aware. That problem is

1023
well known; but it may not be so well known that since last April councils can use only up to half of those receipts for new projects.
There is another difficulty. A few years ago grants from the European Community were also available for such projects. On the whole, as I am sure most noble Lords will agree, the EC was very generous in awarding such grants, but now they are not available for that purpose. That is another blow which has had to be faced.
If the whole of the cost of that £5 million were to be placed on Darlington's community charge payer, under the present system (until last week's Budget proposals, and special Bill to deal with the poll tax) it would increase the charge per charge payer by £67 in addition to any normal annual increase.
Even under the proposed new arrangements for the community charge there is no doubt that the cost of providing a new market would he substantial. Such an increase would not fall on most farmers and the market's customers, merely because most of them do not live in the town; they live in surrounding areas which make no contribution to the borough's expenses.
It will not have escaped your Lordships' notice that we are dealing with a business operation. If the council were to attempt to bear the cost of a new market, the moment that became known to Darlington's inhabitants, those normally moderate, mild-mannered citizens might storm the town hall demanding to know why they should be heavily subsidising a private operation. Such action would he understandable, although unlikely. However, the council is determined to show that it was making the right and fair decision, and, to use a biblical phrase, went "the second mile". It commissioned a study from Durham University's economics department to ascertain who benefits from the existence of the cattle market in Darlington. Its report showed that the market generated 69 full-time equivalent jobs and gross income to the town of £690,000.
The report also took into account what have become known as the "knock-on" effects. They can be of importance these days, but the economists concluded that they were of little significance. An economic study, important though it is, cannot assess the detailed environmental effects of a cattle market situated in an urban area. What about the smell, the mess, the litter, the noise, the traffic problems and a host of other associated matters?
This is not an academic matter for me. For the first 25 years of my life, I lived literally next to a cattle market. I have to confess that as a child I took great pleasure in nipping over the fence to be among the animals and to do the jobs associated with markets; but it did not take too long for me to come face to face with problems similar to those that I have mentioned.
Taking into consideration the economic study, the cost and the environmental effects, the council came to the conclusion that it had no choice but to seek powers to close the market without providing a substitute. By any standards, that must be considered a reasonable decision. That is why the Bill comes before the House this evening. Your Lordships ought to know that the
1024
case is strengthened by the fact that the Bill has the unanimous support of the council. That is important because the council is what is referred to in these days as a hung council. In a number of my activities outside the House I deal with hung councils and extracting a decision from them can be a difficult task. In this case, all the political parties and all individuals are at one in attempting to secure the change. With such unanimity it is safe to assume that the councillors represent the view of the vast majority of the town's citizens. Perhaps I should also mention that the Bill has the full support of the Member of Parliament.
To conclude, I believe that considering all the aspects with which I have dealt tonight there is an unanswerable case for the Bill. I beg to move.
Moved, That the Bill be now read a second time.—(Lord Dormand of Easington.)
7.51 p.m.
Earl Peel: My Lords, before I respond to what the noble Lord, Lord Dormand, said, I apologise to him and to the House for not putting my name down to speak on this Second Reading. It was an oversight on my part and I apologise if it led to confusion.
As the noble Lord said, the object of the Bill is to release Darlington Borough Council from part of the council's market undertaking contained in the local Act of 1872 to maintain a cattle market in the town. A working cattle market has existed in the town from well before then. The noble Lord said that it was from medieval times and I believe that the precise date is 1458. The market represents an important facility for the local agricultural industry, being used regularly by well over 1,000 farmers. Livestock is the prime farming enterprise in the region and the Darlington market is especially noted for its trade in beef cattle. I believe that the turnover is in the region of over 200,000 units of stock per annum. Thus it is substantial.
The market is run by a company which leases the present site from the council. Everybody agrees that the site in the town is unsatisfactory for a modern livestock market. The farmers totally accept that. It causes a nuisance to local residents and its efficiency is impaired by the cramped space available and the difficulties of manoeuvring large vehicles on the site and in the surrounding streets. Those points were made by the noble Lord, Lord Dormand.
However, if Parliament passes the Bill, as matters stand there is every prospect that the cattle market will cease to exist. The council will serve notice to quit on the market company which does not at present have consent to set up elsewhere on a more convenient site. If the market closes, local agriculture will suffer a serious blow. Other livestock markets in the region will face serious difficulties in attempting to absorb the Darlington trade, which is considerable. Congestion in the relevant towns like Northallerton and Barnard Castle would be greatly exacerbated. It is right for me to point out also that there will be cases of hardship among a group of 50 widows who have inherited shares in the market company on which they rely for their income. We must bear that point in mind.

1025
Local farmers can understand if the council no longer believes that it should have a duty to provide a cattle market. That point is undisputed, and times change. However, they are strongly of the opinion that it must be in the interests of both the town and the surrounding countryside for the council to facilitate the relocation of the market outside the town on a site that would not arouse objections from its neighbours and which would encourage commercial efficiency. I understand that the council is currently considering the planning considerations of relocation proposals that have been made to them by the market company. Furthermore, one of the applications refers to permission for a housing development to fund the new market. If that can be agreed it will naturally overcome the problems of finance to which the noble Lord referred.
I am confident that the matter can be resolved to the satisfaction of all parties. I have seen the proposed site for relocation and believe that it is very suitable. None of the costs of relocation need fall on the townspeople through the community charge or rates. The council could be released from its market obligations and the way cleared for the erection of low-cost housing on the present site of the market, to the benefit of those in need and as desired by the council.
Provided that these matters can be sorted out as I suggested I see no reason why the Bill should not proceed to the statute book. I urge the noble Lord, Lord Dormand, to use his influence with the council to encourage the happy result which I believe can be achieved, given goodwill and a spirit of co-operation by all interested parties.
I do not believe that we can segregate the town from the country simply on a whim. The noble Lord made the point that the farmers who come in and use the town facilities do not make a contribution. However, we must add that those same townspeople go out into the countryside and neither do they necessarily make a contribution. It is a quid pro quo and we cannot ignore that fact.
Until assurances are forthcoming and a satisfactory solution is reached, I urge the Committee, when considering the Bill, to have regard for the farming community and their longstanding right to a market.
Finally, the noble Lord, Lord Dormand, referred to the report of the consultants. He gave us some of the details but many of us would be interested to read it. Perhaps he will be good enough to put a copy of the report in the Library of the House so that we have an opportunity to look at the details.
7.56 p.m.
Lord Crathorne: My Lords, I wish briefly to support my noble friend Lord Peel. I live close to Darlington and, like most of us, have received a number of letters on the subject and many people have contacted me including the noble Lord, Lord MacAndrew. He would have been here this evening but is tending his farm near Darlington. There is no question but that the market must be moved from its present site, though there is a difference of opinion on
1026
whether a new market is needed. The farmers certainly think so. I understand that the neighbouring markets would have considerable difficulty in coping with the additional livestock if the Darlington market closes. My hope is that the Darlington council will make it possible for a new market to be built because there seems to be a need for one.
Darlington has been a market town for many centuries. That fact is even recorded on the town's coat of arms, as noble Lords may know. We cannot sort the matter out this evening but I hope that everyone concerned will get together and reach a satisfactory compromise. I urge the committee which will consider the matter to look carefully at the implications of the Bill becoming law in its present form.
7.58 p.m.
Lord Graham of Edmonton: My Lords, first, I apologise for the absence of my noble friend Lord McIntosh of Haringey who is unable to be here this evening. Like all speakers from the Labour Front Benches on Private Bills, I wish to make it clear at the outset that our Front Bench is neutral in these matters. I speak in an individual capacity.
The House is indebted to the noble Lord, Lord Dormand, for the clear and cogent way in which he put forward the arguments of the promoters of the Bill. He began by declaring his 50-year knowledge of Darlington which is about five years less than mine. I am a native of Newcastle upon Tyne and it is interesting that he was brought up next to a cattle market. So was I. I wonder whether we ever met when there was a transfer of stock! The cattle market in Newcastle at the top of Scotswood Road where I was born has long since gone.
We are discussing a feature of a town which has served the town and its inhabitants well for more than 100 years. Literally, in the twinkling of an eye, such features can disappear.
I was pleased to hear the comments of the noble Earl, Lord Peel, and his noble friend on the Benches opposite. They did not oppose the fact that the market should be relocated. The arguments in favour of that are powerful.
However, I believe it was the noble Lord, Lord Dormand, who reminded the House that the present problems as regards the relocation of the market are not of the council's choosing. The council did not create the network of controls which surround it. I was delighted to hear the speakers on the Benches opposite pleading that the council's involvement in this enterprise should continue. I am satisfied that the Select Committee of this House will carefully consider the representations of those who wish their point of view to be heard.
The noble Earl, Lord Peel, said he was confident that the matter can be resolved. I hope that is the case. I am sure that the last thing a council such as Darlington would want is to do something which is right for the citizens but is detrimental to the local farming community.
When I quickly glanced at the representations made on this matter, I was impressed by some of the points

1027
that were made. Darlington Council is unanimous in its view on this matter. I do not know the political complexion of that council but it obviously must be a mixed council. The noble Lord, Lord Dormand, said it was a hung council. If that is the case, all political persuasions will be represented on the council. Unanimous agreement has been reached on the need to promote this parliamentary Bill. The noble Lord added that the Member of Parliament who represents Darlington also supports the Bill. I have the highest regard not only for the people of Darlington, but also for the common sense of the councillors of Darlington. Like the noble Earl, Lord Peel, I, too, hope that a solution will be reached which is satisfactory to all parties concerned.
8.3 p.m.
Viscount Astor: My Lords, it may be helpful to your Lordships if at this point I intervene briefly to state the Government's view on the Bill. Perhaps I should apologise to noble Lords for the fact that I was brought up nowhere near Darlington or near a cattle market. Despite that I shall do my best to state the Government's view.
It is traditional on Private Bills that the Government take a neutral stance. This Bill is no exception to that rule. The Government have considered the content of the Bill and have no objection in principle to the powers being sought by the council. Neither my department nor the Ministry of Agriculture, Fisheries and Food has raised any observations on the Bill. We take the view that the issues raised by the Bill in relation to the closure of Darlington's cattle market and the proposed repeal of the council's obligation to provide a substitute, are local issues in which the Government would not wish to intervene.
There is one petition against the Bill and the petitioner will have the opportunity to present his objections to the Select Committee. The committee will be in a much better position than we are tonight to examine in detail the issues involved and it will have the added advantage of hearing expert evidence. I hope, therefore, that the Bill will be given a Second Reading and allowed to proceed in the usual conventional way to committee for this detailed consideration.
8.5 p.m.
Lord Dormand of Easington: My Lords, I thank the two speakers on the Benches opposite for taking part in the debate. I suspect they will not be surprised to learn that I am not entirely convinced by their arguments. I know the noble Earl, Lord Peel, will disagree with me, but I consider that his choice of the word "whim" was rather unfortunate in describing the view of the council in taking this action. That word would not be acceptable to the council and it is not acceptable to me. However, I hasten to add that both speakers from the Benches opposite made a number of points which will need to be addressed when the Bill is considered in detail by the Select Committee. Many of the points they raised will be more appropriately dealt with by the Select Committee as they require detailed
1028
consideration. They can be more satisfactorily dealt with by the Select Committee than by your Lordships' House on Second Reading.
The speakers on the Benches opposite did not appear to give sufficient consideration to matters affecting the town itself, particularly as reflected in the stance and views of the borough council. I am delighted that my noble friend Lord Graham concurred with my view that the views of the council are important. They are the essence of the argument. I am sure that will be recognised when the Bill has completed all of its stages.
The noble Earl asked whether it would be possible for me to place in the Library a copy of the report commissioned by the borough council. However, it is not my report and therefore I am not in a position to say "yea or nay". Nevertheless, I can assure the noble Earl that I shall consult the council to see whether that is a possibility. I appreciate the strength of the argument for that measure. I commend the Bill to the House.
On Question, Bill read a second time, and committed to a Select Committee.
Viscount Long: My Lords, I beg to move that the House do now adjourn during pleasure until twenty minutes to nine o'clock.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.7 to 8.40 p.m..]

