Prisoners and Criminal Proceedings (Scotland) Bill [H.L.]

HL Deb 02 June 1992 vol 537 cc848-85

4.53 p.m.

House again in Committee on Clause 2.

Lord Morton of Shuna moved Amendment No. 4: Page 2, line 21, after ("offence") insert ("or those offences").

The noble and learned Lord said: This is, I hope, a non-controversial amendment. It is purely a question of English. Subsection (1)(b) of Clause 2 states: in respect of whom the court which sentenced him for that offence made the order".

All that Amendment No. 4 suggests is the addition of "or those offences". It is quite possible that the sentence is for a variety of offences. It would be appropriate that that should be stated openly. The amendment seeks to include the plural.

I accept the argument—I do not think it is necessarily correct—that one finds in the Interpretation Act that the singular includes the plural, but as this clause contains references to the plural it might be interpreted that that offence meant one offence. As the noble and learned Lord the Minister will know, it is quite competent in common law offences to have one sentence for a variety of offences, just as it is equally competent and quite often done, when one has several rapes, to have several life sentences imposed if that is considered the appropriate sentence. I beg to move.

Lord Fraser of Carmyllie

I appreciate the intention behind the amendment. Its purpose is to highlight the fact that a discretionary life sentence may be imposed on conviction of more than one offence. The noble and learned Lord has already referred to the Interpretation Act. As under that Act the singular includes the plural, what he proposes is unnecessary. Moreover, as the amendment stands, the words "or those offences" would have no reference to any words earlier in the clause. For that short reason, I hope that the noble and learned Lord will withdraw the amendment.

Lord Morton of Shuna

The subsection would make sense even with my amendment. It would read: in respect of whom the court which sentenced him for that offence or those offences made the order". That seems to be perfectly good English. However, I shall not press the matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Morton of Shuna moved Amendment No. 5: Page 2, line 21, at end insert ("and (b) if more than one life sentence was imposed, on each occasion a life sentence was imposed the court which sentenced him made the order mentioned in subsection (2) below".).

The noble and learned Lord said: In moving the amendment perhaps I may speak also to Amendment No. 7. This again is a drafting amendment. The purpose is to transfer what is subsection (9)(a) of the clause to subsection (1). It seemed to me and to the noble and learned Lord, Lord Cameron of Lochbroom, more logical to have this provision at the beginning of the clause rather than in subsection (9). That is the only purpose of the exercise. I beg to move.

Lord Fraser of Carmyllie

This is classically an issue of drafting. I appreciate that the intention of the amendments is to improve, as the noble and learned Lord sees it, the drafting of Clause 2 by transferring from subsection (9) to subsection (1) a paragraph which is rightly part of the definition of the term "discretionary life prisoner". However, in my view the noble and learned Lord and his noble and learned friend do not achieve that intention. At present, all the provisions relating to a prisoner on whom more than one life sentence has been passed appear in subsection (9). It is a matter of how one reads statutes. In my view that seems to be the most helpful way of approaching the matter, although I hear what the noble and learned Lord has to say about the view taken by him and by his noble and learned friend. In any event Amendment No. 5 is defective as paragraph (a) of subsection (1) has not been removed from the Bill.

Lord Morton of Shuna

I appreciate that paragraph (a) has not been removed. Equally, the noble and learned Lord must appreciate that I put down Amendment No. 5 in the hope that Amendment No. 3 would be accepted by the Committee. Otherwise, there would be little point. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5 p.m.

Lord Morton of Shuna moved Amendment No. 6: Page 2, line 27, at end insert ("and if it is decided not to make such an order the court shall state its reason for that decision.").

The noble and learned Lord said: The amendment seeks to add to subsection (2) of the clause the words set out on the Marshalled List. Basically, if the court decides not to make an order such as that set out in subsection (2), then it should give its reasons. The reason for the proposal is that subsection (3) gives a right of appeal against the refusal to make the order. It would seem totally pointless to have a right of appeal against an order if the court from which one is appealing is not bound to give its reasons for its decision. That is the purpose behind the amendment. It would seem to make the position clearer and more appropriate. I beg to move.

Lord Fraser of Carmyllie

I share the view of the noble and learned Lords, Lord Morton of Shuna and Lord Cameron of Lochbroom, that cases where the whole of a discretionary life sentence is justified by the seriousness of the offence alone will be rare. A requirement in statute to give reasons for not making a Clause 2 order could reinforce this by creating a presupposition that the order will generally be made. Arguably, the right of appeal against a decision by the sentencing court not to make an order under Clause 2 will provide sufficient safeguard for life prisoners. However, I wish to tell Members of the Committee that I am willing to reconsider the matter and consult again with the Lord Justice General about introducing a requirement such as the noble and learned Lords have proposed. With that undertaking, I hope that the amendment will be withdrawn.

Lord Morton of Shuna

The measure that I have put forward is purely practical. In case the Minister is getting worried, I should stress that I shall withdraw the amendment. Nevertheless, I should like to point out that if one has the right to appeal without the requirement to give a reason, the person who appeals will see the private judicial report and then decide what to do with his appeal. The proposal would short circuit the effort and save the country money on legal aid by having the reasons stated at the time of the sentence. But in view of the Minister's assurance that he will reconsider the matter, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Morton of Shuna had given notice of his intention to move Amendment No. 7: Page 3, line 11, leave out paragraph (a).

The noble and learned Lord said: I spoke to this amendment when moving Amendment No. 5. I shall not move it formally.

[Amendment No. 7 not moved.]

Clause 2 agreed to.

Clause 3 [Power to release prisoners on compassionate grounds]:

Lord Morton of Shuna moved Amendment No. 8: Page 3, line 20, leave out ("exceptional").

The noble and learned Lord said: I am sorry to take up the Committee's time with drafting matters; but it seems to me that the word "exceptional" is totally otiose. If the Secretary of State decides that the release of a prisoner is justified on compassionate grounds, why does he have to go on and satisfy himself that the compassionate grounds are exceptional? The decision either justifies his release or it does not. One can imagine the horrifying state where the Secretary of State said to himself, "Yes, the release is justified on compassionate grounds; but, unfortunately, those grounds are not exceptional and therefore I shall not release him". That cannot be what is meant. The word "exceptional" adds nothing and could actually cause difficulty. I believe that the word should be withdrawn. I beg to move.

Lord Fraser of Carmyllie

I do not consider that it would significantly change the effect of Clause 3 to omit the word "exceptional". The Secretary of State would in any event require a persuasive case for compassionate release to be made out before exercising his power under Clause 3. Therefore, I do not intend to oppose the amendment. I urge Members of the Committee to agree to its introduction.

However, in passing I should point out that those who have tabled Amendment No. 23 to Clause 17 will appreciate that they have picked up the wording of "exceptional compassionate grounds". For obvious reasons now, and in the interests of consistency, I should stress that I shall not be looking favourably at that amendment.

Lord Morton of Shuna

I am very grateful to the Minister for accepting the amendment.

Lord Macaulay of Bragar

I am sorry, I did not quite understand the Minister's reference to Amendment No. 23.

Lord Fraser of Carmyllie

I have indicated that it would be undesirable to have the words "exceptionally compassionate" and agreed to omit the word "exceptional". Therefore, where such wording has been picked up by Members of the Committee opposite, it must be appreciated that it would be inconsistent of me to agree to consider it at a later stage.

Lord Morton of Shuna

Having had that interesting interruption when I believe that I was technically on my feet, I should like to continue my expression of thanks to the Minister. I renew my desire to move the amendment.

The Deputy Chairman of Committees (The Earl of Listowel)

Does the noble Lord wish to press his amendment or withdraw it?

Lord Morton of Shuna

The Minister has accepted the amendment. Therefore, I shall certainly press it.

On Question, amendment agreed to.

Lord Macaulay of Bragar moved Amendment No. 9: Page 3, line 21, leave out ("on licence") and insert ("on such conditions as are appropriate to the circumstances").

The noble Lord said: The amendment refers to the same clause which deals with the release of prisoners on compassionate grounds. I am not sure, but my proposal may be an argument about language. However, the amendment suggests that rather than say: The Secretary of State may at any time, if satisfied that there are exceptional compassionate grounds justifying the release of a person serving a sentence of imprisonment, release him on licence", it may be more appropriate to use the words, on such conditions as are appropriate to the circumstances instead of "on licence". As has been said before in relation to other amendments, it may be a distinction without a difference. But the reason I move the amendment is that the question of licence basically refers to the position of prisoners serving life sentences. It may just give the wrong idea as to the terms of release.

The clause refers to release on compassionate grounds which will not necessarily involve the concept of release on licence which has an air of finality about it. The basis upon which a person should be released on compassionate grounds should take into account all the relevant circumstances: first, the particular sentence imposed; secondly, the particular individual; thirdly, the external circumstances—for example, illness or death of a relative —and, fourthly, detailed circumstances in which the person who is being released will be liable to be recalled as opposed to having his licence revoked. It is possible that a compromise could be reached by saying that the person could be released on licence or on such conditions as are appropriate to the circumstances. I beg to move.

Lord Fraser of Carmyllie

I have listened to what the noble Lord said. But I have to say to him—as I am sure he anticipates—that the amendment tabled in his name and that of the noble Lord, Lord Carmichael of Kelvingrove, is unnecessary. It would add to the complexity of the Bill by entailing consequential amendments to the various references elsewhere to licences: for example, in Clauses 11, 12 and 17.

