Lords Sitting of 21 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 Manchester.

Employment: Departmental Responsibilities
Lord McCarthy Lord McCarthy asked Her Majesty's Government:
Whether they intend to maintain a separate Department of Employment with its existing responsibilities, under a separate Secretary of State who is a member of the Cabinet.
The Lord Privy Seal (Lord Waddington): My Lords, the organisation of the machinery of government is a matter for the Prime Minister. The Government constantly review their organisation to meet changing priorities. There are no current plans to reorganise the employment department or change its existing responsibilities.
Lord McCarthy: My Lords, I thank the Minister for that extremely vague reply. Will he explain why there have been so many stories lately in very respectable newspapers like the Sunday Times, The Times and the Financial Times suggesting that the Government intend to blow the Department of Employment all over Whitehall in four equal parts? Is that not explicable given the fact that the Government have no policy whatever as regards the labour market?
Lord Waddington: My Lords, I do not believe that my reply was at all vague; it was straightforward. Perhaps the noble Lord will not object if I remind him that he should not believe all that he reads in the newspapers.
Lord Cledwyn of Penrhos: My Lords, will the noble Lord the Leader of the House agree that the Department of Employment is one of the most crucial of all government departments and that it is of special significance at present when unemployment is rising to most unacceptable levels? In those circumstances, while it was good to hear that there is no plan to do away with the Department of Employment, will he give an undertaking that on behalf of this House he will continue to pursue that point within the Cabinet?
Lord Waddington: My Lords, the Government attach great Importance to the functions of the Department of Employment, which makes a vital contribution to the country's future economic prosperity. The department plays a vital role in helping unemployed people to obtain jobs.
Lord Mellish: My Lords, I appreciate that, but will the Minister explain why reports which appeared in reputable newspapers like the Sunday Times and the Financial Times about the Department of Employment were not repudiated at the time by the Government?
Lord Waddington: My Lords, if every rumour which appeared in the press was repudiated by the Government, there would not be much space to put anything else in the newspapers. I can only repeat what I said before.
Baroness Turner of Camden: My Lords, will the Minister give the House an assurance that there is no intention to privatise any section of the services provided by the Department of Employment, and in particular the employment service, which is of such great importance to the country at present?
Lord Waddington: My Lords, I have made it absolutely plain that the Government attach the greatest importance to the functions carried out by the Department of Employment. Quite clearly, reorganisation of government is a matter for the Prime Minister. I am sure that I was correct to state the matter in the words that I used.
Lord Dean of Beswick: My Lords, my noble friend on the Front Bench referred to the Government's proposals. Will the Minister give us an undertaking that they have no plans either to privatise the Department of Employment or to make provision for the local employment exchanges to opt out?
Lord Waddington: My Lords, I give the noble Lord the assurance which I gave in my original Answer. The organisation of the machinery of government is a matter for the Prime Minister. There are no current plans to reorganise the employment department. Therefore, the question posed by the noble Lord cannot possibly arise.
Baroness David: My Lords, has there been any plan to amalgamate the Department of Education and Science and the Department of Employment, as yesterday Statements were repeated from both departments covering a very similar area?
Lord Waddington: My Lords, I assure the noble Baroness that there is the closest co-operation between the Department of Employment and the Department of Education and Science. That was well evidenced yesterday by the production of the White Papers.
Lord McCarthy: My Lords, if the noble Lord cannot give a commitment of the kind sought, will he give a commitment that at last the Government intend to introduce an alternative to the community programme to do something about the long-term unemployed?
Lord Waddington: My Lords, this is an extraordinary time to raise the subject of the long-term unemployed. If any evidence were necessary of the Government's commitment to tackle the problems of unemployment, that evidence was produced yesterday. A very warm and friendly reception was given to the two White Papers by this House and by another place. The proposals put forward by the Government are markedly in contrast with the proposal put forward by the Labour Party, which is no more than a plan to increase unemployment by introducing a national minimum wage. If anybody doubts that for one moment, it is only necessary to look at a

103
publication produced recently by the Fabian Society which states that the Labour Party's proposals would result in an increase in unemployment.
Lord Hailsham of Saint Marylebone: My Lords, given that in this House Ministers answer for the Government and not for colleagues, is it not wholly wrong to ask my noble friend to give undertakings which, by definition, he cannot possibly be expected to give?
Lord Waddington: My Lords, my noble and learned friend is right to point out the difficulty of giving the kind of undertakings asked for. However, I cannot object to any question addressed to me in this House. All I can do is to answer truthfully, and that is precisely what I have done.

Student Loans
Baroness David Baroness David asked Her Majesty's Government:
Whether the Access Fund for students in higher education and the amount of the student loan for the academic year 1991–92 have been decided.
The Parliamentary Under-Secretary of State, Department of the Environment (Baroness Blatch): My Lords, £25.8 million will be available for the Access Fund for Great Britain. The division between the further and higher education funds has yet to be fully decided. My right honourable friend plans to announce the maximum rates of student loan for the academic year 1991–92 shortly.
Baroness David: My Lords, I thank the Minister for that reply. Has monitoring taken place of what has happened in the universities and polytechnics as a result of providing access funds this year, both in the amounts spent and in the way that the universities and polytechnics have distributed them among students? Will the Access Fund be available for the whole of the next academic year or will the institutions which have not spent a certain percentage of it by the end of March be forced to forfeit the rest? That was threatened this year, though in the event that was changed.
Baroness Blatch: My Lords, the Government are monitoring and are committed to a review three years after implementation of this policy. In regard to the second question, I can assure the noble Baroness that the flexibility to deploy access funds throughout the whole of the year is a matter for the universities. That concession was made as a result of listening to the vice-chancellors.
Baroness Blackstone: My Lords, is the Minister aware that the access funds allocated this year failed to make up housing and other benefit which was taken away from students last year? Will the Government reconsider the sums allocated for next year in the light of the fact that this year's funds have been far too little to cover those benefits for which students are no longer eligible?
Baroness Blatch: My Lords, the noble Baroness is wrong to make a comparison between just the access funds and what was claimed in social security benefit. One must consider all the moneys available to students in total as a package, which is how the policy was presented. Access funds are additional to that. Those students who would have been eligible for social security benefits during the course of the current year would have claimed on average £329. The average loan is greater than that. Therefore, the total moneys available to students is greater than that, even including the loss of benefits.
Baroness David: My Lords, has the department worked out how much a student who has taken out a full loan this year will owe at the end of the year or at the end of the three years? Does the Minister have those figures? A figure of £2,000 was given to me but I heard from other sources that students will owe a great deal more at the end of their university or polytechnic studies.
Baroness Blatch: My Lords, I can only give the figure for the present year. The current inflation indicator is 9.8 per cent., which makes it a cheaper loan than one can obtain on the open market. Secondly, absolutely no student will be required to repay the loan unless they are earning at or above 85 per cent. of the national average wage. At the moment that is £11,580—£230 per week. That specific figure will be uprated each year for inflation.
Lord Peston: My Lords, can the noble Baroness clarify one point? She said that an announcement in regard to the loan would be made "shortly". It matters a great deal to students, especially those who are about to start their courses, to know when "shortly" is. Does it mean any day now or a much longer period of time?
Baroness Blatch: My Lords, the noble Lord well knows that it is difficult to be absolutely precise in these matters. It will be very soon. We are well seized of the importance of students knowing well in advance, first, what the indices will be and, secondly, what the available loan will be.

Alberta: British Consulate-General
2.47 p.m.
Lord Moran Lord Moran asked Her Majesty's Government:
Whether they will reconsider their decision to close the British Consulate-General in Alberta, Canada.
The Minister of State, Foreign and Commonwealth Office (The Earl of Caithness): My Lords, no.
Lord Moran: My Lords, I thank the Minister for that reply. Is it the intention of Her Majesty's Government to cover Alberta in future from the British Consulate-General in Vancouver? If so, does the Minister believe that periodic visits from a post in British Columbia, 500 miles away on the other side of the Rockies, will enable our people to compete effectively with the Japanese, the French and the

105
Germans, who all have consulates-general on the spot in Edmonton pursuing their economic interests in a hard-headed way?
Bearing in mind the great reservoir of goodwill that prevails in Alberta and the Canadian prairies for this country and the enormous opportunities that exist for investment and trade, and given that the training area in Suffield is visited by 12,000 of our troops every year, does not the Minister think that the Government are in danger of losing sight of the importance of that part of Canada? I did my best to bring that home when in Ottawa and not least when I took Mrs. Thatcher to visit Alberta in 1983 on her notably successful visit to Canada.
The Earl of Caithness: My Lords, let me state at the outset that we attach the highest importance to our relations with Canada. This was by no means a decision taken lightly. We shall continue to pursue our economic interests in as hard-headed a way as the Japanese, the Germans, the French and the Americans. Our interests in Edmonton will be covered from Vancouver. I can reassure the noble Lord that we are providing three extra locally-engaged staff in Vancouver to cover these matters.
Lord Cledwyn of Penrhos: My Lords, how will it be possible to maintain close contact with Alberta under the new circumstances? This country has had a representative in Alberta for over a century. Now we propose to change the organisation of the consulates-genera I in Canada. Can the Minister say whether the Government have any proposals to close any other consulate-general in Canada? That would be an extremely serious matter. Can he say also whether the Canadian Government have made any representations on the issue?
The Earl of Caithness: My Lords, I can assure the House that we are not closing our posts in Ottawa, Toronto, Montreal and Vancouver. They will stay. There are regular flights from Vancouver to Edmonton. There are flights at least every two hours and flying time is about two hours. I believe that our interests can be well protected in that area.
Lord Boyd-Carpenter: My Lords, before my noble friend gave his terse but perfectly clear Answer to the noble Lord, Lord Moran, had he studied the letter that the Deputy Prime Minister of Alberta sent to his right honourable friend the Foreign Secretary? Did he consider the very powerful arguments contained in that letter? Is it not the case that the withdrawal of British representation in Alberta after a good many years will inevitably be construed as an indication that we no longer consider Alberta of any particular importance?
The Earl of Caithness: My Lords, I have certainly seen the letter to which my noble friend refers. We are grateful for the understanding which the Canadians have shown in the difficult decision that we had to take. I disagree with my noble friend as regards his second point. He said that by the closure of this post our interests in that part of Canada are diminished. I would certainly not use the argument that my noble
106
friend put forward. The Canadians have closed posts in Glasgow, Birmingham, Belfast, Manchester, Leeds and Liverpool, but the Canadian interest in this country is even stronger than before.
Lord Ezra: My Lords, is the noble Earl aware that the Province of Alberta in Canada disposes of substantial energy resources and in that respect is very similar to this country? As a result of a number of visits, I can testify to the close and substantial relationship that we have had with the province in the past. Is the noble Earl further aware that a number of continental countries are maintaining their consulates in Alberta while we appear to be abdicating our role of achieving closer links between North America and the European Community?
The Earl of Caithness: My Lords, I most certainly refute the last suggestion of the noble Lord. In no way are we doing that. If he had listened to my earlier answers he would have been reassured by what I said in that regard.
Lord Callaghan of Cardiff: My Lords, am I not right in believing that the British Government raised no objection at the closure of the Canadian consulates in this country whereas the province of Alberta is raising the most severe objection to the closure of the British consulate in that province? Does the noble Earl not agree that that is a difference which should be taken into account? As the Prime Minister of Alberta will be coming to this country next month, would it not be better to suspend the decision until discussions have taken place with him? Finally, how much will this trifling economy save?
The Earl of Caithness: My Lords, we all have to live within the budgets imposed on us. Nobody likes to close a post, but other countries around the world in America and Europe are having to reconsider maintaining some of their posts. The annual saving that we estimate to gain from the closure of the post is £231,000.
Lord Mackie of Benshie: My Lords, is the Minister aware that the argument that he has put forward that there are frequent flights over the Rockies, which are only 500 miles away, is, to put it mildly, rather foolish? It is rather like placing the consul for Glasgow in Edinburgh. There is a strong feeling of separate identity between Edmonton and Vancouver. Does the Minister agree that this move, however much money is saved, cannot do anything but harm to British interests?
The Earl of Caithness: My Lords, as I said at the beginning, the decision was not taken lightly. I can reassure the House that we are providing three extra staff in Vancouver to make sure that our interests are not diminished.
Lord Parry: My Lords, will the noble Earl accept—
Lord Morris: My Lords, can my noble friend say whether the government of Alberta are displaying the same extent of public generosity by closing their consulate-general's office in London?
The Earl of Caithness: My Lords, no, the Canadians are not closing their office in London. Neither are we closing our other offices in Canada; namely, those in Ottawa, Toronto, Montreal and Vancouver.
Lord Morris: My Lords, I asked my noble friend whether the province of Alberta is closing its office in London in Lower Regent Street?
The Earl of Caithness: My Lords, I am sorry that I misunderstood my noble friend. I thought that he was talking about Canada in general. The provincial government of Alberta is still retaining its office in London to the best of my knowledge.
Lord Parry: My Lords, will the noble Earl accept that I am grateful to the House for waiting with such patience to hear what I have to say? Will he accept, on this very serious and heavy point, that what is happening to the economies of the North Pacific is as vital to the future of the world as anything that is happening today? Does the noble Earl accept that to be under-represented in an area of influence such as Canada at this time is to sell ourselves short? Will he accept from me that it is one of the most depressing experiences to travel in that part of the world and to see that while the clocks record the times around the world, there is nothing relating to London time?
The Earl of Caithness: My Lords, we certainly do not wish to be under-represented anywhere in the world. Although the noble Lord speaks of the North Pacific, I also recommend the whole of the Pacific rim including South-East Asia, where London time is well known.
Baroness Seear: My Lords, I believe that the noble Earl told us that the saving was £230,000. Does that sum include the additional cost of the three people who are to be employed elsewhere, and their travel? Does the noble Earl not agree that if those sums are not included, then the saving will be cut to a trivial sum?
The Earl of Caithness: My Lords, the noble Baroness raises an important point. The saving takes into account the extra costs.

ICI: Hanson Shareholding
2.56 p.m.
Lord Williams of Elvel Lord Williams of Elvel asked Her Majesty's Government:
What action they propose to block a takeover of ICI plc.
Viscount Astor: My Lords, the current position is that Hanson has acquired 2.82 per cent. of ICI's shareholding. There is no takeover proposal.
Lord Williams of Elvel: My Lords, I am grateful to the noble Viscount for his Answer. Is he not aware that ICI has now, in the City expression, been "put in play"? That means that it considers itself vulnerable to a takeover. Is the Minister further aware that that involves a serious diversion of time for ICI
108
management? Is the noble Viscount further aware that ICI is one of the major flagship companies of the United Kingdom, and that it should certainly not be allowed to be taken over, particularly by a company which has the cavalier spirit of an asset-stripping conglomerate?
Viscount Astor: My Lords, the noble Lord, Lord Williams, is speculating. I understand that Hanson has stated that its current stake is for investment purposes. There is no takeover.
Lord Harmar-Nicholls: My Lords, is my noble friend aware that most people who work in this field feel that the minute they see the Government beginning to interfere by blocking a proposal of the normal working of the free enterprise system, we are all in some kind of trouble?
Viscount Astor: My Lords, we are not interfering because there is no takeover proposal.
Lord Donoughue: My Lords, is the Minister aware that the Hanson company has one of the worst records in British industry for research and development investment, and that it is significantly worse than ICI? Is he also aware that Hanson maintains its profitability to a considerable extent by running down R&D in the companies that it takes over by disposals and making people unemployed? Does the Minister agree that it is wholly undesirable that the heartland of British manufacturing should be exposed to the plunder of such a predator?
Viscount Astor: My Lords, I can only repeat that I do not believe that to be the case. As regards the noble Lord's point about R&D, it is important for any company to remain competitive in the markets in which it operates if it is to remain in business. That is particularly so for those companies at the leading edge of technology if they are to remain competitive with industries in other countries.
The Earl of Halsbury: My Lords, in addressing your Lordships on this Question, I declare an interest. I am a contented shareholder of ICI. I have had a happy ex-partnership with BP, and I had a grateful employee relationship with Lever Brothers. They are three of our giant companies representing the very best of British enterprise. Is it right that they should be at the mercy of an asset stripper? I feel very deeply about this matter.
Viscount Astor: My Lords, as I have said, I do not believe that to be the case. As the noble Earl is aware, if anything happens, then he as a shareholder will have the right to exercise his vote in affecting the future of the company.
Lord Orr-Ewing: My Lords, can my noble friend give some indication on whether it is in order to ask any question in the City about any company concerning another company when there is not a merger in sight? If that is allowed, then any merger, demerger, management buy-out, or anything, can be put on the Order Paper. Where is the ministerial responsibility when there is no merger being made, suggested, or in sight?
Viscount Astor: My Lords, my noble friend makes an important point. We are beginning to speculate on speculation.
Lord Dormand of Easington: My Lords, is the Minister aware that, in addition to the points made by my noble friend, ICI has an export record second to none, which is over 50 per cent. of its manufactures? Is the Minister also aware of the very long-standing and great commitment which ICI has to places like the North East of England? For many years ICI has provided solid employment prospects and everything that goes with them. As this Government pretend to have some interest in regional policies, is that not a matter in itself—apart from other things—on which the Government should be keeping a very close eye?
Viscount Astor: My Lords, the chemical industry contributes £ 13 billion to UK export as well as all major industrial sectors in this country. It is important that the industry remains competitive and able to compete in the European and worldwide markets.
Lord Peston: My Lords, the noble Lord the Leader of the House said that one should not believe everything one reads in the newspapers. I have to say that all I know about the subject is what I have read in the newspapers. My question to the Minister is this: if there is nothing to fear on the part of ICI, is it the Government's advice to the management of ICI that it pays no attention whatever to this rumour and that it need invest no resources in defending the company against a takeover; everything is perfectly okay and that there is nothing at all to worry about? Is that the message that the Government Front Bench are sending to ICI?
Viscount Astor: My Lords, it is up to the board and management of ICI to run the company—not the Government.
Lord Ezra: My Lords, while the noble Viscount has made it very clear that no bid has as yet been made for ICI, nevertheless I ask him whether he accepts that there has been great public anxiety? Therefore, is it not proper that we should raise the matter in this House? If there were to be a bid for such a leading company in a key position in Britain and contributing so much to our overseas trade, what then would be the Government's attitude? Would the Government consider that to be a matter for public policy and refer it to other bodies for consideration?
Viscount Astor: My Lords, should there be a bid by any large company such as the ones we are discussing, or any of the companies in this country, it would be likely to be considered by the European Commission under the European Community merger control regulation which deals with large mergers with cross-border dimensions. However, no merger situation has yet arisen. Should any bid be announced the proposal would have to be notified to the EC Commission within one week of the announcement.
Lord Wade of Chorlton: My Lords, is my noble friend aware that Hanson has made only a relatively small investment in ICI? It is clearly the intention to
110
improve the performance of that company for the benefit of all the shareholders. In fact, one would have to accept, would one not, that the shareholders of Hanson have done somewhat better over recent years than have ICI shareholders?
Viscount Astor: My Lords, my noble friend makes an important point. I am sure that noble Lords who are shareholders of ICI will take note of what he said.
The Earl of Halsbury: My Lords, as one who is apprehensive that this conglomerate may be gathered to its ancestors, who will succeed to the management of the conglomerate? It will be a totally false situation.
Viscount Astor: My Lords, I do not believe that is a question for me to answer.
Lord Rochester: My Lords, as someone who had the good fortune to be employed by ICI for nearly 30 years and throughout that time was concerned with the management of people, can the noble Viscount give us any assurance that, should a full takeover bid be made and before any conclusion is reached, account will be taken of the views of the employees of that great company; some 130,000 of them?
Viscount Astor: My Lords, that is a matter for the shareholders of ICI. It is they who will be deciding whether or not to accept a bid.
Lord Tordoff: My Lords, is the noble Viscount saying that it is only the shareholders whose views are to be taken into consideration? Are more than 100,000 employees of no consequence at all?
Viscount Astor: My Lords, I did not say that they are of no consequence. The fact is that the shareholders have the vote in such situations. Indeed, many employees of large companies are shareholders themselves.
Lord Marsh: My Lords, can the Minister or the Government, for the benefit of the House and so that we can make an informed judgment, seek to produce some sort of comparison between the relative track records in commercial judgment of Hanson and successive Governments in this country over a period of years?
Viscount Astor: My Lords, it is not up to me to make those judgments.
Lord Williams of Elvel: My Lords, is the noble Viscount really saying that the Government are adopting a neutral attitude to this possibility and that it is up to the shareholders to decide what they want to do with their company? Have the Government no regard for the long-term interests of the industrial nation?
Viscount Astor: My Lords, I make two points. The first is that we cannot speculate on speculation. What I have said, and repeat, is that it is highly likely that should any bid be launched for a company of this size it would be considered by the European Commission under the European Community merger control regulations.

Business
3.6 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 pm. for about one hour and that during this adjournment the Second Reading of the Criminal Procedures (Insanity and Unfitness to Plead) Bill and the Committee stage of the Wildlife and Countryside (Amendment) Bill will be taken.

Agricultural Holdings (Scotland) Bill [H.L.]
Read a third time, and passed, and sent to the Commons.

Criminal Justice Bill
3.7 p.m.
The Minister of State, Home Office (Earl Ferrers): My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Earl Ferrers.)
On Question, Motion agreed to.
Lord Nathan Lord Nathan moved Amendment No. 66:
After Clause 29, insert the following new clause:
("Review of life sentences by Tribunal
.—(1) The Secretary of State shall refer the case of every life prisoner to the Tribunal for review not later than two years before the expiry of the penal term applicable to his case.
(2) The Tribunal may direct—

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

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

(i) on licence; or

(ii) unconditionally.

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

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

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

(c) to call witnesses on his behalf

and shall be given such information about his case and about the matters under consideration by the Tribunal as will enable him effectively to exercise those rights:
Provided that the Tribunal may direct that there shall be no disclosure of any material which the Tribunal considers that it would not be in the public interest to disclose.
(6) If the Tribunal determines not to direct the release of a life prisoner (whether convicted of murder or of some lesser offence) the Secretary of State shall refer his case to the Tribunal for further consideration within
112
such period (not being longer than three years from the date of the previous determination) as the Tribunal may direct.
(7) Where the Tribunal directs the release of a life prisoner other than one convicted of murder it may also direct the length of time for which the licence is to remain in force.
(8) If the Tribunal gives no direction as to the length of a licence under subsection (7) above, it shall review the licence—

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

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

and shall on any such review either terminate the licence or direct the length of time for which it is to remain in force.
(9) It shall be the duty of the Secretary of State to give effect to any directions given by the Tribunal in regard to a life prisoner whose case is referred to it under this section.
(10) In this section "penal term" means the sentence of imprisonment which the court is required by section (Court's duty on passing sentence of life imprisonment) to state in open court as being the sentence it would have passed if it had not passed a sentence of imprisonment for life and it had not taken into account the risk of serious harm to the public if the offender were to be released after a determined number of years' imprisonment.
(11) In this Part "life prisoner" means a person serving a sentence of imprisonment for life."). On Question, amendment agreed to.
[Amendment No. 67 not moved.]
Clause 30 [The Parole Board]:
The Earl of Longford The Earl of Longford moved Amendment No. 67C:
Page 21, line 20, after ("decision") insert ("or the person to whom the case relates wishes an interview,").
The noble Earl said: My Lords, I hope that the Government will consider very carefully whether they will accept this moderate amendment. If I were left to myself—but in this world, as in this House, we are not very often left to ourselves to do exactly what we want —I should have moved a much stronger amendment. I should have had in mind the conclusion 68 of the Report of the Review Committee on the Parole System in England and Wales which states:
"The majority of the Committee believe that the Board should review cases on paper and take a decision which would then be communicated to the inmate".
The majority—and I agree with the minority—of the Carlisle Committee see the paper review in terms of an initial sift. That would give the rest the opportunity of a hearing in which their cases would be resolved one way or another. Therefore, the minority of the Carlisle Committee favoured a proper hearing of the case of an applicant for parole. I am not moving that amendment in the way I should like because I do not imagine that the Government would accept it. We have been taught by the late Lord Butler that politics is the art of the possible.
I now move on to something which is fairly moderate and which everyone, including the Government—if they are in a reasonable state of mind—should accept. Clause 30 of the Bill states:
"If in any particular case the Board thinks it necessary to interview the person to whom the case relates before reaching a decision, the Board may authorise one of its members to interview him and shall consider the report of the interview made by that member".
That will arise in some cases and so far as it goes is beneficent. However, my amendment would carry that idea further by providing that the person to whom the case relates—the applicant—should be able to obtain an interview. It would not therefore be dependent on the wishes of the board. Any applicant who asked for an interview could obtain one. That is the gist of the first two amendments.
By this time I am sure that most noble Lords are familiar with what was recommended by the Carlisle Committee and with what the Government are proposing. However, these matters have not been discussed thoroughly in this House. The report of the Carlisle Committee was one of high quality. The committee's conclusions did not on the whole find favour with me although they found favour with the Government. The committee sought to cut down from 24,000 to 4,000 the number of cases of people applying for parole. That would make the whole system look very different. It also recommended the abolition of the local review committees. That was a disastrous recommendation but one which seems likely to take effect. As Mihailovic said:
"I have been swept away by the gale of the world".
It seems likely that on this matter I shall be swept away. I shall try to make the best I can of the situation when the local review committees are abolished.
At the present time if one applies for parole—it would not so far as I can see as I look around be the lot of any Member of this House to find himself applying for parole—the only personal contact one would have with the parole system would be at a personal interview with one member of the local review committee. One would have two interviews became the governor of the prison or his deputy would be on the local review committee so that the prisoner would have one or two personal interviews. If the local review committee is swept away what is left? We are left with bureaucracy.
I do not see the noble Lord, Lord Windlesham, in his place. If anyone wants to have a bureaucratic system described in the most damaging terms, let him look at the speech made by the noble Lord, Lord Windlesham, yesterday in a slightly different connection. At any rate, one would have a bureaucratic decision, a decision reached purely on paper. One would not have the personal interview which at present every prisoner has. One would be denying the personal interview. That is what I am speaking for at this stage. If the Government are to abolish the local review committees —a disastrous decision but disastrous decisions are taken daily, almost hourly, in this world—for heaven's sake ensure that there is at least some possibility that the applicant for parole will be seen by someone. That would be the effect of my amendment. Under the Government's plans he might or might not be seen. I hope therefore that the Government will accept the amendment.
3.15 p.m.
Lord Donaldson of Kingsbridge: My Lords, although I am inclined to agree with my noble friend that it would be a pity to abolish the review
114
committees, I have to point out that every prisoner has the right to speak to any member of the board of visitors on request and in fact—
The Earl of Longford: My Lords, perhaps I may interrupt because I believe there is a misunderstanding here. I am not talking about the board of visitors. I am talking about the Parole Board.
Lord Donaldson of Kingsbridge: My Lords, I think I shall leave it at that.
Lord Richard: My Lords, my noble friend requests that we should approach these amendments in a reasonable state of mind. I always approach the amendments of my noble friend in a reasonable state of mind. In doing so, I commend them to the consideration of the Government.
There are two points here, each of which has substance and force behind it. The policy of not giving reasons for refusing parole undoubtedly adds to a sense of grievance on being turned down. I do not think anyone can legitimately disagree with that. To deny parole to a prisoner who has been waiting anxiously for months for a decision and then for the prisoner to be given no formal explanation as to why he has been turned down is likely to induce cynicism and bitterness about the whole procedure. It is bound—is it not?—to give rise to the suspicion in the prisoner's own mind that the decision in his case has been arrived at arbitrarily if formal reasons are not given. If they are not given, prisoners will tend to invent their own reasons. The consequences of such speculation may be much more damaging than the truth itself. Moreover, without being given reasons for their failure, it is difficult for prisoners to work constructively for their release. I support that part of my noble friend's amendment.
The second part of it has equal force. It is thoroughly desirable that prisoners should have the opportunity of a personal interview with a Parole Board member. Not infrequently a prisoner may decline to make written representations on the ground that he feels that he lacks the confidence and skill to put his case properly in writing. He would prefer to make an oral case. While some written representations from prisoners may be articulate, a much larger number are written by prisoners who are unclear as to what matters they should touch upon, and who therefore fail to do themselves justice. The system of personal interviews where the prisoner who so desires it could be accorded one would surely be a much more satisfactory way of enabling prisoners to make representations as well as according more closely with the requirements of natural justice. I hope that the House will approach these amendments in as reasonable a frame of mind as I and my noble friend have done.
Lord Campbell of Alloway: My Lords, my noble friend Lord Windlesham is not in his place. With regard to Amendment No. 67A, the evidence we received was quite convincing and was reflected in a unanimous part of the report that the reasons should be given if there is no recommendation for early release. It became manifestly apparent to us that this

115
was one of the causes of serious unrest in Her Majesty's prisons. It was a cause of substantial disquiet and grievance. Curiously enough, the Woolf Report found exactly the same. I have spoken to this matter before in the House. I hope that the Government will keep an open mind on Amendment No. 67A as it might be helpful for the good order of prison life.
Earl Ferrers: My Lords, the noble Earl, Lord Longford, said that these were thoroughly moderate amendments. His noble friend Lord Richard recommended them for the consideration of the Government. We are in a very affable mood, and the noble Lord's suggestion that the Government should consider them has been taken very seriously. We have considered them. We are dealing with three amendments, Amendments Nos. 67C, 67B and 67A. The noble Earl's first two amendments—Amendments Nos. 67C and 67B—seek to guarantee to all inmates the right to have an interview with a member of the Parole Board before a final decision about early release on licence is taken. We accept that it is important for an inmate to have an interview with someone involved in the decision-making process. We intend, by virtue of Clause 30(5), to issue rules which would ensure that all inmates receive such an interview.
The advantage of this approach is that it allows for flexibility and changes to the system in the light of experience. If we were to put the right to an interview in legislation we would undermine this flexibility and it could be seen as the first step towards introducing a formal hearings system for determinate sentence inmates. That is the system which the Government have rejected following the recommendation of the committee chaired by my noble friend Lord Carlisle of Bucklow. It also begs the question of how the interview would be conducted. For example, should the inmate's friend or lawyer be allowed to attend? What other procedural rules would need to be followed? The interview should be an administrative arrangement designed to assist the board and not a legal right from which other rights could be inferred.
The noble Earl's third amendment, Amendment No. 67A, relates to inmates who have had their applications for release on licence turned down. At present inmates are not told the reasons for their parole decisions and have no right to be told. The secrecy of the present system has been widely criticised and the Government have accepted the need to move to a more open system. However, while there is a strong argument to be made for giving reasons to the inmate concerned, this amendment would place such information in the public domain and presumably it could be reported in the press. I do not believe that this would be a welcome step. An inmate's parole decision should remain confidential to those involved, including possibly the victim and his or her family; it should not be a matter of general knowledge.
I can tell the noble Earl—I am not sure whether this will satisfy him but it will please him—that the Government hope to introduce through administrative means the giving of reasons for all parole
116
decisions, positive as well as negative. While an inmate will naturally wish to know why an application for parole has been turned down, it could also be beneficial both to the inmate and to the supervising officer if the Parole Board explains its reasons for recommending release on licence, particularly if licence conditions are added.
In the light of those undertakings to introduce through administrative means the holding of interviews for all inmates applying for release on licence and to give reasons to the inmates for all Parole Board decisions, I hope that the noble Earl will consider that that is the best course of action rather than to put the requirements into statute as his amendments seek to do.
The Earl of Longford: My Lords, I am grateful to the noble Earl, who has obviously thought carefully about these matters. I am not so quick on the uptake as to be quite sure of exactly what his assurances amount to. I shall withdraw the amendments on this occasion, but if the assurances are not as encouraging as I think they are, I shall return to the issues at a later stage. I hope that it will not be necessary to do so. For the moment, I feel inclined to thank the noble Earl for his helpfulness. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 67B and 67A not moved.]
Lord Nathan Lord Nathan moved Amendment No. 68:
Before Schedule 4, insert the following new schedule:
("Schedule
Life Sentences Review Tribunal
1. The Tribunal shall consist of—

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

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

(c) a chief probation officer.

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

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

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

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

(3) The power to make rules under this paragraph shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.").
On Question, amendment agreed to.
[Amendments Nos. 69 and 70 not moved.]
Clause 32 [Power to release long-term and life prisoners]:
Lord Nathan Lord Nathan moved Amendment No. 71:
Page 22, line 30, leave out subsections (2) to (4).
On Question, amendment agreed to.
Clause 34 [Duration and conditions of licences]:
Earl Ferrers Earl Ferrers moved Amendment No. 71A:
Page 23, line 4, after ("36(1)") insert ("or (2)").
The noble Earl said: My Lords, in moving this amendment I should like to speak also to Amendment No. 72A. These are both drafting amendments designed to correct two cross-references. I beg to move.
On Question, amendment agreed to.
Lord Nathan Lord Nathan moved Amendment No. 72:
Page 23, line 11, after ("life prisoner") insert ("who has been convicted of murder").
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 72A:
Page 23, line 12, after ("36(1)") insert ("or (2)").
On Question, amendment agreed to.
Clause 36 [Recall of long-term and life prisoners while oil licence]:
Lord Nathan Lord Nathan moved Amendment No. 73:
Page 24, line 2, leave out ("or life").
On Question, amendment agreed to.
Clause 38 [Remand time to count towards time served]:
Earl Ferrers Earl Ferrers moved Amendment No. 73A:
Page 25, line 13, leave out ("period during which he was in custody'') and insert ("relevant period within the meaning of that section").
The noble Earl said: My Lords, this is a drafting amendment. I beg to move.
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 73B:
After Clause 43, insert the following new clause:
Persons extradited to the United Kingdom
(".—(1) A short-term or long-term prisoner is an extradited prisoner for the purposes of this section if—
118

(a) he was tried for the offence in respect of which his sentence was imposed—

(i) after having been extradited to the United Kingdom; and

(ii) without having first been restored or had an opportunity of leaving the United Kingdom; and

(b) he was for any period kept in custody while awaiting his extradition to the United Kingdom as mentioned in paragraph (a) above.

