Lords Sitting of 14 May 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 Salisbury.

Windscreen Cleaning Nuisance
Baroness Oppenheim-Barnes Baroness Oppenheim-Barnes asked Her Majesty's Government:
Whether they will introduce legislation to ban itinerant and uninvited windscreen cleaners.
The Minister of State, Home Office (Earl Ferrers): My Lords, it is not illegal to offer services in the street so long as it is not for gain or reward. However, to obstruct the highway or to use threatening or insulting behaviour is a criminal offence. There are no plans to make windscreen cleaning itself an offence.
Baroness Oppenheim-Barnes: My Lords, does my noble fiend accept that, whereas I am not opposed to enterprise or initiative, it is the unexpected and uninvited nature of the service which causes alarm and anger? A torso suddenly appears in front of the windscreen, followed by waves of grey water which totally obliterate the driver's view. It is a nuisance and a potential hazard. Does my noble friend agree that if they would only ask whether the service was required it would not be so objectionable?
Earl Ferrers: My Lords, I have a great deal of sympathy with what my noble friend says. However, it is difficult to pass legislation telling people that they have to ask whether they can do something. Nevertheless, if they use threatening behaviour, demand money with menaces or cause criminal damage, those are offences.
Lord Stoddart of Swindon: My Lords, is the Minister aware that since I wrote to him about this matter on 14th November last year the situation has got worse? Is he aware that many people now feel intimidated by the gangs of people—sometimes eight or nine of them—who come up to a car and when waved away shout abuse and use threatening gestures? Is he also aware that when this subject was mentioned on LBC Newstalk the programme was inundated with calls from listeners complaining about how they had been treated by such people and about the danger to motorists and others? Finally, can the noble Earl confirm that the police already have powers under the Metropolitan Police Act 1939 to deal with this awful nuisance?
Earl Ferrers: My Lords, on the last point the noble Lord is entirely correct. It is not so much a question of the law as of collecting evidence. I agree that intimidation is very disagreeable, but one does not have to be a windscreen wiper to intimidate people. The other day I was intimidated in the street by a beggar who pushed me when I did not give him a pound. That is just as intimidating.
Lord Nugent of Guildford: My Lords, would my noble friend, with his expert knowledge of these matters, advise setting about the offender with a walking stick?
Earl Ferrers: My Lords, they are very useful on appropriate occasions.
The Viscount of Falkland: My Lords, if at traffic lights a person came up and offered to tell one a joke or to play a musical instrument would that be considered to be a service which one could accept or reject? Would that fall into the same category of service to be offered?
Earl Ferrers: My Lords, that would be for the courts to decide. My interpretation is that if that were to happen and the person did not ask for a reward for doing so it would not be an offence.
Lord Hailsham of Saint Marylebone: My Lords, with due respect to my noble friends and others who have supported the suggestion, does my noble friend agree that there are already too many criminal offences on the statute book and that it should be a general rule of thumb that if one wants to introduce a new one one should suggest two more for repeal?
Earl Ferrers: My Lords, I am sure that my noble and learned friend did so when he was Lord Chancellor. On the substance of the point, it is not the law which is at fault; the problem is finding the evidence on which to prosecute people.
Baroness Nicol: My Lords, will the noble Earl accept that I feel threatened? There is a group which operates permanently on the Embankment and late in the evening they are quite aggressive. They do not say anything that one can pin down but one feels threatened. How far do they have to go before one can report them for threatening behaviour?
Earl Ferrers: My Lords, that is a matter for the police. I accept that some people are threatening. I remember that in the days of National Service there used to be a charge of dumb insolence, which meant that one could be extremely offensive without having said anything. Equally one can be very threatening without saying anything. How threatening one has to be before one is charged would be a matter for the police.
Lord Hutchinson of Lullington: My Lords, would the noble Earl be prepared to ban all Questions which contain the phrase "introduce legislation to ban"?
Earl Ferrers: My Lords, I think that that would be going a little too far.
Lord Orr-Ewing: My Lords, does my noble friend recall that when a lot of money was spent by the garages on improving forecourts we were told that we should receive tremendous service, windscreens would be wiped and so on? Nothing has happened to implement that intention. I wonder whether there is a garage which still does that. Does my noble friend agree that, if so, it ought to be a protected species and not be vilified as these people are?
Earl Ferrers: My Lords, if there were such a garage I am sure that even the Government would not claim responsibility. This problem falls under the heading of what one might call initiative.
Lord Richard: My Lords, is the Minister aware that I do not want my windscreen washed and nor do I want services offered free in the street? Is he also aware that, just like many events in life, it is humorous and enjoyable when in moderation but becomes irritating and annoying when taken to excess? Is he further aware that the Question asks whether he will ban such action? Does he not think that to ban it would be a bit sledgehammerish in the circumstances? Can he perhaps persuade the Metropolitan Police to exercise a certain gentle dissuasion in the affair?
Earl Ferrers: My Lords, I am so glad that the noble Lord and I see eye to eye on this. It would be a pity to ban such action for the very reasons that I have given. The answer is that you have to obtain evidence and, if you obtain evidence, the law is in order.
Lord Montagu of Beaulieu: My Lords, does my noble friend agree that, given that most motorists drive with dirty windscreens, these enterprising young men are perhaps contributing to road safety?
Earl Ferrers: My Lords, that is the other side of the coin.
Lord Tordoff: My Lords, does the noble Earl accept that by banning such action the Government might in future put noble Lords in a difficult situation because when this place is finally closed down we may all be looking for jobs cleaning windscreens?
Earl Ferrers: My Lords, I am sure that if that were so the noble Lord would not need to fear because he would get a larger pourboire than most of the people who dance up and down trying to offer their services.
Lord Mowbray and Stourton: My Lords, referring to what my noble friend Lord Montagu said, is my noble friend the Minister aware that if a motorist had a dirty windscreen he would cause a major obstruction because it would take a long time to clean and the lights would be changing once or twice?
Earl Ferrers: My Lords, he would then be causing an obstruction in the street, which is an arrestable offence.

Yugoslavia: Protection of Minorities
2.45 p.m.
Lord Hylton Lord Hylton asked Her Majesty's Government:
How the protection of minorities in Yugoslavia can best be ensured.
Lord Reay: My Lords, we believe that Yugoslavia's minorities can best be protected under a constitutional system guaranteeing liberal democracy and full respect for human rights in accordance with Yugoslavia's obligations under CSCE.
Lord Hylton: My Lords, I thank the noble Lord for his reply and particularly for mentioning CSCE. Does
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he agree that there is now an urgent need for negotiations to prevent further loss of life? Will the Government endeavour to persuade both the Government of Yugoslavia and the constituent republics to apply the 10 principles of Valetta for the peaceful settlement of their disputes?
Lord Reay: My Lords, I agree with the noble Lord that CSCE provides an opportunity. Yugoslavia is a member of CSCE. The Valetta 10-point plan outlined a dispute settlement mechanism for member countries of CSCE. However, the settlement mechanism addresses only disputes between states and is therefore not applicable to Yugoslavia. Nevertheless, the committee of senior officials of CSCE, which is next due to meet on 23rd and 24th May, has the remit to review the current issues whenever it meets.
Lord Cledwyn of Penrhos: My Lords, although there is an obvious limit to what Her Majesty's Government or any one government can do, does the Minister agree that the objective must be to seek to create stability in that part of Europe? Is the matter being raised by Her Majesty's Government in the meeting of Community Foreign Ministers which I believe is being held today? Furthermore, as I understand it, the meeting of CSCE will be held in Geneva on 19th July. Will the Minister say whether the matter can also be raised on that occasion?
Lord Reay: My Lords, the meeting of the European Foreign Affairs Council took place yesterday and there was a full discussion on Yugoslavia. Mr. Delors, the President of the Commission, and Mr. Santer, the Prime Minister of Luxembourg, are due to visit Yugoslavia in the near future. We call on the Yugoslav Federal Government and republics to settle their differences peacefully. We deplore the use or threat of force by the federal army against the democratically elected governments of Slovenia and Croatia. The borders between the Yugoslav republics should be changed only by agreement between the republics concerned.

NHS Purchasing Arrangements
2.48 p.m.
Lord Hunter of Newington Lord Hunter of Newington asked Her Majesty's Government:
Whether they consider that the National Health Service supplies organisation should take more concerted action to achieve substantial recurrent savings.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Hooper): My Lords, major initiatives are already in progress on a national basis within the National Health Service supplies function to strengthen purchasing arrangements, to extend the use of electronic trading, to reduce stockholding and the number of warehouses, and to improve management information systems so as to better monitor progress in performance. All those measures can be expected to achieve substantial recurrent savings.
Lord Hunter of Newington: My Lords, I thank the Minister for that hopeful reply. Does she agree that in the past health authorities have been largely tied to their local supply services? Does she also agree that the department has exercised only limited oversight through the supplies organisation from the centre and that it has issued little guidance on the implications for the supplies organisation of the changes proposed in the White Paper, now reflected in the National Health Service and Community Care Act?
Baroness Hooper: My Lords, the department's policy in supplies purchasing is to improve value for money based on competitive procurement and to assist the competitiveness of suppliers. We consider that some things are best done at local level, otherwise it may be necessary to introduce district, regional or national levels. Nevertheless, we are taking steps to improve further the purchasing record, which we believe in any event is a good one. A new national purchasing unit is being set up to make better use of purchasing muscle in those cases in which a national approach is the most cost effective. Already the embryonic unit has achieved savings of over £80 million in the past two years; for example, in energy, syringes, needles, vaccines and paper products.
Lord Dean of Beswick: My Lords, can the Minister tell the House whether the hospitals which have opted out of the National Health Service or established themselves as trusts are expected to use the National Health Service supplies organisation or to go it alone? Does she agree that if they are expected to go it alone, it could create a multiplicity of demand which may well force prices up rather than down?
Baroness Hooper: My Lords, I believe that my original Answer replied to some extent to the point raised by the noble Lord. He must take into account the fact that about 200,000 different items have been identified as purchased through the national health system from at least 20,000 different suppliers. It is, therefore, very big business. The National Health Service trusts will be expected to show that they can obtain the best value for money. We believe that they will do so by using the existing and improved mechanisms of the National Health Service supplies unit.
Lord Ennals: My Lords, has the Minister studied the report of the National Audit Office which suggests that the new changes in the NHS could waste "massive amounts of money" if buying policies become more fragmented? It describes NHS disarray in terms of health authorities which operate without any real knowledge of their own or any other authorities' spending priorities.
Yesterday the Minister refused to comment on the report of the Universities Funding Council. Will she now be more forthcoming on the report of the National Audit Office?
Baroness Hooper: My Lords, I always try to be forthcoming when it is appropriate. I am certainly aware of the recent National Audit Office report on NHS supplies. The report acknowledged the
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significant improvements that have taken place in recent years within the NHS supplies function. It recommends that the National Health Service should press ahead with existing initiatives in relation to purchasing, storage, new technology and performance measurement. The action programme set in hand some months ago by the National Health Service Management Executive is specifically geared to achieve a continuing process of improvement which again is specifically geared to meet the supply needs of the newly reformed National Health Service.
Lord McColl of Dulwich: My Lords, does my noble friend agree that in the same way that monopolies can distort the market place so can monopsonists—the monopoly purchasers? They beat down prices so much that they may put many firms out of business. Does she further agree that the report referred to has gone over the top just a little?
Baroness Hooper: My Lords, it may be that in the view of my noble friend the National Audit Office report went over the top, although in terms of the main acknowledgements of what is being done and its recommendations we believe that it very much supports our efforts to streamline the supply arrangements for the National Health Service.
Lord Skelmersdale: My Lords, given that hospital trusts are very much and very firmly part of the National Health Service, will my noble friend confirm that there is no bar to them using the central purchasing services of the regional health authorities? Indeed, on the advice of the central department concerned with this matter, that can be done within the Minister's own department, can it not?
Baroness Hooper: My Lords, I am grateful to my noble friend for underlining that point. There is certainly no bar and National Health Service trusts will be encouraged, as will any other unit within the National Health Service, to purchase through the supplies purchasing arrangements. We believe that that gives the best value for money.
Lord Ennals: My Lords, does the Minister agree that the National Audit Office is a very responsible organisation which is most unlikely to go over the top? In a most recent Act did we not give more powers to the National Audit Office in order to supervise work in the National Health Service? Does she not think that it is a little early to start accusing the National Audit Office of going over the top?
Baroness Hooper: My Lords, that is precisely why I was delighted to acknowledge that the National Audit Office substantially supported what we are doing and what we intend to do.
Lord Morris: My Lords, in answer to a previous question my noble friend suggested that the size of the task, with 200,000 different products and 20,000 different sources, posed a considerable problem. It is the sort of problem that is handled every day by companies such as Booker McConnell Ltd., a wholesale purchaser and distributor. Will my noble

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friend consider very carefully privatising that particular operation because it is a classic commercial operation?
Baroness Hooper: My Lords, we believe that the streamlining that is being brought into effect will make the best use of supplies produced by the private sector. The regional arrangements are being carried out through the National Health Service with the support of the private sector in producing the goods that are being bought.

The Atomic Weapons Establishment: Policy
2.56 p.m.
Lord Williams of Elvel Lord Williams of Elvel asked Her Majesty's Government:
Whether it is their policy that nuclear weapons for the United Kingdom armed forces should be produced by the private sector.
Lord Reay: My Lords, the Government's policy is that nuclear warhead production in the United Kingdom should take place at the Atomic Weapons Establishment and that the land, facilities and other assets of that establishment should be owned by the Secretary of State for Defence. We believe, however, that the establishment would benefit from being operated under contract by a private sector company.
Lord Williams of Elvel: My Lords, I am grateful to the Minister for that reply. Am I to understand that the contracting out of the production, research and development of nuclear warheads, particularly for Trident submarines, will be to the private sector? Am I further to understand that the Government still consider that the defence of the realm is of total importance and that they will be able to superimpose any contract let out under the circumstances? Am I still further to understand that under the European Community rules any European contractor will be able to bid for a contract to run Aldermaston and Burghfield.
Lord Reay: My Lords, I agree with the noble Lord that the defence of the realm is of vital importance. The contractorisation will mean that we retain all the assets of AWE in the ownership of the Secretary of State for Defence, as I said, but that a private sector company or consortium will be introduced to operate the establishment under contract. In our view no other solution can offer the combination of access to private sector production management expertise and the fullest flexibility to deal with the difficulties which AWE has had in recruiting and retaining staff.
Lord Harmar-Nicholls: My Lords, does my noble friend agree that the innuendo behind the Question is rather unreal? Is it not a fact that in any monopolies, including government monopolies, it is common form to contract out various parts in order to get supplies as well as obtaining the efficiency on line?
Lord Reay: My Lords, it is a solution which we believe is the best one in this case.
Lord Mayhew: My Lords, does the Minister agree, given that we have to continue to produce weapons of mass destruction, that Ministers should remain fully responsible and fully answerable to Parliament for that activity?
Lord Reay: My Lords, indeed, that situation will continue.
Lord Jenkins of Putney: My Lords, since the Government are committed to the non-proliferation of nuclear weapons, does the Minister feel that we should take advantage of this opportunity to cease manufacture of nuclear weapons in this country, whether by private or public means?
Lord Reay: My Lords, that is a very different question.
Lord Cledwyn of Penrhos: My Lords, does the noble Lord agree that nuclear warheads fall into a quite different category to any other armaments? Secondly, is he aware that there is considerable public disquiet that under the government arrangements those nuclear warheads can now be manufactured privately? Is he not aware that that is an extremely important step to take? Will he give the House an undertaking that private companies who manufacture the warheads and who have them under their control will not be able to sell them abroad?
Lord Reay: My Lords, I agree with the noble Lord the Leader of the Opposition about this being a special case. That is one of the reasons why we are not privatising: we believe that the solution of contractorisation is most appropriate in this instance.
Lord Mackie of Benshie: My Lords, will the Minister answer the latter part of the question of the noble Lord the Leader of the Opposition? Will the firms concerned be able to sell the expertise thus acquired, perhaps abroad?
Lord Reay: My Lords, I am not sure that I can answer that question. It may be a matter that will be dealt with in the contract that will be reached.
Lord Tordoff: My Lords, in light of the fact that General Pinochet is coming to this country apparently to buy arms, is that not a question that the Government ought to be able to answer?
Lord Reay: My Lords, that matter does not arise. General Pinochet is the commander-in-chief of, I believe, a democratic country.
Noble Lords: Oh!
Lord Reay: However, that point goes wide of the Question on the Order Paper, and does not apply at the present time.
Lord Stoddart of Swindon: My Lords, under the government proposals will it not be possible from 1992 for any European country to bid for and possibly achieve the contract to manage the AWE at any of the four, or perhaps all, of the establishments? Is it

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satisfactory that the Germans may be running our nuclear arms industry? How does security come into the situation?
Lord Reay: My Lords, the most important consideration is that the contractor should meet our stringent security requirements. The most sensible and effective course is to safeguard security through the careful application of security criteria to those companies which tender for the contract. If undesirable foreign interests were to obtain influence over a contracting company, the contract would be terminated and AWE would be run by the MoD until a new contractor could be found.
Lord Kennet: My Lords, what studies have the Government made of the public health and safety record of nuclear weapons manufacture in the United States, which is largely private compared with that in France, where it is almost entirely public? What have been the results of those studies?
Lord Reay: My Lords, the Ministry of Defence will continue to be responsible for security standards and for carrying out and funding the vetting of AWE staff who will have to meet the same stringent security requirements that apply now. I am informed that they will not be able to sell information abroad.
Noble Lords: Answer the question!
Lord Kennet: My Lords, the noble Lord may not have heard my question. I inquired not about the security record but the public health record.
Lord Reay: My Lords, the noble Lord made a reference to the United States. The United States nuclear weapons plants have been operated as a government-owned, contracted-out system since they were se: up in the 1940s and continue to be operated under that system.
Lord Molloy: My Lords, will the Minister take into consideration a matter that has been considered by the United Nations Security Council: that the most frightening thing that could happen would be terrorist organisations gathering information which enabled them to get hold of nuclear weapons for their terrorist activities?
Lord Reay: My Lords, I am sure that the noble Lord is entirely right. I have absolute confidence that the MoD will be able to prevent any such happening.
Lord Williams of Elvel: My Lords, will the noble Lord take it from me that we shall oppose this measure root and branch? We believe that the product ion of nuclear warheads is a most sensitive question. The Government have not taken into account matters such as security, vetting and other factors. There are plenty of ways of increasing efficiency at Aldermaston and Burghfield without resorting to this rather ridiculous contraction. Does the noble Lord also accept that we shall oppose anything in the contract which allows foreigners to manufacture our nuclear warheads?
Lord Reay: My Lords, I am sure that my noble friend Lord Arran looks forward to the debate on a
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Bill later in the week. I am sure that he will be able to satisfy any of the concerns of reasonable people in this matter.

Business
3.5 p.m.
Lord Denham: My Lords, it may be for the convenience of the House to know that the Report stage of the Criminal Justice Bill will be adjourned at about 7.30 p.m. for about an hour and that during this adjournment the Second Reading of the River Calder (Welbeck Site) Bill and the Education Reform Act 1988 (Application of Section 122 to Institutions in Wales) Order 1991 will be taken.

Business of the House: Debates, 22nd May
The Lord Privy Seal (Lord Waddington): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the debate on the Motion in the name of the Lord Holme of Cheltenham set down for 22nd May shall be limited to 2 hours and that in the name of the Baroness Seear set down for the same day to 3 hours and that Standing Order 35 and paragraphs 10 to 13 of the Rules for the Conduct of Short Debates shall apply to both debates.—(Lord Waddington.)
On Question, Motion agreed to.

Gaming (Bingo) Bill [H.L.]
Read a third time, and passed, and sent to the Commons.

Criminal Justice Bill
3.7 p.m.
Report received.
Clause 1 [Restrictions on imposing custodial sentences]:
Earl Ferrers Earl Ferrers moved Amendment No. 1:
Page 1, leave out lines 9 to 13 and insert ("punishable with a custodial sentence other than one fixed by law.").
The noble Earl said: My Lords, I believe that it would be helpful to speak to Amendments Nos. 2, 3, 6, 7, 8, 11, 14, 15, 16, 17, 18 and 26.
When the Bill was debated in Committee, your Lordships felt that we did not have it quite right and there were some areas where it could be further improved. I hope that I shall be able to show that we listened to what was said and have tried to meet your Lordships on a number of points of concern even if we were unable to do so in every case.
When we discussed Clauses 1 to 3 in Committee your Lordships made a strong case for bringing indictable-only offences within the sentencing framework. You argued that the clear and simple principles governing the aptness and length of custodial sentences should apply in all cases. This would avoid

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the possibility of anomalies arising from parallel but different sentencing regimes for indictable-only offences as opposed to other offences.
Having reflected upon what noble Lords said, we accept those arguments. Amendment No. 1 to Clause 1(1) extends the restrictions on custody to all offences except those where the sentence is fixed by law. That includes indictable-only offences, whether or not the offender has previously received a prison sentence. Since previous prison sentences are no longer to be relevant, Amendment No. 6 deletes Clause 1(6) (which allows certain previous prison sentences to be disregarded for the purposes of Clause 1).
Amendment No. 1 has the same effect as Amendment No. 2 tabled by the noble Lords, Lord Richard and Lord Hutchinson of Lullington. However, I fear that it will not please the noble and learned Lord, Lord Ackner, whom I see in his place. I had thought that he was not there. He was merely bowing below the level of the seat and not at me. The amendment tabled by the noble and learned Lord would take out of Clause 1 not only those offenders aged 21 or over convicted of an indictable-only offence who had previously received a prison sentence, but also such offenders as had previously received a custodial sentence in a young offenders' institution. The sentencing principles in Clause 1 are important and valuable. We are persuaded that they should extend to all offenders, including those convicted of the most serious offences, who have received a prison sentence in the past. This is consistent with the Bill's philosophy that an offender should not be placed at a disadvantage because of his previous record.
Similarly, Amendment No. 7 extends Clause 2 to all indictable-only offences except where the sentence is fixed by law. At present, it applies only to summary or either-way offences. Again, the amendment has the same effect as Amendment No. 8, tabled by the noble Lords, Lord Richard and Lord Hutchinson of Lullington. It is important that Clauses 1 and 2 should apply to the same cases. It would be anomalous if an offender could be sent to prison for rape under the criteria in Clause 1 but could not have the length of his sentence determined under Clause 2.
Amendment No. 11 enables a court to impose a longer custodial sentence under Clause 2(2)(b) on young offenders convicted of violent or sexual offences. Given that Clause 2 will now apply to indictable-only offences, it would be strange if, to protect the public, the court could impose a longer sentence on a 21 year-old rapist but not on one who was 20 years old. Amendment No. 14 is consequential. It requires a court to give reasons for imposing a longer custodial sentence on a young offender as well as an adult offender under Clause 2(3).
Amendment No. 15 provides that a life sentence is always to be regarded as longer than any determinate sentence for the purpose of deciding what length of custody is justified under Clause 2. This is necessary because the extension of Clauses 1 and 2 to indictable-only offences brings discretionary life sentences within their scope. If, for example, a judge was sentencing two offenders for rape, and if he
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thought that the one was more unstable than the other and therefore posed a greater risk to the public, he could demonstrate this by imposing sentences of, say, 12 years for the first offender and life for the second.
Amendments Nos. 16 and 17 to Clause 3 provide that a court must obtain a pre-sentence report in every case covered by Clauses 1 and 2, with one exception. A court will not have to obtain a report if the offender is convicted of an indictable-only offence and if the court believes that it is unnecessary to obtain one in the circumstances.
The noble Lord, Lord Richard, and others may think that this does not go far enough and that there should be no exceptions. But, as I said in Committee, it is important not to put the courts and the probation service to unnecessary effort in preparing and considering reports in cases where they are not needed. Indictable-only offences are very serious and we should accept that in a number of cases it would simply be pointless for the court to obtain a report. The solution which we have adopted takes up the ingenious suggestion made by my noble friend Lord Elton in Committee; that the criteria in Clauses 1 and 2 should apply in indictable-only cases but not the requirement to obtain a pre-sentence report. In fact we have been able to go a little further than that by requiring reports to be obtained but providing an exception. This exception reflects the existing law in the Powers of Criminal Courts Act 1973 and Criminal Justice Act 1982. Section 20A of the 1973 Act and Section 2 of the 1982 Act require a court to obtain a social inquiry report before sending to prison a young offender or someone who has not received a previous prison sentence unless the court thinks that a report would be unnecessary in the circumstances. That is the wording that we have used in the amendment.
The effect of these and the earlier amendments is that the principles of sentencing in Clauses 1 and 2 will extend to indictable-only offences but the court will not have to obtain a report under Clause 3 if it would clearly be unnecessary to do so. I am indebted to your Lordships and in particular to my noble friend Lord Elton for his valuable suggestion, which enabled us to arrive at this proposal. I hope that it will meet with the approval of the House. Amendments Nos. 18 and 26 make some minor and consequential drafting changes. I beg to move.
The Chairman of Committees (Lord Aberdare): My Lords, if this amendment is agreed to, I cannot call Amendments Nos. 2 and 3.
3.15 p.m.
Lord Richard: My Lords, I thank the Government for having accepted the logic of the case which Members from all sides of the House expressed in Committee. The omission of indictable-only offences from the sentencing structure which the Bill sets up was difficult to justify in common sense or in logic. We are all grateful for the fact that the Government have now accepted that fact.
The Minister said that noble Lords would be disappointed about one aspect; namely, that it is still possible for a judge to sentence an offender without

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obtaining a pre-sentence report. I believe that the circumstances under which a judge will come to the conclusion that such a report is unnecessary are already covered under the Court of Appeal guidelines. They will relate to particular offences of a particular gravity which will demand custodial sentences. In those circumstances I can see the common sense of arguing that a judge should not be under a duty to demand a pre-sentence report. I own to a tinge of disappointment about that aspect of the proposals. However, it is only a tinge and we on this side of the House grateful to the Minister for having moved the amendments.
Lord Hutchinson of Lullington: My Lords, I too congratulate the Minister and the Government on moving the amendment. It is in exactly the same terms as the amendment which I moved in Committee. On that occasion I said that I believed it to be the most important amendment in the Marshalled List. I remain of the same view. On Second Reading nine-tenths of my speech related to this very issue. I owe the Government congratulations and gratitude for moving the amendment.
For the first time Parliament is to enact a principle which will govern sentencing in every criminal court in this country. In other words, sentencing is too important a matter to leave to the sentencers. That is a great breakthrough. Self-congratulation on the part of the Government is justified by having made such a breakthrough in the whole sentencing process.
I turn to Amendment No. 17. Will the Government consider adding the words "if the accused agrees"? I have always understood that on occasion it is unnecessary to require pre-sentence reports. However, the situation would be made more satisfactory by the addition of those words because there would be no dispute or argument. I am sure that in nine cases out of 10 in which the judge has said that he does not require a report before sentencing he would accede to a request from the defence if it wished for a report. Therefore, the situation would be more satisfactory if those words were included at a later stage.
Baroness Phillips: My Lords, before the noble Lord sits down, will he explain what he meant by saying that sentencing is too important to be left to the sentencers?
Lord Hutchinson of Lullington: My Lords, I am always satisfied when I get the noble Baroness to her feet. I am always ready to instruct her on these matters. By those words I mean that for years the view has been taken that it is not for Parliament to interfere with the complete discretion of the judiciary and magistracy on important matters of sentencing. Unfortunately, in this country we sentence people to longer sentences and fill our prisons with more people than any other country in Western Europe. That has been the result of sentencing by the courts. Fortunately, now Parliament has at last taken a hand.
Lord Renton: My Lords, I too welcome the first amendment and the others which my noble friend moved. It shows that the Government have an open
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mind when listening to your Lordships. One lives in hope that there will be further understanding as the Bill progresses.
For the sake of the record and in order to remove uncertainty in the minds of any of us who may feel uncertain about it, I wonder whether my noble friend will explain the need to add the words:
"other than one fixed by law".
Earl Ferrers: My Lords, I am grateful to your Lordships for expressing such appreciation for these amendments. The noble Lord, Lord Hutchinson, said that self-congratulation on the part of the Government was understandable. However, we should not wish to indulge in it. I am grateful to your Lordships for helping us find our way round some fairly difficult points. I am glad that that has met with approval. My noble friend Lord Renton said that that may be a good omen for the rest of the Bill. I am sure that it is and let us make sure that we continue in that way.
The noble Lord, Lord Hutchinson, asked whether we could add the words "if the accused agrees" before the judge decides to obtain a pre-sentence report. We shall certainly look at those words. My guess is that the conclusion will be that the matter should be left at the discretion of the judge.
My noble friend Lord Renton referred to the words:
"other than one fixed by law".
That refers to murder, which is the only offence for which the penalty is fixed by law. It may need to be looked at again in the light of our further debates on mandatory life sentences. But that is the reason for the phraseology. I am grateful for your Lordships' approval.
Lord Hailsham of Saint Marylebone: My Lords, before my noble friend sits down, will he agree that the sentence for treason is also fixed by law?
Earl Ferrers: My Lords, I am sure that my noble and learned friend is right and I should not like to disagree with him.
On Question, amendment agreed to.
The Chairman of Committees: My Lords, if Amendment No. 4 is agreed to, I cannot call Amendment No. 5.
Lord Windlesham Lord Windlesham moved Amendment No. 4:
Page 1, line 14, leave out subsection (2) and insert:
("(2) Subject to subsection (3) below, a magistrates' court shall not pass a custodial sentence on the offender unless it is of the opinion that the offence, or the combination of the offence and one other offence associated with it, was so serious that only such a sentence can be justified for the offence.
(2A) Subject to subsection (3) below, the Crown Court shall not pass a custodial sentence on the offender unless it is of the opinion.

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

(b) where the offence is a violent or sexual offence, that only such a sentence would be adequate to protect the public from serious harm from him.").

The noble Lord said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 9 and 13 which stand in my name and that of the noble Lords, Lord Hutchinson of Lullington and Lord Richard. It will be seen that these amendments have the support of noble Lords on each side of the House.
On Second Reading and again in Committee there was a general welcome for the sentencing reforms contained in Part I of the Bill. We have heard from the noble Earl, Lord Ferrers, that some amendments have now been accepted by the Government and they too are generally welcome. I believe however, that there are still flaws which are likely to inhibit the effectiveness of this part of the Bill when enacted. The first is the ambivalent handling of previous convictions. That matter is still unresolved. I shall look carefully at what the noble Earl said in moving the first group of amendments this afternoon, but I suspect that the extent to which previous convictions may be taken into account by sentencing judges will by no means be certain when.the Bill reaches the statute book.
The second flaw is the subject of the amendments now before us; that is, the attempt to resurrect the discredited notion of preventive detention for certain categories of sexual or violent offences. Amendments Nos. 4, 9 and 13 arise directly out of the debate we had in Committee on the provision which enables the courts to impose more severe sentences than the offence deserves on violent or sexual offenders where the courts judge it to be necessary in order to protect the public from serious harm. After studying the reply which the noble Earl gave on behalf of the Government in Committee—on that occasion the amendment sought to delete the power from the Bill—it became evident that what was troubling Ministers was the need for consistency between Clauses 1 and 2.
My noble friends in the All-Party Penal Affairs Group accept, however reluctantly, that the Committee decided, on a vote, to retain the power of the courts to impose more severe sentences than the offence justifies in certain cases. If I understand correctly the amendments which the House has just accepted, indictable offences will now also be brought within the scope of this provision which, at any rate, has the advantage of consistency behind it.
Therefore, we need to re-examine the wording of Clauses 1 and 2. I assure the House that these further amendments are a genuine attempt to relate the drafting more precisely to the Government's declared intentions.
If we begin with a proposition which we can all agree upon, namely, that it is a basic principle of justice that the severity of sentences should be proportionate to the just deserts of the offender, and if we are to enable courts to depart from that principle, I believe we must then agree that the circumstances in which they are allowed to do so should be carefully considered and spelled out. The limitations must be clearly understood and properly argued.
It is absurd to suggest that a short period of imprisonment of the length which magistrates may impose could effectively protect the public from serious harm. Serious harm is defined in the Bill as,
"death or serious personal injury, whether physical or psychological".
The topping up power, as it is known, applies to the magistrates' courts as well as to the Crown Court. In the magistrates' courts sentencing powers are limited to a period of six months' imprisonment. Remission of one half makes that effectively three months in custody. Magistrates may pass consecutive sentences, but only up to a total maximum of 12 months. Again, with half remission, that means a maximum period of six months in custody. It cannot seriously be argued that imprisonment for such short lengths of time can effectively protect the public from "death or serious personal injury".
When the Government first proposed in last year's White Paper, Crime, Justice and Protecting the Public, to empower courts to pass longer sentences than the offence deserves, it was explained that this exceptional power should be restricted to the Crown Court. The White Paper cited the example of an offender convicted of an offence of causing actual bodily harm which would normally merit a 12-month sentence. It said in paragraph 3.13 that 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 the risk of serious harm from the offender".
The arguments for restricting the power to the Crown Court remain as powerful now as they were then. The facility to impose disproportionate sentences—for that is what they will be—is ostensibly limited to violent and sexual offences. That is the wording of the Bill. However, as the Bill is drafted there must be a risk that the breadth of the definition of a violent offence—in Clause 29 defined inter alia as an offence which is likely to lead to death or physical injury—would enable some magistrates to use the power in relation to offences which are in reality offences against property.
For example, magistrates could argue that cases of taking and driving away vehicles carried the risk of causing physical injury and could consequently pass disproportionate sentences on young people convicted only of taking and driving away. That would be very different from the public perception of a violent offence—generally regarded as being a serious matter—which would normally come before the Crown Court, and a far cry from the Government's original intention as set out in the White Paper to which I have referred.
Those are the reasons why the amendments would restrict to the Crown Court the power to impose more severe sentences on certain categories of offender than the offence would otherwise justify. The combined result of the three amendments on the Marshalled List would remove the power from the magistrates' courts, leaving it only with the Crown Court.
I doubt whether I am alone in continuing to find this power unnecessary and, indeed, objectionable. But the House in Committee decided on its retention

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and it would not be proper to return to that matter again on Report. The correct course of action is to look at the wording of the first two clauses taken together, ensuring that there is internal consistency, and relating the provisions in the Bill directly to the Government's intentions and explanations. I beg to move.
Lord Richard: My Lords, I follow the noble Lord, Lord Windlesham, in supporting the amendments. What fundamental to them is the structure set out in the Bill. One starts with the basic principle, with which I am sure everybody in the House agrees, of "just deserts"—the principle that people should be sentenced in proportion to the offence that they committed. That is the starting point of any argument. If we move away from that and give courts powers to impose sentences which by definition are not proportionate but indeed are disproportionate to the offence of which the person was convicted, it is important to be certain of the circumstances in which we intend to do that. The Bill, at any rate in legal language, sought to do precisely that.
Clause 1 enables courts to impose custodial sentences even though the seriousness of the offence would not require custody. Clause 2 empowers courts to make sentences longer than the offence deserves. The relationship between on the one hand, the principle of just deserts and the derogation from that in the Bill and, on the other, the powers of the magistrates' courts, lies at the heart of the amendments.
We know that magistrates' courts have very limited powers. Normally their maximum sentence is six months. With remission of half the sentence we are therefore speaking of a three-month period of imprisonment. Even if magistrates impose consecutive sentences they can only go up to 12 months. With remission, therefore, we are again speaking of only six months. It is almost a distortion of language to argue that a three-month sentence imposed by the magistrates' court is one which is necessary to effectively protect the public from serious harm.
I remind the House that in the Bill serious harm is defined as,
"death or serious personal injury, whether physical or psychological".
In those circumstances if the powers of the magistrates' courts to protect the public from serious harm are as derisory as they are in the exercise of the powers that they already possess, why should the power be given to the magistrates' courts? By definition, if their powers are so limited then they will not be capable of imposing the sentences which the derogations in the Bill to the principle of just deserts were designed to catch.
It appears to me and to others who support the amendments that to confine that power to Crown Courts not only makes sense but also is very logical. That is the court which will deal with major crimes and the court which is capable of imposing sentences which may possibly protect the public from serious harm. I hope that the Government will take the view that confining the power to the Crown Court not only makes common sense at this stage of the passage of the
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Bill but also, as the noble Lord, Lord Windlesham, pointed out, is very much in accordance with what I understood Government policy to have been until we saw the Bill in draft. I support the amendments.
Lord Hutchinson of Lullington: My Lords, perhaps I might add a few words in support of the amendments, which I suggest to the House are overwhelming in the face of the arguments put forward by the noble Lord, Lord Windlesham.
The trouble with the topping-up procedure is that we enter an area of sentencing where we are punishing someone for what they may do in the future rather than for what they have actually done. Once one enters into that area one brings into play as many subjective judgments as there are courts in the land. In the case of magistrates' courts, that means 28,000 subjective judgments.
By allowing the power to be used in relation to all sexual offences the Bill picks out the one type of offence which all modern research, common sense and experience shows is the most unsuitable for long custodial sentences except in the most appalling cases. There is a serious danger that magistrates' courts will justify wholly inappropriate custodial sentences for certain sexual offences that arouse emotional response and give rise to all kinds of irrational prejudices; for example, offences such as gross indecency or importuning for immoral purposes and so forth. I do not know whether the Minister will once again in this case display his ability to be not only a noble Earl but a listening Earl. If he is unable to accept the amendment I hope that he will agree to take it away and give it further thought.
Lord Renton: My Lords, at Committee stage my noble friend Lord Windlesham moved an amendment to remove from Clause 2 the reference to sexual and violent offences, which he deals with in Amendment No. 9, which is grouped with Amendment No. 4 and now under discussion. At Committee stage it was pointed out that we might very well have tried to remove violent or sexual offences from Clause 1. My noble friend has tabled amendments which are in effect a compromise compared with the argument that he put forward in Committee. The compromise is an improvement. I welcome that. But I regret that we are still singling out violent or sexual offences as offences against which the public needs protection from the offender, when there are a great many other offences which molest the public, especially old ladies living alone, where the offence is not violent or sexual.
However, taking it as one finds it, the amendment is an improvement. If it is agreed to, I may decide at Third Reading to move to amend the provision still further and delete subsection (2A) (b) and the equivalent provision in Clause 2.
Lord Ackner: My Lords, I merely intervene to say that the issue to which the noble Lord, Lord Renton, refers is the subject matter of Amendment No. 12. Therefore I shall say nothing about it until that amendment is reached.
Earl Ferrers: My Lords, the noble Lord, Lord Hutchinson, hopes that we shall listen. Of course we