A release licence consists simply of a list of conditions with the sanction of return to custody for breach of those conditions. Under Clause 12, the only essential condition on release is that of social work supervision. The other conditions are at the discretion of the Secretary of State who would, in the case of a prisoner released on compassionate grounds, certainly tailor them to the circumstances.

There is no practical difference therefore between release on licence and release on conditions, and I believe that what we are debating here is nomenclature rather than substance. I hope that noble Lords will accept my reassurance that no prisoner whose misfortunes are such as to deserve compassionate release will be disadvantaged in any way by being released on licence. I trust therefore that the amendment will be withdrawn.

Lord Macaulay of Bragar

I thank the Minister for his reply. I shall read with interest the Hansard report of what he said before I decide whether to take the matter further. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Macaulay of Bragar moved Amendment No. 10: Page 3, line 22, leave out subsection (2).

The noble Lord said: This amendment relates to the same provision concerning release of prisoners on compassionate grounds. Clause 3(2) states: Before so releasing any long-term prisoner or any life prisoner, the Secretary of State shall consult the Parole Board unless the circumstances are such as to render consultation impracticable". The reason this amendment has been tabled is that that seems to be an unnecessary piece of legislation. There should be no distinction between the long-term and life prisoner in relation to release on compassionate grounds, which are a particular area of life and human relationships. If the grounds are such as to be considered compassionate in the general sense, and subject, as the Minister has just said, to conditions relating to release and breach of the licence, there does not seem to be any reason why the Secretary of State should consult the Parole Board.

The provision as it stands recognises that there could be a situation where it may be impossible to consult the Parole Board. For example, a domestic emergency might arise where a prisoner's wife or child may be dying or may have been killed. Those are the usual unfortunate circumstances where people seek release on compassionate grounds. What happens if the Parole Board cannot be consulted? Does that-mean that, although the compassionate grounds are justified in the terms of Clause 3(1) and apply to a prisoner in general, because the Parole Board cannot be consulted the prisoner cannot get home, whether he is a long-term or life prisoner, to see his dying wife or child, or whatever the particular compassionate situation might be—or, indeed if his own health is in terminal decline? It is not easy to see from the terminology of Clause 3(2) what circumstances render it impracticable to consult with the Parole Board.

For these reasons it might be better for the Government to consider having another look at this clause to see whether it is superfluous to the general principle set out in Clause 3(1) and is unnecessary for the implementation of the power to release a prisoner on compassionate grounds. I beg to move.

Lord Morton of Shuna

I may be wrong but I read subsections (1) and (2) of this clause as being there because a sentence of under four years was a sentence with which the Parole Board had no concern. That was subsection (1). Subsection (2) dealt with the case where the Parole Board had a general concern in the long-term with the life prisoner. It is for that reason, I assume—I may be totally wrong—that the clause is drafted in this way.

There might be danger in giving the Secretary of State power to jump around the Parole Board and produce his own reasons for release rather than having a consultation. I should have thought that "impracticable" means what it says.

Lord Fraser of Carmyllie

I say immediately that I have some sympathy for the line that the noble Lord on the Opposition Front Bench has taken. But what I wish to stress to him is that the effect of subsection (2) would not be to draw the Parole Board into a full consideration of every case in which it was proposed that a long-term or life prisoner should be released on compassionate grounds. The requirement that the board should be consulted would merely give the board an opportunity to offer any comments it may wish to make on a particular case or to draw the attention of the Secretary of State to any aspect of the case which it thought he may have overlooked.

Furthermore, as the noble and learned Lord, Lord Morton of Shuna, has indicated, the prisoner to be released on compassionate grounds would otherwise in due course have fallen to be considered by the Parole Board anyway. When he is released under the provisions in Clause 3 the prisoner could be recalled under the provisions in Clause 17, which would inescapably involve the Parole Board. Obviously the board would wish to know of his release.

Accordingly, I do not think it would be either sensible or courteous to exclude the Parole Board completely from consideration of the release on compassionate grounds of a long-term or life prisoner. The involvement of the board would extend only so far as the board thinks that it ought to become involved. With that explanation of what I see as a very modest degree of involvement by the Parole Board, I hope that the reasonable anxieties that have been expressed by the noble Lord are met.

5.15 p.m.

Lord Macaulay of Bragar

I am grateful to the noble and learned Lord for that reply. I was really looking at the emergency situation where a person requires to be or seeks to be released almost at perhaps half-an-hour's notice; for example where a child has been run down by a car. That is an emergency situation. I pose the question, how does the Parole Board become involved at that stage where a relative may well die within the next hour?

Lord Fraser of Carmyllie

I think that the circumstances that the noble Lord envisages are perfectly reasonable. It is not difficult to think of comparable ones, for example, a fire at home where a wife and children are involved. I should have thought that the last parts of subsection (2) cover that situation: unless the circumstances are such as to render that consultation impracticable". I should have hoped that that would be sufficient to meet that kind of emergency situation.

Lord Harris of Greenwich

I am sorry not to have been here right at the beginning of this debate. We are talking, I assume, partly about cases of terminal illness and matters of that kind. There are already arrangements, are there not—there certainly are in England—for dealing with a situation where there is a death of a child or some crisis situation which requires the Executive to consider whether somebody should be temporarily released from prison? Here we are talking surely about terminal illness, or are we not?

Lord Fraser of Carmyllie

I think I am intervened upon as I intervene. Perhaps I may continue. Most of this part of the Bill is framed upon the Kincraig Report. Perhaps noble Lords would like to look to what is described in paragraphs 9.19 and 9.20. The paragraphs are headed "Release of the Terminally Ill", rather than the broader range of compassionate circumstances. As the noble Lord anticipates, in the event of, say, a wife or a close member of the family of a long-term or short-term prisoner dying, there are administrative arrangements that can be made immediately to enable that person to attend the funeral, or whatever may be necessary.

Lord Macaulay of Bragar

I think the problem is the way that the provision is framed. It does not carry that limitation with it. As a suggestion for consideration by the Minister I wonder whether it would be pouring confusion on confusion if the words "or unnecessary" might be added at the end of the section so that the Secretary of State would have absolute discretion where the Parole Board could not be consulted or where it was not necessary in the circumstances for the Parole Board to be consulted. Therefore an immediate decision could be made by the Secretary of State on humane grounds to release a prisoner on compassionate grounds as described in Clause 3(1).

I am grateful to the Minister for his consideration of the amendment. In the circumstances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3, as amended, agreed to.

Clause 4 [Persons detained under Mental Health (Scotland) Act 1984]:

Lord Macaulay of Bragar moved Amendment No. 11: Page 3, line 33, leave out ("sections 74 and 75") and insert ("section 74").

The noble Lord said: It might be for the convenience of the House if Amendments Nos. 11 and 12 are taken together. The purpose of this amendment is to take out of the provisions in the Act those who are in prison for civil debt and immigration offences and to ensure that the provision applies only to those who are involved in criminal activities. In other words, the civil debtor and the person in prison in relation to immigration offences would be left in a separate category.

The amendment does not abolish either of the two sections and it may be quite a useful amendment for the Committee to consider. I beg to move.

Lord Meston

I support the amendment. I question whether it is sensible to run together into one new clause provisions governing criminal prisoners and those governing civil prisoners and immigration detainees. It is not clear—to me, at any rate—whether any change of substance is intended, or whether it is being done as a matter of drafting. In either case, the resulting amalgam is a proposed new clause dealing with a variety of factual situations which, as printed in the Bill, cover over two pages. I support the suggestion that we should keep the categories separate.

The Lord Advocate (Lord Rodger of Earlsferry)

I understand the case which the noble Lords, Lord Macaulay and Lord Meston have advanced, but I think that we should look more closely at the provisions.

The distinction which is at present made in the 1984 Act between civil prisoners and persons detained under the Immigration Act 1971 on the one hand, and all other prisoners on the other hand, is, when one examines it, an extremely curious and unnecessary distinction.

For the purposes of Section 75 of the 1984 Act, and other relevant sections of that Act, a civil prisoner is defined as a person committed by a court to prison in respect of a civil debt. It follows that persons committed to prison for contempt of court, for failure to comply with a decree, or for breach of interdict are not classified as civil prisoners but are classed with criminal prisoners for the purposes of the 1984 Act, although for other purposes they would be defined as or classed with civil prisoners. The distinction, as enshrined in existing legislation, is confusing and produces results which are unjustified and unnecessary.

What is required of the legislation in question is provision to deal with one particular eventuality. That is where a person who has been transferred from a prison to a mental hospital reaches the date upon which, if he had not been transferred, he would have been released from prison, and where it is clear to those responsible for his treatment that his continued detention in hospital is necessary and would be justified by the stringent criteria laid down in the Act.

From that standpoint the provision made by Section 74 of the Act seems to me to be perfectly sensible. If the responsible medical officer thinks that continued detention is necessary, he must obtain a report from another medical practitioner confirming that view and must submit his own report, together with that second opinion, to the managers of the hospital and to the Mental Welfare Commission. That secures authority for the continued detention of the patient, who is no longer a transferred prisoner and who then has an immediate right to appeal to the sheriff to order his discharge from hospital. That is the system we propose for all categories of prisoner.