Criminal Justice Bill
House again in Committee on Clause 2.
Earl Ferrers Earl Ferrers moved Amendment No. 9:
Page 3, line 13, leave out subsection (4).
The noble Earl said: In moving Amendment No. 9 it may be convenient if at the same time I deal with Amendment No. 13 in the name of the right reverend Prelate the Bishop of Ripon and government Amendments Nos. 30 and 71.
This group of government amendments is intended mainly to make better and clearer provision in the Bill for the mitigation of sentences. The key amendment is Amendment No. 71. That is a new clause relating to savings for mitigation to be inserted after Clause 23. Its purpose is to make clear that nothing in Part I of the Bill shall prevent a court mitigating an offender's sentence by taking account of any relevant matters. Those will include, among others, a plea of guilty, time spent in custody abroad, the terminal illness of the offender, the serious illness of someone close to him or any reparation by the offender.
Subsection (2) of the new clause makes more specific provision for mitigation. It brings together subsection (4) of Clause 2, which is referred to in Amendment No. 9, and subsection (3) of Clause 5, which is referred to in Amendment No. 30, both of which we seek to delete, and subsections (6) (a) and (b) of Clause 16, which is subject to Amendment No. 58, which we shall also seek to delete. Amendment No. 71 puts all of those points, which at present are in different parts of the Bill, into a more appropriate part of the Bill.
The new clause in Amendment No. 71 provides for mitigation generally. The fact that an offender had made or had offered to make reparation to the victim for his offence would certainly count in his favour when mitigation of sentence was considered. So, for example, would the fact that the offender had assisted the police. However, there is a danger that if we mention some mitigating factors the courts may conclude that Parliament meant to exclude others. For that reason I should prefer not to adopt the right reverend Prelate's suggestion, but I can assure him that his point is covered. I hope that that meets the concern of the right reverend Prelate.
Members of the Committee will see that the proposed new clause also refers in subsection (3) to the question of mentally disordered offenders. We shall debate that question separately under Amendment No. 17 and others which are grouped with that amendment. I should just say that subsection (3) of the new clause in Amendment No. 71 ensures that the Bill cannot he taken as requiring a custodial sentence or one of a particular length to be passed on a mentally disordered offender or as constricting in any way powers to make an order under the Mental Health Act 1983. I can assure the Committee that acceptance of that part of the new clause will not pre-empt discussion of the other amendments relating to mentally disordered offenders.
The other two amendments are simply consequential on the proposed new clause. I beg to move.
8.45 p.m.
The Lord Bishop of Ripon: I should like to speak to Amendment No. 13, to which the Minister referred. The amendment was proposed when the Bill was considered in another place. I understand that it was withdrawn on the understanding that the Government would consider the matter further. I am grateful to the noble Earl for the point that he made.
Nevertheless I should still like to raise the question of reparation covered by the amendment. Reparation has merited increasing attention. Attention has rightly been given to the importance of holding offenders accountable by requiring them to make reparation for their offences. That has been done partly through compensation orders and partly through community service orders. However, a body of experience has recently grown up concerning the method of reparation based on bringing together victim and offender. It is that particular notion of reparation which I should like to mention this evening.
The Home Office sponsored four pilot programmes, one of which was undertaken in Leeds. The probation officer responsible for the Leeds project was one of my licensed clergy; hence my interest in the matter. The Home Office report of the reparation projects indicated that they were widely welcomed, not least by victims. The idea behind the notion of reparation in this case is that offenders and victims should be brought together. Reparation consists in part of a willingness by an offender to meet the victim, and the victim also has to be willing to take part in the meeting.
1030
The research that has been undertaken shows that there has been a wide welcome for the procedure, certainly on the part of victims. It enables those who are victims to objectify what has happened to them. I have heard stories about people who have been burgled for whom the burglary has been an experience of extreme anxiety and fright. Those who have suffered in that way find that they endure the consequences for days or weeks afterwards. To meet the person who has burgled one enables one to objectify those anxieties and fears and to realise that a particular person was responsible. That enables the victims to come to terms with what has happened. It also enables offenders to personalise what they have done. It is no offence against the state or the community: these are people who have been harmed by their offence. The offender is suddenly able to come to terms with the fact that the offence was against a person.
The experience of reparation gained in those schemes should not be lost. My reason for bringing forward the amendment was to provide an opportunity to consider the notion of reparation and to argue that it ought to be taken into account when mitigating circumstances are considered before sentencing. I am happy to commend the amendment in my name to the Committee.
Lord Richard: None of us could object to the sentiment behind the amendment in the name of the right reverend Prelate. We would not wish to hold up the other amendments. In view of the fact that the noble Earl said that the various points are covered by the new clause there is little more to say.
Earl Ferrers: It is right that the right reverend Prelate should draw the attention of the Committee to the importance of reparation. It is an essential part of the criminal justice system that a person should be in a position to make reparation for what he has done. I can assure him that if that is so it will he taken into account. But, for the reasons which I am sure the right reverend Prelate will understand, I believe that it is desirable not specifically to include reference to that. As I said, if that is done the impression is given that one has referred to one particular mitigating circumstance and thereby might involuntarily exclude others. I hope that the right reverend Prelate will be satisfied with that assurance.
On Question, amendment agreed to.
Clause 2, as amended, agreed to.
Clause 3 [Procedural requirements for custodial sentences]:
Earl Ferrers Earl Ferrers moved Amendment No. 10:
Page 3, line 17, leave out subsections (1) to (3) and insert:
("(1) A court shall obtain and consider a pre-sentence report before forming any such opinion as is mentioned in subsection (2) of section 1 or 2 above.
(2) In forming any such opinion as is mentioned in that subsection, a court—

(a) shall take into account all such information about the circumstances of the offence (including any aggravating or mitigating factors) as is available to it; and

1031

(b) in the case of any such opinion as is mentioned in paragraph (b) of that subsection, may take into account any information about the offender which is before it.").

The noble Earl said: In moving this amendment I shall speak at the same time to Amendments Nos. 36, 37, 42 and 72. These amendments are mainly of a technical and drafting nature. The existing subsections (2) and (3) are to disappear altogether from Clause 3. These cover the way in which the offender's previous record is to be dealt with. There are identical provisions in Clause 6 with regard to community sentences. It seems to us that rather than repeat the same provisions in Clauses 3 and 6, it would be better to bring them together in a new clause, which appears as Amendment No. 72. There is, however, no change in the wording.
The existing subsection (1) is separated into two subsections—subsections (1) and (2). This is to make a clearer distinction between the purely procedural requirement to obtain a pre-sentence report and the other provisions of the clause which amplify the factors to be taken into account in sentencingsw—subsection (2).
The new subsection (2), which is probably the most important of this set of amendments, introduces what I think is a very useful clarification of the factors which Clause 3 specifies as relevant to sentencing decisions. It makes a clear distinction between factors which are relevant to assessing the seriousness of the offence—for example, any aggravating and mitigating factors—and those which are relevant to assessing the risk of serious harm from the offender. Factors which might aggravate or mitigate the offence would include the offence being premeditated, or the offender being the ringleader, which would be aggravating factors; or, if the offender had acted on impulse or had been led on by more experienced accomplices, these might be mitigating factors. Factors relevant to assessing harm naturally go rather wider because the court must be able to consider all relevant information about the offender, including information about his mental state, his attitude to the offence, and his previous behaviour, in deciding whether he is someone from whom the public needs to be protected. I should mention that factors which are relevant to neither of these, but which may still be relevant in mitigation of sentence (such as a guilty plea) are to be dealt with in the new clause after Clause 23 which deals specifically with mitigation.
Amendments Nos. 36 and 37 do for community sentences in Clause 6 what Amendment No. 10 does for custodial sentences. They make a clear distinction between information about the offence and information about the offender. I do not think that the Committee would wish me to repeat the arguments. They also ensure that, as with the amendment to Clause 3, the courts are required to obtain and consider a pre-sentence report before forming an opinion on the offender's suitability for the particular orders listed in Clause 6(2).
With that explanation I hope that the Committee will agree that these amendments improve the Bill. I beg to move.
The Deputy Chairman of Committees (Lord Alport): I have to advise the Committee that if this amendment is agreed to I shall not be able to call Amendments Nos. 11 to 16.
Baroness Flather Baroness Flather moved, as an amendment to Amendment No. 10, Amendment No. 10A:
At end insert ("and
( ) shall take into account the need to avoid discrimination on racial grounds.").
The noble Baroness said: As the Chamber is in the process of considering far-reaching and crucial changes to the criminal justice system, I beg the Committee to consider carefully the amendment standing in my name on the Marshalled List. I am prompted by my knowledge of the deep anxiety felt by the ethnic minority groups to introduce this amendment for inclusion in the Bill and because I believe that no credible revision of legislation such as this would be complete without categoric revision being made for ethnic groups which now form 4.7 per cent. of the population of this country.
There is no dispute about the importance of the principle and decisions in the criminal justice system must be made without discrimination. Paragraph 1.16 of the Government's White Paper Crime, Justice and Protecting the Public which was published in February 1990 stated that:
"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 or any other reason".
The key question therefore is what would be the advantages of enshrining that principle in legislation. To understand the strength of feeling on this point among many members of ethnic minorities, we need first to appreciate the widespread and mounting concern about the disproportionate number of black people in the prison system. The proportion of the prison population from ethnic minorities has risen from 12.5 per cent. in 1985 to 16 per cent. in 1989, although ethnic minorities constitute, as I said earlier, less than 5 per cent. of the general population. That disproportion cannot simply be attributed to differential crime rates or to the fact that a higher proportion of the black population is in the crime prone teenage groups.
The fact is that the Home Office statistics on the ethnic breakdown of the prison population, first compiled in 1985 and published annually since then, show that members of ethnic minorities entering prison have on average fewer previous convictions than white prisoners and that before conviction they were less likely to receive bail than comparable white defendants. Further, the findings of many research studies contain indications that members of ethnic minorities are treated differently from white people at various stages of the criminal process. As I said on an earlier occasion, if the ultimate purpose of punishment is the rehabilitation of the offender, that will result only if the offender feels that his punishment is just and fair. Distrust of the system leads to resentment and suspicion, which is totally counter-productive.
In recent weeks the judiciary has been the subject of harsh criticism. I do not intend to add to that. But in