(2) If, in the case of an extradited prisoner, the court by which he was sentenced so ordered, section 67 of the 1967 Act (computation of sentences of imprisonment) shall have effect in relation to him as if a period specified in the order were a relevant period for the purposes of that section.
(3) The period that may be so specified is such period as in the opinion of the court is just in all the circumstances and does not exceed the period of custody mentioned in subsection (1)(b) above.
(4) In this section—
"extradited to the United Kingdom" means returned to the United Kingdom—

(i) in pursuance of extradition arrangements;

(ii) under any law of a designated Commonwealth country corresponding to the Extradition Act 1989;

(iii) under that Act as extended to a colony or under any corresponding law of a colony; or

(iv) in pursuance of a warrant of arrest endorsed in the Republic of Ireland under the law of that country corresponding to the Backing of Warrants (Republic of Ireland) Act 1965;

"extradition arrangements" has the meaning given by section 3 of the Extradition Act 1989;
"designated Commonwealth country" has the meaning given by section 5(1) of that Act.").
The noble Earl said: My Lords, this amendment addresses the vexed issue of prisoners who have spent time in custody abroad awaiting extradition to this country. It seeks to respond to the concern expressed by a number of your Lordships in Committee when we debated a new clause tabled by my noble friend Lord Thomas of Gwydir. We were persuaded by my noble friend that the operation of Section 67 of the Criminal Justice Act 1967 results in anomalies which could and should be lessened. Section 67 provides for the length of a prison sentence imposed by a court to be reduced administratively by any time spent on remand in custody awaiting trial. Thus, an offender sentenced to four years in prison who had spent one year on remand in custody would be treated by the prison authorities as if he had already served one year of his sentence. But Section 67 does not cover time spent in foreign custody awaiting extradition for trial in this country. If in the example I gave in Committee the offender had spent one year in a French gaol awaiting extradition, the only course open to the court would be to reduce his sentence from four to three years. Therefore, two people sentenced for the same offence would receive quite different sentences and would be entitled to be released at quite different times. That seems to be anomalous. It also blurs the sharpness of the principle that the sentence should reflect the offence itself.
The proposed new clause would give a court the discretion in sentencing an extradited prisoner to order that all or some of the time spent in foreign custody should count as the "relevant period" under Section 67 of the 1967 Act. The prison authorities would then calculate the length of imprisonment,

119
taking into account the period ordered by the court. Such offenders would receive the appropriate sentence for the offence. They would effectively be treated in the same way as those who spent time on remand in custody in this country.
The proposed new clause goes wider than the amendment tabled by my noble friend in Committee. It applies to all extradited prisoners. It includes those extradited from Commonwealth counties or from the Republic of Ireland under the backing of warrants procedure. It would also benefit those who had been in custody intermittently as well as continuously, whatever the type of custody. The court would be able to exercise its discretion in deciding what proportion of the period spent in foreign custody it would be just to regard as the "relevant period" in all the circumstances. If it is thought that the offender had fled the country to escape justice and had deliberately spun out the extradition proceedings, the court could decide to take no account of the period of foreign custody, or it could decide that six months in a French gaol should be treated as six months on remand over here. The offender would be able to appeal against an order made by a court. The new clause does not need to specify this because the Criminal Appeal Act 1968 already provides for appeal in this sort of case.
I realise that this new clause does not give my noble friend all that he wants. For example, it does not provide for the automatic deduction of the entire period spent in foreign custody. But, as I have explained, we think that we cannot do without the exercise of a certain amount of discretion here. Nor would the new clause help if the offender did not himself raise the issue of time spent in foreign custody until after sentence had been passed. He would, as now, have to rely on the use of the royal prerogative of mercy. We accept that that is not ideal but we hope that the situation will not arise often. The defendant's counsel could ensure that the matter was aired in court at the appropriate time.
Despite that, I hope that my noble friend and other noble Lords will accept that we have gone a good way towards meeting the anxieties that they expressed in Committee. I beg to move.
3.30 p.m.
Lord Mottistone: My Lords, my noble friend Lord Thomas of Gwydir has to be in Committee on a Private Bill and asked me to speak on his behalf, and to say how grateful he is to our noble friend the Minister for tabling the amendment. He was aware that it did not go as far as he wished, but it goes very much further than the existing position.
Lord Renton: My Lords, I too support the amendment, but I should be grateful if my noble friend the Minister would explain the meaning and the effect of the words in subsection (1) (a) (ii) "having first been restored". My imagination does not run to understanding the significance of those words. It may be that the draftsman intended to say "without having
120
first been restored to". It would follow, therefore, to the United Kingdom. Perhaps my noble friend would be so good as to explain the matter.
Lord Harris of Greenwich: My Lords, it is right that someone on this side of the House should say how glad we are that the Minister has responded to the concerns expressed in the amendment moved in Committee by the noble Lord, Lord Thomas of Gwydir. The Minister has responded to pressure from all sides of the House and we are grateful to him.
Lord Richard: My Lords, I join in the welcome given to the clause, and congratulate the Government on having accepted the proposal. I hope that the outburst of compromise that is coming from the Government Benches today augurs well for the rest of the Bill.
Earl Ferrers: My Lords, I am grateful to your Lordships for agreeing to the amendment. My noble friend said that his imagination did not run towards providing an explanation of the part of the clause that he mentioned. I find it difficult to understand how my imagination should run even faster. As I understand it, the clause does not apply where the offender has been returned to the country which extradited him. That is what "restores" means in extradition law. I am sure that that explanation will satisfy my noble friend. He may wish to consider it in greater detail. It is extradition law which causes such phraseology to be used.
Lord Renton: My Lords, before my noble friend sits down, I am grateful to him, but I still think that the draftsman should reconsider that phrase.
On Question, amendment agreed to.
Clause 48 [Notices of transfer in certain cases involving children]:
Lord Mottistone Lord Mottistone moved Amendment No. 74:
Page 30, line 23, at end insert:
("(8) In section 32(1) (b) of the 1988 Act after the words "leave of the court" there shall be inserted the following paragraph
"(c) All reasonable steps, as set out in the rules of court, shall be taken to ensure that the court's decision to grant or refuse such leave be made, and conveyed to the child witness, as soon as is practicable after the child's witness' first statement to the police concerning the alleged offence."").
The noble Lord said: My Lords, the amendment is designed to ensure that child witnesses will be informed as far in advance of the trial as possible of the outcome of an application to give evidence by live television link. Clause 48 extends the provisions of the Criminal Justice Act 1988. That allowed child witnesses to give evidence during a trial by means of a video link. In cases of alleged sexual offences the clause would allow witnesses up to the age of 17 to give evidence in that way.
Under current legislation the CPS must seek the leave of the trial judge for evidence to be given by means of a television link. The amendment seeks to ensure that in all cases involving child witnesses leave is sought and the judge's decision made and conveyed to the child as soon as is practicable after the child has made an initial statement to the police.
At present there is great variation in the length of time that child witnesses may have to wait before they are told how they will be expected to give evidence. Many children are distressed at the prospect of having to give evidence in the presence of the defendant. Uncertainty about such a significant matter can only add to the already considerable stress and trauma experienced by many children who are waiting to give evidence at criminal trials involving allegations of violent and sexual offences. Uncertainty as to how evidence is to be given may cause some children such distress that they become incapable of giving evidence at all or may deter their parents from allowing them to do so. That may lead to the collapse of cases and serves neither the interests of the child nor justice.
In most cases of the kind dealt with by the clause applications to allow child witnesses to give evidence by live television link are granted, but sometimes at a very late stage in the proceedings. Provisions aimed at ensuring that that decision is made as early as possible would serve not just to alleviate the distress of child witnesses and reduce the number of cases which collapse unnecessarily, they would help also to lower the temperature of all concerned and introduce greater clarity at an early stage of the proceedings. It is in the interests of the defence as well as the child witness to know as soon as possible how the child will be giving evidence. This small amendment merely seeks to achieve that aim. I hope my noble friend the Minister will be able to accept the amendment in principle if not as it is worded. I beg to move.
Baroness Faithfull: My Lords, I support the amendment. Those of us who have had to take children to court know that the first thing they ask is what will happen and what will they have to do. It is important to tell them at an early stage what is going to halt pen arid how it will happen.
Earl Ferrers: My Lords, the use of live television links by child witnesses was introduced by Section 32 of the Criminal Justice Act 1988. That was a radical change to court procedure and my noble and learned friend the Lord Chancellor is implementing Section 32(1) (b) in a rolling programme which will, by the end of this financial year, cover 37 court centres with more to come, according to need. He has been keen to monitor the effects of the change, as has the Home Office. We are looking at a number of aspects of the new procedures, including of course the position of the child witness. It is that latter aspect about which my noble friend Lord Mottistone is concerned. Interim research reports show the provisions to have worked well on the whole, though not without some teething problems. It would have been surprising, perhaps, if it had been plain sailing from the first.
I understand and fully sympathise with the amendment and with the feelings of my noble friends Lord Mottistone and Lady Faithfull. My noble friend is keen to spare child witnesses as much anxiety as possible by removing the uncertainty about how they will be expected to give their evidence. Under the present Crown Court rules, the vast majority of applications are decided on paper and a response
122
given promptly to the applicant. My noble friend says that there have been delays. That may be so since this is a novel procedure.
The Government have commissioned independent research into the first year of operation of the live links scheme specifically to cure such hiccups. We shall be examining the research conclusions thoroughly and we shall not exclude from that review the issue of when and how the various parties are notified. We shall make any necessary changes to the rules of court to ensure that the provisions work in the best interest of the child witness and of justice. I hope that my noble friend will be satisfied with that explanation.
Lord Mottistone: My Lords, do I understand from my noble friend that the substance of what I was saying will be included in the rules of court when the necessary inquiries are completed?
Earl Ferrers: My Lords, with the leave of the House, we shall have to see what the report says before we decide how to adjust the rules.
Lord Richard: My Lords, before the Minister sits down, perhaps I may take the point a little further. Will he take on board the necessity of informing the witnesses and in particular the child's mother of the court's decision regarding the link. As he will be aware, the only obligation at the moment is to inform the prosecution and the defence. It does not necessarily follow that that information will reach the witnesses and the child's parents at the earliest possible moment. If that point can be dealt with by the rules of court it would go some way towards meeting the thrust of the amendment.
Earl Ferrers: My Lords, I do not wish to abuse the procedures of your Lordships' House by rising yet again, but with the leave of the House, I shall take that point into consideration. I shall get in touch with the noble Lord when I have done so.
Lord Mottistone: My Lords, in view of the undertakings that I have been given, for which I am grateful, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 5 [Notices of Transfer: Procedure in lieu of Committal]:
Earl Ferrers Earl Ferrers moved Amendment No. 75:
Page 83, line 4, at end insert:
("(4A) No leave or order under sub-paragraph (4) above shall be given or made in relation to oral evidence from a child (within the meaning of section 48 of this Act) who is alleged—

(a) to be a person against whom an offence to which the notice of transfer relates was committed; or

(b) to have witnessed the commission of such an offence.").

The noble Earl said: My Lords, I beg to move Amendment No. 75 and speak to Amendment No. 76. As they stand, the arrangements in lieu of committal provided in Schedule 5 to the Bill mean that a judge could agree to make a child witness give oral evidence during the pre-trial procedure if satisfied that it would be in the interests of justice so to do. In Committee, I agreed with my noble friend Lord Mottistone, who made the point that the possibility of such an order,

123
rare though it may be in practice, is not in the spirit of the Bill. Nor is it in the spirit of the committal proceedings which the procedure in the Bill replaces.
From the outset, the Government's intention has been to spare the child the stress of court appearances and confrontation with the accused. The first amendment removes a potential anomaly in Schedule 5 by precluding the making of such an order in respect of a child witness. The second amendment covers a drafting point.
I am grateful to my noble friend Lord Mottistone for focusing the Government's attention on the Schedule 5 procedures. I hope that he and your Lordships will find the amendments helpful. I commend the amendment to your Lordships.
Lord Mottistone: My Lords, I thank my noble friend very much for what he has done to encompass what I proposed in Committee. The amendment is entirely satisfactory.
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 76:
Page 85, line 9, leave out from ("alleged") to end of line 10 and insert:
("(a) to be a person against whom an offence to which the notice of transfer relates was committed; or
(b) to have witnessed the commission of such an offence.").
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 77:
Page 85, line 31, leave out from ("proceedings)") to end of line 36 and insert ("in paragraph (b), after the word "cases)" there shall be inserted the words "or section 48 of the Criminal Justice Act 1991 (transfer of certain cases involving children)"").
The noble Earl said: My Lords, this is a minor drafting amendment which does not alter the effect of the provision. I beg to move.
On Question, amendment agreed to.
3.45 p.m.
Clause 49 [Video recordings of testimony from child witnesses]:
Lord Mottistone Lord Mottistone moved manuscript Amendment No. 78B:
Page 30, line 43, at end insert:
("( ) In any proceedings under subsection (1)
(a) the court may grant leave for a child witness to be examined and cross-examined at a pre-trial hearing in informal surroundings at which only—

(i) the judge;

(ii) counsel for the parties; and

(iii) an appropriate adult to accompany the child as set out in rules of court,

shall be present in the same room as the child;
(b) at any pre-trial hearing the defendant shall be permitted to see and hear the proceedings and to communicate with his legal advisors by such means as shall be laid down by Rules of Court;
(c) the pre-trial hearing of the evidence of a child witness shall be video-recorded and the video-recording shall, with the leave of the court, be tendered in evidence before the jury.").
The noble Lord said: My Lords, I call your Lordships' attention to the fact that we made a change late last night which sadly has not been reflected in the newly published Marshalled List.
Amendment No. 78A says:
"In any proceedings under subsection (1) where otherwise evidence from a child witness would not be available to the court".
Noble Lords should ignore,
"where otherwise evidence from a child witness would not be available to the court".
What is left is the substance of Amendment No. 78B which I tabled last night as a manuscript amendment and which, through an error, was not included on the Marshalled List. The amendment therefore reads:
"In any proceedings under subsection (1)—
(a) the court may grant leave",
and so on. In substance, the amendment is what we debated at great length in Committee. We took care to listen to what was said by my noble friend and others during the debate. We also took note of discussions that took place in a committee room under the chairmanship of my noble and learned friend the Lord Chancellor on Monday of last week. We have come as close as we can to trying to satisfy the difficulties that several people saw in this procedure. I shall be as brief as I can, but it would be wrong not to run over the ground as to why we need such an amendment and believe it to be so important.
The effect of the amendment would be to introduce pre-trial hearings where the child's examination and cross-examination could take place. The amendment is firmly based on the recommendations of the Home Office advisory group on video evidence which is otherwise known as the Pigot Committee. Mr. Justice Pigot was its chairman. The report was widely acclaimed by a range of interests from children's organisations to the Family Law Committee of the Law Society and influential sections of the Bar.
The provision could be used by both defence and prosecution when the court granted leave. The Pigot Report made the introduction of pre-trial hearings a central recommendation, first, because children are frequently traumatised by courtroom appearances and are unable to give coherent or accurate evidence. I emphasise "accurate". Secondly, many cases of possibly guilty men collapse because the jury cannot hear the evidence. Thirdly, the time delay between an original complaint and the case coming to court may be many months. This means that children's recall and perception of events may be blurred, thus undermining their credibility as witnesses. I suggest that it may undermine not only their credibility as witnesses but also their value to the justice of the case before the court. Fourthly, children may be in a position where there is strong legal advice that they do not receive therapy or counselling as this might "contaminate" their evidence.
It is in the interests neither of the child nor of justice to allow the situation to continue; the essence of the criminal justice system must be to ensure that justice is done. At the moment, the child witness does not enjoy the right to a fair hearing. These amendments would ensure that both prosecution and defence would enjoy that right.
Noble Lords must forgive me. I am speaking not only to Amendment No. 78B but also to Amendments

125
Nos. 79A and 80A which are consequential and part of my argument. I forgot to mention them in explaining the complications of Amendment No. 78B.
The Bill introduces some welcome reforms, particularly in respect of the possibility of bypassing committal proceedings and the admissibility of a video recording of the child's original complaint. However, the Bill does not adequately reflect the recommendations of the Pigot Report; first, because of the environment in which the child gives evidence and is cross-examined; secondly, because of the potential for delay in the child giving evidence, even with the new provision for bypass of committal proceedings; and thirdly, because of preparing the child to give evidence.
We seek to bring about an arrangement which would embody the spirit of the Pigot Committee's recommendations while taking into account the practical difficulties which may arise if the possibility of cross-examining child witnesses at trial were removed altogether. It allows for the hearing of evidence-in-chief and cross-examination at a pre-trial hearing.
The amendment would allow both defence and prosecution to apply for a pre-trial hearing where a child witness would be intimidated by the law in the way uncovered by the Pigot Report, to which I referred. It tries to put into effect what the noble Lord, Lord Richard, picked out when we debated the subject earlier and which I later called the "Richard solution" to enable the child to make a complaint which would be video-recorded. Then, at a convenient time to be agreed upon by all the parties concerned, and certainly at a time when the defence was prepared for a thorough cross-examination, a pre-trial hearing could be held. At the pre-trial hearing, which would also be video-recorded and shown to the jury at the trial, the child would again give evidence and be cross-examined.
Counsel for both parties would be present, with the defendant being able to see, hear and communicate with counsel by such means as are laid down in the rules of court. That is taken care of in subsection (b) of the amendment. However, the defendant would be in another room and the communication would be by electronic means. The child would thus be giving evidence in a less formal and intimidating environment. That would help him or her to give a coherent account. The time between the original complaint and cross-examination would be shorter, thus reducing the distortion of memory caused by delay. In most cases the child can be assured that making a complaint will not result in having to appear in court. That is a vital reassurance for a child witness who might otherwise feel unable to proceed.
The child can begin therapy at a much earlier stage, as in some cases the child's role in the proceedings will be over much more quickly. At the same time the amendment makes provision for cross-examination at trial in those cases where information comes to light after tie pre-trial hearing. That is taken care of by one of the supplementary amendments. The amendment
126
also caters for those cases where the court deems it necessary to allow further cross-examination of the child during the trial.
At present the recall of child witnesses after cross-examination has taken place seems to be quite rare. Provision allowing cross-examination to take place at an out-of-court hearing need not increase the number of such recalls provided they are allowed by the judge only when necessary, for example to examine new evidence which could have a significant effect on the outcome of a case.
The amendment would provide a framework within which judges would be enabled to exercise appropriate vigilance in ensuring that child witnesses are not recalled unnecessarily. Within this framework many children could be spared the ordeal of giving evidence during the trial, while the degree of flexibility necessary to provide a practical means of ensuring a fair hearing in all cases would be retained.
I wish to quote from a letter that I wrote to my noble friend the Minister asking him to give thought to accepting this amendment or something very like it. It states:
"May I emphasise to you that, in our proposed sub-paragraph (a), we say, 'the court may grant leave'. This makes it wholly optional for a judge to use the proposed new procedures".
No judge will follow that course, particularly in these early days, unless he or she is fully satisfied that the case justifies it—the procedure will be suitable for some cases but not for others depending on the nature of the trial—and that the implementation of the procedure is practicable and the arrangements for a full trial will take significantly longer to implement.
I understand that it is considered that this pre-trial procedure will not save much time on a full trial. If that is the case and the judge who is to take the case believes that it is true, he is unlikely to invoke this possibility. I stress that it is only a possibility. However, I am informed by all kinds of sources that a full trial takes a great deal longer than this pre-trial, with its limited numbers of people. That is an important point which your Lordships must seriously consider.
The provision will in suitable cases enable judges to learn how the Pigot proposals can best be put into effect. If my amendments are not included in the Bill, there will be no opportunity for this to he done and there will thus be a delay of several years before we can work towards achieving greater justice from children's evidence. I believe that the Government could accept this amendment in its reconstructed form. I beg to move.
Lord Ackner: My Lords, the short issue which noble Lords are concerned to decide is whether a child's evidence-in-chief, cross-examination and re-examination should be capable of being heard pre-trial. When the matter was last debated before your Lordships I was impressed—no doubt we all were—by the speech of the noble Earl, Lord Russell. He said this was a difficult problem and one of the reasons was that a clash exists between two cultures—those concerned with child welfare, who have an immense amount of knowledge and experience behind

127
them, and those concerned with the administration of justice. On considering the matter, I doubted whether such a clash existed. I therefore took the following steps to ascertain whether it did.
I first consulted the report of the Pigot Committee. I remind your Lordships that that report has been described by many in the most eulogistic terms. The noble Earl, Lord Ferrers, has described it as being most persuasive. The committee included among its members Miss Anne Rafferty, who represented, so to speak, the position of the Bar. She is a Queen's Counsel and a Recorder and has the distinction of being the only member of the Bar who is a member of the new Royal Commission on Criminal Justice. Paragraph 2.31 of the report stated:
"We envisage that the video-recorded interview, or as much of it as is to be admitted, will be shown to the child at the preliminary hearing and that he or she will be asked to confirm the account which it gives and to expand upon any aspects which the prosecution wishes to explore. After this cross-examination will take place. Where no video recording is put in evidence we assume that the evidence-in-chief and cross-examination will take place in the usual sequence".
I stress the following statements:
"In some cases new issues or evidence may later arise during the course of the subsequent public trial which make it necessary to recall the child. We recommend that this should be carried out under the same conditions as the first examination".
None of the members of that committee expressed anxiety as to the problems that might occur if further material should arise which justified further cross-examination. That would be examined at the trial in just the same way as in a situation where counsel for the prosecution or the defence asks leave to recall a witness for further cross-examination because something new has arisen.
I observed that the Council of Her Majesty's Circuit Judges, who try the bulk of these offences, had put in a memorandum to the Pigot Committee. I obtained a copy and checked that this paragraph—the report was dealt with paragraph by paragraph—was specifically approved. I discovered that it was. To make sure that I was up to date I telephoned His Honour Judge Myerson, QC, who is the chairman of the relevant committee responsible for the report of the circuit judges. On inquiring whether he had read the debate which took place in this Chamber last month, he informed me that he had read the relevant copy of Hansard. I asked him whether his views or those of the judges were in any way changed. He said that that was not the case and on 16th May he wrote a letter confirming that. So there is no clash so far.
The next thing I observed on examining the report was that the Criminal Bar Association, which represents the criminal Bar practitioners—which is a very important organisation in the Bar—had given evidence. Suddenly an unworthy thought occurred to me. It seemed just possible that the noble Lord, Lord Hutchinson, who spoke so strongly against any cross-examination out of court, may just have happened to be out of date. He was called to the Bar over 50 years ago.
I thought that the best way of ascertaining whether my unworthy suspicions were justified was to get in touch with the Chairman of the Criminal Bar
128
Association to discover what the situation was. He spoke to me on the phone and subsequently wrote to me. This is what he said:
"You have asked me to set out briefly the approach of the Criminal Bar Association to the report of the Committee chaired by Judge Pigot Q.C.
The Membership of the Committee included Anne Rafferty Q.C., the secretary of the Criminal Bar Association. Whilst she was in no sense a nominee of the Criminal Bar Association, we had the opportunity of consulting with her during the committee's deliberations.
The Criminal Bar Association welcomed the report. The incidence of child witnesses giving evidence in the Crown Court has increased markedly in the past five years. This unfortunate but necessary development requires a more flexible approach to the procedures under which evidence is given. Any such approach must preserve the fundamental principles: (i) that the tribunal of fact, the jury, should be able to assess the demeanour with which and the manner in which the witness has given evidence and (ii) that the defence should have proper opportunities to cross-examine material witnesses.
It is for these reasons that we shared the dissenting view expressed by Miss Rafferty that evidence should not be prepared by social workers in the form of pre-recorded video taped interviews. We do not oppose the taking of evidence by a judge at a pre trial hearing in the presence of both prosecution and defence-counsel at which the defence has the opportunity to cross-examine. We add that we regarded as an essential safeguard that such proceedings should be recorded on video tape so that the jury may assess the reliability of the witness.
Such an exercise involves little expenditure on technology, little intrusion into the court process and can be conducted without intimidating the witness".
That up-to-date view on how the Bar views the situation is to be contrasted with the dogmatic statement made by the noble Lord, Lord Hutchinson, whom I am very sorry not to see here today, when he said during the debate (at col. 40 of Hansard for 22/4/91):
"It is wholly unrealistic to think that justice can be done by any representative of an accused person to cross-examine a child witness weeks or months before the trial takes place".
I fear that misunderstanding of practicability was inevitably shared by the noble Earl, Lord Ferrers, because he said when dealing with the matter in his reply:
"The danger is that we shall end up with more recalls and therefore more rather than less stress for the child.
Perhaps I could say a little in regard to my noble friend's point on recalls. The Government's view is that the pre-trial cross-examination makes the child witness more vulnerable to recalls, adjournments and further delays".—[Official Report, 22/4/91; col. 52.]
That was almost a mirror image of what the Minister, Mr. Patten, said in another place during Committee. I merely quote this very small portion of his remarks:
"Out-of-court cross-examination would expose the child to recall for further out-of-court hearings after the beginning of the trial, partly as a result of the informality of the proceedings. The defence would be looking for something new and, however guilty the defence lawyers may believe their client is, it is their job to try to defend him. To be frank, they would seek as many ways as possible of muddling and confusing the trial. One method would be to recall the child for cross-examination again and again, whenever there was some allegedly fresh matter of consideration".—[Official Report, Commons, Standing Committee A, 22/1/91; col. 413.]
Unless the source was the noble Lord, Lord Hutchinson, I am at a loss to know the origin of that illusion—the desire not only for repeated cross-examination of the child before trial but the willingness of any judge to permit it. It was not

129
contemplated by Judge Pigot. It was not contemplated by Miss Rafferty on that committee. It was not contemplated by the Criminal Bar Association. There is not the slightest necessity for it to happen. If, after a pre-trial cross-examination, counsel finds that there is new material, the procedure will be that he will make an application to the judge shortly before the trial asking for liberty to cross-examine the child at the trial. The judge—and in this amendment we have clothed him with complete discretion, which he will doubtless exercise in the interests of justice —will either allow or disallow that one further cross-examination at the trial.
What is proposed by the Government is a recipe for disaster. The child's evidence-in-chief is to be carefully recorded. Some months later, when the trial takes place, the child is to be cross-examined. Any adult who has given a statement to a solicitor and is not allowed to refresh his or her memory and is cross-examined eight months later on that statement stands a high probability of becoming confused and unable to do justice to him or herself. How much more so the child?
If justice is to be done, we must follow the clear, concluded view of the committee, of the judiciary in so far as I quoted the circuit judges, and of the profession itself. If we are to reject that, the timorous souls in this context will not be the judges—who are blamed for so much--nor the Bar for being out-of-date, but will be the civil servants—non-practising lawyers in the Home Office and the politicians. In my respectful submission, that would be a disaster and wholly unjustified.
Lord Campbell of Alloway: My Lords, there are two approaches to the question of a pre-trial hearing. The noble arid learned Lord, Lord Ackner, has argued in favour of the amendment. No one could have argued the case better. However, that in no way detracts from the forceful argument on the other side, which is that the attitude of the Government on this matter is right and that the Government's proposals are far from being a recipe for disaster—rather a curious phrase. If the amendment were carried, that would be near to a recipe for disaster, as I hope to show.
Your Lordships will be sad that we shall not have the traditional display of magnificent fireworks between the noble Lord, Lord Hutchinson, and the noble and learned Lord, Lord Ackner, because unfortunately the noble Lord, Lord Hutchinson is unable to attend. My contribution, with which the noble Lord is in broad agreement, will inevitably be something of a disappointing damp squib.
But with regard to the reasoning in opposition, let us deal with the question of "wholly optional". "Wholly optional", say those who support the amendment, "but only if the case justifies it". But on what principles is that innovation to be exercised? How are the judges to exercise it? There is no guidance whatever given and in the realm of criminal law precision is of crucial consequence if justice is to be done.
Then it is said, "Well, there will be a substantial saving of time. There will be expedition of the hearing". At one time I thought that that might be so;
130
but, having attended the conference chaired by my noble and learned friend the Lord Chancellor, I am pretty well convinced that for various reasons that is not so. I shall deal with those reasons a little later. Then it is said that the Government—I refer to my noble friend Lord Ferrers—say, "Well, on the question of misunderstanding and of impracticability, and so forth, there is no misunderstanding whatever". One can say those things, but they do not advance the argument.
The opposition to the amendment as I see it—and it is perhaps very much a personal point of view because there are two sides to the argument; I concede that before we start —relates, first, to the need to ensure a fair trial; and, secondly, to the inhibitions that a pre-trial hearing as proposed might place upon the conduct of the defence. Let us look at Amendment No. 80A. Let us look at the inhibitions that that would impose on an advocate conducting the defence. Have we reached a stage in this type of case when an accused or an advocate is bound to disclose his defence, other than an alibi defence, in advance of the trial so that it can—
Lord Hailsham of Saint Marylebone: My Lords, why not?
4.15 p.m.
Lord Campbell of Alloway: My Lords, the noble and learned Lord says from a sedentary position, "Why not?" If he would just restrain himself for one moment, I was about to explain.
The reason why not in these types of cases is that, if you have a trump card defence—say, that the wife's lover or the wife coached the child to say that her husband interfered with the child—and you have some strong evidence to suggest that that could well be so, will you as an advocate disclose that at a pre-trial hearing, in the absence of a jury, so as to enable the wife and her lover to recoach the child and to tamper with his or her evidence or to give him or her a chance to trim the evidence? No self-respecting advocate worthy of his salt would ever do that.
Where shall we get to? An advocate will not do that, and I certainly would not do it, but the statute seems to suggest that I shall be ordered by the judge to do that. If I do not do it, I cannot do it later. So then where shall I be? I shall not be told how to conduct a case. I shall go to the Court of Appeal and try to get something out of it.
Talking about practicality and about "Why not?", let us get down to the nitty-gritty of the business of conducting the defence in a criminal trial. The conduct of the defence is most seriously inhibited by this amendment and in particular by Amendment No. 80A. It is quite contrary to all our concepts that you disclose your defence before you conduct your case before the jury, or that you are obliged to give evidence before or after arraignment. The amendment turns the whole system topsy-turvy and on its head. It is an innovation which, if you want to use extravagant language as the noble and learned Lord, Lord Ackner, did, is a recipe for disaster.

131
That is the beginning of the other side of the argument, but it does not just end there. There is the need to avoid muddle and confusion on the part of the jury. That is a serious consideration in these cases—I am not given to talking about cases in which I have been involved; I think that that is very boring—but there have been cases within my knowledge in which there have been three or four child complainants and four or five defendants who are supposed to have molested them. Each of the defendants is represented by a separate counsel. Let us just imagine what will happen.
First of all, counsel for the Crown gets up and says, "Mr. X represents defendant A, Mr. Y represents defendant B and Mr. Z represents defendant C. Now, complainants 1, 2 and 3 have their evidence on videotape. Those interviews on videotape were made very soon after the complaint was made. Now, I'm going to show you the evidence on videotape". So he shows the evidence on videotape and then says, "Now, members of the jury, the next stage was the pre-trial review. Mr. X asked no questions and reserved his cross-examination, as he was entitled to do. Mr. Y asked questions only on cross-examination of complainants I and 3, and Mr. Z only of complainant 2. Now, members of the jury, you are not obliged to make notes, but, if you wish to make notes, you may do so. There is nothing to stop you. Have you paper and pencils?" The practical muddle of conducting a defence in such a situation is almost equal to that of appearing for the Crown. It is not a viable proposition.
Apart from all that, what happens to the overall presumption of innocence—that the accused always stands there in the dock innocent until he is found guilty—if, by some statutory device or some judicial discretion, his counsel can be forced to put his case in advance before he is ever heard before the jury?
I have spoken enough. There is much more that I could say but I hope that I have at least said enough to show that there is another side to the argument. The Government's attitude is wholly worthy of support and this amendment should be rejected.
Lord Richard: My Lords, I listened with great interest to the noble Lord, Lord Campbell of Alloway, and perhaps at the outset I may tell the noble and learned Lord, Lord Ackner, that on this occasion at any rate my concurrence will be unqualified. The noble Lord, Lord Campbell of Alloway, spoke about the practicalities of conducting a trial in this kind of case. While the legal talent in your Lordships' House is extremely high and noble Lords are very well qualified, I suspect that not many Members have had to cross-examine a child in the immediate past. The noble Lord, Lord Campbell of Alloway, and one or two other noble Lords have probably done so; I have done so. I must tell the noble Lord, Lord Campbell, that if I had to conduct a defence under the procedures contained in the amendment, I should find it infinitely easier than trying to conduct a defence under the scheme proposed by the Government in Clause 49 of the Bill.
I suspect that we may have skated over the
132
Government's proposals in concentrating inevitably on what the amendment says. The Government's proposals are:
"In any such proceedings a video recording of an interview which—
(a) is conducted between an adult and a child …
may, with the leave of the court, be given in evidence in so far as it is not excluded by the court under subsection (3)".
In subsection (3), the exclusion provisions are:
"if it appears that the child witness will not be available for cross-examination; … if any rules of court requiring disclosure of the circumstances in which the recording was made have not been complied with; … the court is of the opinion, having regard to all the circumstances of the case, that in the interests of justice the recording ought not to be admitted".
Let us assume that the prosecution gets over those hurdles. If the original interview between the child and the police officer made at the time of the complaint has been video recorded, that will become the evidence-in-chief at the trial.
The cross-examination may take place a year hence. It seems to me that in those circumstances we are in a position in which any allegation, whether admissible or not under the rules of evidence, would prima facie at any rate be admissible as the evidence-in-chief, and the cross-examination could not by definition take place until the trial took place, which might be nine months or so later. One of the cardinal principles which I understood was agreed by most Members to have been considered in Committee was that the examination and cross-examination should be contemporaneous so far as possible. It seemed to me that the proposal which emerged in Committee was breathtakingly simple; namely, that the video recording referred to in Clause 49 should be available and should be shown to the defence. Then, as the rules of evidence now stand, if the defence wished to put it in at the trial as a previous inconsistent statement, it would be available to be put in. The next stage would be that at some convenient moment when the defence and the prosecution are ready the child should give its evidence again. That would be videoed, and cross-examination in most cases would then immediately take place.
I speak as a practitioner, as is the noble Lord, Lord Campbell, on the other side. I do not see how one will be unduly prejudiced by such a procedure. In most cases the kind of difficulties referred to by the noble Lord, Lord Campbell—having a trump card up one's sleeve that one plays—do not exist. In most cases of this sort one is challenging the child's evidence in terms of whether the identification is correct and whether the child's recollection is correct. They are all issues which could and in my submission ought to be examined outside the confines of the court.
My other point is that if the noble Lord, Lord Campbell, accepts the procedures set out in Clause 49, the child will have to give evidence in court in front of the jury in a normal way. The whole object of the Pigot Committee proposals, as I understand them, is to prevent a child from being exposed to precisely those difficulties. If the child appears at trial for cross-examination, the child will be called and will give evidence. It seems to me that a large number of the evils to which the Pigot Committee pointed will not have been overcome.
Lord Campbell of Alloway: My Lords, perhaps the noble Lord will give way. There would be many pleas of guilty on the basis of the video evidence of the interview. Under the situation as proposed by the Government, this would be conducive to pleas of guilty.
Lord Richard: My Lords, it might be, but not if one had a trump card up one's sleeve and wished to play it at the last possible moment in court; certainly not —of course not. It seems to me—I say this not in a pejorative or aggressive sense at all—that the proposals which the noble Lord, Lord Campbell, makes. in reality only justify a guilty defendant who has a trump card up his sleeve that he wishes to play at the very last moment. I do not suggest that that is the motive behind what the noble Lord says—of course not—but I suggest to him that it is only in those circumstances in which the cautions that he has expressed will come to be important.
Perhaps I may make two other points. The argument about unfairness to the defence is that it is only a trial when the case for both sides has been put and that the defence will need to know what questions it wants to ask the child. That may be the case in some circumstances—for example, as the noble Lord, Lord Campbell of Alloway, said, when several children may have made accusations against more than one person. However, in many cases it will be obvious from the outset what questions the defence will need to put to the child. For example, in cases of abduction or sexual assault of a child by a stranger, the suspect's defence will usually be based on mistaken identity and/or an alibi. The only questions which can usefully be put to the child will concern identification of the defendant. The defence does not need to wait for the trial in order to decide upon that line of questioning.
As I understand it, under our amendment there would be no question of a judge using his discretion to allow it pre-trial hearing if there were an obvious need for the defence to wait. If there were, I should be very surprised indeed to hear any judge say that the procedure in the amendment should be adopted as to something like the procedure contained in Clause 49. I do not see how in the interests of justice the amendments do not meet with the approval of the House. Neither do I see how a defendant is unduly prejudiced by the procedures which are set out in the amendment. I am bound to say that removing the possibility given by the amendment of excluding small children from ever having to go into court to face the ordeal of giving evidence in the witness box in front of a jury is something which appeals to me very strongly. I urge the House to support the amendment.
Baroness Faithfull: My Lords, I rise to support this amendment which has been tabled by my noble friend Lord Mottistone, who is a member of the Council of the NSPCC, the noble and learned Lord, Lord Ackner, the noble Lord, Lord Richard, and myself. I speak from a different point of view. I do not speak from a legal standpoint but from the point of view of a social worker who has worked with both children and families and has had to take children to court in these circumstances. I could perhaps be accused of
134
taking the child's viewpoint. However, I also consider the viewpoint of the alleged abuser, particularly if he is the father. One does not want to break up a family and one wants to see justice for the alleged abuser if he has not committed the offence.
I hope your Lordships will forgive me if I cover some of the ground that has already been covered because I do so from a different point of view. Perhaps I may briefly go over the implementation of the amendment again. The initial statement of an abused child would be made to an experienced police officer and one other, in surroundings conducive to putting the child at ease. A video would be taken of the statement. That video would be submitted to the judge, the solicitor acting for the defence and through him to the counsel for the defence and the prosecuting counsel. It would be seen by the jury as the child's evidence-in-chief. At the discretion of the judge the cross-examination of the child could take place as soon as practicable and possible in a place which was not threatening to the child. At that stage there would be present the judge, counsel for the defence, counsel for the prosecution, the child, and an appropriate adult with the child.
The alleged abuser would see the proceedings through a one-way glass and would hear proceedings by means of an auditory receiver. By that means he could communicate with counsel for the defence. Those matters would be dealt with by rules of court.
We have paid tribute to Judge Pigot and his colleagues. As the noble and learned Lord, Lord Ackner, said, one is a barrister and another a detective chief inspector. Why did they make those recommendations? First, it was to spare the child the ordeal of appearing in open court and being cross-examined in front of the alleged abuser. I have taken a child to court; I have shown the child the day before the trial where the judge will sit, where the jury will sit, and what the child will have to do. The child has been quite self-possessed. However, at the trial the child has refused to speak. In those instances the case has been dismissed. In one case, when we came out of court the father asked me, "Am I guilty or not guilty?" I said, "The case has been discharged". He said, "My name has not been cleared". If a man is innocent it is most unfair to him if the child refuses to give evidence. Even if the child gives evidence, he often falters in front of the father, if the father is the alleged abuser.
Secondly, a child tells the truth and is astonishingly accurate at or near the time of the initial interview. However, memory of events becomes distorted with time. If time passes the child, who does not mean to lie, becomes confused. My department has dealt with many cases which did not come before a court for six or 12 months. I understand from a colleague that one case came before the court 17 months later.
Thirdly, it is essential for a child to be in surroundings which are not threatening and where the child is at ease.
The Minister may say that a child should be cross-examined in a court building in the presence of the jury but by television link from a separate room so that the jury can see the interview. The argument