Section 75, by contrast, makes no provision for the continued detention of the persons to whom it applies once they reach the date upon which, had they remained in prison, they would have been released. If their continued detention is necessary it must be authorised in the same way as detention is authorised under Part V of the Act for people who have not previously come before the courts.

For that reason, I submit that the distinction made between one kind of prisoner and another is ill-conceived and of no significant advantage to the very restricted group of prisoners who are singled out for the different procedure which, when it is completed, has very much the same result. There is no real justification for having a separate procedure for that very small category of prisoners, nor is there any logic in the way in which that category is defined.

Finally, I mention that so far as I can discover we have never had in any of our mental hospitals a person to whom the Section 75 procedure has applied. I hope that in the light of that somewhat lengthy explanation, the noble Lord, Lord Macaulay, will seek the Committee's leave to withdraw these amendments.

Lord Macaulay of Bragar

I thank the noble and learned Lord for that detailed answer. Obviously, I cannot respond in detail at this stage. I shall look at what he said and, if necessary, come back on Report with, perhaps, some support from other parts of the Committee. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 12 and 13 not moved.]

Clause 4 agreed to.

On Question, Whether Clause 5 shall stand part of the Bill?

Lord Stodart of Leaston

I wonder whether my noble and learned friend will expand a little on what he said about contempt of court on Second Reading when he talked about bringing sentences for contempt of court within the ambit of the new early release arrangements. Just as we have heard that there are different degrees of murder, I imagine that there are different degrees of contempt.

I do not know whether either of my noble and learned friends remembers the days when members of the tabloid press appeared in Parliament House and left thousands of pounds poorer than when they arrived as a result of the trenchant views of the then Lord President, Lord Clyde. A rather less drastic line has been taken by more recent Lords President. There may be a contempt that is not so much accidental, as in many cases those press offences were—perhaps the appearance of a photograph which should not have been allowed—but is deliberate and flagrant, as happened not all that long ago when Mr. Sheridan tore up in front of a crowd an interdict that had been won against him and said, "That is what they can do with their interdict".

Mr. Sheridan appealed against his sentence. His appeal was rejected, and the sentence of six months' imprisonment was confirmed. As I understand it, if that offence were to take place after the legislation goes through, the term of imprisonment will be that much less. I am ignorant on this subject, and so I should like my noble and learned friend to tell me whether there is a maximum sentence for contempt or whether there is a limit which will be enjoyed even by those who are most flagrant.

Lord Rodger of Earlsferry

I am grateful to my noble friend for asking that examination paper question about the maximum sentence for contempt. My recollection—I suspect that there are a number of people who will correct me if I am wrong—is that under statute the maximum period for contempt of court is two years' imprisonment. There is not an unlimited term of imprisonment for it. The broad effect of the clause is to apply the provisions relating to release to people who are imprisoned for contempt of court. Therefore it would have the effect of releasing them in accordance with the same mechanism as would apply in the case of people who are imprisoned for ordinary criminal offences.

Lord Macaulay of Bragar

Before the noble and learned Lord sits down, perhaps I may say that my recollection is probably as faulty as his. We are dealing purely with civil contempt, not contempt in the criminal courts. I imagine that in the criminal courts the power of the court to punish for contempt is unlimited. My recollection is that the maximum sentence for civil contempt is three years, but I accept what the noble and learned Lord said. We are talking about civil contempt at the moment and the avoidance of civil contempt.

5.30 p.m.

Lord Morton of Shuna

I should not venture any recollection as to the maximum sentence, but I hope that if there is no power to give a sentence for contempt, which is four years or over, whoever drafted the Bill would have noticed that and would not have included the reference to the long-term prisoner. Presumably that must apply to something or I assume that it does.

Lord Carmichael of Kelvingrove

I wish to return to Clause 5 on fine defaulters and persons in contempt of court. I do not wish to speak about the latter now; I am concerned about the old question of fine defaulters. For almost as long as I have been in this House and the other place there have been such Bills almost every Session and the question of how we reduce the prison population is raised. One point made is that many fine defaulters are feckless people, quite unable to meet the fines, although they may desire to do so. Ultimately, they are sent to prison.

I am sure that the noble and learned Lord, Lord Fraser of Carmyllie, will remember the debates in another place on how we could reduce this problem. Perhaps even the noble Lord, Lord Stodart, will remember the debates on the collection of fines by instalments. That was tried and the noble and learned Lord the Lord Advocate may have information on the attempts made in Airdrie and perhaps Falkirk to get a mechanism whereby fines could be collected.

It has been a long held view by many organisations in Scotland that the incarceration of fine defaulters is inappropriate. It hits hardest at those on low incomes, particularly the unemployed. Given that imprisonment is the current norm, it is disappointing that the Bill does nothing to put forward positive proposals such as the introduction of a unit time system. There is such a system in force in England on fines relating to the means of the offender.

The Bill's proposal to award half remission to fine defaulters reduces the sentence of the court. While any move to reduce the number of people held in prison is welcome, I am concerned at the lack of positive steps to address the situation. The only reason that I introduce the matter is that for some years I was involved with the Scottish Association for the Care and Resettlement of Offenders of which I was chairman for a period. We were continually raising the problem of fines and methods of payment in our discussions with the Scottish Office and the legal profession. It always seemed to us and many other people that it was an unnecessary punishment to put someone in prison when there could have been other ways of collecting the fines. There is also the possibility that someone who was behaving perfectly well until he went to prison would find prison an extremely good borstal and training ground for petty theft. In social terms it may have been the worst possible punishment that could happen to the individual and for society.

Have the Government thought of expanding or introducing something like the unit system in England or have they any other ways of looking at the matter? Is there a possibility that while the Bill wends its way through this House and another place, with the spare time left positive suggestions may be put forward by the Government?

Lord Harris of Greenwich

What are the numbers of fine defaulters in Scotland? It would be helpful to know. Many of my noble friends agree with what the noble Lord, Lord Carmichael, said, about there being a feeling that there are too many fine defaulters in prison. Unhappily, the situation is that some people are only prepared to pay a fine when there is an imminent prospect of them being removed to prison. Therefore, removing imprisonment would not deal with them. Nevertheless, any action that can be taken to reduce the number of defaulters would be desirable. I would be grateful if I could have an answer to my question.

Lord Rodger of Earlsferry

The points which have been raised are important. I cannot give the noble Lord, Lord Harris, a figure for fine defaulters but it would be proper to say that there are many in Scotland, as I am sure there are in England. It is a current, prevalent problem.

The problem is particularly difficult to deal with because, as the noble Lord said, sending them to prison may be the only sanction but it is obviously undesirable. These people have been fined and the court originally thought that they should not be sent to prison, so that is the last thing one wants to do. As the noble Lord, Lord Carmichael, said, prison is well known to be a university for criminals.

Clearly the matter requires attention, but it would be wrong to think that the Government have not taken steps on it. So far, in Scotland we have not brought in the system of unit fines. It is not altogether straightforward but the matter has been considered.

We have taken several other steps, as the Committee may recall. In particular, we have introduced into courts fines supervision officers whose job is to ascertain why people are in default and to help the court in that way. Also, in a section in the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 we introduced a system of supervised attendance orders. The Committee may remember that such orders are not dissimilar to community service orders; they are a minor or mini form of community service order. People carry out a certain number of tasks under supervision, as opposed to going to prison for default. In that way, it is hoped to deal with the problem. I do not suggest that it is entirely cured, but these steps have been taken to help deal with it.

Lord Harris of Greenwich

I should be grateful if the noble and learned Lord would be good enough to write to me about the number of fine defaulters.

Clause 5 agreed to.

Clause 6 [Application to young offenders and to children detained without limit of time]:

Lord Morton of Shuna moved Amendment No. 14: Page 6, line 47, leave out ("may") and insert ("shall").

The noble and learned Lord said: It will be convenient to deal with Amendment No. 15 with Amendment No. 14. Before making my criticisms in moving the amendment, perhaps I may say how much I welcome the general thrust of Clause 6. It puts young offenders and children into the same category, if I understand it correctly, regarding release procedures and remission, as applies to adult prisoners. That is to be welcomed.

The amendments in my name and that of the noble and learned Lord, Lord Cameron of Lochbroom, are to leave out subsection (3) and to change "may" to "shall" on page 6, Clause 6(2). The amendment of "may" to "shall" or of "shall" to "may" is perhaps the most common amendment moved in the House. These children are, after all, not a large class, and I hope that they never will be. As regards children detained without limit of time under Section 206, if the Parole Board recommends release, it would seem appropriate that the child should be released. The Secretary of State seems to have foreseen this possibility because subsection (3) includes a power to change "may" to "shall" by order. If the Secretary of State has reached that stage along the line, we should give him a helping step and take him all the way across the line.

However, subsection (3) contains another difficulty that we discussed earlier. That difficulty concerns the meaning of "class" of children detained without limit of time. How shall we subdivide those children into classes? The classes relate presumably to their offences rather than to their ages. In my submission it would be perfectly proper, as regards the small group of children detained without limit of time, for the Parole Board to act without the procedure whereby the Secretary of State makes an order to change "may" to "shall". That at least shortens the legislation. I beg to move.