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this climate it is singularly important and appropriate to include an amendment such as this one. It is not suggested that there is any conscious wish to discriminate on the part of anyone working within the criminal justice system, least of all on the part of the judiciary.
Turning to Clause 3, one sees that the judges are being asked to take into account information regarding the circumstances of the offence, including aggravating and mitigating factors. Judges may also take into account any information which is before the court about the offender. Apart from the fact that the judges may not always have obtained a pre-sentence report, I should not have thought that any members of the judiciary would proceed to sentence an offender without taking into account the factors which they are asked so specifically to consider in this Bill.
It seems logical, therefore, that the need to avoid bias on racial grounds should also be added to the checklist. That will demonstrate openly the need for fairness in the treatment of black offenders and send out a very important message to say that there is a commitment on the part of the judicial system to avoid discrimination however or from whatever source it may occur.
I have been told that the judicial oath covers that point. The oath is:
"To do right to all manner of people after the laws and usages of this realm".
Clearly it covers that situation. But I cannot envisage any situation in which an appeal would be brought on the basis that the judge has not acted in accordance with the oath. I cannot imagine any greater personal attack on a judge than that. Furthermore, if the judicial oath is to be solely relied upon as expressing correctness of approach not much of the recent legislation, let alone other elements of this Bill, would he necessary. I believe that the amendment fits in entirely with the judicial oath and does nothing to detract from it. On the contrary, it serves only to enhance it.
At Report stage of the Bill in another place, the Government amended what is now Clause 79 to require the Home Secretary to publish information annually for the purpose of,
"facilitating the avoidance by such persons of discrimination against any persons on the grounds of race or sex or any other improper ground".
The phrase "such persons" refers back to the phrase,
"persons engaged in the administration of criminal justice".
It establishes a need to keep under review procedures and practices which may have a discriminatory effect; and I greatly welcome that. However, the Government were unwilling to accept a case for including any further provision in the Bill.
I reiterate the reasons for supporting the amendment. First, by drawing attention to the issues in the check-list in Clause 3(1) the Government would be making a far-reaching statement about the importance which they attach to the principle of non-discrimination. Secondly, as it stands, the Bill lays down in statute a very detailed set of principles for sentencing covering the use of both custodial and community penalties. Those cover so many other
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sentencing principles that it would be strange if the principle of non-discrimination were left out. Thirdly, since discrimination can be an unconscious act, it would be advantageous to ensure that sentencers had to stop and think consciously and explicitly about the need to avoid discrimination in their decisions. Fourthly, such a statement in legislation would reinforce the efforts of many organisations and individuals within the criminal justice system to ensure that the system is fair and is seen to be fair. I beg to move.
9 p.m.
Lord Hutchinson of Lullington: I support the noble Baroness's amendment. Perhaps I may ask the Minister some questions on his amendments afterwards.
In supporting Amendment No. 10A I do so as a member of the NACRO race relations committee which for the past five years has been inquiring into racial matters in the criminal process. There is no need to establish that there is racism or racial discrimination in the sentencing process. The great point is, as we discovered, that the ethnic minorities perceive that there is discrimination. It has taken a tremendously long time to convince the different agencies—the judges, the magistrates, the lawyers, the probation officers and even the ushers and other persons working in the criminal justice system—that that is the perception. That factor has been received with surprise; and after a time those agencies have come to accept that it is true. During the past few years they have all taken important, surprisingly excellent, measures to set the matter right. Their co-operation has been extremely good.
There is therefore a need for this declaration. I support in every way what the noble Baroness said in introducing the amendment to enshrine the principle in the Bill. Many people working in the system are clearly still unaware of that perception, and of many disturbing facts, some of which the noble Baroness has referred to. Perhaps I may refer to others.
Twenty-four per cent. of the females in custody are from the ethnic minorities. More defendants from the ethnic minorities are acquitted than white defendants. According to statistics, they receive prison sentences earlier in their careers than white persons. They are stopped and searched more often. They are cautioned less often than white persons. There are fewer pre-trial reports and fewer recommendations on sentences. They are over-represented in the after-care and post-custody supervision. None of that may be due to racial discrimination. It is an extremely complex area. There may be many reasons. However, there are these disturbing facts. Because they exist it would be of the greatest possible assistance if there were a statutory declaration of the kind suggested.
Part I of the Bill emphasises the new framework which is based for the first time on a number of principles. Therefore if those principles are in the Bill, this is another principle which should be included. It would go a long way in giving confidence in the system which has had so many knocks recently. It would show clearly that it is a fair system. That is important

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in recruitment for the different agencies. That is an extremely important aspect of racial discrimination problems in the criminal process. Until there is real recruitment of the ethnic minorities on the Bench, in the magistracy, in the legal profession, it will always be incredibly difficult to get over the problem. Such a principle is of great importance. I strongly support the amendment of the noble Baroness.
I am in a state of some confusion with regard to the amendments in the name of the noble Earl. Amendment No. 72 inserts the new clause. It is perfectly clear. It states:
"(1) Subject to subsection (2) … an offence shall not be regarded as more serious for the purposes of this Part by reason of any previous convictions of the offender or any response of his to previous sentences".
And then (3):
"In so far as the circumstances of any offences of which an offender has been previously convicted are relevant for the purpose of forming an opinion as to the seriousness of the offence, nothing in subsection (2) above—
which I have just read out—
"shall prevent the court from taking those circumstances into account for that purpose".
Having said that, one goes back to Amendment No. 10 and finds:
"A court shall obtain and consider a pre-sentence report before forming any such opinion as is mentioned in subsection (2) of section 1 or 2 above".
Presumably that is referring to the same two criteria. It goes on:
"In forming any such opinion as is mentioned in that subsection, a court … shall take into account all such information about the circumstances of the offence … as is available to it"—
that is, as I read it, the criterion as to the seriousness. Then we come to (b):
"in the case of any such opinion as is mentioned in paragraph (b) of that subsection,"—
that is, the protection of the public—
"may take into account any information about the offender which is before it."
Do I read that correctly to mean that in the first criterion you may only look at the circumstances of the offence—that is to say, not the previous convictions of the offender—and that it is only when it comes to the protection of the public that you can look at the previous convictions of the offender? Amendment No. 72 does not seem to say that and I find it extremely confusing. I should be most grateful if the noble Earl could make it clear.
Baroness Carnegy of Lour: I should like to support my noble friend Lady Flather in her Amendment No. 10A, which is an amendment to the Government's Amendment No. 10. It is not usually helpful to put special pleading for particular groups of people on the face of the Bill but I would suggest that this Bill, and in particular this part of it, should be an exception. I note with interest that the noble Lord, Lord Henderson, with all his expertise in these matters, seems to agree with that because his name is on the amendment.
My noble friend Lady Flather made it clear tonight and also in her speech on Second Reading that there is no suggestion at all in her mind of anything deliberately discriminatory about the way the courts deal with ethnic minorities. But there is a feeling, and the noble Lord, Lord Hutchinson, has endorsed it,
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among those minorities that the way they are treated in the courts from time to time shows bias against them. There are other statistics that have been quoted and other research that seems to bear this out.
In considering Clause 3 of the Bill we are considering the moment when the court decides what a sentence is to be; whether it is to be a custodial sentence and, if it is, its duration. In deciding this, if Amendment No. 10 is accepted the court will have a pre-sentence report before it and will have to take into account the available information on the circumstances of the offence and, if a violent or sexual offence is being dealt with, also information about the offender.
At this crucial point my noble friend is suggesting that the court must be reminded, by putting this on to the face of the Bill, that it must also take into account the need to avoid racial discrimination affecting its decision. As the noble Lord, Lord Hutchinson, has said, no judge would allow deliberate racial discrimination to intrude and, as my noble friend has said, the judicial oath precludes it. But surely, equally no judge could seriously object to this addition to what my noble friend has referred to as the checklist of that which has to be taken into account when passing sentence.
Technically it may not be a necessary addition, but if members of our ethnic minorities need the reassurance that justice is being done, I believe that this amendment to this part of the Bill would help. I hope that the Government will think very carefully about this. I know that so far they have not thought it necessary to take it on board, but I hope that if they do not accept the amendment they may put something else in this part of the Bill to replace it.
Lord Henderson of Brompton: I should like to follow both the tone and temper of the speech of the noble Baroness, Lady Carnegy of Lour. This is clearly not a matter of party politics. I think we all feel that something of this kind ought to go into the Bill and I believe that the noble Baroness, Lady Flather, has put her finger on it by making it a cardinal principle of sentencing and thus has reached the very heart of the Bill, which is the treatment of offenders. I am also attracted to the later amendment, but that is of a rather more general nature and at the moment I cannot see why both should not go into the Bill. I feel sure that the Bill should be informed with the principle of non discrimination, and both Amendment No. 100 and Amendment No. 10A seek to do that very thing.
Like the noble Baroness, Lady Flather, who moved the amendment, I have no wish to impugn the judiciary, or indeed any of the constituent parts of the administration of justice, but I think we can all agree that racial discrimination can be unconscious. It is for that reason that the various government agencies, including the Lord Chancellor's department, the Home Office, the courts and the legal professions themselves, have all been making strenuous efforts over the last few years to combat racial discrimination within the constituent parts of the criminal justice process. They have done it by various means; by recruiting more people from the ethnic minorities, and so on. They have been successful, but not as successful as they would have wished. I am sure that all those