135
against that is that to assemble the jury inevitably takes time. Sometimes cases are heard six months or up to 17 months later.
I state this with the utmost diffidence. Even were so important a person as the noble and learned Lord the Lord Chancellor to give instructions or guidance to courts to bring such cases forward, it would place the listing officers in difficulty. First, a case of fraud or defamation of character may take one week, two days, a month or two months. The listing officers cannot control the amount of time that a case will take. They cannot say that a case will come on quickly. They are placed in great difficulty if cases of child abuse are brought forward in preference to other cases.
A further point relates to influencing a child between the initial statement and cross-examination. That point has already been made. A child who has suffered grievously needs help, physical treatment and a healing and therapy process. Those of us who have dealt with children in these circumstances have experienced children asking, "Miss, can I talk to you?" One does not say that one cannot do so, but one is diffident about discussing the case with the child in case one is accused of interfering with evidence and the course of justice.
Having appointed such a notable body as the Pigot Committee, why should the Home Office turn down its recommendations? Is there a legal point that none of us have understood? Strange and unhappy circumstances demand unusual methods. Traditional means of cross-examination must surely be amended to meet those circumstances. I support the amendment.
Lord Harris of Greenwich: My Lords, first I express the regrets of my noble friend Lord Hutchinson of Lullington who is unable to be present today. I share the disappointment of the noble Lord, Lord Campbell of Alloway, that we were not able to witness the customary debate between my noble friend and the noble and learned Lord, Lord Ackner.
I am not a lawyer. I have never cross-examined anyone in a court. However, I have two areas of possible expertise: first, as a former chairman of a parole board which reviewed cases of sexual abuse of children; and, secondly, as someone who has had a long connection with the police service. The noble and learned Lord, Lord Ackner, has had the opportunity to discuss the matter with members of the Criminal Bar Association. I have had the opportunity of talking to a number of police officers with substantial experience of dealing with such cases.
Perhaps I may say by way of introduction that there is widespread public concern about such cases. That is common ground between us. The noble Lord, Lord Mottistone, said at the beginning of the debate that there is a sense of outrage when someone who is believed by many to be guilty walks free because there has been a collapse of the prosecution case. I understand that view completely. However, the Bill contains very substantial changes in the law of evidence in such cases. Let us take the most obvious example, touched upon by the noble Lord, Lord Campbell of Alloway. There is an abandonment of
136
committal proceedings. That issue was identified as a matter of serious concern to some noble Lords who participated in the debate on the War Crimes Bill. It undoubtedly weakens the position of the defence. After all, if it were not a matter of concern, we could abandon committal proceedings in all other types of cases. We do so in this situation because of the recommendations of the Pigot Committee.
The Government having appointed a committee, the noble Baroness, Lady Faithfull, was disappointed that they had not accepted the view of the committee on this matter. I believe that the Government have accepted the overwhelming majority of proposals from the committee. However, they do not accept this measure.
The noble and learned Lord, Lord Ackner, spoiled the end of a very powerful speech—I am trying to think of moderate words to use—by going well over the top in referring to those "timorous souls" in the Civil Service, who are apparently the guilty men and women so far as the resistance to this proposal is concerned. I was a Home Office Minister for five years, and the idea that one is surrounded by timorous souls constantly advising one not to follow a clearly desirable course of action is a wild exaggeration, if the noble and learned Lord will permit me to say so.
I come back to the point introduced by the noble Lord, Lord Campbell of Alloway—a matter raised by my noble friend Lord Hutchinson of Lullington on the last occasion that we debated this question. It is the defence that, "It is not my client who has committed this offence; it is another man, the wife's lover or some other man". The position is that if the amendment were to be carried that defence would have to be exposed at the pre-trial hearing with the child witness; the matter would have to be put to the child witness by counsel for the defence. That is unacceptable. In a case of that sort the defence should not be required to expose its defence months before the trial takes place. That is neither fair nor in the interests of justice.
We should also bear in mind that there has been a series of recent cases which have added to public disquiet. There was the case investigated by Lord Justice Butler-Sloss at Cleveland, and the cases at Rochdale and in the Orkneys. There is cause for disquiet because it is too easy in such cases to blame social workers for errors of judgment, which no doubt took place. The fact is that a lot of the action which took place in all those cases was as a result of statements made by child witnesses, followed up rigorously and ruthlessly by all concerned for the most natural reasons.
Therefore, when we are discussing cases of this sort—where we have seen, in civil proceedings, very unhappy events occurring, with children being taken away from their homes in the early hours of the morning, and weeks or months later the whole case collapsing in ignominy—it is certainly necessary to be cautious. I am warmly in favour of the Pigot Committee recommendations, although they undoubtedly weaken the position of the representatives of the defence.
On a number of occasions in recent months we have seen unhappy examples of miscarriages of justice

137
which have taken place in this country. My fear is that, if an amendment of this sort were to be carried, there would be a real risk of serious miscarriages of justice. Let us consider what the consequences of that would be. First, in many cases of this sort the man concerned, if convicted, would be sentenced to a very long period of imprisonment, rightly so if guilty, but, if he is innocent, we have a situation where not only will he receive a very long sentence of imprisonment—in some cases of life imprisonment—but he will also be subject to the appalling consequences of being a sex offender on Rule 43 in one of our prisons.
I am sure that the House as a whole would want, as I do, a balanced approach to the issue, certainly accepting many of the recommendations of Pigot, certainly taking the view that the process which will follow—namely, the weakening to some degree of the position of defence advocates, has to be accepted, but not in Fact going to such lengths that it will gravely damage the interests of the defence in cases of this sort.
4.45 p.m.
Lady Kinloss: My Lords, I support the amendment from a different point of view—that is, where it will make available evidence from a child witness which might not otherwise be available to the court. I am referring to children who are disabled in some way. For example, autistic children find it difficult to communicate with strangers but they might be able to give evidence in informal circumstances in which they were less intimidated. The noble Baroness, Lady Faithfull, mentioned that a defendant had complained that his name had not been cleared. Surely, under those circumstances this provision would be fairer to both the child and the defendant.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, your Lordships have had a full debate on these amendments which follow the debate in Committee. I consider that the Pigot Committee did an extremely good job, and I thoroughly commend it. I am grateful to Judge Pigot for leading the committee, although sadly he is now unfit to continue as a judge. I believe that he considered these matters extremely carefully.
Highly important developments have taken place in relation to those matters. First, my noble friend Lady Faithfull pointed out that children sometimes give an account of matters and when they come to the formal court hearing they do not say what they said previously. Pigot recommended, and the Bill incorporates, that a statement given by a child at the early stage should be recorded by video and be available as the child's evidence-in-chief. That is an extremely important development and one with which I think we all agree. But it is not without difficulties. I have information about current cases being tried by High Court judges. I am told that in many cases there is not one such interview but several. On the first interview the child is often not prepared to say anything much at all; on the second interview the child may say that something happened and blame it on "X"; the next time the child may say that something
138
happened and blame it on "Y". The noble Baroness shakes her head. I am not sure whether she is contradicting my information or simply reflecting sadness that that should happen, but I can assure her that it has happened in cases that have been brought to my knowledge. The technique of interviewing such children is developing, and no doubt will have to develop much further. We have taken the step of making video evidence of that kind available and competent evidence which can be the whole or part of the evidence-in-chief of the child according to the circumstances. The question is whether something more should be done.
The second point I should like to mention is that under the proposals embodied in the 1988 Act—my noble friend Lady Faithfull played a considerable part in putting them in the Bill that subsequently became the 1988 Act, and others here participated too—there will be video links by means of which the child will be able, in appropriate cases and under the control of the court, to give evidence from another room and to be cross-examined in such a way that the jury can appreciate what is going on without the child having to come into the formal court hearing at all. Important developments are taking place. It is a recent innovation, which needs to develop.
We must be extremely careful in this area that we progress gradually. The process of obtaining a fair trial for an accused person is extremely important. It has developed over a long time and no doubt should develop further in the light of the experience to which reference has been made.
As I understand it, the amendment does not embody the Pigot proposal that a child would not need to attend court at all and that if further cross-examination was required, it should be done in a further interview or pre-trial situation. The amendment of my noble friend Lord Mottistone does not have that characteristic, but perhaps that is not the most important point.
My noble friend indicated that if the amendment is passed, it will be possible to give an assurance to a child at an early stage that the child will not be required to give evidence in court. That is not correct. The amendment gives a discretion to the court. That discretion will be exercised only when the matter comes before the Crown Court. On the basis of the amendment, it will not be possible to tell in advance whether or not such a procedure will be available.
Therefore, it is unwise to believe that the suggested procedure has all the benefits which are claimed for it; it does not. I believe that the amendment makes clear that the pre-trial could take place only at the stage when the prosecution and defence are ready for trial because it is assumed that the defence will be able to put forward cross-examination. I believe that the best way forward is by trying a case of this kind as soon as it is ready for trial. The matter should be finished. It should not be carried out a step at a time—a pre-trial hearing, further delay and the possibility that the child may be asked to return a second time, this time in the more formal atmosphere of a court. I should say in

139
passing that there is scope for informality even in a court room as court hearings are developing. That is possible.
Surely, it is important to get the case on for trial as soon as it is ready. We have sought to provide for that in Schedule 5(7). My noble friend Lady Faithfull said that even if such an important person as the Lord Chancellor tells the listing officers what to do, they will have problems. While perhaps not accepting the first part of that, I accept that listing officers will have problems. But they will have problems under the system proposed by the amendment. There must be a judge available. If that judge is trying a long fraud case, he will not be available to carry out this procedure. A judge and counsel must be present and the procedure must be listed as court procedure. Time must be found for it although there may be more flexibility about time and so on.
I believe that your Lordships should aim for a system under which cases such as these are brought to trial as soon as possible and as soon as they are ready. Quite contrary to the intention expressed by my noble friend when moving the amendment, to give such a discretion may give rise to the opposite result in practice.
I do not wish to go into further detail about the Pigot proposal and the various reactions to it. However, I emphasise that the amendment does not enable anyone to give an assurance to a child witness that if he or she makes an allegation of any kind, it will not necessarily be tested in a court. There can be no categorical assurance, even if this amendment is accepted.
The real problem of the amendment is recognised when one looks at Amendment No. 80A dealing with cross-examination. That amendment states:
"Further cross-examination of the child witness shall take place only with the leave of the trial judge".
It will not be possible to determine that until the matter goes before a trial judge at the conclusion of the pre-trial hearing.
As I said earlier, one problem developing in the practice of the law in this area is that often more than one interview is recorded on video. The child is then apt to be cross-examined with reference to an earlier video. Your Lordships can imagine the complexity of trying to cross-examine a child on video by reference to an earlier video and keeping a distinction between what is on the former and latter video, the two videos being before the court. I can see great difficulties there.
I suggest—and I suggest it in the same spirit as that in which the amendments were moved—that we wish to develop this area of the law so that we make sure, on the one hand, that children are inconvenienced and exposed to as little difficulty as possible while at the same time ensuring a fair trial for those who face the very serious allegations which are often based on such witness statements.
We have gone a good distance and I suggest to your Lordships that it is not right to put this amendment into the Bill. We should allow the changes which we are making to take effect. We shall then see whether they produce a really effective system for these trials to
140
be conducted properly, quickly and at the right time. Notwithstanding the statutory provisions, if delays are still endemic in the system, then it may be right to consider this major innovation.
In the light of those considerations, I hope that my noble friend will not press his amendment. There is no question of the administration of justice on the one hand and the social worker on the other. We are all activated by a desire to protect child witnesses from unnecessary harm while at the same time wishing to secure a proper and fair trial for those who may be accused.
Lord Ackner: My Lords, before my noble and learned friend sits down, the resistance by the Government in another place and in our previous debate on this matter was based essentially upon the proposition that there would be recall after recall for cross-examination after the pre-trial cross-examination. Does my noble and learned friend accept that that is not envisaged and that there is no need for it? One further cross-examination at the trial, if permitted, is all that is required.
Secondly, does my noble and learned friend accept that under this proposal, if there is a possibility of a speedy trial, then, as the judge has a discretion to accept or reject an application for pre-trial review, he will be in the happy position of being able to say, "There will be no pre-trial cross-examination because I can arrange for a speedy trial the day after tomorrow."
The Lord Chancellor: My Lords, in regard to the first question, I am anxious to point out that this amendment, taken with Amendment No. 80A, contemplates the possibility of a further cross-examination after the cross-examination which has taken place at the pre-trial hearing. I would not think it likely that there could be any further cross-examinations. I base that comment on my own understanding of the situation rather than on any other help that I might have been afforded.
In regard to the second question—speaking with the leave of the House because this is Report stage—it is extremely important that every possible pressure should be brought to bear to complete the whole case. If one has the option of having part of the case on a pre-trial, particularly an option on the prosecution to apply, one places at risk what should be a fundamental philosophy. It is a better philosophy than one which breaks the trial up with the possibility—admitted by my noble and learned friend in the form of his first question—of a second cross-examination which might be at a considerable distance in time to the first.
Perhaps I should add—it has just occurred to me—that the Pigot proposals envisage that the cross-examination on the video record of the earlier interview will take place a good while after the original statement on video; it will happen at the time the case is ready for trial.
To accept an amendment giving this kind of discretion at this stage would be inimical to the main thrust of aiming for a full trial as soon as possible after

141
both sides are prepared for it. Until that stage is reached, one cannot have an effective pre-trial hearing, as I believe must be admitted.
Lord Mottistone: My Lords, I thank noble Lords who have taken part in the debate, including those who have not entirely agreed with the proposal in my amendment. It is not for me to take a lot of time over this matter. The noble Lord, Lord Richard, dealt satisfactorily with the points raised by my noble friend Lord Campbell of Alloway. He showed that those objections were probably not well-founded in practice.
The noble and learned Lord, Lord Ackner, was able to put a great deal of weight behind his argument in the way of the people that he had consulted from the Bar, the Bench and elsewhere. With the greatest possible respect to my noble and learned friend the Lord Chancellor, I am not sure that he gave us evidence of quite that tone.
My noble and learned friend said that the trouble with the amendment is that it does not implement the Pigot proposals. In certain respects it does not. We have sought to accommodate the people who object to it. In the unlikely event that at the main hearing a child witness needs to be called due to the emergence of new evidence, then admittedly there is a risk that the child must attend the court. But the basic principle of the pre-trial hearing is what Pigot recommended. Therefore that is not a strong argument.
The advice that I received—I am not a legal man—is that, although my noble and learned friend wants earlier hearings for everything, not just for these cases, it is not possible to achieve that either now or in the immediate future. A preliminary hearing of this kind will have a place in the system. But it is not the only answer.
As the noble and learned Lord, Lord Ackner, said in his questions to my noble and learned friend the Lord Chancellor, upon applications being made, if it appears to the judge that he will be able to have a full hearing quickly, he will not invoke the provisions of the amendment. But it gives an option and does not do any harm. I am sure that noble Lords with more experience than I (and perhaps more experience than some noble Lords who spoke) of how videos may be used, will see that there is great scope for improving on the techniques. The pre-hearing provision would be useful especially as its use is entirely at the discretion of the court.
I feel very strongly that I should seek the opinion of the House on the matter.
5.5 p.m.
On Question, Whether the said amendment (No.78B) shall be agreed to?
Their Lordships divided: Contents, 93; Not-Contents, 103.

Division No. 1

CONTENTS

Ackner, L.

Aylestone, L.

Acton, L.

Blackstone, B.

Aldington, L.

Brigstocke, B.

Alport, L.

Broadbridge, L.

Ardwick, L.

Brooks of Tremorfa, L.

Attlee, E.

Carmichael of Kelvingrove, L.

Auckland, L.

Carter, L.

142

Cledwyn of Penrhos, L.

Molloy, L.

Clinton-Davis, L.

Morris of Castle Morris, L.

Cocks of Hartcliffe, L.

Mottistone, L. [Teller.]

Cork and Orrery, E.

Mulley, L.

Craigavon, V.

Murray of Epping Forest, L.

Dacre of Glanton, L.

Nathan, L.

Darcy (de Knayth), B.

Nicol, B.

David, B.

Orr-Ewing, L.

Dean of Beswick, L.

Palmer, L.

Donaldson of Kingsbridge, L.

Park of Monmouth, B.

Dormand of Easington, L.

Parry, L.

Ellenborough, L.

Phillips, B.

Elliot of Harwood, B.

Prys-Davies, L.

Faithfull, B.

Rea, L.

Gallacher, L.

Richard, L.

Glenamara, L.

Richardson, L.

Graham of Edmonton, L. [Teller.]

Roskill

Sefton of Garston, L.

Gridley, L.

Serota, B.

Hayter, L.

Shackleton, L.

Henderson of Brompton, L.

Shannon, E.

Hirshfield, L.

Shaughnessy, L.

Hollis of Heigham, B.

Stedman, B.

Howie of Troon, L.

Stoddart of Swindon, L.

Hughes, L.

Strabolgi, L.

Hylton, L.

Strange, B.

Hylton-Foster, B.

Taylor of Gryfe, L.

Jacques, L.

Tenby, V.

Jay, L.

Terrington, L.

Jenkins of Putney, L.

Thurlow, L.

Kennet, L.

Underhill, L.

Kinloss, Ly.

Vaux of Harrowden, L.

Lauderdale, E.

Wallace of Coslany, L.

Llewelyn-Davies of Hastoe, B.

Walston, L.

Lockwood, B.

Wharton, B.

Longford, E.

White, B.

Manchester, Bp.

Wilberforce, L.

Mar, C.

Williams of Elvel, L.

Mason of Barnsley, L.

Wilson of Langside, L.

Mishcon, L.

Winterbottom, L.

NOT-CONTENTS

Abinger, L.

Hailsham of Saint Marylebone, L.

Airedale, L.

Allen of Abbeydale, L.

Halsbury, E.

Allerton, L.

Hampton, L.

Ampthill, L.

Harris of Greenwich, L.

Arran, E.

Henley, L.

Ashbourne, L.

Hives, L.

Astor, V.

Hood, V.

Belhaven and Stenton, L.

Hooper, B.

Bessborough, E.

Howe, E.

Blake, L.

Jenkin of Roding, L.

Blatch, B.

Johnston of Rockport, L.

Blyth, L.

Joseph, L.

Boardman, L.

Killearn, L.

Boyd-Carpenter, L.

Kimball, L.

Brabazon of Tara, L.

Knollys, V.

Braye, B.

Liverpool, E.

Brougham and Vaux, L.

Lloyd of Hampstead, L.

Caithness, E.

Long, V.

Caldecote, V.

Lucas of Chilworth, L.

Campbell of Alloway, L.

Lyell, L.

Carnock, L.

McColl of Dulwich, L.

Cavendish of Furness, L. [Teller.]

Mackay of Clashfern, L.

Mackie of Benshie, L.

Cockfield, L.

Malmesbury, E.

Colville of Culross, V.

Mancroft, L.

Constantine of Stanmore, L.

Manton, L.

Crathorne, L.

Margadale, L.

Cullen of Ashbourne, L.

Mayhew, L.

Davidson, V. [Teller.]

Merrivale, L.

Donegall, M.

Mersey, V.

Erne, E.

Middleton, L.

Ezra, L.

Monk Bretton, L.

Ferrers, E.

Montgomery of Alamein, V.

Fraser of Kilmorack, L.

Mountevans, L.

Gainford, L.

Munster, E.

Gladwyn, L.

Murton of Lindisfarne, L.

Grey, E.

Nelson, E.

143

Nelson of Stafford, L.

Stodart of Leaston, L.

Newall, L.

Strathcona and Mount Royal, L.

Orkney, E.

Pender, L.

Strathmore and Kinghorne, E.

Rankeillour, L.

Suffield, L.

Reay, L.

Swansea, L.

Renton, L.

Thomas of Gwydir, L.

Robson of Kiddington, B.

Tonypandy, V.

Rochdale, V.

Tordoff, L.

Rodney, L.

Trefgarne, L.

Romney, E.

Trumpington, B.

Roxburghe, D.

Waddington, L.

Seear, B.

Wade of Chorlton, L.

Shrewsbury, E.

Wigoder, L.

Skelmersdale, L.

Winchilsea and Nottingham, E.

Resolved in negative, and amendment disagreed to accordingly.
[Amendments Nos. 79A and 80A not moved.]
5.13 p.m.
Lord Mottistone Lord Mottistone moved Amendment No. 81:
After Clause 49, insert the following new clause:
("Consultation with child witnesses over manner of giving evidence
. In deciding whether to ask the leave of the court for a child witness to be examined or cross-examined at a pre-trial hearing, or to give evidence during the trial by means of a television link, the Crown shall ascertain, and take into account, the wishes and feelings of the child.").
The noble Lord said: My Lords, this amendment takes into account the sympathetic comments made by my noble friend the Minister in Committee when discussing Amendment No. 78. The Report of the Advisory Committee on Video Evidence, which is the Pigot Report, said that children,
"ought never to be required to appear in public as witnesses in the Crown Court".
However, it recommended that the prosecution should always take into account the child's own wishes when deciding whether to apply for a child to give evidence at a pre-trial hearing of the kind proposed by the advisory group.
The amendment seeks to enact that recommendation and to introduce into criminal proceedings the principle already introduced into civil proceedings by the Children Act 1989 which requires that the wishes and feelings of children be ascertained and taken into account in all civil proceedings. The amendment does not mean that the child would determine the manner in which his or her evidence should be given but that will be discussed with children in a manner appropriate to their age and understanding.
The main purpose of the amendment is to give older children the opportunity to express a view as to the way in which their evidence would be given and to allow those who are considered able to cope with an appearance in open court the opportunity to do so. The Bill extends special provision for child witnesses to young people up to the age of 17 years in trials for alleged sexual offences. Some young people at the upper limit of that age may wish to give evidence in the same way as adults. They may be happy to do so. Others of the same age find such a prospect extremely intimidating.
The new clause introduces a degree of flexibility which would allow for a wide variation in the circumstances among young people of that age group.
144
I hope that my noble friend, building on his encouragement at Committee stage, can accept the amendment. I beg to move.
Baroness David: My Lords, I support the amendment very strongly. Throughout the time we were discussing what became the Children Act we tried to have the wishes and feelings of children taken into account. We were often successful. I hope that this amendment, with those factors in view, will be supported by the Minister.
Baroness Faithfull: My Lords, I support the amendment. Children vary; they are absolutely different, child from child. Some children want to give evidence because they feel so badly. They are able to give evidence. But there are some children who choose not to give evidence and who would not do so if they came to court. Therefore, one has to ascertain from the child whether he or she could, would, or wishes to give evidence. If the child wishes to do so in open court, then that decision should be accepted.
Earl Ferrers: My Lords, it must be good practice, when deciding how a child witness should give evidence, to take account of the wishes of the child. There is no disagreement whatever about that. The question posed by the amendment is whether we need to make express provision on the face of the statute for such consultation. The final decision on how a child's evidence is to be given rests quite properly with the judge. The judge alone can balance the interests of the parties and of justice in all the circumstances of the case and the individual courtroom.
In so far as live television links are concerned, the likelihood is that most child witnesses will wish to use this facility rather than appear in open court. Our experience with live links to date is that almost all applications (about 97 per cent.) have been granted. I understand too that the wishes of the child witnesses and their parents are taken into account as a matter of course by the Crown Prosecution Service which is responsible for the overwhelming majority of such applications.
The question arises whether this amendment would do any harm. As your Lordships know, live television links have been in operation in our courts for less than three years. The Home Office and Lord Chancellor's Department are evaluating that experience and what lessons are to be learnt. The researchers whom we commissioned to do the work are due to produce a final report shortly and it may well be that consultation with the child witness will be among the issues where we shall need to consider action. If so, there are a number of ways in which we can bring about improvement and in a more comprehensive fashion. Chief among these are amendments to the rules of court covering applications for such facilities which we shall need to amend in any case to reflect the changes made by the Bill. I would not rule out bringing the matter to the attention of the Lord Chief Justice so that he might consider the scope for a practice direction should that seem likely to be the most profitable way forward.

145
I hope that in the light of what I have said my noble friend will realise that there is little between us. It is a question of which way round the matter is put. It would be better to leave it to the processes which I have suggested rather than to put the measure into the Bill.
Lord Mottistone: My Lords, I am most grateful to my noble friend. One always feels that one has something firm if it is in the Bill. However, in this case at least there is another way, which I fully accept. In the event that it proves to be necessary to have something in the basic instructions for courts along the lines of my amendment, that will probably be done. That is a satisfactory situation. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mottistone Lord Mottistone moved Amendment No. 82:
After Clause 49, insert the following new clause:
("Evidence of absent children
. The: Children and Young Persons Act 1933 shall be amended as follows—

(a) by the insertion in section 42(1) of the words "or record on videotape" after the words "may take in writing"; and

(b) in section 43 by leaving out the words "purports to be signed by the justice" and inserting the words "purports to be witnessed by the justice".").

The noble Lord said: My Lords, Sections 42 and 43 of the Children and Young Persons Act 1933, which I am seeking to amend, allow a written account of a child's evidence to be admissible in court. The aim of my new clause is to extend these sections to include video evidence.
The main point to make is that it is anachronistic in the modern technical world that the law should continue to be drafted in terms which require a court to accept as evidence the written transcript of an interview while not permitting it to see and hear a video recording of it. A written deposition is a potentially less accurate and informative account of an examination than is a video tape, or even an audio tape. Not only does the tape preserve the exact words used in the questions as well as the answers, either or both of which might be garbled in a written deposition, but it also gives us the tones of voice used and—I hate to use the phrase, but it is the modern one—the body language.
As the law stands it permits the prosecution to put in a written transcript of an interview while not permitting a video tape of it. In other words, it allows the prosecution to use inferior evidence of an interview of which superior evidence would in some cases available. Both the prosecution and defence stand:o suffer injustice if this anomaly is not corrected. I beg to move.
Earl Ferrers: My Lords, as my noble friend has explained, the new clause would allow for the making of a video recorded interview in the circumstances which are envisaged by Sections 42 and 43 of the 1933 Act. It is important to be clear about what that would actually mean. Sections 42 and 43 are a method of getting emergency so-called sick bed evidence by children tested at the bedside and admitted then into court. Therefore, the amendment countenances
146
surrounding the sick child at the bedside not only with a magistrate, lawyers and clerks, but also with the whole paraphernalia of video recording equipment. That is often forgotten when allowing for a bedside cross-examination by the defence. I am bound to say that one shudders at the prospect. We question whether it would be practical or whether it should be encouraged. There is understandable concern about the position of the video-recorded child interview when the child is unavailable for cross-examination as is required by the Bill. I understand that concern. However, my answer would be that video evidence may already be admissible under the provisions contained in Section 23 of the Criminal Justice Act 1988. That Act is necessarily strict, given that cross-examination is not required. The new proposals in the Bill provide a much easier alternative if the child can be available for the trial.
There is a further important consideration. Those who use the 1933 Act option would not have available the benefit of the code of practice, the rules of the court and other arrangements which we believe—and I venture to say that many of your Lordships will believe—need to be available in order to support the proper preparation and use of video recordings.
The existing provisions of the 1933 Act are hardly ever used. Indeed, we can find no record of a single case of them being used. However, it may be that they should be kept in force to cater for the wholly exceptional case. But to widen the scope of the provisions to include video recordings could not be justified. Whatever the merits of the provisions in the 1933 Act, I believe that the Pigot clauses will be much more successful in protecting child abuse witnesses and that our clauses will allow for the proper safeguards. I hope that my noble friend will see the force of those arguments.
Lord Mottistone: My Lords, that was rather a disappointing reply. With the greatest possible respect to my noble friend I am not sure that he fully appreciates just exactly what would be involved. I take much of his technical argument. By "technical" I mean the legal arguments and the fact that obviously in 1933 people had not even heard of video recording, or anything like it. However, when my noble friend referred to the paraphernalia of video recordings that sounded all sorts of warning bells to me. My son-in-law has a small camera the size of a large pistol with which he is able to take a complete picture of what is going on. It is tiny compared with the cameras that are looking at us from the corners of the Chamber. The video camera records sound as well. These days "paraphernalia" for video recording is not the word. If that is what is disturbing my noble friend then it should not be taken as being a serious objection to what I am proposing.
It is probably not worth pressing this point now because it is not that important. However, I think that the underlying thought is that we need to move into the modern world and use video cameras for appropriate recordings. That would be very much more useful than just having written recordings, or even just having audio recordings. We have cameras in this Chamber. Luckily we do not behave very badly.

147
If we did it might be very useful to be recorded on video as well as sound. If I were inadvertently to hit my noble friend Lady Faithfull on the head one would not know I had done so, unless she screamed. Even then, nobody would know what had happened, but the video camera would show it. Therefore, we need to move into the modern world. Perhaps this is not the time to do it. Perhaps the Government have gone as far as they dare in adopting modern technology. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Earl Ferrers Earl Ferrers moved Amendment No. 82A:
Page 32, line 45, at end insert:
("(2A) After subsection (3) of that section there shall be inserted the following subsections—
"(3A) Where, in the case of any proceedings before a youth court—

(a) leave is given by virtue of subsection (1) (b) above for evidence to be given through a television link; and

(b) suitable facilities for receiving such evidence are not available at any petty-sessional court-house in which the court can (apart from this subsection) lawfully sit,

the court may sit for the purposes of the whole or any part of those proceedings at any place at which such facilities are available and which has been appointed for the purposes of this subsection by the justices acting for the petty sessions area for which the court acts.
(3B) A place appointed under subsection (3) above may be outside the petty sessions area for which it is appointed; but it shall be deemed to be in that area for the purpose of the jurisdiction of the justices acting for that area." ").
The noble Earl said: My Lords, this amendment overcomes a potential difficulty in the operation in youth courts of the provisions to enable evidence to be given by means of live video-link. Youth courts do not at present have such equipment, but we do not wish them to be prevented from taking evidence by this means if suitable alternative facilities are available for their use. This amendment simply enables youth courts, where leave has been given for evidence to be heard by live video-link, to sit in any place where suitable facilities are available.
Given that youth courts deal with very few cases of sex and violence, we do not envisage that each and every youth court should have its own video-link facilities just in case they should ever be needed. It seems far more sensible to encourage a flexible approach to sharing available facilities, and this amendment would enable courts to work together in order to make best use of available facilities. I beg to move.
On Question, amendment agreed to.
5.30 p.m.
Baroness Faithfull Baroness Faithfull moved Amendment No. 83:
After Clause 50, insert the following new clause:
("Power of youth courts to investigate young persons'
circumstances
.—(1) The Children and Young Persons Act 1969 shall be amended as follows.—
(2) In section 9, there shall be inserted the following subsections—
"(3) Where it appears to the court, mentioned in subsection I, that the young person in respect of whom
148
the proceedings are brought is a child in need within the meaning of section 19 of the Children Act 1989, it may direct the authority aforesaid to investigate the young person's circumstances.
(4) Where a direction is given under the preceding subsection, the authority concerned shall, when undertaking the investigation, consider whether they should—

(a) Provide services or assistance for the young person or his family under Part III of the Children Act 1989;

(b) make an application in respect of the young person under section 31 of the Children Act 1989; or

(c) take any other action with respect to the young person and shall inform the court of their conclusions.").

