Criminal Justice Bill

HL Deb 21 May 1991 vol 529 cc189-230

Consideration of amendments on Report resumed on Clause 56.

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—

1. (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
2. (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 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 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 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 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 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 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 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 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 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 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—

1. (a) the offender is under 21 but not less than 18 years of age and he consents to the administering of a caution, or
2. (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
3. (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—

1. (a) there is substantial, reliable and admissible evidence of the offence which is likely to secure a conviction;
2. (b) a prosecution is necessary in the public interest; and
3. (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 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 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 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, 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, 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 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 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 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 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 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 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 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 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 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 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—

1. (a) worthwhile work;
2. (b) education;
3. (c) physical exercise;
4. (d) association with other inmates;
5. (e) domestic and legal visits;
6. 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—

1. (a) a daily shower;
2. (b) a daily change of underclothes;
3. (c) access to overnight sanitation; and
4. (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 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 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 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 Earl, by my noble friend Lord Richard, by the noble Lord, Lord Harris, or by one of our top people.

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 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.

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 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—

1. (a) that he has been approved by the Secretary of State for the purpose of performing escort functions or custodial duties or both; and
2. (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 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 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 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 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". 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.

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 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 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 moved Amendment No. 89Q:

Page 92, line 27, after ("sentences)") insert ("shall be amended as follows.

(2) In subsection (1A) (c)—

1. (a) after the word "remanded" there shall be inserted the words "or committed"; and
2. (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 moved Amendment No. 89R:

Page 92, line 34, at end insert:

("(4) In subsection (6)—

1. (a) after the word "being", in the second place where it occurs, there shall be inserted the words "remanded or";
2. (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
3. (c) after the words "the said section 23" there shall be inserted the words "or 37".").

On Question, amendment agreed to.

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 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 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—

1. "(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
2. (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 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 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 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 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—

1. (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
2. (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 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 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 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 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 moved Amendment No. 102ZA:

Page 107, line 28, column 3, at end insert: ("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 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—

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