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who have been engaged in this process will testify to the fact that sometimes they feel themselves facing indifference and hostility—and there is no question about that.
9.15 p.m.
My particular interest in this matter arises because I am chairman of an organisation called Action on Youth Crime. It was formed to try to keep young people, especially the older age group of 16 to 18, out of the criminal justice system. It is formed really from two statutory bodies: the probation service—represented by senior probation officers—and the social services, where we have representatives of the Association of Directors of Social Services, and the principal voluntary bodies concerned with the young and the criminal justice process.
Two years ago we had to face up to the fact that there was so much prima facie evidence of racial discrimination within the criminal justice system that we had to collect together what facts we could from the research that was available. We did that and published a fact sheet in 1989, just about two years ago. We found that what fuelled the feelings of the ethnic minorities was substantiated in the statistics of the various studies that we collected.
The noble Baroness, Lady Flather, has gone into those statistics in some detail and so I do not wish to repeat what she has said. All I wish to say is that two years ago we found what we considered to be irrefutable evidence that, whatever the intentions of the no doubt extremely fair and well-minded people who run the criminal justice system, the net result was that there appeared to be discrimination. That amply seemed to justify our bringing these facts before the public, because if there was discrimination it gave full justification to the legitimate fears of the ethnic minorities that they were not being fairly dealt with.
The figures are popularly supposed to show that young black people—and I am talking only about young black people—are more prone to commit crime than white people. That clearly is not so. Instead, the evidence shows that young people from the black ethnic minorities and from the ethnic minorities who offend are more likely to be imprisoned. The conclusion of our close examination of the statistics was that they are more likely to be imprisoned. They are not treated, no doubt unconsciously, on a parity with white people.
I shall briefly illustrate the position. We found from a survey of youth custody trainees from south-east London, for instance, that Afro-Caribbean trainees in youth custody training programmes had fewer previous convictions, and were less likely than their white peers to have had a probation or supervision order. That is a telling finding.
Again more recently than that, in 1989, the West Yorkshire Probation Service found that probation officers' recommendations to the courts for probation and community service orders were far less likely to be accepted for Afro-Caribbean and Asian offenders than for white offenders. I choose only two of the many telling statistics which have been brought together in the factsheet produced two years ago. I
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shall not elaborate on those because the facts speak for themselves and they speak also for the need for this amendment and Amendment No. 100.
The high custodial sentencing rate for young offenders from ethnic minorities must disturb us all, especially as we all believe in racial justice. Variations in sentencing do not automatically prove that discrimination takes place. By and large, that can be explained by variations in the seriousness of offences. I do not deny that. However, the whole weight of evidence goes the other way; that despite all the mitigating explanations which can be thought of, nevertheless there is ingrained in the system somewhere—perhaps throughout, I do not know—discrimination which is so clearly demonstrated by those statistics.
In addition, there is clear evidence that young black people are more frequently stopped by the police than young white people. Young black offenders are imprisoned with fewer previous convictions than young white people and the courts accept recommendations for non-custodial penalties less often for young black offenders than for young white offenders.
I submit that if all those considerations are taken together, something is badly wrong with the operation of our legal system. An amendment such as that moved by the noble Baroness, Lady Flather, is necessary to ensure that the criminal justice process deals equitably with young offenders from all ethnic backgrounds and gives confidence to those people whose mothers and fathers, cousins and kin have doubts. Those doubts about the fairness of our criminal justice system simply must be dispelled so that they will have confidence in it as well as the white community.
Lord Elton: The noble Lord, Lord Henderson, has made a very powerful case which will be found more powerful on reading. I commend to the Minister the statistics quoted.
I was a reluctant convert to the view that there appears to be an element of discrimination against ethnic minority offenders in our criminal processes. In his reply, I ask my noble friend to consider what are the social effects of that. The fabric of our society is only sustainable if the mass of society consents to the criteria on which justice is administered. If a particular discrete, identifiable and self-identifiable sector of that society believes that there is a system of justice which is just for other people but not just for them, whether or not that belief is well founded, the effects upon our society as a whole will be very damaging because those people will see the judicial system not as a means of maintaining law and order but as a means of keeping "them" down and "us" up. That is a recipe for internecine warfare and is very dangerous.
Therefore, it is necessary and timely that a new gesture be made by the Government that they subscribe to the impartiality of justice as we know in our hearts that they do. What that gesture should be is another question. I have doubts about the amendment so ably and eloquently moved by my noble friend Lady Flather.
I see an apparent discrimination at many points in the criminal justice system, and not simply in the

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sentencing process. For instance, one of the statistics which I did not hear, and may have missed in the contribution of the noble Lord, Lord Henderson, was in regard to the disproportionate number of black offenders who are remanded into custody when they are charged with the same offence and have the same background as white offenders. In other words, there needs to he a gesture to commit us to equality of justice for all members of our community which goes wider than just sentencing.
I looked at Amendment No. 100. It lays upon the Secretary of State a slightly indeterminate duty which would be impossible for him to discharge. I do not see a remedy there. I merely want to endorse the view that a belief that racial discrimination exists within the criminal justice system is not an eccentric view; it is not a Left-wing view; it is not a prejudiced view. It is a view which flows naturally from looking at the statistics by people who were initially disposed to discount them.
I ask my noble friend to consider between this stage and the next whether he can devise something more effective than that which is now before us.
Lord Hutchinson of Lullington: Before the noble Lord sits down, would he not agree that half a loaf is better than no bread?
Lord Elton: I find it dangerous to agree with any general principle uttered by the noble Lord without great thought. I put against it the expressio unius est exclusio alterius principle mentioned earlier. If we were speaking of comestibles, I would agree with the noble Lord; we are talking of justice.
Lord Morris of Castle Morris: The noble Lord is very wise. I spoke on this question at Second Reading, as did many other noble Lords. There is a great deal about which there is general agreement. It is not a party matter and there need be no controversy whatever. As the noble Baroness, Lady Flather, said, there is no dispute about the importance of the principle that decisions in the criminal justice system must be made without discrimination. The central point before us is what the advantages would be of enshrining that principle in legislation and at this point in the Bill.
A case can be made for enshrining the amendment proposed by the noble Baroness. I looked at the whole of our debate on Second Reading and I read it all over again. One passage struck me as central to the entire matter. It arose in the speech made by the noble Baroness, Lady Flather, and perhaps I may remind the Committee of it. She said,
"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
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than their white counterparts. They are also much less likely to receive bail than their white counterparts".—[Official Report, 12/3/91: col. 144.]
The issue could hardly be put more clearly or more sensitively than that. But the Bill as it has progressed is not equally clear. On that same Second Reading I asked three questions regarding Clause 79(1). I asked,
"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?" [Official Report, 12/3/91; col. 131.]
As the Bill has gone on we have been unable to resolve those questions. I have not yet received any satisfactory answer to them. That is why I support this amendment which makes one clear, powerful statement. Clause 79(1) (b) is welcome so far as it goes, but it does not go far enough. The Government were unwilling to accept the case for including in the Bill any further provision on the issue. At Report stage Mr. John Patten, the Minister of State at the Home Office, said:
"I have no doubt that any unfair discrimination by those working in the criminal justice system would be unlawful ... The legal position is clear and for that reason we see no merit in a provision that puts a duty on sentencers and others not to discriminate. That would add nothing to the present legal position". [Offical Report, Commons, 20/2/91; col. 337.]
Surely, there is a concealed non sequitur here. The legal position may be perfectly clear but it may also be forgotten, scanted, overlooked or under-emphasised. That is what lies at the heart of the proposed amendment. The amendment would act as a discipline, an aide-mémoire, as a drill in priorities and as part of the checklist of the sentencer. The other great virtue of the amendment is that it is a declaration. If it appears at this point in the Bill it will reassure people, particularly black people. They will be able to point to it. It will increase their trust which has been too battered recently by the criminal justice system of this country.
It has been said, and I think it true, that discrimination can so often be unconscious. As the noble Baroness, Lady Flather, said, it would be a great advantage if we could ensure in the Bill that sentencers had to stop and think consciously and explicitly about the need to avoid discrimination in their decisions. Discrimination can be unconscious. All of us live by a shorthand of assumptions. We think that Welshmen sing all the time and love rugby football. I know hundreds and thousands who cannot sing a note and who loathe the wretched game. We know the stereotype that women are muscularly less powerful than men. We know of occasions when that is not true. We work on the stereotype that children need protection all the time because they are innocent. Those of us who are parents as well as those of us who are lawyers know that that need not always be the case.
Stereotypes and unconscious prejudices infect every one of us. For that reason it would be good to declare in the Bill our determination to uphold the principle that decisions in the criminal justice system must be made without discrimination and to give to sentencers

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the personal discipline of including that in their checklist of things to be taken into account before sentence is decided and obliging them to examine their consciences every time on that question. I support the amendment.
9.30 p.m.
Lord Beloff: Perhaps I may venture briefly to utter a dissenting voice. I do not disagree for a moment with any of the statistics or other observations that have been made about the way in which the criminal justice system may work to the detriment of members of the ethnic minorities. Nor would I disagree with the view that this is a blot on our system of criminal justice. One has to ask oneself whether the suggested remedy is not a danger in that it attempts, as the noble Lord, Lord Morris of Castle Morris, described so eloquently, to delve into people's conscious or unconscious motivations. If we accept this or a similar amendment, we are saying that those who pass sentence—our judges and magistrates—have innate prejudices against which it is necessary to warn them.
I should have thought that this is a dangerous incursion into the area of private conscience. The law can deal with objective matters. The law can say that such and such a person is entitled to such and such treatment. That, after all, has been the basis of our race relations legislation. But to say that a judge must consider before he passes sentence whether he is being motivated by considerations of prejudice—if racial, why not religious considerations or considerations of gender—is a different matter. The example of the United States in this respect is quite important. There are all kinds of possibilities for lack of fairness. To introduce into our statute law—into a measure as important as a Criminal Justice Bill—the suggestion that those who administer justice must be presumed to have prejudice may, far from giving confidence to members of the ethnic minorities—I agree that the perceptions are as important as the facts—accentuate their suspicions. They will say that the Upper House, or in the end Parliament as a whole, agrees that there is prejudice in the judiciary. We ought to think long and very clearly before we attack a grave and important problem in this way.
Lord Pitt of Hampstead: Blacks, and particularly black youths, are stopped and searched more often than white youths. That is confirmed by the statistics. When they are brought before the court they are more likely to be remanded in custody than given bail. What is more, the statistics show that those same people who are remanded in custody are often acquitted when they are tried. If convicted they are often not given custodial sentences.
With this Bill we are trying to reduce the number of people who are given custodial sentences who should not be given them. In Amendment No. 10 we state that the judge should take into account certain matters before deciding whether to give a custodial sentence. Bearing in mind the statistics, is it not sensible to say to the judge that he should take account of the reports, he should take account of the circumstances of the
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offence and the state of the offender and that he should also bear in mind the need to avoid racial discrimination. That seems to me to be eminently sensible.
The issue would probably not arise if we did not have such statistics. However, we do have them. Therefore, although it may not necessarily be racial discrimination, there is a possibility that it could be. In the circumstances, it is sensible merely to say to the judge, "When you are about to decide whether to impose a custodial sentence you should consider the need to avoid racial discrimination". That is really what the amendment is saying and all that it requires. I do not understand why we have had all this hullabaloo.
From everything that I have heard, I gather that everyone would like the judicial system to function without there being any discrimination on the grounds of race. If that is what is really wanted, then to suggest to the judge that he should consider that matter when he is thinking about other aspects is eminently sensible. I cannot see any reason why the amendment should not be accepted. I hope that the Minister will say that the Government are happy to accept it. One assumes that they would like to try to remedy what appears to be a defect in the judicial system.
9.45 p.m.
Lord Renton: The noble Lord, Lord Pitt, began his remarks by pointing out—and I do not dispute what he said—that black people are arrested, stopped and searched more often than white people. However, I am afraid that the amendment before us does not cover that issue. I have a great deal of sympathy with the motives of my noble friend Lady Flather in moving Amendment No. 10A. Surely we all agree that it is important not only that justice should be done but that it should also manifestly be seen to be done to all people and on all occasions.
Evidence has been put before the Committee about the results of the present sentencing policies of the courts, especially as regards magistrates' courts. If he is able to do so, I hope that my noble friend Lord Ferrers will be able to reassure my noble friend Lady Flather, and the rest of the Committee, on the facts which she and others have put forward.
However, having expressed my sympathy with my noble friend's motive, I must say that I doubt whether her amendment serves her purpose. If there is a need for such an amendment, surely it should apply right across the board. For that reason I prefer Amendment No. 100 which is also tabled in her name and which I believe goes much further. I do not believe that it quite covers all the issues involved, but it could be said to cover the points which the noble Lord, Lord Pitt, started to raise.
As I said, I doubt whether Amendment No. 10A really serves my noble friend's purpose. I also doubt whether there is a need for it and whether it is technically well based. Amendment No. 10, deals with the matters which the court should consider before sentencing people to custodial sentences. I should point out at this stage that I support this amendment moved by my noble friend Lord Ferrers.