The noble Baroness said: My Lords, as is well known to the House, juveniles are now to be dealt with in two ways. Civil cases will appear before committees set up in the magistrates' courts to deal with civil matters such as adoption, care proceedings, guardianship and so on. There is now to be second court to deal with children who have committed offences. The term "youth court" is not totally accurate. I do not quite know what is meant by "youth court". I usually think of a youth as someone who is in adolescence, but this provision will apply to all children over the age of 10 and up to the age of 17 who have committed offences.
One should never excuse the fact that children and young persons have committed an offence. If they have committed an offence, it is an offence. The children must know and recognise that. However, many children who commit offences have home backgrounds and home circumstances which are such that they have been predisposed to committing offences. Some children come from homes where both mother and father are working and are out all day. They are out when the children come home in the evening. The children go into the streets, meet up with a gang and commit offences. I could state many other such circumstances.
Under the Children and Young Persons Act and under the Children Act, every child who appeared before the court having committed an offence was the subject of a social surroundings report. It was submitted to the court before the court made a judgment as to what should happen to that child; whether he should be removed from home or whether a care order should be made. What happened after the case had been proved depended very much on the social surroundings report. The report was made either by the probation service or by social workers. We are worried that there will now be two committees in the magistrates' court and that the magistrates serving on the criminal committee will tend to make an order for the child to be removed from home when the best thing for the child might be for him to stay at home and attend intermediate treatment centres or attendance centres. The Royal Philanthropic Society runs a service to help parents who have children who have committed offences. In Northamptonshire the liaison committees try to help parents and children rather than remove the children from home.
The amendment seeks to ensure that the committees dealing with children and young persons

149
who have committed offences are able to make an order which suits the circumstances of a child, and particularly the parents of the child. Many of us are worried in case a number of young people are given custodial sentences when other sentences would be much better. The whole tenor of the Bill is to keep people out of custody. That applies especially to children and young persons. Without a home surroundings report and a knowledge of the background of the child, the committees dealing with children and young persons who have committed offences may well make a custodial order. I beg to move.
Lord Morris of Castle Morris: My Lords, it is always a singular pleasure to support the noble Baroness, Lady Faithfull. I assure her that, unlike her noble friend, I have no intention or desire to bang her on the head at any time or for anything. Her contributions to our debates are always characterised by good common sense and sensitivity.
In joining the noble Baroness in speaking to Amendment No. 83, I also make some remarks on Amendment No. 84. Surely these amendments do no more than take into account the fact that every offence has a context. In considering Amendment No. 84, it needs no behavioural psychologist with a team of research scientists in rubber gloves to convince your Lordships that all behaviour is due to some extent to the circumstances in which the person was living and that these circumstances should be taken into account in the -most appropriate way.
Many of us are worried about the complete separation of the courts dealing with crime from those responsible for welfare matters regarding children. The Children Act 1989 created the family proceedings court to deal with all civil matters regarding children and left juvenile offending in the juvenile courts, which will be renamed youth courts by this Bill. It has been said by those on whose advice I have relied that the result could be described as one court for the deprived and another court for the depraved. Research by criminologists reveals that the families of child delinquents are usually beset by a wide range of social problems. The proposed arrangement of courts carries the risk that some children who offend and who have definite and noticeable welfare needs will be processed through the criminal justice system which will go far to confirming their identity as little criminals and will overlook the welfare dispositions which could more effectively divert them from a life of crime. That risk is increased, as the noble Baroness, Lady Faithful!, said, by including the welfare-minded magistrates in the family proceedings courts so that the youth courts are likely to be more punitive.
These amendments suggest mechanisms to reduce the risk of young offenders being processed through the criminal justice system while their welfare needs are overlooked. I suggest that the only imprecise word in either of the two amendments is the word "significant" in the phrase "to any significant extent" in Amendment No. 84. It is carefully imprecise—deliberately imprecise—in the hope that it may stimulate both the concern and the generosity of the courts. The courts are well able to understand and
150
interpret what is meant by the words "to any significant extent". I am sure that they would. I support both amendments.
Earl Ferrers: My Lords, in Committee my noble friend moved amendments similar to these. I said then, and I say again now, that I have a great deal of sympathy for the objective which underlies them the need to safeguard the welfare of children who are involved in criminal proceedings. However, I am bound to tell my noble friend—I hope that this will not be an undue disappointment to her—that I cannot advise the House to accept either of them.
In Committee I set out fairly fully the reasons why the Government do not think it desirable to proceed as my noble friend would wish. I do not wish to weary the House by repeating those reasons again at great length. In brief summary, we think that the amendments are unnecessary. The criminal justice process already provides adequate safeguards for the welfare of young people who are involved in it at its various stages. Young people involved in criminal proceedings are the focus of the attention of many statutory bodies which are charged with the duty of having regard to the welfare of young people. Section 44 of the Children and Young Persons Act 1933 puts that specific duty on the courts. The police, the crown prosecution service and, crucially, local authorities, all of whom are likely to be involved at some stage in the proceedings, all have responsibility for protecting the interests of the young people.
The amendments would empower the courts to ask local authorities to carry out investigations into the young people's background and circumstances. The courts already have the power they need. Under Section 9 of the Children and Young Persons Act 1969, which Amendment No. 83 would amend, local authorities can already be required to carry out investigations relating to the home surroundings, school record, health and character of the young people. They can be obliged to provide the court with the information. If, in the course of these investigations, the local authority finds that there are grounds for taking action under the Children Act 1989, there is nothing to stop it doing so. I am bound to tell the House that I cannot see that the amendments would add any significant benefit to what can already be done.
My noble friend said in Committee—and she has repeated it today—that one of the objectives of the amendments was to help keep young people out of custody. She believes that giving courts information about the young persons' home circumstances would help. I must tell my noble friend that I believe she is right. But it does not require the mechanism in the amendments to achieve that aim. Courts can already call for reports on the young people's home surroundings. Under the Bill it will remain a duty on courts to call for a pre-sentence report before imposing a custodial sentence on young offenders in most cases.
My noble friend will recall that, as a result of the amendments agreed last Tuesday, pre-sentence reports will have to be obtained not only in all summary and either way cases, but also in all

151
indictable-only cases, unless the judge decides that it is not necessary in a particular case. In practice, I am sure that it will be most unusual for a young offender, even in an indictable-only case, to be sentenced without a pre-sentence report. The use of custodial sentences for young people under 17 has declined by 75 per cent. during the 1980s. Clause 1 of the Bill will further strengthen the safeguards against the inappropriate us of custodial sentences.
I can assure my noble friend that the Government are at one with her in wishing to keep as many young people as possible out of custody. We share her objective, but we do not think the amendments are necessary in order to achieve it.
Baroness Faithfull: My Lords, I thank my noble friend the Minister for that reply. However, perhaps I may just point out that although he says that it is possible for the magistrates to undertake this task at present, we are setting up a procedure which is different from that which was used in the past. We would have been most grateful to Her Majesty's Government if they had at least agreed to put this in guidance for magistrates. Of course, I accept that it might be difficult to put it on the face of the Bill.
I do not wish to reduce personal things to a financial level. However, the Association of Metropolitan Authorities and the Association of County Councils support the amendment. They are fearful that children will be given care orders which will of course place a heavy burden on local authorities. From a welfare point of view, that is a minor consideration; but it is a consideration which should be taken into account.
As my noble friend the Minister said, the number of children in custodial care has diminished by 75 per cent. during the past few years. That has been due to intermediate treatment and to the fact that the background history of the young people concerned is submitted to the courts. I shall not press the amendment to a Division. However, I hope that my noble friend will be able to see his way clear to putting these proposals into guidance for magistrates. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 84 not moved.]
Clause 51 [Attendance at court of parent or guardian]:
Baroness Faithfull Baroness Faithfull moved Amendment No. 84A:
Page 34, line 12, at end insert:
("(3) For the purpose of facilitating the attendance at court of parents and guardians, the youth court in each area shall hold at least one sitting fortnightly outside the times at which the court normally sits."").
The noble Baroness said: My Lords, this matter was discussed in Committee. Great emphasis is laid on the family and on the responsibility of parents. If we are underlining the responsibility of parents and of the family, surely it should be made possible for the parents to attend court when their children are due to appear. I know of many cases where children have appeared before a court on their own without their
152
parents; or, alternatively, they appear before a court with only the mother being present. Indeed, it is very rare in juvenile courts for both parents to attend.
With the present state of unemployment, many men cannot afford to be away from work. However, the situation is becoming even more serious because many women have taken up employment and they, too, cannot afford to be away from work and risk losing their jobs. For those two reasons, I believe that it would be most acceptable for the court to meet perhaps once a month or once a fortnight on a Friday evening or on a Saturday morning. I have been in touch with the Magistrates' Association and the Justices' Clerks' Society. They are in agreement with the proposal.
The system has been used in Scotland. I do not suggest that one should say to a parent, "If you can't come, we will fix a date". That is not my suggestion; my suggestion is that there should be an automatic session of the magistrates on a given day which is known to everyone. That would ensure that if parents cannot attend during the week either for work or other purposes they can do so at the alternative time. For example, there are single parents who have to stay at home with the children and who cannot attend court. Therefore, if it is known that there is an evening or a Saturday morning court, I believe that many more parents could and would attend. Further, the court would be in the position to ask them to do so. I beg to move.
5.45 p.m.
Lord Harris of Greenwich: My Lords, I agree very much with the remarks made by the noble Baroness, Lady Faithfull. It is especially appropriate to discuss this matter at present when we all recognise that the level of unemployment is rising substantially and that problems could undoubtedly arise if parents are required to attend court at a time which is, in terms of their employment, wholly inappropriate. I share the views expressed by the noble Baroness.
When we last discussed the matter, I believe that the noble Earl said—although I have not checked the Official Report —that the situation in Scotland was different because the law in Scotland is different. However, in my view that does not deal with the issue. If this can be done in Scotland, I cannot see what conceivable argument there can be against doing the same in England, notwithstanding any difference in legislation.
I very much hope, in the light of what has been said on both this and the previous occasion, that the noble Earl will agree to change his position on the matter and give an indication that he will accept the amendment.
Baroness David: My Lords, I support the amendment. It seems to me entirely sensible. However, there is one additional point which I do not believe has yet been made. If there is an evening or a Saturday morning court, it is much more likely that both parents will be able to attend. That is an important consideration. When I have been sitting in court there has very often only been one parent

153
present—nearly always the mother. In my view it is much more satisfactory for both parents to be present. That would be made much more possible if the court was held in the evening.
It is significant that both the Magistrates' Association and the Justices' Clerks' Society consider the proposal sensible and are willing to co-operate. Indeed, many magistrates may find it more convenient to sit in the evenings than in the daytime, as they often have to take time off work in order to attend court.
When the matter was discussed in Committee, I believe that the noble Earl said that he would consider, without any commitment, whether a circular to the courts night encourage them to arrange some sittings outside working hours. I do not know whether he has had any further thoughts on the matter. If he has not, perhaps he will be good enough to accept the amendment, which is in the interests of the courts, the children and the parents.
Lord Morris of Castle Morris: My Lords, there is a famous Welsh phrase chwarae teg which, being translated, means "fair play". It is a rich, resonant phrase in constant use by my countrymen. It has a deep emotional undertow and the general sense is that justice should be done to all parties. In the cases we are considering with the amendment all parties must include all parents. Surely natural justice and shrewd planning of a court's work dictate that we should support the amendment if we can. These days in a two-parent family both parents probably work. One or both may be doing shift work which may make it difficult for them to turn up at what we would regard as an orthodox time.
In a one-parent family 100 per cent. of the parents will probably work. They have to. That makes it difficult for them to present themselves at an appropriate time. Let us consider also the possibility of a father who is a commercial representative who may be hundreds of miles away from his child's residence for days at a time. To lose work is a most powerful disincentive to proceed, and people will not turn up at court. Surely all concerned in cases such as those we are discussing are entitled to attend in equal circumstances and without the peril of loss of earnings.
Lord Boyd-Carpenter: My Lords, it is right that youth courts should meet frequently, as has been said, on Friday evening or Saturday morning for the obvious reason that that would make it much easier for parents to attend. The only question I have—I hope that my noble friend the Minister will deal with it—is whether it is necessary to effect that change by legislation. If he and the Government are prepared to undertake to give instructions, through the usual channels, for the courts to meet, not necessarily at particular intervals but frequently, at the time suggested, it is perhaps arguable that one is overloading the statute book by legislating-in the proposal. I hope that he will be able in one way or another i AD indicate that something of this sort can be done. It is not necessary to emphasise that the good such courts can do will be enhanced enormously if the
154
parents are always to attend and therefore future cases possibly avoided. I hope that my noble friend will be able to give us some encouragement.
Earl Ferrers: My Lords, I have a great deal of sympathy with the aims of the amendment. It is trying to get both parents to court, to help those in work and single parent families. In so far as the amendment seeks to be fair to such people and accommodate them, I have a great deal of sympathy with it.
The frequency with which a youth court will sit in any given area will depend upon the volume of work it has to do and that will vary considerably from area to area. In an ideal world it might be possible to accommodate everyone's needs, but in reality it is not possible to arrange court sittings to everyone's convenience no matter how often they sit. The frequency and time of youth court sittings must be left to local discretion, to those who know the need and can take into account local circumstances. My noble friend Lord Boyd-Carpenter asked whether it was necessary to have an amendment such as this.
Lord Boyd-Carpenter: My Lords, perhaps my noble friend will allow me. I asked him whether it was necessary to put the proposal into the Bill. I hope that he will deal with that point.
Earl Ferrers: My Lords, I had repeated my noble friend's question and was just about to answer it when he rose to his feet. He asked whether it was necessary to put an amendment such as this into the Bill. I do not believe that it is. Your Lordships will, I hope, agree that to impose a rigid and arbitrary timetable of the kind the amendment proposes would interfere with the ability of local management to manage the resources at their disposal to the best effect. The extra sittings, which might or might not be needed, could involve substantial additional expenditure and hence loss of efficiency at the very time when the thrust of our initiatives in the courts, through measures such as the flexible listing of cases and the elimination of unnecessary adjournments, is aimed at improved efficiency and the reduction of the time it takes to process cases.
I was asked whether it was possible to issue guidance. There are difficulties in issuing guidance on what is listing practice. Listing is a judicial function. In the light of what my noble friend Lord Boyd-Carpenter and the noble Baroness, Lady David, said, I shall look at this matter again to see whether it is possible, but my advice is that listing is a judicial function. I shall look at the point further to see whether there is any way in which we can help to meet it.
Baroness David: My Lords, before the Minister sits down, he spoke as if there would have to be a sitting on an evening or on a Saturday morning. If there is no work for the courts, they are cancelled. That happens all the time. Magistrates are told that they are not wanted. They are usually given plenty of notice of that. Just because we say that this procedure is desirable, that does not mean that it will have to happen every week and that people would he dragged out for no purpose.
Baroness Faithfull: My Lords, I found my noble friend's answer odd. As the noble Baroness, Lady David, said, if there is no case the court will not meet. That is what happens now. I do not see why it is not possible to give magistrates the option of meeting as the case demands, bearing in mind that we wish to put on to both parents the responsibility for attending court and to encourage both parents to take an interest in their children. The Magistrates' Courts Association and the Justices' Clerks' Society have agreed to the proposal. If it is not possible to put it on the face of the Bill surely a directive could be sent to the magistrates telling them that they could sit at such times if the situation demands. Magistrates are responsible people. The members of the Justices' Clerks' Society are responsible people. It should be possible to implement the proposal. I am not going to divide the House. I hope that my noble friend the Minister will take this matter into account.
Earl Ferrers: My Lords, with the leave of the House, my noble friend said that if there is no work the court will not be called. Let us suppose that there is one case; presumably the court would have to be called. Secondly, the amendment places an obligation on the court because it uses the word "shall". If my noble friend reads her amendment again she will see that it places an obligation on the courts. They "shall" meet every fortnight.
Baroness Faithfull: My Lords, at present the law is that the courts shall meet, but if there is no case they do not meet.
Lord Harris of Greenwich: My Lords, perhaps I may ask the noble Baroness a question. In view of the implied invitation from the Minister to look at the language of the amendment, does she agree that we might consider putting down the amendment on Third Reading with the word "may" substituted for "shall"?
Baroness Faithfull: My Lords, I thank the noble Lord, Lord Harris, for that suggestion. I was certainly not going to divide the House but perhaps we can put the proposal down with the alteration of that one word at the next stage.
Lord Mishcon: My Lords, before the noble Baroness sits down, in considering the wise words of the noble Lord, Lord Harris, will she avoid using the word "may" in any amendment? Obviously any court may sit whenever it wishes. If it takes into account the desirability of sitting in order to meet the points made by the noble Baroness, that may be a good amendment.
Baroness Faithfull: My Lords, with the wise words of the two noble Lords, I withdraw the amendment, with a view to bringing it back at the next stage of the Bill.
Amendment, by leave, withdrawn.
6 p.m.
Clause 52 [Responsibility of parent or guardian for financial penalties]:
Baroness David Baroness David moved Amendment No. 85:
Page 34, line 20, leave out subsection (2).
The noble Baroness said: My Lords, in speaking to Amendment No. 85 I wish also to speak to Amendment No. 86. The two amendments are identical to ones that I put down at Committee stage. The local authority associations are still concerned about the drafting of Clause 52, and I agree with them. The proposal to regard a local authority in the same way as a parent or guardian for the purpose of the imposition of fines is considered contrary to any principle. We believe that the provision should be opposed.
Since the amendment was considered in Committee, the Association of County Councils has received a letter from the Department of Health, Community Services Division, but has received no communication from the Home Office, although the Department of Health indicates that the Home Office is the lead department on the issue. The Department of Health states:
"Should this provision remain in the Bill as it stands, local authorities will no doubt wish to have regard to the provisions of Sections 55(1) and (1A) of the Children and Young Persons Act 1933 which, in sub-paragraph (ii) in each case, requires the Court to have regard to whether it would be unreasonable to make an order for payment having regard to the circumstances of the case".
We believe that that is an inadequate answer to the concerns which have been expressed. It makes it necessary for the local authority in each case to seek to justify the withholding of an order which would otherwise be made and requires the circumstances of each case to be argued and debated. Furthermore, this provision does nothing to answer the criticisms about the principle of the matter. Indeed, one might almost envisage cases in which the local authority, when considering what action to take in relation to a child, might be tempted to have as much regard to the attitude which a court might ultimately take as to the interests of the child. It might think it better to lock a child up in secure accommodation where it can do no harm, rather than risk argument in court about action a child may have taken in less constrained circumstances.
At the Committee stage, on behalf of the Government the noble Earl said:
"The purpose of Section 2 of Clause 48 is to bring local authorities within the scope of Section 55 of the Children and Young Persons Act involving the parental payment of children's fines … If the important function of exercising parental responsibility falls to a local authority rather than to the parent or guardian, then the local authority should be liable to pay a fine under Clause 48".
The noble Earl went on to say:
"Removing subsections (2) and (4)"—
which is what my amendments would do—
"would have a number of unwelcome effects. It would dilute the meaning of parental responsibility which the local authority had assumed for the juvenile".—[Official Report, 22/4/91; cols. 104–105.]
We are quite unable to agree with that suggestion. If anything, the subsections would distort the meaning of parental responsibility which the local authority had assumed, rather than dilute it. In short, these proposals, applied to a local authority, carry the concept of parental responsibility beyond its logical boundaries.
The new provision is unacceptable. It goes against the whole philosophy behind the Children Act 1989. A

157
local authority will only consider receiving into its care a child or young person who represents the most challenging of cases and in any event will only resort to care once all other available options have been tried and failed. So by their very nature, the young people in question will have a number of problems of which offending will be only one. The prospect of many of these children and young people ceasing to offend as soon as they enter the care of the local authority is very remote. Fining the social services authority in such circumstances is inappropriate and positively harmful when considering a programme of care and rehabilitation. It is not a sensible way to use public money
As the noble Baroness, Lady Faithfull, said at Committee stage, children come into the care of the local authorities either because the parent asked the authorities to take them in because they cannot manage them or the children are committed to care by the courts. They are in a very different position from natural parents.
The assumption of parental responsibility by the social services authority is a statutory requirement which is undertaken on behalf of the community in the interests of a particular child. That responsibility should not be at risk of distortion by the additional imposition of ideas about the financial responsibility of parents for a child which may be appropriate where a natural or adoptive parent is concerned but are illogical where statutory responsibilities are concerned. I do not altogether agree that it is always right for them to be the financial responsibility of natural parents.
At Committee stage the noble Earl was not sympathetic to the amendment and did not seem fully to understand the position of the social services in relation to the children in their care. I hope that he has had time to consider this in the meantime and that I shall receive a more sympathetic response than I did in Commit tee. I beg to move.
Baroness Faithfull: My Lords, I support the noble Baroness, Lady David. Perhaps I may give a practical example which I mentioned at the last stage, but I should like to add to it. A small boy aged 12 was committed to my care. The next day he burned down one of the new schools in Oxford. If the local authority is to be responsible for that, and it is to be rate-capped, it would be completely impossible for it to meet the expense.
Further, and more important, if a very disturbed child is committed to one's care by the court, or if it is in voluntary care at the request of a parent, one cannot expect to be able to control or teach that child within 24 hours. Therefore, quite apart from anything else, if the amendment is not accepted, it will be quite impracticable and impossible to implement the legislation.
Lord Richard: My Lords, I apologise to my noble friend Lady David for not being in the Chamber when she moved the amendment. We on these Benches support it, basically because there is, in our view, an illogicality in treating local authorities as though they were either natural or adoptive parents. The
158
distinctions are perfectly obvious. It seems to me that making local authorities regard the phrase, "in loco parentis" with enormous biological fervour is illogical. It makes no sense. I support the amendment.
Earl Ferrers: My Lords, I am grateful to the noble Baroness for having quoted so much of my speech at Committee stage. I thought it was a jolly good one and I am glad that she felt it was a good idea to rehearse it again this evening. She said that I was not very sympathetic at Committee stage. The awful thing is that I cannot be terribly sympathetic to her this time; though naturally I should wish to be so. The reason is that there is a clear difference between the Government and the noble Baroness. We continue to believe that where a local authority has assumed parental responsibility it should be liable to pay the fines which may be imposed on juveniles in just the same way as are parents. Clause 52 will apply to local authorities only in very restricted circumstances. Not only must the local authority have a general duty in relation to the juvenile by receiving him or her into care or by providing accommodation, but it must also assume a parental responsibility by virtue of a care order or an emergency protection order. It thereby acquires all the rights, duties, powers, responsibilities and the authority which a parent has by law in relation to a child. The idea of parental responsibility entails having an active interest in what a child or young person is doing. It is not, as the noble Lord, Lord Richard, said, biological fervour that makes us suggest this. As I have said, it is a fact of life that parental responsibility entails taking an active interest in what the child or young person is doing.
We take the view that those who have taken on parental responsibility must expect to face the consequences of their children's misbehaviour. That is the inevitable philosophy behind the meaning of parental responsibility. If the important function of exercising parental responsibility falls to a local authority rather than to a parent or a guardian, we believe that the local authority should be liable to pay a fine under the terms of Clause 52 if the child misbehaves.
My noble friend Lady Faithfull mentioned the case of a 12 year-old who burnt down a school. The maximum fine that could be imposed by a youth court on a local authority in the example that my noble friend gave is £250. I doubt whether rate capping would be involved in such a case.
On the previous occasion that we discussed this matter, I said that the removal of subsections (2) and (4) would ensure that victims are effectively deprived of compensation. Juvenile offenders in care will probably not have the means to pay realistic amounts of compensation. Under the Bill the youth court will be able to make a compensation order of up to £5,000 against a juvenile offender for personal injury or for loss or damage resulting from the offence.
If the juvenile lives at home and his parent has responsibility for him, the parent may be asked to pay. However, the court would have to take into account the parent's means. If the juvenile was in care, no one could be asked to pay. The victim could be properly compensated in the first case but not in the second.

159
That situation is unfair. The noble Baroness, Lady David, did not address that point in her speech. For those reasons I cannot advise your Lordships to accept the amendments.
Baroness Faithfull: My Lords, before my noble friend sits down, I must point out that he mentioned children being accepted into care. Under the Children Act it is possible for parents to apply for their child to be taken into care. In such cases a local authority knows what it is accepting. However, most children are committed to local authorities by the courts. Local authorities do not have the option to refuse to accept the child. It is grossly unfair on local authorities that they should be responsible for the misdemeanours of a child in their care unless that child has been in their care for some considerable time.
Baroness David: My Lords, I am extremely disappointed with the answer I was given. Again, I do not believe that the noble Earl has understood the position of local authorities when they have difficult children in their care. Many local authorities are also strapped for money. It is unfair that they should face the responsibility we have been discussing. It is often unfair that some parents should have to bear the responsibility of paying fines; it is even more unfair for a local authority to have to do so. However, it is too late for me to take any action at this point. I feel strongly about the issue although my powers of persuasion seem small. However, I am not inclined to let the matter go. I shall take further advice and probably return to this matter on Third Reading. In the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 86 not moved.]
6.15 p.m.
Clause 53 [Binding over of parent or guardian]:
Earl Ferrers Earl Ferrers moved Amendment No. 86A:
Page 35, line 16, leave out from ("years") to end of line 18 and insert:
("(a) to exercise those powers if it is satisfied, having regard to the circumstances of the case, that their exercise would be desirable in the interests of preventing the commission by him of further offences; and
(b) where it does not exercise them, to state in open court that it is not satisfied as mentioned in paragraph (a) above and why it is not so satisfied.").
The noble Earl said: My Lords, the Government believe that the binding over of the parents of juvenile offenders can play an important role in helping to prevent further offending by these young people. We wish to see the courts make much more and better use of this power.
It has never been and is not our intention, however, that the courts should be placed in a position in which they must bind over the parents of a young person irrespective of the circumstances of the case. A number of your Lordships, however, expressed concern in Committee that, as drafted, Clause 53 might have this unintended effect. The provisions in Clause 53 were felt not to allow the courts sufficient flexibility to take proper account of the circumstances of the family in relation to the binding over of parents
160
of young people under the age of 16. In the light of these concerns, we have looked again at the drafting of Clause 53. I hope your Lordships will agree that the amendment I have proposed is helpful.
Where the offender is 16, we think the courts should have the power to bind over the parents and the full discretion to use this power as and when they think it appropriate to do so. Clause 53 already achieves this. However, where the young person is under the age of 16, we think the courts should be under a duty to consider the question of binding over the parents of a juvenile offender in every case. We also think that it is right that such powers should be used wherever the court considers that this would be helpful in preventing re-offending by the younger person. That is what the proposed amendment achieves.
Where the juvenile is under the age of 16 the court will be required to consider exercising the bind over powers in every case. It will be required to exercise the powers if satisfied, having regard to the circumstances of the case, that their exercise would be desirable in the interests of preventing the commission of further offences by the young person. Where the court does not exercise the powers, it will be required to state in open court why it has chosen not to do so. This formulation is clear. The specific reference to the use of the power to bind over parents to help prevent re-offending by the young person is valuable. It directs the court's attention clearly to the positive purpose and benefits of binding over. It also makes it clear that there is no compulsion to bind over a parent in circumstances where it is clear that the parent is simply not in a position to exercise the sort of control which would prevent further offending. I hope your Lordships will agree that the proposed amendment is sensible and helpful and goes a long way to meeting the anxieties expressed in Committee. I beg to move.
Baroness Faithfull Baroness Faithfull moved, as an amendment to Amendment No. 86A, Amendment No. 86B:
Line 5, leave out from ("offences") to end of the amendment.
The noble Baroness said: My Lords, this amendment would remove from the Government's amendment the requirement for courts to give reasons if they do not bind over the parents of juvenile offenders. The clause in its original form provided that when a juvenile was convicted of an offence the court must bind over the parents to take proper care of the juvenile and exercise proper control over him unless the court considered that that would be unreasonable. The Government's amendment removes the statutory presumption in favour of binding over parents. That is a most welcome modification of a measure which was likely to increase rather than reduce juvenile crime by placing an additional burden on many families who are already under severe pressure.
However, the government amendment would require the courts to give reasons if they do not bind over parents. Although an improvement on the original version, the clause will still place an inappropriate degree of pressure on the courts to use a measure which in the vast majority of cases would do

161
more harm than good. It is misguided to place pressure on the courts to use this power in cases where they do not currently regard it as sensible to do so.
It is absurd that the courts should be required to give reasons to justify their non-use of a measure which would be a recipe for disaster for many families. Either the requirement will pressure the courts into using the power in cases where they do not currently regard it as appropriate or the courts will have to give reason; for non use of the power in virtually every case. That procedure runs the risk of discrediting the process of giving reasons for decisions which is so important in many other areas covered by the Bill. I beg to move.
Lord Mottistone: My Lords, I am most grateful to my noble friend for going some way towards meeting Amendment No. 93 which I moved in Committee, on which 1 was advised by the Magistrates' Association. The association welcomes Amendment No. 86A as an improvement on the present situation. However, although the Magistrates' Association did not ask me to make a great fuss about the matter, it indicated that it could be very difficult—as my noble friend Lady Faithfull said—for magistrates to have to state in open calm on every occasion why they have not exercised their powers.
The amendment of my noble friend the Minister would be greatly improved if it did not include paragraph (b). Therefore I very much support the amendment of my noble friend Lady Faithfull, which would leave only paragraph (a), with which I have no quarrel and which is certainly an improvement on the present situation.
Lord Richard: My Lords, perhaps I too may thank the Government for going a considerable way towards the position which we advocated when the matter was debated in Committee. We thought that it was quite wrong that the presumption should be in favour of making an order binding over parents rather than the other way round. The Minister has met us on that.
I hope that the Government will not think us ungracious if we accept what they have offered us and then ask for more. However, the euphony and symmetry of the Government's position is somewhat marred by the inclusion of paragraph (b). Either paragraph (b) means something or it does not. If it means something, then it is a source of additional pressure on magistrates to make binding-over orders in circumstances in which they would otherwise not choose to do so. Alternatively, if it does not mean anything then magistrates will merely develop a catch-all formula and say, "We think that it is inappropriate in this case". In that event, it will become meaningless. Therefore it is a great pity that paragraph (b) has been included. Otherwise, the Government deserve our thanks for having moved the amendment.
Lord Windlesham: My Lords, I also spoke in Committee on these clauses of the Bill. I remain uneasy about the Government's policy of trying to
162
employ the criminal law to make parents and local authorities responsible for the misdeeds of their children. I think that it is a misconceived notion.
Although the amendment which my noble friend Lord Ferrers has brought forward at Report stage represents an improvement, it is marred by the requirement in paragraph (b) to give reasons when the power to bind over is not used. It is highly unusual to place a statutory requirement upon a court to say why it has decided not to use a power. Normally the requirement is to give reasons why a particular power is used. Perhaps the noble Earl will be able to tell us whether or not there are precedents.
For the reasons given by the noble Baroness, Lady Faithfull, and others who have spoken in this short debate, I hope that the noble Earl will be prepared to look at this again and consider whether the intention of the Government—which, as I have said, is open to some criticism anyway—would not be better fulfilled by the omission of paragraph (b).
Lord Harris of Greenwich: My Lords, the noble Lord, Lord Windlesham, is quite right. This was a wholly undesirable concept, and it still is. Nevertheless, I take the view of the noble Lord, Lord Richard, that the Government's difficulty in relation to paragraph (b) is that on the first occasion on which they have to do this magistrates will agree a pro forma response which will then be applied in every single case. I wonder whether that helps the Government, assuming that they are still determined to pursue the idea, as I imagine they are.
Nevertheless, it would be ungracious not to say that the noble Earl's amendment improves the situation significantly, because it does. However, it would undoubtedly be far better without paragraph (b), and the Bill would be even better without the whole idea.
Earl Ferrers: My Lords, perhaps I may reply to my noble friend's amendment. I am deeply appreciative of the gratitude which your Lordships have expressed from all quarters of the House, even if it has been rather like squeezing drops out of a sponge.
My noble friend Lord Windlesham said that he thought that it was doubtful whether it was right to employ the criminal law to make parents responsible for the misdeeds of their children. I accept that there is a certain amount of doubt about that on the part of some noble Lords, but it is part of the philosophy behind the Bill. In far too many cases children misbehave and the parents take no responsibility. They take the view that they cannot look after little Johnny, and if that is what he is going to do that is just too bad. There is an argument for saying that parents ought to have some share in the responsibility for what their children do.
My noble friend Lord Windlesham said that it must be very unusual for courts to have to give reasons for not using a power to bind over. The reason for putting it in the Bill is precisely because courts do not use the bind-over power. They have it at the moment and they have not used it. We seek to suggest to the courts that they address their minds as to whether they ought to use the bind-over power. If having addressed their minds to it they consider that in a particular case they

163
should not do so, they should say so in court. In so doing they will have addressed their minds as to whether the bind-over provisions should be used.
The amendment which my noble friend has put forward, which the noble Lord, Lord Harris, and others think is a good amendment, cuts out a great slice of my amendment. It would leave the situation virtually as it is at the moment, which permits the courts to consider using the bind-over provisions. We think that the second part of the amendment is necessary in order to make sure that the courts do consider the matter. If they take all the considerations into account and decide not to use the power, all they have to say is that is the conclusion they have reached.
The noble Lord, Lord Harris, said that the courts will come up with a pro forma device which they will shoot out at the end of every case. That does less than justice to the majesty of the courts in considering the problems that come before them.
If your Lordships wish to show how grateful you are for the amendment which the Government have put down, that gratitude should be extended a little further and you should not accept my noble friend's amendment.
Baroness Faithfull: My Lords, I am astonished. The noble Earl seems to insinuate that magistrates have not been doing their job properly and therefore we must now accept this amendment to make them give a reason for not doing it. Magistrates are mostly intelligent people. I have always found them to be people of good sense. If they have not bound over or fined when they have the power to do so, will requiring them to give reasons for not using binding-over orders make them more likely to use those powers? That is very odd reasoning. It casts aspersions on the Magistrates' Association.
At this stage of the evening, and as I should like to consider the matter further, I shall withdraw the amendment. I hope that the Magistrates' Association will realise that its members' intelligence is not being questioned. I beg leave to withdraw the amendment with a view to bringing the matter forward again at the next stage.
Amendment 86B to Amendment 86A, by leave, withdrawn.
On Question, Amendment No. 86A agreed to.
6.30 p.m.
Earl Ferrers Earl Ferrers moved Amendment No. 86C:
After Clause 53, insert the following new clause:
("Detention etc. pending trial
Detention at a police station
. In section 38 of the Police and Criminal Evidence Act 1984 (duties of custody officer after charge), for subsections (6) and (6A) there shall be substituted the following subsections—
"(6) Where a custody officer authorises an arrested juvenile to be kept in police detention under subsection (1) above, the custody officer shall, unless he certifies—

(a) that, by reason of such circumstances as are specified in the certificate, it is impracticable for him to do so; or

164

(b) in the case of an arrested juvenile who has attained the age of 15 years, that no secure accommodation is available and that keeping him in other local authority accommodation would not be adequate to protect the public from serious harm from him,

secure that the arrested juvenile is moved to local authority accommodation.
(6A) In this section—
'local authority accommodation' means accommodation provided by or on behalf of a local authority (within the meaning of the Children Act 1989);
'secure accommodation' means accommodation provided for the purpose of restricting liberty;
'sexual offence' and 'violent offence' have the same meanings as in Part I of the Criminal Justice Act 1991;
and any reference, in relation to an arrested juvenile charged with a violent or sexual offence, to protecting the public from serious harm from him shall be construed as a reference to protecting members of the public from death or serious personal injury, whether physical or psychological, occasioned by further such offences committed by him." ").
The noble Earl said: My Lords, in moving Amendment No. 86C, I should like to speak also to Amendment No. 86E. My noble friend Lord Elton drew my attention during the Committee stage to difficulties which had arisen in the operation of Section 38 of the Police and Criminal Evidence Act. This deals with police detention of arrested juveniles. I undertook in that debate to consider the points that my noble friend Lord Elton and others had raised. Amendment No. 86C will, I hope, meet those anxieties.
Section 38(6) of the Police and Criminal Evidence Act provides that, where a police custody officer authorises an arrested juvenile to be kept in police detention overnight, the officer must make arrangements for the young person to be taken into local authority care unless it is impracticable to do so. There has been some confusion about what impracticable means and there are some differences in practice by the police.
My noble friend Lord Elton argued most persuasively that the juvenile should always be placed in local authority care unless there is some overriding practical reason to prevent that; for example, if there is simply no local authority accommodation available, or particularly bad weather prevents the transfer of the young persons. That principle was reflected in the amendment moved by him in Committee.
I have a good deal of sympathy with that view. The welfare of young people who have been arrested is clearly of vital importance. At the same time, however, we must also give the fullest consideration to the need to protect the public. We need to achieve an approach which strikes the right balance between protecting the interests of the young person and protecting the public from further serious offending. I hope that that is what Amendment No. 86C achieves.
The amendment proposes a general rule in new subsection 6(a) which applies to all arrested juveniles. The young person must be transferred to local authority accommodation unless there are practical circumstances, such as a strike by the local authority