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shall listen. I shall take careful note of what your Lordships say. We believe that the power to impose a custodial sentence should continue to be available to a magistrates' court as well as to the Crown Court for a violent or sexual offender in order to protect the public from serious harm from him. The reason is simple. There may be instances where a violent or sexual offence is not of itself serious enough to justify a custodial sentence but it may be a case where the public need protection from the offender and such a sentence will provide that protection.
My noble friend Lord Windlesham said that magistrates cannot impose a prison sentence long enough to protect the public. Clause 29 gives a definition for protecting the public,
"from death or serious personal injury, whether physical or psychological, occasioned by further such offences committed by him".
Let us consider for a moment the example of a motorist who may be convicted of reckless driving. In itself that may not be serious enough to warrant custody. The circumstances of the offence, and perhaps previous similar offences, may suggest that the motorist's driving is likely to cause serious injury to another driver or pedestrian. In that kind of case a custodial sentence would protect the public by taking the offender out of circulation. It would also be a fairly salutary experience for him.
Lord Windlesham: My Lords, perhaps the noble Earl will answer a question on a point of information. Is it likely that a serious offence of reckless driving would be prosecuted in the magistrates' court with the sentence also being passed in that court?
3.45 p.m.
Earl Ferrers: My Lords, I do not know whether it is likely but it is possible. Those are the kinds of occasion where a custodial sentence could be appropriately available for the protection of the public. If we accept that a magistrates' court needs to be able to impose a custodial sentence for the protection of the public—some noble Lords do not accept that proposition—we have to consider how the court is to calculate the length of the sentence. If it is required to do so on the basis of the seriousness of the offence alone, it will have a problem if the offence is not serious enough to justify a custodial sentence. Logically it would have to impose a sentence of no months, which would be quite absurd.
Clause 2(2) (b) gets around the problem by allowing a magistrates' court to impose a longer sentence on a violent or sexual offender than the seriousness of the offence itself would warrant. The power of the magistrates' court to give a longer sentence in order to protect the public is limited by its general sentencing power to which my noble friend Lord Windlesham referred. The power of sentence is six months for a single offence or 12 months to run consecutively for two or more either way offences.
The example that I suggested to your Lordships would enable a magistrates' court to send a reckless driver to prison for up to six months. Under the proposals in Part II of the Bill three months would be
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spent in custody before release. I do not think it is a question of magistrates being able to lock people up for a long time. The important point is that the magistrates' court will be able to impose a custodial sentence which takes the offender out of circulation and the public is protected from him for the length of time he spends in custody, and also thereafter if the custodial sentence causes the offender to rethink his behaviour. That is the reason why we believe that it is correct to leave the Bill as it is.
Lord Mishcon: My Lords, does the noble Earl wish to restrict his defence of the amendment to the example he gave of protecting the public in a case of reckless driving? Does not the statute enable the magistrates' court to protect the public in the most effective way by suspending the driving licence? Does he not agree that that is much more effective than putting an offender in prison for three months, six months or nine months?
Earl Ferrers: My Lords, that may be so. That is the trouble with giving an example—someone like the noble Lord, Lord Mishcon, then picks it to pieces. The fact is that the courts have that ability. We suggest that they should continue to have it. If the noble Lord, Lord Mishcon, was sitting in that court he might take the option which he described; another court might take a different option.
Baroness Phillips: My Lords, I wish to come to the defence of the noble Earl, Lord Ferrers. The noble Lord, Lord Windlesham, does not need to worry about a person being charged with reckless driving. I have recently been personally concerned with a case involving six cars. So far the Police and Criminal Evidence Act has made it possible that the young man concerned will not be charged with anything. Therefore, there is no danger that he will be put inside, although he should be. No one was killed but some people came very near to it.
I find a great deal of the argument unreal and that is why I have avoided becoming involved with the Bill. I know that I am in a minority in this House, but I do not believe that I am in a minority as regards the feelings of the general public. We have recently heard of a sexual offence which I believe was referred to as being of a minor nature. How can a sexual offence be anything other than what it is—an offence which deserves punishment?
I read recently about a young man who held up a bank because he wanted to help his father. Because the offender was so humble and wimpish the court felt sorry for him. The fact that he had gone to the bank with a gun did not seem to come into the matter. Another young man could not have a relationship with a woman so he went out and raped two people at night. I am sure that these examples are of a minor nature to a Law Lord who sits dispassionately discussing them here. However, they are not minor matters to the victims. We should think carefully when considering any kind of violent or sexual offence before providing an opportunity for the offender to commit that kind of crime again.
Lord Hailsham of Saint Marylebone: My Lords, I was slightly disconcerted, and probably wrongly so, by the example of reckless driving. I have looked at the definition in Clause 29. I can see why my noble friend referred to it in that sense but I very much question whether reckless driving as such is necessarily a violent offence at all. If I were charged—as I hope I never shall be—with driving under the influence of alcohol or with an excessive amount of alcohol in my blood, the matter could, if my noble friend is right, equally come within the words of Clause 29. I believe that violence must involve an element in the actual charge of an offence. It must involve the use of violence and not of something reckless in the sense in which it has been defined by this House in the case of Caldwell and in the case of Lawrence. I hope that my noble friend will take that into account. I may be talking nonsense but I do not think that I am.
Lord Hylton: My Lords, I should like to—
Lord Elton: My Lords, while the noble Lord, Lord Hylton, is considering whether to return to the charge, it seems to me that we are being led slightly aside from the issue. I say that because my noble friend was doing what I have often done in the past. I refer to illustrating a principle with perhaps not the most apposite of illustrations. However, the principle that we are seeking to define and to decide on is whether the court in the cases that we all have in mind—not necessarily dangerous driving—should have the option which the Bill provides or whether it should be removed as the amendment provides.
I say that merely as a layman. My noble friend was kind enough to thank me for an idea I had on the first group of amendments. That gave me particular pleasure because I am not now in order and neither is he. When I see him in difficulty, therefore, I have a natural affinity with him which perhaps some noble Lords d a not share.
Earl Ferrers: My Lords, with the leave of the House, perhaps I may be permitted to speak again. My noble friend Lord Elton is entirely right—although I am not referring to what he said about coming to the help of his noble friend, for which I am grateful—to say that I used an example in order to illustrate a position. We tend to get our eyes off the main point and go down the track of whether an example used was a good one. I gave the example only because some cases of reckless driving will fall within the definition of violent offences in Clause 29(1). The suspension of a driving licence just does not work if the person is driving while he is already suspended, as happens in a good many cases. We must not get unduly drawn down that track.
Obviously noble Lords feel concerned about this but I think the Government are right. However, without giving any undertaking or guarantee that I shall change anything, I shall certainly consider what noble Lords have said if that is a help to the House.
Lord Windlesham: My Lords, I welcome those heartening words of the noble Earl. The conclusion of this short debate is that the limited sentencing powers of the magistrates' courts are incompatible with the
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objective the Government are pursuing. Whether we regard the objective as desirable or not is another question and one we disposed of at Committee stage. Sentencing powers are so limited in the magistrates' courts, and the offences towards which these provisions are directed are so serious that the proper place for them to be tried is in the Crown Court. Indeed, the Government seemed to have accepted that proposition in the amendments carried half an hour ago whereby the topping-up provision is to be extended from offences triable either way to those triable only on indictment.
I am glad the noble Earl has said that he and the Home Secretary are prepared to reconsider this matter, without commitment, before Third Reading. I do not wish to rehearse the arguments again. I simply remind the House, and the noble Earl, that the magistrates' courts were not included in the scope of this provision in the Government's White Paper; nor, with due respect to the noble Lord, Lord Richard, was this power extended to the magistrates' courts when the Bill was published. It was an addition at Report stage in the House of Commons. I made some inquiries, lest my honourable friends on the Government Benches had a burning zeal for this change to be made in Committee in another place. I was told this was not so. It was added by the Home Office in the interests of consistency of drafting.
The House has now amended quite substantially the wording of Clauses 1 and 2 in the amendments which have been passed this afternoon. That is a further reason why the Minister may wish to look again at this proposal to see whether the references to the magistrates' courts might be deleted without damaging the Government's policy objectives. Having made that plea, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Ackner Lord Ackner moved Amendment No. 5:
Page 1, line 16, leave out ("one other offence") and insert ("other offences").
The noble and learned Lord said: My Lords, during the latter part of our Committee proceedings I apologised for not raising on the first day of Committee the amendments of the kind I am raising now. I was out of the jurisdiction. I was going to repeat my apologies yet again but the noble Earl has disarmed me by the extent of the amendments which he has caused to be inserted and which we passed at the outset of our proceedings today.
Perhaps I may read straight away the relevant part of the clauses before developing my amendments. Clause 1(2) reads as follows:
"Subject to subsection (3) below"—
with which we need not worry at this stage—
"the court shall not pass a custodial sentence on the offender unless it is of the opinion—
(a) that the offence, or the combination of the offence"—
and I now stress these words—
"and one other offence associated with it, was so serious that only such a sentence can be justified for the offence".
Clause 29, on page 20, sets out a number of definitions. Six lines from the bottom of the page we find out what an offence associated means. Subsection (2) states:

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"For the purposes of this Part, an offence is associated with another if—
(a) the offender is convicted of it in the proceedings in which he is convicted of the other offence, or (although convicted of it in earlier proceedings) is sentenced for it at the same time as he is sentenced for that offence; or".
I pause there to say that a classic example would be where a person has pleaded guilty to one or more offences and has contested one or more other offences and they are then tried. Subsection (2) continues:
(b) the offender admits the commission of it in the proceedings in which he is sentenced for the other offence and requests the court to take it into consideration in sentencing him for that offence".
It is thus perfectly clear that the only aggregation that can be taken into account in deciding on the seriousness of an offence is one other offence other than the offence with which he stands convicted. When it comes to taking into consideration outstanding offences—the so-called TICs—only one of those—it may be one out of 50—can be taken into account when considering the seriousness of the offence.
I make these introductory observations first. I have said on more than one occasion that I am wholeheartedly in favour of as few people going to prison as one can properly so manage. I accept, as we all do, that prison is very rarely of any reformative assistance, even though 25 years ago we were told exactly the opposite by criminologists. It is counter-productive.
I entirely accept that the Government are entitled —in no way do I resist this—to impose whatever framework they consider to be appropriate for the sentencing activity. I have made those preliminary observations in the hope of perhaps escaping or toning down the usual "Lullington laments" to which I am almost invariably subjected.
In Standing Committee in another place the Minister of State, Mr. John Patten, said:
"The Bill is not an exercise in trying to empty our prisons. Instead, it is designed to ensure that defenders are punished correctly on conviction—those that should go to prison, go to prison; while those who should not be punished in prison, are punished outside".
I accept all of that, so far as concerns the philosophy. However, I am concerned about how one applies the philosophy that a person should get the just deserts for the offences—I put it in the plural—which he has committed if one cannot deal with the multiple offender (and there are many of them about) save on the basis that you take two offences out of a possible four, 10 or 20 or, as an alternative and not in addition, you take one of the offences which he has asked to be taken into consideration. I have already accepted that Parliament must be entitled to impose a framework on sentencing. However, if it imposes a distorted framework it will receive distorted results from the judges, who will have no alternative.
Perhaps I may invite noble Lords to consider two quite simple examples. For the person who steals repetitively or who acts dishonestly in relation to the Department of Social Security, the ordinary method of prosecuting him is to take one or two specimen charges. Of course, each one may only be a matter of £5 because he does it every week, and he may have
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been doing so for a period of more than three years. What can one do in such a case? In considering the seriousness of the offence—in other words, in considering whether he should go to prison—one can only look at £10-worth of theft; that is, two of the specimen charges. One cannot take into account the fact that he has asked for 50 offences to be taken into consideration.
However, if one feels somewhat unsympathetic towards the DSS, one can consider the example of a case between the ordinary employer and employee. Let us imagine that a man has had the practice of stealing £100 per week from his employer. In all he has stolen £10,000. What is the judge to do now under this framework? All he is entitled to do, as the employee will be charged with one or more specimen counts, is to say, "I shall sentence you for stealing £200 from your employer and that is all I can do in regard to considering the seriousness of your offence. Of course, on that basis I shall not send you to prison. I give you a conditional discharge". If that is how the legislation is to work then, with the greatest respect to Mr. John Patten, this is an exercise in trying to empty our prisons.
Perhaps I may give your Lordships another example, always in the knowledge that if one refers to anything which has any sexual content one is immediately in the firing line. However, let us assume that a person in trust over a substantial period has been involved with an indecency of not the most serious kind—I choose my words here with care—such that a judge may think, because the defendant has not been in trouble before, that if one takes merely two of the indecent assaults one should not send him to prison. However, the evidence establishes the fact that this has been going on for three years. If one considers the offences over a period of three years, there would be total unanimity that the defendant should go to prison for a substantial period. A judge who did not send such a defendant to prison would be the subject matter of a press attack, which one can imagine, followed by demands for his resignation.
Therefore, is not this framework such that it will be productive of distortions? How are the Government contemplating that a judge, in considering the seriousness of offences for the purpose of imposing or not imposing a custodial sentence, is to deal with the multiple offender? That is the reason behind these amendments. I beg to move.
4 p.m.
Lord Mishcon: My Lords, I believe that the House will recognise the sincerity of the noble and learned Lord, Lord Ackner, in saying that he is very much in favour of keeping people out of prison and that prison is counter-productive. Therefore, any argument on the amendment will not be based upon any supposition that he feels any other way. Indeed, the same applies to anyone who may support him.
There is another side to the picture. It is one which has been considered by the Court of Appeal, as the noble and learned Lord will well realise. I refer to the injustice of putting together what may be pitiful

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offences involving very little money or property and adding up the total until it becomes, if committed as a single crime, a serious offence.
We had a similar experience—indeed, it is almost a complete parallel—in the way we have dealt with young offenders. I see that the noble and learned Lord wishes to intervene. I am happy for him to do so.
Lord Ackner: My Lords, I am most grateful to the noble Lord. The jurisprudence on this particular aspect of sentencing is, as I understand it, perfectly clear: a judge who adds up offence by offence and then says that the total is x months or x years, is acting quite contrary to the established principles of sentencing; he must stand back and look at the situation a in total.
Having reached the stage of "anecdotage", perhaps I may be allowed to tell noble Lords that when I first went out on Circuit I had the advantage of a WO1—that is, a Warrant Officer 1—as a clerk. On one occasion there was a punch-up between the police and some gypsies. The police put forward 15 different counts, including one concerned with using an offensive weapon; namely, a beer bottle. That was the one offence which the Welsh jury would not tolerate. However, in the end, I gave the accused person a sentence of 15 months. I gave him so much on each count, but each sentence was concurrent. When I asked my clerk whether he thought that I had given the accused too much he said, "No, I do not think so". In looking through my judge's book the next day I noticed that he had written down each of the sentences and added them up; the total was 144 months. That is precisely what one is not allowed to do, unless one wants to have the sentence immediately upset in the Court of Appeal Criminal Division.
Lord Mishcon: My Lords, the problem with allowing the noble and learned Lord to intervene, as a matter of courtesy, is that one's audience has completely forgotten what the speaker said before the intervention. I was saying, with due respect to the noble and learned Lord, that there was a similar position with regard to young offenders. The Court of Appeal has looked at the words:
"so serious that the non-custodial sentence for it cannot be justified".
That is the wording with which the court is faced when dealing with young offenders. In several cases the Court of Appeal has held that what one has to do—I concede this at once to the noble and learned Lord—is to look at each individual case and not to tot them up. That principle has enabled the Court of Appeal to put right sentences which have been imposed by a lower court.
I shall refer your Lordships to two cases, both of which occurred in 1989. They are both reported in 11 Criminal Appeal Reports. One of them was R. v. Thompson. There the court overturned a custodial sentence on a young woman with no previous convictions who had committed a number of individual small offences with someone else's cheque book and credit card. Adding them up, the figure of
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£1,000 was reached. Individually they were small offences. The court said that it was wrong in those circumstances to impose a custodial sentence.
The other case is R. v. Davison. There the Court of Appeal overturned a custodial sentence which had been imposed on a teenage boy who had no previous convictions. He had carried out a number of burglaries of commercial premises and had stolen property with an aggregate value of £500. In each of those cases, if the Court of Appeal had not held that the offences should be looked at individually, it would have upheld the custodial sentences.
As I understand it, the Government were faced with the argument that to be consistent one cannot look collectively at what has happened before, or contemporaneously with, a crime that has been committed. To cover that point, as I understand it, a compromise has been reached in which it is said that one other offence—that would obviously be the most serious offence—together with the offence at the conviction of which the sentencing court is now looking, can be taken into account when deciding whether custody is to be the proper punishment.
To return to another situation such as the noble and learned Lord would like to have—namely, that all other offences can be taken into account and looked at collectively when deciding that custody should be imposed—we believe that that would be wrong. In the circumstances, we on these Benches oppose the amendment.
4.15 p.m.
Lord Campbell of Alloway: My Lords, I support the amendment. The reasons and examples given by the noble Lord, Lord Mishcon, in effect vindicate the framework of the exercise of judicial discretion as at present exercised. With the greatest respect to him, to me at all events—I am not trying to be impish about this—they appear to support the case put forward by the noble and learned Lord, Lord Ackner.
If, as the Bill as drafted proposes, we are going to change the sentencing regime so that in DSS frauds, shoplifting and other repetitive cases, or burglary cases with sometimes 12 or 15 offences taken into consideration, the judge can consider only one offence, we are moving into an unrealistic world. The public cannot see that justice is done in those circumstances. If we shackle and fetter the judges, they cannot provide justice. I do not know what might happen.
When one is asked to settle an indictment—I did it many years ago—one takes sample counts, and if one is representing the Crown one opens the case to the jury on those sample counts. If the Bill is to stand as proposed, without the amendments tabled by the noble and learned Lord, we shall have overloaded indictments containing about 10 counts, because although the other counts with which the defendant is charged can be referred to, none save one can be referred to. I am aware that all examples, in a sense, are useless and restrictive, but that is a practical situation. When I was young I drafted indictments, and I wonder how people will go about that now. Shall we have overloaded indictments so that the Crown can

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at least discharge its duty to the public; so that the judges can sentence on the overloaded indictment; and a form of justice can be done, according to the extant judicial traditions which are good and not open to question?
I ask my noble friend the Minister to think again, because the noble and learned Lord, Lord Ackner, had vast practical experience of these matters at the Bar on the Western Circuit and as a judge. With the greatest respect to my noble friend the Minister, departments of state have no practical experience.
Lord Havers: My Lords, one of the great difficulties in sentencing is to ensure that realism applies. The amendment asks us to apply realism. It is essential that when the judge comes to sentence he is not put into a false position of having two offences only on which to sentence when in reality there may be 20 to which the offender has pleaded guilty or has had taken into consideration. For that reason, as realism is essential in sentencing, I shall support the amendment.
Lord Roskill: My Lords, when moving the previous amendment, the noble Lord, Lord Windlesham, said that over the years Parliament and the courts had been ambivalent on the subject of courts referring to previous convictions when passing sentence. Some of us began to be involved in the sentencing process when the relevant statute was the Criminal Justice Act 1947, which Mr. Attlee's government, of which the noble Earl, Lord Longford, was a distinguished member, put upon the statute book. That Act required the courts in many cases to have regard to previous convictions, especially in cases which required sentences of what were then corrective training and preventive detention. The result was, as some of us pointed out at the time, that far longer sentences were being imposed for trivial offences, taken in the aggregate, than any court ought reasonably to have been asked to impose.
The noble Lord, Lord Mishcon, is absolutely right in what he has just said, but, as the noble and learned Lord, Lord Havers, said, the problem is pragmatic. When passing sentence one must get a result in the end which the public will see as a just result in that case. With profound respect to the philosophy which lies behind the clause as it stands, if a sentence is passed which reflects only two offences out of a multitude, I do not believe that anyone will accept that justice has been done in that case.
The noble Lord, Lord Campbell of Alloway, mentioned the practical point on indictments. In our Court of Appeal days some of us made caustic comments about overloading indictments in criminal cases and suggested that it was quite sufficient to take sample counts because the others could have been dealt with on what, to use lawyers' shorthand, were known as TICs. It seems that that will be quite impossible, unless I misread the Bill.
It is quite absurd in these cases, I venture to suggest, to tie the hands of the court in order to produce a solution which is wholly unrealistic. Nobody in their senses wishes to send somebody to prison unnecessarily. But there is another side to the problem. The
1498
courts must not be prevented from sending people to prison when looked at as a whole—to borrow the phrase of the noble Lord, Lord Mishcon—the case demands that a custodial sentence should be passed. I venture to urge the noble Earl to re-examine this to see whether he can work out a better pragmatic solution which meets the points that have been made in support of the amendment as well as preserving the principle that one does not wish to sentence somebody solely upon his record.
Lord Renton: My Lords, I too support the amendment. The only point I wish to add concerns the TICs. For the benefit of lay Members of your Lordships' House, that means offences taken into consideration. When the accused is in custody the police officer asks him about a large, or even a small, number of other offences which have come to the notice of the police and which they have reason to believe he may have committed. They say to him, "Look here, if you have committed any of these, you may ask the court to take them into consideration when you come before it on the charge with which you have been indicted". It is made clear by the court when taking those offences into consideration that the accused will not on any subsequent occasion be charged with and sentenced for any of those offences. Therefore it is to the advantage of the accused that we should not exclude consideration of the offences.
As the noble and learned Lord, Lord Roskill, pointed out, it is a matter of justice to the accused that all the circumstances relating to him should be considered once and for all in the case before the court. However, if the Bill remains as it is, it may well be that only half the matters which the accused has a right to have taken into consideration will be considered.
Lord Hutchinson of Lullington: My Lords, I sincerely hope that the House will reject the amendment. I am afraid that what I have referred to on previous occasions as "the heavy mob" have come forth. With the success on Amendment No. 1, we have had to wait only an hour or so for the backlash to start; it has begun. I do not know about the "Lullington lament"; it has been highly successful, having gone on so long, in achieving acceptance of Amendment No. 1 to the Bill. I for one prefer it to what I may call the "Judicial dirge".
The noble and learned Lord wishes to return to the status quo. That is the purpose of the amendment, which is perfectly clear. All the old tricks of advocacy which one has seen so often of spending the first five minutes on praising the principle and the last three on undermining it have been displayed to the House. The whole purpose of Part I of the Bill—as I see it, the underlying message of the Bill—is that at long last courts when sentencing people should focus on the seriousness of the charge before them. That is the purpose of the Bill to begin with: to focus on the offence or offences which are before the court in accordance with the principle which we already know so well. Courts should cease to sentence offenders on their record, and cease to justify longer and longer

1499
sentences for offences which are taken into consideration or on subjective judgments about what the person may do in the future.
There seems to me to be a confusion between the two clauses. I thought that we were dealing with Clause 1 on the question of what justifies the court in passing a custodial sentence. That is the question. Later in Clause 2 we come to the length of the sentence, which is another matter. Clause 2(2) (a) states that once a court has decided that it is justified:
"A custodial sentence … shall be … for such term … as in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and other offences associated with it".
The court takes all those matters into account in deciding the seriousness of the offence and therefore the length of sentence.
All we are discussing here is the preliminary decision on whether a custodial sentence is justified. The answer to the noble and learned Lord's amendment and his examples of the social services and so on is for the charge to be properly laid. That is the point. The answer is for the indictment to contain the proper charges before the court. When it comes to sentencing, those charges or counts on the indictment can be dealt with.
Lord Campbell of Alloway: My Lords, I am grateful to the noble Lord for giving way. I know he has practical experience of this also on the Western Circuit. Is he really advocating a return to the overloaded indictments which were discouraged about 15 years ago by the Court of Criminal Appeal? Does he advocate that?
Lord Hutchinson of Lullington: Not at all, my Lords. If only the prosecuting authorities could use a little common sense, there is no requirement to overload the indictment. All that is necessary is to put the proper charges in the proper counts in the indictment which will enable the court to deal with the charges before it. There should not be a whole mass of stuff brought in as offences to be taken into consideration.
Lord Ackner: My Lords, will the noble Lord allow me to intervene? I think quite uncharacteristically he overlooks Clause 29(2), which states that an offence which is associated includes the case where,
"the offender is convicted of it in the proceedings in which he is convicted of the other offence".
Thus under Clause 29, as I understand it—and I should be grateful for the noble Lord's views—if the indictment contains six offences, in order to decide whether to send the person to prison, one can choose one offence and one extra charge, and that is all—two out of the six.
4.30 p.m.
Lord Hutchinson of Lullington: My Lords, I do not find any difficulty in this. One can go on discussing and arguing, I suppose, until doomsday. If the noble and learned Lord cannot understand the principle upon which this Bill is based, one cannot go on and on explaining it. I fully appreciate that the judiciary will find the greatest difficulty in understanding the limitations this Bill puts upon their sentencing powers.
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So far as I am concerned—and I take the view that a great many people on this side of the House would take—I believe that it is of overwhelming importance that the philosophy behind this Bill should be observed by the courts. If the courts are limited in this way, so be it. The noble and learned Lord disclosed his train of thought in using the words:
"in deciding the seriousness of the offence, that is, whether the person should go to prison".
That is not the way from now on that the courts will look upon matters. There are serious ways of dealing with serious offences in this Bill which have nothing to do with prison. The trouble is that still the judiciary approach the seriousness of an offence on the basis of whether or not the person should go to prison. There are now other forms of sentence which are just as demanding of the accused person as the useless sentence of imprisonment. For quite serious offences there are other sentences now outside prison which are just as useful as prison and far more effective. If only the judiciary would appreciate that, as I am sure they will when they come to use their powers in accordance with this Bill, then at last we would be getting somewhere as regards reducing the number of people in prison and not sending so many people to prison for such long sentences.
Earl Ferrers: My Lords, what a cheerful experience it is to see the noble Lord, Lord Hutchinson, involved in disagreement and discourse with noble and learned Lords: that gives one great encouragement. This has been a very interesting debate, with a number of differing views being portrayed. I thought I had an ally in the noble and learned Lord, Lord Roskill, when he said that he agreed with the noble Lord, Lord Mishcon, but having gone to the left he then, as it were, turned to the right. That, as the noble Lord, Lord Hutchinson, had predicted, sometimes happens.
The noble and learned Lord, Lord Ackner, paid me a great compliment for which I am deeply appreciative, by saying that I had disarmed him. I am not aware of ever having done that to any noble and learned Lord, least of all to one of the stature of the noble and learned Lord, Lord Ackner. However, I am bound to say that momentarily my chest inflated about two inches. It soon went back to normal and even into reverse, as the noble and learned Lord, Lord Ackner, proceeded to produce his customary and highly persuasive argument.
Before I comment specifically on the amendment, perhaps I may amplify a little what we really mean by the expression "one other offence" which rather exercised the noble and learned Lord, Lord Ackner, and others so much. It is quite understandable for people to think at first sight that this restriction to "one other offence" looks somewhat arbitrary and rather odd. It raises the question of whether the Bill is really saying that if there is more than one other offence the remaining offences have to be ignored. Indeed that was the thrust of the noble and learned Lord's argument.
To understand the significance of the provision I think it is helpful to remind ourselves of its origin. It lies in Section 1 of the Criminal Justice Act 1982, as substituted by Section 123 of the Criminal Justice Act

1501
1988. This provision prevents a court from passing a custodial sentence on a young offender unless one of three conditions is met. The third of these is that
"the offence of which he has been convicted"
is so serious that a non-custodial sentence cannot be justified for it.
The courts have, however, had difficulty in applying this provision where the offender has committed more than one offence. Its effect in this case is that each offence must be considered individually, and that a custodial sentence cannot be given if no single offence justified it.
The Bill in Clause 1 subsection (2)(a) recognises and responds to the concerns which have been expressed about the existing provision in the 1982 and 1988 Acts. But it does so—and this is where perhaps I part company with the noble and learned Lord, Lord Ackner—in a way which does not allow the courts to aggregate a whole series of very minor offences to justify a custodial sentence. Our view is that people who commit minor offences, even if committed in considerable numbers, should not necessarily be sent to prison. I believe that the noble and learned Lord, Lord Ackner, agreed with that. They should receive community sentences which are supposed to help them to tackle their offending behaviour rather than go to prison, where they can learn how to commit more serious offences in the future.
I recognise that there are bound to be borderline cases. That is what the reference to "one other offence" is meant to address. I shall give an example, although I am nervous of doing so even though the noble Lord, Lord Mishcon, on this occasion may be travelling down the same track as myself. We encounter a problem if an offender has committed two or more relatively serious offences but they may be ones which are not quite serious enough individually to justify a custodial sentence. Each of those offences would justify a very stiff community penalty: perhaps a combination order with additional requirements. But there is a limit to what practicably can be demanded of an offender serving a community sentence. You cannot simply go on piling one community sentence on top of another in an attempt to give an adequate penalty for several quite serious offences. A point is reached where a custodial sentence has to be given.
By specifying in subsection (2)(a) that a custodial sentence can be given if the offence, or one other offence which may be associated with it, is serious enough to justify it we feel we can ensure that the courts can take the existence of a second offence into consideration when passing a custodial sentence. But the two offences concerned would have to be relatively serious individually before, taken together, they would justify a custodial sentence. If both offences were very minor they could not, even when added together, justify a custodial sentence. The provision therefore allows a second offence to tip the balance between a custodial sentence and a community penalty in a borderline case, but it does not allow very minor offences to be aggregated simply in order to justify custody.
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Of course the same arguments apply in respect of the noble and learned Lord's proposed amendment to Clause 5. I fear that it might lead to the inappropriate use of community sentences when really a fine would be more appropriate, if the offender was convicted of several minor offences which could perfectly well be dealt with by a fine. The noble and learned Lord, Lord Ackner, in what I thought was one of his most persuasive arguments, asked about the fellow who has been pinching £100 every single week and his total aggregate of such "pinching", if I may use the word, amounted to £10,000. He would only be able to be sentenced for £200. If the noble and learned Lord, Lord Ackner, were to look, as indeed I am sure he has done, at Clause 3(2)(a), it says that 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".
Those may well include the fact that the offences were planned, were persistent and were committed in breach of trust. That would cover the dishonest employee or the person who abuses trust to interfere with children in his or her care. Although I hate to suggest that the noble and learned Lord might reconsider, I believe that the case that he mentioned is already covered by the Bill.
While I understand the reasoning behind the noble and learned Lord's amendment I hope that he in turn will be able to see that in the Bill we have tried to avoid putting people in custody unnecessarily. To put them into custody as a result simply of aggregating a number of minor offences would be wrong. However, if a person commits two dreadful offences, neither of which itself is suitable for a custodial sentence but which together may be suitable for a custodial sentence, we feel that the Bill ought to allow for that.
Lord Ackner: My Lords, perhaps I may begin by dealing with one or two of the observations made by the noble Lord, Lord Hutchinson of Lullington. He referred to the amendments made at the outset today which bring in the whole field of criminal law. I did not rise to congratulate or in any way to criticise, for this one very simple reason. Until those amendments were made the situation proposed by the Government was quite unworkable. One would have had a person with one foot in one form of sentencing system which was triable either way and, yet with another offence, with his other foot in the non-statutory system. There would be two or three people who were part in and part out of the system. It was wholly unworkable. The speed with which that has at last been recognised in this House is a compliment to the House.
My next point is that I am wholly aware that I am referring to Clause 1. Clause 1 deals with the qualification for a custodial sentence. Clause 2 deals with the length of that sentence once one has qualified. Under the present situation one can envisage this bizarre situation in the Court of Appeal Criminal Division. There is an appeal against a sentence of 10 years. The Court of Appeal says that under Clause 2, having regard to all that the offender has done, 10 years is perfectly right. However, under Clause 1 only

1503
two offences should have been aggregated and it was quite wrong for the offender to go to prison at all. That is the situation that could occur in this case.
The origin of the situation is very simple. It is a form of compromise forced upon the Government by the hopeless muddle that resulted from the Criminal Justice Acts of 1982 and 1988. That was pointed out in the else of R. v. Howard, for which I have the transcript dated 24th August 1990. Under the legislation which applied to young persons one could have regard only to the seriousness of the offence. There was no question of any aggregation.
In that particular case the offence was an attempted burglary. The accused was out on bail. While out on bail he no doubt thought that he should save up for the inevitable custody. This time he did not attempt a domestic burglary— he succeeded. When he came up before the Crown Court judge he asked for that offence to be taken into consideration. The learned judge took it into consideration and sent him to prison. The case went up to the Court of Appeal. The Court of Appeal said that he could not do that; the statute does not allow it. The opening words of the judgment are these:
"The sentencing policies to be adopted in respect of young offenders is a matter of paramount public importance. Parliament has in recent years tried to spell out these policies in some detail. Section I of the Criminal Justice Act 1982 attempted to grapple with the problem. It is a matter of history that the proper construction of that provision caused great difficulties in practice. There were second thoughts."
That was in the 1988 Act. It went on:
"Unfortunately, on this occasion, those second thoughts were not demonstrably better thoughts. By section 123 of the Criminal Justice Act 1982 the sentencing code in respect of persons under the age of 21 was amended in a number of respects. In March 1988 Dr. David Thomas, a distinguished commentator, warned that the new provision if enacted would give rise to a wide range of legal difficulties and that the time of the criminal courts would be consumed more with discussing the details of the statutory requirements than with the general merits of the case. See Current Legal Problems 1988 … That prediction has been fulfilled".
In dealing with the court's inability to uphold a perfectly sensible sentence which took into account the offence committed while on bail the court pointed out that is could not do so. Only the one offence was the qualifying offence. The court added these comments:
"Inevitably this will produce results which would affront the good sense of right-thinking persons; but it is the law. It follows that it was not permissible in this case to take into account the combined effect of the attempted burglary and the completed burglary".
It was in order to compromise on that situation that the Government have said that in future one can add on one offence and—as an alternative, but one cannot do both—one can add one case which the accused asks to be taken into consideration.
Lord Hutchinson of Lullington: My Lords, will the noble and learned Lord give way? I am very much obliged to him. In that case did not the court disapprove of a court seeking to take into consideration an offence which was more serious than the offence before the court and advise prosecuting authorities to put the offence properly in the indictment if they wanted it to be dealt with?
Lord Ackner: My Lords, not that I can recall. It pointed out that if the offence of this kind occurred in future it was hopeless to use it as an offence to be taken into consideration. Therefore it would have to be charged separately as an offence. However, that does not help in this case because, as I indicated, Clause 29 says that the associated offence includes the offence which is tried and convicted along with the leading offence.
As it is clear that the Government are firmly committed to their present policy and there is no prospect of any yielding on a matter which is of fundamental importance to the just administration of justice and to the philosophy of just deserts, I have no alternative but to seek to test the opinion of the House.
4.49 p.m.
On Question, Whether the said amendment (No. 5) shall be agreed to?
Their Lordships divided: Contents, 29; Not-Contents, 183.

Division No. 1

CONTENTS

Ackner, L. [Teller.]

Kinloss, Ly.

Acton, L.

Lawrence, L.

Allenby of Megiddo, V.

Lowry, L.

Boyd-Carpenter, L.

Margadale, L.

Campbell of Alloway, L.

Monk Bretton, L.

Carnarvon, E.

Nathan, L.

Carnock, L.

Nelson, E.

Colville of Culross, V.

Palmer, L.

Craigavon, V.

Phillips, B.

Elliot of Harwood, B.

Renton, L. [Teller.]

Faithfull, B.

Roskill, L.

Fortescue, E.

Shannon, E.

Halsbury, E.

Swansea, L.

Havers, L.

Wilberforce, L.

Hylton-Foster, B.

NOT-CONTENTS

Addington, L.

Clinton-Davis, L.

Airedale, L.

Cochrane of Cults, L.

Aldington, L.

Coleraine, L.

Alexander of Tunis, E.

Colnbrook, L.

Ampthill, L.

Colwyn, L.

Ardwick, L.

Constantine of Stanmore, L.

Astor, V. [Teller.]

Cudlipp, L.

Attlee, E.

Cullen of Ashbourne, L.

Auckland, L.

David, B.

Aylestone, L.

Davidson, V. [Teller.]

Belhaven and Stenton, L.

Dean of Beswick, L.

Belstead, L.

Denham, L.

Bessborough, E.

Donaldson of Kingsbridge, L.

Birk, B.

Dormand of Easington, L.

Blackstone, B.

Dundee, E.

Blake, L.

Ellenborough, L.

Blatch, B.

Elles, B.

Blyth, L.

Elliott of Morpeth, L.

Boston of Faversham, L.

Ennals, L.

Brabazon of Tara, L.

Fanshawe of Richmond, L.

Bridgeman, V.

Ferrers, E.

Brigstocke, B.

Fitt, L.

Brooks of Tremorfa, L.

Flather, B.

Brougham and Vaux, L.

Fraser of Carmyllie, L.

Butterworth, L.

Gladwyn, L.

Caithness, E.

Glenamara, L.

Callaghan of Cardiff, L.

Glenarthur, L.

Campbell of Croy, L.

Graham of Edmonton, L.

Carmichael of Kelvingrove, L.

Grey, E.

Carnegy of Lour, B.

Hampton, L.

Carter, L.

Hanworth, V.

Cavendish of Furness, L.

Hardinge of Penshurst, L.

Cledwyn of Penrhos, L.

Harlech, L.

1505

Harmar-Nicholls, L.

Parry, L.

Harmsworth, L.

Pearson of Rannoch, L.

Harvington, L.

Pender, L.

Haslam, L.

Peston, L.

Hatch of Lusby, L.

Pitt of Hampstead, L.

Henderson of Brompton, L.

Platt of Writtle, B.

Henley, L.

Prys-Davies, L.

Hives, L.

Pym, L.

Hollis of Heigham, B.

Rankeillour, L.

Hood, V.

Rea, L.

Hooper, B.

Reay, L.

Howe, E.

Renwick, L.

Hughes, L.

Richard, L.

Hunt, L.

Robson of Kiddington, B.

Hutchinson of Lullington, L.

Rochester, L.

Hylton, L.

Rodney, L.

Ingrow, L.

Sainsbury, L.

Jeger, B.

St. John of Bletso, L.

Jenkins of Putney, L.

Sanderson of Bowden, L.