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Under the Bill as it stands, and under Amendment No. 10, the matters in question relate to the "circumstances of the offence"—that must always be so—the past record of the offender-that must be so—and other relevant information about him. We see that in new subsection (2) (b) which states that the court,
"may take into account any information about the offender which is before it".
The fact that the offender is a black person, or, as my noble friend Lord Beloff reminded us, a person whose religion may differ from that of those who are sentencing him; or, if I dare say it, an Irish person or a Welsh person—
Noble Lords: No!
Lord Henderson of Brompton: I thank the noble Lord for giving way. As far as we are aware, there is no evidence of any discrimination against Irish people or Welsh people. What we have is evidence that there is discrimination, or so it appears, adduced by the noble Baroness and myself, against black people. So there is no need to have an amendment to prevent discrimination against atheists or Welshmen.
Lord Renton: The assumption that the noble Lord, Lord Henderson of Brompton, has asked us to accept may be the right one, but is one not entitled to look at the matter from a broader point of view? That is what I and my noble friend Lord Beloff have been inviting the Committee to do.
The phrase "any information about the offender" could include anything which had to do with avoiding discrimination against him or her on racial grounds. To that extent, my noble friend's amendment would not be necessary. However, when deciding whether to impose a custodial sentence, which is only one part of the work of the courts, for the avoidance of racial discrimination. That might give the unfortunate impression that we do not attach as much importance to the need for the court to avoid racial discrimination on other occasions.
I have great sympathy with what my noble friend Lady Flather has put forward, which has been well supported. I am anxious to hear what facts my noble friend the Minister can give, but as a means of achieving its object, I doubt whether my noble friend's amendment is the best way to do so.
Lord Pitt of Hampstead: In view of the evidence that black people are more likely to receive custodial sentences than non-custodial sentences, does the noble Lord believe that it might help if the judge has to take into account that he should try to avoid racial discrimination? I put the point no stronger than that.
Lord Renton: I should not repeat the views that I have already put before the Committee, but if the noble Lord cares to study Hansard tomorrow, I hope that he will find that I have given good reasons for saying that if it is necessary to have a provision written into the Bill to avoid racial discrimination, it should go beyond imposing custodial sentences.
Lord Pitt of Hampstead: I ask this specific question: does the noble Lord accept that the evidence suggests that blacks are more likely to receive custodial sentences than non-custodial sentences? This section of the Bill deals with what ought to be taken into account before custodial sentences are imposed. To put it at its lowest, therefore, does he not think that the amendment might help?
Lord Renton: I think I ought not to try further to convince the noble Lord by repeating myself.
The Lord Bishop of Ripon: I wish briefly to add my support to the amendment in the name of the noble Baroness, Lady Flather. I listened with care to what Members of the Committee said, particularly the noble Lord, Lord Beloff. It seemed to me that he was talking about people's perceptions of the law but was not taking sufficient account of what has been said on all sides of the Committee about the statistics. I believe that analysis and anecdote come together here. The analysis is quite clear on where the statistics take us. That is borne out by what happens when we meet black people, particularly black youngsters.
I listened with great attention to what the noble Lord, Lord Elton, said. I underline the points he made on the social fabric and the way in which the perception of black people as being part of the social fabric is undermined. In addition, their individual self-understanding is undermined. I have known people working in bail hostels for black youngsters, trying to bring home to them the gravity of the offences they have committed. It is extremely difficult to do that against the background of feeling that the system is weighted against them. The bitterness in them makes it extremely difficult to help them face what they may have done.
I hear what the noble Lord, Lord Renton, said about it only concerning sentencing, but taken in conjunction with Amendment No. 100 this amendment provides a broader way of looking at the problem. I should be happy if somebody could suggest a better way of incorporating the proposal in the Bill, but if there is none then it is important that this amendment should be accepted.
Earl Ferrers: My noble friend Lady Flather has shown only too clearly how important it was for her to put down her amendment. She has touched on a very important point and I am glad that she has brought it to the Committee this evening.
In all walks of life we have constantly to be on our guard against racial discrimination. We must perpetually work and aim to avoid it. We do not necessarily achieve that by passing laws, it is something for which we have to strive in all that we do. I agree with the noble Lord, Lord Morris of Castle Morris, that this is no party matter; it affects us all and we are united in wishing to ensure that there is no racial discrimination.
My noble friend is anxious to ensure that there is no unfair discrimination on the grounds of race in determining whether or not to impose custodial sentences. Fair treatment for all those who come before the courts is an issue of vital importance. It

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goes without saying that there can be no room for racial discrimination or any other unfair discrimination in any part of the judicial system. The Government are determined that there should be none and those who work in the judicial system are of the same opinion. There is, therefore, no disagreement with the principle that the amendment is intended to promote.
However, I am bound to say that I have some anxiety about the nature of my noble friend's amendment. My noble friend Lord Elton was quite right that society only works if there is an acceptance of justice throughout it. It is not right that, as he put it, there should be a "them" and "us" attitude. It is appalling that there should be such an attitude, and I agree with my noble friend Lord Renton who said that justice must not only be done but must be seen to be done. The noble Lord, Lord Morris of Castle Morris, referred to the comments of my right honourable friend Mr. Patten when he said that there was no point in including in the Bill the need not to discriminate as that is the whole ethos behind the entire court system.
The amendment would require the courts to take account of,
"the need to avoid discrimination on racial grounds",
when deciding whether or not to impose a custodial sentence. That is an understandable and worthy concern but it would simply restate what is already a matter of law; that is, that sentencers must treat people fairly in passing sentence. I agreed with my noble friend Lord Beloff when he questioned whether we were right to make sentencers delve into their minds and ask themselves whether there was any racial prejudice in their minds before they imposed sentences. There should be no racial prejudice in their minds; nor should there be any religious prejudice. All judges and magistrates have to take the judicial oath, as my noble friend Lady Flather said. That oath places a clear duty on them to act rightly in all cases without fear or favour, affection or ill will. The principle applies to all sentencing decisions and not just to decisions on custodial sentences.
My noble friend Lady Flather provided various statistics. I believe it was the noble Lord, Lord Hutchinson of Lullington, who said that 24 per cent. of females in custody came from ethnic minorities. I believe the noble Lord also said that people from ethnic minorities were stopped and searched more often and were released less frequently than people from other groups. The matter of statistics concerned the noble Lords, Lord Hutchinson, Lord Henderson and Lord Pitt, my noble friend Lord Elton and the right reverend Prelate the Bishop of Ripon. The general thrust of their remarks was that statistics show discrimination. I do not believe the statistics show that. They may show who has been convicted and who has been kept in custody. But that does not necessarily mean they show that discrimination has occurred. We must be a lot more sophisticated in the interpretation of statistics before reaching such conclusions. The noble Lord, Lord Hutchinson, was right to say that it is a complicated matter.
Lord Pitt of Hampstead: I, for one, did not assert that the statistics show there is discrimination. What I did say was that they raise a suspicion that discrimination may exist. I do not think one needs to go further than that. Certainly, if the statistics are before one, one must ask oneself what they mean and why they are as they are. The possibility that there may be discrimination must arise in one's mind.
Earl Ferrers: I apologise to the noble Lord, Lord Pitt, if I misinterpreted his remarks. I can understand that the noble Lord thinks the statistics may raise certain queries in his mind and in the minds of others. However, I can only repeat what I said. One must adopt a much more sophisticated approach to statistics before reaching the conclusion that they reveal discrimination.
I agreed with my noble friend Lord Renton when he said that, technically, the amendment was not well based. It is not clear, for example, what would be required of sentencers for them to meet the procedural requirement that the amendment imposes on them. The other procedural requirements in Clause 3 of the Bill all involve the courts in considering particular kinds of information, such as a pre-sentence report, information about aggravating or mitigating circumstances, or information about the offender, for example, his attitude to the offence. However, the requirement to avoid discrimination would not be linked in a similar way to any clear and practical steps. I suggest that it would not sit easily in that position.
There is already provision in Clause 79 of the Bill on the need to avoid discrimination in the criminal justice system. The provision was included in another place because of the anxieties that were expressed about racial discrimination and the need to avoid it. The provision was specifically included for that purpose. It places a duty on the Secretary of State to publish annual information about the position of ethnic minorities and women in the criminal justice process. That is the most helpful and constructive way of reinforcing the principle of fairness which is already reflected in the law and of supporting all those working in the criminal justice agencies in meeting that need for fairness. If a duty is imposed upon the Secretary of State to publish that annual information the process of gleaning that information will ensure that those who administer the law in all parts of the criminal justice system will do all that they can to avoid any form of racial discrimination.
The noble Lord, Lord Hutchinson, asked me a specific question with regard to previous offences. The situation is not quite as the noble Lord, Lord Hutchinson, understood it. When the court is considering the seriousness of an offence under subsection (2) (a) of Amendment No. 10, it will be able to take account of previous offences only as permitted in subsection (2) of Amendment No. 72. When the court is considering the circumstances of the offender under subsection (2) (b) of Amendment No. 10 for the purpose of sentencing on grounds of protecting the public, it is not restricted by the provisions of Amendment No. 72 as to the regard which can be had to the past record. If the past record indicates that the