165
or severe weather conditions, which prevent that, or where 1 he lateness of the hour makes it impracticable to contact the local authority.
However, an exception to that general rule is allowed, in new subsection 6(b), for 15 and 16 year-olds, but only where the police custody officer is satisfied that there is a serious risk of harm to the public from the young person. In such circumstances, the police would be allowed the discretion to keep the young person in police detention overnight if they considered that the local authority accommodation which was available would not be adequate to protect the public.
Amendment No. 86C means that, for children under 15, the police would be able to hold the young person in police detention only in the kind of practical circumstances which I have described and which prevent transfer to the local authority. Where the young person is 15 or 16, the presumption would still be that such young people should be moved to local authority accommodation if at all possible. However, where there is a risk of serious harm to the public, the police rather than the local authority will have the responsibility for judging whether the accommodation is secure enough. Such a judgment is not easy. It affects not only the young person but, potentially, the public as well. As such, where there is a risk of serious harm, it must be right for the police and not the local authority to take that final decision on our behalf.
I hope that your Lordships will agree with me that this is a helpful clarification of the provisions in Section:18 of the Police and Criminal Evidence Act. I beg to move.
Lord Mishcon Lord Mishcon moved, as an amendment to Amendment No. 86C, Amendment No. 86CA:
After Clause 53, line 12, leave out paragraph (b) and insert ("(b) in the case of an arrested juvenile who has attained the age of 15 years and is charged with a violent or sexual offence, that keeping him in such accommodation with such supervision as the local authority proposes to make available would not be adequate to protect the public from serious harm from him,").
The noble Lord said: My Lords, it may be for the convenience of the House and of the Minister if I make it clear that our discussion covers Amendments Nos. 86C', 86CA, 86CB, 86E and 88. I believe that a couple of those amendments were not mentioned when the Minister opened his remarks.
I hope that the noble Earl will not think us ungracious when we discuss his amendment. Concern was expressed in all parts of the House in previous debates on the Bill that juveniles who were accused of offences should, so far as possible, be kept out of police custody. That sentiment found sympathy with the noble Earl. We all appreciate the fact that we are considering the amendment that he has just moved.
While moving the amendment, the noble Earl correctly implied that wording was important. He drew attention to the various decisions that have been made with regard to the word "impracticable". It is only in connection with the wording and in order to make abundantly clear what we mean that my noble friend Lord Richard tabled Amendments Nos. 86CA and 86CB, which I hope will commend themselves to the Government and to Members of the House.
Perhaps I may first refer to the use of the word "impracticable". Your Lordships will find it in subsection (6) (a) of Amendment No. 86C, which makes an exception when:
"by reason of such circumstances as are specified in the certificate, it is impracticable for him to do so".
That refers to the custody officer finding that there are circumstances in which it is impracticable. The question of police detention then arises.
As I understand it, the Government say that the provision means what the noble Earl said it meant; namely, that weather conditions—for example, a snowstorm—made such action impracticable, or the arrest took place at three o'clock in the morning, or some other such reason. However, some of us were a little shattered by a decision that was taken only last year in the Divisional Court. That was the case of Regina v. the Chief Constable of Cambridgeshire, exparte Michel. The court upheld a police custody officer's refusal to release a juvenile into the care of the local authority on the ground that he considered that the available local authority accommodation, being insecure, was not a practicable means of housing the juvenile as it would not prevent him from causing further damage to property.
That means that the courts have defined "practicable" and "impracticable" in a very wide way. I do not think that that is either the Government's intention or the intention of Members of the House, wherever they may be sitting. They want the narrow sense of the definition to be kept; namely, as in the instances that I gave, it is at an impossible hour of the morning or because of impossible weather conditions or, as I believe the noble Earl mentioned, because of a strike. The amendment of my noble friend Lord Richard appears to overcome that difficulty.
There is also a problem about subsection (6) (b)—the second criterion—because the use of the term "secure accommodation" might suggest to police custody officers that, where no secure accommodation is available, police custody must automatically obtain and they need not therefore consider any other available local authority accommodation if they believe that it is not secure. Local authorities possess alternative accommodation which may fall short of secure accommodation but would allow the necessary surveillance required in certain cases.
The concern that I have just mentioned is in my view covered by my noble friend's amendment but I am also concerned that the wording of paragraph (b) does not clearly state that it is meant to be restricted to juveniles charged with violent or sexual offences. Again I believe that that is what many Members of your Lordships' House had in mind. At the end of the paragraph there is a reference to "serious harm". I imagine that use of those words is intended to imply that the matters to be covered are only those that I mentioned in my noble friend's amendment.
I hope that these words are improvements and clarify the situation. I trust that the noble Lord has had time to consider them. However it may very well be that the Government have not had time to consider the arguments that I have ventured to put before the House today. Should the noble Earl accept my noble

167
friend's amendment, I should be very glad. However, if he feels that consideration of what has been said in furtherance of the amendments would lead him to have some useful thoughts about them which could be communicated to those who are interested between now and Third Reading, I certainly would not wish to divide the House. I repeat the gratitude that I first expressed. I beg to move.
Lord Mottistone: My Lords, my noble friend Lord Elton, whose amendment, Amendment No. 88, is also under discussion, has asked me to speak for him and to say, as other noble Lords have said, that he is most grateful to the Government for having moved so far as they have done with Amendment No. 86A. I had not intended to say very much. However, in view of what the noble Lord, Lord Mishcon, has just said, I feel that I must relay to your Lordships what my noble friend would have said had he been here. I believe that it is relevant to what has just been said.
My noble friend the Minister sent my noble friend Lord Elton a letter to put his mind at rest. However, I am not sure that it would do so. Therefore I put to my noble friend the Minister the two questions which my noble friend Lord Elton would like to ask. First, can the Minister assure us that the effect of subsection (6) (a) and (b)—as they are at the moment and not amended by what noble Lords have just heard—will be to ensure that in no circumstances will the custody officer be able to certify lack of what, in his judgment, is suitable accommodation as a reason for detaining juveniles under the age of 15 instead of passing them to the local authority?
If my noble friend the Minister cannot give that assurance, it seems to my noble friend Lord Elton that the decision remains with the custody officer and matters are exactly where they stood before the Bill was drafted. In that case my noble friend Lord Elton may wish to return to the issue at Third Reading. It must surely be for the local authority and not for the police to make that judgment affecting children of 13 and 14. Many of the cases quoted by my noble friend were of 13 and 14 year-old children. In all of them the local authority wanted to take in the children but the police refused to let them go because, in their opinion, the local authority's accommodation, not being secure, was not satisfactory. On the next day it was the local authority's view and not that of the custody officer that was upheld by the courts. If the government amendment does not change that situation, it does not do what my noble friend Lord Elton understands that the Government want it to do and it may be that my noble friend the Minister will not want to let the matter rest any more than my noble friend Lord Elton would wish it.
The second question follows from the first. If it does fall, as it should, to the local authority to decide if the accommodation that it has available is unsuitable for a juvenile below 15 years of age, will my noble friend the Minister again consider making it the duty of the local authority, not the police, to provide the certificate? Can he in any case tell us what, under the government proposals, will happen to the certificate? Presumably it goes to court with the
168
juvenile. Does the Bill provide for that? If not, will my noble friend the Minister please amend it so that it does?
Having said all that, my noble friend Lord Elton repeats his delight that the Government have recognised that matters could not be left as they were after the Cambridge judgment and that they agree that arrested children of 14 or under ought to be held by local authorities and not in police cells overnight. I hope that my noble friend the Minister will be able publicly to find answers to the points put to him by my noble friend Lord Elton. I think that he tried to answer them in his letter but he did not give the answer for which I was looking.
6.45 p.m.
Earl Ferrers: My Lords, I am grateful to noble Lords for trying to clarify these points. I recognise that they are important. The change was necessary because of the recent Michel case to which the noble Lord, Lord Mishcon, referred. The amendment that the Government have produced goes all the way to meet the concerns which my noble friend Lord Mottistone expressed on behalf of my noble friend Lord Elton with regard to the custody officer. My noble friend Lord Mottistone said that the effect of subsection (6) (a) and (b) will be to ensure that no custody officer could use the state of the local authority's accommodation as a reason for hanging on to 13 or 14 year-olds in prison.
I can give my noble friend the assurance that that is precisely what the clause does. Under the new amendment the police cannot use the state of the local authority accommodation as a condition for keeping 13 or 14 year-olds in custody.
The noble Lord, Lord Mishcon, referred to various considerations in regard to Amendment No. 86CB. The general rule that is proposed is that no juvenile should be held in a police cell unless there is a practical reason which prevents transfer of the young person to local authority accommodation. That is set out in new subsection (6) (a) of my amendment. The kind of practical problems which might arise are, as I suggested, extremely bad weather, such as snow drifts, or a strike by local authority staff. They are not listed in the provisions simply because it is clearly difficult to envisage all the possible exceptional circumstances which might arise. But the question of the kind of local authority accommodation which is available is not one of the matters that can be considered in the context of the general rule stated in subsection (6) (a). I hope that that will give comfort to my noble friend Lord Mottistone as well as to the noble Lord, Lord Mishcon.
Consideration of the kind of local authority accommodation available is made an exception to this general rule by virtue of the new subsection (6) (b). That subsection provides that, if the young person is aged 15 or 16 and there is a risk of serious harm to the public, then the police may keep the young person in police detention if no secure accommodation is available and the accommodation that is available would not be adequate to protect the public.

169
I draw the attention of the noble Lord, Lord Mishcon, to this point. He asked me a specific question. By making the local authority accommodation that is available an exception in that way, the provisions make quite clear that this is not a matter for the police where the young person is under 15 or indeed where the young person is 15 or 16 but there is no risk, of serious harm from him or her. I hope that that explanation is helpful.
The noble Lord, Lord Mishcon, also referred to Amendment No. 86CA. Clearly the most serious harm that is likely to be done is the commission of further violent or sexual offences. I have no doubt that the police will take particular care in those cases. However, harm can also be caused by the commission of other kinds of offence. Where there is no local authority secure accommodation available, I believe that the public have a right to expect some consideration to be given to whether the accommodation available is secure enough to protect them from such harm. Such a judgment is not easy. I believe that the police rather than the local authority are the right people to make such decisions for a short period before the young person—I speak now of 15 or 16 year-olds—can be brought before the court. The police have the experience. They are the people to whom we look to protect us from crime.
Were the amendment of the noble Lord, Lord Mishcon, to be accepted, domestic burglary would be excluded. There are occasions when 15 or 16 year-olds who carry out domestic burglary on a frequent basis may need to be held in secure custody. That is one of the reasons why we believe that his amendment would not be desirable.
We cannot ignore the need to protect the public. It is right to look afresh at the best way of achieving a balance between the needs of the young person and the needs of the public in the light of the recent Michel case. I believe that my amendment achieves that.
My noble friend Lord Mottistone asked whether the local authority should be the people to certify. It must be for the police rather than the local authority to certify that it is impracticable to make the transfer. In many cases the local authority will have no way of knowing whether or not it is impracticable. That is the reason why the responsibility would have to fall to the police.
I hope that I have been able to allay the worries expressed by your Lordships. These are matters of quite intricate detail. I hope that we have covered them in the amendments that I have put forward today.
Lord Mishcon: My Lords, I am sure that we are all grateful to the noble Earl for being courteous enough to deal with the amendments. The noble Lord, Lord Mottistone, will speak for himself, but I am sure that he will be equally grateful. They are matters of importance. I am not clear whether the noble Earl has necessarily followed all the arguments that have been advanced. If he finds that there is an omission in his remarks because the criticisms of this clause—they are purely verbal—have not been clearly understood, I hope that he will take the opportunity between now
170
and Third Reading to communicate with those of us who have raised these issues, so that we know our position at Third Reading.
Earl Ferrers: My Lords, I have not wished to transgress the rules of the House. That is why I nodded assent to the noble Lord, Lord Mishcon. With the permission of your Lordships, I shall just say yes.
Lord Mishcon: My Lords, I am most grateful. It is so hard for Hansard to report a nod. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 86CB not moved.]
On Question, Amendment No. 86C agreed to.
Clause 54 [Remands and committals to local authority accommodation]:
Lord Mishcon Lord Mishcon moved Amendment No. 86D:
Page 37, line 39, at end insert:
("(9A) The court may not impose requirements under subsections (4) or (9) above or require a person to comply with conditions under subsection (7) above unless it has first consulted the designated authority as to—

(i) the circumstances of the person; and

(ii) the feasibility of securing compliance with the requirements or conditions

and is satisfied, having regard to the report of the designated authority, that it is feasible to secure compliance with them.").
The noble Lord said: My Lords, I shall take this matter very briefly. In the amendment there is a requirement for the courts to consult local authorities about the feasibility of requirements before imposing them on juveniles who are remanded to local authority accommodation. Perhaps one may take it for granted that there is little point in requiring young people to abide by conditions which are not regarded as feasible by those who know because they have the job of supervising and enforcing the conditions.
As presently drafted, subsections (4), (7) and (9) require the court to consult with the local authority before imposing requirements on a juvenile. However, if one considers subsection (13) (b), that is somewhat qualified by defining consultation as,
"such consultation (if any) as is reasonably practicable in all the circumstances of the case".
It is felt that there should be a clear, unambiguous duty to consult about feasibility of requirements. In the hope that the argument commends itself to the Minister, the wording of the amendment is identical to that which governs the imposition of requirements on juveniles as part of a supervision order. I am told that that works well in practice.
I do not pretend that it is a great amendment. I believe that it is an important one. It constitutes an improvement. I beg to move.
Lord Harris of Greenwich: My .Lords, I agree with the noble Lord, Lord Mishcon. If it works with regard to supervision orders, it is extremely difficult to understand why the amendment would be unacceptable to the Government. I hope that the noble Earl will tell us that they are prepared to accept it.
Earl Ferrers: My Lords, the noble Lord, Lord Mishcon, is characteristically modest when he says that it is not a great amendment. He has made a

171
persuasive case. However, there are two reasons why I cannot follow the noble Lord down the path of this amendment.
The first is that, in relation to the duty to consult, the amendment is unnecessary. Clause 54 already puts the courts under a duty to consult the designated authority before imposing any requirements or conditions when remanding a juvenile to local authority accommodation. That duty to consult is not limited to the purposes mentioned in the noble Lord's amendment; but it does not rule out consultation about the matters that the amendment mentions. The Government's original proposal, set out in the consultation paper on juvenile remands, was to confine consultation to certain specific matters. But, following the responses to the consultation paper, we decided that a broader duty to consult was preferable. The advantages in having a general duty are clear. A general duty allows courts to consult about any matters which they consider relevant. For example, subsection (4) requires courts to consult the designated local authority before imposing a requirement that the remanded juvenile should be held in secure accommodation. It is desirable for secure accommodation to be used only where there is no alternative.
One of the principal purposes of consultation would be to see whether secure accommodation was really necessary or whether some other method of dealing with the juvenile, short of using secure accommodation, was more suitable. It is true that the amendment would not expressly confine consultation to the matters it mentions, but I am advised that it could cast doubt on the breadth of the general duty, or at least cause courts to concentrate mainly on those matters.
The second reason for not being able to accept the amendment goes to what I suspect is its main purpose. The amendment would prevent the courts from imposing requirements or conditions unless they were satisfied that it was feasible to comply with them. Again, I think that, in relation to conditions under subsection (7) and requirements under subsection (9), it is unnecessary to make this provision. I believe that as a matter of good practice and common sense courts will only wish to impose requirements and conditions where they are satisfied that they can be complied with. Otherwise there is not much point in making the conditions.
I have somewhat greater difficulty with requirements under subsection (4), which is the security requirement. This provision will be brought into force only when prison custodial remands are abolished under Clause 56. That step will only be taken, and quite rightly, when the Government are satisfied that adequate secure accommodation is available to cope with the increased demand. By definition, therefore, it must be feasible to comply with a security requirement under subsection (4); so again the amendment is unnecessary.
172
I hope that I have been able to satisfy the noble Lord, Lord Mishcon, about those matters. We do not think that the amendment is necessary for the reasons I have given.
7 p.m.
Lord Mishcon: My Lords, it is a little difficult, when one tries to put reasons before the Government and the House as a whole for an amendment, to have as the main answer that it is common sense that would be applied by the court and therefore the substance of the amendment would be carried through; that it is usual procedure and therefore it would be carried through; and that, in the last case the noble Earl mentioned, of course it must be feasible as otherwise no such order would be made.
If matters are implicit, is it not sensible for the legislature to make them explicit? That was the reason for the amendment. On the last occasion the noble Earl did not have the benefit, when thinking of the reply that he was going to give, of hearing the words of unwisdom that I uttered. The words may have been unhappy but the cause is a very right one. I hope that in the circumstances, however badly I may have worded my speech in favour of the amendment, the noble Earl will consider that the Bill would be the better for explaining explicitly what he admits is implicit.
Earl Ferrers: My Lords, the noble Lord, Lord Mishcon, said that I did not have the benefit of hearing his argument. To listen to the noble Lord, Lord Mishcon, is always a benefit. He is right that I had not heard his words, even though I fancy I was apprised of the argument. I should be less than courteous if I did not take account of what the noble Lord has said. I would only say one thing to him. He said that because I said that it was common sense that such-and-such should happen, it therefore should be put in the Bill. I was castigated earlier today for suggesting that my amendment impugned the courts' integrity. I rather fancy that the noble Lord, Lord Mishcon, may be impugning the common sense of the court if he says that one must only put into a Bill that which is common sense. But of course I shall take into account what the noble Lord said.
Lord Mishcon: My Lords, if at any time the noble Earl rises at Report stage for a second series of remarks and asks for the leave of the House, if he speaks in the same gracious way as he has just done he will always have the leave of the House so far as these Benches are concerned.
I am grateful to him. In those circumstances and on that basis, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Earl Ferrers Earl Ferrers moved Amendment No. 86E:
Page 39, line 19, leave out ("local authority accommodation") and insert ("accommodation provided by or on behalf of a local authority (within the meaning of the Children Act 1989)").
The noble Earl said: This amendment went with Amendment No. 86C. I beg to move.
On Question, amendment agreed to.
Clause 56 [Transitory provision pending provision of secure accommodation]:
Baroness Faithfull Baroness Faithfull moved Amendment No. 86F:
Page 39, line 44, after ("appoint,") insert ("which day shall be no laser than the end of the period of four years beginning with the day this Act is passed").
The noble Baroness said: My Lords, this amendment is grouped with Amendment No. 86H, and with the permission of your Lordships' House I shall speak to both amendments together.
The amendments are concerned with the ending of juvenile remands in custody and aim to ensure that there is adequate alternative provision. Amendment No. 86F stipulates that the remanding of juveniles in custody should be ended within four years. That is a long-term policy; it is essential that we set a target. If we do not, we shall go on as before.
The Bill as it stands sets out new and stricter criteria for the remanding of juveniles in custody in the short term and provides for the ending of such remands in the long term. The most important short-term change is that remands will be restricted to cases where they are needed to protect the public from serious harm from the defendant. This is a welcome and substantial step in the right direction. However, the real need is to end completely the remanding of juveniles to adult prisons and remand centres. Where it is necessary to remand a juvenile to secure conditions, this should be to a secure place in a community home staffed by those specialising in work with children, not to a prison department or prison establishment.
While the Government have committed themselves to ending juvenile remands in custody, they have not committed themselves to any timetable. They have said that they will end such remands when sufficient local authority accommodation is available, but they have not announced a specific timetable for bringing this about. In February the Home Office issued a consultation paper entitled The Remand of Alleged Juvenile Offenders, which proposed to restrict custodial remand in the short term on the lines of the Bill's provisions and to establish between 30 and 35 secure places—beds not establishments—for juveniles in local authority homes over the next four years.
There has been mounting concern about the remand of juveniles to prisons. There was the disgraceful and sad case of Philip Knight committing suicide in Swansea prison in July 1990. I have to say that all thy: juveniles with whom I have dealt who have been remanded to prison have really been remanded to a university of crime; they have learned much more in prison than they ever knew before. That is certainly saying something.
The chief inspector spoke in his annual report of the quite disgraceful conditions under which juveniles were remanded in prison. I have to say that such juveniles are deeply disturbed and unhappy. The older boys resent having them there; the men very often get hold of them, and I have to say that the children, if they are found riot guilty, have learned much more than they ever knew before.
What is the size of the problem? In the 12 months to June 1990, 1,300 boys aged 15 to 16 were remanded to penal establishments at any one time. That cannot go on. We cannot believe that that is right.
Having said that we agree that a time limit of four years should be set, nevertheless, we cannot afford for the next four years for those juveniles to be remanded in prison. Therefore, the recommendation is that local authorities should supply secure accommodation within the social services departments. We then run into trouble because the Home Office, as I understand it, has said that it will make a contribution towards setting up secure units but has not made an agreement that it will pay for the running costs. That puts the Association of Directors of Social Services in an extremely difficult position. On the one hand, its members do not want those juveniles to go to prison; on the other hand, unless they are helped financially they will not be able to set up and run the necessary secure accommodation.
Furthermore, many remand cases need not be remanded into custody. If alternative accommodation is to be supplied in the community, that also requires money. Therefore, the directors of social services do not wish to turn down the recommendations. At the same time they wish to make it clear that it will not be possible within present budgets to carry them out.
My last point is financial—that is, by not helping to keep juveniles out of prison, we are cutting off our noses to spite our faces. Later they become much more serious criminals than they were before they went into prison. I hope that the Minister will accept these amendments.
Lord Richard: My Lords, as I understand the scope of the problem, it is true, as the noble Baroness said, that in the 12 months to the end of June 1990, 1,300 boys were remanded to prisons and remand centres. I understand it to be the position also that the number of juveniles on remand at any one time is very much smaller. On 30th April 1990, which is the date I have been given, 65 untried and 19 convicted unsentenced boys under the age of 17 were imprisoned in remand centres in England and Wales. That is the scope of the problem at any one time. It is not necessary to provide 1,300 places, but if one takes the date that I have given, it is necessary to provide only 84 places.
One knows that the automatic reaction of any government department which is faced with the demand that something should be done by a specified time is to throw up its hands in horror and to say that it cannot possibly commit itself to doing that. I hope that the Minister will not take that view this evening. I am sure that he has been advised to do so; and if he has not, then I withdraw all my strictures upon all the anonymous people watching us this evening.
However, if he has been advised to do that, I leave two thoughts with him. His right honourable friend the Home Secretary did not find it difficult to accept a deadline of 1994 for the elimination of slopping out at a time when it seemed politically convenient to do so. This is just as important, is infinitely less expensive and is much more within the Government's capacity. We are saying that the Government should have a timescale of four years.

175
I accept that the Government have good intentions in this respect. They say that they will do their best and will try to achieve what we ask. However, in those circumstances, when they are being given such a long time in which to achieve this and when the amount which they will have to do is small, I do not believe that the Government will rock if, just for once, they accept the imposition of a time limit on a measure which they believe to be desirable. I support the amendment.
7.15 p.m.
Lord Harris of Greenwich: My Lords, I assume that the reason for the Government's caution in this matter—which I believe to be mistaken—is because this issue involves two government departments rather than one. I suspect that is at the heart of the matter.
According to the Government, we are talking about the provision of some 30 to 35 secure places to deal with this problem. Is it inconceivable to ask the Government to provide 30 to 35 places in a period of four years? Public anxiety was expressed at the time of the suicide of Philip Knight in Swansea Prison in July of last year. The Government then indicated that they took the matter seriously, and eventually we were told that they would support a proposition of this kind.
As I pointed out on the last occasion, I am far from satisfied as regards what will happen should local authorities, like our friends in the London Borough of Wandsworth, decide to shut down secure places. That borough is constantly praised by Ministers; but unhappily it closed down 25 secure places in Wandsworth, which is nearly the total number which the Government say is required to deal with this problem over a period of four years. Quite apart from the terms of the amendment, how will the Government persuade local authorities which are under immense financial pressure, as many of them are—and some are also poll tax capped—to provide that additional accommodation? I am sure we shall be very grateful if the noble Earl can give some guidance on that.
It is unacceptable that our children should continue to be placed in the squalor of our local prisons. As the noble Baroness, Lady Faithfull, said, the experience turns some of the children into sophisticated criminals. Before that experience, they must endure other difficulties.
Perhaps I may turn to the matter which the noble Baroness, Lady Faithfull, mentioned; namely, the annual report of 1989 by Her Majesty's Chief Inspector of Prisons. He said:
"Probably the most disturbing aspect to emerge from our inspections was the number of juveniles who continue to be held in penal establishments … In many ways these youngsters have less in common with young men in their late teens than is generally realised. They are often despised by the older group, resented for their childishness and become victims of intimidation".
Are we going to allow that situation to be perpetuated? In any event, even in the terms of this amendment, it could be perpetuated for a period of four years. If this amendment is not carried, we have only the Government's well-meaning intentions. I do
176
not believe that that is acceptable. This amendment is very important. I hope that the noble Earl will be able to give a satisfactory answer to some of the questions put to him, and that he will be able to accept the broad thrust of the amendment.
Lord Renton: My Lords, the case which has been made out for making sure that we have the appropriate local authority accommodation within a reasonable time is very strong. Before I go further, I hope that noble Lords who have spoken will acknowledge that the Government have gone into great detail in deciding that such accommodation—both transitive provisions and permanently—should be made available. However, I believe that we are being very soft with the Government when it is said that the transitive provisions must be completed within four years. I should have thought that a much shorter period of perhaps two years would have been suitable.
Lord Henderson of Brompton: My Lords, perhaps I may offer a few brief comments in support of the amendment. Like the noble Lord, Lord Renton, I feel that four years is over generous but is more likely to be accepted than two years. I am a realist in these matters.
I do not want to go over the points so ably expounded by my predecessors in the debate. I want to concentrate on the limb which matters; that is, securing sufficient alternative accommodation to be in place by the end of four years, or preferably two years.
First, we heard that some local authorities are in the process of shutting down some secure accommodation establishments. That is the kind of accommodation we need in increasing numbers of cases and something should therefore be done in that regard. Does the noble Earl have any power to stop the shutting down of secure accommodation when everybody agrees that it is necessary to increase it? It is a scandal and it would be encouraging to know that central government have the power to stop it.
Secondly, I should like to suggest a perhaps cheaper way of supplying accommodation, sometimes secure and sometimes not secure, via the voluntary sector. It is a point which the noble Lord, Lord Elton, would certainly have made had he been present; he is chairman of the Intermediate Treatment Fund. It has provided seed-corn funding for such projects. If we provide voluntarily-run local authority accommodation places for young people, funded partly by the local authority and partly by central government, we shall perhaps secure some technical independence from the local authorities. They would then not be able to shut down that secure accommodation, as they seem able to do when secure places are entirely under their control.
The ITF promoted, with the consent and willing support of the Department of Health, two schemes which I should like to draw to your Lordships' attention. The first is the Surrey Bail Support Project which is a joint initiative of the Royal Philanthropic Society and the Surrey Social Services based in Woking. The county has a large number of remands of young people into care, custody and secure

177
accommodation. The project aims to reduce those numbers by providing not only support, but also supervision in the community for young people on remand who, because of the nature of their offending, face removal from home. The project is supported by a Juvenile Justice Advisory Committee which includes magistrates, police, justices' clerks and the Crown Prosecution Service. Perhaps the noble Earl would consider central funding for such a scheme where there is a shortage of places in local authorities for receiving children who otherwise would have to go into police custody, which is something everybody wants to avoid.
In another scheme in Droitwich the IT Fund made a contribution towards the salary of the project co-ordinator. The scheme has been so successful that it has been extended to the whole of Hereford and Worcestershire. The management of the scheme, although under the auspices of the local authority, remains in the voluntary sector. Those two schemes could well be followed in other parts of the country to the benefit of young people and to the end of securing sufficient places in local authority control so that the remand of young people into custody could be brought to an end perhaps within two years but certainly within four years.
Earl Ferrers: My Lords, there has been an effusion of persuasive oratory this evening. It is a curious sensation to find oneself in a cul-de-sac with the advancing hordes in the shape of my noble friends Lady Faithfull and Lord Renton and the noble Lords, Lord Richard, Lord Mishcon and Lord Harris, bearing down upon one. It is a very disagreeable experience.
The noble Lord, Lord Richard, made my speech for me in as short a time as I intend to take, by saying that whenever the Government are asked to agree to a deadline they throw up their hands in horror and say, "We can lot possibly consider that". In essence that is one of my problems. I want to make it perfectly clear that the Government are committed to ending prison remands for juvenile boys. But having regard to the need to protect the public, as the Government must, it is not possible to end prison remands overnight. That cannot be done.
Lord Harris of Greenwich: My Lords, within four years.
Earl Ferrers: My Lords, it is very nearly dinner time and one must not be too impatient. I use a fairly general expression. We must move towards a position in which sufficient non-prison secure accommodation is available. Under the Bill that would be local authority secure accommodation.
There are a number of ways in which that can be done. The first is to reduce the demand for secure places of any description. The Bill does that by setting out very clearly the circumstances in which secure remands can be used. Such remands can only be used when there is a need to protect the public from serious harm from the juvenile. This test will apply to the continued use of prison remands as well as to the
178
eventual use of local authority secure accommodation. So we should see a reduced need to hold remanded juveniles in prison.
The Government are also anxious to encourage the speedier completion of juvenile court cases, thereby reducing the length of time for which juveniles need to be remanded. To that end, the Bill puts it beyond doubt that custody time limits made under the Prosecution of Offences Act 1985 apply in all cases where juveniles are refused bail. A further way of reducing reliance on secure remands is the development of alternative ways of dealing with remanded juveniles short of removing them from home. Examples are bail support schemes which give support and supervision to remanded juveniles in the community. The Government have commended the development of such schemes.
All those steps will help to reduce the need to use secure places. But it is likely that some new local authority secure accommodation will be needed. Given the difficulty in predicting the effect of the steps I have already mentioned, it is not possible to be absolutely certain about the numbers. The noble Lord, Lord Harris of Greenwich, referred to 30 to 35 secure places for juveniles on remand over the next four years. The Government agree with that figure.
Secure accommodation is a specialist and sophisticated resource. It takes a considerable time several years—to plan and build a new secure unit. Given the long lead time and the uncertainties of prediction it is not possible to be dogmatic about the date by which it will be possible to end prison juvenile remands. It is the nature of the unforeseen that it is not possible to predict it. We all recognise the need to protect the public. The Government's ability to meet that need could be put in jeopardy by setting a firm and unsuitable date for ending prison juvenile remands. To do so would be unwise. But the Government are no less anxious than anyone else to end prison remands as soon as it is reasonably practicable to do so. Measures are in hand to achieve a position where it is possible to do that sooner rather than later. However, we should be misguided to set a deadline of the kind proposed in the amendment.
Clearly there will be extra costs. There will be the cost of providing the additional secure accommodation which is needed; there will be the additional cost of the day-to-day running of the new units and that of looking after other juveniles who do not need secure accommodation but who have to be kept in local authority accommodation. The Government have encouraged the development of bail support schemes for remanded juveniles. There are also costs involved in running those schemes.
Many of the responses to the consultation paper on juvenile remands which led to the provision in the Bill stress the importance of the resource implications of the proposals. We recognise that there are resource implications. The point was made at a meeting which officials of the Department of Health and the Home Office had with the representatives of local authority associations and the Association of Directors of Social

179
Services to discuss the proposals. I accept the importance of resources. That issue is important for local authorities as it is for the Government.
The question of resources will be fully explored. The House will understand that I cannot go into detail about their provision at this stage. We are in discussion with the local authority representatives about their future spending plans. It would be wrong of me to pre-empt the outcome of those discussions. I assure your Lordships that the normal arrangements under which the Government provide 100 per cent. grants for building new secure accommodation will apply to any new places which are needed under the Bill.
The noble Lord, Lord Henderson, asked whether the Government had no power to stop secure accommodation being closed. The provision of secure accommodation is a matter for the local authority. It is for the authority to decide whether or not to keep secure units open. The Government have no power to prevent closure. That is why Clause 55, which puts a duty on local authorities to provide secure accommodation for remanded juveniles, is necessary. I go along with your Lordships as regards the sentiment which lies behind the amendment, but not as regards its practicality.
7.30 p.m.
Baroness Faithfull: My Lords, I thank my noble friend the Minister for saying how committed the Home Office is to preventing children on remand going to prison. But his speech reveals a situation which is something like the progress of a tortoise. I have never heard of anything so slow and difficult. Where there is a will there is a way. I speak with great feeling about this matter. I have been a director of social services and I have had to get a scheme going not within four years, nor yet one year, but within six months. I should have thought that it was possible to do something. By suggesting four years one was being abominably liberal. I would have liked a period of two years or even shorter than that. I agree with the noble Lord, Lord Henderson. I can tell my noble friend the Minister of one place which is empty at the moment. If the Home Office was really keen it could make inquiries about that place, which could be used as a secure unit.
In the past local authorities ran remand homes, accommodation and staff to cater for young people in order to prevent them going to prison. It is very regrettable that the situation has grown up as it has and that it has been necessary to send children to prison. The whole House has indicated how serious is the problem, which should not continue. I have no intention of dividing the House at this stage of the night. As my noble friend the Minister has given an assurance that the Home Office will move, even at a slow rate, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Reay: My Lords, I beg to move that further consideration on Report be now adjourned. In
180
moving this Motion, perhaps I may suggest that the Report stage resumes not earlier than twenty-five minutes before nine o'clock.
Moved accordingly, and, on Question, Motion agreed to.