Lord Harris of Greenwich

This is an odd provision. I cannot recall ever having seen quite such a form of words in a Bill. There can be no clear division of principle for the reason given by the noble and learned Lord, Lord Morton; namely, that subsection (3) accepts the principle of what the noble and learned Lord, Lord Morton, proposes in his amendment. I hope the Minister can help us and indicate whether the Government are prepared to reconsider the matter. At the same time I should be grateful if he would tell me how many children in Scotland are detained under these arrangements. The number must be a small one but it would be helpful to the Committee to know how many we are talking about.

5.45 p.m.

Lord Fraser of Carmyllie

I am grateful to the noble and learned Lord for the welcome he has given to the thrust of what is contained in Clause 6. I take it that he also approves of the contents of Clauses 7 and 8. I appreciate the motive behind his amendment as being one to improve the lot of those children who have been detained without limit of time. As matters stand in Scotland this is still literally a singular case. There is only one child at present whose offence was judged to be sufficiently serious to merit detention without limit of time under the terms of Section 206 of our Criminal Procedure (Scotland) Act 1975.

While the motive behind the amendment is well intentioned, at least at present I believe it to be misconceived as in future any child or children detained without limit of time under Section 206 will be able to benefit from the Clause 2 provisions on discretionary lifers. Clause 2, if applied to a case, would make the proposed amendment to Clause 6 ineffective. Clause 6 would therefore only apply to children whose offence was judged to deserve detention without limit of time wholly as a punishment with no consideration of risk.

The Committee will appreciate that the case of a child being detained without limit of time where the punishment was considered to be so severe that there should be no limit of time is such an exceptionable case as to be almost inconceivable. It is on that basis that I invite the noble Lord to withdraw his amendment. However, there is not a great deal between us.

As the noble Lord said, Clause 6(3) allows the Secretary of State, after consultation with the Parole Board, to delegate to the board the decision to release children detained without limit of time. There has only been one case in Scotland of a child detained without limit of time. Therefore the problem that is likely to arise is so remote as to be almost inconceivable. Therefore, I suggest that the rather unusual arrangement introduced by Clause 6 should be retained. However, I shall certainly reconsider that provision in the light of what the noble Lord has said.

Lord Morton of Shuna

I am grateful to the Minister for his remarks. I hope that it remains the case that only one child, or less, is detained without limit of time. Therefore it seems unnecessary to retain the provision in subsection (3) that the Secretary of State may make orders about classes of children who are detained. Are we talking about the legs or the arms of the children concerned? Which part of the child are we talking about when we discuss classes of children? We are only talking about one child in this instance and that one child cannot be divided up into classes. As regards Clause 6(2) I should be happy with "shall" rather than "may". For all that the Minister has said, subsection (3) appears to me to be totally otiose bearing in mind the factual position. However, as the noble and learned Lord is willing to reconsider this matter I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 15 not moved.]

Clause 6 agreed to.

Clauses 7 and 8 agreed to.

On Question, Whether Clause 9 shall stand part of the Bill?

Lord Carmichael of Kelvingrove

Before we decide whether Clause 9 should stand part of the Bill I wish to refer to a matter which may not arise often but nevertheless may cause annoyance in certain circumstances. On my reading of it Clause 9 may raise the possibility of double standards as regards persons liable to removal from the United Kingdom. Clause 9 deals with a proposal to award half remission to those persons serving a sentence of more than four years. Normally they would only be released after half of their sentence had been served if the Parole Board so recommended. If the Parole Board did not so recommend, the prisoners would not be eligible for release until they had served two-thirds of their sentence. In practice this discriminates against some Scottish prisoners who will have to remain in prison until they have served two-thirds of their sentence. I believe that that provision could cause unnecessary friction. I hope that the Minister will be able to assure me that this measure is watertight and that there is no possibility of creating double standards that could cause conflict.

Lord Rodger of Earlsferry

We have no information to impart to the noble Lord to suggest that this provision would cause conflict. Such cases as the noble Lord referred to are relatively rare. However, in view of the noble Lord's comments I shall look into this matter and I shall reply to the noble Lord in writing.

Clause 9 agreed to.

Clause 10 [Life prisoners transferred to Scotland]:

[Amendment No. 16 not moved.]

Clause 10 agreed to.

Clause 11 [Duration of licence]:

Lord Macaulay of Bragar moved Amendment No. 17: Page 10, line 37, leave out subsection (2).

The noble Lord said: The amendment relates to the duration of a licence where a person has been released. Clause 11 (1) states that: Where a long-term prisoner is released on licence under this Part of this Act, the licence shall (unless revoked) remain in force until the entire period specified in his sentence (reckoned from the commencement of the sentence) has elapsed". That is understandable.

Subsection (2), which I seek to remove, reads: Where a life prisoner is so released, the licence shall (unless revoked) remain in force until his death".

From one point of view at least that seems to be unfair to the person who has had a life sentence imposed upon him and who the authorities have seen fit to release on licence. It gives a person with a life sentence no hope of ever having that licence revoked in the sense that he will no longer be under licence. It gives a life prisoner on release no target to aim for. I may be misreading the words "unless revoked", and the reason for raising the amendment is that it is not clear whether the word "revoked" relates to a breach of the licence or to a complete revocation of the licence at the will of the authorities. In other words, if a person is on licence and commits another crime his licence will be revoked. He then goes back to prison because he has breached the licence.

I am not clear what provisions there are for a life prisoner who is subject to Clause 11(2), which provides that the licence shall remain in force until his death. I am not clear how a life prisoner can take steps for the licence to be revoked in the general sense of the word; in other words, where he has not breached the terms of the licence under which he was released. He should be able to apply for the licence to be revoked in general terms.

I am thinking, for example, of the discussion in relation to the previous amendment moved by the noble and learned Lord, Lord Morton of Shuna, relating to the one child who has no time restriction on her sentence. A child who killed at the age of 15 might be released at 30 with a life expectation of another 30 or 40 years. If the provision remains in force as it stands, it means that for the next 40 years a person who may very well have repented of his or her evil will be subject to a licence imposed by the authorities which cannot be revoked unless he or she breaches that licence and goes back into prison or, alternatively, is able to persuade the authorities—by what means I know not—that the licence should be removed.

Accordingly, there may be a degree of unfairness to the life prisoner in Clause 11(2). For that reason, and for the purpose of obtaining information, the amendment has been tabled. I beg to move.

Lord Rodger of Earlsferry

The noble Lord, Lord Macaulay, drew attention to the provisions of subsection (2). The effect of his amendment, if it were accepted, would be to remove subsection (2) entirely and therefore to leave it unclear what the length of licence would be. For that reason alone, in my submission it would be unsatisfactory.

I appreciate and welcome the fact that many life prisoners re-establish themselves satisfactorily in the community, as the noble Lord indicated. It is not our wish to saddle such persons with excessive burdens or any unnecessary stigma.

The Kincraig Report recommended that the standard duration of the life licence should be 10 years. However, the evidence the committee received was not so much to the effect that the licence itself was onerous but that social work supervision of lifers should be terminable once it had been demonstrated that the lifer had resettled responsibly in the community. There were objections in particular to unnecessary restrictions on travel by life prisoners.

We accept that principle and there has recently been consultation among social work authorities about a proposal that the supervision conditions in a life licence should be able to be lifted, on the recommendation of the Parole Board, once the lifer has spent 10 years in the community without having been recalled to custody for breach of the licence or for reoffending. The proposal would be that the licence would remain in force but would contain only one condition: to be of good behaviour and to keep the peace. The lifer would not be required to report to a social worker or to obtain approval for foreign travel.

We are satisfied that those non-statutory changes will meet the main anxieties of those who gave evidence to the Kingcraig Committee and ensure that social work supervision is meaningful and properly targeted.

Finally, in reply to the general point made by the noble Lord, Lord Macaulay, I remind the noble Lord that the general underlying policy of the Government on the matter in the Bill is to restore meaning to the full term of the determined sentence. It would not be consistent with that policy if at the same time we were to remove from the life sentence the meaning that it was, in effect, a sentence which was capable of being reactivated for the period of life.

Lord Macaulay of Bragar

I am grateful to the Minister for that reply. However, with respect, it seemed a little inconsistent in light of the last observation. Either the life sentence will mean a life sentence or there will be a standard licence period of 10 years, at which point the life sentence will cease. I am not sure which it will be.

I am glad to hear that the conditions imposed upon the person who has been released, no doubt after a period of 10 to 15 years, are that he or she should be of good behaviour and should not get into trouble. However, if the licence is to be limited to 10 years, or to whatever period is thought appropriate in a particular case, can the noble and learned Lord, the Lord Advocate, say, how in those circumstances meaning can be given to the term "life sentence" if the person has fulfilled all the conditions which society has imposed upon him?

Lord Rodger of Earlsferry

Perhaps there was a lack of clarity in the way in which I explained the matter. The thinking behind the proposal is that after 10 years such conditions relating to supervision or restrictions on travel, and so on, would be lifted. After the period of 10 years there would continue to be a licence, but the only condition of the licence would be that the person would be of good behaviour and would not reoffend. If he breached that condition, the effect would be that the licence could be revoked. In that sense the life sentence carries on during the period of the man's life and continues to have effect. On the other hand, providing the person is of good behaviour, there are no burdensome conditions after the period of 10 years.