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offender is a persistent offender whose activities put the public at risk it should be possible to pass a sentence which protects the public.
My noble friend Lady Flather has raised a very important point upon which there is no difference of approach on any side of the Chamber. However, my advice to the Committee is that it would be wrong to incorporate that type of amendment in the Bill at this point as it would not sit conveniently or properly in the Bill. I assure my noble friend that the requirements on the criminal justice system to avoid racial discrimination are considerable and have been enhanced by the amendment which was put down in and accepted by another place. I hope therefore that my noble friend will not wish to see her amendment, important though it is, incorporated in the Bill because I do not believe that that would be the right thing to do.
10 p.m.
Lord Hutchinson of Lullington: Before the noble Earl sits down, perhaps I may ask him one question. He mentioned Clause 79(1) (b). Does that envisage the monitoring of sentences in the courts for the purpose of determining whether there appears to be some form of discrimination? If it does, that information would be of assistance in relation to this question.
Earl Ferrers: I shall have to take advice upon that matter because I would not like to mislead the noble Lord, Lord Hutchinson. Perhaps I may write to him on the matter.
Baroness Flather: I am grateful to the noble Lords who have taken part in the debate and for the support that I have received. I am pleased to note that there are noble Lords on all sides of the Chamber who are anxious about the issue. It is very good to have had a debate on the subject.
There are a few points which I should like to take up; and it would be wrong of me if I did not do so. One of the major matters raised by my noble friends Lord Elton and Lord Renton and, indeed, by my noble friend Lord Ferrers was whether this was the right kind of amendment in the right place. I shall not stick by a form of words in a particular place. It is the sentiment which I wish to see incorporated in this very important Bill. I shall not stand by eight or 10 words and say that they have to go in this place or that place.
If my noble friend Lord Ferrers had given me some hope that he would look at the matter again I should
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have felt a great deal better. He has not. Therefore I am deeply concerned and I may have to bring something back at the next stage of the Bill. I should greatly appreciate any help from noble Lords or perhaps noble and learned Lords who are better able than I to do the drafting. I shall await their help.
At this stage I shall not let go of the point made by my noble friend Lord Beloff. He said that private conscience is not in the public domain, or something of that nature. Personally I believe that if private conscience leads to groups of people being treated adversely, it does become part of the public domain and surely a warning would not be out of place.
The noble Lord also mentioned gender and religious grounds. I include both those matters with racial discrimination. Any form of discrimination, whether it is on grounds of gender or religion cannot be acceptable. If there are people in high positions who can affect adversely the lives of groups of people because their private consciences are out of the public domain, then something is seriously wrong. That should be considered carefully.
I am sorry that my noble friend Lord Ferrers felt that he should support that sentiment. If that is so, I do not know why in the Bill there are so many strictures on the judiciary as to what they should and should not do. I urge my noble friend to think again and consider bringing some provision into this Bill. It is not about whether criminal justice is in fact above all this argument, whether it is discriminating or not discriminating; it is a question of confidence. The confidence is not there. There are statistics which prove that that lack of confidence is justified and there is deep anxiety over this matter. I should have thought that the draftsmen whom the Government have at their disposal could find a suitable place to slot in something.
I am not very keen on our next amendment, Amendment No. 100, for the same reasons that were given by my noble friend Lord Elton. Although I am a very poor lawyer, I believe that the judiciary should not be under the thumb of the Executive. That would be a bad move forward in all respects. But that is the next point, which is there as a declaratory amendment. I hope that we do not have to move it at some other stage. I should be very grateful to my noble friend if he would think again on this matter. I do not wish to divide the Committee. I beg leave to withdraw the amendment at this stage.
Amendment No. 10A, as an amendment to Amendment No. 10, by leave, withdrawn.
On Question, Amendment No. 10 agreed to.
10.10 p.m.
The Deputy Chairman of Committees (Lord Cocks of Hartcliffe): Amendment No. 10 having been agreed to, Amendments Nos. 11 to 16 are pre-empted. We move to Amendment No. 17.
Earl Ferrers Earl Ferrers moved Amendment No. 17:
Page 3, line 33, at end insert:
("(3A) Without prejudice to the generality of subsections (1) and (2) above, before passing a custodial sentence in a case to which section 1 or 2 above applies on an offender who is or appears to be mentally disordered, a court shall consider

(a) any information before it which relates to his mental condition (whether given in a pre-sentence report, a medical report or otherwise); and

(b) the likely effect of such a sentence on that condition and on any treatment which may be available for it.").

The noble Earl said: In moving this amendment, I shall speak also to Amendments Nos. 23, 24, 25 and 26 and to Amendments Nos. 71, 74 and 96.
Lord Richard: Perhaps the noble Earl will allow me to intervene. As I understood the grouping—I can be wrong about these matters—the four amendments grouped were Amendments Nos. 17, 23, 24 and 74. That was one grouping. A subsequent grouping was Amendments Nos. 25, 26 and 46. Is that right?
Earl Ferrers: I am most grateful to the noble Lord for coming to my rescue. He is quite right. I looked at some figures which had been photocopied and were not clear. I am deeply grateful to him for his rescue. I hope that he will continue in that spirit in relation to all other matters.
The problem of mentally disordered offenders is an exceedingly important and difficult one. The fact that the amendments which we are now considering come from all sides of the Chamber shows that this is not a party political matter, but one where we are all searching to find the right way forward. We all agree that people who ought to be receiving health or social services treatment should not find themselves in prison.
These are real problems, and they must be tackled properly. Legislation has a part to play, but to a large ,extent the problems are practical ones. If the practical measures to overcome the problems do not keep pace with the legislative changes, we shall end up making matters worse, not better.
For example, one way of keeping mentally disordered offenders out of prison is to ensure that the court has psychiatric reports which will identify those offenders who ought to be in hospital instead. But as things stand at the moment, a remand in custody will often be needed to enable the psychiatric report to be prepared. The offender therefore ends up in prison anyway. That is not what we want.
That is where practical measures come in. There are a number of imaginative schemes in operation around the country where duty psychiatrists are on hand to attend the court, interview the defendant, and present an immediate psychiatric report—thus avoiding a remand in custody. But at present this falls well short of a comprehensive national scheme. We hope that it
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will be possible to develop such a scheme, but the number of psychiatrists qualified in such work is at present limited.
It is against that background that the Government's approach—reflected in the amendments standing in my name—is to give legislative encouragement to the practical steps which are in hand to improve matters for mentally-disordered offenders. The amendments standing in the names of my noble friends Lady Faithfull, Lord Mottistone, the noble Baroness, Lady Seear, and the noble Lord, Lord Richard, adopt a rather more prescriptive approach. I understand why they would like to push things along more firmly through legislation. However, I hope to persuade them that this is not necessarily the best course and that there are dangers in doing so.
Under the present legislation, an order for the detention of an offender in hospital can be made only when the doctor or the hospital has agreed to accept the patient and is able to admit him or her within 28 days. The introduction of a power to direct a hospital to take a mentally disordered offender, irrespective of whether a bed was available or the hospital was the most suitable, would result in several undesirable consequences. These include the fact that offenders might be placed in inappropriate hospitals. For example the levels of security might not be adequate. There could be a disregard for the clinical judgment of the doctors concerned. They would be forced to take patients whom they may consider not treatable or unsuitable for their unit. The therapeutic relationship between patient and doctor, which is vital for the effectiveness of treatment, could be undermined. Hospital resources could be pre-empted for those who have committed offences, possibly at the expense of the services which could be provided for other mentally disordered patients who have not committed offences.
I believe that the power would prove unworkable. A court would not know all about the facilities and services available for the care of mentally disordered offenders. It would have to rely upon the doctor providing the medical opinion and upon the responsible authorities. We do not think that the court should be able to ignore that opinion and make its own decision about which hospitals he should be sent to and what kind of treatment he should receive.
We should remember the wise words of the Butler Committee that,
"psychiatric hospitals would find it impossible to do their work if they were forced to accommodate all such cases as the courts thought right to send them, regardless of their ability to provide suitable treatment".
That being so, our priority is to get the practical arrangements right, rather than to rely on legislative prescription. Our policy remains that mentally disordered offenders should be treated and cared for by the health and social services system rather than in the penal system. We are actively encouraging the various agencies concerned (through, in particular, the Home Office Circular 66 of 1990) to collaborate effectively and to develop systems and services which enable more people to be diverted in this way. I fear

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that giving the courts powers which they could use in disregard of clinical judgments will serve only to undermine that necessary co-operation.
As your Lordships may know, my right honourable friends the Home Secretary and Secretary of State for Health have established a major review of health and social services for mentally disordered offenders which is assessing the range, pattern and operation of these provisions. This is due to be completed by the middle of next year. I do not think that we should prejudge or try to pre-empt the outcome of the review. It will pull together developments such as the Woolf Report, the scrutiny of the Prison Medical Service, and the reports by Judge Tumim on prison suicides and on Brixton. Bold decisions may well he needed, but these must also be carefully considered.
This work will also build on what has been achieved in recent years: we now have some 650 permanent or interim regional secure unit places in England that simply did not exist in 1979. Health authorities have plans to provide some 100 further places. In September of last year, there were 76 consultant forensic psychiatrists. Twenty years ago there were just two.
I am afraid I must also draw to your Lordships' attention some further problems with the amendments which have been proposed. I will refer to these briefly.
Subsection (1) of the new clause in Amendment No. 23 proposed by my noble friend Lady Faithfull, the noble Baroness, Lady Seear, and the noble Lord, Lord Richard, would forbid any custodial sentence or remand in custody if the offender is found to be mentally disordered. The amendment proposed by my noble friend Lord Mottistone would also make it extremely difficult, if not impossible, to pass a custodial sentence on such an offender. I am afraid that this is too rigid. We cannot exclude the possibility that in some cases a custodial sentence or remand in custody may be the only way to protect the public. The important thing is to ensure that the courts give proper weight to the offender's mental state before deciding what to do, as they would be required to do under the Government's amendment.
I hope that this explanation will serve to show why the Government would have difficulty in accepting some of the amendments which have been tabled from both sides of the Committee. It is clear that we are all united in looking for the best possible way forward. I believe that the government amendments offer that way forward. They make it clear that the courts should consider the information which is available about the offender's mental condition, and that they should not pass a custodial sentence if that would adversely affect an offender's mental condition and his treatment. Subsection (3) of the new Clause 23, which we discussed earlier, also makes it clear that the courts are not required to pass a custodial sentence on a mentally disordered offender, even if the offence which he has committed would normally attract such a sentence. I assure your Lordships that the Government will continue to pursue all the practical measures open to them to keep mentally disordered offenders out of the prison system. I beg to move.
10.15 p.m.
Lord Morris of Castle Morris: Many of us, for various reasons, on this side of the Committee find it difficult to approve of Amendment No. 17. We welcome the concern and the thrust of the amendment but we feel that the thrust lacks a certain necessary vigour and that the amendment does not penetrate deeply enough. Many of us on this side of the Committee would prefer Amendment No. 23.
However, the effect of what is before us in subsection (3A) (b) is in itself interesting. It seems to many of us to be impossible for a court, if it has no psychiatric assessment available to it, to regard itself as capable of considering the likely effect of a custodial sentence upon a defendant's mental condition and upon any treatment available for it. The court is not qualified to do so. Consideration of the impact of penal custody on mental disorder would appear to be a technical, medical and professional question, on which a court would need a professional psychiatric opinion. If this is indeed the intention of the Government's amendment, it would seem to require the commitment of considerable additional resources to encourage early psychiatric assessments in order to avoid the scandal of prolonged medical remands in custody.
The amendment may make it necessary for the Government to approve immediate spending on duty psychiatric rota schemes for all courts which need them. If such schemes are not introduced, courts will either make their own crude and inexpert judgments on the impact of custody or defendants will be unnecessarily and unfairly remanded to prison custody for an opinion to be sought.
However, I take heart from reading on the tapes at about 5 o'clock this afternoon that in another place the Private Member's Bill sponsored by the honourable Member for Ryedale, which gives new legal safeguards to defendants suffering from mental handicap, completed its Committee stage and has been promised the full support of the Government. I find that fact fortifying and refreshing.
Nevertheless, the new subsection (3A) still contains the words "before passing a custodial sentence", and so does not address the essential problem that courts send such offenders to prison because the National Health Service will not take them and not because the court has failed to consider the ill effects of imprisonment on someone who is mentally disordered. Therefore, the Government's amendment is no substitute for the wider clause on mentally disordered offenders contained in Amendment No. 23.
At the heart of that amendment, and fatally lacking in Amendment No. 17, is the determination which would prohibit courts from sentencing or remanding mentally disordered people to custody and which would require the National Health Service to accommodate any mentally disordered offender on whom a court makes a hospital order. There are strong indications that the number of mentally disturbed people in the prison population has increased in recent years. During the year 1989–90