Johnston of Rockport, L.

Savile, L.

Joseph, L.

Seear, B.

Kimball, L.

Sefton of Garston, L.

Kirkhill, L.

Shackleton, L.

Knollys, V.

Sharples, B.

Lauderdale, E.

Skelmersdale, L.

Listowel, E.

Soulsby of Swaffham Prior, L.

Llewelyn-Davies of Hastoe, B.

Stallard, L.

Lockwood, B.

Stedman, B.

Long, V.

Stoddart of Swindon, L.

Longford, E.

Strabolgi, L.

Lovell-Davis, L.

Strange, B.

Lucas of Chilworth, L.

Strathcarron, L.

Lyell, L.

Strathclyde, L.

Mackay of Clashfern, L.

Strathmore and Kinghorne, E.

Mackie of Benshie, L.

Sudeley, L.

McNair, L.

Suffield, L.

Mancroft, L.

Taylor of Blackburn, L.

Mar, C.

Taylor of Gryfe, L.

Marsh, L.

Teviot, L.

Melville, V.

Thomas of Gwydir, L.

Merrivale, L.

Thomas of Swynnerton, L.

Mersey, V.

Thomson of Monifieth, L.

Middleton, L.

Tordoff, L.

Milner of Leeds, L.

Trefgarne, L.

Mishcon, L.

Trumpington, B.

Montgomery of Alamein, V.

Turner of Camden, B.

Morris, L.

Vaux of Harrowden, L.

Morris of Castle Morris, L.

Vinson, L.

Mottistone, L.

Waddington, L.

Mountevans, L.

Wade of Chorlton, L.

Mowbray and Stourton, L.

Wallace of Coslany, L.

Mulley, L.

Whaddon, L.

Munster, E.

Whitelaw, V.

Murray of Epping Forest, L.

Williams of Elvel, L.

Nicol, B.

Wilson of Langside, L.

Norfolk, D.

Windlesham, L.

Orkney, E.

Winstanley, L.

Orr-Ewing, L.

Young, B.

Park of Monmouth, B.

Resolved in the negative, and amendment disagreed to accordingly.
4.57 p.m.
Earl Ferrers Earl Ferrers moved Amendment No. 6:
Page 2, line 15, leave out subsection (6).
The noble Earl said: My Lords, this amendment has been spoken to with Amendment No. 1. I beg to move.
On Question, amendment agreed to.
Clause 2 [Length of custodial sentences]:
Earl Ferrers Earl Ferrers moved Amendment No. 7:
Page 2, line 25, leave out from beginning to ("shall") in line 27 and insert:
("(1) This section applies where a court passes a custodial sentence other than one fixed by law.
1506
(2) The custodial sentence").
The noble Earl said: My Lords, this amendment was spoken to with Amendment No.1. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, Amendments Nos. 8 and 9 have been pre-empted.
[Amendments Nos. 8 and 9 not moved.]
The Earl of Longford The Earl of Longford moved Amendment No. 10:
Page 2, line 27, at end insert ("suitable for the offender and shall be—").
The noble Earl said: My Lords, I should say at once that I attach great importance to this amendment. I know that the House is in a state of rush and bustle, but I hope that noble Lords will calm themselves for a moment to consider the amendment.
The amendment seeks to ensure that, when a custodial sentence is passed, it should be "suitable for the offender". Those words themselves sound suitable and innocuous. They come from Clause 5(2). There it is laid down that:
"where a court passes a community sentence … [it] shall be such as in the opinion of the court is … the most suitable for the offender"
Those are the best words that I can offer. It does not mean that no better words could possibly be provided perhaps at the next stage.
The main purpose of my amendment, if not quite the only purpose, is to make sure that the principle of rehabilitation of offenders—people do not like that word, so I shall say the principle of reformation of prisoners—is included in the Bill and shall govern our sentencing for years to come.
In a book published last year the former Archbishop of Canterbury, the noble Lord, Lord Runcie, referred to his sorrow over what he called the current rejection of the rehabilitative ideal. I think we should pause for a moment and ask ourselves why someone like the noble Lord, Lord Runcie, is able to say that now the idea of rehabilitation is apparently rejected. There is no doubt that the rehabilitative idea—the idea of reforming prisoners as part of the punishment—has been battered about. It has had a good deal of knocking about from various quarters in recent years—some of them quite enlightened quarters, some not. There is much wider scepticism than when some of the older Members of this House first became involved in penal matters about the possibilities of using prison as a reformative agency. Very few people—one has said it many times over the years—if they wanted someone of whom they were fond to be reformed, would start by sending him to prison. So there is certainly a difficulty about reforming people in prison. Nevertheless, in my opinion, having lost sight of the idea of trying to reform people in prison, we are on a very bad and slippery slope.
In recently preparing a book (about which I shall not say any more now) I interviewed a number of experts. I shall quote three of them for the purpose of supporting my amendment. Peter Timms, now the Reverend Peter Timms, a former governor of Maidstone Prison, and David Evans, General Secretary of the Prison Officers' Association told me

1507
emphatically that the reformation of prisoners has not failed because it has never been tried. Judge Tumim, the much admired Chief Inspector of Prisons, argued to me, as he has argued so many times elsewhere, that all punishment in prison should be a form of training. That is another way of stating the same issue.
In my eyes it would be a tragedy if this Bill became law without the ideal of reform or rehabilitation of prisoners being re-affirmed, whether or not those particular words are the best available. As we all know, the Government are concentrating their emphasis on retribution under its new name of just deserts. As I have told this House before, I advocated retribution 30 years ago in a small book that I wrote about punishment at a time when it was far less fashionable than now. But I have never suggested that retribution should be the exclusive principle. I have always argued, as I do today, that it should be an element. It certainly does not rule out the place of reformation, as seems to be the case in the present Bill unless we modify it.
I cannot refrain from quoting something that the Reverend Peter Timms, the former governor of Maidstone Prison, said to me when he gave me his views:
"Fort the first time, the Prison Department now displays in every prison waiting-room and meeting room, a beautiful coloured plaque which says: Her Majesty's Prison Service serves the public by keeping in custody those committed by the courts. Our duty is to look after them with humanity and"
now come the words that I want to stress—
"to help them lead law-abiding and useful lives in custody and after release"—
in other words, much better lives than most of them were leading previously.
So the reformative ideal must be kept alive in the prison service. I submit that not to do so would be a betrayal of members of the prison service and all that they are trying to do among nearly 50,000 prisoners; and also a betrayal of many others working for the same ideal. There is no indication in this Bill at all of the desire of the community to reform prisoners. There is a good deal more that I could say about the principle of just deserts, which is full of ambiguities, but I hope that I have said enough. Either we treat this as a fundamental issue and make up our minds in favour of it, or we abandon for all time the idea of reforming prisoners, which has sustained the work of so many for so long. I beg to move.
Baroness Seear: My Lords, I support this amendment but perhaps for not quite the same reasons as the noble Earl put forward in moving it. I find it extremely difficult to believe that prison is a place in which anybody can be reformed in the general meaning of the word reform. If we wanted to reform ourselves or anybody else, the last place that we would choose would be a prison. However, there are some exceptions to that general statement. The first is the kind of activity which goes on in Grendon Prison, which all those who have had any contact with it will agree is most impressive. If there were more prisons like Grendon, with arrangements for women as well as for men, it would be a very realistic step in the direction in which the noble Earl wants to go.
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More than that, I want once again to draw your Lordships' attention to what I understand goes on in Germany where, since the changes made in 1975, there are two primary purposes in sentencing: security; that is, the protection of the public, which must be a primary purpose of prison; and training. It does not make sense that the time people spend in prison should be totally wasted, as it is today. We must bring our minds round to finding ways of real training—not the marginal training that goes on at present which is unrelated to the prospect of employment, but proper training done by people who are properly qualified to train. It must be done in conjunction with employers who see the possibility of using the people who have had that training and so ensure that there is a real possibility of work and earnings for people leaving prison. In my view that is the nearest that we are likely to come to any effective practical reform inside prisons. Surely we should remind ourselves of that and, in putting this clause into the Bill, look again at what could be done.
Very interesting work is already starting. For instance, Pentonville has such a scheme in operation with collaboration from employers and skilled people going into prisons to do the training. Training, therefore, is not just done as an ancillary job by people when they have a little time to spare; it is a real, major objective. It seems to me that that is the kind of consideration for the prisoners and their rehabilitation which means that when they are released they can operate as citizens among other citizens.
Lord Richard: My Lords, I support the thrust of my noble friend's amendment. I am not sure that the wording of the amendment and its proposed position in the Bill are totally apt in order to achieve the purpose that he intends. The aim of the amendment is to reiterate in the Bill that part of the objectives of the criminal justice system and of imprisonment is reformation, retraining and rehabilitation. I believe that the Government may be able to accept the principle at this stage and thereafter consider the most appropriate position in the Bill for some such statement to be made. I support my noble friend's main proposition that the Bill is silent on the point and should not remain so.
Lord Hutchinson of Lullington: My Lords, one would like to support what is an interesting amendment. Does the noble Earl who moved it envisage the court deciding in each case the suitability of the disposal in relation to the person? In other words, will the court say, "This defendant should go to this prison and not to that prison. This person should go to Grendon and not elsewhere. This is a sex offender; he should not go to this prison where everyone who is a sex offender receives the most terrible treatment", and so on. Is that what is envisaged in the amendment? If so, it introduces a concept that I would support. For a long time it has seemed to me that one of the difficulties about sentencing is that the sentencer is ignorant of the different institutions and what goes on in them. He does not spend nearly enough time investigating and visiting those institutions. At present the sentencer is

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not able to send someone to one institution rather than another. If that were possible, it might be one of the greatest reforms in this country. I am not sure whether or not the amendment intends that.
Baroness Phillips: My Lords, it is not clear to me who will make the decision about an institution's suitability for the offender. Perhaps I may say to the noble Lord, Lord Hutchinson, that when I was a magistrate—unless the situation has changed—one visited all the prisons. It was part of one's training. I have been in a number of prisons, not, I hasten to say, as a prisoner—although no doubt, had I been, I would have had a visit from a number of noble Lords to make me feel better.
However, I envisage that the amendment could cause complications in court. I am not against the amendment, but those who support it should spell out more clearly what is intended. Who will make the decision? And how will they make it?
5.15 p.m.
Earl Ferrers: My Lords, the noble Earl, Lord Longford, thinks that there should be a further criterion for the imposition of a custodial sentence. It is that the sentence should be "suitable for the offender". The noble Earl considers that to be fundamental and argues that if we do not accept it we abandon reform of prisons for all time. That, I believe, is going slightly over the top. I cannot agree. Prison is a place to which some people have to go in order to protect the public; it is a mark of the gravity of the offence. One has to have prisons. Of course, one has to do what one can to rehabilitate and to help offenders. But to say that if we do not have this measure in the Bill, we abandon reform of prisons for all time is not right. It disregards totally the tremendous work that has been going on for the past 10 or 15 years to try to rehabilitate prisoners.
The noble Baroness says that if one wishes to reform oneself or anyone else, the last place one would go to is prison. I agree with that. I also agree that it is the last place to which one wishes to go whether or not one wants to be reformed. She referred to the fact that much rehabilitation is going on. Among other places the noble Baroness referred to Grendon. It is clear that a great deal is going on; and more has to be done. I have no doubt that more will be done.
The noble Lord, Lord Richard, said that there should be a statement in the Bill on rehabilitation. I do not believe that that is right. I do not believe that Bills are the place for statements. Rehabilitation is an important part of the treatment of prisoners. Clauses 1 and 2 of the Bill are concerned with the criteria that courts should use in determining whether custody is appropriate and how long a custodial sentence should be. We think that the fairest approach is to consider the seriousness of the offence. The Bill is about going to prison or not going to prison. How the offender is treated when he is in prison is, I think rightly, left outside the Bill. The amendment confuses the two.
In Clauses 1 to 3, we have set out a new scheme for imposing custodial sentences. Clause 1 deals with
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whether it should be imposed; Clause 2 deals with its length; and Clause 3 sets out certain procedural requirements. The main criterion in Clauses 1 and 2 is the seriousness of the offence. If the offence is serious enough, the offender may be given a custodial sentence. Its length will have to be commensurate with the seriousness of the offence. That principle is logical, simple and fair. A second criterion, for violent and sexual offenders, is that a custodial sentence is necessary to protect the public from serious harm from them. For reasons of public protection, the sentence in such a case may be longer than the seriousness of the offence would warrant.
I believe it is right that custodial sentencing should focus on the offence rather than the offender. A prison sentence is a punishment for a serious crime and is necessary in some cases to protect the public. We would be getting it the wrong way round if we required the courts to take suitability for the offender as a primary consideration before they impose a custodial sentence. It can at best be only a secondary consideration. There is one exception. Clause 3(3) requires the court to consider the likely effect of a custodial sentence on a mentally disordered offender. But that is a special case.
I do not see how the courts are to decide whether or not a custodial sentence is suitable for an offender. It is not clear what factors they would have to take into account before deciding whether a custodial sentence was suitable. The offender's counsel could well plead a number of factors which he thinks might persuade the court that a custodial sentence would be unsuitable for his client. For example, the offender may be very ill or may have a number of dependants who would be unable to support themselves if the offender was sent to prison and lost his job as a result.
But that amounts to no more than the plea of mitigation entered by defence counsel after conviction and before sentence. The Bill expressly provides in Clauses 3 and 26 for a court to take into account any mitigating factors before passing sentence. If the court remains of the view that a prison sentence is warranted, despite the mitigating factors, but believes that there are exceptional circumstances to justify its suspension, then it may suspend it under Clause 4. If an offender's suitability for a custodial sentence is to be considered, this seems to me the right way to deal with it. That way we can preserve the principle that the sentence should be related to the offence while still making allowance for the offender's circumstances.
The question of suitability comes to the fore when a court is considering imposing a community sentence. Clause 5 gives it a choice of six different community orders. Because there is a choice, we think that the court should have to ask itself which particular order is most suitable for the offender, as provided in Clause 5(2) (a). That is to ensure that offenders are not subjected to community penalties which are quite inappropriate for them. But a custodial sentence is a custodial sentence. The court is not required to choose between different types of prison sentence; indeed, it is not able to do so.
I suggest that in that respect the noble Earl's amendment will not improve the Bill. We have gone as

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far as we can in tailoring provisions according to offenders' requirements. One cannot tailor a custody sentence. But once an offender is in custody one can do all that one can to rehabilitate him.
The Earl of Longford: My Lords, the noble Earl does a great job on behalf of the Government and the House in handling this trying Bill with the utmost good humour. He cannot expect to be equally convincing in reply to every amendment. I thought that he was totally unconvincing in reply to mine but that is merely a matter of opinion.
As my noble friend Lord Richard and other noble Lords are not happy about the wording of the amendment I beg leave to withdraw it. However, I have every intention of tabling a similar, perhaps better phrased, amendment at the next stage of the Bill.
Amendment, by leave, withdrawn.
The Deputy Speaker (The Earl of Listowel): My Lords, if Amendment No. 11 is agreed to I cannot call Amendment No. 12.
Earl Ferrers Earl Ferrers moved Amendment No. 11:
Page 2, line 32, leave out ("in the case of a sentence of imprisonment for") and insert ("where the offence is").
The noble Earl said: My Lords, the amendment was spoken to with Amendment No. 1. I beg to move.
Lord Ackner: My Lords, I wish to speak to Amendment No. 12 which is pure plagiarism on my part. Thy pride of parentage goes entirely to the noble Lord, Lord Renton. I say that, not to deflect the inevitable compliments that will come from a certain source—they are always gratefully received—but in order to tell your Lordships how the amendment has come about.
When reading Hansard of 26th March I noted that Clause 2 had been heavily debated. Many observations were made about the undesirability of restricting protection of the public from serious harm merely to offences of violence or of a sexual character. As one might expect, the wise words of moderation came from the noble Lord, Lord Renton. He said:
"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". [Official Report, 26/3/91; col. 1020.]
The noble Lord was proposing exactly what I have tabled in the amendment; namely, to leave out the words,
"in the case of a sentence of imprisonment for a violent or sexual offence".
Those suggestions fell on the receptive ears of the noble Earl, Lord Ferrers. He said:
"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".—[Official Report, 26/3/91; col. 1020]
Later in the debate, the noble Lord, Lord Windlesham, pressed his amendment. At col. 1022 the
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noble Earl repeated that he would like to consider the suggestion made by the noble Lord, Lord Renton. That consideration did not give rise to the amendment which was contemplated; therefore, I have tabled it. It makes good sense. If the public require protection from serious harm by an offender that is all one needs to say. To select various offences does not assist. A consistent and continuous domestic burglary is about as worrying a domestic activity as one can imagine, short of actually being injured. Serious harm may be threatened on every occasion. If the person does not lock himself or herself in the room he or she may well be badly beaten up. If the person is not present in the room, he or she may only thus escape serious harm. That is one example.
Serious harm to the public is characterised by a person who insists on drug peddling. It is difficult to imagine any worse harm. That probably accounts for the fact that the offence is dealt with so savagely in some countries. Accordingly, it occurred to me that it was desirable to leave open rather than to categorise the position. Then the courts could consider whether the case was one in which it was necessary to protect the public from serious harm by imposing a sentence longer than that commensurate with the offence. For those reasons I tabled Amendment No. 12.
Lord Renton: My Lords, it is an unfortunate and somewhat ironical situation that the necessary amendment to which the noble and learned Lord, Lord Ackner, has spoken can be accepted only if the House does not accept Amendment No. 11 standing in the name of my noble friend Lord Ferrers. Although my noble friend's amendment is desirable it does not greatly alter the effect of the Bill. Therefore we are sacrificing an important amendment in order to achieve a less important amendment.
I am grateful to the noble and learned Lord, Lord Ackner, for his plagiarism. I am thankful that he took up the cudgel where I put it down. I am also grateful for the further examples he gave of menace to the public. In effect the courts would be entitled to ignore them even if they believed that the public needed to be protected from the further commission of such offences.
The Bill does not mention, for example, aiding and abetting violent or sexual offences. That can occur even in the case of sexual offences. If someone is brought before the court for aiding and abetting an offence of rape, and if that person had previously been found guilty of rape, it is shocking that the need to protect the public from serious harm appears to be ignored. Perhaps I may risk a minor repetition and mention the case of the fraudster. I refer to the man who obtains goods or money on credit or as a result of a pretence which admits him into the homes of a series of old ladies living alone. He may pretend to be a gas inspector or a public official. I remember a case very well in which a man went round the villages calling on old people living alone and saying that he could obtain for them much better spectacles than were available at that time under the National Health Service, if they would pay him a deposit of £1. Of course, they never saw him again but eventually the law caught up with him. The sentence which the court

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gave was, as expressed by the learned chairman of the Quarter Sessions as it then was, one which was needed to protect the public.
Although I fully appreciate public anxiety about violent and sexual offences, to say that they are the only offences from which the public needs special protection is wrong in principle and, indeed, it seems to me, contrary to the basic objectives which the Government have set for themselves in the Bill.
I regret the position in which we find ourselves. I warmly support the stand taken by the noble and learned Lord, Lord Ackner. I hope that in view of the importance of this matter and the very strong arguments which have been used in regard to it both in Committee and today, my noble friend Lord Ferrers will think again about this matter.
There is one matter which I should disclose and confess. My noble friend Lord Ferrers was good enough to write to me. I believe that I received that letter early last week. He explained to me why he could not go along with the arguments which I had put forward. I failed to pass a copy of that letter to the noble and learned Lord, Lord Ackner, and for that I am very sorry. However, quite frankly, I do not believe that the letter from my noble friend Lord Ferrers would have convinced the noble and learned Lord any more than it convinced me.
5.30 p.m.
Lord Hutchinson of Lullington: My Lords, I hope that the Government will resist this amendment. It seems to me that we have heard some weasel words from the noble and learned Lord who proposed the amendment when he spoke of drafting amendments and not making very much difference to the Bill and so on. I may be wrong but it seems to me that this amendment suggests that the topping-up procedure should be applicable right across the board for all offences in all courts. That is what it comes to.
In my view it is an attempt to undermine the principle which is laid down in the Bill; namely, that the sentencing of people should be commensurate with the seriousness of the offence. This amendment enables all courts to sentence people in a manner which is not commensurate with the seriousness of the offence. In fact, a longer sentence than is commensurate with the seriousness of the offence will be permitted across the board whenever a court believes it necessary to protect the public from serious harm by the offender.
The noble and learned Lord gave examples. No doubt any Member of this House could give many examples of their view of offences against which the public requires protection. Again, one returns to the philosophy behind the Bill. Courts should no longer be allowed to sentence people on the subjective judgment of what offenders will do in the future. As regards sentencing, their powers should be limited to the offence before the court and its seriousness.
The noble and learned Lord quoted from our debates which took place in Committee. At that time an amendment was tabled to get rid of this subsection altogether. It seems to me to be an extremely sensible
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approach that the principle that the offence should always be commensurate with the seriousness of the offence should be applied, quite simply, right across the board. However, the Government have chosen quite wrongly two forms of offence which enable the principle to be breached. Of course, I should support any amendment which did away with that altogether. However, to try to extend it to all offences seems to me yet another attempt by the judiciary to undermine the philosophy of the Bill.
Lord Harris of Greenwich: My Lords, I understand the view of my noble friend Lord Hutchinson of Lullington. Like him I believe it is a great pity that we agreed to the subsection, because that is the mischief. The mischief is isolating two categories of offence—namely, sexual and violent offences—and saying that the courts should have the power to deal with people convicted of such offences in a wholly different form from that which would apply in any other type of criminal case. That is manifestly absurd.
As I indicated on the last occasion on which we debated this matter, it is the old and foolish Brittan parole policy, a policy described as flawed in principle by the committee of which the noble Lord, Lord Carlisle of Bucklow, was chairman. That is what we are now being asked to agree to in this Bill as currently drafted.
I find it impossible to understand—and on this I agree with the noble Lord, Lord Renton—why there is reference to sex and violence. They are not, in all cases, the categories of offence which disturb the public most. Having been chairman of the Parole Board, I saw many cases in categories other than sex and violence which would have caused far greater public disquiet. One example given by the noble Lord, Lord Renton, with which I agree, is systematic fraud against elderly people who basically lose all their property as a result of the behaviour of sophisticated fraudsters.
The other example is that given by the noble and learned Lord, Lord Ackner. It seems to me astonishing. The Government have applied themselves with great vigour to dealing with the problem of drug related offences. However, drug related offences are apparently in a different and more acceptable category than sexual and violent offences. That is a rather odd set of priorities for the Government. Perhaps the noble Earl will assist us on that specific point. Why did they make that decision? What are the grounds for saying that drug offences are less serious than sexual and violent offences? It seems to me that that whole approach in this part of the Bill has been ill thought out. Even at this late stage, I hope that the Government will tell us that they will look again at this matter.
Lord Mishcon: My Lords, perhaps I may be allowed to try to achieve a sense of balance in the discussion. We are not dealing with the adequacy of penalties which are contained in a criminal statute. Were we dealing with that, then I should be able to understand many of the speeches which have been made already. I should understand the arguments if we were saying in regard to drugs that the penalties

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imposed by statute are not commensurate with the seriousness of the offence and that we should look at the penalties in regard to that.
Here we are dealing with the making of an exception in the case of certain types of offences in order that the courts may impose, by way of a penalty, a top up on the penalty which is commensurate with the offence.
Looking at that situation, I understand the logic of saying as regards drug offences and matters of that kind—and the House is united in deploring such offences which some of us almost equate with murder —that the penalties are not sufficiently substantial and that we should allow the courts a great deal more leeway to impose heavy penalties because the penalties which exist at present are not commensurate with the offence itself.
Lord Renton: My Lords, I am grateful to the noble Lord for giving way. Does he realise that by specifying violent and sexual offences we are removing the obligation on the courts to take note, apply and aggravate the sentence in the case of other offences? Therefore, far from adding to the powers of the courts, we are taking away from them.
Lord Mishcon: My Lords, I immediately follow that point and apologise to the noble Lord if I have not made myself clear. I repeat, if Parliament is taking responsibility for the adequacy of penalties in regard to certain types of crime—be it the burglary of which the noble Lord, Lord Renton, spoke or the drug offences mentioned by the noble Lord, Lord Harris—then it is a matter for Parliament to look at the penalties imposed by the criminal statute in relation to those offences.
If the noble Lord is saying that the courts should be given an extra power beyond that of imposing a penalty commensurate with the offence, then if I may say so the noble Lord is digging a hole in the principle that the courts, with the guidance and indeed the mandate of Parliament, ought to be dealing with the offences before them. They should be looking at the penalties imposed for those offences and making the penalties commensurate with them.
As I see it there is a complete argument—as was said by the noble Lords, Lord Harris and Lord Hutchinson—for saying that this provision has no place in the Bill if one is dealing with what the courts ought to do in imposing penalties. There would be an argument—I repeat for a third time and for that reason I hope not too annoyingly—for saying that the penalties do not enable the court to impose adequate punishment for the crime before it. There is no room for an exception to that. The only logic is to ensure that the court has proper powers.
The example given by the noble Lord, Lord Renton, is interesting because it illustrates my point. The noble Lord said that we should look at the case of somebody charged and convicted with aiding and abetting a rape; and in fact the man had previously been convicted of rape. That was dealt with under Clause 1. It is one other offence that may be taken into account and that will decide whether or not he goes to
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prison. On the basis of the decision whether he goes to prison, the penalty will be there. In regard to rape the penalty is severe enough, as it should be.
I see no logic in including the subsection and no logic in amending it. It should not be there.
Lord Ackner: My Lords, with the leave of the House, as I cannot technically move my amendment, perhaps I may add a few remarks in reply.
Earl Ferrers: My Lords, if the noble and learned Lord intends to make his final speech perhaps he will permit me to make one or two observations on his amendment.
Lord Ackner: My Lords, I thought it was my last chance to speak.
5.45 p.m.
Earl Ferrers: My Lords, the noble and learned Lord will have the chance to make a longer speech after he hears what I intend to say.
The noble and learned Lord graciously conceded the fact that the parentage of the amendment was not his but that of my noble friend Lord Renton. That is quite right. At Committee stage I said that I would consider the point made by my noble friend. I did so and indeed wrote to him although my noble friend said that my reply did not convince him. I believe he implied that because it was so unconvincing he did not, or he forgot, to send it to the noble and learned Lord, Lord Ackner. Had the noble and learned Lord the advantage of reading the letter I wrote to my noble friend he would have been totally convinced, but my noble friend did not give him that opportunity.
The sentencing provisions in Part I of the Bill are intended to establish a clear set of guidelines for determining the right sentence in individual cases. The general rule which is reflected throughout the sentencing provisions is that the sentence which is imposed should be commensurate with the seriousness of the offence. That applies in Clauses 1 and 2 to custodial sentences, in Clauses 5 and 6 to community penalties and in Clause 16 to fines. It is a principle about which there is a great deal of agreement.
There is an exception to that general rule where an offender has been convicted of a violent or sexual offence and the court considers that there is a need to protect the public from serious harm. The amendment of the noble and learned Lord would remove from the clause the words,
"in the case of a sentence of imprisonment for a violent or sexual offence".
That would allow the courts to impose, for any kind of offence, a custodial sentence longer than was commensurate with the seriousness of the offence.
As I said I would, I considered the matter. I did not think that the amendment was either right or necessary. The distinction made in Clauses 1 and 2 of the Bill between violent and sexual offences, on the one hand, and property offences, on the other, is important. The noble Lord, Lord Hutchinson, was right to remind us of that. I join him in reminding both the noble and learned Lord and my noble friend Lord

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Renton that the reasoning behind it was clearly set out in the White Paper, Crime, Justice and Protecting the Public.
The noble Lord, Lord Harris, said that the provision was ill thought out. With the greatest respect, the provision was considered very carefully. It was included in the White Paper and met with general agreement. It has been generally welcomed. Of course, it is always possible to provide examples where one might prefer to see the provisions eased in this or that specific case.
Baroness Seear: My Lords, perhaps the noble Earl will give way so that I may ask whether I heard him correctly. Did he say that the distinction is between sexual and violent offences, on the one hand, and property, on the other? If so, it is surely not only property offences but many other offences we are discussing. We are speaking of drug offences, fraud, and so on, which are much more serious than just property offences.
Lord Renton: My Lords, if my noble friend will allow me perhaps I too may ask a question. What about violence to people's feelings such as is experienced in blackmail offences?
Earl Ferrers: My Lords, that may be so. However, there are ways of dealing with those offenders. My noble friend Lord Renton referred to aiding and abetting. That is covered by the Accessories and Abettors Act 1861, which we believe will effectively apply. He referred also to the systematic fraud of old people. Fraud is a serious offence. I accept that. Courts view that kind of offence more seriously where the victim is elderly and the offence is part of a sustained pattern of criminal activity. Those would be aggravating factors and would be taken account of in the sentencing.
The noble Lord, Lord Harris of Greenwich, referred to drug offences and said that they were terrible. Of course they are. One of the reasons people object so strongly to drugs is that very often they lead to violent or sexual offences. I would not underestimate for one moment the stress that those offences cause, whether related to property, burglary or fraud. However, the harm caused by those types of offence is different to the harm caused by offences against the person. They are altogether of a different order. A small number of violent or sexual offenders become progressively more dangerous and therefore are a real risk to the public. That is the kind of offender for whom the powers have been provided in Clause 1(2) (b) and Clause 2(2) (b).
It would confuse the courts if the Bill allowed a custodial sentence to be imposed in order to protect the public under Clause 1 only if the offence was sexual or violent, while under Clause 2 a longer sentence could be imposed in order to protect the public for any kind of offence. This is a fundamental part of the Bill. The provision was considered in great detail before it was introduced into the Bill. It was included in a White Paper which was discussed in
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public by a great many people. On the whole it was considered that the two exceptions were fairly important. I hope that noble Lords will agree.
Lord Renton: My Lords, can my noble friend clarify the matter? Does he accept that by naming violent and sexual offences only he is not giving power to the courts, rather he is taking it away? The courts have power at present as regards all kinds of serious offence.
Earl Ferrers: My Lords, as my noble friend knows only too well, the onus of the Bill is to try to keep people out of prison for the reasons we have given. We have considered that there are certain circumstances in which that overriding power should not be changed. If my noble friend says that certain powers which the courts now have are being removed, then one is bound to do that if one changes the philosophy of sentencing.
Baroness Phillips: My Lords, in defence of the Government I must ask them why they have included these issues. I have said many times over the years that the word "petty" is now used in relation to both violent and sexual crimes. There is no such thing as a petty violent crime or a petty sex crime. I do not think there is even such an offence as a petty crime. These matters have now become so casual and easily accepted. My local paper is filled with details of the most appalling crimes, including crimes of violence against elderly people. An old man was robbed and the three attackers kicked him to death in order to steal a pound. That was a violent crime. These matters are becoming too readily accepted. We are becoming more like Chicago by the day.
Very often in your Lordships' House crimes are referred to as "petty". The Government have underlined two particular groups which no one can call petty. In my textbook sexual offences include rape—is that petty? My list also includes incest, indecent assault and indecency with children. Are these petty offences? There are also unnatural offences and indecent exposure. Are they petty offences?
Lord Harris of Greenwich: My Lords, yes. Indecent exposure is petty.
Baroness Phillips: My Lords, I have always wondered about certain of your Lordships and now I am certain.
Baroness Hollis of Heigham: My Lords, what did my noble friend wonder?
Lord Harris of Greenwich: My Lords, does the noble Baroness regard an offence of indecent exposure as being self-evidently more serious than drug trafficking?
Lord Mishcon: My Lords, it is self-evident!
Baroness Phillips: My Lords, my noble friend has taken the words from my mouth. The noble Lord knows only too well that I am talking about a minor court of law—namely, the magistrates' court, and sentencers who do not seem to know very much, according to noble Lords. According to the noble Lord, Lord Hutchinson, they have never been to a

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prison No one has mentioned the fact that drugs lead to offences in the violence and sex groups. That outcome is frequently found in court cases. So these two issues are not unrelated.
The way we are arguing is exactly the way in which the courts argue. People have said to me: "I knew what the offence was until I went to court, but when I had listened to counsel for an hour I did not know what the offence was". These offences are very clear. The Government are involved in a belt and braces operation.
Baroness Hollis of Heigham: My Lords, trousers as well.
Baroness Phillips: My Lords, trousers as well. These provisions should remain in the Bill. I cannot see that it will make any difference leaving them in.
Lord Mishcon: My Lords, with the leave of the House and before the noble Earl rises, perhaps I can persuade the Government that it may be a very good thing, before we reach another stage of the Bill, for them to reconsider the wisdom of this paragraph, bearing in mind that we are dealing with a situation where a custodial sentence is to be given. The clause states that as regards a custodial sentence it shall be in accordance with the seriousness of the crime. All the matters about which Members of your Lordships' House have expressed concern come within that umbrella of seriousness. Protecting the public will be in the judge's mind as he sentences having regard to the seriousness of the offence. Why do we need any exceptions to that rule? Why do we need any top-up provisions? As I said before, if we feel that our penalties are not sufficient under the statutes then let us alter them. I beg the Government to consider again the wisdom of including this paragraph in the Bill at all.
Lord Ackner: My Lords, with the leave of the House, perhaps I may reply. As regards what has been said by the noble Lord, Lord Renton, and more recently by the noble Lord, Lord Mishcon, my understanding is that the ability to impose a sentence which is not commensurate with the crime is extremely limited. As I recall the law as it stands at present, that can be done only by imposing a life sentence where the offence permits that. That indeterminate sentence can only be imposed with very limited justification; for instance, if there is a considerable danger that a person may cause death or serious injury.
I weary the House with anecdotes, but perhaps I may give an example of an offence with which I had to deal in Carmarthen. A boy aged 17 years stabbed with a penknife two young girls. The injury which he did them was pretty superficial. It was a nasty shock and one or two stitches were required, but the girls recovered. The medical report said that the boy was going through a very difficult period of puberty and as a result le was likely to be violent from time to time. The doctor could not say how long that situation would last. Therefore it was quite impossible to give a determinate sentence of imprisonment of two years or three years or whatever it might be, with the certain knowledge that by the time he was released he would
1520
be cured. The alternative was not to give him too long a term of imprisonment in order to be on the safe side with the result that he would have been cured but still inside. I imposed a life sentence. The case was taken to the Court of Appeal and the decision was upheld.
That is one of the very limited categories where one can exceed the seriousness of the offence itself. The Government's provision has not been sought by the judiciary. The Government are extending those powers but only as regards isolated categories. Therefore, I believe that the noble Lord, Lord Renton, is right and that powers of the kind which I have indicated are being removed. I have referred to violence, and that type of offence will be covered. However, other cases may not be covered.
I did not understand quite what the noble Lord, Lord Hutchinson of Lullington, meant when he talked about "weasel words". I hope that when he reads Hansard he will realise that his remark was totally unjustified. At no stage in my address to the House have I done other than make it perfectly clear that I wanted to widen this clause to include all offences which would, in the words of the clause, involve a necessary protection to the public from serious harm from the offender.
I seek to remove the words as set out in my amendment because if we are landed with this clause—the judiciary has not sought it, nor have I risen at any stage to support it—let us at least have an intelligible clause. I have already criticised the Government by saying that their major amendments, with which we dealt in the first debate today and which had been heralded so triumphantly, had stood out a mile to anyone concerned with sentencing. They were essential if sentencing was not to be in a total muddle. My intervention here on a much lesser range is to stop this sort of muddle.
The noble Lord, Lord Harris, is absolutely right. There has been an isolation of two categories of offence. I agree with the noble Lord, Lord Mishcon, to this extent. If it was said that the maximum period of imprisonment that could be imposed was inadequate, one would need exceptions. But no one has suggested that the maximum periods of imprisonment for these two isolated categories are inadequate. That has not been the basis of focusing upon them. I believe—and I suppose it is an uncharitable belief—that this provision is to some extent stimulated by the Government's reaction to the amendment which was passed in this House on abolition of the mandatory sentence of life in murder cases. I believe that this is symptomatic of the Government's near paranoiac anxiety that they will be thought of as having gone soft. Some may say that they have gone soft.
I have indicated how, in regard to the multiple offences, that criticism could be very justifiably made. This provision seeks to redress the balance by saying, "Look how tough we are. We have provided even greater protection for the public". If that is the philosophy, let the protection be consistent; let the drafting be sensible. As it stands at the moment, it does not pass those tests.
6 p.m.
Earl Ferrers: My Lords, with the leave of the House, in order that we keep ourselves relatively in order, it would be appropriate for me to make one or two remarks. I really took up my share of time by speaking earlier. Technically, the debate is on my amendment. If my amendment were to be accepted, the amendment of the noble and learned Lord, Lord Ackner, would be pre-empted. I understand the anxieties that have been expressed from various quarters of the House. After all, we are all anxious to try and protect the public as best we can.
Throughout the debate there has been the understanding that there should be these two exceptions. We have done that because we set it out in a White Paper. We set it out in the White Paper because our philosophy was that we did not want people to go to prison and get worse unless there were very remarkable reasons for it. As my right honourable friend Mr. Patten said, it is not a question of emptying the prisons; it is a question of not putting into prison those people who would be more badly affected by prison were they to be sent there. Against that we have these exceptions for violent and sexual offences.
I know that your Lordships can argue that other crimes are also awful and should also be considered. However, our proposal in the White Paper was considered throughout the whole of the criminal justice world and on the whole was found to be acceptable. We have put forward our amendments. If we were to accept the amendment of the noble and learned Lord, Lord Ackner, we would be cutting across the general philosophy of what was in the White Paper and what has on the whole been accepted. I understand that not everyone would agree with that, but the White Paper was one of the cardinal tenets upon which the Criminal Justice Bill was brought forward in the first place. I hope therefore that the House will accept my amendment rather than the amendment of the noble and learned Lord.
On Question, amendment agreed to.
[Amendments Nos. 12 and 13 not moved.]
Earl Ferrers Earl Ferrers moved Amendments Nos. 14 and 15:
Page 2, line 36, leave out ("sentence of imprisonment") and insert ("custodial sentence").
Page 2, line 43, at end insert:
("(4) A custodial sentence for an indeterminate period shall be regarded for the purposes of subsections (2) and (3) above as a custodial sentence for a term longer than any actual term.").
The noble Earl said: My Lords, these amendments were spoken to with Amendment No. 1. I beg to move.
On Question, amendments agreed to.
Clause 3 [Procedural requirements for custodial sentences]:
Earl Ferrers Earl Ferrers moved Amendments Nos. 16 to 18:
Page 2, line 44, at beginning insert ("Subject to subsection (1A) below").
Page 2, line 46, at end insert:
("(1A) Where the offence or any other offence associated with it is triable only on indictment, subsection (1) above does
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not apply if, in the circumstances of the case, the court is of the opinion that it is unnecessary to obtain a pre-sentence report.").
Page 3, line 1, leave out ("that subsection") and insert ("subsection (2) of section 1 or 2 above").
The noble Earl said: My Lords, these amendments were also spoken to with Amendment No. 1. I beg to move.
On Question, amendments agreed to.
Lord Harris of Greenwich Lord Harris of Greenwich moved Amendment No. 19:
Page 3, line 12, leave out from ("shall") to ("the") in line 16 and insert ("obtain and consider a medical opinion on his mental condition and consider").
The noble Lord said: My Lords, in moving this amendment I shall speak at the same time to the grouped amendments in the names of the noble Baroness, Lady Faithfull, and the noble Lord, Lord Richard. We are discussing here a matter of high importance in our criminal justice system; namely, the number of mentally ill people who are now in prison. At the time of the publication of the report by the Chief Inspector of Prisons the present Home Secretary made his position clear when he said, in a statement to accompany the chief inspector's report, that in his view mentally ill people should be not in prison but in a mental hospital. Therefore there is a common thread of agreement on this point.
What is the scale and difficulty? The only recent information we have arises from the report of Professor John Gunn of the Institute of Psychiatry who recently prepared a report for the Home Office. I find it mildly puzzling that the report has not been made available to us. Nevertheless parts of it have been leaked in the appropriate fashion, which is now the way in which public business tends to be conducted. We learn that, of this survey of 5 per cent. of the sentenced population in prison serving six months or more, one in five were found to have some degree of mental disturbance. If the figures set out in the report were carried through to the whole prison population we would be talking about somewhere in the region of 9,000 mentally disturbed people, of whom 1,300 would require treatment in hospital.
I should like to deal with some of the consequences of holding mentally ill people in prison. We have reviewed these matters, as the noble Earl, Lord Ferrers, will recall, on a number of recent occasions. There was the case of Mr. Delroy McKnight, a prisoner at Wandsworth, who killed himself by breaking glass and sawing it into his neck. He was a diagnosed schizophrenic with suicidal tendencies. An inquest found that he had died through lack of care. We then had the case of Mr. Kenneth Broadbent, a diagnosed paranoid schizophrenic with a history of suicide attempts, who hanged himself at Brixton while on remand. I should point out that his offence was failing to pay for a £10 meal.
There was also the case of Mr. David Jones. He also had a history of psychiatric illness. He was the butt of bullying by other inmates. He hanged himself at Oxford prison. Another such case was that of Mr. Germaine Alexander. He was a man with a long record of mental illness. He had an attack of hypermania, but there was no one medically qualified