Lord Macaulay of Bragar

I am grateful to the Minister for that clarification, which I understand. Perhaps it was my fault in the first place for not understanding the position. However, I am still rather perturbed about the principle behind the continued existence of the licence for life when a person has demonstrated to society that he is capable of good behaviour and no longer requires supervision. As I said, in the case of a young person it means that for a period of 40 or 50 years that person may be subject to recall to prison for whatever transgression he or she might commit. That seems a rather heavy imposition in terms of the balance between the individual and society.

However, I shall read with care in Hansard what the Minister said. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 11 agreed to.

Clauses 12 and 13 agreed to.

Clause 14 [Supervised release of short-term prisoners]:

Lord Macaulay of Bragar moved Amendment No. 18: Page 11, line 39, after ("offender") insert ("on his release").

The noble Lord said: This is a grammatical amendment for the judge who is imposing the supervised release order on a short-term prisoner to make clear that it shall apply to the prisoner on his release. It may not add much to the clause but it clarifies the objective behind the Act. I beg to move.

Lord Fraser of Carmyllie

On behalf of the Government I am happy to agree to the amendment.

Lord Macaulay of Bragar

I am grateful to the Minister. He is having a great evening of concessions.

On Question, amendment agreed to.

6 p.m.

Lord Macaulay of Bragar moved Amendment No. 19: Page 12, line 7, leave out from ("order") to end of line 11.

The noble Lord said: This amendment seeks to delete from the Bill some superfluous wording that does not have much meaning and seems completely unnecessary. It is restrictive and may make unnecessary complication. The person who has been released will be subject to: the supervision either of a relevant officer of the local authority or of a probation officer"; and has to: comply with such requirements as are, in the order". But the paragraph goes on: or by that officer, specified for the purpose of securing the good conduct of the person or preventing, or lessening the possibility of, his committing a further offence (whether or not an offence of the kind for which he was sentenced)".

That seems to be a completely unnecessary complication. Either the person will comply with the orders of the court or he will not. For example, it is difficult to see what "good conduct" means other than good conduct. Why is it necessary to put in a statute that a person who is under the supervision of an officer of a local authority or a probation officer has to have conditions imposed upon him to secure his good conduct? I should have thought that that was the very object of the probation service.

The wording: preventing, or lessening the possibility of, his committing a further offence seems again to be the very basis on which people are put under supervision.

It defeats my understanding why those words are in the Act when the wording could be kept nice and simple. After all, that is what legislation is supposed to be these days—simple legislation that everyone can understand. I should have thought that if someone was in trouble and was told by the court to comply with the requirements of an order, there would be no problem in getting those people to understand what it meant without the restrictive conditions in paragraph (b). I beg to move.

Lord Fraser of Carmyllie

I must indicate some surprise at this amendment. The provisions in Clause 14(2) (b) are well enough precedented in the provisions of the 1975 Act in Scotland, which set out the powers of the courts to make probation orders.

A supervised release order can be regarded as a short probation order added to the end of the custodial part of a short term of imprisonment, within the total envelope of the sentence. The purpose is to ensure that those offenders who are most at risk of reoffending in a way that could make them a danger to the public will have a period of statutory supervision, and that there will be sanctions for breach of the supervision requirements.

To accept this amendment would mean that the court, at the time of sentence, would be able to impose a requirement of supervision, but the statute would not indicate what the purpose of that supervision should be nor would the supervising officer have any power to add the kind of detailed requirements which would be necessary.

The aim of the provisions which the amendment seeks to delete is to make it clear that the purpose of the post-release supervision is to reduce the risk of the offender reoffending. That would seem to be an admirable enough objective.

The provisions in question do that by providing that the offender must comply with any requirements imposed either in the order or subsequently by the supervising officer which are specified for the purpose of securing the offender's good conduct, or preventing or lessening the possibility of his committing a further offence.

It will never be possible for the court to specify the supervision requirements in sufficient detail. For example, the court may include in the order a requirement that the offender should periodically be seen by the supervising officer, but it must be left to the supervising officer to decide exactly when and where the offender should report to him or be visited by him.

In using the term "good conduct" the Bill relies on the ordinary meaning of those words. Exactly the same words appear without definition in Sections 183 and 384 of the Criminal Procedure (Scotland) Act 1975, which set out the power of the court to make a probation order. I am not aware that they have ever led to problems of interpretation.

Should there be disagreement between the offender and the court or, which is possibly more likely, between the offender and the supervising officer about what constitutes good conduct, the appeal provisions in Clause 19 provide an opportunity for the offender to have any such disagreement resolved in a higher court.

I hope that what I have said in explanation will reassure the noble Lord and that on that basis he will be prepared to withdraw his amendment.

Lord Macaulay of Bragar

I am obliged to the Minister for his very clear exposition of the principle behind this passage. This side of the Committee is not against the principle. We thought that the detail was a bit heavy, if I may put it that way. In the light of the Minister's explanation, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carmichael of Kelvingrove moved Amendment No. 20: Page 12, line 13, leave out ("as nearly as possible").

The noble Lord said: This is a technical amendment urged by the Law Society of Scotland. The amendment ensures that a supervised release order shall follow the style set out in the Act of Adjournal. The Law Society believes and it seems fairly common sense to me, that there could be no reason for allowing for derogation from the style of release order set out in the delegated legislation. I beg to move.

Lord Fraser of Carmyllie

I do not believe that there is any difference in principle between the noble Lord, Lord Carmichael, and myself in this matter. However I suggest that the effect of the amendment may go further than he or indeed the Law Society intends.

Depending upon how strictly the word "form" is interpreted it may not be possible for a supervised release order to be in exactly the same form as that prescribed by the Act of Adjournal, unless photocopies of the relevant part of the Act are used.

I suggest to the Committee that the words "as nearly as possible" impose a strict enough requirement. In effect, those words do not so much allow variation as prohibit any variation which can possibly be avoided. They do not mean "more or less on the same sort of lines". They mean as nearly as can be managed with the equipment and other resources available for the purpose.

Sections 186 and 384 of the 1975 Act, which I previously quoted, require that a probation order should be: as nearly as may be in the form prescribed by the Act of Adjournal". I am not aware of any untoward variation in or dissatisfaction with the precise form in which probation orders are set out by different courts.

With that explanation, I hope that the noble Lord will be prepared to withdraw his amendment.

Lord Carmichael of Kelvingrove

It would appear that the amendment was rather more than technical. I am sure that the Law Society of Scotland will be only too happy with the Minister's reply, which I shall send on. The society may have comments to make. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Macaulay of Bragar moved Amendment No. 21: Page 12, line 22, leave out ("in as straightforward a way as practicable").

The noble Lord said: Clause 14(4) provides: Before making a supervised release order as respects a person the court shall explain to him, in as straightforward a way as is practicable, the effect of the order and the possible consequences for him of any breach of it". I do not understand the phrase, in as straightforward a way as is practicable". It appears in another part of the Bill also. What is wrong with a provision that the court shall explain to the person the effect of the order? We shall have many appeals on the ground that the court did not explain the order to the person in as straightforward a way as was practicable and that therefore he is not in breach of it. It seems an unnecessary complication in what should be a straightforward procedure. I have never known any judge who has found it difficult to explain himself to an accused who has been put under a supervised release order. It will be interesting to hear from the noble and learned Lord what factors he has in mind and in what circumstances a court is unlikely to be able to explain in as straightforward a way as is practicable the consequences of the imposition of an order.

Will a sheriff or judge making a supervised release order wonder whether he is imposing the order under this section "in as straightforward a way as is practicable"? The drafting is a piece of practical nonsense. It is completely superfluous drafting for the objective behind the supervised release order. It complicates the court process and is completely unnecessary. I beg to move.

Lord Fraser of Carmyllie

I can think of a number of circumstances in court, as I am sure the noble Lord can, in which the court can give a perfectly clear and accurate direction in law as to what its decision might be. The judge might tell the accused person that he assoils him simpliciter. The noble Lord would understand immediately with relief that he was free to go. However, I venture to suggest that many accused in Scotland approached with such language would not have the faintest idea whether the death sentence was about to be imposed or whether they were to continue in the dock for an indefinite period. It is simple enough for the court to say, "This court finds you not guilty".

The purpose behind the drafting is to give what is seen as a useful safeguard for the offender requiring the court to explain the effect of the order to him, in as straightforward a way as is practicable". Otherwise there might be a risk that some less enlightened members of the judiciary might simply rely upon the rather stale but nevertheless precise language of the clause itself; whereas, the explanation should be given to the offender in a way that is understood.

Similar provision exists in relation to probation where the expression used is that an explanation should be given "in ordinary language". Where a court makes an order requiring the defendant to accept social work intervention, it should attempt to ensure that the offender understands what is expected of him. I have no doubt that there will be occasions on which that attempt fails. Nevertheless, the effort should be made. It appears to me to be correct that on the face of the statute the judge should be enjoined to make that effort.

On that basis, I hope that the noble Lord will be persuaded to withdraw the amendment.

6.15 p.m.

Baroness Seear

On the example that the noble Lord gave, I should like to ask whether it would not be simpler to state that the court has to give an explanation in English; or would that be difficult in the political situation in Scotland today?