Criminal Procedure (Insanity and Unfitness to Plead) Bill
7.34 p.m.
Lord Allen of Abbeydale: My Lords, I beg to move that this Bill be now read a second time.
I welcome the opportunity of speaking to this Motion about a Bill which has already passed through another place. I believe that it carries out a worthwhile and overdue measure of reform in regard to mentally vulnerable people who get caught up in our criminal justice system. Perhaps I may be forgiven for recalling that when I joined the Home Office at what now seems a very long time ago, one of my first concerns was responsibility relating to Broadmoor. One of my last official activities was to give the inaugural Home Office evidence to the Butler Committee on Mentally Abnormal Offenders. Since then a long association with MENCAP has involved me in cases where the shortcomings of the present law have become only too glaringly apparent.
This Bill is concerned with two main categories of person; namely, those who are unfit to plead in relation to a criminal charge against them, and those who, under a special verdict, are found not guilty by reason of insanity. At present under the Criminal Procedure (Insanity) Act 1964, which I recall was based on a report made by the Criminal Law Revision Committee, once a person has been found unfit to plead because of mental disorder, the court has no option but to order the individual to be detained in hospital. That must be done regardless of the gravity of the charge and whether the individual might be better cared for in the community. That must also be done without any trial or any other means of establishing whether the individual committed the act which forms the basis of the charge.
For example, when the mentally handicapped are involved it has turned out that the individual has been so anxious to please the police and tell them what they seem to want to be told that he or she has confessed to a crime which it later turns out was committed by somebody else. Equally, if the special verdict is recorded of not guilty by reason of insanity, again the court has no alternative; it must make an order committing the individual to hospital with restrictions and without limitation of time. Thanks to humane administration, in practice discharge from the hospital may not be too prolonged. But sometimes detention continues for a very long time indeed. There is certainly no alternative to starting in hospital. There is nothing like a guarantee or certainty of eventual discharge.
The Butler Committee concluded that changes in the law were needed under both heads. Here we are at last, 16 years after the committee's report, doing just that. The Bill proposes two main changes. I am

181
looking at the new Section 4(A) which is provided for in Clause 2. Provision is made that where the accused is found to be unfit to be tried there is to be a determination by a jury whether the accused actually committed the act which forms the basis of the charge.
This "trial" will look at the evidence presented by the prosecution and defence, but not at the intentions of the accused since mens rea is meaningless for someone who is unfit to plead. If the jury is satisfied that the accused did the act it will make a finding to that effect. This is quite a new legal concept and is not at all the same as having been found guilty of a criminal offence. If the jury is not satisfied that the accused did the act, it will return a verdict of acquittal.
Secondly,—and this change applies both to someone who has been found to be unfit to plead and has done the act charged against him and also to someone found not guilty by reason of insanity—the options open to the court are greatly widened. The obligation to commit to hospital under restrictions will continue to apply in cases of murder. Otherwise it will be open to the court to commit to hospital with or without restrictions; or to make a guardianship order under the Mental Health Act 1983; or make a supervision and treatment order as set out in the second schedule to the Bill, or an order for absolute discharge.
The 1964 Act was passed with the best of motives to try and avoid mentally affected people getting involved with the full rigours of the criminal law system. However, the fact that, under either heading, the result was committal to hospital—possibly for a long time—has meant that considerable ingenuity has been displayed in avoiding both submissions of unfitness to plead and also the special verdict with its label of insanity. It would be better sometimes to plead guilty arid hope for a non-custodial sentence than face the certainty of-committal to hospital for an unknown period.
I shall not trouble your Lordships with details of individual cases, but suffice to say that there are examples of individuals staying in hospital when they could perfectly well have been looked after in the community; and others where an individual has been committed to hospital and kept there for years when he may never have committed the act alleged against him and when it is now quite impossible to discover the truth.
It is not therefore surprising that there have not been all that many cases in recent years where a defence has been pursued under either of these heads. There must have been, beyond doubt, a number of cases where the mental state of the accused was such that he or she ought to have had protection of the kind contemplated by the 1964 Act, but where the defence made sure that the issue of mental condition was not raised. The Bill provides an effective remedy.
Those are the two main changes. There are, however, two others to which I should like briefly to refer. First, at present there is no requirement on the court to consider expert medical evidence when the special verdict of not guilty by reason of insanity is in question. Clause 1 puts that right. Secondly, the first schedule to the Bill will make it possible where an
182
individual who has been found unfit to plead recovers to the extent that he can properly stand his trial—and the proportion of those who, after treatment, recover to this extent has been going up—for him to be brought direct to court without, as at present, having to be returned to prison first.
It would be possible to say a great deal more about this Bill which is necessarily a little complicated. However, I hope that I have said enough to show why I think that its main purposes should commend themselves to the House. The Law Society has taken a leading part in preparing the Bill, which is supported by a very wide range of bodies. As I understand it, the Bill is looked on with favour by the Government. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Lord Allen of Abbeydale.)
7.45 p.m.
Lord Mottistone: My Lords, we are grateful to the noble Lord, Lord Allen of Abbeydale, for introducing the Bill so clearly and for piloting it through this House. The House will be aware that in these matters I am advised by the National Schizophrenia Fellowship who have put me in touch with Dr. Tidmarsh who is a consultant psychiatrist at Broadmoor. I shall enlarge slightly on what Lord Allen has had to say by briefly quoting some of the figures that have been given to me by Dr. Tidmarsh.
From 1975 to 1988 only 49 persons were found insane, an average of 3.5 each year. Half of those were charged with non-fatal assaults and another one-third with murder. The diagnosis in half the cases was schizophrenia; hence the interest of my friends in the National Schizophrenia Fellowship. Most had had previous hospital admissions and criminal records. Not surprisingly, in view of the seriousness of the charge, 40 per cent. went to a special hospital, but the rest did not. Those that went to a special hospital tended to stay for a long time, but even they could be released fairly quickly. Thus, one man who had killed his wife was released in three years and another who had killed his father was released in seven years.
Patients who went to local hospitals could also be released very quickly. It has been described that a schizophrenic had been absolutely discharged after four weeks; and two burglars, one with insane automatism resulting from delirium tremens and another with epileptic automatism, were both released in under six weeks. The Home Secretary therefore is not inflexible either about where he sends patients or how long they stay. The special verdict does not automatically mean—as its detractors like to suggest—an infinitely long stay in a special hospital.
That is probably enough of the basis. Perhaps I may just give the conclusions which it has been suggested to me relate to the Bill. The findings do not indicate that the 1964 Act causes injustice to a great many people. It can and is being operated in a humane fashion. However, its provisions are circumscribed and narrow and could well be widened along the lines suggested in Lord Butler's report which was published

183
in 1975 and to which the noble Lord, Lord Allen, referred. In the opinion of the writer, that should have been done long ago.
I particularly welcome the range of options provided in the Bill for disposal of those found to be under disability or insane at the time of the offence. A hospital order with restrictions was never right for every offender. I also welcome the provision for a trial of the facts for those found under disability, while every effort should be made to remove the disability by proper treatment. That is now being done in at least two-thirds of cases. There will always be those who do not improve sufficiently to be tried. In such cases there is the possibility of a grave injustice. Although I believe such injustices are very rare events, that is not a reason for preventing them.
This is not a big Bill and it is thoroughly to be commended to the House. I trust very much that the Government will see fit to continue to support it throughout the rest of its passage and that it will not be long before it becomes law.
7.48 p.m.
Lord Carnock: My Lords, this is a useful Bill which will help a small but severely disabled section of the community. It has my full support. As has been said, the work in connection with the preparation of the Bill has been carried out by the Law Society and in particular by the sub-committee for mental health. I am myself a solicitor and I have been informed by the Law Society that it is very grateful indeed to the noble Lord, Lord Allen of Abbeydale, for sponsoring the Bill in this House.
7.49 p.m.
Lord Mishcon: My Lords, I am so glad to be able to follow a noble colleague in thanking the Law Society, of which we are both proud to be members, for its association with the Bill. Thanks are indeed due to the noble Lord, Lord Allen of Abbeydale, not for the first or second time in this House, for sponsoring a measure of such social content. We are deeply grateful to him as indeed we are to Mr. John Greenway, the honourable Member for Rydale, who introduced the Bill in another place.
It is a good Bill. If one is met with a good Bill, the less one tries to say about it to one's colleagues the better, given that one wants to see it on the statute book as soon as possible. However, I wish to raise one or two points of which I have given the Minister some notice. The first thing one observes about the Bill is that it is not retroactive in spite of all the unhappy situations that have arisen as a result of the law being in the state that it is. Has the Home Office, as one hears, conducted a review of cases which would be covered by the Bill were it to be retroactive? Can the Minister inform us how far that review has progressed? I am sure that the review will have as its purpose the giving of the benefit, so far as is possible, of what is contained in the Bill to those present cases which have not had the benefit of the Bill and will not have that benefit.
184
My other two points are technical. However, I feel I ought to raise them just in case some improvement to the Bill is necessary. I certainly do not want to take up any time in moving unnecessary amendments. As the noble Lord, Lord Allen of Abbeydale, told us, the provisions of new Section 4A introduce into our criminal procedure for the first time, as I know it, a system whereby a jury will decide on certain facts when someone is unfit for trial. What it has to do is set out in new Section 4A. Subsection (2) states:
"The trial shall not proceed or further proceed but it shall be determined by a jury",
whether, on the facts, the act complained of or the omission complained of has in fact been committed. If satisfied that it has, the Bill states that the jury shall decide that the act has been committed by the person, if I may use the phrase, before the court, even though he is unfit to plead. Subsection (4) states that if the jury finds that the act has not been committed or the omission is not there, it,
"shall return a verdict of acquittal as if on the count in question the trial had proceeded to a conclusion".
At first sight that looks to be a complete negation of what is stated in subsection (2):
"The trial shall not proceed or further proceed".
The statement is made that the count in question shall be dealt with as though the trial had proceeded to a conclusion. At first sight it seems to be a contradiction in terms. It is not just that which worries me. What will happen if there is an acquittal in accordance with new Section 4A as though the trial had proceeded to a conclusion but the person who is unfit to plead recovers and confesses that he did the act, in spite of the acquittal? What will happen if new evidence comes to light which shows that there was a commission of the act when the person was in full command of his mental state and would at the time of commission of the act have been fit to plead? What will happen in those circumstances? There is a doctrine of our criminal law which is sacred in our tradition. I refer to the doctrine of autrefois acquit. If, as the Bill states, the person has been acquitted and it is as though the trial had been concluded, can he in spite of those circumstances be tried? Can he be charged and tried? Does the defence of autrefois acquit apply?
Let us take the reverse situation. Let us take it for granted that instead of finding that there should be an acquittal there is a finding that he did in fact commit the act. Let us say that it is a criminal act. The person concerned recovers and says, "This is quite absurd. If only I had been able to go to my trial I would have been able to show, as I can show you now, that I was in Birmingham when this act was committed—there is complete evidence that I was—and I am supposed to have committed this offence in Cardiff". What is the procedure for upsetting the finding of the jury that the act was committed by this person? I raise these matters on a perusal of the Bill only to ensure that we do not fall into any error. The Bill is a valuable Bill. That is my only purpose. It is not to quibble or to delay.
My final observation before I sit down is to welcome what the BMA has said of the Bill in approving of it. The BMA believes that it is most likely going to mean that more patients will require

185
care and that more doctors and psychiatrists will be needed. I hope that in supporting the Bill the Government will say that the support will be there for all the personnel who are needed.
7.57 p.m.
Lord Reay: My Lords, the Government fully support the Bill, which reforms the Criminal Procedure (Insanity) Act 1964. As the noble Lord, Lord Allen of Abbeydale, explained, the 1964 Act deals with two categories of people: those who, because of their mental state, are found unfit to plead to the charges made against them, and those who are found not guilty by reason of insanity. The latter is sometimes referred to as the "special verdict".
Where an accused person is found unfit to plead there is no requirement for the Crown Court to test the case against that person in order to satisfy itself that he committed the offence. The consequence is that at present an innocent person might in theory be sent to, and detained in, hospital even though he did not commit the offence in question. Indeed, in one such case the government later paid compensation.
The Butler Committee on Mentally Abnormal Offenders, which reported in 1975, recognised the possible injustice that might be caused and recommended that there should be what it called a trial of the facts. The Bill adopts this recommendation. Clause 2 provides that following a finding of unfitness to plead, the court should inquire into the circumstances of the offence in order to satisfy itself that tale accused did the act or made the omission charged. Where the court is so satisfied, it should make a finding to that effect and then consider how the case should be disposed of. Where it is not so satisfied, a verdict of acquittal should be returned. The Government are satisfied that this reform is a workable one and that it represents a fair and balanced solution to the problem.
The Bill also tackles what is generally regarded as a fundamental inflexibility in the current provisions. Under the 1964 Act, where an accused person is found unfit to plead, or not guilty by reason of insanity, the court has no option but to send that person to hospital for an indefinite period as a restricted patient, albeit with safeguards. Patients do have a right to apply to an independent mental health review tribunal for discharge. The Home Secretary can also discharge the patient at any time if he feels that hospital treatment is unnecessary and that the patient does not represent a risk to public safety.
But there is a growing awareness that in certain cases compulsory hospitalisation at the outset has been neither appropriate nor necessary. The Butler Committee also addressed this issue and recommended that, in addition to a hospital disposal, courts should have the power to make any of a number of social and medical orders. To a large extent, provisions in Clause 3 of the Bill are modelled on those recommendations. It is now proposed that the courts should be able to choose between a range of disposal options: admission to hospital, with or
186
without restrictions; a guardianship order; a supervision or treatment order; or absolute discharge. The Government believe that this is a sensible reform.
I can assure the House that extensive consultation has taken place over the proposals set out in the Bill. The issues involved are complex, and it has not been easy to devise provisions which not only protect the position of severely mentally disordered people within the criminal justice system, but also provide adequate safeguards for the general public. The proposals have been extremely well received, especially by the judiciary and the medical profession. Numerous other interested organisations have also confirmed their support. Indeed, the Bill is somewhat unusual in that, so far as I am aware, no objections to it whatever have been received. That in itself demonstrates the need for, and the strength of, the proposed reforms.
I shall deal with the questions asked by the noble Lord, Lord Mishcon. I am grateful to him for having given me prior notice of them. He asked about a review currently being conducted by the Home Office. Research commissioned by the Home Office was carried out by two independent researchers into how the 1964 Act has been administered. The results have been published. The researchers examined all cases of persons found to be unfit to plead from 1976 to 1989. On the whole, the research revealed that the Home Office managed the cases appropriately and sensibly. However, the results suggested that there was a need for a trial of the facts. In particular, it was found that many people had been detained for lengthy periods of time for trivial offences. That finding supports the need for a wider range of disposal options.
I should add that each individual case is kept under regular review. Moreover, patients have a right to apply for a discharge to an independent mental health review tribunal at specified intervals. As I said, the Home Secretary can also discharge a patient at any time if he considers that hospital treatment is no longer necessary and that the person concerned does not pose a risk to public safety. Further, if the Home Secretary, after consultations with the responsible medical officer, is satisfied that the person can properly be tried, he may remit him for trial.
The noble Lord, Lord Mishcon, then asked me two further questions. He asked what would happen if a patient who was acquitted during a trial of the facts subsequently recovered and admitted his guilt. The person would be in the same position as would be the case in regard to an acquittal in any other criminal proceedings—that is to say, such a patient cannot subsequently be tried if he recovers.
The noble Lord then asked me what the position would be in the reverse case. He referred to a trial of the facts where the court was satisfied that the person concerned committed the act, or where the person admitted the charge. He asked what the position would be if the patient subsequently recovered and fresh evidence came to light indicating that he might be innocent. I have a two-part answer to the question. The patient can be remitted to stand trial from hospital when and if he becomes fit to stand trial. The Home Secretary can remit the patient to stand trial—and I understand would normally do so;

187
irrespective of any new evidence coming to light—but only in the event of his recovery. Such advice to the Home Secretary would come from the responsible medical officer. I should add that the Home Secretary would liaise with the Crown Prosecution Service.
If fresh evidence comes to light in a particular case, a verdict of the trial of facts can be referred to the Court of Appeal by the Home Secretary. That can happen even if the accused does not become fit for trial. That would be a matter for the discretion of the Home Secretary. I hope that I have answered fully the noble Lord's questions.
It only remains for me to congratulate warmly the Law Society for promoting the Bill; the honourable Member for Rydale for sponsoring it in another place; and the noble Lord, Lord Allen of Abbeydale, for introducing it to the House. I commend the Bill to the House and earnestly hope that it will become law very quickly.
8.5 p.m.
Lord Allen of Abbeydale: My Lords, it only remains for me to thank those who have taken part in the debate and to say how pleased I am that the Bill has received such a general welcome. I am glad that it fell to the Minister to answer the searching questions posed by the noble Lord, Lord Mishcon. I believe that I may have given the same answers; but I listened with respect and agreement to the words which fell from the Minister's lips. I invite the House to give the Bill a Second Reading.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Wildlife and Countryside (Amendment) Bill
8.6 p.m.
Baroness Nicol: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Baroness Nicol.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD ALPORT in the Chair.]
Clauses 1 and 2 agreed to.
Clause 3 [Short title, interpretation and extent]:
Baroness Blatch Baroness Blatch moved Amendment No. 1:
Page 2, line 26, at end insert:
("( ) This Act shall come into force at the end of the period of two months beginning with the day it is passed.").
The noble Baroness said: In speaking to this amendment, I shall, with the leave of the Committee, speak also to Amendment No. 2.
The noble Baroness, Lady Nicol, is aware of the Government's wholehearted support for the Bill which would make a useful addition to the already stringent controls in the Wildlife and Countryside Act 1981 for the protection of wildlife. We share her anxiety about the illegal killing of wild birds and
188
animals, particularly where cruel or indiscriminate methods are used. The Bill would make people who manage or oversee land responsible for ensuring that they or their employees do not use unlawful means to kill wildlife.
Members of the Committee will be aware that I gave notice in the debate on Second Reading of the Bill that the Government proposed to introduce two further minor amendments to bring the Bill into line with other legislation on the creation of new offences. These amendments have been tabled. The first would ensure that the Bill did not come into force until two months after Royal Assent. It is customary to allow such a period to give the public an opportunity to become aware of the changes to the law before they start to operate. I commend this amendment to the House.
On Second Reading, the noble Viscount, Lord Falkland, raised the question of an amnesty period for those who have stocks of unwanted pesticides so as to allow those pesticides to be withdrawn. The Bill of course does not change the law relating to the holding and storage of pesticides. We do not think that an amnesty is necessary. However, the two-month period following Royal Assent would enable landowners to re-assess their position and that of their employees before the owners themselves become liable for their employees' actions.
Although we recognise the fears expressed by the noble Baroness, Lady Nicol, on Second Reading that there might be an increase in the number of poisoning incidents in the period before the Act becomes operative, I should stress that it is already an offence under the 1981 Act to use poisons on wildlife, and offenders face heavy penalties on conviction. The passing of the Bill does not affect that in any way.
I assure Members of the Committee that officials of my department are in touch with MAFF on the whole question of safe use, storage and disposal of pesticides. It is a complicated subject governed by various pieces of legislation and regulations, and thought is being given to ways to make people more aware of the safe management of pesticides. I do not think that it would be right to widen this debate into such a technical area. The best advice that I can give to anyone who wishes to find out how to dispose of poisons safely is to contact the waste disposal department of the relevant local authority.
The Committee may be aware that my department is very much involved in a MAFF publicity campaign against illegal poisoning of wildlife. The campaign which was launched on 6th March aims to make the abuse of pesticides less acceptable and desirable as a form of predator control. It will highlight the facts that the misuse of pesticides is cruel, dangerous to humans as well as animals, a threat to wildlife, illegal and unnecessary.
The second minor amendment would prevent the Bill, when enacted, from operating retrospectively. Anything done prior to the Act would not become an offence; only those actions taking place after the Act comes into force would be caught by the new provisions. I beg to move.
Baroness Nicol: I am grateful to the Minister for tabling the amendments, both of which are acceptable. As she reminded us, and as I stress, the protection afforded by the 1981 Act stands and therefore the two months which have been discussed do not provide a period of time during which there is a licence to kill.
On the second amendment, retrospective legislation is almost always unjust. I was a little surprised to find that the Government felt it necessary to spell that out so clearly in this case. That amendment too is acceptable.
On Question, amendment agreed to.
Baroness Watch Baroness Watch moved Amendment No. 2:
Page 2, line 26, at end insert:
("( ) This Act shall not have effect in relation to anything done 17efore it comes into force.").
On Question, amendment agreed to.
Clause 3, as amended, agreed to.
House resumed: Bill reported with amendments.
The Earl of Strathmore and Kinghorne: I beg to move that the House do adjourn during pleasure until twenty-five minutes to nine.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.11 to 8.35 p.m.]

Criminal Justice Bill
Consideration of amendments on Report resumed on Clause 56.
Lord Richard Lord Richard moved Amendment No. 86G:
Page 40, line 26, at end insert:
("(5A) A court shall not remand a young person who is not legally represented in that court to a remand centre or prison under subsection (4) above unless either—

(i) he applied for legal aid and the application was refused on the ground that it did not appear his means were such that he required assistance; or

(ii) having been informed of his right to apply for legal aid and had the opportunity to do so, he refused or failed to apply."").

The noble Lord said: My Lords, this amendment would prohibit the remanding in custody of a juvenile who has not been offered legal representation. At present, it is mandatory for an offender under the age of 21 to be offered legal representation before he can be given a custodial sentence. The arguments in favour of such a requirement are even more powerful in relation to imposing custody on young people who have not yet been found guilty of an offence, particularly as the conditions in which they are held on remand in overcrowded, insanitary prisons are much worse than those for sentenced teenagers in young offender institutions.
Legal representation can help to ensure that proceedings are clarified for the juvenile, with a clear presentation of any considerations relevant to the case for bail; that submissions by the prosecution can be scrutinised for inaccuracies and challenged if necessary; that efforts can be made to pursue the availability of a hostel or other residential place; or to take other steps to improve the young person's bail prospects.
It is submitted that anyone under 17 who is at risk of being deprived of his liberty and subjected to the conditions in our local prisons and remand centres should have the same right to legal representation as a young offender facing a custodial sentence. I beg to move.
Earl Ferrers: My Lords, the noble Lord explained that the amendment closely follows a similar requirement in the Criminal Justice Act 1982 for legal representation for young offenders before they are given a custodial sentence. I see the force in the noble Lord's argument that legal representation, or at any rate the chance to refuse it before being placed in custody, is at least as important for the unconvicted juvenile as it is for the convicted young offender.
My understanding is that in almost all cases juveniles will be legally represented at their remand hearings. To that extent, the amendment merely confirms existing practice. However, I can see that there may be some advantage in making clear statutory provision for this and I am quite happy to take the amendment away and consider it more carefully. If I find that there is a case for proceeding along those lines I shall get in touch with the noble Lord and the Government will table their own amendment at Third Reading.
Lord Richard: My Lords, what a good omen for the rest of the evening! I thank the noble Earl very much indeed.
Amendment, by leave, withdrawn.
[Amendment No. 86H not moved.]
Earl Ferrers Earl Ferrers moved Amendment No. 86J:
After Clause 57, insert the following new clause:
Custodial sentences under 1933 Act
(" . Section 53(2) of the 1933 Act (punishment of certain grave crimes) shall have effect, in relation to a person who has attained the age of 16, as if the reference to any offence punishable in the case of an adult with imprisonment for 14 years or more, not being an offence the sentence for which is fixed by law, included a reference to an offence under section 14 of the Sexual Offences Act 1956 (indecent assault on a woman).").
The noble Earl said: My Lords, after the last amendment, the smile on the face of the tiger is a saying worth remembering! I beg to move Amendment No. 86J and at the same time speak to Amendment No. 96A.
The provisions of the Bill make important changes in the arrangements for dealing with 16 and 17 year-old offenders. At present, 16 year-olds are regarded as juveniles and are normally dealt with in the juvenile court, whereas 17 year-olds are dealt with in the adult court system. The Bill's provisions provide for 17 year-olds to be brought within the juvenile system and for 16 and 17 year-olds to be treated as a special group within that system.
By bringing 17 year-olds into the new youth courts system, we are making significant changes to the custodial sentences that will be available for them. For all but the most serious offences, the maximum custodial sentence available will be 12 months' detention in a young offender institution (as it already is for those under 17). In the case of serious offences—those carrying a maximum prison sentence for

191
adults of 14 years or more—longer sentences will be available under Section 53 of the Children and Young Persons Act 1933. However, one of the consequences of these changes is to prevent the courts imposing a custodial sentence of more than 12 months on a 17 year-old who is convicted of an indecent assault on a woman, no matter how serious that offence is.
Indecent assault carries a maximum prison sentence of 10 years for an adult and a 17 year-old could at present receive a custodial penalty of any length up to 10 years. However, the maximum prison sentence of 10 years means that indecent assault would not come within the scope of Section 53 of the 1933 Act, so under the Bill's provisions the maximum custodial penalty available for a 16 or 17 year-old would be only 12 months.
As I am sure your Lordships will agree, indecent assault can be a very serious matter. Some indecent assaults are akin to rape. Offences of this kind can cause serious harm and distress to their victims. While such offences are not often committed by those as young as 16 or 17, some people of this age do commit indecent assaults and occasionally quite serious assaults. Sixteen and 17 year-olds can be just as mature in this respect as 18 year-olds.
In such circumstances, we think the courts must have available to them the option of a custodial sentence long enough to mark the seriousness of the offence and to protect the public from serious harm. This is what Amendment No. 86J achieves. It brings the offence of indecent assault on a woman within the scope of Section 53 of the 1933 Act for offenders who are 16 or 17 at the time of conviction. Amendment No. 96A is simply a consequential transitional provision.
We do not expect that the courts will often need to use these powers to give a custodial sentence of longer than 12 months for this offence. However, we think it is desirable they should have the ability to do so. I commend the amendment to the House.
On Question, amendment agreed to.
Lord Richard Lord Richard moved Amendment No. 86K:
After Clause 57, insert the following new clause:
("Young offenders: long custodial sentences
The following subsection shall be substituted for section 53(2) of the Children and Young Persons Act 1933—
'(2) Where a child or young person is convicted on indictment of any violent or sexual offence which is punishable in the case of an adult with imprisonment for fourteen years or more, not being an offence the sentence for which is fixed by law, and the court is of opinion that none of the other methods in which the case may legally be dealt with is suitable, the court may sentence the offender to be detained for such period not exceeding the maximum term of imprisonment with which the offence is punishable in the case of an adult as may be specified in the sentence; and where such a sentence has been passed the child or young person shall, during the period, notwithstanding anything in the other provisions of this Act be liable to be detained in such place and on such conditions as the Secretary of State may direct".").
The noble Lord said: My Lords, this new clause would restrict the use of Section 53 of the 1933 Children and Young Persons Act to serious offences against the person. The current position is that for offenders under 17 the maximum term of detention
192
which can be imposed in a young offender institution is 12 months. The only way in which a juvenile can be given a sentence longer than 12 months is under Section 53 of the 1933 Act. Section 53(1) provides that a child convicted of murder shall be sentenced to be detained "during Her Majesty's pleasure". Section 53(2) provides that if a juvenile is found guilty on indictment of an offence for which an adult could receive 14 years' imprisonment, the court may sentence the offender to be detained for a period not exceeding the maximum term of imprisonment for the offence in such place and on such conditions as the Secretary of State may direct.
I think the House would agree that there are powerful reasons for keeping within strict bounds the exceptions made to the 12 months' maximum. Sentences exceeding 12 months should in our view be avoided except where juveniles must be detained for a long time because they are a physical danger to others, in which case the use of Section 53 of the 1933 Act is appropriate. A contrary opinion is sometimes advanced that this view gives excessive weight to the interests of the juveniles and insufficient to the public interest. However, it is surely in no one's interest to use methods which are likely to increase young people's propensity to reoffend.
In March 1986, the Home Office published a discussion paper entitled Custodial Sentences for Young Offenders. This pointed out that the statutory definition of Section 53, as well as covering grave offences such as homicide, rape and causing grievous bodily harm with intent, also covers,
"a range of (mainly property) offences such as handling stolen goods and burglary, for which, arguably, the severe sanctions it provides are not altogether appropriate in the case of a juvenile".
One of the difficulties has been caused by the current guideline judgment governing the use of Section 53(2) in the Court of Appeal case of R. v. Fairhurst and others (1986), where the Lord Chief Justice laid down guidelines on the use of the section. He said that it was not necessary in using Section 53(2),
"that the crime committed should be one of exceptional gravity, such as attempted murder, manslaughter, wounding with intent, armed robbery, or the like".
The court upheld the use of Section 53 in some cases of burglary which were then before it. Among the sentences it upheld were sentences of five years' detention for a series of non-violent burglaries of shops and offices by two boys aged 15 and 16. It is submitted that it is inappropriate to sentence juveniles under Section 53 for burglary offences except in the case of aggravated burglary—that is, burglary accompanied by violence, for which a sentence under Section 53 would still be available under this new clause. I beg to move.
8.45 p.m.
Earl Ferrers: My Lords, the effect of this amendment would be to prevent the courts from imposing a custodial sentence longer than 12 months on a juvenile offender for any offence other than the most serious violent and sexual offences. It would in particular mean that the longest custodial sentence

193
that could be imposed for an offence of domestic burglary—no matter how serious that offence was—would be a sentence of 12 months' detention in a youn3 offender institution. If the offender behaved himself, he would be out after six months.
Custodial sentences under Section 53 of the 1933 Act are used for only a relatively small number of offenders—about 150 young people receive a sentence of this kind each year. Many of these young people have committed violent or sexual offences. But, a significant proportion have been convicted of non-Violent and non-sexual offences. The most common of these is domestic burglary. The courts clearly consider—quite rightly, in my view—that the seriousness of some offences of domestic burglary does warrant a custodial sentence of longer than 12 months. And, I do not think that it would be right to prevent them from using such powers. I suggest to your Lordships that the public would also find it hard to understand why we were removing the sanction of a medium to long custodial sentence for severe cases of dome3tic burglary. Such offences can cause very great distress to those who are the victims of them—particularly those victims who are elderly and living alone.
Under the Bill, detentions under Section 53 will not be available for non-domestic burglary because the maximum penalty for the offence is reduced from 14 to 10 years by Clause 25. We should also be clear that the effect of the amendment would not simply be to prevent the use of Section 53 for youngsters of 14 or 15 who are convicted of burglary. It would also prevent the use of Section 53 for 16 and 17 year-olds.
I understand the noble Lord's concern to minimise the number of young offenders who receive long custodial sentences. We should all like to see that number reduced. However, I do not think the right way to achieve that is by limiting the powers of the courts to such an extent that they are unable to mark properly the seriousness of the worst kinds of property offence.
Lord Richard: My Lords, I am sorry the noble Earl is spoiling his good record. I wish to put two points to him. First, it appears that what he has just said runs rather contrary to the discussion paper which the Home Office published in March 1986. I realise that was only a discussion paper but it set out a point of view which was somewhat different to the one which the noble Earl has just expressed.
Secondly, would it not be possible for the Government to draft a clause which kept Section 53 for what the noble Earl described as serious domestic burglaries, but excluded that section for the other property offences for which it is now available? I hope the noble Earl will feel able to consider that possibility and will confirm that he is willing to do so. If that is the case, I shall be pleased to withdraw the amendment.
Earl Ferrers: My Lords, on the first point, I remind the noble Lord, Lord Richard, that sometimes pieces of music are referred to as variations on a theme. I do not believe that anything I said was different to the
194
views expressed in the consultation document. I shall certainly look at the point that he raised, and I shall be in touch with him.
Lord Richard: My Lords, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 60 [Attendance centre orders]:
Lord Morris of Castle Morris Lord Morris of Castle Morris moved Amendment No. 87:
Page 42, line 32, at beginning insert:
("(1A) In section 16 of the 1982 Act (provisions, regulation and management of attendance centres) for subsection (1) there shall be substituted—
"(1) The Secretary of State shall secure, by provision of grants to police authorities, local authorities and voluntary organisations or otherwise, that there are sufficient attendance centres in each area to meet the likely sentencing needs of juvenile courts in respect of both male and female young offenders.".").
The noble Lord said: My Lords, we have been here before, but not for some time so a little post-prandial refreshment may not be out of place. I had the privilege of inviting your Lordships' attention to the problems and opportunities of attendance centres when I spoke on the subject on 16th April (at col. 1398 of the Official Report). I said then:
"We believe strongly in attendance centres. For 40 years and more they have been cheap, local and realistic responses to certain kinds of crime".
I have not changed my mind since then.
Clause 60 of the Bill changes the law on attendance centre orders but does not address the point that there are inadequate numbers of attendance centres in the country, particularly for girls. Under Section 17 of the Criminal Justice Act 1982 an attendance centre order can be given only if the court has been notified that a centre is available for the reception of persons of the offender's description. At present there are more than 100 attendance centres for the under-17s, mostly in our large towns, but I think that I am right in saying that more than 90 per cent. of those are for boys only.
The Government may argue, and indeed have argued in another place, that far more boys than girls commit offences and that by providing 90 per cent. of attendance centres for boys only, and 10 per cent. which cater for girls they are accurately, nay efficiently and even perhaps delicately, reflecting the distribution of offences and thus ensuring efficiency and value for money.
That is fallacious. If, for example, the 10 per cent. of attendance centres which cater for girls or for boys and girls were all to be situated in Birmingham, that would be useless to a girl who had committed an offence in her native town of Southampton. Unless attendance centres are as available to girls as they are to boys, the girls will simply not turn up, even if the courts make orders that they shall do so. Magistrates will therefore perforce punish them for their neglect.
That means that in effect the Government are operating sex discrimination in sentencing law for young offenders. An attendance centre order is, after all, part of the unofficial sentencing tariff. If one misses one rung of that ladder, one is likely to be shifted up to the next rung. Therefore a girl offender may end up with a custodial sentence because an attendance centre

195
place was simply not available in her particular case. That is also true for male offenders where the attendance centre is full or there is no means of travelling to the nearest one. That is obviously unfair.
Section 16(1) of the 1982 Act currently provides that:
"The Secretary of State may continue to provide attendance centres".
The amendment replaces that with the provision that central government "shall secure" that there are sufficient centres. Presently those are run mostly by police authorities, but there is no reason why others should not be involved as well. If the Government are committed to such a sentence, they should also be committed to financing it adequately.
I said that we have been here before. We have—several times. The amendment was tabled at Committee stage in another place. The Minister's reply there leaves room for considerable further thought. I hope that the noble Earl may give it that thought. The Minister in another place said:
"There is no Home Office evidence to show that many girls are getting tougher sentences than they would otherwise get because of a lack of local attendance centres".—[Official Report, Commons, Standing Committee A, 24/1/91; col. 491.]
The fact that there is no research evidence that girls, and boys, in areas without attendance centres might be punished more heavily because of the unavailability of an attendance centre simply suggests to me that that research has not been done. The phraseology is ambiguous. "There is no Home Office evidence to show" could mean that research has been undertaken and has shown that there is no such evidence. Equally, it could mean that no research has been done. I suspect that the latter is the case. Indeed, it is hard to see how it might be undertaken.
Common sense, and I should have thought government policy, suggests that the more alternatives to custody that are available to magistrates, the less likely is a custodial sentence. It is unfair that a particular option is open to some young offenders but is not open to others. I hope that the Minister will feel that something can be done to ease the situation in this case, particularly with reference to girl offenders. I beg to move.
Baroness Faithfull: My Lords, I rise to support the amendment. I have found attendance centres, where they exist, an enormous help in keeping children out of custody. However one point puzzles me. I have run mixed clubs for children on probation, and I have often wondered why we do not have attendance centres for boys and girls together, even if the girls are in a minority. If that were to happen, the girls would attend the attendance centres and so would the boys, and I believe that it would be a much more profitable exercise.
Earl Ferrers: My Lords, attendance centres offer a valuable way of dealing with certain types of convicted young offenders in the community. There are about 115 centres in England and Wales. About 90 are open to young people under the age of 17, and the remainder are open to 17 to 20 year-olds. Most are
196
open on alternative Saturday afternoons, and most—but not all—are run by off-duty police officers on behalf of the Home Office.
The present arrangements ensure that we offer good value for money. In the present financial year, the average cost of a centre is about £13,000 and the average cost of an order is about £210. We are able to maintain those costs at that low level because we are able to direct resources to where they are needed.
When I first saw the amendment of the noble Lord, Lord Morris of Castle Morris, I was not absolutely certain what its purpose was. However, he made it perfectly clear that he thought that attendance centres should be available to all courts throughout the country for all juvenile offenders of both sexes. I do not believe that that would be very sensible. A constructive and viable regime needs a minimum number of young people to attend each session in order to make the scheme work. As a rule of thumb, numbers should probably be in double figures. Most existing centres are based in populous areas and even now we are having to close some because the number of attendance orders does not justify keeping them open. It would be a nonsense to be required to provide centres everywhere since at best many of them would have only two or three offenders at any session and much of the time they would be unused.
Fortunately, there are comparatively few girls and young women in the criminal justice system. What a mercy that is. In 1989 about eight times more young men than young women under 21 were sentenced by the courts for indictable offences. There were about 107,000 young men and only 13,000 young women. There are already 18 attendance centres which cater for a mixed intake of boys and girls under 17.
We keep the position under review; and if the need justified making additional provision for females, we would do so. However, at present the numbers do not justify that. The mixed centres operate where the need for facilities for girls is the greatest, but even there the average number of girls who attend is very low. In half the centres on average only one girl attends, and often there are none. Additional facilities would have to be made available to cater for girls. If more centres were to be opened for girls, there would have to be female staff and separate changing facilities for sport and so forth. It would be a wasteful use of public money to incur the extra costs involved to cater for the very few, if any, female attenders.
The noble Lord, Lord Morris, referred to the fact that girl offenders receive custodial sentences because there is no attendance centre place available. I can assure the noble Lord that that would not be possible under the Bill. A custodial sentence can be given only if the offence is so serious that only such a sentence would be adequate. For a girl who cannot be placed in an attendance centre, other community penalties, such as community service, would be the answer.
I hope for the reasons that I have given, the noble Lord, Lord Morris of Castle Morris, will realise that the Bill would be better without the amendment.
9 p.m.
Lord Morris of Castle Morris: My Lords, I am saddened but not unduly surprised at the Minister's reply. I am grateful to him for telling me that there are 115 or so attendance centres when I thought that there were Only about 100. A 15 per cent. improvement in real terms is something of which the Government could well be proud.
If I heard him correctly, the Minister said that, to be viable, numbers in each attendance centre should be in double figures. If that is the case, does that not discriminate against girls even more? Boys do better in the provision of attendance centres because more of them offend. If more girls offended, more girls would be able to do better out of attendance centre orders.
Earl Ferrers: My Lords, that is a most bizarre argument.
Lord Morris of Castle Morris: My Lords, I do not think that it is because the case of any one girl will be made better or worse by whether she happens to be within the range of an attendance centre which might take her. If she is not, surely she is being discriminated against.
I was not profoundly impressed by the noble Earl's argument about changing facilities being an almost insuperable barrier to producing the kind of attendance centres that we were talking about. It reminds one of the debate that took place in the Athenaeum Club when the unthinkable was proposed namely, that there should be lady members of that club. Several people rose up and said, "We would have to revise the entire plumbing of the Athenaeum at a cost of about half a million pounds". If noble Lords will permit the phrase, the argument simply does not stand up. Nevertheless, I see that I shall not impress the noble Earl on this matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Henderson of Brompton Lord Henderson of Brompton moved Amendment No. 87B:
After Clause 60, insert the following new clause:
Police cautions of young offenders
(" .—(1) Where a police force has substantial, reliable and admissible evidence of an offence which is likely to secure a conviction and the offender admits that he committed the offence, and—

(a) the offender is under 21 but not less than 18 years of age and he consents to the administering of a caution, or

(b) the offender is under 18 but not less than 14 years of age and he and his parent or guardian consent to the administering of a caution, or

(c) the offender is under 14 but not less than 10 years of age and realises that his conduct is seriously wrong, and he and his parent or guardian consent to the administering of a caution,

the police force may, instead of instituting criminal proceedings, caution the offender.
(2) Where an alleged offender is aged under 21, a police force shall not institute, and the Crown Prosecution Service shall not institute or take over, criminal proceedings unless—

(a) there is substantial, reliable and admissible evidence of the offence which is likely to secure a conviction;

(b) a prosecution is necessary in the public interest; and

(c) the offence is a serious one or the offender has been cautioned on at least one previous occasion and it
198
appears to the police force and the Crown Prosecution Service that no other course of action would be appropriate.").