1523
to treat him. He was put in a strip cell at Brixton and died during the night. There was also the case we discussed recently in Question Time of Mr. Edwin Robinson, a paranoid psychotic who hanged himself at Brixton last November.
I could continue to give the House a whole list of names of other tragic people who have died in prison in circumstances such as those I have outlined. As we all know, they occur with dreadful regularity in our prisons. However, on each occasion that the matter is raised in Parliament, Members of the Government, either in this House or in the other place, express—undoubtedly very sincerely—their deep regret. But, unhappily, as they do so, we all know perfectly well that within another few weeks we shall be reading reports of precisely the same kind of occurrence in one of our prisons.
The issue before us this evening is whether Parliament is now prepared to insist on taking action which will, for once, start dealing with this truly deplorable situation. The amendments before us range over a fairly significant area. The first would require the courts to obtain a "medical opinion" which could be oral—it need not necessarily be a written report—before sentencing a mentally disordered person to custody. The arguments for the amendment are closely linked to those for the "duty psychiatrist scheme", with which I now propose to deal.
Amendment No. 20, the most significant of this group of amendments tabled in my name, that of the noble Baroness, Lady Faithfull, and that of the noble Lord, Lard Richard, is designed to put on Ministers a duty to establish such schemes. It requires the Home Secretary to make regulations and establish duty psychiatrist schemes in magistrates' courts. The schemes would enable both accused defendants and convicted offenders to be examined by a psychiatrist on court premises.
The Government tell us that they accept the desirability of establishing duty psychiatrist schemes; indeed, they advocated the establishment of such schemes in a Home Office circular which was issued last year. However, they have resisted including in the Bill any statutory duty of the kind contained in the amendment on the grounds that it is not practical to establish such schemes everywhere at present.
The amendment is drafted in such a way as to meet that particular concern. It would allow Ministers to establish such schemes on an area-by-area basis. There are many precedents in this respect. The first and most obvious is the development of community service orders which were included in the Criminal Justice Act 1972. Initially, the then Home Secretary, Robert Carr—now the noble Lord, Lord Carr of Hadley—established six experimental areas for the purpose. Minister; then extended the scheme to the rest of the country, by order, in the following years. So far as I am aware, there were no administrative problems. I was involved in extending the scheme to the rest of the country when I was working in the Home Office. I can recall no particular difficulties. However, before extending the scheme to a particular area of the country, we had to be satisfied that there were
1524
adequate resources available. When we were so satisfied, we extended the area to be covered by the community service scheme.
Secondly, there is the question of statutory time limits on time awaiting trial introduced by the Prosecution of Offenders Act 1985. Again, those have been extended on an area-by-area basis by means of statutory instruments. Thirdly, there was the introduction in the Criminal Justice Act 1988 of the power for the courts to remand offenders for up to 28 days at a time. The legislation was framed in a way that enabled the Home Secretary to extend this approach on an area-by-area basis. Therefore, it cannot be argued that there are no precedents for that particular approach; indeed, there are already three of them.
As I have indicated, the circular which was issued last September by the Home Office commended duty psychiatrist schemes. In fact, it referred to a number of them. For example, it referred to the schemes at Bow Street, at Great Marlborough Street, at Horseferry Road and at Peterborough. It has to be said, with regret, that the Peterborough scheme has already folded. This is what the Home Office said about the schemes in the circular:
"These enable the courts to receive speedy medical advice and to ensure that, where appropriate, arrangements can be made quickly to admit a mentally disordered person to hospital, for example as a condition of bail or, with the agreement of the hospital managers, under Section 35 of the Mental Health Act 1983 following conviction".
As I said, a number of these schemes have already been established. Moreover, research papers by the two psychiatrists at Clerkenwell, Dr. David James and Dr. Lyle Hamilton, show that that has led to increased use of the Mental Health Act when the court imposes sentence, and the rapid acceleration of the time taken to assess defendants and arrange a suitable referral to hospital if it is considered necessary. Those two doctors, whom I had the fortune to meet last week when I visited Clerkenwell, found that a sample of people remanded in custody for psychiatric assessment had to wait a mean time of 33.7 days from arrest to appearance in court for the necessary psychiatric report. The mean time from arrest to admission to hospital was 50.6 days.
Let us now contrast those figures with figures from Clerkenwell where the duty psychiatrist scheme is now in operation. The equivalent figures were 5.4 days compared with 33.7 days, and 8.7 days compared with 50.6 days. We must bear in mind where these people are being held. They are being held for such periods in a grossly overcrowded prison hospital in Brixton in conditions which were described as wholly unacceptable by the Chief Inspector of Prisons as recently as the end of last year.
In fact, there has been a dramatic improvement in this particular magistrates' court in London in terms of the disposal of such cases. The two doctors who produced papers on the matter, which I am sure are available to the Home Office, indicated that the number of hospital orders at Clerkenwell increased fourfold after the introduction of the scheme. Dr. James and Dr. Hamilton estimated that the provision of assessment facilities to the court, and the

1525
satisfactory referral of assessed defendants from court at a rate of approximately two a week, produced a potential saving to the prison department of about £200,000 a year. That applies to just one magistrates' court in London. That is the saving made as a result of not having to send people to the grossly overcrowded and unacceptable conditions that exist in Brixton and some other prisons.
As I have said, I went to Clerkenwell last week to see how the scheme was working. I was impressed. The two doctors attend every Wednesday. If a defendant has appeared in court the previous Friday, he is produced again on the Wednesday and is examined by the two doctors. The conditions in which they work are unusual. They work in the kitchen of Clerkenwell magistrates' court. The conditions are crowded and wholly unsatisfactory, but the doctors work with immense enthusiasm. They perform a major public service by diverting the people in question from the criminal justice system.
When the doctors examine a patient or a defendant—call him what we will—they have a choice. The first is whether to use Part II of the Mental Health Act to make what I would describe as a civil order. In such cases the defendant has, or is alleged to have, committed less serious offences. The doctors surprised me by telling me that in every case—so far as I recall there were no exceptions—they managed, with the agreement of the CPS, with which they have cordial relations, to get those people into mental hospitals the same day. Imagine what would happen to those people if they were returned to the prison hospital at Brixton.
Secondly, in the more serious cases, the doctors use Part III of the Act, where it is intended to send a defendant to a named hospital within 28 days. There is another amendment which is being discussed with this group of amendments, as the Minister will realise. It aims at reducing that period from 28 days to seven days. The reason for that is that the doctors told me that a difficult situation arises when the named hospital will take the defendant only on the 27th or 28th day. That is not right. One of the men whose case I mentioned killed himself in Brixton prison. If the period had been seven days rather than 28 days he might well still be alive. Nevertheless, that is one of our proposals.
We are asking that schemes of the type in operation at Clerkenwell should be extended to the country as a whole, but that is to be done only when the resources are available. We are not asking for an immediate increase in public expenditure, or anything of that kind. The schemes are remarkably cost effective. The two doctors working at Clerkenwell are being paid on the basis of being expert witnesses. The total cost of the scheme at Clerkenwell is astonishingly low. There is far more likelihood of the schemes being introduced and extended if there is a duty on Ministers to take a close and direct interest in the extension of such schemes. I beg to move.
Lord Richard: My Lords, perhaps I may follow what the noble Lord, Lord Harris, has said. I too take the view that the establishment of the duty psychiatric
1526
schemes is probably the most important part of this series of amendments. The new clause which the noble Lord proposes, which we support, would require the Home Secretary to make regulations to establish duty psychiatric schemes in magistrates' courts. The Government have accepted the desirability of such schemes. They advocated their establishment in a circular which was issued to the courts last year. I echo the words with which the noble Lord almost sat down. We do not expect this provision to be implemented immediately. We accept that there are resource problems. On the other hand, the clause has been drafted in such a way that it can be introduced area by area and over a period of time.
If the Government accept that the duty psychiatric scheme should be adopted, the area-by-area approach would meet their principal objection to a statutory provision. However, the Home Office has now produced two extra objections in discussions with the representatives of the Parliamentary All-Party Penal Affairs Group. First, it says that there are insufficient resources available at present to finance the establishment of a duty psychiatric scheme at more than a few courts; and, secondly, that there is therefore no point in establishing a statutory duty which cannot be fulfilled nationally for several years.
The answer to the first of those points—that there are insufficient resources available—is that the existence of a statutory duty should help the Home Office press the Treasury for more resources for a scheme which I believe the Home Office and everyone else agree is desirable. As for the second point, it is not at all unusual for a statutory provision to be phased in area by area over several years. The most recent example is the Prosecution of Offences Act 1985 which provided for the introduction of statutory time limits on time awaiting trial. Those limits have been introduced area by area since then, but they still do not apply to the whole country. They apply everywhere except in London and parts of the South East.
The clause is designed deliberately to enable the Government to take account of their objections by saying that they accept that they cannot establish the scheme immediately; they should not therefore try to do it immediately; they should do it over a period of time.
The Home Office says that the scheme is desirable. The House might wish to ask itself whether such schemes are necessary. The background to the new clause—the noble Lord, Lord Harris, mentioned part of this—is, and must be, the growing concern at the apparent increase in the number of mentally disturbed people within the prison population. I do not want to weary the House with too many figures, but let me just give one or two. During the year 1989–90, nearly 17,000 prisoners were referred to psychiatrists. That is 38 per cent. more than in 1987–88. That is during a period when the prison population as a whole decreased slightly. Professor Gunn of the Institute of Psychiatry recently carried out a survey for the Home Office on a 5 per cent. sample of sentenced offenders serving six months' imprisonment or more. We are

1527
still waiting to see his report, but some of it may have emerged in a paper which he gave to the Mental Health Foundation in September 1990.
The sample that Professor Gunn investigated comprised 1,365 adult males, 404 male youths and 273 females. About one-fifth of that sample was found to have some degree of mental disturbance. If that proportion is true for the whole prison population (currently about 45,000) it would mean that over 9,000 prisoners can be said to be mentally disturbed, including over 1,300 who are in need of hospital care. We must take some steps to prevent such people ending up in our prisons. Prisons are the worst possible places for people with mental disorders, even when psychiatric services are provided, and they are not all that common. The benefits are offset by the poor physical conditions and the restricted regimes.
The noble Lord, Lord Harris, referred to the schemes as they have been operating at Bow Street, Marlborough Street, Clerkenwell and Horseferry Road magistrates' courts. I do not propose to go through those points in detail again. I merely reiterate what the effect of those schemes was in relation to mentally disordered people who appeared before those courts. A sample remanded in custody for psychiatric assessment before the schemes were set up had to wait, as the noble Lord said, 33.7 days from the time they were arrested until they appeared in court with the necessary psychiatric report. That is a long time. The mean time from arrest to getting into hospital, however, was 50.6 days. That is too long. On any view of the matter, those figures are outrageous. I use the word advisedly. For those who were examined in court under the Clerkenwell scheme, the 33.7 days came down to five. The time they waited, from arrest to admission into hospital, came down to 8.7 as opposed to 50.6. The difference is extraordinary.
Faced with the evidence, I do not believe that anyone could conceivably argue that these schemes were not desirable. The background of the way in which mentally disordered people are dealt with in the criminal justice system makes them both desirable and necessary. The only difficulty that seems to be holding up the scheme is the lack of resources.
Those of us who propose the amendments are prepared to see the scheme introduced over a period of time, area by area, as resources become more available. For the life of me, however, I see no reason why the Government should not accept in the Bill an obligation and commitment to provide these services, accepting that they will be phased in over a period of time.
6.30 p.m.
Baroness Faithfull: My Lords, I support the noble Lords, Lord Harris and Lord Richard. Perhaps I may mention the duty psychiatric scheme from the point of view of a probation officer or social worker. I have been in court on a case where the judge has asked for an immediate psychiatric report. One has to ring round to try to find a psychiatrist, and this is time-consuming. If we were to have the duty psychiatric scheme, there would be on duty all the time a psychiatrist who had experience of prison and prison
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life and, secondly, had experience of the kind of man who comes before the courts. Therefore, I support both noble Lords in hoping that we shall have a duty psychiatric service. It would save time and money and provide better expertise.
I have great sympathy for my noble friend the Minister. The trouble is that two ministries are involved. When that happens, I will not say that nothing gets done but whatever it is gets done much more slowly. The Minister is in some difficulty because I believe that the mentally abnormal patient should be dealt with under the auspices of the health service.
I turn to the two types, the remand and the long stay cases. I shall not cover the latter because the noble Lord, Lord Harris, has already done so. On the remand cases, I have been in touch with Dr. Henrietta Bullard, a notable consultant forensic psychiatrist. She is keen that the mentally abnormal offender on remand should be seen in the hospital setting and not in the prison setting. She has tried to do this in her area, which is the Oxford region. She states:
"We have also been doing a survey of the mentally abnormal offender appearing before Reading Magistrates Court. Although this survey has only been operational for six weeks, 18 patients have been assessed as being mentally ill and there was a high rate of remand in custody (55 per cent.). We have also tried to analyse the reasons for the remands in custody and these are demonstrated in the examples given. We are hoping to publish our results both of our regional forensic service … I might add that we are under extreme pressure for resources and we work from a tiny Portacabin".
This is very serious. I believe that wherever possible and practicable, remand cases should not be assessed in the prison setting but in the hospital setting.
There is also the problem of resources. I realise that I shall not carry all my colleagues with me here. I believe that working towards getting the service is the right attitude. Nevertheless, working towards it means working slowly, particularly where the Treasury is concerned. I have consulted psychiatrists on the matter. As the hospital service has two arms—the private sector and the public sector—I wonder whether we should consider applying to the private sector to set up units for the mentally abnormal offender both on remand and long-term.
I have been told by a forensic psychiatrist that the advantages of the private sector are that it is willing to take patients without the rigmarole we go through in the NHS. Patients mean money and professional wranglings do not seem to prevent their admission. Dr. Bullard says that there is generally a good relationship between the private sector and the referring doctor. Finally, the cost of beds in the private sector is easily established and presumably competitive. However, she says that there would have to be a quality of care and control.
My last point concerns community service upon which the noble Lord, Lord Harris, touched. Under the Mental Health Act 1983 local authorities at the moment run centres for the mentally handicapped, many of whom are mentally abnormal. They have to live in sheltered accommodation in a hostel. It is possible in the community to look after the mentally abnormal offenders by giving them work, training, support and custody. I know that a great deal of this work means co-operation with the National Health

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Service; nevertheless, it ought to be possible. The time has come for us to fulfil the Butler Report in which these recommendations were made in 1975.
Lord Mottistone: My Lords, I support the amendments in the names of the noble Lords, Lord Harris and Lord Richard, and my noble friend Lady Faithfull, very strongly in principle. In order not to detain your Lordships too long, I propose to speak mainly to my amendments which are grouped with the others, Amendments Nos. 21 and 22.
Together, these amendments provide a compromise attack on the problem which resulted from my Amendment No. 24 in Committee, debated with the Government's Amendment No. 17. I told my noble friend the Minister at that stage that I would endeavour to come back with an amendment. These amendments are correctly grouped because they are complementary to what your Lordships have heard.
Amendment No. 22 provides that where a court considers the offender is, or appears to be, mentally disordered, the pre-sentence report should include a report submitted by a medical practitioner approved under the Mental Health Act. In the case of someone thought to be mentally disordered, such assistance to the court, including the court's need for advice on the likely effect of a custodial sentence, might depend, as matters stand at the moment, on the opinion of a probation officer or social worker, neither of whom is qualified to express a clinical view of a person's mental condition.
Your Lordships may recall that because of widespread anxiety about the ability of social workers with basic training qualifications to cope adequately with mentally disordered people, the 1983 Mental Health Act required that approved social workers only should deal with some aspects of the Act. To be approved, they had to undertake specialised training. Although the Act has been in force for a number of years and special training has been provided, a survey published in 1990 of approved social workers produced the astonishing information that they themselves felt that the worst gap in their knowledge was of the mentally ill and of matters directly relevant to the mentally ill.
I am not aware of a similar official survey among probation officers but interviews conducted by one such officer in the Midlands in 1990 found that most of his fellow officers had no experience of working with mentally ill clients before joining the probation service. The vast majority had the basic social work qualification and estimated that on average only 5 per cent. of this was connected with mental health. There was a marked lack of further specialised training once in post. Like the approved social workers, the probation officers interviewed felt that they were lacking in knowledge about the symptoms of illnesses such as schizophrenia, manic depression and clinical depression.
Those are the officers who, if my Amendment No. 22 is not accepted, would have the responsibility of preparing pre-sentence reports on people who are, or appear to be, mentally disordered. Though they can certainly report most adequately on their social
1530
conditions, I am not confident—nor does it seem are they themselves—that they could report adequately on a person's mental condition. It might be argued that only forensic psychiatrists can do so, and that there is a shortage of such psychiatrists. I would find that a somewhat astonishing argument when thousands of reports are prepared about mentally disordered offenders each year once they are in prison, mostly by doctors who are not forensic psychiatrists. What we need is to get these reports before the courts at an earlier stage.
I have concentrated on Amendment No. 22 but, as your Lordships will see, Amendment No. 21 is complementary to it. I understand from my noble friend the Minister that he is prepared to be sympathetic towards my amendments and I am deeply grateful to him. I hope that sympathy will extend as far as possible to the amendments as they are worded now. I beg to move.
Lord Renton: My Lords, I do not dissent from what has been said in support of these amendments in so far as the amendments affect those who are mentally ill, but I must in fairness make clear that I doubt the need for what is proposed in the amendments as concerns those who are mentally handicapped. Their case, their condition, is quite different. In particular, I must make it clear that it is very rarely indeed that a mentally handicapped person is able to benefit from psychiatry. Of course, mentally handicapped people do benefit from education and training of various kinds but that is different from psychiatry. As I said at Committee stage, thanks to the procedures which have been worked out by the police and the courts, there is now much greater satisfaction than there was, prior to the Mental Health Act 1983, about the way in which mentally handicapped people are being dealt with by the police and by the courts. I feel that it is only right to make that point.
6.45 p.m.
Earl Ferrers: My Lords, we have frequently considered the question of mentally disordered offenders during our debates on this Bill and this rightly shows the anxieties that your Lordships have about the needs of these unfortunate people. Indeed, there is absolutely no party political matter at issue here. We are all seeking the right way forward.
We all agree that those offenders who ought to be receiving health or social services care should receive it in a setting other than in prison and that prison is the wrong place for them to be. However, there are problems, and I think that fact is recognised by everyone. We have all seen difficulties in individual cases. It is therefore essential that we should all work to ensure that the services which are provided for these people match their needs, that those services are provided effectively and that the legislation concerning this group of offenders is adequate.
I have said previously that we must ensure that the practical problems which we have identified—and they have been identified again this evening—are resolved. If the measures we take on that front do not

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keep up with the legislative changes proposed by your Lordships, we risk making matters worse rather than better.
The Government's approach is to ensure that encouragement is given to all the measures being taken at present to help to divert mentally disordered offenders from the criminal justice system. Of course, I understand the aspirations of those who would like to push things along by means of a more prescriptive legislative approach, but I believe there are dangers in that. In saying that, I do not mean to imply that the Government are not as enthusiastic as are your Lordships in getting this done, because we are; but your Lordships will recall that one of our fears is that by making it obligatory to obtain a psychiatric report before we have practical arrangements in place to provide them very quickly we will end up with more people being remanded in custody waiting for reports to be prepared. We would therefore have what we are specifically trying to avoid—that is, mentally disordered people being committed to prison.
I am afraid that Amendments Nos. 19 and 23 would have that effect, and I hope your Lordships will understand if I am not able to advise their acceptance. I believe that Amendments Nos. 21 and 22, which have been tabled and spoken to by my noble friend Lord Mottistone, provide an ingenious and helpful way forward. Under these amendments a psychiatric assessment would be provided, if needed, whenever a pre-sentence report was called for. Your Lordships may recall that the effect of the government amendments which we discussed a few moments ago is to require a pre-sentence report before an offender is sentenced to custody in every either-way or summary case and in every indictable-only case, unless the judge is of the opinion that it is unnecessary. If the offender is in any case to be remanded, either on bail or in custody, for a pre-sentence report it seems sensible for that report to include a psychiatric assessment in appropriate cases. That is what my noble friend's amendment seeks and I believe it is right to do so.
I should be happy to accept, in principle, Amendments Nos. 21 and 22, which I believe will ensure that pre-sentence reports contain as much useful information as possible on the mental condition of offenders in order to assist the courts in their deliberations. However, there are one or two matters of drafting which need to be looked at further and I should also like to consider further precisely how the medical assessment should be fitted into the pre-sentence report. If my noble friend would be kind enough to withdraw his amendments, and if it is for the convenience of your Lordships, I should be happy to accept these amendments in principle and bring forward more suitably drafted amendments at Third Reading. I hope that that assurance will also satisfy the noble Lords, Lord Harris of Greenwich and Lord Richard. I hope they will feel that this suggestion goes enough of the way to meet their anxieties.
Turning now to Amendment No. 20—
Lord Harris of Greenwich: My Lords, I assume the noble Earl was referring in his last passage to Amendment No. 25. Is that right?
Earl Ferrers: No, My Lords, I was speaking to Amendments Nos. 19 and 23.
Lord Harris of Greenwich: My Lords, I am sorry to persist, but as the noble Earl referred to an amendment in my name I assumed that he was referring to the one which is grouped with this; namely, Amendment No. 25. Am I right? I have had a letter from the noble Earl, which is the reason why I thought I should seek clarification.
Earl Ferrers: My Lords, looking at the Marshalled List, there are two amendments down in the name of the noble Lord, Lord Harris of Greenwich. One is No. 19 and the other is No. 23. However, the noble Lord is quite right. He has another amendment, Amendment No. 25, to which I was going to address myself in a moment or two.
Lord Richard: My Lords, and Amendment No. 20.
Earl Ferrers: Exactly, my Lords. I was about to start on that amendment when the noble Lord, Lord Harris, asked if I had dealt with Amendment No. 25. I do not want to detain the House any longer than I need, but I have not yet dealt with either of those two amendments. I shall now proceed, with your Lordships' permission, to do so.
Perhaps I may start with Amendment No. 20. We recognise the value of duty psychiatrist schemes which provide for courts to have a psychiatrist on call or to attend for two or three half-day sessions per week. That is why we highlighted a number of such schemes as examples of good practice in Home Office Circular 66/90, which we issued last September. It is therefore heartening to hear that so many of your Lordships favour the setting up of such schemes throughout England and Wales.
We share that view but consider that Amendment No. 20 is unnecessary to achieve that objective. The inference which might be drawn from the amendment is that those concerned with the running of magistrates' courts are thought unlikely to create duty psychiatrist schemes—even if adequate resources are available—unless the Secretary of State compels them to do so by using a statutory instrument. If that is one of the reasons behind the amendment, I think it is misguided. The Home Office has frequently received requests from the courts that more should be done to facilitate the diversion of mentally disordered offenders from prison. The duty psychiatrist scheme at Peterborough highlighted in the circular to which I referred came about as the result of an initiative by the local magistrates' court.
The noble Lord, Lord Harris of Greenwich, mentioned that the scheme had been wound up. My officials heard recently of the alleged ending of the Peterborough duty psychiatrist scheme. They wrote to the magistrates' clerk and were told that the scheme is still in operation.
Both the Peterborough and London courts, where slightly different schemes operate, are known to value them highly. They inform us of any problems caused by a temporary lack of resources. I therefore see no reason to suppose that other courts in England—and Wales—are likely to refuse to follow their example,

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where adequate funding and other resources are available. That being so, the amendment seems unnecessary.
There are dangers in getting locked into a single way of approaching the provision of quick psychiatric opinions as would be the case if we were to adopt the proposed amendment. As I have said, the schemes which have come into existence are largely the product of local initiative. That has the advantage that each scheme suits the local conditions. Others might find that it suited them to do things rather differently—for example, by arranging for the examination to take place off court premises rather than on them as the amendment envisages. We should like to encourage local initiatives and the sharing of best practice rather than to impose a rigid scheme which might not suit the local conditions everywhere. In those circumstances, I hope that your Lordships will accept that legislative provisions of the kind envisaged by this amendment are unnecessary.
The possible development of a comprehensive national scheme is being considered in depth by the joint Department of Health/Home Office review of health and social services provision for mentally disordered offenders.
In Amendment No. 25 the noble Lords, Lord Harris and Lord Richard, have again proposed reducing from 28 days to seven days the time within which a mentally disordered offender made subject to a hospital order must be removed from a place of safety to a named hospital. I do not think that anyone in your Lordships' House would disagree with that objective. We all wish to see the procedures for the admission of such offenders to hospital operate as quickly and smoothly as possible. However, I have some reservations about whether it is reasonable to reduce the statutory time limits by three weeks as is proposed. Serious administrative problems could result. We could also see patients having to be admitted to unsuitable facilities: for example, facilities which were perhaps not secure enough, too secure or too distant. Such a change could also result in such admissions pre-empting hospital resources at the expense of services which could and perhaps should be provided for other mentally disordered people who have not offended. We might even see doctors refuse to accept a particular patient where they knew that they could not make a bed available in the most suitable place within seven days. There would also be many practical difficulties in arranging for guardianship within such a short timescale.
As I said at an earlier stage of the Bill, it would be unwise to tinker with such a finely balanced piece of legislation as the Mental Health Act 1983, which your Lordships may recall was much debated and greatly welcomed at the time, without first testing the reaction of the professionals in the field. I therefore hope that the House will not accept the amendment while work aimed at improving the practical aspects of diversion and service provision for mentally disordered offenders is in progress. I believe that we should await the results of the inter-departmental review to find out the scale of the problem, decide how best the resources
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can be found to meet it and what the scale of those resources should be rather than imposing what may be an inflexible obligation which may prove impossible to operate.
I agree that we should be working to speed up the admission of mentally disordered offenders to hospital. I hope that partly as a result of the inter-departmental review, and also as a result of the observations which your Lordships have made, it will be possible to reduce the present 28-day limit in Section 37 of the Mental Health Act. I doubt whether it would be possible to reduce it immediately to seven days. It might be better to reduce it in stages, say to 21 days initially, then to 14 days and eventually to seven days.
With your Lordships' approval I should like to bring forward an amendment at Third Reading which would give the Secretary of State the power to reduce the time by statutory instrument. I hope that that will be an acceptable and suitable compromise. I believe that it goes a long way towards meeting the point made by the noble Lords, Lord Harris and Lord Richard.
Lord Mottistone: My Lords, before my noble friend sits down perhaps I may say how grateful I am for his very kind remarks about my two amendments, which I shall not move when the time comes.
Lord Renton: My Lords, before my noble friend sits down perhaps I may say that I hope that in any further changes which are made in the procedures he will save mentally handicapped people from being subjected to psychiatric examination, which will always cause them puzzlement and frequently distress.
Lord Harris of Greenwich: My Lords, perhaps I may begin by saying that I am glad that the Government are prepared to look at the 28-day rule. I welcome the fact that the noble Earl is prepared to introduce an amendment at Third Reading. That is a significant improvement. He may well be right that it would be sensible to proceed by stages. Nevertheless, I welcome the fact that he has met us more than half way.
In relation to Amendment No. 20 he has not made a serious case. He said, essentially, that the Government regard duty psychiatrist schemes as a terrifically good idea and are warmly in favour of them: However, they consider that there is no need to impose any duty on the Secretary of State to encourage the development of such schemes because it can be left to the courts rather than to government departments to do the job. That is not a satisfactory answer.
The noble Lord, Lord Richard, the noble Baroness and I have detailed schemes at Clerkenwell and elsewhere which are diverting significant numbers of people from prison to mental hospitals. As the two consultants have set out in their paper, the schemes are saving significant sums of money for the prison department of the Home Office.
It is clear that if we are to make progress in developing such schemes in the other major urban areas of this country it will require persistent pressure

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from Ministers. I go back to the example of community service, which I dealt with when I was in the Home Office. Community service extended throughout England and Wales with reasonable speed because there was constant ministerial pressure for it to be extended. If we had simply laid back and said, "We'll leave it to someone else to do. With a bit of luck it will extend without a great deal of encouragement from us", we should not have thousands of people being diverted from custody, as is now happening. If we are to see the development of schemes such as Clerkenwell, we must have a far more direct interest in the matter from the Home Office than would be the position if we did not have some form of statutory duty.
We have made it clear in the amendment that we should be prepared to proceed on an area-to-area basis as the resources become available. As I said, the resources required are extraordinarily modest. I reiterate that the entire scheme at Clerkenwell is based on the expert witness payments to the two psychiatrists who organise the scheme every Wednesday.
When we raise the matter of suicides in prison by mentally ill people, it is deeply disappointing to have the noble Earl tell us how sorrowful and saddened he is—I am quite sure that he is—at having to tell us how awful the conditions were when the poor men concerned killed themselves. If we do not proceed with dispatch in the creation of such schemes in our major urban areas, we can be certain that a number of young men will die. That is the real choice. The acceptance of an amendment of this kind and the extension of schemes such as Clerkenwell would enable us to get disturbed people out of the prison hospital in Brixton.
There are many dedicated doctors working in the prison medical service, just as there are many dedicated hospital officers looking after acutely ill mental patients, but hospital officers in the prison service are not state registered nurses. They are not experts. A scheme could be developed in which vulnerable people of the kind that we see at Clerkenwell and other London magistrates' courts were diverted with remarkable dispatch from those appalling conditions at Brixton into mental hospitals. I find the noble Earl's reply deeply disappointing. I shall certainly test the view of the House when we come to Amendment No. 20. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Harris of Greenwich Lord Harris of Greenwich moved Amendment No. 20:
Page 3, line 17, at end insert:
("() For the purpose of facilitating the consideration of the likely effect of a custodial sentence on the mental condition of an offender who is or appears to be mentally disordered, the Secretary of State shall by regulations make provision for the establishment of duty psychiatrist schemes in courts to which this section applies.
() Regulations made under this section may be made so as to apply only in specified areas.
() In this Part "duty psychiatrist scheme" means a scheme which provides for the psychiatric examination on court
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premises of the mental condition of convicted persons by a medical practitioner approved for the purposes of section 12(2) of the Mental Health Act 1983.").
The noble Lord said: My Lords, I beg to move.
7.2 p.m.
On Question, Whether the said amendment (No. 20) shall be agreed to?
Their Lordships divided: Contents, 59; Not-Contents, 72.

Division No. 2

CONTENTS

Ackner, L.

Kinloss, Ly.

Acton, L.

Kirkhill, L.

Addington, L.

Longford, E.

Barnett, L.

Lovell-Davis, L.

Birk, B.

Mackie of Benshie, L.

Carmichael of Kelvingrove, L.

Masham of Ilton, B.

Carter, L.

Mishcon, L.

Cledwyn of Penrhos, L.

Monson, L.

Cocks of Hartcliffe, L.

Morris of Castle Morris, L.

Darcy (de Knayth), B.

Mottistone, L.

Dean of Beswick, L.

Mulley, L.

Dormand of Easington, L.

Nathan, L.

Erroll, E.

Nicol, B.

Ewart-Biggs, B.

Norrie, L.

Ezra, L.

Palmer, L.

Faithfull, B.

Parry, L.

Falkland, V.

Pitt of Hampstead, L.

Graham of Edmonton, [Teller.]

Prys-Davies, L.

Rea, L.

Greenway, L.

Richard, L.

Grey, E.

Seear, B.

Harris of Greenwich, L.

Sefton of Garston, L.

Hatch of Lusby, L.

Strabolgi, L.

Henderson of Brompton, L.

Taylor of Blackburn, L.

Hirshfield, L.

Tordoff, [Teller.]

Hutchinson of Lullington, L.

Turner of Camden, B.

Hylton-Foster, B.

Williams of Elvel, L.

Jenkins of Putney, L.

Winchilsea and Nottingham, E.

Kilbracken, L.

Windlesham, L.

Kilmarnock, L.

Winstanley, L.

NOT-CONTENTS

Allenby of Megiddo, V.

Hives, L.

Ashbourne, L.

Joseph, L.

Astor, V.

Kenilworth, L.

Astor of Hever, L.

Kimball, L.

Belstead, L.

Lane of Horsell, L.

Blake, L.

Lauderdale, E.

Blatch, B.

Lindsey and Abingdon, E.

Boyd-Carpenter, L.

Long, V. [Teller.]

Brabazon of Tara, L.

Lyell, L.

Brentford, V.

Mancroft, L.

Brougham and Vaux, L.

Merrivale, L.

Carnegy of Lour, B.

Mersey, V.

Carnock, L.

Munster, E.

Cavendish of Furness, L.

Napier and Ettrick, L.

Cochrane of Cults, L.

Nelson, E.

Cork and Orrery, E.

Newall, L.

Craigmyle, L.

Norfolk, D.

Crickhowell, L.

Orkney, E.

Davidson, V. [Teller.]

Pearson of Rannoch, L.

Denham, L.

Pender, L.

Eccles of Moulton, B.

Rankeillour, L.

Effingham, E.

Rea, L.

Elles, B.

Renton, L.

Ferrers, E.

Rodney, L.

Fortescue, E.

Saltoun of Abernethy, Ly.

Fraser of Carmyllie, L.

Seccombe, B.

Glenarthur, L.

Sharples, B.

Grimston of Westbury, L.

Skelmersdale, L.

Harlech, L.

Stanley of Alderley, L.

Harmsworth, L.

Stodart of Leaston, L.

Harvington, L.

Strange, B.

Haslam, L.

Strathcona and Mount Royal, L.

Henley, L.

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Strathmore and Kinghorne, E.

Trumpington, B.

Sudeley, L.

Waddington, L.

Suffield, L.

Wade of Chorlton, L.

Thomas of Gwydir, L.