Lord Fraser of Carmyllie

The noble Baroness invites me to swim in very deep and turbulent waters. I believe that the language, in as straightforward a way as practicable is perfectly acceptable. Whether the phrase is "in English" or "in ordinary language", we all seek the same objective. This phrase achieves that purpose without bringing about any political dangers for the Government or anyone else.

Lord Macaulay of Bragar

With regret, I do not accept the noble and learned Lord's explanation of this meaningless piece of verbiage. As the noble Baroness, Lady Seear, said, why cannot the phrase be in ordinary English? The phrase in the probation legislation is perfectly understandable. When a person is being put on probation it should be explained in ordinary language. However, I do not understand the dual imposition in this part of the Bill. One has two factors. One has to explain the position in a straightforward way. That would be covered by the phrase "in ordinary English". The second aspect relates to the phrase, in as straightforward a way as is practicable". What on earth does that mean? Does it mean that the person has to be standing up, lying down or standing on his head? It is a meaningless piece of legislative verbiage which should be consigned to the dustbin before the Bill comes back at Report stage.

Having made those observations, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 14, as amended, agreed to.

Clause 15 agreed to.

Clause 16 [Commission of offence by released prisoner]:

Lord Carmichael of Kelvingrove moved Amendment No. 22: Page 15, line 25, leave out ("desirable") and insert ("relevant").

The noble Lord said: Even as a non-lawyer, the amendment strikes me as very desirable. I know that some things can be desirable but not relevant, and some relevant but not desirable. However, I hope that the Minister will incorporate "desirable" and "relevant", so that we cover every possible loophole that may be found in that part of the legislation. I beg to move.

Lord Rodger of Earlsferry

I am grateful to the noble Lord, Lord Carmichael. I confirm that on this occasion what is relevant is also desirable. Expressing it in as straightforward a way as is practicable, I am glad to accept the amendment.

On Question, amendment agreed to.

Clause 16, as amended, agreed to.

Clause 17 [Revocation of licence]:

Lord Macaulay of Bragar moved Amendment No. 23: Page 16, line 11, leave out ("his health or circumstances have so changed") and insert ("the exceptional compassionate grounds for his release no longer apply and").

The noble Lord said: The amendment refers back to the question of release on compassionate grounds which is encompassed in Clause 3(1) of the Act. That states: The Secretary of State may … if satisfied that there are"— I believe that the word "exceptional" now disappears in the light of the concession made by the noble and learned Lord— compassionate grounds justifying the release of a person serving a sentence of imprisonment, release him on licence".

Clause 17(1) (b) states that where, a short-term prisoner has been so released, the Secretary of State may revoke his licence and recall him to prison if satisfied that his health or circumstances have so changed that were he in prison his release under section 3(1) of this Act would no longer he justified".

The amendment seeks to take out the words, his health or circumstances have so changed and to make the clause more general by inserting the words, the compassionate grounds for his release no longer apply".

I do not want the Government to make too many concessions so early in their administration. However, I hope that they will look favourably at the amendment because it provides a broader approach to the question of withdrawing a licence. Clause 3(1) does not state that the health or circumstances of the licensee are relevant, only that there are compassionate grounds for his release. Therefore, to restrict the grounds for revoking a licence to the issue of, his health or circumstances", is too narrow and it would be better if the clause were widened. The clause should provide that the compassionate grounds which are the grounds for his release no longer apply whether due to health or to circumstances. I beg to move.

Lord Fraser of Carmyllie

We have no intention of penalising a short-term prisoner released on compassionate grounds if, for example, he unexpectedly recovers his health. Any implication to that effect is inadvertent. However, there appears to be an unhappy tautology in the proposed amendment to Clause 17(1) (b), given the reference that appears there to Clause 3(1), which, as amended, contains the expression, the compassionate grounds for his release". The Government believe that the grounds for recall must be wider than purely that the original grounds for release no longer hold. We consider that it would be most unlikely that a prisoner whose behaviour in the community was entirely satisfactory would be recalled. However, there must be scope to recall someone whose grounds for compassionate release remain but whose circumstances in the community have so changed that it would no longer be in their interests or those of the community for them to be at large.

I hope that the noble Lord appreciates that there is no intention to impose greater restrictions. If anything, we see the provision as drafted allowing a greater leeway than his proposal would.

Lord Meston

Is it necessary, therefore, to have any reference to health? Would it not be sufficient to refer merely to a change of circumstances?

Lord Harris of Greenwich

On a first reading of the amendment I was unclear about what was being proposed. However, in the light of what the noble and learned Lord has said my first reading was mistaken because I believed that we were being given an arrangement akin to the cat and mouse act which existed before the First World War. Then suffragettes were released from prison if they were on hunger strike and near to death. After they had recovered they were taken back to prison. Clearly that is not what is being suggested.

I ask the noble and learned Lord to look at the language of the clause between now and Report in order to avoid any misunderstanding of what is being proposed.

Lord Fraser of Carmyllie: Yes, I shall if the noble Lord will allow me to do so without commitment. It may be that in relation to health the phrase "change of circumstances" is sufficient. However, I should like to look at the matter again because the proposal may be too vague or too broad.

Lord Macaulay of Bragar

The noble and learned Lord's answer raises an interesting point which I had not previously grasped. It is that the release on compassionate grounds envisaged in Clause 3(1) is a permanent release on compassionate grounds. I had understood that the licence given to the person released on compassionate grounds would cover a temporary situation such as a terminal illness, a child being killed and all the other issues which bring a prisoner to the attention of the authorities making his release in the best interest of all concerned.

In the light of the noble and learned Lord's answer, it appears that the Government, whom I do not criticise, have fallen into a trap of providing that where a person is released on compassionate grounds he can never be recalled except subject to Clause 17(1) (b). I am trying to be helpful, although I am not very good at that.

Consideration might be given to providing in Clause 3(1) that the Secretary of State may at any time, if satisfied that there are compassionate grounds justifying the temporary or permanent release of a person serving a sentence of imprisonment, release him on licence. Such a provision would give the authorities flexibility to take into account the situation which might arise on a short-term basis in addition to the long-term issue of a terminal illness to which the Minister has referred. He has said that in such circumstances the prisoner will not be recalled. I put forward that suggestion in an attempt to be helpful.

Lord Fraser of Carmyllie

I have indicated that I shall look at the matter again. It appears to me that three circumstances might arise. The first is a prisoner who is terminally ill. In those circumstances we have provided the clearest possible provision for saying that on compassionate grounds the Secretary of State will take over the role of the Royal Prerogative and allow for his immediate release. Secondly, at the other end of the scale is someone who has suffered a personal tragedy such as the death of a child, wife or mother. In those circumstances, as I understand the position south of the Border, it would be a matter of administrative simplicity to make arrangements for that person to be released to go to the funeral.

What I am not sure about, and what I wish to look at again, is whether there are any circumstances in which one might have compassionate release for a period longer than merely leaving prison to attend a funeral. Several weeks would be a longer period than is the ordinary practice in Scotland at present. I am not sure that there are circumstances in which compassionate release could properly be given, but I give that as an example of the kind of area at which I shall be looking in relation to Clause 17.

Lord Macaulay of Bragar

I am obliged to the Minister for that reply. On the understanding that he will look again at the question of compassionate release on licence, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 17 agreed to.

Clause 18 agreed to.

Clause 19 [Appeals in respect of decisions relating to supervised release orders]:

The Deputy Chairman of Committees (Lord Murton of Lindisfarne)

If Amendment No. 24 is agreed to I cannot call Amendment No. 25.

Lord Macaulay of Bragar moved Amendment No. 24: Page 17, line 26, leave out ('or within such longer period as the Clerk of Justiciary may allow").

The noble Lord said: There has been a mistake in the framing of Amendments Nos. 24 and 25. Their objective was to remove the words "Clerk of the Justiciary" where they appear and substitute the words "the High Court". Clearly Amendment No. 24 has not achieved that and I move it with that explanation. I beg to move.

6.30 p.m.

Lord Morton of Shuna

It seems to me that the noble Lord, Lord Macaulay of Bragar, has done precisely the opposite of that which he wished to do. He should have not moved Amendment No. 24; but he should have moved Amendment No. 25.

Lord Macaulay of Bragar

With respect to the noble and learned Lord, I moved Amendment No. 24 for the benefit of the Government Front Bench in order to explain why the amendment is tabled. I have not yet reached Amendment No. 25.

Lord Morton of Shuna

I strongly oppose Amendment No. 24 because it would impose a terrible rigidity on the prisoner wishing to appeal against the refusal of his release. That would have to be done within a very strict timetable. The effect of the amendment would be to take out the permissive "or within such longer period", which would not be good. Therefore, it appears that Amendment No. 25 would meet the noble Lord's averred intention.

Lord Macaulay of Bragar

I agreed at the outset that this is a bad amendment and the noble and learned Lord has underlined that. I merely tabled the amendment to draw to the attention of the Government the proposition that the court rather than the Clerk of the Justiciary should have control of these matters.

Lord Rodger of Earlsferry

I should indicate that we are grateful that the point has been made in general terms. It is well taken and we shall consider the wording in the light of what has been said.

Lord Macaulay of Bragar: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 25 not moved.]

Clause 19 agreed to.

Clause 20 agreed to.

Schedule 2 [The Parole Board]:

Lord Morton of Shuna moved Amendment No. 26: Page 31, line 7, leave out ("holds or has held judicial office") and insert ("is a Lord Commissioner of Justiciary").