The noble Lord said: My Lords, Amendment No. 87B is concerned with the use of the police caution. I hope that the amendment, which puts the cautioning of young offenders on a statutory basis, will be welcome to all sides of the House and to the Government, given that the Bill is largely designed to keep people out of the criminal justice system. That is exactly what the police caution does.
Unlike the provision in the last amendment, which, as the noble Lord, Lord Morris of Castle Morris, said, had existed for 40 years, the police caution has more or less existed from time immemorial and is a marvellous police institution which has become increasingly formalised. I suggest that the time has now come for it to be recognised in a statutory form.
Perhaps I should first say what a police caution is. It is an important, formal occasion in which a formal, verbal warning is given by a senior police officer to an offender in place—this is the important point—of a prosecution. It is recorded by the police. It may influence their decision on whether to instigate proceedings in the event of the young person offending again, and it may be cited in a subsequent court proceeding.
This is a formidable diversionary tactic.- It is diversionary because it diverts the young person from the criminal justice system. It is formidable because it is given by a senior police officer, usually in the presence of the young offender's parents. It is often supported by intermediate treatment or the recommendation of places for the young person to go where he will be encouraged to lead a more useful life in future. I therefore regard it as a most important addition to the Bill, one of whose primary aims is to keep young people out of the criminal justice system.
A caution is used mainly for two special purposes. The first is to deal quickly and efficiently with less serious offenders. It is clearly inappropriate for serious offenders. There are substantial advantages in saving time and resources, both for the police and for the Crown Prosecution Service. It also frees the courts from having to deal with a vast number of relatively minor and petty offences.
Secondly, the police caution diverts relatively minor offenders from the criminal courts and it reduces their chances of re-offending. It is now widely recognised that, if young people can be kept out of the formal criminal justice system, they are likely not to re-offend and can go on to lead law-abiding lives, partly because they will not have a criminal record, which is a terrible albatross to hang around their necks, and partly because they cannot be corrupted by those whom they would otherwise meet in the prisons.
The background of cautioning has always been open to the police informally. Nowadays it is subject to a Home Office circular which has been updated comparatively recently. I cannot remember whether that was done in 1989 or 1990. However, it is very much Home Office policy and the question arises whether one should not leave well alone. I have carefully considered the matter and I should like the caution to be promoted by statute so that it could be

199
universally applicable in this country and not, so to speak —I say this in no derogatory sense—at the discretion of the local police authority.
I support its discretionary nature in so far as it must be up to the local chief officer of police to decide whether or not it should be done in any one instance. I base my case on the fact that the incidence of its use differs widely throughout the country. In some areas it is used in 75 per cent. of cases; in other areas, the figure is 50 per cent. or lower. It is largely for that reason that I believe that police cautioning should be put on a statutory basis.
I buttress the argument by saying that young adult cautioning rates—that is, of 17 to 20 year-olds—have risen to a far less extent and from a far lower baseline than the cautioning of young offenders. I cannot see any valid reason why young adult offenders should be treated differently from juveniles. They commit very much the same kind of crime. It may well be that if it were put on a statutory basis local police authorities would be far more likely to extend the use of cautioning to the very difficult and important age group of 17 to 20 year-olds. I know that the Home Office agrees because in its circular 59/1990 it states:
"Although a lower cautioning rate for older offenders is to be expected, there is no objective justification for the sharpness of the fall at 17".
As I have mentioned, there is unhappily a wide geographical discrepancy in the extent of cautioning, despite previous Home Office attempts to narrow differences. For instance, in 1989 the Northampton and Essex police forces cautioned 75 per cent. of young male offenders aged 14 to 16 years, while the Greater Manchester force cautioned 50 per cent. and Hampshire 55 per cent. Those figures relate to young male offenders. The same discrepancies occur with girls and across all age groups. I am told that a recent report commissioned by the Home Office found not only large differences in cautioning rates between police forces but equally large variations within police forces.
If cautioning is given full recognition in statute law it will consolidate progress made over the past few years under the Home Office circular system in keeping young people out of courts and allowing them to grow out of offending behaviour without acquiring a criminal record. It will also promote more consistency in the criminal justice system. Inconsistency brings the whole system into disrepute. It cannot be right that someone on one side of the police authority receives a caution and someone on the other side, although he may have committed the same misdemeanour, gets caught up in the criminal justice system.
As noble Lords will see from the Marshalled List of amendments I have support from all round the House. I should like to mention in particular the noble Lord, Lord Hunt, who unfortunately cannot be here today. He has asked me to apologise on his behalf. He has perhaps the best of all possible excuses; he has to attend the Garter ceremony at Windsor. We could not possibly demand his presence in this Chamber when he has been commanded by the Sovereign. The noble Lord, Lord Hunt, is very keen indeed on the use of the
200
police caution and has asked me to say so. He strongly supports the need to have cautioning not only for juveniles but also for young adult offenders. He wants it to be on a statutory basis so as to encourage its development on lines so impressively demonstrated in the North East. I have mentioned other areas where it has been demonstrated to work. It so happens that the noble Lord, Lord Hunt, is the patron of organs in two important areas in the North East: the Sunderland juvenile system and South Tyne. They already operate a voluntary system of police caution which I believe to be a valuable example to the remainder of the country.
The noble Lord, Lord Hunt, by a happy coincidence, but perhaps not surprisingly, is the patron of both organs. In those areas the system is working in practice. It should be working throughout the country. He strongly believes that in order to make it work, and to keep young people out of prison, it should be put on a statutory basis so that one would not have peaks and troughs throughout the country. They should all be peaks.
In that spirit, and in the hope that the amendment will be received sympathetically by the Government, I beg to move.
9.15 p.m.
Baroness Faithfull: My Lords, I support the noble Lord's amendment. The police cautioning system can lead to community care as against custodial care. I cite the clerk to the Northamptonshire County Council, Mr. Greenwell, who started the liaison committees in this country. It has been previously mentioned in the debate today that the Royal Philanthropic Society works with the police in Wandsworth and Surrey in providing a service to both juveniles and their parents. Police cautioning is not the only door to community care but it makes a great difference. It gives the police more encouragement to caution if they know that there is a system to which they can refer the children. In the areas where there is a good cautioning system with good community care the number of juveniles in custody is reduced.
Lord Morris of Castle Morris: My Lords, the amendment is surely no more than a move to bring the law in line with reality. Everyone knows that in every police force officers caution young offenders in precisely the way that the amendment proposes. It is not only juveniles who are cautioned in this way. Perhaps your Lordships will pardon a personal instance. In deepest, darkest West Wales, where I am the principal of St. David's University College, Lampeter, undergraduate members from time to time commit minor offences in a spirit of revelry, drunkenness, or both. I can assure noble Lords that they have no terror of being paraded in front of the principal and harangued for their misdeeds. But if they are cautioned by the local inspector they come back with their tails very firmly between their legs, full of promises of amendment. It is indeed a fearful thing to fall into the hands of our local inspector.
However, the Home Office in the past has preferred to rely on non-statutory guidance on cautioning. There is surely evidence to suggest that a lack of clear

201
statutory provision may not be unconnected with the considerable varieties in cautionary rates, about which we have just heard, between one police area and another. There is advantage in having both statutory provision and non-statutory guidance. I have noticed during the course of the past few days that some of your Lordships—although no one present, I believe—favour wording which includes both belt and braces; no doubt for reasons best known to themselves.
Research by Dr. West and Dr. Farrington of Cambridge University has found that juveniles who are prosecuted are more likely to re-offend than otherwise comparable delinquents who are diverted from judicial proceedings. I believe that we should take up that research with some care. Figures from the Metropolitan Police area and other police areas show that 80 per cent. of juveniles cautioned for a first offence do not come to police notice again. That surely is a good thing. There is much virtue in your Lordships' caution.
Earl Ferrers: My Lords, in his speech the noble Lord, Lord Henderson, made much of the value of cautioning. I do not think that any of us dispute that. I entirely share the views of the noble Lord that cautioning should be used more often and more consistently. Home Office Circular 59/1990 was issued last sun mer. The aim of that circular was to increase the use of cautioning especially for young offenders. The noble Lord, Lord Henderson, also made much of the inconsistency which he said was apparent between police forces arid what he described as a discrepancy of practice.
The Home Office circular was issued to make it more consistent by the introduction of a set of national standards for cautioning. These lay down the criteria for cautioning, which include: that there must be evidence of the offender's guilt sufficient to give a realistic prospect of conviction; that the offender must admit the offence; and that the offender (or, in the case of a juvenile, his parents or guardians) must understand the significance of a caution and give informed consent to being cautioned. In addition, consideration must be given to whether a caution is in the public interest. The statutory criteria proposed in the new clause of the noble Lord, Lord Henderson, cover virtually the same ground.
It is clear from what I have said that the Government have no disagreement with the principle that the amendment seeks to promote concerning cautioning; nor, I believe, do the police themselves. The Home Office circular has been well received by them. Therefore the question is whether or not cautioning should be placed on a statutory footing. Our preference is that it should not be. I know that it has become something of a refrain in these proceedings for me to respond to a request that something should be set out in the legislation by questioning the need to do so, but your Lordships are the first to criticise the volume of legislation that comes forward these days—and with some justice.
If I may take the noble Lord, Lord Henderson, back to his wartime days, when certainly I was a little child in knee pants but possibly he was a little bigger,
202
there was a slogan which asked, "Is your journey really necessary?" I would ask of the noble Lord if it is really necessary to put this proposal into the Bill. I do not believe that it is.
The second part of the noble Lord's amendment concerns the basis on which criminal proceedings are started. Again, the criteria in the new clause reflect the criteria that are already applied by the Crown Prosecution Service, and they are set out in the code for Crown prosecutors. Crown prosecutors are bound to observe that code. The police are also guided by it. As your Lordships will be aware, the Crown Prosecution Service was set up as recently as 1985. Crown prosecutors are clearly accountable for their decisions, through the Attorney General, to Parliament. I do not think it would be sensible to alter the clear basis on which the Crown Prosecution Service operates, as this amendment would do by introducing statutory criteria.
I hope that the noble Lord, Lord Henderson, will be reassured as a result of what I have said that the outcome which he wishes to see can be achieved without the need for legislation, and that it would be better so to do. If he were to feel so persuaded, he might feel that it would be appropriate to withdraw his amendment.
Lord Henderson of Brompton: My Lords, as the noble Earl will know, I do not move this amendment in any sense of hostility. I much appreciate the emphasis that the Home Office makes in its recent circular on the importance of the use of caution. I thought I had made it clear, but perhaps I may repeat it, why I regard this journey as really necessary. It was very good of the noble Earl to give me that handle. It is really necessary because cautioning is not being made use of uniformly by police forces across the country. I would not be bothering to move this otherwise. I am very happy with the circular and with those police authorities which make full use of the caution. I am not happy with those police authorities which do not make good use of the caution. That is the justification for moving the amendment.
If the noble Earl says that this journey is not really necessary, I wonder whether he could tell me what one is to do to stimulate those police authorities which do not use the police caution, if they tend to disregard the circular of the Home Office, as they now do. What is one to do? Has the noble Earl an answer to that?
Earl Ferrers: My Lords, the noble Lord, Lord Henderson, does have a tendency to surprise me off my seat, and I shall do my best to speak to him as concisely as possible. I think he has his perspective wrong. He may well feel that there has been inconsistency, and there may have been, but the Home Office circular has only been out for 12 months, and I do not believe that the criticism which the noble Lord, Lord Henderson, makes is criticism relating to the past 12 months.
Of course there is a sense in which Home Office circulars are looked at seriously and obeyed, although "obeyed" is not quite the right word. The noble Lord,

203
Lord Henderson, is being pre-emptive. The circular has been in existence for only 12 months and was issued for the reasons which the noble Lord stated.
Lord Henderson of Brompton: My Lords, I know that. There was a circular before it which did not have much effect. Unless there is statutory provision, there will be laggards and leaders. The leaders are to be commended and the laggards are to be deprecated. If we continue in this way we shall continue to have leaders and laggards. I am asking the Home Office, through the noble Earl, to look at the matter instead of turning it down out of hand. That would help us all.
We are all engaged in the effort to keep young people of all ages out of the criminal justice system. If this matter were put on a statutory basis, it would operate uniformly throughout the country. Surely, that is a journey worth taking. I should like to take the noble Earl on that journey with me, and I believe that to be the opinion of the House. Perhaps the noble Earl will indicate that he is willing to think again. He smiles sweetly.
Earl Ferrers: My Lords, I am trying to avoid breaking all the rules of the House which I do if I continue to keep rising to my feet. Of course I pay attention to any speech which the noble Lord makes. He cannot expect me to rise each time and say that I agree with everything he says.
Lord Henderson of Brompton: My Lords, the noble Earl keeps on saying that he is breaking the rules of the House but that is not so. Ministers of the Crown—and the noble Earl is a deeply respected Minister—are privileged to be able to speak more than once if they have the leave of the House. I am sure that the noble Earl has the leave of the House and, therefore, is not breaking any rules although he may say that he is from time to time.
Earl Ferrers: My Lords, I am delighted to know that I have the respect of the noble Lord, Lord Henderson. It is remarkable that a distinguished ex-Clerk of the Parliaments is encouraging noble Lords, even Ministers, to keep rising to their feet on Report. I do not wish to abuse the procedures. I shall listen to anything that the noble Lord says.
Lord Henderson of Brompton: My Lords, I assure the noble Earl that he is not abusing the procedures of the House because he has the leave of the House. Occasionally he may use the excuse that he is abusing the privileges of the House in order not to rise to his feet. He need not be inhibited in any way. We are all happy to hear from him, however often he rises to speak. In that respect I am freeing him from the constraints which he is voluntarily imposing on himself and which other noble Lords do not like to see imposed on him.
The noble Earl has been good enough to say that he listened to what I said. Having had that assurance, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 88 and 88A not moved.]
Lord Richard Lord Richard moved Amendment No. 88B:
After Clause 71, insert the following new clause:
("The Crown Prisoner Custody Service
.—(1) Arrangements for the escorting of prisoners of the Crown shall be the responsibility of the Crown Prisoner Custody Service within the Home Office;
(2) The recruitment, training and conditions of service of Crown Prison Custody Officers shall be the responsibility of the Crown Prisoner Custody Service;
(3) Such arrangements include and provide for the functions and responsibilities outlined in sections 64 to 67 above;
(4) The Crown Prisoner Custody Service shall be a permanent part of H.M. Prison Service;
(5) The power to make rules under this section shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.").
The noble Lord said: My Lords, this amendment raises the issue as to whether responsibility for transporting prisoners should remain with the Home Office or whether it should be contracted out to the private sector. We are convinced that the service must remain in the state sector. The escorting of prisoners to and from court is a crucial and difficult task. Public safety is at stake. Prison officers who are thoroughly trained by the state have performed the task for years and have done so with great credit. It can be dangerous. It is inevitable that a desperate prisoner will have more chance of escaping from a prison escort than from behind prison walls.
Tens of thousands of prisoner escorts take place each year and on countless occasions prison staff have managed to defuse difficult and potentially dangerous situations.
We oppose contracting out the escort system to the private sector just as strongly as we support the restructuring of the escort system within the overall control of the Home Office. The opposition is founded on the following points. First, the private sector has no experience of dealing with prisoners. There is no appropriate professional tradition existing within the private security industry. The House of Commons defence committee published a report in May 1990 which considered the use of private security firms at military installations. It is fair to say that the report catalogued a litany of malpractice, inefficiency and downright impropriety. In our view public safety would be seriously jeopardised if such professional standards were let loose on the escort system.
Whatever changes are made to the escort system, it will continue to have a constant and critically important relationship with the state prisons and their staff. It is therefore crucial that those who have to co-operate do so on the basis of goodwill and sympathy. I fear that goodwill will not manifest itself between private security workers and prison staff.
Poor staff recruitment, shoddy training and high labour turnover characterise the private security industry. The net effect of those characteristics would mean that in private hands the escort system would tend to be less efficient and more expensive. I am sure that the House is aware that a separate agency for escorts is supported in the recommendations made by the Woolf inquiry. It is clear also that even if the private sector is invited to operate escort services, the most dangerous prisoners would still remain in state hands. If the private sector cannot be trusted to match

205
the performance of the state sector with respect to high security prisoners, one must ask why the Government expect it to do so with the other categories of prisoner that it may be asked to escort.
In our submission a public service is more capable of supporting the task of escorting prisoners than the private sector. I beg to move.
9.30 p.m.
Lord Harris of Greenwich: My Lords, I have made my position clear on this matter as I did on the last occasion. I am not in favour of maintaining the monopoly bargaining position of the Prison Officers' Association in this respect.
This provision in the Bill will stand or fall by the standards which the Government set for private contractors. To that extent I agree with the noble Lord, Lord Richard. It is essential, if employees of private companies are to take over this responsibility, that they should have high quality training and it should be established that they have a good reputation. As the noble Earl is aware, the ACPO report produced a little while ago indicated that a substantial number of employees in private security firms had criminal convictions.
The question is simple. If the Government insist on high standards being maintained by these companies and if they ensure good training, then the proposition contained in the Bill will be regarded in a few years' time as being wholly acceptable and as having proved to be a worthwhile substitute for the present situation. However, if it becomes clear that people with significant criminal records are being employed by those contractors, Ministers will be highly vulnerable to severe criticism. I hope that the noble Earl will deal with that point when he replies.
Finally, the memorandum attached to the Bill indicates that there will be a saving of somewhere in the region of 1,000 prison officers as a result of the proposals in the Bill. Given the fact that we are told, not least by the Prison Officers' Association, that there is a substantial shortage of prison officers, it will be highly desirable to have these changes made. By definition there will be more trained prison officers who will be able to be redeployed from their prison escort duties to work in some of the prisons which are said to be understaffed, as I am sure a number of prisons are. Subject to that, I believe that the Government proposal is correct.
Earl Ferrers: My Lords, we debated this in Committee. I think we are all agreed that the escorting of prisoners needs to be separated from other prison service tasks. As I said in Committee, court escort work is a considerable drain on the resources of the prison service and of the police. It takes up the time of the equivalent of about 1,000 prison officers and 1,400 police officers. It is often difficult for prison governors to balance the competing demands of escorting prisoners outside the prison and of ensuring that there are enough staff to maintain a positive and construe:ive regime inside the prison. But I part
206
company with the noble Lord, Lord Richard, when it comes to deciding who should be responsible for this separate function.
A contrast was also drawn in Committee by the noble Lord, Lord Hutchinson of Lullington, between what he said would be the professional service provided by the prison service, and and an amateur service from the private sector. I have the highest regard for the work done by the prison service, often under trying circumstances. But they do not have a monopoly of professionalism and expertise in matters relevant to the escorting of prisoners. The management of vehicle fleets and the planning of routes are tasks which many private sector undertakings are just as well able to carry out in a reliable and professional manner as is the prison service.
We have heard a lot of criticism of the private security industry in our debates on these proposals. I would not for a moment suggest that every private security company in the land is fit to be entrusted with this work. That is a matter which the noble Lord, Lord Harris of Greenwich, is concerned about. The certification procedure under Clause 82 and Schedule 9 ought to weed out anyone who has an undesirable criminal record. For all these reasons, we shall have a vigorous selection procedure in order to decide who will get the contracts. We should also remember that, day in and day out, the private security industry transports enormous amounts of money and valuables around the country securely and reliably.
I do not believe that there is reason to suppose that they could not provide just as secure and reliable a service for the transportation of prisoners. There is a dimension to the transportation of prisoners that is not there with the transportation of cash or valuables. That is the human dimension. But there is no magic in being a public servant that automatically makes one a better person at dealing with people than if one is employed by the private sector. It is all a matter of selecting the right people, and training and motivating them properly.
So I do not believe that there is reason to think that the private sector could not do the work. We should consider the positive advantages of bringing in the private sector. The main advantage is value for money. We are not talking simply of cost cutting, but of making sure that the taxpayer gets the best value for the money that is spent on the service. It is one that costs about £85 million a year, so value for money is a serious consideration. Money that is wasted through inefficient prisoner escorting arrangements is money that is unavailable for making the kinds of improvements to the prison system which we all want to see.
If we allow the prisoner escort system to remain a public sector monopoly, as the noble Lord, Lord Richard, would wish, the value for money benefits of introducing competition will be lost. Under our proposals, potential contractors will have to compete with one another and the contracts will go to efficient and well-managed ones who are able to deliver the required standard of service at the best possible price.
By bringing in the private sector we shall also be able to tap its management skills. The expertise

207
already exists in the private sector in the management of complex transport and distribution systems, as I have said. But by taking this work out of the hands of the prison service we shall also free the management of the prison service to get on with its real job, which is to manage the prisons. It will be able to concentrate on matters such as the implementation of the Woolf Report, which we all agree should take top priority in terms of the time and energies of the prison service.
The noble Lord, Lord Richard, was concerned about the lack of goodwill and co-operation between the public and private sectors and that the most dangerous should be in public sector hands. I do not see any reason why there should not be proper co-operation between the prison service and the contractors. I have no doubt that any kind of new system will take a bit of getting used to, but there is no reason why there should not be proper co-operation. Only category A prisoners will be excluded and these are only a very small minority which includes terrorist suspects. Armed escorts are often needed and I am sure we all agree that it must remain a police matter.
For all those reasons it is right to look to the private sector to take over the court escort work. Of course there must be rigorous standards and effective supervision to ensure that the proper standard of service is delivered and that the rights of prisoners are protected. That is what the Government intend, and the proposals in the Bill will achieve that. I hope, therefore, that even if the noble Lord, Lord Richard, does not actually agree with the idea he will understand the philosophy behind it.
Lord Richard: My Lords, I understand very well what the Government are saying and that is why I do not like it. However, in all the circumstances I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 73 [Arrangements for the provision of prisoner escorts]:
Earl Ferrers Earl Ferrers moved Amendment No. 88C:
Page 49, line 18, leave out from ("officers") to the end of line 21 and insert ("who are authorised to perform such functions.").
The noble Earl said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 88F and 89A to 89K. These amendments simply make some modest improvements to the provisions of the Bill relating to the certification of prisoner custody officers. They have two objectives. First, they enable different grades of certificates to be issued depending on whether the person concerned wishes to be authorised to escort prisoners, or to work in a contracted-out prison, or both. Secondly, the amendments provide for expiry dates to be set for prisoner custody officer certificates.
I beg to move.
On Question, amendment agreed to.
Clause 77 [Contracting out of certain contracted out prisons]:
Lord Richard Lord Richard moved Amendment No. 88D:
Page 51, line 23, leave out paragraph (a).
The noble Lord said: My Lords, in moving this amendment I shall speak also to Amendment No. 88E. These amendments restrict the private management of prisons to new prisons by deleting the provisions which allow the Home Secretary to extend private management to existing prisons by means of a statutory instrument only.
This is the part of the Bill the drafting of which, when we considered it in Committee, came as a surprise to certain Members of the Committee. I am bound to say that the byzantine complexity with which, in this part of the Bill, the Government have chosen to set out what is apparently their intention exhibits a quality of drafting which would have done credit to an elderly equity pleader in the more arcane recesses of the unreconstructed Chancery Division before the passage of the judicature Acts. It really is quite astonishing that if the Government are saying that they are proposing to privatise existing prisons by statutory instrument, that they should have chosen to do it in a way which is almost incomprehensible even to those of us who have the misfortune to be practising lawyers.
Not only is the drafting quite extraordinary, but I have to say to the Government that the effects of handing over the existing prisons to private management would be devastating. Imagine the circumstances if the Government were to privatise Wandsworth or Wormwood Scrubs, which this clause gives them the power to do by statutory instrument only. Private contractors would hardly wish to retain the existing force of the Prison Officers' Association unionised prison staff. They would undoubtedly want to recruit and train their own employees.
I ask the House to consider the effect of dismissing the existing workforce of a prison and the explosion of anger, leading to widespread industrial action of a kind which would plunge the whole prison system into chaos, which would result from such an action. The implications are so serious that it would be wholly inappropriate to take such a far reaching step as this by means of delegated legislation in a statutory instrument. It would allow much less debate and very little detailed scrutiny—much less detailed scrutiny than primary legislation. Parliament would have to take it or leave it, not being able to amend the statutory instrument.
Finally, the consultation process which the Government carried out before the introduction of the Bill over the idea of private management was restricted to the private management of new prisons. None of the organisations with an interest in this issue has therefore had the opportunity to make representations on the question of handing over the management of existing prisons to private contractors. If the Government really intend to pursue this course—I hope that the noble Earl will say that they do not intend to privatise existing prisons—it surely should be done after a separate consultation process leading to fresh primary legislation and not by this attempt to slip it in by the back door in an almost incomprehensible clause in the Criminal Justice Bill. I beg to move.
9.45 p.m.
Lord Harris of Greenwich: My Lords, at best this is a piece of pure silliness. We have a choice either of accepting that it is a piece of doctrinaire nonsense, which it may be—an indication to the No Turning Back Group that the Government are not turning back—or alternatively that it is an attempt to pressure the POA. My comment on the second idea takes up the point made by the noble Lord, Lord Richard. If this is an attempt to say to the POA, in the light of the unhappy industrial relations situation in our prisons, that if it does not behave itself the Government will privatise Wormwood Scrubs, anyone who knows anything about the situation in our prisons will realise perfectly well that the consequence of threats of that kind would be instantaneous industrial action throughout many prisons in this country. I find it almost incomprehensible that the Government have got themselves into this ludicrous position.
This idea was not in the original Bill. When the Bill was presented to Parliament it was on the basis of a perfectly sensible idea of Mr. Douglas Hurd, when he was Home Secretary, to experiment in one or perhaps two remand establishments. Now we have a provision whereby under a statutory instrument—the affirmative resolution procedure of the House of Commons involving a one-and-a-half hour debate—the issue will be put to the vote. Every single prison in the country could, on the basis of this Bill, be privatised. That is an astonishing procedure in itself.
As I have indicated on previous occasions, the noble Lord, Lord Rippon of Hexham, and others, have constantly drawn attention to the habit of this Government, and no doubt on some occasions of their predecessors, of giving powers to Ministers in this form. Quite apart from the position of the House of Commons, let us consider for a moment what the consequences are for this House. There is a clear view that we do not vote against statutory instruments of this nature. That is the view of the House and it has been repeated on many occasions. In fact on a highly controversial resolution of this kind, a debate takes place and there is no vote. Therefore, in reality this is the last time, assuming that the Bill is accepted in its present form, that the House will have any opportunity to express an opinion on the matter and influence it by means of a vote; not that I think that at 9.48 p.m. that is particularly likely. It is an exceptionally foolish idea. I do not believe that it would have been contemplated by Mr. Hurd as Home Secretary. I very much regret that his successor has succumbed to pressure of this kind.
Earl Ferrers: My Lords, noble Lords had a field day over that, did they not?
Lord Richard: My Lords, there is a field to play on.
Earl Ferrers: My Lords, we did have a little fun, if I may Put it that way, during the Committee stage over the wording of this part of the Bill. I can understand noble Lords' disquiet over that. The noble Lord, Lord Richard, using flowery language, said that this was drafting of byzantine complexity and that it was almost incomprehensible even to practiced
210
lawyers, of whom he is a distinguished example. But even I was able to understand it in the end, although I had to have the comprehension knocked into my head, so to speak, with a hammer. Nevertheless, I understood it finally and I am not a lawyer. I see that the noble Lord, Lord Richard, keeps pointing at someone, as indeed does the right reverend Prelate.
Lord Richard: My Lords, I was pointing at those who enabled the noble Earl to understand the matter more easily and quickly; namely, the unknown people who are not in the Chamber.
Earl Ferrers: My Lords, the noble Lord, Lord Richard, must be more careful; otherwise he will have the noble Lord, Lord Henderson, on his back. He really will be out of order if he starts pointing at people who are not present in the Chamber as such.
I agree with the noble Lord, Lord Richard, that this is not, as it were, bedtime reading; indeed, it is not exactly like reading a novel. However, it is possible for those who are versed in the dealings of the law to understand it. The noble Lord made a meal of it, and I do not blame him for doing so. Had I been in his position I would have done the same, although of course not nearly so well.
The noble Lord, Lord Harris, also made a speech. He referred to the No Turning Back Group. He asked whether this was really an attempt to pressurise the Prison Officers' Association. I congratulate the noble Lord on having a fairly vivid imagination, but I feel that he should try to keep it within certain bounds.
Perhaps I may explain the position so that I can alleviate some of the anxieties which have been expressed. In Committee the noble Lord, Lord Harris, painted a pretty colourful picture of every prison in the country—establishments such as Wandsworth and Wormwood Scrubs—being contracted out to the private sector. Of course, he jumped on the bandwagon again this evening and the noble Lord, Lord Richard, could not resist running with the hares. Both thought that they had a good point to make. Of course in theory what they suggested would he possible. But, in practice, no one expects anything remotely like that to happen.
First of all, it has been made clear that in the foreseeable future the only contracting out will be in relation to the new remand centre at Wolds in Humberside. We will have to see how that works out before contemplating any extension of contracting out to other establishments. If my right honourable friend did then decide that he wished to extend the contracting out initiative, he would have to look very carefully to see which establishment or establishments would be most suitable. If one is going to bring contractors in, there is much to be said for doing so in a new establishment where one will have a clear run, without the problems involved in having to take up the reins from the existing providers. The noble Lord, Lord Harris 'of Greenwich, will be delighted to be reassured on that aspect of the matter.
But subsection (3) also gives the Secretary of State the flexibility to make an order allowing for the contracting out of an existing establishment if he thought that desirable and sensible. It is not

211
impossible for example that where the functions of an establishment were about to change, the Secretary of State might want to explore the possibility of having those new functions carried out on a contracted-out basis. If any such move were ever to be contemplated, the position of the existing staff would of course have to be taken very carefully and sensitively into account.
The noble Lord, Lord Richard, said that the consultations had been restricted to the consideration of very few prisons. That is perfectly right. And that is why, when the point was considered in another place, the Government did not accept amendments which would have extended the scope of the Bill's powers from the start. We did however agree that an order-making power would give some desirable flexibility. There would, of course, be fresh consultation before any order was made under subsection (3).
I must emphasise once again that my right honourable friend has no plans to contract out the management of existing prisons. There is no hidden agenda of wholesale contracting out of existing prisons. Subsection (3) gives my right honourable friend the flexibility, if circumstances should change in the future in a way which makes this desirable, to come back to Parliament and seek approval for an order which would enable contracting out to take place on a rather wider basis than is possible under subsection (1) as it stands. I do not think that I can give the noble Lord, Lord Richard, more of an undertaking than that.
I thought that that would satisfy the noble Lord. I can see him becoming agitated. I hope that he will agree—did the noble Lord say something?
Lord Richard: My Lords, yes. I said "indeed".
Earl Ferrers: My Lords, I thought that the noble Lord called upon the deity. I misunderstood him.
Lord Richard: My Lords, I would not do that in this House with the right reverend Prelate sitting there. I listened with great attention to what the Minister said. As far as I can understand, he said, first, that there is nothing wrong with the drafting because he is capable of understanding it and, therefore by definition, it must be all right; and, secondly, he said, "Don't worry about this power. The Home Secretary and the Government will never use it. Even if they are going to use it they will return to Parliament and consult Parliament before using it. Don't worry. There is no danger of any of that happening". The power is merely to give the Home Secretary what the Minister called "necessary flexibility". I do not know what on earth that means. If the power is not going to be used, why is it in the Bill? It is a departure from existing practice. As the Minister said, it has not been consulted about. I suggest that the Minister and his colleagues go away and look at this issue again. It is too important to be left to delegated legislation.
The Deputy Speaker (Baroness Lockwood): My Lords, is the noble Lord withdrawing the amendment?
Lord Richard: My Lords, I suppose that, in all the circumstances and at five minutes to 10, I have to beg leave to withdraw the amendment, but I give the Government fair warning, we may return to it.
Amendment, by leave, withdrawn.
[Amendment No. 88E not moved.]
Clause 78 [Officers of contracted out prisons]:
Earl Ferrers Earl Ferrers moved Amendment No. 88F:
Page 51, line 41, at end insert ("who is authorised to perform such duties.").
The noble Earl said: My Lords, I spoke to this amendment with Amendment No. 88C. I beg to move. On Question, amendment agreed to.
The Earl of Longford The Earl of Longford moved Amendment No. 88G:
After Clause 79, insert the following new clause:
("Regime in contracted out prisons
.—(1) The regime in contracted out prisons shall meet the requirements set out in subsections (2) to (7) below.
(2) Prisoners shall spend not less than 12 hours per day on out-of-cell activities, including—

(a) worthwhile work;

(b) education;

(c) physical exercise;

(d) association with other inmates;

(e) domestic and legal visits;

f) use of prison shop and library.