Resolved in the negative, and amendment disagreed to accordingly.
7.10 p.m.
[Amendments Nos. 21 to 23 not moved.]
Lord Richard Lord Richard moved Amendment No. 24:
After Clause 3, insert the following new clause:
("Provision of information as to hospitals or potential guardians
.—For section 39(1) of the Mental Health Act 1983 (information as to hospitals) there shall be substituted the following subsection.
"(1) Where a court is minded to make an Order under sections 35, 36, 37 or 38 in respect of any person it may request—

(a) the Regional Health Authority or local Social Services Authority for the region or district in which that person resides or last resided; or—

(b) any other Regional Health Authority or local Social Services Authority that appears to be appropriate,

to furnish the court in such manner as may be directed by it with such information as the Authority has or can reasonably obtain with respect to —

(i) the hospital or hospitals (if any) in the Authority's region or elsewhere at which arrangements could be made for the admission of that person in pursuance of the Order; or

(ii) the appropriateness of the person being received into guardianship pursuant to section 37,

and that Authority shall comply with any such request.".").
The noble Lord said: My Lords, this amendment is separate from the group that we have just considered. I shall be able to move it quickly. The new clause is designed to improve the ways in which the sentencing court can obtain information about medical facilities at which a defendant can be assessed or treated and indeed the possibility of the defendant being received into guardianship.
In accordance with the Home Office circular, each regional health authority must have appointed someone to deal with requests for information on hospital facilities. In accordance with the mental health code of practice, social services authorities should have done the same in relation to requests for information concerning guardianship. The purpose of this clause is to extend the circumstances in which courts can request information, to enable courts to direct how they wish the information to be given, particularly if they require it to be given in person, and to give courts the power to seek information about guardianship.
Sections 35 and 36 of the Mental Health Act 1983 already provide powers for the court to remand a person to hospital for assessment. Accompanying Section 39 does not apply to those sections, and courts are sometimes frustrated in their use of the sections by not having a power to seek out information about facilities. The amendment will therefore extend Section 39 to the occasions when a court wants to remand to hospital for psychiatric assessment. In our view the courts should be given the power to require a representative of the relevant authorities to attend court to provide in person the information needed.
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The new subsection would incorporate that power for a court wishing to ensure the attendance of such a representative.
Finally, guardianship under Section 37 is rarely used, often because social services authorities are reluctant to agree to it. The inclusion of a power for a court to seek information about guardianship may, we hope, encourage its greater use as an appropriate non-custodial outcome. Both Home Office Circular 66/90 and the Mental Health Act code of practice, which is designed to improve practice in using the Mental Health Act, wish to encourage its greater use. I beg to move.
Lord Mottistone: My Lords, I should like strongly to support this amendment. We are in a situation in which the rate of reduction in mental hospital beds has accelerated and now runs at 3,000 to 4,000 a year instead of the average 2,000 to 3,000 a year which was usual up to 1935. One result is that some consultants are very selective about those whom they admit and a Minister said in this House only last month that non-offender patients should receive priority. That would not cause problems if a viable alternative existed for those who would formerly have been admitted to hospital without difficulty. The problem is that this situation continues and the number of beds is still decreasing.
As I see it, this amendment would make health authority managers answerable if they cannot arrange hospital admission. Similarly the social services authorities would have to explain why a guardianship order could not be made. Research published in 1990 established that the number of guardianship orders in force remains relatively small compared with hospital admissions. However, recent trends indicate a significant increase in its application to people with mental illness, although in 1989 the number of new cases in England involving mentally ill people and those with psychopathic disorders was only a little over 100.
If mentally ill offenders are to be cared for and supervised in the community, more use of guardianship orders may well be a way forward; hence, I much welcome the reference to it in the amendment. The amount that it is used reflects the attitudes and policies of different social services departments. The ability to summon their representatives to appear in court to explain their policies in relation to individual cases may possibly result in a modification to their current attitudes or at least force them to explain what the problems are. I strongly support this amendment.
Earl Ferrers: My Lords, I am bound to say that there is some real attraction in the proposal that has just been put forward. I have previously said that we hope that the aim of diverting mentally disordered offenders to the health and social services can be achieved by the use of practical measures instead of legislative ones. My initial reaction was that that was the course that we should aim to follow in this matter as well. I am aware, for example, that some regional health authorities are trying to develop good information systems for the courts which would negate the need for legislative change. West Midlands

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region, for example, has produced a very helpful booklet for the courts and at least one other region has similar work in hand. But the amendment would seem to be partially defective because the exercise of the power to remand is not strictly an "order" within the terms of the 1983 Act and does not technically result in an "admission" to hospital.
I nevertheless agree that, in principle, the proposed change could be very helpful in those cases where information of this kind is needed. This applies equally to Wales, where the supply of information to the courts is governed by Section 39(1) and (2) of the 1983 Act.
I am also attracted to the second part of the amendment under which local social services authorities would be required if necessary to advise the courts as to the appropriateness of a guardianship order. It would indeed help to concentrate minds on the availability of other possible disposals, and that would be all to the good.
If the noble Lord, Lord Richard, felt disposed to withdraw his amendment, I would give an undertaking to come forward with a suitably drafted amendment at Third Reading which would give effect to the aims of the new clause which the noble Lord has proposed.
Lord Richard: My Lords, the noble Earl is irresistible. With the leave of the House, I beg to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 25 not moved.]
Clause 4 [Suspended and extended sentences of imprisonment]:
Earl Ferrers Earl Ferrers moved Amendment No. 26:
Page 3, line 33, leave out ("of the 1973 Act (suspended sentences of imprisonment)") and insert ("(suspended sentences of imprisonment) of the Powers of Criminal Courts Act 1973 ("the 1973 Act")").
The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 1. I beg to move.
On Question, amendment agreed to.
Lord Ackner Lord Ackner moved Amendment No. 27:
Page 3, line 41, leave out ("by the exceptional") and insert ("in all the").
The noble and learned Lord said: My Lords, I hope that your Lordships will find this to be an admirable preprandial amendment. I shall take it quite briefly. It arose in relation to suspended sentences on 16th April when the noble Lord, Lord Waddington, was kind enough to agree to consider whether the use of the word "exceptional"—the words of limitation to be found in the section—was appropriate in relation to the use of suspended sentences.
I am most grateful to the noble Lord the Leader of the House for kindly writing me a most helpful letter on this subject. But in the course of that letter he says:
"The Bill follows the existing Court of Appeal guidelines in ensuring that a suspended sentence can be given only if the test for an immediate custodial sentence is met. It does therefore I think follow that there would have to be something exceptional about the case before the sentence could properly be suspended".
The American phrase "If it works, don't fix it" seems to me to be most appropriate.
If the present jurisprudence on this subject is considered adequate, to put something in a Bill which is obviously in many respects destined to make radical changes will cause problems. I referred to the jurisprudence. It is well documented in Archbold: Pleading, Evidence and Practice in Criminal Cases. At paragraph 5209 seven cases are set out as authorities for various propositions, including the proposition that the court must decide that a sentence of imprisonment is appropriate to the case without regard to the question of suspension. It goes on to explain that one must work one's way through all the other available alternatives before ultimately deciding whether it is appropriate to use a suspended sentence.
I wrote in reply to the noble Lord, Lord Waddington. I should like to quote—perhaps appropriately at dictation speed in the circumstances—a part of that letter. It states:
"A judge, on observing this legislative intervention, will inevitably conclude that the law has been changed, that only very rarely is he entitled to suspend a prison sentence and accordingly he will send more persons to prison, a course which we all wish to avoid".
The noble Lord referred, as an example of an exceptional circumstance, to an accused person who was terminally ill. In my respectful submission that shows how narrowly "exceptional circumstances" is construed in the noble Lord's mind. It certainly would not be so construed as the law now stands. "Exceptional circumstances" takes the matter right out of the normal. There are many normal circumstances which currently, and wholly correctly, justify a suspended sentence. I cite as an example a person of first rate character who pleads guilty, who offers effective reparation and who, if sent to prison, would have his career totally ruined and whose family would be placed in immensely difficult circumstances. Alternatively, a woman with children dependent upon her care whose bad shoplifting has continued over a period is a case for which a sentence of imprisonment could be given. However, bearing in mind the effect upon the children and the quite unnecessary expenditure that it would thrust upon society, I can well understand a judge saying, "In the very special case here, I shall suspend the sentence". The example is not exceptional; it is all too often the case.
If the Government wish to make suspended sentences virtually a thing of the past, then so be it. But their philosophy, which is designed to keep as many people out of prison as properly can be kept out, will be thwarted. On the other hand, if the Government are prepared for suspended sentences to continue to be used in the very restricted situation outlined in the decided cases, then there is not the slightest point in putting in these words of exception.
I suggest words which indicate that there is no change. I would much rather that the reference was not mentioned. A judge has to ask himself many complex questions before he carries out the sentencing operation. On finding a specific reference to suspended sentences he will inevitably conclude that the law has been changed and changed in a situation which seriously restricts the exercise of the powers which hitherto he would have exercised. I beg to move.
Lord Renton: My Lords, I support the amendment. The main purpose of the Bill, as we have been told often during the proceedings, is to keep people out of prison. If we limit the award of suspended sentences by use of the word "exceptional"—and it would limit it, as the noble and learned Lord said—then we shall find that more custodial sentences have to be given. Therefore the use of the word "exceptional" is contrary to the intended purpose of the Bill. I hope that the amendment will be accepted.
Lord Richard: My Lords, I am afraid that I oppose the amendment. If one considers the structure of the Bill, the use of suspended sentences becomes less apposite and, frankly, illogical.
Clause 4 restricts the use of the suspended sentence to cases where there are exceptional circumstances. There are powerful arguments in favour of that course. The suspended sentence involves the courts in a somewhat tortuous process of logic. They have to decide that prison sentence is essential. Immediately afterwards they reach what on the face of it is a self-contradictory conclusion: that it need not be imposed. That logic is questionable and difficult enough at present. But it is even more difficult if one considers Clause 1 which states that sentences should be restricted to cases where the offence,
"was so serious that only such a sentence can be justified for the offence".
Therefore we start with the proposition that before one passes a suspended sentence, the sentencer has to be satisfied that the offence is so serious that only a custodial sentence can be justified. He then has to say, "Despite the fact that I am satisfied of that, nevertheless I will suspend the sentence". In my submission it is impossible to imagine circumstances which were not exceptional which would lead the judge to those on the face of it—contradictory conclusions. In other words, I cannot imagine any normal circumstances in which a judge, having come to the conclusion that the offence was so serious that a custodial sentence was justified, would say, "Nevertheless, I shall suspend it". The only circumstances in which he would do that would be exceptional. It would be as well if we were to spell that out in the Bill so that sentencers can be absolutely clear about what we have in mind.
Lord Hutchinson of Lullington: My Lords, I too hope that the Government will resist the amendment. Again, the effect of the amendment of the noble and learned Lord is to retain the present position. That is its effect. Again it goes against the purpose of the Bill.
I agree entirely with the noble and learned Lord that it would be better to get rid of the whole provision. That would be by far the best solution, as the Government have done on extended sentences. The amendment goes a long way towards getting rid of suspended sentences. The only problem about the Bill as drafted is the word "exceptional". We spent much time in Committee criticising that word and pointing out that nearly all mitigation before a court emphasises the exceptional situation of that accused person. Therefore, it will lead to problems of interpretation.
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The noble and learned Lord gave an example of the woman shoplifter with children and stated that that was a good reason for retaining the suspended sentence since that person would otherwise go to prison. It seems to indicate once again the inability of the judiciary to understand the new philosophy of sentencing. Surely it must be clear that the absolutely appropriate sentence for a woman shoplifter who has repeated her offence on a number of occasions is a sentence in the community. That leaves her in the family looking after the children. With the assistance of a probation officer she may understand the reasons for the shoplifting. In all the circumstances, she may be cured of her repetitive offending. I hope that the Government will resist the amendment. If the suspended sentence is to be kept, surely the Government are right in saying that it should be kept only for exceptional cases.
7.30 p.m.
Earl Ferrers: My Lords, the noble and learned Lord, Lord Ackner, hoped that his pre-prandial amendment would find a happy reception. It gave me a little indigestion which I hope will not be the case with the impending prandium. We debated the amendment at an earlier stage of the Bill. My noble friend Lord Waddington undertook to consider whether the use of the fully suspended sentence should be restricted to exceptional cases. The noble and learned Lord has exchanged letters with my noble friend the Leader of the House but clearly he remains uneasy about the issue.
The noble and learned Lord argues that the suspended sentence is in practice already used only in exceptional cases even though the current law does not spell this out. A judge will assume from the more restrictive wording in Clause 4 that the suspended sentence is to be used even more rarely than at present. As he and my noble friend Lord Renton said, more people will be sent to prison as a result.
I wonder whether the suspended sentence is being confined to exceptional circumstances at present. That may be the intention of the provision of the Powers of Criminal Courts Act 1973 and the interpretation of it by the Court of Appeal. However, nearly 30,000 suspended sentences were imposed in 1989. That adds up to an awful lot of exceptional cases. I am aware of several cases where an offender was given a suspended sentence and where the Court of Appeal substituted for it a lesser disposal such as a fine on the grounds that a custodial sentence was not justified in the first place and so should not have been suspended. Two recent examples are the cases of Regina v. Francis (1988) and Regina v. Smith (1990). In the first example the defendant was given a suspended sentence for possessing drugs because the prospect of its activation would serve as a deterrent. The Court of Appeal held that an immediate custodial sentence would not have been justified and so a suspended sentence should not have been imposed. In the second example the defendant had not previously served a term of imprisonment and the court should not have imposed

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a custodial sentence unless no other disposal would have been appropriate. On appeal, the suspended sentence was commuted to a fine.
The noble and learned Lord, Lord Ackner, gave the example of illness. He believed that showed we intend a narrow definition. The illness of the offender is only one example of a case in which a custodial sentence might be suspended. The family circumstances and the responsibilities which go with them might also be relevant; for example, if sending a parent to prison would leave no one to look after the children. Another example is that of someone running a small firm whose staff will be thrown out of work if he were imprisoned and the firm would therefore close down.
I do not believe that restricting the use of the suspended sentence as proposed in Clause 4 will result in more offenders being sent to prison. We should recognise the effect of the restrictions on custodial sentencing in Clause 1. They will ensure that custodial sentences are imposed only where that is the only suitable way of dealing with the offender. We are also increasing the range and effectiveness of the community penalties which the courts will have at their disposal. The effect of these changes should be that fewer offenders will be judged to require custodial sentences. As my noble friend the Leader of the House pointed out if a custodial sentence is justified even when the new restrictions apply it should be implemented unless there are good reasons for not doing so. If an offence does not justify an immediate custodial sentence the normal recourse should be to a community penalty not a suspended sentence.
All that should not be taken to mean that there is no place for the suspended sentence. It will provide a useful means of mitigating an immediate prison sentence in the right cases. The Bill ensures that a sentencer can take into account any relevant mitigating factor in deciding on the sentence. I suggest that in practice the presence of common mitigating factors such as a guilty plea or a good record will generally result in a shorter custodial sentence or a community sentence. The suspended sentence will come it to play only if the sentencer has considered all these mitigating factors and still believes that a custodial sentence is right. We can then take into account any exceptional circumstances such as the terminal illness of the offender and suspend the sentence.
For all those reasons I believe that the use of the fully suspended sentence should continue to be restricted to exceptional cases as proposed in Clause 4. I hope that in the light of this further explanation and his pre-prandial expectations the noble and learned Lord will agree.
Lord Ackner: My Lords, I owe the noble Earl an apology. I should have realised that dietetically speaking anything that is irresistible might cause indigestion. It is clear from what the Minister has said that there is an imprecision about the whole situation. On the one hand it is said that the present restrictions which are being operated by the Court of Appeal produce exceptional circumstances. On the other hand it is said that we must legislate to ensure that the number of sentences which are suspended is reduced.
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The example given by the noble Lord, Lord Waddington, of the terminally ill is clearly exceptional. However the noble Earl's examples are not exceptional. He spoke of the family which will be broke if one of its breadwinners goes to prison. That is a pretty usual situation.
I have done the best that I can to try to ensure that fewer people go to prison. If the Government do not like that approach, so be it. In those circumstances I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Reay: My Lords, this may be a convenient point at which to break for dinner. I beg to move that further consideration on Report be now adjourned until 8.40 p.m.
Moved accordingly, and, on Question, Motion agreed to.

Badgers Bill
7.38 p.m.
Brought from the Commons; read a first time, and to be printed.

Forestry Bill
Brought from the Commons; read a first time, and to be printed.

River Calder (Welbeck Site) Bill [H.L.]
7.40 p.m.
Lord Ezra: My Lords, I beg to move that this Bill be now read a second time. The promoter of the Bill is the Wakefield Metropolitan District Council which seeks consent to divert a stretch of the River Calder which flows through the Welbeck reclamation landfill site. The Welbeck site lies to the east of the City of Wakefield and is a sad testimony to the environmental ravages of mineral extraction. It is a square mile of dereliction which can best be described as a lunar landscape.
Recently I surveyed that valley wasteland for myself and from the surrounding communities of Eastmoor, Normanton and Kirkthorpe. Those are housing estates and villages, a generation of whose inhabitants have overlooked the despoliation of former pleasant countryside through sand and gravel working, clay extraction and coal mining.
Happily, environmental improvement is already under way at Welbeck. Work has begun on what is known as the limited reclamation and landfill scheme—basically, infilling and recontouring the enormous holes and tips created by mineral extraction. The possibility of realising the full reclamation scheme depends on diverting the River Calder and attracting further inert materials. The river diversion is the subject of this Bill.
The Bill's promoters, with support from all parties of the council, and in partnership with the West Yorkshire Waste Management Joint Committee, have put in hand a far-sighted land reclamation scheme. That is to utilise household waste and colliery spoil in

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order to create an area featuring natural contours, wooded slopes and an environmentally attractive river corridor specifically designed for local recreation and as a wildlife haven.
In considering the Bill I ask your Lordships to recall that the West Yorkshire Waste Management Joint Committee has a duty to dispose of household waste while the Wakefield Metropolitan District Council has a responsibility to reclaim land. Indeed, it is already engaged on many colliery reclamation schemes within its boundaries.
The Welbeck scheme combines and solves three problems: reclamation, waste disposal and spoil disposal. It does that in a way which economises on land, which takes advantage of the properties of colliery discard as an engineering material and which recognises the energy potential of putrescible waste through methane recovery. By going for an integrated and long-term solution, it helps ensure that resources and management skills are concentrated on achieving the highest safety and environmental standards.
Diverting the River Calder, which presently flows through the middle of the reclamation area, to a more westerly route will accelerate its restoration and re-opening as a public asset. It will also enable the creation of a landform which offers more than double the voidspace, both requiring and accommodating additional spoil and waste.
However, diversion of the river gives rise to certain legal issues, including matters of riparian and navigation rights on the affected stretch of the river and consequences such as the alteration of flows. The promoters, as a responsible public authority, acknowledge that it is appropriate to seek specific statutory authority for the works, and see the pursuit of the parliamentary Bill as the proper way to proceed and to secure a start on the diversion works.
Diverting the River Calder is not a simple task, and the proposition has not been considered lightly. It would be possible to fill and repair the Welbeck dereliction without seeking a river diversion, but that would lead to the retention of a relatively inaccessible stretch of the river, hemmed in by former mineral working tips, with insignificant recreational, ecological and aesthetic value.
Diverting the Calder will allow the creation and enhancement of a broader river and waterway corridor, richer in wetland habitat and landscape interest and more immediately available for public access and enjoyment. Indeed, by retaining substantial reaches of the former river arms the scheme will provide a net increase of almost one kilometre (0.6 miles) in the total length of riverside habitat and a net gain of approximately 10 hectares (25 acres) in wetlands.
The overall project, though currently seen as a 20–25 year venture, is geared to progressive restoration. The reclamation has been designed to start from the outside and work inwards, leaving the remaining landfill operations increasingly remote from the surrounding communities. Indeed, substantial peripheral stretches of the site have already been restored and reopened to public access. The target is to
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have more than half of Welbeck restored by the end of the decade; and the local authorities are well on the way to achieving that.
However, the purposes and benefits of the Welbeck scheme go far beyond reclamation and environmental improvement at Welbeck. The scheme is already set up to accommodate 7 million cubic metres of domestic and trade waste and provide a similar capacity to meet the spoil disposal needs of nearby Sharlston Colliery. The hill which can be created behind the diverted river will not only double the provision for household type wastes, but also provide for up to 25 million tonnes more spoil. The wider environmental benefits of those provisions—in avoiding the creation of a whole series of less desirable tipping schemes on green field sites elsewhere—are appreciated far beyond the Wakefield area.
Landfill is also a key to the economics and funding of the scheme—to paying for early restoration to a high standard. I will avoid precise figures as those are better defined in detail for the Select Committee; but suffice it to say that the cost of the river diversion would be of the order of £6 million, and the scheme as a whole would cost substantially more.
However, these are essentially moneys which would need to be spent anyway: by the Department of the Environment and the European Commission on land reclamation at Welbeck; and by British Coal and the waste management authorities on spoil and waste disposal elsewhere.
The project not only creates long-term jobs at Welbeck itself, but helps to sustain thousands more in the local transport, mining and power generation industries; and this is a part of the world which has experienced colliery closures on a massive scale in recent years.
Earlier I mentioned colliery spoil. This is a vital element in the plans to re-create Welbeck. It will supply the inert materials which any landfill and reclamation scheme requires to screen its operations. The Welbeck site in particular will need millions of tonnes of such material to create the new hillsides, valleys and contours which are proposed.
Fortunately, the material will be ready to hand. Spoil from the nearby Sharlston Colliery is already accepted at Welbeck. It is proposed that the volume needed for the full scheme will be brought by rail from the Selby coalfield.
When the Selby coalfield was planned—this was at the time at which I was at the coal board it was thought that it would not produce significant quantities of spoil. That was the result of the geological researches which we undertook at that time. However, the original predictions, which indicated geological conditions broadly typical of the North Yorkshire coalfield, have proved overoptimistic and British Coal now has an unexpected problem of discard to deal with. It is now envisaged that an average of 1 million tonnes of spoil will be produced per year. British Coal is seeking security of disposal for the current life expectancy of the Selby coalfield, which is up to 25 years. The 25 million tonnes of spoil which that implies would occupy some 14 million cubic metres.

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The position, therefore, is this. The Bill's promoters need substantial inert materials and a river diversion to realise their ambitions of a full waste disposal and reclamation scheme for Welbeck. British Coal needs a cost-effective and environmentally acceptable means of disposing of spoil from the Selby coalfield. The proposed scheme will provide a mutually beneficial solution which will also be to the advantage of the local community.
I should now like to summarise the Bill. It authorises the diversion of the River Calder between Kirkthorpe Weir and Stanley Ferry aqueducts. It also authorises the construction of storm water lagoons and related works to secure flood storage capacity. Two arms of the redundant loop of the old river channel would be retained but the middle section would be filled in.
Part I of the Bill is formal. Part II of the Bill authorises the acquisition of land in connection with the river diversion and related works. The Bill incorporates standard provisions in relation to compulsory purchase and compensation. The area of land subject to compulsory acquisition is shown on the deposited plans. The Bill deliberately only authorises acquisition of land which is justified in the context of the river diversion itself. It does not include power to acquire additional land needed for the intended landfill operation. Powers to acquire that land are being pursued by the appropriate non-parliamentary means of compulsory purchase orders.
Part III of the Bill contains the works powers which follow the sort of provisions common in Acts authorising river diversions. Clause 31 of the Bill places the promoters under a duty in exercising the powers of the Bill to take reasonable steps to further the conservation of flora and fauna and to carry out such consultations as may be reasonably required by English nature for the furtherance of nature conservation.
With a scheme of the magnitude of the Welbeck scheme it would be surprising if there were not some objectors. Only two petitions have been deposited against the Bill, one from the Stanley Forum Committee and one from the Warmfield Company Limited.
The Stanley Forum Committee is a local residents' organisation. The members have, in fact, written to me. Their concerns relate primarily to perceived loss of public rights of way and navigation. Inevitably, public access to the site would have to be restricted while the works were in progress but it is the promoters' intention that the new river corridor would afford an improvement in terms of public accessibility, recreation and amenity as well as an improvement in terms of the environment and wildlife habitat. That would be one of the first parts of the project to be completed. The Warmfield Company is a local landowner, part of whose interests in land would be subject to acquisition under the Bill.
I commend the Welbeck scheme as an undertaking which is environmentally progressive, technologically far-sighted, and economically realistic. It deals in a balanced and integrated way with a package of difficult problems which faces the local communities,
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local industries and local authorities in Wakefield and West and North Yorkshire. More particularly, I commend the river diversion Bill to the House as a key measure in realising the full potential, economically and environmentally, of the Welbeck project.
Moved, That the Bill be now read a Second Time.—(Lord Ezra.)
7.55 p.m.
Lord McIntosh of Haringey: My Lords, in speaking from the Dispatch Box I must make the usual disclaimer. The Opposition do not take any collective view on Private Bills and anything I say about the Bill must be taken as an expression of my personal opinion rather than as the view of Her Majesty's Opposition.
I have certain interests in the Bill. First, the disposal of colliery spoil was one of the major concerns of the Flowers Standing Commission on Energy and the Environment which was unfortunately allowed by the Government to lapse in the early 1980s and of which my wife was a member. Secondly, I have an interest because the whole issue which causes the land around the Welbeck site to be in such a shocking state, the whole question of mineral extraction under inadequate planning and restoration powers, is one which we considered at length when we debated the Planning and Compensation Bill.
I hope that when the Bill comes back to this House the limited concessions made by the Government to restrict those planning permissions which were granted in the 1940s, and which are inadequately documented even now and certainly do not include adequate provision for control of mineral working and above all for enforcement of restoration works, will be strengthened. I hope that we shall see a better Bill than that which reached us and a better Bill than that which left us in our consideration of the Planning and Compensation Bill. Much of the damage done in parts of Yorkshire and Lancashire was caused by inadequate restoration.
The Bill offers a unique opportunity to deal both with domestic waste, which is the proper responsibility of the waste disposal authority, and with colliery spoil on a large scale. The proposal now before the House and before Parliament has been produced with considerable care for the environment with the unanimous support of all parties, not only in the Wakefield Metropolitan District Council but also in the five authorities which are members of the voluntary joint waste disposal authority. They could have objected and made their objections very clear. They appear not to have done so.
In the face of that virtual unanimity and in the face of the very restricted objections put forward I hope that the Bill will have a successful and speedy passage through Parliament.
7.58 p.m.
Lord Joseph: My Lords, before I deal with the Bill I should declare several overlapping interests. Robert Horrocks, chairman of one of the two petitioning companies to which the noble Lord referred, has been a friend of mine for many years. Months ago, before the Bill was tabled, he invited me to join the board of

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a company which he chairs. I did not give a firm reply as I then had too many commitments. I gather that the invitation is still open. My commitments will soon be lighter and I should indicate to the House that I shall probably accept the invitation.
Moreover, an engineering and construction company of which I am a part-time paid director and in whose parent company I own shares, might be awarded contracts in connection with the potential waste tip which the petition company owns, the future of which the Bill might affect. I further add that I am not an engineer.
I listened carefully to what the noble Lord, Lord Ezra, said. I regret that he did not think fit to explore the degree to which the scheme is prudent and safe. I shall attempt to convince the House that the introduction of the Bill is premature on several counts and, most important of all, I shall refer first to the factor to which the noble Lord did not refer.
We have before us three volumes of a technical report made by highly reputable consulting engineers. The report is called the Welbeck Reclamation and Landfill Project: Diversion of the River Calder. The report makes it clear that conclusions cannot yet be reached on the prudence and safety of the project. I repeat that I am not an engineer. I only know that the consulting engineers emphasise that there is a good deal more work to be done. If any noble Lord wishes to challenge me I can refer him to examples.
I am quite sure that the promoters will be making available to the House and the Select Committee an environmental statement. That was not required by law when the scheme was conceived. Am I accurate? An environmental statement is now statutorily required. I should have thought that a local authority promoting such an ambitious scheme would have taken care to go further than the provisional consulting engineer's review which we have before us. I repeat that I expect that an environmental statement bringing together the tests and appraisals which will have taken place since the Bill was tabled no doubt, will be put before the House and the Select Committee.
I am sure that noble Lords will realise that there are bound to be doubts about the pollution risks of landfill on made ground from beneath which some of the natural strata, as I understand it, has been excavated. Since planning permission was granted the scheme has been significantly modified. It is true that planning permission for the scheme was granted in 1985 by the then Metropolitan County Council to itself before such environmental assessments were required by law. I repeat that the nature, size and location of the scheme surely warrants such an assessment being made available to the House and the Select Committee.
Therefore, my first argument for asserting that the Bill is premature is that no environmental statement and no statement offering the tests—the need for which the environmental review before us refers—have been made available. Moreover, the landfill site committee of another place is currently inquiring into the high standards required by a Euro-draft directive
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on landfill. The thought of allowing a 1985 approval given by an authority to itself to authorise the intake of millions of tonnes of waste into the promoters' scheme escaping without examination in the light of all that has come about in the use of the word "pollution" would be inexcusable and dangerous to the public. I regret that the noble Lord did not refer to any of these matters in what he said to us.
I now come to the second reason why the Bill is premature. In September 1990 the promoters of the Bill who are the local authority, granted themselves planning permission for the river diversion. I understand that the validity of that planning permission is considered questionable. I further understand that a judicial review has been authorised. The Bill does not seek planning permission for the river diversion. If the Bill were passed and the judicial review invalidated the planning permission, the promoters could not go ahead. Of course we do not know when the judicial review will take place nor, obviously, what the outcome will be.
I come to another reason why the Bill is premature. I want to make the point particularly to my noble friend the Minister. The noble Lord told us that the local authority has all-party support for the Bill. I have received a letter from the leader of my party on the council indicating significant government backing for the project
"because of the innovative way in which it seeks to tackle the problem of disposal of large quantities of both household waste and colliery spoil in an environmentally acceptable manner".
It emphasises that numerous Ministers who are honourable friends of mine, have visited the site and have expressed their "support". The letter names several of them. "Environmentally acceptable" has yet to be proven. We—that includes Ministers and the department, the Select Committee and this House—must await the environmental statement and the further evidence that it will contain on a number of crucial environmental aspects including leakage and pollution, before the project can be fully considered.
There are further reasons why in my view the Bill is premature. I must weary the House for a moment with three pieces of land owned by the petitioners and which are crucial to the promoters' project. Part of the bed of the river is owned by the petitioners. The promoters have made a CPO and parallel with that they have sought power in the Bill to acquire that piece of land. If the Bill passes the petitioners will lose the land in the bed of the river which they now own with no right to a public inquiry or an appeal.
That may or may not concern noble Lords. I shall later come to the point at which that matter should worry the House. The second piece of land is the Warmfield potential waste disposal tip to which the noble Lord referred when he spoke of the land owned by the petitioning company. That land is part of the Normanton Park Estate and it is owned by the petitioners. The potential tip site has been subjected to extensive studies under the direction of ACFR consultants, the organisation resulting from the merger of Freeman Fox and John Taylor and Sons.

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Planning application was put in a few months ago for the development of a waste disposal scheme by the petitioners for controlled waste.
Non-determination by the Wakefield local authority, the promoters of the Bill, of this planning application by the end of April was deemed under the law a refusal of the planning application. I understand that the Warmfield company will be lodging an appeal and will seek the holding of a public inquiry before an inspector. That is a process intended to ensure an early opportunity for a full technical appraisal and attendant audit of all the issues involved including those arising from the Bill. I am led to understand that it would be extremely unusual if such a public inquiry is not granted. If in the event the promoters fail to win their compulsory purchase order there will be no case for the river diversion.
The third piece of land is extra land which is not covered in the Bill. Its compulsory acquisition is not provided for in the Bill. I am sure it is shown on the maps. It is extra land needed for the project. It is also owned by the Normanton Park Estate and indeed is part of its own scheme, the potential waste disposal site to which I have just referred. Here Warmfield company has the chance to oppose the compulsory purchase order placed by the promoters. If Warmfield were to win that compulsory purchase order, once again the promoters could not go ahead with the full project and the scheme would be truncated.
It is true, I have to say to the House, that the promoters could try to amend the Bill to include the land they need; and no doubt, if they did that, they would prejudice the rights of the petitioners, because they would then, if the Bill passed as amended, find their op position compromised at a planning inquiry.
All these issues—the judicial review of the planning permission granted to itself by Wakefield for the river diversion; the outcome of the compulsory purchase order on the bed of the river, if it were to be decided before the Bill is concluded; the outcome of the public inquiry or of any public inquiry on the deemed refusal by Wakefield of the planning application of the Warmfield potential disposal tip —are important. If they lose—in the outcome of any compulsory purchase order on the extra land needed by the Bill—then once again the House and the Select Committee will be asked to consider a Bill that will need substantial changes, quite apart from having to await the evidence of the environmental statement.
All these hearings and decisions with which I have wearied the House will be strung over months and months. Not even the noble Lord who has just spoken can forecast when they will all occur. During those months the House of Lords will be considering a Bill that the promoters may find truncated, or worse.
I have one other point to make about the Bill. The House will have noticed that the noble Lord actually took credit for what he called—I am not using his exact words—the advantage to the neighbourhood of the project being sufficiently large so that other disposal sites would not be needed. That is another way of expressing an intention to create a local monopoly, which is against this Government's policy and against European policy and, I should have
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thought, against the policy of all parties. It is not sensible to leave one disposal tip for controlled waste. In fact, the Bill seeks to open the door to enable the promoters to subsume by extension of their major scheme that scheme of a similar nature of the petitioner, thus potentially leading to a local if not regional monopoly for the intake and disposal of controlled waste.
In the light of all those arguments—I am sure there are many more—I have to ask the promoters via the noble Lord who has a right to reply to consider deferring the Bill. I ask my noble friend the Minister to take into account the need to appraise the risks and the pollution dangers in this large project when a full environmental statement is received and to regard such ministerial and departmental approval, as manifested in the letter to me from the leader of the Conservative group on the local council, as provisional until the implications of the environmental statement and the further tests it will embody are known.
I ask my noble friend the Minister to take into account the interests of all those who might be injured by the pollution. I am not saying that there will be pollution; I am saying we cannot make a judgment until we have the final environmental statement. I ask my noble friend the Minister to bear in mind the interests of the petitioners and to bear in mind that the promoters seem to be seeking a local or even a regional monopoly of waste disposal that is potentially damaging to the public as they are seeking to acquire a nearby competitor. I hope the noble Lord will reply to some of these points.
Lord McIntosh of Haringey: My Lords, before the noble Lord sits down, perhaps I may refer to the statement with which he opened his speech about his connection with the Warmfield Company, of which he is not a director but of which he has been invited to be a director. He indicated, very fairly and properly to the House, that he was likely to consider favourably the invitation, which is still open.
I have looked at the standing order on declaration of interests. I say at the outset that I have no doubt, on advice taken from the Clerks, that the noble Lord was in order in everything that he said. However, I ask him to consider the fact that the Bill will take its course over a considerable time and that if he were to accept a directorship of the Warmfield Company he would come under the conditions of the Standing Order on declaration of interests. It states that it is undesirable, which in our House means out of order, for a noble Lord to advocate, promote or oppose in the House any Bill or subordinate legislation, if he is acting or has acted personally in direct connection with it for a specific fee or reward, or to vote on a direct Private Bill in which he has a direct pecuniary interest. The noble Lord is on the right side of the line but it is a very difficult line to draw. He will be aware that any change in his status as a prospective director would affect his ability in the future to comment further on this Bill.
Lord Joseph: My Lords, I am grateful to the noble Lord for giving me the opportunity to say that, while I am a new Member of your Lordships' House, I really

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do not need guidance quite in those terms. Of course I would scrupulously obey. Had other Members been willing to take what I should have thought would be an interest from the CPRE's point of view, I should not have felt it necessary to intervene today. In fact I constantly sought other interventions, and it was only when there appeared to be a risk that there would be no debate in this House that I came before the House and declared my interest fully.
8.17 p.m.
Lady Kinloss: My Lords, the noble Lord, Lord Ezra, in introducing this Bill, has explained it with great clearness and detail. I am pleased to support the Bill, and especially its environmental aspects. North Yorkshire County Council and Wakefield Metropolitan District Council are in agreement over this project.
At present the River Calder flows through the middle of the reclamation area. Diverting the river would create a much larger area for landfill. This also presents a great opportunity to enhance the environmental value of the river corridor by creating a channel which has a wide variety of sectional forms and features. By creating a greater area of landfill, the council will, in disposing of domestic waste and spoil from the coalfields, acquire more money with which to increase leisure and pleasure—in other words, recreational potential. The environment will be much improved, which is surely the desire of everyone, the outlook will be pleasing, wildlife will be protected and woodlands and other amenities such as marina basins will be created. By doubling the landfill capacity at this site at Welbeck, the local authority and British Coal will avoid having to create a whole series of alternative tipping sites on green field land elsewhere.
The Selby coalfield, which is in the North Yorkshire County Council area, has now, because of adverse geological conditions, developed a major waste disposal requirement. As the chairman of the North Yorkshire county planning committee, Mrs. Edwards, has told me, they want if possible to avoid the development of a tip on a green field site on grades 2 and 3 agricultural land. The Welbeck scheme offers a major opportunity to solve this problem and bring benefits to the Wakefield area by greening land which at present is derelict.
The British Waterways Board supports the diversion of the River Calder, stating that it will have no direct impact on existing navigation as used at present. The board supports the diversion as it allows a larger area to be reclaimed and it is currently having discussions with Wakefield Metropolitan District Council and the waste management authority to discover whether domestic waste from Wakefield can be carried to the site by barge. While the site is being restored, part of the land can be used for sport, recreation and water activities. If waste is carried by barge, the unloading facilities themselves can be turned over to recreational or marina use on the completion of the site.
The Nature Conservancy Council for England, now English Nature, welcomes the inclusion of
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Section 31, which imposes a duty on the council in subsection (1) to take reasonable steps to further the conservation of flora and fauna of scientific interest. English Nature also feels that the scheme shows considerable potential, following restoration, for the creation of wildlife habitats, which are scarce in the district.
I live in North Yorkshire, near York, and have seen various derelict sites around the area in Wakefield and other parts nearby. Some have been reclaimed and transformed into low, grass-covered undulations which make the areas pleasing to look at. That has happened over the past 20 or so years, during which time, as I said, there have been great improvements. As the noble Lord, Lord Ezra, pointed out, environmental improvements are already under way in Welbeck. Work has already begun on a reclamation and landfill scheme.
I support the Bill, as it will improve the environment and leisure and recreational activities in an area which at present has parts which are beautiful but which are spoilt by the derelict areas that surround them.
8.23 p.m.
The Earl of Swinton: My Lords, I should like to congratulate the noble Lord, Lord Ezra, on the clear way in which he introduced the Bill. Like the noble Lady, Lady Kinloss, I wholeheartedly support the Bill. However, as Trinculo said in "The Tempest"—I hope that I have got the quotation right:
"Misery acquaints a man with strange bedfellows".
I do not mean to say that this is a miserable Bill. I think that it improves not miserable land but very severely degraded landscape, but it is certainly supported by some very strange bedfellows. Apart from both being situated in Yorkshire, the city of Wakefield Metropolitan District Council and the North Yorkshire County Council have little in common either politically or scenically, yet this Bill, promoted by the former, is most strongly supported by the latter, as the noble Lady, Lady Kinloss, has just said.
As noble Lords have heard from the noble Lady, Lady Kinloss, and also from the noble Lord, Lord Ezra, Selby waste will be used for a beneficial purpose, rather than having to be disposed of on rich agricultural land. However, in case any noble Lords may think that North Yorkshire is acting in a rather selfish way in the matter and not looking after its own beauties, I can assure them that, in the south of the county at present, power station waste from Ferrybridge and domestic waste from the Wakefield area is imported into the county for disposal at properly managed sites.
Two other agencies which, sadly, do not always agree with each other, are also strong in their support for the Bill. I refer to the two government advisers on wildlife and the countryside—namely, English Nature and the Countryside Commission. Unfortunately, it is not often that those two organisations get together. I believe that, when they do so in order to support such a scheme, there must be an awful lot in it environmentally.