The noble and learned Lord said: The purpose of the amendment is to delete the words in Schedule 2(2): holds or has held judicial office and to substitute the words: is a Lord Commissioner of Justiciary

or in plain language, is a High Court judge.

I am aware that that paragraph in the schedule merely repeats what the 1967 Act says about the composition of the Parole Board in Scotland, but a High Court judge has always been a member of the Parole Board. That that should be so is even more important when the Parole Board takes over the function of what the European Court of Human Rights describes as a court, but what we would more usually describe in Britain as a tribunal, of taking decisions on the release of discretionary life sentence prisoners.

The original amendment tabled by my noble and learned friend Lord Cameron of Lochbroom and I' included the words "who is or has been a Lord Commissioner of Justiciary". That amendment was then seen by the Lord Justice General who asked us to take out the words "or has been". He considers it most important that the Parole Board should include a serving High Court judge. On that basis I move this amendment and I hope that at least the Government will take it away and think about it. I beg to move the amendment.

Lord Harris of Greenwich

I should be extremely worried were the Government not to move on this issue. One of the reasons that the Parole Boards, both in England and Scotland, have had such considerable public support has been that senior members of the judiciary have involved themselves in the work of the Parole Board. That has been the position both in England and Scotland.

I believe that if, as is proposed, we are to move away from that, then this would be a particularly ill-chosen moment to do so, all the more so given the fact, as the noble and learned Lord, Lord Morton of Shuna, pointed out, that the Parole Board is now being given additional executive powers as regards non-mandatory life sentence prisoners. Moreover, there is an additional reason for supporting the view of the noble and learned Lord; namely, the indication he has given of the attitude of the senior judiciary in Scotland. I hope that the Government will change their position on this matter.

Lord Fraser of Carmyllie

While I intend to take away the amendment, I am not so much persuaded by the noble and learned Lord's powers of oratory in this Chamber as by the indication that was given to me of the source of the amendment in its latest form. With the knowledge of that source, I should like to take away the amendment and consult with the Lord Justice General in Scotland.

As a matter of practice, as things stand, the Secretary of State appoints two members to the board, one of whom is a serving Lord Commissioner of Justiciary and one of whom has retired from that office, as well as a serving sheriff. It is certainly the intention that the serving High Court judge would chair the panel to consider the case of discretionary life sentence prisoners under Clause 2. However, I undertake to consider whether there should be a rather more formal expression of that within the schedule.

Lord Morton of Shuna

I am grateful to the noble and learned Lord. I somehow had the impression that the spirit behind my revision of this amendment might have a certain effect on the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carmichael of Kelvingrove moved Amendment No. 27: Page 31, line 17, at end insert: ("3A. Notwithstanding the terms of the instrument by which he is appointed, a member of the Parole Board shall vacate office upon the expiry of four years from his appointment.").

The noble Lord said: This is a small and fairly self-evident amendment which asks that the term of appointment to the Parole Board should be four years from the first appointment. It is not meant in any way as a criticism of those people serving on the Parole Board who have done an excellent job over the years. However, most other organisations and bodies have time limits on membership. I believe that the Parole Board would benefit from that generally because there should be new blood coming in regularly. Those on the board should be able to keep up with the times and not appear to the public, rightly or wrongly, to be part of the establishment. I hope that the Minister will understand that this amendment is moved in the best spirit and is not in any way critical of existing Parole Board members. I beg to move.

Lord Fraser of Carmyllie

While this amendment is well meaning I hope that the Committee will accept that it is not necessary to limit in this way the discretion vested in the Secretary of State. The principle which the Government must apply in making public appointments is to choose the best people for the job, without favour or discrimination.

That principle is applied in making appointments to the Parole Board for Scotland. Service on the board is extremely onerous for those involved. There are 24 case meetings a year, at which around 40 cases are discussed. There are five general purpose meetings. In addition, members are called on to visit prisons, to interview prisoners, and to attend ad hoc meetings on behalf of the board. It takes some time to get to grips with the work of the board, and the volume of paper. Members require exceptional dedication. The work is unglamorous and the rewards are modest.

Against that background, it is gratifying that there has been no difficulty in securing the services of well-qualified and experienced people, both in the statutory and in the non-statutory categories, who are willing to act as members of the board. None of the present appointments dates back for more than four years, apart from the chairman and vice chairman. As a matter of practice appointments are made on a three-year rolling basis. Four ordinary members are on their second term of appointment. In our view, a maximum of four years would certainly be too short to enable the board to benefit fully from the knowledge and experience of those carefully chosen individuals.

In considering reappointment after the three-year initial term, the Secretary of State considers very carefully the contribution which the member has made, as well as his or her own availability and wishes. No appointment would be made or renewed unless the Secretary of State were completely satisfied that the person could and would be a fully effective member. He has regard also to the balance of experience and qualifications on the board, to a fair representation of women members and to geographical location.

The amendment would unduly restrict the Secretary of State in the reappointment of members who have contributed well to the board and whose retention may well be desirable in view of other changes in membership. It would be wrong to limit the Secretary of State's room for manoeuvre purely on a principle of change for the sake of change. In our view and in the light of past practice, to do so would be both unnecessary and damaging to the effectiveness of the board.

In the light of what I have said I hope that the noble Lord will withdraw the amendment.

Lord Harris of Greenwich

I should be sorry were the amendment to be carried. I agree with everything said by the noble and learned Lord, Lord Fraser. To impose a rigid formula such as, "no more than four years", would be unreasonable. I do not see how the public interest would be served. My experience was similar in England to the situation described by the noble and learned Lord in Scotland. The Secretary of State considered the matter after a three-year term of office and in a number of cases—not perhaps the majority—the period of office was extended. It would be a great pity to impose this rather rigid formula. For that reason I hope that the Government will maintain their position on the matter.

Lord Carmichael of Kelvingrove

When I look around the Chamber and see the weight of people present I fear that there is little chance of the amendment being carried. However, I am pleased that the Minister took so much trouble to explain the working of the Parole Board and the Under-Secretary of State's faith in it.

I tried to explain that I and the people advising me were not being critical of the board. We believe that there should be some kind of rotation. I agree with the noble and learned Lord, Lord Fraser, that one cannot necessarily grasp these problems at the first meeting. On the other hand, by the 61st meeting one may become a little jaded. We are simply trying to provide some balance by suggesting a time limit.

It should not be taken for granted that someone on the Parole Board will be there for life. It would be interesting if the Minister could indicate the periods of time for which people have served. In the past 10 to 15 years there has been a bigger change. The great and the good are becoming a larger population than once they were, particularly in Scotland.

I do not intend to press the amendment. I am glad that the Minister took the trouble to explain the situation. There is some hope that he may be able to provide more information at some later stage and perhaps put some kind of time limit on the length of time a person serves on the board.

Lord Fraser of Carmyllie

I can provide the information to the noble Lord if it is useful. As I indicated, apart from the chairman and the vice-chairman, who have been in position for some considerable time—particularly the formidable Mrs. Morris who was first appointed in 1974 and became chairman in 1980—the rest of the appointments of the board go back no later than 1988.

Lord Carmichael of Kelvingrove

I thank the Minister for that information. The trouble he has taken indicates that he is aware of the problems that may arise. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 2 agreed to.

6.45 p.m.

Clause 21 [Parole advisers]:

Lord Macaulay of Bragar moved Amendment No. 28: Page 18, line 29, leave out ("persons") and insert ("Advocates, Solicitors or other legally qualified persons").

The noble Lord said: It may be convenient, when moving Amendment No. 28, for me to speak also to Amendment No. 29. The Kincraig Report suggested that people known as "parole advisers", now encompassed by Clause 21, should be appointed, to give advice to prisoners, or former prisoners, who wish to make representations to the Secretary of State or to the Parole Board as regards any matter concerning their release on licence under this Part of this Act or their return to prison or detention by virtue of this Part of this Act".

I quoted that in full because it is of some importance to know what the qualifications of the statutory parole advisers should be. The Act is setting up a special category of individual.

As I understand it, the Kincraig Report rested heavily on voluntary parole advisers—people who involved themselves in the prison system; no doubt prison visitors, SACRO and so forth. The amendment was tabled to delete the word "persons" with regard to statutory parole advisers and insert the words, Advocates, Solicitors or other legally qualified persons". If a statute is to create a statutory adviser then it should determine what the quality and qualification of that adviser should be.

The stage at which a parole adviser gives advice to a prisoner is a vital part of the prisoner's life. In presenting the case he must have the best advice possible based on a knowledge of the system and an ability to present or give advice on his case with all the skill and knowledge a legally skilled person is presumed to have, and free of some of the more emotive issues which sometimes arise in relation to a prisoner's release.

The amendment was tabled on behalf of the Law Society of Scotland. However, it was not tabled by the legal profession out of self-interest. It was to ensure that during this vital part of a prisoner's life, within the terms of the statute, he will have available to him on a remunerative basis a properly qualified parole adviser. The fact that the prisoner has available a legally qualified person in terms of the statute will not deprive him of relying on the person with whom he may have established good relations in terms of respect and trust. But within the statutory framework there must be some degree of definition. That is what Amendment No. 28 seeks to achieve.