(3) Each prisoner shall have the opportunity to take a general exercise period of I hour per day, in the open air, unless this is impracticable due to the weather or to overriding reasons of security.
(4) In addition to the general daily exercise period, prisoners shall have the opportunity to take a minimum of 6 hours physical exercise per week.
(5) Each prisoner shall be entitled to a domestic visit of a minimum one hour's duration at least once a fortnight.
(6) All prisoners shall be entitled to choose whether to eat their meals in or out of their cell.
(7) All prisoners shall be entitled to—

(a) a daily shower;

(b) a daily change of underclothes;

(c) access to overnight sanitation; and

(d) occupancy of a single cell.").

The noble Earl said: My Lords, I rise with considerable reluctance to move an amendment related to the proposal to privatise some of the prisons. Whether it is one or 100, I regard the proposal as obscene. The Minister laughs happily. I wish he would understand that when I say "obscene" I am not trying to be funny. He has a wonderful jocularity which has kept us all happy for many years, but I am talking about something filthy. The Minister is still smiling away. I do not know whether it is possible to wipe that smile off his face.
Earl Ferrers: My Lords, the noble Earl sometimes makes me smile. It was not the fact of something being obscene that I found funny, it was the noble Earl's choice of word.
The Earl of Longford: My Lords, I shall rub in the point a little more. I regard as obscene a measure which places prisoners, who are helpless through a legitimate decision of the state, in the power of private contractors. Is that language plain enough? The Minister can go on grinning away, but I regard the proposal as disgraceful whether it relates to one or 100 prisons. Does the Minister want to say something?
Earl Ferrers: My Lords, the noble Earl is now smiling and thinking that something is funny.
The Earl of Longford: My Lords, I want the Minister to realise that I am not talking about a jokey subject I am talking about something that is resented widely throughout the country. It does not matter whether we are talking about one prison or 100 prisons. Has the Minister taken that point on board? I mean what I say. We are now asked to try to improve the arrangements. I suppose we might just as well be asked to improve the health arrangements in a brothel. It might be a good idea to have health regulations in a brothel. The privatisation of prisons is a horrifying subject.
In all the years we have been discussing penal reform, I never thought that we would come to this stage. I hope that I have made myself plain enough. It may happen, but we hope it will not happen before the Government come to an end. That will be an end of this proposal. That being understood, I shall explain why I have listed the requirements in the amendment.
The Prison Governors Association—which is not the Prison Officers' Association—wrote a stiff letter to the Home Secretary of which the noble Earl is well aware, deploring the situation. I made contact with the association members and asked whether they wanted any points raised in these discussions. I received this reply on behalf of the Prison Governors Association:
"What we are most concerned about is the lack of resources available to the prison service and the effect that this has on prison regimes. The actual regimes experienced by the majority of prisoners"—
I hope that the noble Earl will listen to this, which is addressed to me and to the Home Secretary—
"are as you are well aware both sparse and degrading".
That is what they say about the situation in the country which the noble Earl has to defend. The prison officers regard the conditions applying to most prisoners as degrading. They are anxious that a number of requirements be dealt with in the Bill.
After consultation with the Table, I have been informed that I cannot relate these proposals to the prisons. For some obscure drafting reason they can only be related to the prisons that may be privatised. I hope they never will be. Hence the list in the amendment comes from the prison governors. They demand that prisoners should spend not less than 12 hours per day on out-of-cell activities, including worthwhile work and education, as well as many other requirements. I shall not go through all the requirements because they are set out in the amendment. I am sorry to have to bring the matter up in this rather oblique way, and it is not possible to press ft e matter further. I am also sorry to have spoken so plainly to the noble Earl, but this is not a laughing matter. The good humour he shows is appreciated by all, but I am afraid that this is rather a grim affair. I beg to move.
10 p.m.
Lord Richard: My Lords, I wish to raise in general terms a series of issues with the noble Earl. The amendment places in statutory form a range of
214
requirements for conditions and regimes in privately managed prisons, all of which are already laid down as requirements in the tender documents which have been sent to potential contractors for the first privately managed remand centre. These standards are far above those in the local prisons and remand centres in which remand prisoners are currently held. It is indefensible in my view that the Government should fail so signally to provide such standards in the prisons they directly manage when they rightly insist that the standards must be met by private contractors. The amendment therefore enables us to press the Government to express their views on the extension of such required standards to all prisons.
I wish to quote from paragraph 12.119 of the report of Lord Justice Woolf:
"The Government is considering private sector involvement in the remand system. If the private sector is to be involved in the remand system, it is accepted by the Government that contracts 'will have to set clear and enforceable standards'. The Government is therefore going to be involved in preparing standards. There is no reason why the standards required of the private sector for remand establishments should be any different from those required of the Prison Service".
I ask this question: if the Government rightly demand these standards in relation to a newly privatised remand centre, when will they take steps to ensure that these standards are applicable to the rest of the prisons in this country?
Earl Ferrers: My Lords, the amendment of the noble Earl, Lord Longford, is designed to guarantee certain minimum entitlements for prisoners in contracted out prisons. If I irritated the noble Earl, I should be the first to apologise, I did not wish in the slightest to irritate him. I assure him that I do not consider the subject particularly amusing.
The new clause covers such matters as hygiene and visits and activities outside the cell. The noble Earl is proposing, in effect, a code of minimum standards for regimes in contracted-out prisons. However, I think that the noble Earl's amendment is unnecessary. The Home Secretary is able to determine the regime at a contracted-out prison by the simple means of specifying in the contract what is required. The noble Earl will know that we recently published the specification and operational requirements for Wolds Remand Prison. This describes in detail the regime that the contractor must offer. It includes almost all the entitlements in the noble Earl's new clause, and in some cases goes further. For example, prisoners at Wolds will be guaranteed the right to have meals out of their cells if they wish; to have a shower and a change of underclothes each day; to take an hour's exercise out of doors each day if the weather permits; and to spend at least 12 hours a day out of the cell in the week. All these accord with what the noble Earl proposes in his amendment. The specification goes further in guaranteeing convicted prisoners a visit of at least one hour a week, rather than one hour a fortnight as the noble Earl proposes. The specification does not, I admit, provide for each prisoner to occupy a single cell. There are to be 156 single and 72 double cells at Wolds. The provision of double cells is built into the design of the prison, so this is not something

215
over which the contractors will have discretion. Many prisoners prefer to share, and if a prisoner is identified as a suicide risk, a shared cell will generally be more suitable for him. But all cells would have integral sanitation.
The specification for Wolds sets out in much more detail than the noble Earl's new clause what prisoners will be entitled to. The problem with setting down a few specified rights is that it implies that prisoners at a contracted-out prison will not be entitled to anything that is omitted from the code of standards. I am afraid that I do not think the noble Earl's new clause would add very much to what is already required, and it may even be counter-productive.
I can assure the noble Earl that the regime required in the tender documents will be monitored. A board of visitors will be appointed to Wolds. Her Majesty's Chief Inspector of Prisons may descend at any time. In addition, a Government-appointed controller will be there on the spot to keep under review the running of the prison. If the contractor is for any reason unable to maintain the minimum standards required, we shall know about it very soon. The Home Secretary has the power, in the last resort, to terminate the contract.
All this is contained in the specification for Wolds. But it has wider implications for contracted-out prisons generally, because Wolds is, if one likes, the prototype. Whether other prisons are contracted out in future will depend on the evaluation of the experience of running Wolds Remand Prison. Any other contracted-out prison will however be required to operate to similar high standards as are required of Wolds.
The noble Lord, Lord Richard, asked when we would set higher standards for public sector prisons than those that at present obtain. I believe the noble Lord is referring to the Woolf recommendation for a general system of accredited standards. We are examining the recommendation urgently along with all the other Woolf recommendations. We shall announce our conclusions in the forthcoming White Paper. We are doing that because we are anxious that the standards should be as high as is possible.
The Lord Bishop of Manchester: My Lords, I am glad that the noble Earl, Lord Longford, has raised this matter in his amendment. Whether it is open to criticism in the way the Minister has described as regards individual items, I shall not say. However, it seems to me—
Lord Harmar-Nicholls: My Lords, I thought it had been laid down clearly that once the Minister has replied, only the mover of the amendment can then speak. I think it is important that we keep to that rule.
The Earl of Longford: My Lords, I do not know whether my opinion is of any value, but I should have thought that, with the leave of the House, anyone could speak at any time. I believe the noble Lord, Lord Henderson, is the expert on this matter.
Lord Henderson of Brompton: My Lords, it would be perfectly possible for the right reverend Prelate to
216
make a few observations if he asked if he could speak before the noble Earl sat down; otherwise it would not.
The Lord Bishop of Manchester: My Lords, I had not understood whether or not the noble Earl had summed up. If he has summed up I shall sit down. Perhaps I may be guided on the matter.
Earl Ferrers: My Lords, as I am allowed to speak more than once, with the permission of the House, I can tell the right reverend Prelate that when I sit down—as I shall in a very short time—he can get up and ask the same question saying, "Before the noble Earl sits down". That would put us in order again.
The Lord Bishop of Manchester: My Lords, before the noble Earl sits down, perhaps I may say simply that I am glad that the noble Earl, Lord Longford, has put down the amendment, even though it may be subject to criticism.
I should like to make one point on what the Minister has said. If we are told in relation to contracted-out prisons that they are simply experimental, that the Government intend to see how they work and that they will be monitored, that seems to me to be missing a fundamental point. I believe that that lies behind the strong language used by the noble Earl earlier. I might not have used precisely the same word but I share the same feelings. I never thought I should see the day when we would be talking of contracting out prisons in this way. The point of principle is simply that, where people fall foul of the legal system of a country and are either put on remand or are sentenced, it is a direct public responsibility to maintain the conditions in which they are held. That seems to me to be absolutely fundamental. I wish that the noble Earl the Minister would appreciate how that principle has been breached at this point. That is something which many of us never thought to see.
Lord Harmar-Nicholls: My Lords, that was not a question.
Earl Ferrers: Order!
The Lord Bishop of Manchester: My Lords, I just wanted to know whether the Minister appreciated that. That was the question.
The Earl of Longford: My Lords, is it my turn? Subject to any ruling from the noble Lord, Lord Henderson, or anyone else I shall first accept the very generous and quite unnecessary apology from the noble Earl, Lord Ferrers. I offer the same apology to him for any waspishness on my part. However, I share the very strong feelings which many of us experience at the thought of this terrifying prospect.
A very important point was raised by my noble friend Lord Richard when he asked—and in a sense it gives an excuse for raising the issue—whether the standards which are to be imposed on the hypothetical contractors, who we hope will never see the light of day, are accepted by the Government? We do not know yet. We are told that there is to be a White Paper. I have put down a Motion on the Woolf Report which I should be happy to see taken over by the noble

217
Earl, by my noble friend Lord Richard, by the noble Lord, Lord Harris, or by one of our top people.
218
Failing anyone else I shall move that Motion before the end of the summer. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
10.15 p.m.
The Earl of Longford The Earl of Longford moved Amendment No. 89:
After Clause 79, insert the following new clause:
("Medical services in contracted out prisons
Medical services in contracted out prisons shall be provided as part of the National Health Service.").
The noble Earl said: My Lords, I do not think that I had better get involved in any more controversy. Naturally I repeat what I said just now about the idea of contracting out.
I should have liked to move an amendment to the Bill which would incorporate the prison medical service in the National Health Service but I am assured by the Table that that is not possible under the Bill. Therefore I can only move an amendment that such incorporation should take place with any medical service brought into existence as a result of any hypothetical contracting out. I beg to move.
Lord Richard: My Lords, perhaps I may say briefly that I support the amendment. Because of the particularly vulnerable position of prisoners, it is essential to ensure that the inmates of privately managed prisons receive medical care of a quality no lower than that provided by the National Health Service and that they have access to effective complaints procedures if they receive poor treatment. This is a desirable amendment and we support it.
Earl Ferrers: My Lords, it will be important in contracting out to allow managers as much flexibility as possible in determining how they deliver the services required, subject of course to the minimum requirements specified in the contract. I see no reason to make an exception of the medical services. The amendment would not allow that flexibility. It would tie contractors to contracting out only with the NHS providers and would exclude other options such as appointing their own health care staff or using private or voluntary agencies. Perhaps most important of all, it would exclude the possibility of their calling on a range of sources which might include general practitioners and other National Health Service providers.
Perhaps, as this is an important subject, I may say a few words about the medical care requirements set out in the invitation to tender for Wolds remand prison. A copy of the specification is available in the Library of the House. I shall deal with the main points. A successful contractor will be required to provide suitably trained and qualified medical and nursing staff. He will have to provide psychiatric and psychological care, pharmaceutical and physiotherapy services and dental and optician care. Arrangements will have to be made for a doctor to be on call 24 hours a day. Daily visits by a qualified physician are required for a range of duties, including taking surgery and visiting inmates under treatment and those in segregation or under punishment. Particular importance is placed on the early medical examination which will form part of the reception procedure. The successful contractor will need to show that satisfactory procedures are in place for the identification of suicide risks.
220
I suggest that a consequence of accepting the amendment would be to place a quite inappropriate constraint on private sector managers. I assure the noble Earl, Lord Longford, that in expressing that view I express no discourtesy whatsoever to the National Health Service or to the practitioners who operate within it. But the use of NHS resources by private contractors is not ruled out. Nor are other options such as the possibility of the successful contractor seeking to buy in medical services from the prison service's own directorate of prison medical services. The idea is for the contractor to have a free hand to choose the most suitable services provided that they meet the minimum and appropriate standards.
The Earl of Longford: My Lords, I must study that answer carefully. My impression is that it is disappointing. I must talk to my noble friend Lord Richard who is leading us on these Benches before the next stage because it might be necessary to return to the subject. I thank the noble Earl for the trouble that he has taken. At this point, at just after a quarter past ten, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 82 [Certification of prisoner custody officers]:
Earl Ferrers Earl Ferrers moved Amendment No. 89A:
Leave out Clause 82 and insert the following new clause:
Certification of prisoner custody officers
(" .—(1) In this Part "prisoner custody officer" means a person in respect of whom a certificate is for the time being in force certifying—

(a) that he has been approved by the Secretary of State for the purpose of performing escort functions or custodial duties or both; and

(b) that he is accordingly authorised to perform them.

(2) The provisions of Schedule 9 to this Act shall have effect with respect to the certification of prisoner custody officers.
(3) In this section and Schedule 9 to this Act—
"custodial duties" means custodial duties at a contracted out prison;
"escort functions" means the functions specified in section 73(1) above.").
The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 88C. I beg to move.
On Question, amendment agreed to.
Schedule 9 [Certification of Prisoner Custody Officers]:
Earl Ferrers Earl Ferrers moved Amendments Nos. 89B to 89J:
Page 91, leave out lines 20 to 23 and insert:
("Preliminary
1. In this Schedule—
"certificate" means a certificate under section (Certification of prisoner custody officers) of this Act;
"the relevant functions", in relation to a certificate, means the escort functions or custodial duties authorised by the certificate.
Issue of certificates
1A.—(l) Any person may apply to the Secretary of State for the issue of a certificate in respect of him.").
Page 91, line 27, leave out from ("to") to end of line 28 and insert ("such standard as he may consider appropriate for the performance of those functions.").
Page 91, line 30, leave out from ("2") to end of line 31 and insert (".or revocation under paragraph 3 below, it shall continue in force until such date or the occurrence of such event as nay be specified in the certificate.
(4) A certificate authorising the performance of both escort functions and custodial duties may specify different dates or events as respects those functions and duties respectively.").
Page 91, line 39, leave out ("relevant functions") and insert ("escort functions or, as the case may be, custodial duties").
Page 91, line 44, leave out ("under section 82 of this Act") and insert ("so far as it authorises the performance of escort functions or, as the case may be, custodial duties").
Page 92, line 6, leave out from ("perform") to end of line 7 and insert ("escort functions or custodial duties, he may revoke that officer's certificate so far as it authorises the performance of those functions or duties.").
Page 92, line 9, leave out from ("obtaining") to end of line 10 and insert ("a certificate for himself or for any other person").
Page 92, leave out lines 16 to 18.
The noble Earl said: My Lords, these amendments were spoken to with Amendment No. 88C.
On Question, amendments agreed to.
Clause 85 [Interpretation of Part IV]:
Earl Ferrers Earl Ferrers moved Amendment No. 89K:
Page:55, line 4, leave out ("73(1)") and insert ("(Certification of prisoner custody officers)(1)").
The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 88C. I beg to move.
On Question, amendment agreed to.
Clause 87 [Cash limits for probation services]:
[Amendment No. 89L not moved.]
Clause 88 [Information for financial and other purposes]:
Baroness Flather Baroness Flather moved Amendment No. 89M:
Page 59. line 22, leave out ("avoidance by such persons of discrimination") and insert ("performance by such persons of their duty to avoid discriminating").
The noble Baroness said: My Lords, this amendment standing in my name amends Clause 88 in order to establish the principle that all those involved in the administration of the criminal justice system have a duty laid upon them to avoid discrimination on grounds of race. sex or any other improper ground.
I do not intend to put forward any lengthy arguments in support of the amendment, as the point was debated at some length on Second Reading and in Committee. In addition, my noble friend Lord Ferrers has already indicated to me that he will look favourably on the amendment. However, I should like to thank noble Lords from all sides of the House who spoke so powerfully in support of the principle that I wanted to see enshrined in the Bill in Committee. I have no doubt that it is because of that clear support that the Minister has been persuaded to accept the inclusion of an amendment on this point now.
I am particularly grateful to my noble friends Lord Ferrers and the Leader of the House for their unfailing courtesy, help and encouragement. Even though it has not been Possible to insert a declaratory clause in the Bill, as I had moved at Committee stage, this amendment goes a long way to meet the concerns of minority communities by laying a duty to avoid discrimination on those working in the criminal justice system. I am certain that it will greatly encourage the
222
many individuals and organisations which are working to promote racial equality. Only in the last couple of days the Bar Council has produced a most encouraging race relations policy with an action programme which should lead to genuine equality of opportunity for ethnic minorities in the profession and in due course, one hopes, on the Bench.
Unfortunately some press reports have confused targets with quotas. Minorities do not ask to be treated as a special case but only to be brought to the same level as everyone else in the land. They do not ask for quotas or reserved places but for targets, which are the clearest way to measure progress. One hopes that this example will be followed by others.
In accepting this amendment the Government will be making a far-reaching statement about the importance that they attach to the principle of non-discrimination. Since the Government's willingness to accept this amendment has become known, it has been warmly welcomed by a wide range of organisations, among them the Commission for Racial Equality, NACRO and the Bar Council. Mr. Anthony Scrivener, chairman of the Bar, has been most encouraging and enthusiastic about the amended clause. He strongly supports my own view that it will now be possible to test by way of judicial review or appeal the likelihood of discrimination having taken place. That is something which was always technically possible but was without any specific statutory provision to underpin it.
All organisations consider that, by emphasising the importance that Parliament attaches to the crucial principle of non-discrimination, this amendment will reinforce their efforts to ensure that the criminal justice system is both fair and seen to be fair to all. I beg to move.
Lord Ackner: My Lords, my amendment, Amendment No. 89N, is grouped with this one. I do not know whether it is appropriate for me to address the House now but I see a helpful nod from the noble Earl. I hope it is one not only of sympathy but also of encouragement.
I have six very simple propositions. The clause with which we are dealing, Clause 88, relates to persons engaged in the administration of criminal justice. That means that it includes judges. That is my first proposition. My second proposition is, as the noble Earl, Lord Ferrers, percipiently pointed out in the debate on Tuesday 23rd April, that the judicial oath requires the deponent:
"to do right to all manner of people without fear or favour, affection or ill will".—[Official Report, 23/5/91; col. 249.]
My third proposition is that in Clause 88(1)(b) discrimination "against"—that is the word that I emphasise and it is retained with this amendment—carries the implication that discrimination in favour is acceptable. That is contrary to the judicial oath. My fourth proposition is that the Government's White Paper, Crime, Justice and Protecting the Public, does not use the offending proposition. It expresses itself in this way:
"There must be no discrimination because of a defendant's race, nationality, standing in the community or any other reason".

223
My fifth proposition is that in the debate on 23rd April, the noble Baroness stated clearly and precisely the principle that,
"no one engaged in the administration of criminal justice should discriminate".—[Official Report, 23/4/91; col. 241.]
There is no offending preposition.
My sixth proposition is that in order to provide the appropriate neutrality consistent with the judicial oath, "against" must be deleted and in its place must be put "in relation to". And that, as they say north of the Border, is all about it.
Baroness Flather: My Lords, perhaps I may make a comment at this stage.
Earl Ferrers: My Lords, perhaps I may be allowed to reply. I fear that if the noble Baroness were to make a speech now she might be prevented from making one at the end of the debate. Perhaps I may make a relatively short intervention on both amendments.
Lord Harris of Greenwich: My Lords, before the noble Earl winds up the discussion, I had wished to say a few words. I welcome the fact that there has been agreement on the matter. I regret that there is not a declaratory provision. On that point I believe that the noble Baroness was wholly persuasive on the last occasion. Nevertheless, I welcome the fact that the Government are prepared to accept the amendment.
A great deal of the progress on this matter has been due to the persistence of the noble Baroness. I think we should all like to congratulate her on being as persistent as she has in securing this important amendment to the Bill.
Lord Henderson of Brompton: My Lords, I too wish to join in the congratulations to the noble Baroness. It is a great achievement. An amendment put into the Bill in the House of Commons has, by changing a negative into a positive, been notably improved in this House. Instead of
"facilitating the avoidance by such persons of discrimination".
The provision now states,
"performance by such persons of their duty"—
which already exists—
"to avoid discriminating".
To make the provision in that positive form is a definite improvement on the previous negative form in which we received it from the House of Commons.
Lord Richard: My Lords, I too join in the expressions of gratitude to the noble Baroness. At Committee stage she made a remarkable intervention, if I may say so—indeed, I have said so to her privately—in response to the noble Earl's reply to the debate. I am sure that it has had a considerable effect on the Government. It certainly has had an effect on people outside the House. I am delighted that an arrangement has been arrived at as a result of which the noble Baroness can now move her amendment secure in the knowledge that the Government will accept it.
Amendment No. 89M in the name of the noble and learned Lord, Lord Ackner, substitutes "in relation to" for "against". That is a clarification with which I have no problem.
Lord Harmar-Nicholls: My Lords, the amendment of the noble and learned Lord, Lord Ackner, seems to me to make it a better provision from every point of view. It obviously fits in with what has been the acknowledged desire of the Government. I hope that the amendment will be accepted without problem.
10.30 p.m.
Earl Ferrers: My Lords, I hope that we do not run too fast down this road. The House will be grateful to my noble friend Lady Flather for the effort that she has put in on this subject. She has been persistent. That does not mean that other noble Lords have not been equally persistent over their particular interests.
I believe that there is merit in making it quite clear in the Bill that the legal duty of those working in the criminal justice system to treat people fairly includes the avoidance of discrimination by reason of race, sex or any other improper grounds. That is not to cast aspersions on the high standards of fairness and impartiality to which sentencers and others who work in the criminal justice system are committed. I know that that clarification is what my noble friend Lady Flather wished to achieve by the amendment that she proposed at Committee stage. I was not able to accept that amendment. At the time it seemed to suggest some new duty additional to the existing duty to treat people fairly.
The same difficulties do not arise with the amendment put down by my noble friend on this occasion. It will put beyond doubt the importance and commitment of those working in the criminal justice agencies to treat people fairly and without discrimination. It will also support the actions that are already being taken by the criminal justice agencies in this area.
With regard to the amendment of the noble and learned Lord, Lord Ackner, he was quite right that when I was nodding I was nodding with encouragement, so that he should make an intervention at that particular juncture, and not necessarily in sympathy with what he was going to say.
I am grateful to the noble and learned Lord for explaining his views; but I have some reservation about this matter. I say this with trepidation to one who is so learned in the law as the noble and learned Lord; but it seems to me that the expression, "to avoid discrimination against" a person is simply clearer and more straightforward. I had some difficulty in understanding quite what the effect of using the words "discrimination in relation to" a person would be. I wondered whether it went wider than discrimination against somebody or whether it was narrower, or simply intended to be the same.
The noble and learned Lord said there was the implication that discrimination in favour of one group was acceptable. I do not see such an implication in the wording of the clause. It seems to me that if you discriminate in favour of persons of one race, you must necessarily be discriminating against persons of other races. There is certainly no suggestion in the clause or the amendment of specially favoured treatment for any group. Indeed, that would be wholly wrong.

225
My second reason for preferring the existing drafting is that it reflects the wording which appears both in the Sex Discrimination Act 1975 and in the Race Relations Act 1976. I am sure that is a reason which will find a much happier resting ground with the noble and learned Lord than my first reason. It is helpful to achieve consistency with other legislation whenever it is possible and sensible to do so. The present drafting of Clause 88 does just that.
I shall take into account what the noble and learned Lord has said, because he shot off six bullets one after the other and I would not wish to discard those in a matter of moments; but my advice is that the amendment is better as it is without the amendment of the noble and learned Lord.
Lord Ackner: My Lords, I certainly was not intending, to take any aggressive action in the form of shooting bullets. I was merely taking advantage of the wisdom of the noble Earl as indicated on the last debate in pointing out a caution to the House about the existence of the judicial oath. He quoted the judicial oath, and as always he quoted accurately. If one is going to make declaratory statements of that kind which affect the judicial office, as is being done in this case, it must be done in neutral terms unless one is going to impose an indirect imposition on the judicial function not to adhere to the oath. The support of the noble Lord, Lord Richard - who does not spontaneously or as a conditioned reflex necessarily support all the suggestions which I put forward, although this has been a happy and harmonious day - and the further support I have had, seem to indicate that there is a requirement to express this sentiment neutrally.
I shall not press the matter at this stage; but I hope that the noble Earl will bear in mind that these are not intended to be bullets. On the contrary, if I am sending anything Forward they are good wishes. I hope that perhaps the draftsmen will have another look at the situation, having regard to what is stated in the oath and how the matter is expressed in the Government's White Paper.
Baroness Flather: My Lords, I thank the Minister and other noble Lords for their kind words.
I should like to speak a few words of caution about the seemingly innocuous amendment of the noble and learned Lord, Lord Ackner. Noble Lords will recall that I moved a similar amendment as regards sentencing I went to see my noble and learned friend the Lord Chancellor to discuss the amendment with him. He said that there is a danger that certain types of behaviour in society are unacceptable, such as racial attacks and all kinds of racially motivated behaviour which leads to violence. The scales need to be tipped against a person perpetrating that kind of behaviour. One should be very careful so that it is not made impossible for judges to look upon that sort of behaviour with more severity than other kinds of similar behaviour.
I fear that if the matter is made neutral in the way which the noble and learned Lord, Lord Ackner, suggests, then people may still complain that they are being discriminated against. That may well be the wish
226
of some people, but I am not sure that that is the wish of this House. It would be a retrograde step. We wish to create a harmonious society. That has been my aim in moving my amendment. I ask your Lordships to think very carefully before accepting an amendment which appears to be logical and sensible but which may have effects which your Lordships do not wish to see incorporated in the Bill.
On Question, amendment agreed to.
[Amendment No. 89N not moved.]
Schedule 10 [Minor and Consequential Amendments]:
Earl Ferrers Earl Ferrers moved Amendment No. 89P:
Page 92, line 26, leave out ("In") and insert ("(1)").
The noble Earl said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 89Q, 89R, 94A, 96B and 102ZA. These amendments make minor changes to the drafting of existing legislation in order to take account of the new provisions in the Bill.
I should like to give notice of a further minor change to existing legislative provisions concerning the remanding of juveniles which, with the agreement of the House, I shall bring forward at Third Reading. The purpose of that amendment will be to rectify a difficulty of which we have only recently become aware in the provisions of the Children Act 1989. That is to avoid an unnecessary overlap between the juvenile court and the family proceedings court. I beg to move.
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 89Q:
Page 92, line 27, after ("sentences)") insert ("shall be amended as follows.
(2) In subsection (1A) (c)—

(a) after the word "remanded" there shall be inserted the words "or committed"; and

(b) after the words "section 23 of the Children and Young Persons Act 1969" there shall be inserted the words "or section 37 of the Magistrates' Courts Act 1980".

(3)").
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 89R:
Page 92, line 34, at end insert:
("(4) In subsection (6)—

(a) after the word "being", in the second place where it occurs, there shall be inserted the words "remanded or";

(b) for the words "committed to the care of a local authority" there shall be substituted the words "remanded or committed to local authority accommodation"; and

(c) after the words "the said section 23" there shall be inserted the words "or 37".").

On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 90:
Page 93, line 12, leave out ("In section 12D(1) (ii)") and insert ("(I) In subsection (1) of section 12D").
The noble Earl said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 91 and 98. Section 12D of the Children and Young Persons Act 1969 deals with the circumstances in which a court sentences a young offender to a supervision order with a requirement to participate in

227
specified activities instead of imposing a custodial sentence, even though the offence is one which is serious enough to justify custody.
The proposed amendments do not make any substantive changes to these provisions. They simply ensure that the criteria that the courts must consider in deciding whether to impose a supervision order on a juvenile offender who would otherwise have received a custodial sentence reflect the new criteria for custodial sentences set out in Clause 1 of the Bill. I beg to move.
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 91:
Page 93, line 13, leave out from ("sentence)") to end of line 21 and insert ("in paragraph (ii), for sub-paragraphs (a) to (c) there shall be substituted the following sub-paragraphs—

"(a) the offence of which he has been convicted, or the combination of that offence and one other offence associated with it, was so serious that only a supervision order containing such a requirement or a custodial sentence can be justified for that offence; or

(b) that offence was a violent or sexual offence and only a supervision order containing such a requirement or such a sentence would be adequate to protect the public from serious harm from him;".

(2) After that subsection there shall be inserted the following subsection—
"(1A) Sub-paragraphs (a) and (b) of subsection (1) (ii) above shall be construed as if they were contained in Part I of the Criminal Justice Act 1991." ").
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 92:
Page 93, line 42, leave out from beginning to ("(substitution") in line 25 on page 94 and insert ("In section 11(2) of the 1973 Act").
The noble Earl said: My Lords, in moving Amendment No. 92, I shall speak also to Amendments Nos. 93, 94, 97 to 102A and 104. These are all minor consequential amendments. I beg to move.
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 93:
age 94, line 48, at end insert:
("15A. In section 58 (application to Scotland), for the words "sections 8(4), 10, 13, 17C, 25(3), 29(7)" there shall be substituted the words "sections 1C, 25(3) and 29(7)".
15B. In section 59 (application to Northern Ireland), for the words "Sections 17C and 29(7)" there shall be substituted the words "Section 29(7)".").
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 94:
Page 96, line 19, leave out ("("20(2) (b) of the 1980 Act") and insert ("12(1) (a) of the 1980 Act (non-appearance of accused: plea of guilty), after the words "this section" there shall be inserted the words "and section 16 of the Criminal Justice Act 1991 (unit fines)".
23A. In section 20(2) (b) of that Act").
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 94A:
Page 97, line 6, leave out from ("and") to end of line 12, and insert ("in forming any such opinion, the court—
228

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

(b) may take into account any information about that person which is before it.").

The noble Earl said: My Lords, I spoke to this amendment with Amendment No. 89P. I beg to move.
On Question, amendment agreed to.
[Amendment No. 95 had been withdrawn from the Marshalled List.]
Earl Ferrers Earl Ferrers moved Amendment No. 96:
Page 98, line 19, at end insert:
("Extradition Act 1989 (c.33)
35A. In section 20(2) (b) (i) of the Extradition Act 1989 (restoration of persons not tried or acquitted), for the words "section 7(1)" there shall be substituted the words "section 1A(1)".").
The noble Earl said: My Lords, this is a minor technical drafting amendment. I beg to move.
On Question, amendment agreed to.
Schedule 11 [Transitional Provisions and Savings]:
Earl Ferrers Earl Ferrers moved Amendment No. 96A:
Page 102, line 39, at end insert:
("16A. Section (Custodial sentences under 1933 Act) of this Act shall not apply in any case where the offence in question was committed before the commencement of that section and the offender is aged 16 at the date of his conviction.").
The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 86J. I beg to move.
On Question, amendment agreed to.
Schedule 12 [Repeals]:
Earl Ferrers Earl Ferrers moved Amendment No. 96B:
Page 104, line 43, column 3, at end insert:
("In section 67(6), the words "remanded or", in the first place where they occur, and the words "section 23 of the Children and Young Persons Act 1969 or".").
The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 89P. I beg to move.
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendments Nos. 97 to 102:
Page 104, line 46, at end insert:

("1968 c. 49

The Social Work (Scotland) Act 1968.

In section 72, in subsection (1A), paragraph (a) and the word "and" immediately following that paragraph, and subsection (4).").

Page 105, column 3, leave out line 17.
Page 105, line 32, column 3, leave out ("9") and insert ("10").
Page 105, line 40, column 3, leave out ("and 17") and insert ("to 17C").
Page 106, line 7, column 3, at end insert:
("In Schedule 9, paragraph 50.").
Page 106, line 49, column 3, at end insert:
("In Schedule 13, Part I.").
The noble Earl said: My Lords, these amendments were spoken to with Amendment No. 92. I beg to move.
On Question, amendments agreed to.
Earl Ferrer Earl Ferrer moved Amendment No. 102ZA:
Page 107, line 28, column 3, at end insert:

229
("In Schedule 13, paragraph 53(1).").
The noble Earl said: My Lords, I spoke to this amendment with Amendment No. 89P. I beg to move.
On Question, amendment agreed to.
Clause 95 [Short title, commencement and extent]:
Earl Ferrers Earl Ferrers moved Amendment No. 102A:
Page 61 , line 7, leave out from beginning to ("also") in line 8 and insert ("The following provisions of this Act, namely—

(a) this section;

(b) sections (Reciprocal enforcement of certain orders), l5(1) and (2), 21 and 25(3) and (4); and

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

The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 92. I beg to move.
On Question, amendment agreed to.
[Amendment No. 103 had been withdrawn from the Marshalled List.]
Earl Ferrers Earl Ferrers moved Amendment No. 104:
Page 61, line 10, at end insert:
("(5A) This section, section (Reciprocal enforcement of certain orders) above, Schedule (Reciprocal enforcement of certain orders) to this Act, paragraph 15B of Schedule 10 to this Act and, so far as relating to the Social Work (Scotland) Act 1968, Schedule 12 to this Act also extend to Northern Ireland.").
The noble Earl said: My Lords, I believe that this is the amendment we have been looking for for the past three days. It was spoken to with Amendment No. 92. I beg to move.
Lord Harris of Greenwich: My Lords, given the fact that this is the last amendment at Report stage and that Third Reading will take place almost immediately
230
upon our return, we should be grateful if any government amendments to the Bill on Third Reading were tabled as early as possible.
Lord Richard: My Lords, I am delighted that we have at last reached the end of Report stage of the Bill and that we are now in sight of the finishing post. I cannot help observing that the amendment we have finished on—namely, Amendment No. 104—is almost as incomprehensible as some of the other amendments that we have been looking at in the course of our discussions on the Bill.
Earl Ferrers: My Lords, the noble Lord, Lord Richard, should not start getting controversial at this hour of the night. I understand the concern of the noble Lord, Lord Harris of Greenwich. It is not the first time that noble Lords have said that they want the government amendments tabled as quickly as possible. I shall do my best to see that they are put down as soon as is reasonable. I cannot give the noble Lord any guarantee that that will be done tomorrow morning.
On Question, amendment agreed to.

London Underground (Victoria) Bill
Reported from the Unopposed Bill Committee with amendments.

Brighton Marine Palace and Pier Bill [H.L.]
The Queen's consent signified, and Bill reported from the Unopposed Bill Committee with amendments.
House adjourned at a quarter before eleven o'clock.