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I know that the Government will be neutral on the matter. However, as the two agencies which give them advice on countryside issues are actively in support of the Bill, I hope that perhaps they will, if not positively supporting it, be at least benignly neutral. I wish the Bill a Second Reading and a speedy passage through Parliament.
8.25 p.m.
The Parliamentary Under-Secretary of State, Department of the Environment (Baroness Blatch): My Lords, it is by convention that the Government take a neutral stance on private Bills and this Bill is no exception to that rule. The Government have considered the content of the Bill and they have no objection in principle to the powers being sought by the council.
As the House has heard, the Bill is being promoted in furtherance of a large scale reclamation scheme, involving a diversion of the River Calder, and the provision of substantial new landfill capacity for the disposal of municipal waste and colliery spoil. The scheme is expected to bring a number of environmental benefits to the area and the Government have already provided substantial grant-aid for some aspects of it.
However, as this is a private Bill, it will be for the Council, as the Bill's promoter, to persuade Parliament that the powers they seek are justified. I note that there are two petitioners against the Bill. They will have the opportunity to present their objections to the Select Committee. The committee will be in a very much better position than we are tonight to examine in detail the issues involved, and it will have the added advantage of hearing expert advice.
I should point out at this stage that it would be particularly inappropriate for the Government to take sides on the Bill, or indeed to respond to the specific points raised by my noble friend Lord Joseph. I say that because some of the associated compulsory orders which the council has made under existing public legislation may come before the Secretary of State for determination. I am sure noble Lords will agree that it is right for the Government to maintain their neutrality in those circumstances. However, I hope that the House will give the Bill a Second Reading so that it may proceed in the usual way to the Select Committee for detailed consideration.
8.27 p.m.
Lord Ezra: My Lords, I should like to thank all noble Lords who have taken part in the debate. It is clear that those who have spoken have studied the issues with care. They have come forward with constructive proposals or with points of comment, especially in the case of the noble Lord, Lord Joseph, which obviously merit serious consideration.
I should like to refer to some of the points raised. The noble Lord, Lord McIntosh of Haringey, talked about the effect of inadequate provision for restoration after mineral workings from which we have certainly suffered over the years. However, in regard to mineral workings such as opencast coal, I
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should like to point out to him that while I was at the coal board, and indeed before I took over as chairman, we reached a very high standard for reclamation, which I believe has been recognised throughout the world. These things are now much better. However, what we see at the Welbeck site is the effect of past mineral workings which have created what is a most appalling mess to look at. It must be dealt with in one way or another.
The noble Lord, Lord Joseph, raised many issues. He considered that the Bill was premature. He doubted the prudence of the proposals and the safety of the project.
Lord Joseph: With respect to the noble Lord, I said that it would not be possible to judge the prudence and the safety until we had the final environmental statement. That is rather different from what the noble Lord said.
Lord Ezra: My Lords, I thank the noble Lord. I was just about to mention his point about an environmental statement. As he rightly said, there is no requirement for it in relation to the Bill. The promoters have already undertaken extensive environmental appraisals, copies of which the noble Lord evidently has, and have decided to consolidate and supplement them in preparation for the Select Committee. They intend to deposit an environmental statement in Parliament before the Select Committee commences its sittings. I believe that that completely answers the point raised by the noble Lord.
The petitioners have seen the detailed environmental review in relation to the river diversion which was lodged with the reserved matters planning application. Much work has been done by the promoters and they will put forward—although they are not bound to do so—a full environmental statement for the benefit of the Select Committee.
The noble Lord, Lord Joseph, referred to the dangers of pollution. I am not quite with him in that respect. What are the dangers of pollution from the normal tipping of colliery waste and domestic refuse? Such material has to be deposited in controlled conditions. Therefore, who better to see that such conditions are adhered to than the waste disposal authority and the local authority? If they cannot do the job properly, who can? In my experience these matters can be handled very satisfactorily. We are not talking about toxic waste; we are talking about normal domestic waste and normal colliery spoil, neither of which is a potential cause of pollution. The only form of pollution that could be caused would be if they were handled inexpertly. I should have thought that that is the last thing that the council and the waste disposal authority would allow.
The noble Lord referred to a judicial review for the river diversion which might impede the implementation of the Bill if it were to pass through Parliament. That may be, but I fail to see why that should hold up the measure. If other developments take place, they will have to be considered in due time. What perhaps concerned me most about his remarks was that he seemed to think that there should be an alternative way of dealing with the waste and that the Warmfield

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Company, whose cause he was supporting, should have the facility to develop its own waste disposal arrangements.
I should like to ask the noble Lord—I do not know whether he will reply now or at a later date—whether the company has plans which would accommodate the quantity of waste about which we are talking. Does it have plans which would accommodate the amount of colliery spoil from Selby about which we are talking? That will amount to 25 million tonnes over the period. If it does not, what will happen to that waste and spoil? The noble Lord said that one reason he objected to the scheme was that it would form a type of local waste disposal monopoly. That is an odd way to put it, I must say. Does he prefer that the waste be scattered around the north Yorkshire countryside, encumbering a number of green field sites all over the place, in the interests of competition, with a total disregard of the environmental impact? That would seem to be the alternative.
Here we have a desolate site. I am sure that he has seen it. I have seen it. Anything one does for that site will be for the better. It is appalling. Here we have an opportunity to put it right; to transform it into undulating countryside with an extended waterway; to dispose, in a properly controlled manner, of the large quantities of waste which unexpectedly have arisen from the Selby coal operation; to create void space, which is badly needed throughout the country; and to dispose of domestic waste in an acceptable way.
I hope that the noble Lord will reconsider those objectives in the light of what he said. I do not believe that he presented us with an alternative. He pointed out various ways in which he thought that the measure was premature, but I did not glean from what he said that he was putting forward an alternative to deal with the pressing problems that we have been debating.
I appreciate what the noble Lady, Lady Kinloss, said. As she rightly said, Clause 31 is important and shows the promoters' dedication to the concept of conservation.
The noble Earl, Lord Swinton, was also kind enough to support the Bill. He emphasised the beneficial use to which the unexpected Selby waste could be put. It is, as he rightly said, a unique opportunity to make something positive out of an unfortunate occurrence. The geological faults discovered at Selby will at least yield material which can contribute to environmental improvement. I should have thought that that was an opportunity far too good to miss. As he also pointed out, English Nature and the Countryside Commission have jointly—I gather this is a fairly rare occurrence—supported the project. So it has support from on high.
The Minister was circumspect, as she was bound to be. The Government have to appear to be neutral when it comes to Private Bills. She said that the Government had no objection in principle to what was contained in the Bill. She pointed out that the Government had aided the existing improvements. The implication—without committing the Minister in
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any way—was that if there were to be further improvements the Government would look favourably on aiding them.
We have had a useful debate. We have heard a number of views on the subject. The noble Lord, Lord Joseph, stimulated us into thinking about the project, but I am convinced that it is one of the best and most desirable reclamation projects that I have come across in a long career of involvement in disposing of waste materials.
On Question, Bill read a second time, and committed to a Select Committee.

Education Reform Act 1988 (Application of Section 122 to Institutions in Wales) Order 1991
8.35 p.m.
The Minister of State, Ministry of Agriculture, Fisheries and Food (Baroness Trumpington)The Minister of State, Ministry of Agriculture, Fisheries and Food (Baroness Trumpington) rose to move that the draft order laid before the House on 4th March be approved [14th Report from the Joint Committee].
The noble Baroness said: My Lords, we are here to consider whether my right honourable friend the Secretary of State for Wales should be empowered to transfer the Polytechnic of Wales and the other local authority institutions of higher education in Wales out of the local authority sector.
The background to this proposal is the Government's decision, taken in 1987, to leave the Welsh institutions of higher education in the local government sector while the English institutions were incorporated and responsibility for their funding was transferred to the Polytechnics and Colleges Funding Council (PCFC).
Your Lordships will be aware that we owe the growth of the public sector of higher education in Wales almost entirely to the local authorities. There is one voluntary college in Wales with some 700 students, but the remaining 15,000 students in the public sector are all in the local authority institutions of higher education. We owe a debt of gratitude to the local authorities that over the years have supported, sustained and developed the Polytechnic of Wales and the Welsh colleges of higher education and have brought them to the position they are in today, a position of mature development where it is right for them to be given independence from their maintaining authorities.
Four years have passed since it was decided to leave the Welsh colleges in the local government sector; four years in which they have continued to grow and to mature. The recommendations of independent consultants, Price Waterhouse, received last year, that the Polytechnic of Wales should be given corporate status with funding from the Welsh Office were timely. In considering those recommendations and their implications for the other higher education institutions, my right honourable friend has also had regard to the successful experience of the English polytechnics and colleges since they became independent in

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1989, and also the equivalent institutions in Scotland where it has been accepted for many years that higher education is best provided by independent colleges. He has concluded that it will now be in the best interests of higher education in Wales if all the Welsh higher education institutions are given similar status to their counterparts elsewhere in Britain. I believe that the Opposition also take the view that the higher education institutions should now become independent of the local authorities and that the time has come for them to be funded by an all-Wales body. In a policy document published last year the Labour Party envisaged higher education in Wales becoming the responsibility of the proposed regional government for the Principality.
I should like to make it clear that my right honour able friend is not proposing to take control of the colleges himself or to take over ownership of their assets. His proposal is to make the institutions legally independent and to allow them to own their own property and employ their own staff. All the assets currently owned by the local authorities will pass to the independent colleges, which will remain locally based aid will continue to function as they do today. But legal independence will give the institutions the managerial freedom they need to operate successfully in the challenging climate of higher education in the 1990s.
The draft order before us, under Section 227(4) of the Education Reform Act 1988, is an enabling order. Bringing Section 122 of the Act into force in Wales will enable my right honourable friend to make a further order that will incorporate the six institutions concerned and allow him to transfer responsibility for their funding to himself. He already has powers that allow him to fund higher education institutions under the 1944 Education Act. Incorporation will be achieved by the creation of higher education corporations charged with the responsibility of conducting the institutions.
As well as the Polytechnic of Wales, the other institutions that meet the criteria for incorporation are the Cardiff and West Glamorgan institutes of higher education, the Gwent College of Higher Education, Bangor Normal College and, with the agreement of South Glamorgan County Council, which has been given, the Welsh College of Music and Drama.
My right honourable friend announced his intention of exercising his powers to incorporate these six institutions on 30th January. Some noble Lords may wonder whether the Government have further plans for higher education in Wales that go beyond the subject of our debate today. If so, I am afraid I must disappoint them. The Government have no announcements on this subject to make this evening and your Lordships will not expect me to anticipate future announcements that may or may not be made.
I hope that your Lordships will agree that the time has come for the Welsh local authority institutions of higher education to be incorporated and that the enabling draft order that is before us should be approved.
Moved, That the draft order laid before the House on 4th March be approved [14th Report from the Joint Committee]—(Baroness Trumpington.)
8.42 p.m.
Lord Prys-Davies: My Lords, I thank the Minister for her careful and fair explanation of the meaning and implications of this brief but important order. She has explained that it will lead to the incorporation of six local authority institutions of higher education in Wales and their transfer out of local authority ownership and control.
In Wales, since the early part of the last century, people have taken the keenest interest in education and have given it a high priority. Schools and colleges have been seen as significant to Welsh national life and it is important that their governance be responsive to lay opinion. I join the Minister in paying tribute to the Welsh local education authorities, the founding fathers of these colleges. They justly deserve that tribute.
I confess that at first I was unhappy about the Secretary of State's decision to make the local authority colleges of higher education directly accountable to the Welsh Office. I was uneasy about that decision because I feared that it would tend to devalue the role of lay opinion in moulding their development. However, I have always accepted that there was a problem which called for an answer. It had been identified in one report and I believe that it had also surfaced in another. I did not feel that we should simply seek to maintain the status quo with few presentational changes. It seemed to me that that was not on. However, now that the Secretary of State's decision is to be activated, we must ensure that we and Welsh students derive the maximum benefit from the change.
I am interested to know how the Government envisage that the new system will work. I hope that the Minister can tell us more without trespassing upon the White Paper which will be before us shortly. I have a few questions for the Minister.
We are repeatedly told by Welsh Office Ministers that the incorporated colleges will gain independence and freedom. That is a phrase we often hear from their lips. The colleges will be independent of local authority control, of course. But although further away, the colleges will not be independent of the Welsh Office, will they?
What then will be the legal relationship? The Minister referred to legal independence from the authorities. What will be the legal relationship between the incorporated colleges and the Secretary of State? Can the Minister throw more light on that relationship? For example, will it be that of principal and agent—a well-known relationship? Or will it be a relationship between two contracting but clearly unequal parties? We are told that the incorporated colleges will gain freedom; but surely not the freedom to enter boldly into any area of experiment or duplication.
It is comforting to be told by Ministers that there will be no unnecessary duplication of courses, but how will that be achieved without somebody taking pretty

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awkward decisions? Perhaps the Minister can give an indication of who will resolve an institutional conflict between the incorporated college and the Secretary of State. I stress that I have a feeling that the Welsh Office should not assume that the new relationship will not bring its problems.
We are told that the Secretary of State will be advised by a committee of experts from industry. Those are words which I have seen used in another place. Can the Minister say what will be the remit of this committee? Will it be limited merely to advising on financial distribution of the budget between the colleges? Or will the remit be wider? We hope that it will be wider.
The speech in another place referred to industry being represented on the committee. I should be interested to know; why not the professions, in particular those of accountancy and the law? Will the committee contain representation from the colleges themselves? Will it contain a representative from the University of Wales? I suggest that a representative of the Assembly of the Welsh Counties could also make a valuable contribution. On the other hand, will the committee have a representative on the Welsh sub-committee of the Universities Funding Council for as long as that council is in existence?
There is also the wider and important question of promoting co-operation and partnership between the incorporated colleges and the federal University of Wales. This important area was touched upon by Sir Goronwy Daniel's working party on the functions and powers of the University of Wales, although it was not fully explored by the working party as it was outside its terms of reference. I am sure that the Government will agree that it is important to encourage and facilitate co-operation and partnership between the colleges and the university. How do the Government propose to do that?
I now look further ahead and my next comments are delivered in a personal capacity. I do not necessarily represent the views of the Benches behind me. As the Welsh Office comes to play a more dominant role in the development of higher education in Wales, I believe it may become more difficult to defend a continuance of the historic relationship between the University of Wales and the Department of Education and Science in London. Although I am not aware of any demand within the Welsh academic community generally for direct Welsh Office involvement in the affairs of the University of Wales—indeed, I believe there would be opposition from some quarters to such an involvement—nevertheless, I hope that the academic community will come to see in the not very distant future that the case for Welsh involvement in university affairs is substantial.
In the view of some of us, it is not satisfactory that the non-university colleges of higher education in Wales should be looking to the Welsh Office for direction and that the University of Wales should be looking to the Department of Education and a Welsh sub-committee of the Universities Funding Council. Wales is a very small country, with just over 2.5 million people, and it would seem to be far better that
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the higher education system in the Principality should be planned as a whole. Moreover, if the Welsh Office were to be solely responsible for higher education in Wales it would be much better placed to bring influence to bear on government policies, to encourage co-operation with industry and the professions in Wales and, not least, to mould public opinion in Wales, without which an education policy cannot succeed in the long term. Those are merely my own personal views and the Minister need not respond to that part of my speech.
Having put that on the record, I hasten to confirm, on behalf of these Benches, that we agree the Secretary of State should have the power which he seeks by virtue of this Order.
8.53 p.m.
Lord Parry: My Lords, the House will have listened with great interest and respect to the remarks of my noble friend. He is a product almost entirely of the Welsh education system and the words he has used in the House, even his personal words, will be read with great interest tomorrow in the Principality and in the colleges. I should say also to the Minister that the assurances she has given will be greatly welcomed in certain of the colleges. I speak as a member of the governing body of the West Glamorgan Institute of Higher Education. I know that the members are interested in tonight's debate and awaiting a report that the institute will be given, as they hope it will be, the status that is reported it will be given.
I should like to add that the institute, as indeed many others in Wales, is not simply totally concerned with the education of the Welsh. In fact, one aspect that has greatly encouraged me in my association with the West Glamorgan Institute of Higher Education is its international outlook. Confidently Welsh in its siting and a product, as my noble friend said, of the Welsh local authorities, nevertheless, it has sought to develop ties overseas. Only last week its principal, its vice-principal and its senior lecturer were in China, carrying out a seminar as important to the development taking place in China now as it is to the development of ties that have long existed between the colleges in Swansea and in China, even in the most difficult times of the relationship between that great nation and our small one.
This piece of enabling legislation will be greatly welcomed in the colleges, though there will be reservations in the local authorities. It is only fair to say that some of those who have long been associated with the development of education in Wales, through the local authorities, look a little askance at some of the freedoms they see being given. It is understandable that when people have grown up within one system they feel displaced and have reservations about the new policies as that system changes.
However, what has happened in Wales is that the reason for the creation of such institutions as the West Glamorgan Institute of Higher Education has gone away. Originally, the institute was based on coal and steel and its principal purpose in life was to produce educated individuals to work in those two great industries. Those industries have gone away, so it is

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increasingly important that the institutions should align themselves with the new means of earning a living that Wales sees for itself.
I have been greatly encouraged by the fact that the institutions I know are well aware that they need to re-align their old systems to meet the challenge of a new era in Welsh affairs. I reiterate that while there will be some misgivings, particularly in the local authorities, as to the direction in which the colleges will develop without the paternalism of local authorities, within the colleges themselves certainly there will be a very real welcome for the freedom they will receive.
8.56 p.m.
Baroness Trumpington: My Lords, I hope I am not giving away state secrets when I say that the noble Lord, Lord Prys-Davies, with his usual great courtesy, had given me warning of his questions. I am most grateful to him for that and also for his welcome for these proposals.
To take the first of the noble Lord's questions, the relationship between the newly-incorporated colleges and the Welsh Office will be similar to the satisfactory relationship which has existed between the department and Trinity College, Carmarthen, for many years. There is no more reason to think that it will lead to conflict in the case of the newly incorporated colleges than it has done in the case of Trinity College.
Incidentally, the noble Lord added one question: who will resolve conflict between the institutions and the Secretary of State? There is really no reason to think that conflict should arise between them, and the Welsh Office will be very careful not to interfere in the internal affairs of any institution.
To return to the noble Lord's main question, the department will provide funding, in return for which it will expect the institutions to provide courses for a specified number of students. As I say, the department will not interfere in the internal affairs of the colleges.
Secondly, the noble Lord asked who will be appointed to the Higher Education Advisory Group. Its composition has not yet been decided. In due course I expect that my right honourable friend will be looking for expertise in the field of higher education and knowledge of the needs of employers. No doubt he will give consideration to the advantages of maintaining links with the local authorities.
Finally, in answer to the noble Lord, Lord Prys-Davies, we are of course very keen to encourage co-operation between the incorporated institutions and the University of Wales colleges. That is easier to achieve between individual institutions at a local level, but consideration will also be given to creating links at the all-Wales level. These exist at the moment between the Wales advisory body and the Wales committee of the UFC.
I was most interested to hear what the noble Lord, Lord Parry, had to say. I am very glad to have reassured the West Glamorgan Institute of Higher Education—a splendid institution, if I may say so. The international relations which it has and promotes are very important. I wish it very well for the future.
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In conclusion, perhaps I may repeat the Government's view that legal independence and the managerial freedom that goes with it is the right way forward for the Welsh institutions of higher education. I ask for the support of your Lordships in approving the draft order that will enable that to happen.
On Question, Motion agreed to.

Criminal Justice Bill
9 p.m.
Consideration of amendments on Report resumed on Clause 4.
Lord Monson Lord Monson moved Amendment No. 28:
Page 4, line 3, leave out from ("offenders)") to end of line 5 and insert:
("(3) In section 47 of the Criminal Law Act 1977, in subsection (2), line 2, leave out "three-quarters" and insert "seven-eighths".").
The noble Lord said: My Lords, yet again I appear to have drawn the short straw in being obliged to introduce an amendment immediately after the dinner hour when the attentions of most of your Lordships are, quite reasonably, focused elsewhere.
At Committee stage I moved an amendment which would have had the effect of allowing the courts to retain their existing power to pass partly suspended sentences. As a layman I was gratified to receive powerful support for the amendment from highly qualified quarters. There are evidently many in a position to know who continue to believe that partly suspended sentences are a very useful weapon in the judge's armoury. That was borne out by the revelation by the noble Lord the Leader of the House that no fewer than 5 per cent. of sentences imposed currently are partly suspended. This is a significant proportion. Accordingly, I decided to return to the matter today.
However, I revised the original amendment to take into account the minor criticisms made of the relevant clause in the 1977 Bill by the noble Lord, Lord Wigoder, when that Bill was passing through your Lordships' House. The noble Lord, Lord Wigoder, felt that it ought to be permissible to suspend more than three-quarters of a sentence. The amendment meets that particular objective by providing for up to seven-eighths of the sentence to be suspended.
In that way it would be possible to sentence somebody to 12 months' imprisonment with 10i months suspended, meaning a maximum time behind bars of six weeks at most. Such a course will enable a short, sharp shock to be imposed upon individuals without jeopardising their job prospects. Obviously an unemployed person who has been convicted once is much more likely to return to a life of crime than someone in a secure job.
I should add at this point that the noble Lord, Lord Wigoder, has written to me to say that his views on the merits of the option of partly suspended sentences has not changed by one iota since 1977 and that he would certainly support my amendment if he could manage to be here tonight. Sadly, he has obviously not been able to make it.
There is another consideration which has not yet been mentioned; namely, public opinion. If sentences imposed by courts generally become too out of line with public opinion a very unhealthy state of affairs can result. Sooner or later the pendulum can swing back with a vengeance, as we have seen in the United States. However, for the general run of moderately serious and essentially non-vicious crimes—and I have in mind bomb hoaxes and the case I cited on the last occasion of opening the carriage door of a 125 InterCity express when the train is travelling at 100 miles an hour after the perpetrators have drunk too many cans of strong lager—I am convinced that provided a reasonably substantial initial sentence is passed so as to mark the gravity of the crime in the eyes of the state most of the public are content that justice should be tempered with mercy by suspending most of a sentence, especially for non-habitual offenders. I hasten to stress the word "most" rather than "all" because if sentences are wholly suspended the public quite rightly consider that no effective punishment has been imposed.
An example is the case I read about over the week-end. A middle-aged man of hitherto unblemished character quite uncharacteristically carried out an indecent assault upon a young girl. It was a mild form of indecent assault: the girl was below the age of puberty and was therefore possibly unaware of the significance of what had happened. Nevertheless, it was undoubtedly an indecent assault. The man was convicted and sentenced to 15 months' imprisonment with three-quarters of the sentence suspended. I believe that most of the public in the area where the case was publicised felt that justice had been done.
Were the Bill to become law as it stands the judge would have had to impose a sentence of just over three-and-a-half months to achieve the same result, assuming, as we reasonably may, that a repeat offence is unlikely. One can imagine the public reaction and the press outcry if that were to happen—"Only three-and-a-half months for putting his hand on a young girl's thigh? Shocking! Disgraceful! Outrageous!" Therefore, in order to demonstrate that the state took the offence seriously and justice was done the judge would have to impose a sentence of at least six or possibly nine months. The latter would entail the offender spending almost two-and-a-quarter times as long behind bars as he would have done had the partly suspended sentence still been available.
Like my noble and learned friend Lord Ackner when introducing his Amendment No. 27 before the dinner break, I believe that there are many noble Lords here in the House today who desperately want to see the number of people who are in prison in this country at any one time reduced, for humanitarian reasons or for pragmatic reasons or for a combination of the two. Unless they lend their support at least to the principle of the amendment, their aims are likely to be only partially satisfied. I beg to move.
Lord Renton: My Lords, it so happens that I have taken part in the proceedings, in one House of Parliament or the other, on every criminal justice Bill since 1945. The tendency of all of them until this Bill
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has been to acknowledge that the nature of criminal cases and criminal offenders who come before the courts is infinitely variable. For that reason, through all those years, the powers of the courts have been extended so that they may deal more appropriately in each case with that infinite variety of offenders.
By disallowing partially suspended sentences we are again—I say "again"; it is for the second time in the Bill—reducing the powers of the courts. That is regrettable because it is a circumstance in which flexibility is needed. I therefore most earnestly support the amendment moved by the noble Lord, Lord Monson, and I accept his reasons for proposing it.
Lord Richard: My Lords, it may not come as any surprise to the noble Lords, Lord Renton and Lord Monson, to learn that I cannot support the amendment. This is so for two main reasons. First, as the noble Lord, Lord Renton, said, the structure of sentencing in the Bill is totally different from that in previous criminal justice Bills. As I understand it, it is designed to be so. The question on this amendment therefore concerns the extent to which partly suspended sentences can fit into the new structure proposed in the Bill rather than whether their operation could be improved in relation to the old structure that has existed until now.
The noble Lord, Lord Monson, may be right to say that seven-eighths would perhaps be more flexible for suspended sentences than three-quarters in relation to what I call the old structure. However, if one takes the example that he gave, I sincerely hope that once the Bill is passed the judge would say that a custodial sentence would be low down on the list of penalties that he would impose. Given the constraints imposed on the sentencer in Clause 1, I should be surprised if a custodial sentence would be deemed to be appropriate for that kind of offence.
Secondly, Part II of the Bill concerning the nature of custodial sentences provides that, in the case of all sentences of less than four years, the first half will be served in custody and the second half in the community. In effect, it is already a suspended sentence. If someone offends in the second half of that sentence, he may be brought back to court and will be liable to serve the remainder of his sentence in addition to whatever penalty is imposed for the new offence. In effect, therefore, those sentences will all be partly suspended sentences anyway. It would be confusing and inappropriate to empower courts partly to suspend sentences which will themselves be partly suspended. For that reason, the Carlisle Committee, on whose recommendations Part II is largely based, proposed that the partly suspended sentence should be abolished when the committee's recommendations came to be implemented. Both on general grounds of principle and on that specific ground, I cannot ask my absent friends to support the amendment.
Lord Hutchinson of Lullington: My Lords, I should like to support the noble Lord, Lord Richard, and, with the greatest possible modesty, ask the noble Lord, Lord Renton, whose long experience in relation to criminal justice Bills is absolutely unrivalled in this House: is not the trouble that the flexibility given to

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the courts over the years has not resulted in a decrease in crime? It has resulted in overcrowded prisons and in higher sentences which are longer than anywhere else in Europe. One can only say that there has not been a policy of sentencing. Whatever has been going on over the years has not been a success. This Bill tries to do something to improve the situation.
Lord Renton: My Lords, perhaps the noble Lord will allow me to intervene and I thank him for giving way. Does he not realise that, although only marginally, abolishing the partly suspended sentence may well add to the numbers in prison?
Lord Hutchinson of Lullington: My Lords, that is a view expressed by the noble Lord. There is another view, which has already been expressed many times in this House and which I myself hold. It is a matter of opinion in the end.
9.15 p.m.
Earl Ferrers: My Lords, the noble Lord, Lord Richard, should not worry too much about his absent friends. He has friends in all parts of the House and particularly on this occasion.
The noble Lord, Lord Monson, made a case for reducing to one-eighth the proportion of a partly suspended sentence which must be spent in prison.
The Criminal Justice Act 1982 amended Section 47(2) of the Criminal Law Act 1977 to give the courts the flexibility that the noble Lord seeks, and more. The 1982 Act allowed the courts to suspend all but one month of the term. If a two-year prison sentence were imposed, an offender might spend one twenty-fourth of it in prison.
But all this is academic. When we discussed Clause 4 in Committee my noble friend the Leader of the House explained that we saw no place for the partly suspended sentence in the sentencing provisions and early release arrangements that are proposed in the Bill. In future everyone who is sent to prison will be liable to spend at least half of the sentence in prison and the remainder in the community. Once released, he may, if he is convicted of a further imprisonable offence, be returned to prison in order to serve the rest of the sentence. If I may say so, the noble Lord, Lord Richard, is quite right. This new provision effectively replaces the partly suspended sentence.
It seems to us that, if a custodial sentence is to be given at all, it should be a meaningful one and one that should correspond to the seriousness of the offence that has been committed. That is the whole point underlying Parts I and II of the Bill. If a custodial sentence of a particular length is not justified by the seriousness of the offence, we consider that a community sentence is the right course. I suggest that a community sentence is likely to be a more effective sanction than would be a custodial sentence of which all but a small proportion is suspended.
In the light of what I have said, I hope that the noble Lord, Lord Monson, will consider that his amendment would be best not pressed.
Lord Monson: My Lords, I am most grateful to the noble Lord, Lord Renton, who has enormous
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experience in both Houses of legislating on matters of criminal justice, that he should support this amendment.
Looked at from a purely abstract point of view it may well be that the noble Lord, Lord Richard, is right. But one must consider the psychology of the matter. In the case of the minor indecent assault that I cited, the noble Lord hoped that the judge would pass a non-custodial sentence, which might well be merited on the facts of the case. But one must consider public reactions and the consequences of flouting so blatantly public opinion. It is undesirable from the point of view of public policy that sentences imposed by the courts should become greatly out of line with public opinion, whether public opinion be right or wrong.
Although I do not normally take the view that justice should take account of public relations considerations, in this case I do, for the reasons that I suggested when introducing the amendment. As the noble Lord, Lord Renton, confirmed, it may very well lead to people who are convicted of what one might describe as a crime of moderate gravity—not a serious crime—spending rather longer in prison than would otherwise be the case.
However, the House is thin and I have not had a great deal of support apart from the tremendous support of the noble Lord, Lord Renton. Therefore I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 5 [Restrictions on imposing community sentences]:
[Amendment No. 29 not moved.]
Clause 6 [Procedural requirements for community sentences]:
Earl Ferrers Earl Ferrers moved Amendment No. 30:
Page 4, line 42, at end insert ("authorised by Schedule IA to the 1973 Act").
The noble Earl said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 31 and 64. These three amendments make minor drafting changes to clarify the Bill's provisions. I beg to move.
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 31:
Page 4, line 45, leave out ("such requirements") and insert:
("requirements imposed under section 12, 12A, 12AA, 12B or 12C of the Children and Young Persons Act 1969 ("the 1969 Act")").
On Question, amendment agreed to.
Lord Mottistone Lord Mottistone moved Amendment No. 32:
Page 4, line 45, at end insert:
("() "Suitability" in subsection (3) above includes activities which are of benefit to the community and which can be expected to have a positive corrective effect on the offender.").
The noble Lord said: My Lords, after Committee stage, I spoke to a group of magistrates from the Isle of Wight Bench about the Bill, in particular about the amendments that I had moved which had been recommended by the Magistrates' Association. When discussing community orders, one of my experienced friends asked, "Could you not put down an amendment to ensure that when made, under

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whatever categories listed, orders are meaningful?" That is the amendment that I put forward. It is worded so that the provision is optional. My friends considered that an element of service to the community would be very convincing. However, they were reluctant to choose such an alternative to prison where it was a possible option because they were not always sure whether it would have the corrective effect on the defendant. I therefore propose the amendment.
I suggest that such a mild amendment, which merely points the probation service and other bodies in the right direction, deserves insertion in the Bill. It is easier for the magistrates' courts, and the grander courts about which we hear so much in this Chamber, to consider a community alternative if they believe that it is meaningful and has the required effect. I beg to move.
Earl Ferrers: My Lords, I am grateful to my noble friend for explaining what his amendment means. I think, however, that the Bill already meets his concern.
Clause 5(2) (a) requires a court imposing a community sentence to choose the particular community order which is most suitable for the offender. Clause 6(3) requires it to obtain and consider a pre-sentence report before deciding on the suitability of one of the particular community orders listed there. I can assure my noble friend that, in deciding whether an order is suitable, the courts will take into account such matters as whether it includes activities that will benefit the community or prevent re-offending. Which of these predominates will of course depend on the offence and the offender. An act of criminal damage might be best met with a community service order, which would highlight the element of reparation for the community. On the other hand, the most suitable sentence for an offender who stole money to fuel a drug addiction might be a probation order with a requirement to undergo treatment. The pre-sentence report would bring this out. It goes without saying that if an order helps to prevent re-offending, it automatically benefits the community.
I believe that the Bill meets the concerns of my noble friend and his friends on the Isle of Wight. I hope that he will be able to accept that.
Lord Mottistone: My Lords, I am grateful to my noble friend for that explanation. Perhaps I may leave the House with this thought. The amendment would never have arisen if our Bench did not believe that what was offered by the probation service and others did not meet the requirements of the Bill. Perhaps the Home Office will consider more carefully exactly how we shall produce a community order which will achieve the required objective. My friends believe that the existing provisions do not always do that. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 33 not moved]
Clause 7 [Probation orders]:
Lord Renton Lord Renton moved Amendment No. 33A:
Leave out Clause 7.
The noble Lord said: My Lords, I do not intend to divide the House on this issue but I have tabled the amendment in order to give your Lordships the opportunity to discuss a fundamental change proposed in Clauses 5, 6, 7 and 8. A probation order would be made into a sentence of the court. That never has been the case and I suggest that it should not be the case. I wrote to Ministers about the matter but they did not receive my letter until yesterday. The issue is so well known that they cannot have been placed at a disadvantage nor been taken by surprise.
Until now, and since early in the century when probation was first introduced, the essence of a probation order has been that the accused is given a chance to reform his character instead of having a sentence recorded against his character. In doing so he is given the help of supervision by a probation officer for a period stated by the court, generally varying between nine months and three years. If the offender wisely accepts the guidance of the probation officer, is not in breach of the conditions laid down by the probation officer, and commits no further offence during that time, he will benefit by having no sentence recorded against him. That provides the offender with an incentive to accept the advice of the probation officer and to go straight. If he disobeys the probation officer, is in breach of any conditions laid down or commits a further offence he will forfeit that advantage. He will then be brought before the court and sentenced for the offence for which he was put on probation and for any further offence that he has committed.
It is now proposed in the Bill that the probation order, instead of providing a chance to reform without the stigma of a sentence, should itself become a sentence—a punishment. There is no question of the offender being given a chance to reform his character in order to avoid a sentence being recorded against him.
In Committee I asked my noble friend Lord Waddington, who then replied on behalf of the Government, what will happen under the new arrangement if the offender becomes in breach of the probation order—let us leave aside the question of a further sentence—and the court has to deal with him for that breach. The court cannot sentence him again—no one in our country can be sentenced twice for the same offence. I was given the strange answer that he will be given one day's imprisonment. Sentencing for the further offence presents no difficulties and never has.
Probation can be of great value not only to first offenders and to those who have never been in custody but to those who have previously been in prison. I remember thinking about a series of sentences of imprisonment which had been given to a man who had committed offences right through his 20s; I remember thinking that they were doing him no good. He would just go on and become a complete recidivist into middle age. I put him on probation order for three years telling him that if he did not observe the conditions of his probation order or if he committed any other offence he would receive a very heavy sentence indeed. For a few weeks he did go straight

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and took the hint. However, he was then in breach and I sentenced him to a longer sentence of imprisonment than he had had before. He had been given a chance and had not taken it.
I remember another rather similar case which I followed up. A man had been in and out of prison for about seven years. I put him on probation for three years. He observed the guidance of the probation officer, he went straight, it reformed his character and he obtained settled employment.
We must be very careful about what we are doing in this Bill. Perhaps I may say with deep respect—and I respect all those concerned—that there has been a great deal of zealous rethinking going on behind the scenes in the Home Office, largely by people who have never had responsibility in the courts. They have decided that this new look, these changes for the sake of change, are what are now needed. I humbly beg to differ. We must base our future legislation on experience of the past. It is absurd to ignore it.
As I say, I regard this amendment to leave out Clause 7 as a peg on which to hang discussion. If it were the feeling of your Lordships and especially my noble friend on the Front Bench that there should be second thoughts about this matter, then a few simple technical amendments could be moved at Third Reading so that we could do away with the concept of probation being a sentence. There is no problem about that. I earnestly hope that there may be second thoughts about this matter. I beg to move.
9.30 p.m.
Lord Harris of Greenwich: My Lords, I must admit that I am flatly opposed to the course of action advocated by the noble Lord, Lord Renton. First—and I do not wish to make too much of this—I believe it is unfair to suggest that a number of ill disposed officials at the Home Office have dreamed up this idea because they are in favour of change for the sake of change or something of that sort. This proposal is supported by a great many people in the probation service.
Lord Renton: My Lords, but it is not supported by those on the spot and not by the National Association of Probation Officers who have the responsibility of supervision.
Lord Harris of Greenwich: My Lords, I am well aware of the position of that organisation. However, I am also well aware of the position of the National Association of Chief Officers of Probation, whose members are responsible for the service; and the organisation of which I had the honour to be president, the National Association of Senior Probation Officers. Those organisations are wholly opposed to the view of the noble Lord, Lord Renton.
Quite apart from that, the Central Council of Probation Committees is in favour of the approach in the Bill. When the various services were consulted after publication of the Government's proposals, basically the probation services supported the provisions of the Bill. They include the probation services in Norfolk, Hampshire, West Yorkshire, West Glamorgan, Dyfed, Suffolk, Warwickshire,
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Inner London, Gloucestershire, Northumberland, Buckinghamshire, Berkshire, Avon and Oxfordshire. There were just six probation areas which did not support the provisions in the Bill.
The reason for that powerful support for the proposals in the Bill is self-evident. Probation orders cover and in many cases require substantial restrictions on an offender's liberty. For example, there may be the requirement to live in a probation hostel away from home for a period of possibly 12 months or to attend a probation day centre for a period up to 60 days. That is a far more substantial sentence—as I would wish to describe it—than a small fine which at the moment is regarded as a sentence of the court. It is for that reason, in my view, that there is such powerful support in the probation service for what the Government put forward.
When we last discussed this matter one of the arguments was that there was a perception by offenders and their families that the situation would be altogether different if a probation order became a sentence of the court. But I wonder whether there is any substance in that argument. Offenders who are given probation orders with conditions see it very definitely as a penalty. They are unlikely to be impressed by being told that, although they must report to a probation officer every week, possibly for a period of two or three years, live in a probation hostel, be in perhaps at 10.30 every evening or attend a day centre, it is not a punishment because they are not being sentenced by the court. That mistaken view was expressed by the noble Lord, Lord Renton.
Speaking for myself, and I am sure for others, we want to see probation orders, with conditions in many cases, extended to far more people who come before the courts. I regard it as entirely reasonable and consistent with that objective that probation orders should become sentences of the courts.
Baroness Faithfull: My Lords, I support my noble friend Lord Renton. I am slightly shocked that all the probation departments named by the noble Lord, Lord Harris, are against the amendment. I have not been a probation officer but I have dealt with supervision orders for juveniles which are very much the same as probation.
The basis of probation is the personal relationship between the probation officer and the person on probation. The successful work of a probation officer depends on a good casework relationship between the probationer and the probation officer. I support the noble Lord, Lord Renton, because it is on the basis of such relationships that probationers are helped.
Earl Ferrers: My Lords, we debated in Committee whether or not the probation order should become a sentence. As my noble friend rightly said, he recently wrote to me in that regard. We remain of the view that it should become a sentence. There are several very good reasons for that.
Of course it is a change and in some ways it may be a controversial change; nevertheless, there are good reasons for it. One of the most important is that the probation order, and the concept of probation itself, has developed a great deal. Probation is not about

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giving the first-time minor offender an opportunity to prove himself while a probation officer sorts out his difficulties. It has developed into a very useful way of dealing with more serious offenders; of tackling their criminal behaviour and attitudes, not only their welfare problems, in order to reduce the risk that they will re-offend in future.
The probation order is being used now for more serious offenders. In 1980, 22 per cent. of those starting a probation order had previously received a custodial sentence. By 1989 the proportion had risen to 38 per cent. In 1980 three out of four of those starting probation had a previous criminal record. In 1989, the figure had risen to six out of seven. Nowadays probation work focuses much more on making offenders face up to their crimes. A probation order with a requirement to participate in a programme of activities at a probation centre may make an offender think hard about what he has done and how he can go straight in the future. After all, preventing re-offending is very important. I think that this change of emphasis has done a great deal to restore the confidence of judges and magistrates in the probation order. It is precisely because the probation order has changed so much that the Bill confers on it a sentence in its own right.
That is very much in keeping with the philosophy of the Bill. We all want to make sure that prison is reserved for the most serious offender. That means that there needs to be an effective way of punishing offenders whose crimes are serious enough to merit more than just a fine, but not so serious that they must be sent to prison. Community sentences must make real demands on the offenders. Making the probation order a sentence gives the courts a valuable additional option in dealing with a number of serious offenders; namely, sex offenders, domestic burglars and the like.
My noble friend said that the probation order is similar to a conditional discharge. I do not believe that that is so. The conditional discharge is suitable for first-time petty offenders. It gives them another chance. It will still be there for the less serious type of offender in future. If a court wants to give an offender a chance to prove that he can stay out of trouble, it can impose a conditional discharge. But we ought to face the facts. Probation orders in fact make much greater demands on offenders and they are now being used for a very different category of offender.
My noble friend Lord Renton referred to what happens if an offender fails to comply with the requirement of a probation order. Schedule 2 to the Bill sets out the penalties for the breach itself. These include a fine up to £1,000 and a community service order. Alternatively, the court can revoke the probation order and deal with the original offence in some other way. It is likely to do that if, for example, the breach shows that the offender has no intention of complying with the probation order.
My noble friend was also concerned about the effect on an offender's criminal record if the probation order becomes a sentence. At present under the Powers of Criminal Courts Act 1973, an offender who is given a probation order is treated for almost all
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purposes as if he had not been convicted of the offence; though if he breaches the order and comes back to court he is liable to be sentenced in some other way for it. As long as he goes straight he can tell the world afterwards that he has no previous convictions. That will not be true in future. A conviction that leads to a probation order being passed will count as a conviction in the same way as one which leads to a community service order, until in due course it becomes spent under the Rehabilitation of Offenders Act 1974.
I remind your Lordships that in the main we are not talking about first-time petty offenders. We are talking more and more about people who have in the past committed a number of crimes and who may now have been convicted of a serious offence. I do not see why the records of those kinds of offenders should benefit when those of offenders who have been fined or given community service do not.
It has been pointed out by my noble friend that the National Association of Probation Officers opposes the change introduced by the Bill. That is perfectly true. The noble Lord, Lord Harris, was perfectly fair when he said that almost every other organisation which deals with offenders and which has made its views known takes the contrary view. The National Association of Probation Officers is perfectly entitled to its views. However, I am not sure that those views necessarily reflect the opinion of all probation officers. I am sure that no one would suggest that the views of one organisation should be regarded as tablets of stone in the face of the arguments which I have set out and indeed in the face of the views expressed by just about everyone else, even if they did succeed in shocking my noble friend Lady Faithfull. The opinions of all probation practitioners are worth hearing, as are those of magistrates and judges.
In the light of this further explanation I hope that my noble friend will accept that the probation order of the future is a different kind of beast from what it was in the past. It has a different characteristic and a different purpose. That being so, I hope that he will be able to accept the view which is taken by the Government and which is taken by most other organisations on this matter and will be content to see this clause remain part of the Bill.
Lord Renton: My Lords, I am grateful to my noble friend Lady Faithful] for the support that she gave in the light of her own experience. I am also extremely grateful to my noble friend Lord Ferrers because for the first time in the course of our proceedings we have had a really full description of what is now intended. It is not on the face of the Bill; it was not in the White Paper. We now have a very much fuller picture. I should naturally like to consider that.
Before I go any further perhaps I may say that, in deploying the case which I did, I described and acknowledged the part that probation has to play in the case of those offenders who have been before the courts on several previous occasions. I am glad to know that the Government consider that there is great scope for probation with regard to those people—perhaps an even greater scope than there has been in practice in the past.