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16,898 prisoners were referred to psychiatrists, 38 per cent. more than in 1987–88, during a period when the prison population as a whole decreased slightly.
Professor John Gunn of the Institute of Psychiatry recently carried out a survey for the Home Office of a 5 per cent. sample of sentenced offenders serving six months or more. The report of the survey will be published later this year, I gather, but some of the findings were summarised in a paper which Professor Gunn delivered to the Mental Health Foundation in September 1990. The sample comprised 1,365 adult males, 404 male youths and 273 females. Around one-fifth of the sample were found to have some degree of mental disturbance. Thirty seven—that is 1.8 per cent. of the total sample—were suffering from psychoses; 144, or 7 per cent., from neuroses; 221, or 10.8 per cent., from personality disorders; and 22, that is 1 per cent., from organic disorders. Sixty-three of these cases were assessed as needing treatment in special hospitals or the National Health Service.
If those proportions were true for the total prison population, which is currently some 45,000, this would mean that over 9,000 prisoners could be mentally disturbed, including over 1,300 in need of hospital care. May I ask those Members of the Committee who have experience of visiting prisons to agree with me that that would not be out of kilter with what we see as we go around?
Prison is the worst possible place for someone with a mental disorder. Even when psychiatric services are provided in prison, the benefits are offset by poor physical conditions and very restricted regimes. The gloomy, insanitary conditions inside large Victorian prisons, together with impoverished regimes which often mean that mentally disturbed prisoners are locked in their cells for much of the day, are likely to exacerbate the mental health problems of prisoners prone to depression and those who have a disorder with a depressive element. It is not surprising that Judge Tumim is anxious about the suicide rate because such conditions can increase the risk of suicide or self-mutilation among those prisoners. A research study by Dr. Enda Dooley published in the British Journal of Psychiatry in 1990 examined the record of prison suicides in England and Wales between 1972 and 1987. He found that mental disorder was among the reasons for suicide in 22 per cent. of cases; over one-third of prisoners committing suicide had a previous history of psychiatric contact; over one-quarter had previous in-patient admissions; and 23 per cent. had received some form of psychotropic medication in the month before suicide.
Those figures speak for themselves. They are the cause for Judge Tumim's anxiety. By prohibiting the use of prison for mentally disordered people, Amendment No. 23 would provide a powerful incentive to speed up developments and to the National Health Service to get its house in order on this matter. It need not become law immediately. The Government could announce that they will bring it into force in perhaps five years' time to allow for the necessary alternative arrangements to be made. However, ultimately it is no more justifiable for the
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NHS to refuse to treat a patient suffering from a mental disorder than to treat an accident victim or someone with a serious physical illness. Amendment No. 23 enshrines that basic principle in a binding statutory form.
Perhaps I may conclude with a case which has been brought to my attention, among a number of others, by the National Association for Mental Health. This shook me. In November 1988 David Byrne was arrested in the car park of a drugs company, naked except for his socks. He had been reported to be damaging cars with a hub cap which he had removed from one of them. Instead of arranging an assessment of his need for treatment in a psychiatric hospital, the police charged him, put him before a court and he was remanded in custody. Initially, he spent time in police cells where he became highly disturbed, shouting continually and unintelligibly and totally immune to any communication. Eventually, he reached Brixton Prison and on arrival the doctor examining him described him as hyperactive, covered in faeces, naked except for a sheet and making gestures appearing to defend himself. The doctor considered him to be mentally ill but instead of arranging for his early transfer from prison, staff kept him in the medical wing until he died five days later, possibly having suffocated under a blanket. The inquest verdict was open.
Although the prison medical officer described the cell in which he was held as inhuman, primitive and not allowing or good supervision, none of the medical staff considered that his condition warranted use of Section 48 of the Mental Health Act, which only happens in the most extreme circumstances such as when a prisoner is extremely violent or suicidal. It is against such situations that we are fighting.
Baroness Faithfull: I rise to speak to Amendment No. 23 which is grouped with Amendment No. 17. I listened with great care to the Minister when he spoke to Amendment No. 17. At this hour my IQ is at a rather low ebb and I do not believe that I fully understood what he said. However, what I did understand seemed to be reasonable but unrealistic.
The Butler Report was published some 15 years ago and, as my noble friend will realise, that report recommended that those suffering from a mental illness should not be accommodated in ordinary prisons. Yet in 1991 we are still in the same position as we were in 15 years ago. It is extremely important to remember that. Over all those years we have wanted to cure and deal with this difficulty, but have not yet found a way of doing so.
Perhaps we could examine the situation of the mentally disordered person being kept in prison. First, as was said by the noble Lord, Lord Morris, the prisoner suffers. Prison is not the place to put such people. The noble Lord, Lord Morris. has given the figures of the number of people who have committed suicide. The prisoner does not benefit; he suffers greatly.
Secondly. I have had a great deal to do with prison staff. I pay tribute to the way in which they deal with mentally disordered offenders in prison. But as many prison officers have said. they are not trained to look

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after mentally disordered patients. It is difficult to care for them, but to do so along with all the other prisoners, and co-ordinate men who are fit, well and able with those who are mentally disordered, is asking prison staff to do more than should be required of any person.
Thirdly, the other prisoners find the presence of mentally disordered people in their midst disturbing. That is understandable. Again, it is extraordinary how tolerant many prisoners are, but nevertheless they are sometimes disturbed, upset and unhappy. For the mentally disordered to be kept alongside ordinary prisoners causes trouble and makes for a bad atmosphere in the prison.
The noble Lord, Lord Morris, gave statistics, which I shall not repeat because they will appear in Hansard. We turn to the solution. I understand that one would wish mentally disordered prisoners to be dealt with under the National Health Service in hospitals in the community. But that is completely unrealistic. One must face the fact that it is unrealistic even over a period of five years.
Amendment No. 23 recommends that mentally disordered patients should be dealt with under the National Health Service, but two aspects may be set against that, and even waiting five years will not deal with them. One aspect is that doctors and nurses in mental hospitals do not want to look after prisoners in secure units within those hospitals. A few patients under the Mental Health Act must be looked after in secure accommodation for fear that they will leave the hospital. However, the number of people being looked after in secure accommodation under the Mental Health Act is unacceptable to staff. Therefore, if one is to look after prisoner—men who are alleged to have committed an offence and are on remand, or who have committed an offence —under the National Health Service, one must change the whole attitude of the psychiatric units in the National Health Service. Is that possible? It goes against their ethos and one is up against a very real difficulty.
Secondly, the beds are not available. Although my noble friend Lord Ferrers said that 600 were available—a minute amount compared to what is required—and an extra 100 will shortly be available, that will never meet the need, even in five years. Therefore, there are two points to be made. First, can this situation be dealt with under the health service? I recognise that the amendment does not say it, but within the penal system should there be secure units run apart from the prisons for the mentally ill prisoners who need security?
I have some difficulty because since the amendment was drafted various representations have been made to me that it will not be possible to deal with these patients under the national health system. Therefore, I have put forward the second suggestion which is not in the amendment. The situation has gone on for 15 years. We have had pious hopes of dealing with it, but we have not done so. I suggest that there needs to be set up a committee to look at how the problem can be dealt with either within the National Health Service or in other ways.
Lord Mottistone: I shall speak briefly to Amendment No. 24. It is a pity that it is so late and that we spent so long on some of the earlier amendments. However, perhaps I may say how much of an improvement it is to have Amendment No. 17 which is very much better than not having it at all. The fact that it does not go far enough I shall dwell on in a minute or two. It is useful to have a requirement for medical reports and pre-sentence reports by probation officers and social workers on an offender who is or who seems to be mentally disordered, and that those reports should be considered by the courts. Paragraph (a) of the amendment refers to,
"a pre-sentence report, a medical report or otherwise".
I think that "otherwise" might be particularly helpful because information relating to an offender's mental condition can also be given by the offender himself or more probably his relatives and friends and their advisers who will usually know the history of his mental illness and its treatment and will be able to provide these details without delay. I draw that to my noble friend's attention. If there is to be given any guidance about the implementation of Amendment No. 17 then those points might be noted.
It is also pleasing that the courts will be required to consider the likely effect of a custodial sentence on any treatment which may be available for the offender's mental condition. My noble friend Lady Faithfull and the noble Lord, Lord Morris, touched on this: what happens then? My Amendment No. 24 would take the matter further and would not only require the courts to consider these issues but would prevent them from passing a custodial sentence where that might have a serious adverse effect on the offender's mental health. It would also require the courts to try to secure treatment for the offender and enable them to obtain information from the appropriate regional health authority about arrangements for admission to hospital if that seems advisable.
I shall not press that matter much further, but I would like to take up a couple of points that my noble friend Lady Faithfull made. She said that the ordinary mental hospitals would not readily take to this provision. I am sure that my noble friend the Minister needs to take note of the point made by my noble friend Lady Faithfull; namely, that we should have some kind of special hospitals within the prison service system which are not special hospitals like Broadmoor, but of a lesser grade of importance and taking less serious mental patients. That would be part of the prison system rather than of the health service system. It is only in that way that we shall get the measure working.
I am very encouraged by some of the comments of my noble friend the Minister about actions and initiatives which have been taken by the Home Office and many other bodies, including the health department. A great many of these are summarised in paragraphs 10.115 to 10.140 of the Woolf Report. Paragraph 10.140 states:
"These initiatives have a further significance to this Inquiry. They demonstrate what can be achieved by co-operation between different agencies involved in the Criminal Justice System. The need for a close and effective