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As I said, I regarded this amendment as a peg on which to hang a discussion. It has proved to be a much more interesting and full discussion than I had ever hoped for. It is most unlikely that I shall pursue this matter any further, although I must confess that in principle I still dislike the idea of probation becoming a sentence. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 1 [Amendments of 1973 Act]:
Earl Ferrers Earl Ferrers moved Amendment No. 34:
Page 67, line 7, leave out ("his detention in pursuance of a hospital order under Part III") and insert ("the making of a hospital order or guardianship order within the meaning").
The noble Earl said: My Lords, in moving this amendment I should like to speak also to Amendments Nos. 35, 36 and 44.
Amendment No. 34 to Part II of Schedule 1 extends the scope of paragraph 5(1). This provides at present that a probation order with a requirement to undergo treatment for a mental condition may not be made on an offender whose condition is such that he needs to be detained in a mental hospital under a hospital order. A hospital order under Part III of the Mental Health Act 1983 may be made if two medical practitioners satisfy the court that the offender is suffering from a mental disorder whose nature or degree makes it appropriate for him to be detained in hospital for medical treatment. Such offenders should clearly be in hospital rather than out in the community on a probation order.
We propose that a similar restriction on making a probation order with a treatment requirement should apply if the offender's condition warrants instead a guardianship order under the Mental Health Act. Guardianship orders are similar to hospital orders, in that two medical practitioners must satisfy the court that the offender is mentally disordered and that the nature or degree of the mental disorder warrants his reception into guardianship. The difference is that he would not be detained in a mental hospital, but instead would be placed under the guardianship of a local authority social services department or some other person approved by it. That authority or person would have to be willing to receive him into guardianship.
Under Section 37 of the Mental Health Act 1983, a court may not make either a guardianship order or a hospital order unless it is satisfied that one of these would be the most suitable way of dealing with his case. Amendment No. 34 therefore extends paragraph 5(1) so as to prevent a court making a probation order with a treatment requirement when either a guardianship order or a hospital order would be more appropriate instead. That leaves probation orders under paragraph 5 for those who are mentally disordered, but who can still look after themselves in the community. Amendments Nos. 35, 36 and 44 are minor drafting amendments. I beg to move.
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendments Nos. 35 and 36:
Page (7, line 16, leave out from second ("a") to end of line 19 and insert ("mental hospital").
Page 68, line 8, leave out subparagraph (10) and insert:
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("(10) In this paragraph 'mental hospital' means a hospital within the meaning of the Mental Health Act 1983 or mental nursing home within the meaning of the Registered Homes Act 1984, not being a special hospital within the meaning of the National Health Service Act 1977.").
On Question, amendments agreed to.
[Amendment No. 37 had been withdrawn from the Marshalled List.]
Lord Mancroft Lord Mancroft moved Amendment No. 38:
Page 68, line 16, leave out ("dependent on drugs or alcohol") and insert ("a drug or alcohol misuser").
The noble Lord said: My Lords, in moving this amendment I should like to speak also to Amendments Nos. 39 to 43, 45 and 46. To refresh your Lordships' memory, these amendments were originally put forward in Committee because of a desire to see some clarity in terminology as regards the Home Office, the Department of Health, the Department of Social Security and the various other statutory and voluntary organisations which have to deal with this very difficult group of people about which we are talking. I refer to those who come before the courts charged with a variety of offences which may possibly have been caused by their use or misuse of drugs or alcohol.
It seemed to me in Committee, and it still does, that it is ridiculous that different departments and organisations within the same Government cannot agree on a common terminology, especially when they have to liaise together so often. I believe that the probation service is being given much more funding so that it will be able to make recommendations to judges and magistrates. People from the voluntary sector who will treat these people will also be required to give advice and recommendations to the courts. A variety of other people, including doctors and social workers, will also be called upon. However, none of those people currently use the terminology of the Bill; namely, "dependent on drugs or alcohol". Therefore, there is bound to be confusion at some stage because, historically, such people do not like to use it. In Committee I suggested the phrase "problem user". My noble friend the Leader of the House did not like it. So I went away and considered the matter and, in this amendment, I have used the word "misuser".
One of the reasons that my noble friend the Leader of the House gave in Committee for not accepting the amendment was that he wanted the words in the Bill to be more precise. That is one of the problems; it is too precise. None of the experts, be they doctors, professors or those who are not medically qualified, will use the word "dependency" because there is so much debate as to what it means. That is why it was discarded so many years ago—I believe that it was 15 years ago—by the Department of Health. Moreover, many other people will not use the word because it is so narrow.
The term "drug or alcohol misuse" as set out in my amendments not only encompasses an habitual drinker or drug user; it also encompasses a drinker who on occasions drinks too much and a drug user who uses drugs occasionally but not habitually. A person who commits an offence on the odd occasion that he consumes too much alcohol or uses drugs will not be assessed as alcohol or drug dependent by the

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agencies who provide care. He will be assessed as someone who misuses drugs or alcohol. The difference is crucial when considering the treatment possibilities, and the severity of the problem concerning drug or alcohol use, which has to be assessed at that time.
Schedule 1 6(10) explains the reference to "dependency", and is the widest possible reference. It says:
"In this paragraph the reference to the offender being dependent on drugs or alcohol includes a reference to his having a propensity towards the misuse of drugs or alcohol, and references to his dependency on drugs or alcohol shall be construed accordingly".
That is not a definition of "dependency"; it is a definition of "misuse" and it is one of the widest definitions I have ever heard. It is like saying that all carpets are blue, including red, green and yellow ones. It is not that way. The people described in that definition are not dependent; they are misusers. It is ludicrous to put on the front of the Bill the narrowest of definitions and then to say at the back of the Bill that that narrow definition is the widest possible definition, when that first narrow definition will not be understood or used by any of the people who will have to use this part of the Bill.
The second reason my noble friend the Leader of the House gave in Committee was that the Advisory Council on the Misuse of Drugs did not recommend my earlier phrase "a problem drug user and drinker". In preparing the amendment I took the trouble therefore to inquire closely into the recommendations of the working party on the Criminal Justice Bill of that Advisory Council on the Misuse of Drugs. I found, obviously, that my noble friend was correct. It did not advise the use of the word "problem". However, it also did not advise the use of the word "dependency". My information is that it advised that the word "dependency" should not be used and that the terms of my amendment should be used.
In short, all I am asking my noble friend to accept is the advice of the working party of the Advisory Council on the Misuse of Drugs; the advice of the Standing Conference on Drug Abuse, which is the largest co-ordinating body of drug and alcohol treatment organisations; the advice of Alcohol Concern, which is the largest body operating in this field; to use the same terminology as that used by the Department of Health; and to use the same terminology as is used in the Misuse of Drugs Act, which is not the "dependency on drugs" Act. Within the regulations to that Act, the term "misuser" is accurately defined. It is known by the courts and has been used by them for a long time.
This is an amendment which will cost no money. It is an amendment that makes no change to the principle of the Bill. It just makes the Bill more workable for those who will have to work it. I beg to move.
Lord Morris of Castle Morris: My Lords, as your Lordships will be well aware, every Welshman regards a squabble about semantics as second in interest only to rugby football, both as a participatory and spectator sport. Nevertheless, the words "dependency" and "dependent" have proved unsatisfactory to
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a wide range of opinion, and they have done so for a long time. As far back as 1982 the Government's Advisory Council on the Misuse of Drugs recommended the use of the term "problem drug taker", about which we heard in Committee, rather than the range of terms that has developed, including the rather odd "drug dependent", "drug addict" and "drug misuser". A few years earlier the Advisory Committee on Alcohol recommended the use of the term "problem drinker". Yet in most cases the phrase "drink or drug misuser" could be used to replace "dependent" or "dependency" without loss.
The Standing Conference on Drug Abuse has often expressed anxiety that there should be some degree of commonality in terminology. In adopting the recommendations of the ACMD and the Advisory Committee on Alcohol, there will be consistency and comprehension when using terms and their definitions, as recommended by the Government's own advisory groups. The Government would surely be wise to follow the advice of those people they had set up to give them advice.
This is more than a matter of legalistic consistency and bureaucratic tidiness; we are in danger of confusing precision with accuracy. As the noble Lord, Lord Mancroft, pointed out, the noble Lord, Lord Waddington, was correct in his response on 16th April 1991. He said that the words "dependent" and "dependency" are "more precise". That is exactly the point: they are too precise to be accurate. We fear that they may exclude, by their very precision, those people with a drug or alcohol-related problem from appropriate treatment.
By using the term "drug or alcohol misuse", we could encompass those whose drug or alcohol problem at particular times will bring them into contact with the criminal justice system, as well as those individuals who habitually misuse drugs. The noble Lord, Lord Waddington, earlier queried whether "drug or alcohol problem" would refer to an offender who regularly drinks too much or one who sometimes has one drink too many. That is the same problem as the Band of Hope used to have with the word "temperance". I ask noble Lords to consider: is the temperate man the man who never gets very drunk or the man who gets very drunk but only sometimes? Semantics is a wonderful game and we can play it all night. The term "drug or alcohol misuse" not only encompasses—
Baroness Seear: My Lords, does the noble Lord include the man who gets slightly drunk all the time?
10 p.m.
Lord Morris of Castle Morris: My Lords, I believe that the Band of Hope took that condition into consideration gravely, often and for a long period. The term "drug or alcohol misuse" not only encompasses an habitual drinker or drug user but also a drinker who on occasions drinks too much and a drug user who uses drugs occasionally but not habitually. A person who commits an offence on a particular occasion when he has taken too much alcohol or used drugs will not be described as drug

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dependent by the people who have to assess him, but he would qualify as someone who misuses drugs or alcohol.
As the noble Lord, Lord Mancroft, said, the difference is crucial in talking about treatment when the severity of the alcohol or drug use has to be assessed. Paragraph 6(10) of Schedule 1 attempts a definition of "dependent" by including the phrase,
"his having a propensity towards the misuse of drugs or alcohol'".
That still does not clarify the situation or identify for inclusion those who we fear could be left out of treatment.
I spent a merry half hour this afternoon in the Library of your Lordships' House with the Oxford English Dictionary. I do not mean some little pocket version but the whole 19 volumes of it on the Library shelf. I browsed happily through the entry under the word "propensity". It is not a long entry and I commend it to noble Lords who have an idle half hour. The main, central meaning is inclination, disposition, tendency, bent. For those of a curious disposition, the first use of the word comes in 1570 in Foxe's Acts and Monuments. In that sense, we all have a propensity towards drugs and alcohol, as we all have a propensity towards sin. It means little more than an interest or curiosity, the gravitational pull of our human nature. For our present purposes, "propensity" is far too general, far too imprecise. At the one end we have too great a precision; at the other too much imprecision.
The amendment of the noble Lord, Lord Mancroft, would, we believe, mean that all offenders who commit an offence could benefit from treatment if it is appropriate. No one is excluded from the opportunity because they are not dependent or have a permanent inclination or predisposition. I hope that the amendment will commend itself to the House.
The Viscount of Falkland: My Lords, I have little to add to the speeches of the two noble Lords. The noble Lord, Lord Mancroft, covered the ground very well in moving his amendment. It seems—to take a lay view of the situation—that the words "dependent" and "dependency" are far too precise. That was deemed to be so during the Committee stage, when I did not speak on this. However, it seems to me there was some virtue in this precision. Many offenders may go out and offend under the influence of alcohol, and indeed I might feel so moved myself if I became exasperated with a member of my local authority, which happens to be Lambeth. I might become so exasperated that I would go on a binge of alcohol and feel moved to break the windows of the town hall in Brixton, thus committing an offence. It seems to me that it would be unjust and indeed inaccurate if I had to fulfil the requirements of the definition of someone who is dependent on alcohol. There are many, like me, who might become abusers from time to time, although in my own case I think it is unlikely and I use this only as an illustration. I have nothing stronger than a glass of wine occasionally.
It may be that a young man might go out occasionally and create an affray under the influence of drink, but even if he does that regularly he need not
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necessarily be dependent on alcohol. I am sure that the browsings of the noble Lord, Lord Morris of Castle Morris, led him to think that a "predisposition" or "permanent inclination", which is the Oxford dictionary definition—or "propensity", which is what supports the Government's definition—is something which is inappropriate to apply to many people who offend.
Briefly, it seems appropriate that all those who commit an offence should come within the definition which is appropriate to their offence. To apply the words "dependent on alcohol" surely is not the right definition. It is a question of people who abuse drink from time to time and who may commit an offence. I think that the definition in the amendment of "misuse" and of being a "misuser" is, for all practical purposes, the most appropriate and will be of the most benefit both to the courts and to offenders.
Earl Ferrers: My Lords, I could not help envying the noble Lord, Lord Morris of Castle Morris, in that he should have had half an hour to spare, looking up the definition of "propensity" in the Oxford English dictionary. I am sure that his researches were enormously interesting, but I cannot believe that his totality of knowledge might not have been advanced even more had he spent his time listening to the arguments from all sides during the Report stage of the Criminal Justice Bill.
I am grateful to my noble friend Lord Mancroft for explaining his amendments. I understand his concern that the Bill should be as precise as possible about the kind of behaviour for which treatment might be appropriate. This is clearly right, and my noble friend was most persuasive in his arguments. However, in fact I think that this is what the Bill already achieves.
My noble friend said that we ought to take account of the views of the Advisory Council on the Misuse of Drugs, but in drafting the provisions of paragraph 6(10) of Schedule 1, that is exactly what we did. We took full account of the views of the Advisory Council on the Misuse of Drugs. These are reflected in the definition of drug and alcohol dependency in paragraph 6(10) of Schedule 1 to the Bill. That paragraph makes clear that a requirement to undergo treatment may be made not only in the case of a person who is drug or alcohol dependent but also in the case of a person who may only occasionally misuse drugs or alcohol: that is, someone who may go on occasional "binges".
Paragraph 6(1) (a) makes clear that in either case the court must be satisfied that the use of drugs or alcohol caused or contributed to the offending. In other words, the courts must be satisfied both that the offender misuses drugs or alcohol either to the serious degree of dependency or to the lesser degree of misuse and that the offence of which the offender is convicted is connected with the dependency or misuse.
I believe that paragraph 6 of the schedule is clear enough on the matter. The text uses the words "drug or alcohol dependency". That is qualified by the definition in subparagraph (10). It is simply a question of drafting and does not in any way limit the scope of the provisions.

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The expression "drug or alcohol dependency" is also used in the National Health Service and Community Care Act 1990. Section 50 of that Act deals with the funding of voluntary organisations which provide care or services for:
"persons who are, have been, or are likely to become dependent upon alcohol or drugs".
Those are exactly the services that may be used for a probation order with a requirement to undergo drug or alcohol treatment. It is helpful to reflect that terminology in the Criminal Justice Bill provisions.
I suggest that this is not a matter of substance but of drafting. My noble friend Lord Mancroft said that his view was supported by the Advisory Council on the Misuse of Drugs, Alcohol Concern and the Standing Conference on Drug Abuse. All of those bodies are experts on drug and alcohol matters but not necessarily on the drafting of legislation. We have taken advice on the matter and I am satisfied that those who are specialists in drafting are in turn satisfied that the drafting is correct, even though to the layman the appearance may be to the contrary.
Lord Mancroft: My Lords, it is probably too late in the evening to divide the House over a matter of semantics. I would not dream of doing so anyway. It might be suggested that I am just playing with words. However, surely the difference between good and bad legislation is the quality of the words. After all, that is what legislation is. The words are important because people must understand them. It does not matter to me what a book written in Czechoslovakian says because I am not a Czechoslovak and I cannot read Czechoslovakian. However, for those who have to deal with people who misuse drugs and alcohol and
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have to report to the courts on them, the words in this part of the Bill—the words that they will have to use in their work—are very important. As the Bill stands the word "dependency" might as well be double Dutch. They rejected it 15 years ago.
I shall give a classic example. People who take cocaine cannot ever be described as clinically dependent on it. It is not possible to be so. That has long been acknowledged to be the case. However, if one is mugged by a crazed cocaine freak one will not ask him whether he is dependent on it or he misuses it. The answer is that he misuses it, but he will still appear before the court.
My noble friend has said, quite rightly, that the word "dependency" is explained in Part II of Schedule 1 to the Bill. It is indeed. However, the description given there is not a description of dependency; it is a description of misuse.
As I said, it is too late in the evening to pursue the matter. It does not matter to me what is written in the Bill but it matters very much to the probation officers who will be trained to deal with the problem. In their training they will be taught about misuse; they will not be taught about dependency. It will make a great deal of difference to the social workers who at the moment use the word "misuse"; they do not use the word "dependency". It will make a great deal of difference to doctors and psychiatrists who give evidence to the courts, and who do so today and have for many years past. They use the word "misuse" and not "dependency". Needlessly, for the sake of drafting, they will be left with an unclear definition which will make life difficult for them. That is a pity. However, at this stage I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 39 to 43 not moved.]
10.15 p.m.
Earl Ferrers Earl Ferrers moved Amendment No. 44:
Page 69, line 19, leave out sub-paragraph (9).
The noble Earl said: My Lords, this amendment was s Token to with Amendment No. 34. I beg to move.
The Deputy Speaker (Lord Cocks of Hartcliffe):My Lords, before I put the Question, I should inform the House that, if this amendment is agreed to, Amendment No. 45 is pre-empted.
On Question, amendment agreed to.
[Amendments Nos. 45 and 46 not moved.]
Clause 9 [Community service orders]:
Earl Ferrers Earl Ferrers moved Amendment No. 47:
Page 7, line 39, leave out ("sections 17A and 17B below") and insert ("paragraphs 3 and 4 of Schedule (Reciprocal enforcement of certain orders) to the Criminal Justice Act 1991 (reciprocal enforcement of certain orders)").
The noble Earl said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 50, 51, 92, 93, 97 and 99 to 104.
This set of fairly substantial amendments makes arrangements for persons subject to certain community sentences imposed by a court in England or Wales to carry out the sentence in Scotland or Northern Ireland if that is their normal place of residence. It also makes arrangements for an offender convicted or sentenced in Scotland or Northern Ireland to carry out the sentence in England or Wales if that is where he or she lives. The amendments bring the existing provisions for reciprocal enforcement up to date in the light of the new framework for community penalties provided in the Bill. I beg to move.
On Question, amendment agreed to.
Clause 11 [Curfew orders]:
Lord Richard Lord Richard moved Amendment No. 48:
Page 8, line 28, leave out ("sixteen") and insert ("eighteen").
The noble Lord said: My Lords, I can explain the amendment fairly briefly; indeed, it is self-explanatory. It increases the minimum age for the curfew orders from 16 to 18. If it were accepted, courts would still be able to include a curfew requirement in a super vision order passed on a young offender under 18, but the amendment would prevent them from imposing the new curfew order unaccompanied by social worker supervision on an offender under 18.
There are a number of problems connected with the imposition of curfew orders on young people which are additional to those connected with the use of curfews on offenders of any age. One of the problems is the possibility that the curfew might cause great difficulties within families. In cases where there were already considerable tensions between parents and child, such an order might greatly aggravate those tensions. Curfews might also be oppressive for parents. If the parents are to make a serious attempt to ensure that their children abide by the curfew, that could well require them to stay at home from the early evening onwards. In the case of a single parent in that position, finding himself or herself unable to go out in
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the evening and, in the case of two parents, being unable to go out together would, I imagine, be a cause of considerable friction and tension within the family.
If there were good reasons for the provision, one could perhaps understand it, but, as the power is already available to pass a curfew order accompanied by a supervision order on a young offender under 18, I do not see why that should not remain the position. If the age was raised from 16 to 18, that would be so. In other words, it would not be open to the courts to pass a curfew order without a supervision order on anyone under 18. That would be an improvement on the present situation. I beg to move.
Lord Harris of Greenwich: My Lords, I too shall comment briefly on the amendment. I agree with the noble Lord, Lord Richard. I am no enthusiast for curfew orders. I have never been persuaded that they are enforceable and, to the extent to which we shall now introduce electronic monitoring, I have become even more doubtful. I was not opposed in principle to the experiments with electronic monitoring. I thought that they were admirable. Unhappily, the experiments proved that the thing was a daft idea. It is only because Ministers have—rather foolishly in my view—committed themselves to its use that electronic monitoring is to be introduced when we know, even before it is introduced, that it will be a failure.
I should like to ask the noble Earl one question: will 16 and 17 year-olds who are at school have the appropriate instrument attached to them while they are at school? This will be a truly humiliating position for these children. Is it argued that that will happen? One of the advantages of the amendment of the noble Lord, Lord Richard, is that that would not be possible because in fact people who were at school would obviously be excluded by the terms of the amendment. However, it would be most unfortunate if we had a situation where some children of school age had electronic monitoring devices attached to them at school. As I said, it is a humiliation scenario and in my view it is quite wrong for it to be introduced in legislation.
Lord Henderson of Brompton: My Lords, it might be the reverse of a humiliation scenario. It might be a scenario for boasting when children have such tags attached to them. Indeed it might prove a signature for the macho child, who would invite others to join him in his daredevil acts. I cannot believe that the Government can have that in mind, but that will be the outcome, if it does not result in the humiliation scenario, which seems to me to be equally likely.
The point about family upset is an important one. Families with children under 16 should not be put under the stress to which this will put them without the support of the social services or probation officers. I support this amendment very strongly. I am sorry that it has been moved so late at night. I hope that it will be received sympathetically by the noble Earl, despite the hour.
Earl Ferrers: My Lords, I can assure the noble Lord, Lord Henderson, that whether I view this amendment sympathetically or otherwise has nothing

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to do with the hour. I am quite content to view it in its totality at this hour of night or at two o'clock in the afternoon. I know that the noble Lord, Lord Richard, has never been greatly enamoured by the idea of curfew orders and now the noble Lord, Lord Harris, misguidedly follows in his footsteps. But we believe that the curfew orders will provide the courts with an effective way of dealing with offenders who have committed certain types of crime or whose offending is associated with particular activities. Quite obviously the noble Lord, Lord Richard, does not feel that.
In my view, curfew orders are a valuable new community penalty that could, for example, be used to keep offenders away from particular places, such as shopping centres where young people may get involved in shoplifting, and from particular events, such as football matches, local clubs or discotheques; or from being on the streets at particular times of day when the offender may be subject to peer group pressure to become involved in certain kinds of offending.
There is no other available community penalty that would fill quite this role and we believe it right that it should be available to the courts for 16 and 17 year-olds as well as for older offenders. By keeping young people out of harm's way, a curfew order can help prevent the offender from re-offending and in turn help to protect the public.
The decision to make the curfew order available for 16 and 17 year-olds reflects our general approach to dealing with 16 and 17 year-old offenders. This approach was set out in the White Paper.
Many teenagers of this age are old enough and mature enough to accept full personal responsibility for their behaviour; others are not. The arrangements for dealing with such offenders should reflect that by providing the courts with a wide range of disposals, so that they can match the sentence to the particular needs and behaviour of the young offender. This is why the Bill makes available not only the curfew order but also other community penalties which have not been available before for this age group.
Making available to the courts a range of different community penalties which are capable of being tough and demanding, and which can take account of different patterns of offending, will help to minimise the use of custody. It is an outcome which I think we all want. It will in particular give the courts sufficient confidence in such penalties to use them for offenders who have committed quite serious offences and who are clearly at risk of custody.
The noble Lord, Lord Richard, is right. Night restriction orders are available for offenders of 16 and 17 years. Although they resemble curfew orders to an extent, they are more limited in scope. They can be imposed only as part of a supervision order. They operate only during the evening or at night and the maximum length is only 10 hours. The curfew order will provide the courts with more flexibility. The ability to use electronic monitoring as a means of enforcement will give the courts confidence in the effectiveness of such orders.
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The noble Lord, Lord Harris, said that for children to have those electronic monitoring devices attached to them at school is pretty humiliating. Being an offender who has been to court ought to be pretty humiliating too. However, the tags are quite discreet. The new type that I have seen is no bigger than a digital watch. Of course, the courts will be sensitive to the situation of offenders who are still at school. No doubt they would not use a curfew order with electronic monitoring in such a case. But many 16 or 17 year-olds have already left school.
The noble Lord, Lord Henderson, used what I thought was an extraordinary argument. He said that these children should not be put to that stress. We have to stop and consider why they are put to that stress, if that is what they are subjected to. It is because they have offended. It is because we are trying to avoid them mixing with the people who encourage them to offend at the time that they are likely to mix with them. It is in order to encourage them to keep out of mischief and wrongdoing. Those are the reasons behind such an order. If that is stress, so be it. But they are the persons responsible for creating the stress to which they have subjected themselves.
I believe that making a curfew order available for 16 and 17 year-olds will be a helpful and worthwhile improvement to the sentencing arrangements for that age group.
Lord Richard: My Lords, before the noble Earl sits down will he address the point that I put to him? I do not like curfew orders. For some extraordinary reason the Government seem to be attached to them. Will he address the argument that such orders should not be imposed on 16 and 17 year-olds without being accompanied by a social supervision order. The total absence of such orders for those aged between 16 and 18 will probably cause more trouble than the imposition of a curfew.
Earl Ferrers: My Lords, a curfew order has one specific effect: it keeps the person away from trouble at the time when he or she might be in trouble. There is no reason why there should not be other orders attached to the individual as well as the curfew order.
Lord Richard: My Lords, I hear what the noble Earl says. I am disappointed. Of course other orders can be imposed with the curfew order. We argue that with the rather sensitive age group between 16 to 18 years one should not have solely a curfew order. It should be accompanied by some supervision; otherwise we shall run into trouble with the curfew order.
I am disappointed. However, at this late hour and with the thin attendance in the House I have no other alternative but to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 2 [Enforcement etc. of Community Orders]:
Earl Ferrers Earl Ferrers moved Amendment No. 49:
Page 76, line 20, leave out ("it") and insert ("he").
The noble Earl said: My Lords, this is a drafting amendment. It ensures that the Clerk of the Court is properly referred to as "he" and not "it".
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendments Nos. 50 and 51:
After Clause 14, insert the following new clause:
Reciprocal enforcement of certain orders
(". Schedule (Reciprocal enforcement of certain orders) to this Act shall have effect for making provision for and in connection with—

(a) the making and amendment in England and Wales of community orders relating to persons residing in Scotland or Northern Ireland; and

(b) the making and amendment in Scotland or Northern Ireland of corresponding orders relating to persons residing in England and Wales.").

Before Schedule 3, insert the following new schedule:

PART I
TRANSFER OF COMMUNITY ORDERS TO SCOTLAND OR NORTHERN IRELAND
Probation orders: Scotland
1.—(1) Where a court considering the making of a probation order is satisfied that the offender resides in Scotland, or will be residing there when the order comes into force, section 2 of the 1973 Act (probation orders) shall have effect as if after subsection (1) there were inserted the following subsection—
"(1A) A court shall not make a probation order in respect of any offender unless it is satisfied that suitable arrangements for his supervision can be made by the regional or islands council in whose area he resides, or will be residing when the order comes into force."
(2) Where a probation order has been made and—

(a) a magistrates' court acting for the petty sessions area specified in the order is satisfied that the offender proposes to reside or is residing in Scotland; and

(b) it appears to the court that suitable arrangements for his supervision can be made by the regional or islands council in whose area he proposes to reside or is residing,

the power of the court to amend the order under Part IV of Schedule 2 to this Act shall include power to amend it by requiring him to be supervised in accordance with an angements so made.
(3) Where a court is considering the making or amendment of a probation order in accordance with this paragraph, Schedule 1A to the 1973 Act (additional requirements in probation orders) shall have effect as if—

(a) any reference to a probation officer were a reference to an officer of the regional or islands council in whose area the offender resides or will be residing when the order or amendment comes into force;

(b) the reference in paragraph 2(5) to the probation committee for the area in which the premises are situated were a reference to the regional or islands council for that area;

(c) paragraph 3 (requirements as to attendance at probation centre) were omitted; and

(d) the reference in paragraph 5(3) to a mental hospital were a reference to a hospital within the meaning of the Mental Health (Scotland) Act 1984, not being a State hospital within the meaning of that Act.

(4) A probation order made or amended in accordance with this paragraph shall—

(a) specify the locality in Scotland in which the offender resides or will be residing when the order or amendment comes into force; and

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(b) specify as the appropriate court for the purposes of subsection (2) of section 183 or 384 of the Criminal Procedure (Scotland) Act 1975 a court of summary jurisdiction (which, in the case of an offender convicted on indictment, shall be the sheriff court) having jurisdiction in the locality specified under paragraph (a) above.

Probation orders: Northern Ireland
2.—(l) Where a court considering the making of a probation order is satisfied that the offender resides in Northern Ireland, or will be residing there when the order comes into force, section 2 of the 1973 Act shall have effect as if after subsection (1) there were inserted the following subsection—
"(1A) A court shall not make a probation order in respect of any offender unless it is satisfied that suitable arrangements for his supervision can be made by the Probation Board for Northern Ireland."
(2) Where a probation order has been made and—

(a) a magistrates' court acting for the petty sessions area specified in the order is satisfied that the offender proposes to reside or is residing in Northern Ireland; and

(b) it appears to the court that suitable arrangements for his supervision can be made by the Probation Board for Northern Ireland,

the power of the court to amend the order under Part IV of Schedule 2 to this Act shall include power to amend it by requiring him to be supervised in accordance with arrangements so made.
(3) Where a court is considering the making or amendment of a probation order in accordance with this paragraph, Schedule 1A to the 1973 Act shall have effect as if—

(a) any reference to a probation officer were a reference to a probation officer assigned to the petty sessions district in Northern Ireland in which the offender resides or will be residing when the order or amendment comes into force;

(b) the reference in paragraph 2(5) to the probation committee for the area in which the premises are situated were a reference to the Probation Board for Northern Ireland;

(c) references in paragraph 3 to a probation centre were references to a day centre within the meaning of section 2B of the Probation Act (Northern Ireland) 1950; and

(d) the reference in paragraph 5(3) to treatment as a resident patient in a mental hospital were a reference to treatment (whether as an in-patient or an out-patient) at such hospital as may be specified in the order, being a hospital within the meaning of the Health and Personal Social Services (Northern Ireland) Order 1972, approved by the Department of Health and Social Services for Northern Ireland for the purposes of section 2 of the Probation Act (Northern Ireland) 1950.

(4) A probation order made or amended in accordance with this paragraph shall specify the petty sessions district in Northern Ireland in which the offender resides or will be residing when the order or amendment comes into force.
Community service orders: Scotland
3.—(1) Where a court considering the making of a community service order is satisfied that the offender resides in Scotland, or will be residing there when the order comes into force, section 14 of the 1973 Act shall have effect as if for subsection (2A) there were substituted the following subsection—
"(2A) A court shall not make a community service order in respect of any offender unless—

(a) the court has been notified by the Secretary of State that arrangements exist for persons who reside in the locality in Scotland in which the offender resides, or will be residing when the order comes into force, to perform work under

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community service orders made under section 1 of the Community Service by Offenders (Scotland) Act 1978; and

(b) it appears to the court that provision can be made for him to perform work under those arrangements."

(2) Where a community service order has been made and—

(a) a magistrates' court acting for a petty sessions area for the time being specified in it is satisfied that the offender proposes to reside or is residing in Scotland;

(b) the court has been notified by the Secretary of State that arrangements exist for persons who reside in the locality in Scotland in which the offender proposes to reside or is residing to perform work under community service orders made under section 1 of the Community Service by Offenders (Scotland) Act 1978; and

(c) it appears to the court that provision can be made for him to perform work under the community service order under those arrangements,

it may amend the order by specifying that the unpaid work required to be performed by the order be so performed.
(3) A community service order made or amended in accordance with this paragraph shall—

(a) specify the locality in Scotland in which the offender resides or will be residing when the order or amendment comes into force; and

(b) require the regional or islands council in whose area the locality specified under paragraph (a) above is situated to appoint or assign an officer who will discharge in respect of the order the functions in respect of community service orders conferred on the local authority officer by the Community Service by Offenders (Scotland) Act 1978.

Community service orders: Northern Ireland
4.—(1) Where a court considering the making of a community service order is satisfied that the offender resides in Northern Ireland, or will be residing there when the order comes into force, section 14 of the 1973 Act shall have effect—

(a) in the case of an offender aged sixteen, as if the reference in subsection (1A) to 240 hours were a reference to 120 hours; and

(b) in any case, as if for subsection (2A) there were substituted the following subsection—

"(2A) A court shall not make a community service order in respect of any offender unless it appears to the court that provision can be made by the Probation Board for Northern Ireland for him to perform work under the order."
(2) Where a community service order has been made and—

(a) a magistrates' court acting for a petty sessions area for the time being specified in it is satisfied that the offender proposes to reside or is residing in Northern Ireland; and

(b) it appears to the court that provision can be made by the Probation Board for Northern Ireland for him to perform work under the order,

it may amend the order by specifying that the unpaid work required to be performed by the order be so performed and, where the offender is aged sixteen, by making any such reduction in the aggregate number of hours specified in the order as is required by sub-paragraph (1) (a) above.
(3) A community service order made or amended in accordance with this paragraph shall—
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(a) specify the petty sessions district in Northern Ireland in which the offender resides or will be residing when the order or amendment comes into force; and

(b) require the Probation Board for Northern Ireland to select an officer who will discharge in respect of the order the functions in respect of community service orders conferred on the relevant officer by the Treatment of Offenders (Northern Ireland) Order 1976.

Combination orders: Scotland
5. Paragraphs 1 and 3 above shall apply in relation to combination orders—

(a) in so far as they impose such a requirement as is mentioned in paragraph (a) of subsection (1) of section 10 of this Act, as if they were probation orders; and

(b) in so far as they impose such a requirement as is mentioned in paragraph (b) of that subsection, as if they were community service orders.

General
6.—(1) Where a community order is made or amended in any of the circumstances specified in this Part of this Schedule, the court which makes or amends the order shall send three copies of it as made or amended to the home court, together with such documents and information relating to the case as it considers likely to be of assistance to that court.
(2) Where a community order is made or amended in any of the circumstances specified in this Part of this Schedule, then, subject to the following provisions of this paragraph—

(a) the order shall be treated as if it were a corresponding order made in the part of the United Kingdom in which the offender resides, or will be residing at the relevant time; and

(b) the legislation relating to such orders which has effect in that part of the United Kingdom shall apply accordingly.

(3) Before making or amending a community order in those circumstances the court shall explain to the offender in ordinary language—

(a) the requirements of the legislation relating to corresponding orders which has effect in the part of the United Kingdom in which he resides or will be residing at the relevant time;

(b) the powers of the home court under that legislation, as modified by this paragraph; and

(c) its own powers under this paragraph,

and an explanation given in accordance with this sub-paragraph shall be sufficient without the addition of an explanation under section 2(3) or 14(5) of the 1973 Act.
(4) The home court may exercise in relation to the community order any power which it could exercise in relation to a corresponding order made by a court in the part of the United Kingdom in which the home court exercises jurisdiction, by virtue of the legislation relating to such orders which has effect in that part, except the following, namely—

(a) in the case of a probation order or a combination order, a power conferred by section 186(2) (b), 187, 387(2) (b) or 388 of, or paragraph 1 of Schedule 5 to, the Criminal Procedure (Scotland) Act 1975;

(b) in the case of a probation order, a power conferred by section 4(3) (d) or (4B) (d) or 6 of, or paragraph 1 of Schedule 2 to, the Probation Act (Northern Ireland) 1950; and

(c) in the case of a community service order—

(i) a power conferred by section 4(2) (b) or 5(1) (c) or (d) of the Community Service by Offenders (Scotland) Act 1978;

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(ii) a power conferred by Article 9(3)(a) or (b) or (5)(b) or 10 of the Treatment of Offenders (Northern Ireland) Order 1976; or

(iii) a power to vary the order by substituting for the number of hours of work specified in it any greater number than the court which made the order could have specified.

(5) If at any time while legislation relating to corresponding orders which has effect in Scotland or Northern Ireland applies by virtue of sub-paragraph (2) above to a community order made in England and Wales—

(a) it appears to the home court—

(i) if that court is in Scotland, on evidence on oath from the local authority officer concerned; and

(ii) if it is in Northern Ireland, upon a complaint being made to a justice of the peace acting for the petty sessions district for the time being specified in the order,

that the offender has failed to comply with any of the requirements of the legislation applicable to the order; or

(b) it appears to the home court on the application of the offender or—

(i) if that court is in Scotland, of the local authority officer concerned; and

(ii) if it is in Northern Ireland, of the probation officer concerned,

that it would be in the interests of justice for a power conferred by paragraph 7 or 8 of Schedule 2 to this Act to be exercised,

the home court may require the offender to appear before the court which made the order.
(6) Where an offender is required by virtue of sub-paragraph (5) above to appear before the court which made the community order, that court—

(a) may issue a warrant for his arrest; and

(b) may exercise any power which it could exercise in respect of the community order if the offender resided in England and Wales,

and any enactment relating to the exercise of such powers shall have effect accordingly, and with any reference to the responsible officer being construed as a reference to the local authority or probation officer concerned.
(7) Where an offender is required by virtue of paragraph (a) of sub-paragraph (5) above to appear before the court which made the community order—

(a) the home court shall send to that court a certificate certifying that the offender has failed to comply with such of the requirements of the order as may be specified in the certificate, together with such other particulars of the case as may be desirable; and

(b) a certificate purporting to be signed by the clerk of the home court shall be admissible as evidence of the failure before the court which made the order.

(8) In this paragraph—
"corresponding order", in relation to a combination order, means a probation order including such a requirement as is mentioned in subsection (5A) of section 183 or 384 of the Criminal Procedure (Scotland) Act 1975;
"home court" means—

(a) if the offender resides in Scotland, or will be residing there at the relevant time, the sheriff court having jurisdiction in the locality in which he resides or proposes to reside; and

(b) if he resides in Northern Ireland, or will be residing there at the relevant time, the court of summary jurisdiction acting for the petty sessions district in which he resides or proposes to reside;

"the local authority officer concerned", in relation to an offender, means the officer of a regional or
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islands council responsible for his supervision or, as the case may be, discharging in relation to him the functions assigned by the Community Service by Offenders (Scotland) Act 1978;
"the probation officer concerned", in relation to an offender, means the probation officer responsible for his supervision or, as the case may be, discharging in relation to him the functions conferred by Part III of the Treatment of Offenders (Northern Ireland) Order 1976;
"the relevant time" means the time when the order or the amendment to it comes into force.

PART II
TRANSFER OF CORRESPONDING ORDERS FROM SCOTLAND
Probation orders
7.—(1) The Criminal Procedure (Scotland) Act 1975 shall be amended as follows.
(2) In each of sections 183 and 384 (which provide, respectively, for probation orders in solemn and in summary proceedings), in subsection (1A) for the words "by the local authority in whose area he resides or is to reside" there shall be substituted the following paragraphs—

"(a) in a case other than that mentioned in paragraph (b) below, by the local authority in whose area he resides or is to reside; or

(b) in a case where, by virtue of section 188(1) of this Act, subsection (2) of this section would not apply, by the probation committee for the area which contains the petty sessions area which would be named in the order".

(3) In each of sections 188 and 389 (which provide, respectively, for probation orders relating to persons residing in England being made in solemn and in summary proceedings)—

(a) in subsection (1)—

(i) for the words "that the offender shall perform unpaid work" there shall be substituted the words "which, while corresponding to a requirement mentioned in paragraph 2 or 3 of Schedule IA to the Powers of Criminal Courts Act 1973, would if included in a probation order made under that Act fail to accord with a restriction as to days of presentation, participation or attendance mentioned in paragraph 2(4)(a) or (6)(a), or as the case may be 3(3)(a), of that Schedule";

(ii) for the word "17" there shall be substituted the word "16";

(iii) the word "and", where it secondly occurs, shall cease to have effect; and

(iv) at the end there shall be added the words "; and where the order includes a requirement that the probationer perform unpaid work for a number of hours, the number specified shall not exceed one hundred";

(b) in subsection (2)—

(i) for the words "that the probationer has attained the age of 17 years and proposes to reside in or is residing in England" there shall be substituted the following paragraphs—

"(a) that the probationer has attained the age of 16 years;

(b) that he proposes to reside, or is residing, in England; and

(c) that suitable arrangements for his supervision can be made by the probation committee for the area which contains the petty sessions area in which he resides or will reside"; and

(ii) after the word "section", where it secondly occurs, there shall be inserted the words "or to vary any requirement for

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performance of unpaid work so that such hours as remain to be worked do not exceed one hundred";

(c) in subsection (3)—

(i) in paragraph (a), for the words "section 3(2) or' and "section 3 or there shall be substituted, respectively, the words "paragraph 5(3) of Schedule 1A to" and "paragraph 5 of Schedule 1A to"; and

(ii) in paragraph (b), for the words "subsections (4) to (6) of section 3 of" there shall be substituted the words "subparagraphs (5) to (7) of paragraph 5 of Schedule 1A to";

(d) in subsection (4), for the words from "the Powers" to the end of the proviso there shall be substituted the words "Schedule 2 to the Criminal Justice Act 1991 shall apply to the order—

(a) except in the case mentioned in paragraph (b) below, as if that order were a probation order made under section 2 of the Powers of Criminal Courts Act 1973; and

(b) in the case of an order which contains a requirement such as is mentioned in subsection (5A) of section 183 or 384 of this Act, as if it were a combination order made under section 10 of the said Act of 1991:

Provided that Part III of that Schedule shall not so apply; and sub-paragraphs (3) and (4) of paragraph 3 of that Schedule shall so apply as if for the first reference in the said sub-paragraph (3) to the Crown Court there were substituted a reference to a court in Scotland and for the other references in those sub-paragraphs to the Crown Court there were substituted references to the court in Scotland."; and
(e) in subsection (5), for the words from "for which" to "this section" there shall be substituted the words "named in a probation order made or amended under this section that the person to whom the order relates".
(4) Sections 189 and 390 (which make further provision as to probation orders in, respectively, solemn and summary proceedings) shall cease to have effect.
Community service orders
8. Section 6 of the Community Service by Offenders (Scotland) Act 1978 (community service orders relating to persons residing in England and Wales) shall be amended as follows—

(a) in subsection (1)(a), for the words from "for paragraphs" to the end of paragraph (b) as substituted in section 1(2) of that Act there shall be substituted the words ", in subsection (2), paragraph (b) were omitted and for paragraph (d) there were substituted the following paragraph-"; and

(b) in subsection (2), paragraph (b) shall cease to have effect.

Supervision requirements
9. Section 72 of the Social Work (Scotland) Act 1968 (supervision of children moving to England and Wales or to Northern Ireland) shall be amended as follows—

(a) in subsection (1)(b), for the words "to a juvenile court acting for the petty sessions area" there shall be substituted the following sub-paragraphs—

"(i) in the case of residence in England and Wales, to a youth court acting for the petty sessions area (within the meaning of the Children and Young Persons Act 1969);

(ii) in the case of residence in Northern Ireland, to a juvenile court acting for the petty sessions district (within the meaning of Part III of the Magistrates' Courts (Northern Ireland) Order 1981).";

(b) in subsection (1A)—

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(i) for the words "The juvenile court in England or Wales" there shall be substituted the words "A youth court";

(ii) after the word "12" there shall be inserted the words ", 12A, 12AA, 12B or 12C"; and

(iii) paragraph (a), and the word "and" immediately following that paragraph, shall cease to have effect;

(c) in subsection (2), for the words "The juvenile court in Northern Ireland" there shall be substituted the words "A juvenile court";

(d) in subsection (3), after the words "by a" there shall be inserted the words "youth court or, as the case may be"; and

(e) subsection (4) shall cease to have effect.

PART III
TRANSFER OF PROBATION ORDERS FROM NORTHERN IRELAND
10.—(1) Where, in the case of an offender of or over the age of 16 years, a court in Northern Ireland considering the making of a probation order is satisfied that the offender resides in England and Wales, or will be residing there when the order comes into force, section 1 of the Probation Act (Northern Ireland) 1950 (probation orders) shall have effect as if after subsection (1) there were inserted the following subsection—
"(1A) A court shall not make a probation order in respect of any offender unless it is satisfied that suitable arrangements for his supervision can be made by the probation committee for the area which contains the petty sessions area in which he resides or will reside."
(2) Where a probation order has been made by a court in Northern Ireland and—

(a) a court of summary jurisdiction acting for the petty sessions district in Northern Ireland for the time being specified in the order is satisfied that the offender has attained the age of 16 years and proposes to reside or is residing in England and Wales; and

(b) it appears to the court that suitable arrangements for his supervision can be made by the probation committee for the area which contains the petty sessions area in which he resides or will reside,

the power of the court to amend the order under Schedule 2 to the Probation Act (Northern Ireland) 1950 shall include power to amend it by requiring him to be supervised in accordance with arrangements so made.
(3) Where a court is considering the making or amendment of a probation order in accordance with this paragraph, sections 2, 2A and 2B of the Probation Act (Northern Ireland) 1950 shall have effect as if—

(a) any reference to a probation officer were a reference to a probation officer assigned to the petty sessions area in England and Wales in which the offender resides or will be residing when the order or amendment comes into force;

(b) the reference in section 2(2) to treatment (whether as an in-patient or an out-patient) at such hospital as may be specified in the order, being a hospital within the meaning of the Health and Personal Social Services (Northern Ireland) Order 1972, approved by the Department of Health and Social Services for Northern Ireland for the purposes of that section were a reference to treatment as a resident patient in a mental hospital within the meaning of paragraph 5 of Schedule 1A to the 1973 Act;

(c) the reference in section 2A(5) to the Probation Board for Northern Ireland were a reference to the probation committee for the area in which the premises are situated; and

(d) references in section 2B to a day centre were references to a probation centre within the meaning of paragraph 3 of Schedule 1A to the 1973 Act.

(4) A probation order made or amended in accordance with this paragraph shall specify the petty sessions area in England and Wales in which the of ender resides or will be residing when the order or amendment comes into force.
11.—(1) Where a probation order is made or amended in any of the circumstances specified in paragraph 10 above, the court which makes or amends the order shall send three copies of it as made or amended to the home court, together with such documents and information relating to the case as it considers likely to be of assistance to that court.
(2) Where a probation order is made or amended in any of the circumstances specified in paragraph 10 above, then, subject to the following provisions of this paragraph—

(a) the order shall be treated as if it were a probation order made in England and Wales; and

(b) the provisions relating to such orders of the 1973 Act and Schedule 2 this Act (except paragraphs 9 and 10) shall apply accordingly.

(3) Before making or amending a probation order in the circumstances specified in paragraph 10 above the court shall explain to the offender in ordinary language—

(a) the requirements of the 1973 Act relating to probation orders;

(b) the powers of the home court under that Act and Schedule 2 to this Act, as modified by this paragraph; and

(c) its own powers under this paragraph,

and an explanation given in accordance with this sub-paragraph shall be sufficient without the addition of an explanation under section 1(5) of the Probation Act (Northern Ireland) 1950.
(4) The home court may exercise in relation to the probation order any power which it could exercise in relation to a probation order made by a court in England and Wales, by virtue of the 1973 Act, except a power conferred by paragraph 3(1) (d), 4(1) (d), 7(2) or 8(2) of Schedule 2 to the 1973 Act.
(5) If at any time while the 1973 Act applies by virtue of sub-paragraph (2) above to a probation order made in Northern Ireland it appears to the home court—

(a) on information to a justice of the peace acting for the petty sessions area for the time being specified in the order, that the offender has failed to comply with any of the requirements of the 1973 Act applicable to the order; or

(b) on the application of the offender or the probation officer, that it would be in the interests of justice for the power conferred by paragraph 1 of Schedule 2 to the Probation Act (Northern Ireland) to be exercised,

the home court may require the offender to appear before the court which made the order.
(6) Where an offender is required by virtue of sub-paragraph (5) above to appear before the court which made the probation order, that court—

(a) may issue a warrant for his arrest; and

(b) may exercise any power which it could exercise in respect of the probation order if the offender resided in Northern Ireland,

and section 4(2) to (7) of the Probation Act (Northern Ireland) 1950 shall have effect accordingly.
(7) Where an offender is required by virtue of paragraph (a) of sub-paragraph (5) above to appear before the court which made the probation order—

(a) the home court shall send to that court a certificate certifying that the offender has failed to comply with such of the requirements of the order as may be specified in the certificate, together with such other particulars of the case as may be desirable; and

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(b) a certificate purporting to be signed by the clerk of the home court shall be admissible as evidence of the failure before the court which made the order.

(8) In this paragraph "home court" means, if the offender resides in England and Wales, or will be residing there at the time when the order or the amendment to it comes into force, the court of summary jurisdiction acting for the petty sessions area in which he resides or proposes to reside.").
The noble Earl said: My Lords, these amendments were spoken to with Amendment No. 47. I beg to move.
On Question, amendments agreed to.
10.30 p.m.
Clause 16 [Fixing of certain fines by reference to units]:
Lord Henderson of Brompton Lord Henderson of Brompton moved Amendment No. 52:
Page 12, line 32, after ("above)") insert ("unless the court is satisfied that this would be unreasonable having regard to the circumstances of the offender").
The noble Lord said: My Lords, when the amendment was discussed in Committee the noble Lord the Leader of the House replied for the Government. He did little more than reiterate what was said by Mr. John Patten in another place. The noble Lord said that he was concerned to see that the minimum of the unit fine was not set at a derisory figure. The amendment relates to the unit fine system, which we all agree is admirable. It is a system for which many noble Lords have been pressing for years. We are delighted that the Government have embraced it after carrying out a powerful experiment in four magistrates' courts in different areas of the country. Its value is proven.
We have only one quarrel with the admirable system; it is that it sets the minimum unit fine of £4 per week. There are at least two good features of the unit fine system. The first is that it enables people to pay according to their means. The second is that a unit can be set during a period of time—perhaps 30 weeks—which is affordable to both poor and rich people. Occasionally it happens that even £4 per week is too great a sum for a poor person to pay. Rather than sentence such a person to pay that amount which he cannot afford, on which he will default and in consequence go to prison, a unit of £3 or £2 is set which he can afford. In consequence he will not go to prison.
That is a simple and sensible system which was followed by all four magistrates' courts in different parts of the country. Since the Committee stage I have been in touch with the clerks of those four courts. They have written to say that they support the amendment. The clerks have not had time to consult all the magistrates involved but they are confident that they speak on behalf of the majority. All four are unanimous in saying that the amendment is necessary. Furthermore, during the interval between the Committee and Report stages the clerks held their annual general meeting and decided to offer their unanimous support for the amendment. That is a significant development.
In Committee the noble Lord the Leader of the House said that a minimum unit fine was set in the four experimental areas. It is true that voluntarily the courts set themselves a limit of £3. However, it was only a guideline and not a legally binding, statutory minimum fine. Therefore, with the utmost diffidence I differ from the noble Lord the Leader of the House, who has just entered the Chamber. The four experimental areas were not operating under a legally binding statutory limit. They were operating only under a minimum which they set themselves as a guideline. Three out of the four areas departed quite frequently from that although only exceptionally when they found that the defendant could only pay at a rate of less than £3 per week.
I believe that the evidence which I have gathered in the interval between the Committee stage and now proves that those areas were not operating under a legally imposed minimum but were operating under a voluntary guideline which they set themselves and from which they departed fairly frequently, but only in cases of need.
I should have thought that a guideline is sufficient to demonstrate that a fine should not fall below a minimum standard except, as we say in this amendment, where the magistrates consider that exceptional circumstances exist. It is the commitment to prison that we are always trying to avoid.
In Committee the noble Lord the Leader of the House seized on the suggestion of the noble Baroness, Lady Faithfull, that one solution - and it is a solution - would be to extend the period of time over which the fine could be paid. It could be stretched over a period of 60 weeks rather than 30 weeks. Therefore the money could be obtained in that way. However I do not believe that it is desirable because courts could only reduce weekly instalments to realistic levels by ordering a fine to be paid over very long periods—sometimes a year or longer. That practice has been deprecated or frowned upon by the courts and, indeed, by the Court of Appeal. That course should not be followed if it has been officially frowned upon by the Court of Appeal.
Secondly, if a fine is to be spread over a year or longer, it is much more likely to result in default than a realistic fine which can be paid within a reasonable period of time. This amendment is very modest. We seek to retain the minimum fine so that there is a general guideline as to what should be the minimum. As a rule, that minimum should be adhered to and it should not be a matter for derision. However, the courts should have discretion, as in the four experimental areas, to reduce the unit to something less than £4; that is, to £3, £2 or even £1. The courts should not do that unless they are absolutely sure that the circumstances of the case merit an exception to the rule.
I do not think that I need to say any more. The evidence I have accumulated from the clerks to the magistrates of the four courts is conclusive. They are convinced that the magistrates would wish to operate in that way in the future. It is both humane and fair
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that the magistrates should be allowed that discretion. I commend the amendment to the House. I beg to move.
Baroness Faithfull: My Lords, I rise to support the noble Lord, Lord Henderson. I agree with the noble Lord that the unit fine system is a good system and only in exceptional circumstances should one need to apply the provisions of the amendment. However, if a person is asked to pay more than he can manage, then in his eyes the law is brought into disrepute. He is being asked by the court to do something he knows he cannot do. There are also the side effects to consider. If a person is asked to pay £4 and his circumstances are such that he cannot do so, it often leads that person into further crime.
A point referred to by the noble Lord, Lord Henderson, was that the offender might pay over a period of time. I looked into that matter too; I believe that over a long period the law of diminishing return sets in. Offenders find that it is such a millstone round their neck that after a time they cease to find it important and do not pay. Therefore the amendment should be used only in exceptional circumstances but should be included in the Bill to allow the magistrates some flexibility.
Lord Richard: My Lords, I too support the amendment. I congratulate the Government on introducing the unit fine scheme. We on these Benches fully support it. Secondly, I should point out that in three of the experiments in particular—Bradford, Swansea and Teesside—the percentage of units calculated at less than £4 was very interesting. At Bradford 34 per cent. of fines were set at £3 or less, with 11 per cent. being set at £1 or £2 a week. At Swansea 41 per cent. were set at £3 a week or less, with 13 per cent. being set at £1 or £2. At Teesside no less than 47 per cent. of the fines were set at £3 a week or less, with 39 per cent. being set at £1 or £2. The figures for Basingstoke were slightly different. However, that is a fairly well off part of the country and few fines were below £3 a week, although even there the magistrates fined the occasional offender at £1 or £2 a week. Less than £4 a week is not abnormal in Bradford, Swansea or Teesside. For that reason I do not see why discretion should not be given to the magistrates to set the fine at those figures if they believe them to be correct.
It was suggested that one way out was that £4 a week should be accepted as the basic minimum but that the offender who cannot afford £4 a week—he can perhaps afford only £2 a week—should be given longer to pay. That is an astonishingly illogical situation. The object of fixing the unit is to take into account the minimum disposable income of the person being fined. If the fine is fixed at £4 a week but it is then decided that the minimum disposable weekly income is only £2 a week, what is being brought into disrepute is the fixing of £4, not the payment of £2. It strikes me as being an absurd system to say that an offender can have double the time to pay that he would have had if we had calculated the minimum disposable income correctly; namely, we cannot impose £2 but must impose £4 and therefore he should have twice as long

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to pay. It will lead to enormous confusion. A much simpler way of dealing with the matter would be for the Government to accept the thrust of the amendment we support moved by the noble Lord, Lord Henderson.
10.45 p.m.
Lord Harris of Greenwich: My Lords, it is a question of sensible administration. People who have knowledge of these experiments—namely, the justices' clerks concerned—are in favour of the scheme. I find it extremely difficult to understand why the Government have been so stubborn in the past on this matter. I very much hope that the noble Earl is about to rise and tell us that he is prepared to accept the spirit of the noble Lord's amendment. It is extremely difficult for the Government to justify their position, which is opposed by all those who have direct knowledge of the system.
Earl Ferrers: My Lords, the noble Lord, Lord Harris, does not exactly encourage me to accept the principle of the amendment when he says that we have been stubborn the whole way through. That is the last thing we have been. We have been as accommodating as we possibly can. The effect of this amendment is to allow the courts the discretion to set the value of a unit below the minimum value proposed in Clause 16(4) of the Bill whenever the courts felt that £4 a week would be too much for the offender to pay. That comes very close to having no minimum value at all. As my noble friend the Leader of the House said when this amendment was discussed in Committee, the Government believe that a minimum unit value is important to the credibility of the scheme. We think that £4 is about the right starting point for this minimum value.
It is necessary to ensure a proper balance between the need to be fair to the offender by taking account of his or her means and the need to be fair to the victim and the public at large by taking full account of the seriousness of the offence. A scheme which adopted no minimum value or a very low minimum value might easily result in fines being set at a derisory level. This would not, I suggest, win the confidence of the victim, the public or indeed the offender.
The £4 minimum value adopted in the Bill is based on the experience of the pilot projects. It is higher than the minimum value adopted in the Swansea, Teesside and Basingstoke pilot projects where a £3 minimum was used. However, when judging whether the proposed £4 minimum is sensible or not it should be remembered that the unit fine scheme set out in the Bill will not come into operation until 1992. That will be some, three years on from the period when courts in the pilot projects were using a £3 minimum. Set against this background, a £4 minimum does not, I think, seem excessive.
For some offenders £4 may be more than they can afford to pay on a weekly basis. However, the unit fine scheme is about determining an appropriate penalty for an offence. It is not about deciding how the fine should be paid. If a unit fine based on a minimum value of £4 is too much for the offender to pay on a
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weekly basis, the court has the discretion to allow the offender to pay in weekly instalments of less than £4. As a general rule that is, I believe, the right way to accommodate low income offenders.
I accept that in some cases that may involve an offender paying off a fine over a lengthy period. That is undesirable. I am grateful to the noble Lord, Lord Henderson, for drawing my attention to that by his amendment. A 40-unit fine with a unit value of £4 would mean a fine of £160. If the offender can afford only £2 a week it would take him or her well over a year to discharge the fine. I cannot advise noble Lords to accept the proposed amendment which, as I said, would come close to having no minimum value at all.
Despite the fact that the noble Lord, Lord Harris of Greenwich, might think that I am being stubborn, I shall be happy to look at the matter again and to bring back an amendment at Third Reading in order to help to address the point. If that is stubbornness I hope that the noble Lord, Lord Harris of Greenwich, will say that it is a jolly good form of stubbornness.
Lord Harris of Greenwich: My Lords, certainly. I would not wish to abuse—
Earl Ferrers: My Lords, the noble Lord has spoken twice already.
Lord Harris of Greenwich: My Lords, I am much obliged. The noble Earl will recall that on three previous occasions he has not risen to draw attention to the fact that people have been speaking after the Minister. I was about to say in response to the noble Earl that the Government have been stubborn in the past but that I hope on this occasion they will adopt a more accommodating attitude. They have done so, and I am much obliged.
Lord Henderson of Brompton: My Lords, the Government have adopted an accommodating attitude, for which I am extremely grateful. The noble Earl kept us on tenterhooks for rather a long time before he came forward with his concession, for which I am duly grateful. The noble Earl spent some time defending the minimum. Perhaps he will give credit to me and to my colleagues on all sides of the House who have spoken in the debate. None of us attacked the minimum as such. All we asked for was a discretion for magistrates to depart from the minimum where they thought fit to do so. All the time that he was keeping us on tenterhooks he was defending something on which he had not been attacked at all. Never mind, I have no doubt that it was good for us to be stretched on tenterhooks. We are very much obliged to the noble Earl for giving us this lollipop. We look forward to the amendment at Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Earl Ferrers Earl Ferrers moved Amendment No. 53:
Page 13, line 9, leave out from ("Where") to ("the") in line 10 and insert ("the offender—

(a) has been convicted in his absence in pursuance of section 11 or 12 of the 1980 Act (non-appearance of accused); or

(b) has failed to comply with an order under section 18(1) below,

and (in either case)").
The noble Earl said: My Lords, in moving this amendment I shall speak at the same time to Amendment No. 54. These amendments deal with a potential difficulty in the operation of the unit fine scheme. The difficulty arises when, as sometimes—
Lord Henderson of Brompton: My Lords, I think the noble Earl said that he would speak at the same time to Amendment No. 54.
Earl Ferrers: My Lords, I said Amendment No. 94. I shall try to articulate a little more carefully so that the noble Lord, Lord Henderson, can hear properly.
Lord Harris of Greenwich: My Lords, the noble Earl was mistaken. He did in fact give the wrong number.
Earl Ferrers: My Lords, all kinds of funny things can happen. I looked and saw the number 94 and I thought I had said 94. However, I am quite happy to receive again the strictures of the noble Lord, Lord Harris of Greenwich.
The difficulty arises when, as sometimes happens, a defendant is convicted in his absence. He may be absent because he simply failed to turn up at the hearing, or because he chose to plead guilty by post. Sections 11 and 12 of the Magistrates' Courts Act 1980 enable a court to sentence an offender in his absence.
If the court wants to impose a unit fine, it will need information about the defendant's means. In practice, defendants will probably be invited to provide information about their means before the hearing. If they do not do so, it may be obtained by asking questions in court. This was the practice in the courts that took part in the unit fines pilot project, and it seemed to work fairly well.
If an offender does not provide advance information and is convicted in his absence, the court will have no alternative but to make an order under Clause 18 requiring him to provide a statement of means. Some offenders might still not comply with the order, even though that would be an offence. Then Clause 16(8) would come into play. The court would use its discretion, in the absence of any information about the offender's means, to determine the value of a unit —and hence the amount of the fine itself—as it saw fit. Before that, however, there will have been delays and adjournments to no good end.
The amendment to Clause 16 overcomes this problem. It enables a court to set a fine under Clause 16(8) when a defendant is convicted in his absence, without first having to make an order under Clause 18. This avoids the court having to adjourn in the hope that information about means will be provided.
This does mean that offenders would be fined in their absence and in the absence of information about their means. But this could well have been the outcome anyway, even after the making of an order under Clause 18. It would be important to ensure that the offender had due warning about the desirability of providing information about his means when he was sent information about the hearing. That is the purpose of the amendment to Schedule 10. It will be in
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the offender's interest to provide advance information, but even so, we would expect the discretion conferred by Clause 16(8) to be used to set a reasonable fine level. There are other safeguards: if the fine were set at too high a level in the offender's absence, it could be reduced following either a means inquiry or an appeal to the Crown Court.
I am indebted to the Justices' Clerks' Society for drawing our attention to this potential difficulty. I hope your Lordships will agree that these amendments will make the unit fine scheme easier to operate in the particular cases to which they apply. I beg to move.
On Question, amendment agreed to.
Lord Henderson of Brompton Lord Henderson of Brompton moved Amendment No. 54:
After Clause 20, insert the following new clause:
("Reasons for rejecting other methods of enforcing a fine when imprisoning a fine defaulter
. The following subsection shall be substituted for section 82(6) of the Magistrates' Courts Act 1980—
"(6) Where a magistrates' court issues a warrant of commitment on the ground that one of the conditions mentioned in subsection (1) or (4) above is satisfied, it shall state that fact, specifying the ground, in the warrant and where it specifies the ground that the conditions mentioned in subsection (4) (b) above are satisfied it shall state in open court the reasons for its opinion that all other methods of enforcing payment of the sum are inappropriate or unsuccessful.".").
The noble Lord said: My Lords, before speaking to this amendment I should like to make the observation that the Justices' Clerks' Society is having a field day. It has won on two successive amendments; namely, Amendments Nos. 52 and 53. It has indeed been a great day for the society.
Amendment No. 54 is a variant of one which I moved in Committee. I attach considerable importance to it. The proposed new clause requires that any court imprisoning a "fine defaulter" shall state its reasons for rejecting other methods of enforcing a fine. When I moved a similar amendment in Committee, the noble Lord the Leader of the House pointed out that it omitted the requirement which is currently contained in Section 82 of the Magistrates' Courts Act that the court must also be satisfied that the default was due to the offenders,
"wilful refusal or culpable neglect".
Therefore, the proposed new clause which I put before the House tonight has been redrafted to meet that criticism. Its aim is to eliminate the imprisonment of fine defaulters, except where it is genuinely impracticable to obtain payment in any other way. I should stress that I am pursuing the same object in another context as regards the Child Support Bill.
I am sure that it is the aim of all of us to try to keep fine defaulters out of prison. However, I must point out that the current rate of such defaulters is terrifyingly high; it is just about 17,000 a year. Clearly we must attack the problem of this huge number of people in prison in every way that we can. In 1989, 22 per cent. of all prisoners entering prison, and 40 per cent. of those given sentences of six months or less, were imprisoned for fine default. The number of people entering prison poses a huge administrative burden on the system. Indeed, the processing of 17,000

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receptions—that is, reception, discharge and paperwork—could be cut to the huge benefit of the system and of those who are subjected to imprisonment for fine default.
The Bill provides two measures: first, the unit fine system, which we recently discussed and which we hope to improve on Third Reading; secondly, the provision to deduct fines from income support payments. It will now be possible for courts to attach not only earnings but also income support and to distrain goods. Therefore, considering the wide-ranging powers which the courts now have to obtain payment, it should be rare in future for them to have to resort to imprisonment.
However, from the research papers which I mentioned in Committee, it seems that, although there is a considerable power for courts to search for other enforcement options than imprisonment, they do not do so. The amendment is designed to help them to do so. For that reason, I hope that the Government will consider that it goes with the grain of the Bill rather than against it.
The discipline of giving reasons in the form required by the proposed new clause would help to focus the courts' attention on the alternative enforcement measures which are available to reduce the chances of defaulters being unnecessarily imprisoned. I need say no more. I hope that the simplicity of that argument will cause the Government to agree either to this wording or to something very similar on Third Reading. I beg to move.
11 p.m.
Lord Richard: My Lords, I support the amendment. The arguments were put with clarity by the noble Lord, Lord Henderson of Brompton, and do not need repetition by me. It is a sensible amendment. The courts should give reasons. That concentrates the mind. In those circumstances the chances are that fewer people will be sent to prison for fine default. When the figure is nearly 17,000 a year, something should be done.
Earl Ferrers: My Lords, the noble Lord, Lord Henderson, accused me of keeping him on tenterhooks ort Amendment No. 52. I shall try not to do so this time. I shall come to the points more directly to minimise his frustration and his impatience. I am afraid that I am not persuaded that the law governing the enforcement of fines needs to be changed in the way the amendment envisages. The law already requires that the court must be satisfied that default is due to the offender's wilful refusal or culpable neglect and that it must have considered or tried all other methods of enforcing payment. The amendment would not add to the factors which the court must consider. It would merely require the court to state its precise masons for having concluded that all other methods of enforcing payment were inappropriate or unsuccessful. A court may well be of the opinion that an order to attach earnings would be inappropriate because it knows that the defendant is unemployed,
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but the amendment would require its reasons to be given in open court as regards every possible method of enforcement.
Given the variety of methods of enforcement available to a court, a requirement to state reasons for every option would considerably slow down the court's proceedings. I would not argue against such delay if I believed that it would lead to a better final decision, but, as I have said, given that all those matters must already be considered by the court, I cannot see that the requirement to give reasons in open court would have that improved result.
The noble Lord, Lord Henderson, referred to the number of people sent to prison for fine default and said that it was very high. Fines are imposed in about 1,200,000 cases a year and only about 17,000 people end up in prison for default. That amounts to about 1.5 per cent.
Lord Henderson of Brompton: My Lords, is the Minister seriously saying that "only" 17,000 people are committed to prison? I should have thought that "only" was the most extraordinary term to use in regard to the very high number of 17,000.
Earl Ferrers: My Lords, if the noble Lord prefers me to omit the word "only" I shall do so. Fines are imposed in 1,200,000 cases a year; 17,000 people a year end up in prison.
Lord Henderson of Brompton: My Lords, has the Minister sat down?
Earl Ferrers: My Lords, although I am standing up now, I was not standing up when the noble Lord asked the question.
Lord Henderson of Brompton: My Lords, the Minister has finally sat down, apparently satisfied that 17,000 admissions, processing, and discharging of people in the prison system is worthy of the description "only" as if it were some minor matter. It is a matter of great importance and highly costly. The figure of 17,000 is large. Imprisonment affects not only the prisoners but their families and their prospect of living useful, constructive lives subsequently.
It would be well worth it if magistrates were forced to say that they had exhausted every option before they reached a decision to sentence someone to imprisonment for fine default. I find it disappointing that the Minister has been unable to accept the amendment. It leaves a good Bill weaker than it otherwise might me. One of the Bill's objectives is to keep people out of prison. We offer the Minister some help towards achieving that end, but unfortunately he is rejecting it. Clearly I can do no more at this time of night than ask leave of the House to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 21 [Recovery of fines etc. by deductions from income support]:
Earl Ferrers Earl Ferrers moved Amendment No. 55:
Page 16, line 35, leave out from beginning to end of line 41 and insert ("In subsection (1) above-").
The noble Earl said: My Lords, I beg to move Amendment No. 55 and also speak to Amendment

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No. 56. The purpose behind these amendments is to make clear precisely what is meant by the term "fine" for the purposes of deductions from income support. Our concern has been to ensure that the definition of "fine" should be clearly set out in order to specify the purposes for which deductions from income support may be used.
Certain road traffic offences concerning vehicle excise licences impose penalties instead of fines. It is often the case that an offender, in addition to having a penalty imposed, may be required to pay the back duty owed on a vehicle excise licence. At present these penalties are enforced as though they were fines. We wish to ensure that such payments may also be deducted from income support to prevent the possibility that a failure to pay results in the offender being committed to prison. I think your Lordships would agree that that would be a most unfortunate situation and one which would reduce the usefulness of deductions from income support as a means of keeping defaulters out of prison. In the same way, we should not like an offender who had been ordered to pay a contribution towards his costs, which are also currently enforced in the same way as fines, to be unable to do so by means of deductions from income support, for fear that he too might end up in prison. I must emphasise that these additional items would not in any way increase the total weekly amount that could be deducted from income support to pay fines. The same ceiling would be in place to safeguard the offender.
The minor amendments to the definitions of "income support" and "prescribed" in this clause are purely technical amendments to definitions that already existed in Clause 21.
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 56:
Page 17, line 3, at end insert:
("(3A) In this section—
"fine" includes—

(a) a penalty imposed under section 8(1) or 18(4) of the Vehicles (Excise) Act 1971 or section 102(3) (aa) of the Customs and Excise Management Act 1979 (penalties imposed for certain offences in relation to vehicle excise licences);

(b) an amount ordered to be paid, in addition to any penalty so imposed, under section 9, 18A or 26A of the said Act of 1971 (liability to additional duty);

(c) an amount ordered to be paid by way of costs which is, by virtue of section 41 of the Administration of Justice Act 1970, treated as having been adjudged to be paid on a conviction by a magistrates' court;

"income support" means income support within the meaning of the Social Security Act 1986, either alone or together with any unemployment, sickness or invalidity benefit, retirement pension or severe disablement allowance which is paid by means of the same instrument of payment;
"prescribed" means prescribed by regulations made by the Secretary of State.").
On Question, amendment agreed to.
Lord Reay: My Lords, I beg to move that further consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.

Brighton Marine Palace and Pier Bill
Committed to an Unopposed Bill Committee.
House adjourned at seven minutes past eleven o'clock.