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relationship between these agencies is a matter to which this Report attaches great weight. It is necessary to find an appropriate mechanism for assisting that co-operation".
That needs to get going fast.
My noble friend the Minister drew our attention to the fact that a great deal has been done during the past 10 or 12 years in that direction. Some of the figures he quoted were quite impressive. But the fact is that it is not good enough. I have been approached by a senior probation officer at Camp Hill Prison on the Isle of Wight. The prisoners there are young men aged between 18 and 25. Some are older but the main group are of that age. They serve on average two-year sentences. The senior probation officer tells me that about 25 per cent. of them are inadequate and will never be able to look after themselves in ordinary life without outside help. She says that about half of them would probably be eligible, properly classified by a psychiatrist, to go into a mental hospital and that the other half are just inadequate. They would be a burden to the community in some way but would not qualify for admission to a mental hospital. For such people we need accommodation which is not quite a prison but is not a hospital either. There is a gap in provision.
The Home Office and the other agencies are working in that direction. However, in the nature of things, they are working terribly slowly. In the meantime, these poor, unfortunate people are being put in a prison environment which does them no good at all—everyone agrees with that—and many of them end up losing their lives. Some commit suicide and others have all the stuffing—what little stuffing they ever had—knocked out of them, so that they cannot pull themselves together when they leave prison. A large number of people are involved. In Camp Hill Prison 25 per cent. of inmates fall into the category I have mentioned. From what I know of the other larger prisons of Parkhurst and Albany, I have the impression that such a figure applies to them also. We must get weaving.
My noble friend said that we are waiting for next year. I hope that he was given that advice last year for this year. I am told by NACRO that the Home Office should have reached a conclusion by July 1991. If that is so, and if my noble friend can confirm it, that is helpful. However, if it is July 1992, I shall despair. We have to do something.
I could give many other examples. There is the case of a schizophrenic patient, a girl of 28 years, in Risley. She is very violent and has been in hospital many times. She should not have been in prison at all. I hope and pray that in applying Amendment No. 17 my noble friend will help the courts to implement it. As I think the noble Lord, Lord Morris, said, it is brilliant as far as it goes, but it leaves the courts hanging.
What do they do with the patient? I say he is a patient because he will have been declared one. A hospital bed cannot be found for him because half the hospital beds have been closed. There are not hospital beds waiting for such patients in the ordinary hospitals. Moreover, it is not suitable to send such people to prison. The courts are aware of that fact, so what are they to do? If the person had not committed
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a relatively serious offence, he would not have been brought before the court in the first place. This is a tragedy. We must get the matter sorted out—and we must do so before 1992.
10.45 p.m.
Lord Harris of Greenwich: I very much agree with the remarks just made by the noble Lord, Lord Mottistone. We must exhibit a degree of impatience on the matter. To my knowledge, this situation has existed for at least 15 years. There is a game of leisurely ping-pong going on between the Home Office and the Department of Health. I can testify to that fact, having attended the meetings designed to deal with the issue.
I do not want to make a scapegoat out of the old DHSS, but it is a fact that substantial sums of public money were voted by another place in order to set up secure units. Such units were supposed to take a significant number of people from the prison population. But what happened? It seems that the money was diverted and used for wholly different purposes. That is not accceptable.
I welcome the fact that the discussions referred to are now going to take place between Ministers in the Home Office and in the Department of Health. I hope that they will be succcessful. However I felt somewhat uneasy when the noble Lord suggested that there should be a new type of psychiatric establishment for these people run by the Home Office. I cannot see any conceivable grounds on which the Home Office should accept such a responsibility. It seems to be highly desirable that we should try to ensure that as many of these people as possible are placed in mental hospitals. However, the noble Baroness is quite right to point out that there is deep resistance in the mental hospitals: they do not want these people. But, similarly, the prisons do not want them.
Anyone who has visited a prison and who has seen the facilities available will know that in most cases you cannot have a successful treatment strategy in, for example, the prison hospital at Brixton. That hospital was vividly described by Judge Tumim in his report. I find myself in total agreement with the Home Secretary. At the time of the publication of the Tumim Report, he said that the place for mentally ill people is in mental hospitals. That is his view and it also happens to be mine.
Lord Windlesham: I do not want to delay Members of the Committee for too long as I believe that the Minister wishes shortly to conclude today's proceedings. However, I trust that I am correct in thinking that I heard him refer to the growth in the number of consultant forensic psychiatrists since the Butler Committee reported, and to the growth of the number of places in regional secure units as being 600. I should be most grateful if my noble friend would write to me in answer to the following detailed questions. First, has there been any increase in that number over the past five years? Secondly, if so, how does that increase relate to the target set by the Butler Committee? My own recollection is that Butler recommended over 1,000 places. However, I may be mistaken in that

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assumption. Those are detailed but important questions. I should be most grateful if my noble friend would write to me in response, rather than replying to me now.
Earl Ferrers: I am grateful to Members of the Committee for the views which have been expressed on the matter. We are all concerned to ensure that people who are mentally distressed should be looked after in mental institutions and not in prisons which may be unsuitable for them. The noble Lord, Lord Morris of Castle Morris, gave the Committee a distressing example of the way in which such situations can go wrong.
I believe that my noble friend Lady Faithfull said that what I had said was reasonable. However, she then went on to say that it was not realistic. The Butler Report recommended, as she said, that we should keep mental patients out of prison. That is what we want to do, but the report also said that psychiatric hospitals would find it impossible to do their work if they were forced to accommodate all cases the courts thought right to send them, regardless of their ability to provide suitable treatment.
That causes the dilemma upon which the noble Lord, Lord Harris, put his finger. Prisons do not want these people and sometimes the hospitals do not want them. One of the dangers is that if the courts force patients onto doctors and into hospitals which may not want them, that may upset the relationship between the patient and the doctor when there should be a rapport. That is not a reason merely for saying that patients should go only where the doctors wish them to go. It is important that there should be an accord between doctor and patient over matters involving mental treatment.
If the courts sentence those people to be detained in certain institutions against the will of those institutions, that sets everything off on the wrong foot. The trouble with Amendment No. 23 is that it makes it impossible for the court ever to impose a custodial sentence to protect the public. That brings into question what happens to those people who require some form of looking after if there is no accommodation available. If Amendment No. 23 were accepted those people could not be kept in prison. They would have to go into other accommodation for mental patients. What happens if there is no accommodation available? What happens if the hospitals concerned are not suitable for the person being sentenced? What happens if the hospitals do not want to receive that type of person?
My noble friend said that the NHS cannot cope. My noble friend Lady Faithfull also said that we should set up a committee. That is what we have done. My right honourable friends the Home Secretary and the Secretary of State for Health have set up a major review of all the health and social service problems involving mentally disordered offenders. They will assess many aspects of the problem. My noble friend Lord Mottistone did not mishear me: regrettably the review will not be completed until the middle of next year, not this year, but that does not prevent action being taken earlier because interim reports will be provided. Action can be taken on the interim reports.
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My noble friend Lord Mottistone said that my noble friend Lady Faithfull had said that there should be special hospitals within the prison system to take lesser grade people rather than that they should be dealt with within the health service. Our view in general is that where a person is mentally ill such a person should be looked after by the mental health services, but not necessarily within the prison system.
There is a big gap between what is available and what in a perfect world should be available. The number of places required for such people is greater than the number available at the moment. That is something we must all strive to improve.
My noble friend Lord Windlesham asked me about figures. I shall see whether I can give him the figures that he requires. I said that we have 650 regional permanent or interim secure places in England which did not exist in 1979. The health authorities have plans to provide a further 100 places. In September last year there were 76 consultant forensic psychiatrists compared with just two 20 years ago. I do not have the figures for the increase over the past five years, nor the others for which he asked, but I shall see that he gets them.
Lord Windlesham: I am sure that the noble Earl will take the point about whether there has been any progress at all in recent years. I feel that 1979 was a long time ago.
Earl Ferrers: I quite accept that. I shall find out the facts and let my noble friend know. The point of the amendments which I have put down is that we are making a distinct effort to ensure that those people who ought to be treated within the health service and under the mental health system are so treated. However, the courts may have the right, if necessary, to ensure that some people who may nevertheless have to be within the penal system are provided for. That is the case at the moment. We all wish to see more provision of places for those suffering from the distress and anxiety of mental health. I hope that the amendments I have put down will be accepted by the Committee. I shall certainly take into account the many important matters that Members of the Committee have raised over the problem of mental health.
Lord Mottistone: Before my noble friend sits down, he said that in a perfect world we require more hospital beds within the mental health system. Will he join with many of us outside in persuading his right honourable colleague the Secretary of State for Health to stop the regional health authorities closing beds in mental hospitals? The fact is that if the beds had not been closed at the rate they have been during the past 10 years, we should have a few beds to spare for the offenders who ought to be put in those hospitals. The beds are not there because regions have been shutting them down. They have done that because previous health departments said that that should happen. This is not a political matter, the situation has been going on for years, right back to Enoch Powell, and it has been doing a lot of harm.
Earl Ferrers: I shall certainly look into the point which my noble friend made. I know that there was a certain anxiety that those who suffer from mental disease should not be kept incarcerated in certain buildings. They ought to be allowed to live within the public system and not be kept separate from the public. I shall look into the point.
Lord Richard: Before the Minister sits down, perhaps I may ask two questions. First, would he be kind enough to let me see the letter that he is to send to the noble Lord, Lord Windlesham? It will be of interest to others, particularly the noble Lords, Lord Harris and Lord Mottistone.
Secondly, those of us who have practised in the courts over the years have observed—and it is obviously a rather unsatisfactory and non-scientific observation—that there seem to be far more people now coming before the courts who are mentally disordered in the general sense of the word, or inadequate, or whatever phrase one wishes to use, than there were 20 or even 30 years ago. Are there any figures on this? Does the Home Office have any statistics as to whether there has genuinely been an increase in the number of mentally disordered people coming into the system and going to prison? If so, I should very much like to see those figures.
Earl Ferrers: Perhaps I may look into the position and see what figures are available. I shall write to the noble Lord, Lord Windlesham, with the statistics which he and the noble Lord, Lord Richard, requested. I shall copy that letter to all those who have taken part in the debate and place a copy in the Library, and then perhaps everyone will be satisfied. Perhaps the noble Lord, Lord Richard, will not think it impertinent if I include in the letter to my noble friend Lord Windlesham what statistics I can obtain on the questions that he asked. That may simplify matters.
Baroness Faithfull: My name is the first attached to Amendment No. 23. As these amendments are grouped together, should I speak to my amendment now or when we come to it? I have been speaking to it.
Earl Ferrers: The amendments are all grouped together. I thought that my noble friend had spoken to Amendment No. 23. If that is not the case, it would be appropriate for her to do so now.
Baroness Faithfull: My noble friend the Minister has remarked on the difficult situation that exists in the health service. He also said that he feels these patients should be dealt with under the health service. But that still does not get us anywhere. This is a difficult and complicated matter. The noble Lord, Lord Windlesham, asked for further information on various points. Therefore I intend to withdraw Amendment No. 23, but I shall return with the provision at a later stage of the Bill.
Earl Ferrers: I appreciate that my noble friend wants these patients dealt with within the health service system. However, I suggested there would be an objection to her amendment because it would force the mental health system to deal with all those people. If places are not available to treat them, the provision would jam up the system. The amendment is not workable. I believe my provision would be preferable as it gives the court another option.
On Question, amendment agreed to.
Lord Reay: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at one minute past eleven o'clock.