Amendment No. 29 is merely an addition to Clause 21(2) which allows the parole adviser set up by the statute to be paid such remuneration and allowances as the Secretary of State may, with the consent of the Treasury, determine. It seeks to bring voluntary associations such as SACRO into the realm of remuneration. If SACRO, and indeed other voluntary bodies, are to give advice to prisoners, it would seem inequitable that where a parole adviser established by Section 21 is given remuneration and allowances, that the person doing the same work out of the goodness of his or her heart should not be paid on the same remunerative basis as that statutory parole adviser. I beg to move.

Lord Rodger of Earlsferry

The amendment is intended to provide, instead of parole advisers, in effect parole lawyers. Although I yield to no one in my admiration of legal persons of all kinds, I do not believe that the amendment will produce the result that either the Government, or indeed Lord Kincraig's Committee, would wish.

The purpose of Clause 21 is to implement the recommendation of the Kincraig Committee that parole advisers should be appointed to help prisoners with the written representations they are entitled to make to the Parole Board. If there are other legal matters upon which they require advice, then there is nothing to prevent the prisoners from taking such legal advice. However, the purpose of the parole advisers is not to give legal advice but to deal with situations where the prisoner may have difficulty in expressing himself on paper. In such circumstances, relatives can sometimes assist, but sometimes neither relatives nor prison staff can provide sufficient help.

Prisoners should be able to turn to somebody who will be able to help them—that is, to somebody who is familiar with the procedures and who will be able to help them to clarify and to express their thoughts and to state the reasons why they believe that they should be released at that stage. They might, for example, wish to make representations about aftercare or other matters on which lawyers might not have particular expertise. Obviously, the advisers will require some training and guidance, but we do not envisage that full legal training will be necessary. However, it seems appropriate that such persons should be entitled to some remuneration. Subsection 2 provides for that remuneration.

Turning to Amendment No. 29, my submission is that although it is well intentioned, the amendment is unnecessary because under Section 10 of the Social Work (Scotland) Act 1968, core funding is already provided to voluntary bodies such as SACRO and the Apex Trust, which assist with the resettlement of released prisoners. The statutory responsibility to supervise and to provide services and assistance lies with the local authorities. It is right that the necessary funds for that purpose should be provided to the local authorities rather than bypassing them and going direct to the voluntary bodies. The local authorities, which have the statutory duty, are encouraged to acquire or to buy the services of the voluntary bodies where that provides the most cost-effective solution. They are required to consult the voluntary bodies in their service planning. If the voluntary bodies want to do the work, they in turn need to offer a high quality service which provides value for money. The Government believe that in this as in other areas a measure of competition is the key to securing quality and value for money.

However, whether intentionally or not, the amendment would apparently have the effect of securing a guaranteed source of income for SACRO and other similar bodies without them needing to be in the business of providing the kind of service that the statutory body actually requires. In saying that, I am not seeking to detract from the contributions made by SACRO and other voluntary bodies, but I am stressing that the funding channels that already exist through the local authorities and in the other ways that I have explained provide the best guarantee that scarce public resources are directed to the best possible use.

Baroness Carnegy of Lour

Before the noble Lord, Lord Macaulay of Bragar, replies, I should like to say a few words. I have been listening to our proceedings with great interest although I have not joined in previously because these matters are somewhat outside my experience. However, I believe that the Kincraig committee has produced a very good idea.

One problem in gaining the public's understanding of prison matters is to find a role for members of the public so that they can become involved in prison procedures. We know that visiting committees work well and that people become involved in them and interested in prison matters. I note that the Kincraig committee has suggested that members of visiting committees might become involved in this matter. Having a panel of people with the job of learning a bit about the procedures for release who would commit themselves to helping prisoners in that way seems a very good innovation. It seems an awful pity that the legal profession, which naturally feels that it can give more clued-up advice to prisoners, has to have a monopoly in this area. I should have thought that there could he a role for ordinary people who could learn about the system and understand the prisoners' position. I like that idea. I believe that a number of people who have an interest in prisons but who have not so far had the opportunity to take part in such work might become involved. As somebody who has been involved with a visiting committee, I like the idea and hope that it will go ahead.

Lord Macaulay of Bragar

I am grateful for the answer that has been given by the noble and learned Lord the Lord Advocate, but the concept of a cost-effective service in relation to this vital part of a prisoner's life leaves me rather concerned about what this is all about and about the fact that it is being financed through the local authority.

The noble Baroness, Lady Carnegy, made a valid point about the involvement of the public. There is no reason why the public should not become involved by volunteering for such work and no doubt receiving some training. My point is that where statutory advisers are being introduced, it is important at least to lay down some guidelines about from where the parole advisers are to be drawn. I personally do not agree with the recommendation of the Kincraig committee that the members of the visiting committee are the best people to advise prisoners.

The noble and learned Lord the Lord Advocate talked about written submissions on behalf of prisoners. They may be even more important than oral submissions. If the word "representations" in Clause 21 means "written submissions", that should be spelt out. I presume that the word "representations" in line 31 is the equivalent of "written submissions", which makes it all the more important that the submissions should be in good order and in an intelligible form for presentation to the Parole Board. That is why people at the level of advocates or solicitors should be involved. Perhaps the words "legally qualified persons" in the amendment could be amended to read "suitably qualified persons". That suggestion might keep the noble Baroness, myself and perhaps even the Government happy.

I repeat, as I am sure that the Government are aware that we are talking about a crucial part of a prisoner's life. It is terrible for a prisoner who has been given a reasonable expectation that he might be released to be rejected by the Parole Board. That is why a prisoner should not be able to look back and to say that those who advised him did not know what they were doing in relation to the board and that is why the quality of the parole advisers should be as high as possible under the statute. It is for those reasons that the two amendments have been tabled. However, in the light of the explanation that has been given, I do not propose to press them. Therefore, I beg leave to withdraw Amendment No. 28.

Amendment, by leave, withdrawn.

[Amendment No. 29 not moved.]

Clause 21 agreed to.

Clause 22 agreed to.

Clause 23 [Transfer of young offenders to prison or remand centre.]:

On Question, Whether Clause 23 shall stand part of the Bill?

Lord Macaulay of Bragar

No amendment has been tabled to Clause 23, but I oppose the Motion that the clause stand part of the Bill because the new Section 20(A) (2) deals with the transfer of young offenders to prisons or remand centres. Surely we all know that, whatever he or she has done, the last place for a young offender to be is in a prison or remand centre where he or she can mix with adult prisoners. Remand centres usually contain many people who have committed offences and crimes in the past and whose company a young offender should not be asked to share for any length of time.

The important words in this clause, and those which lead me to speak against it, are only for a temporary purpose which come at the end of Section (20) (A) (2). That phrase causes a great deal of concern because it raises the old question, "How long is a piece of string?" The word "temporary" is not defined in terms of time. No time limit whatever is set on the length of time for which a young person can be transferred to a prison or remand centre. Along with the word "temporary" comes the word "purpose", which is not defined either. We are therefore talking about an open-ended mandate allowing the Government or the administrators to take a young person into a prison or remand centre without any specification being made as to length of time or purpose. That is a dangerous open-ended mandate to give to any authority.

I have read the Notes on Clauses, but I can see no provision stating that although young people are in a remand centre they shall be kept in a separate place away from adult prisoners or adult persons on remand. Putting young people into prison and remand centres has been a blight on the penal system of the United Kingdom for a long time and has raised numerous problems, emotional and otherwise. The movement of young people into prisons or remand centres should not be encouraged unless there is a reasonably specified purpose or unless a court is involved to authorise the removal of the young offender to a prison or remand centre. Before that is done the young person should be properly represented before a judicial body when deciding whether he should be transferred. The court should decide how long "temporary" will be and should also determine from the authorities the purpose of the shift.

It may be cynical to close on the note that this clause is just a get-out for a government who, after all these years in office and with a few more years in prospect, have utterly failed to make proper provision for young offenders in this country. It is just an excuse to be able to shift young people about willy-nilly by saying that Clause 23 of the Prisoners and Criminal Proceedings (Scotland) Act 1992 provides that a young person can be shifted for a temporary purpose, that he can like it or lump it and can stay there until the authorities decide that the temporary purpose is finished. That is a dangerous inroad into the penal system. For that reason I oppose the Question that Clause 23 shall stand part of the Bill.

7 p.m.

Lord Fraser of Carmyllie

I am happy to respond to the debate. I should say in opening that this is not a provision of any novelty. It was contained in Clause 49 of the Law Reform (Miscellaneous Provisions) (Scotland) Bill 1990. That clause was dropped, as they say, for Bill management reasons latterly. I have to remind the noble Lord that no objection was taken to its provisions either in this House when the Bill was exhaustively debated or indeed in the Commons. At the Committee stage in another place the only debate that took place was on the quality of facilities for visits to those held, they having been moved from a young offenders institution.

I want to make it clear that Clause 23 would not provide a charter for wholesale shipments of young offenders to prisons. Even with prisoner numbers up this year on last, such problems of overcrowding as there are are in the adult rather than the young offender system. On 22nd May, the last day for which I have comprehensive figures to hand, 812 young offenders were occupying the 851 available places in the five Scottish institutions in which such offenders are held.

What the clause is intended to allow is the holding of a young offender in other than a young offenders institution in circumstances in which that would not be permitted at present even though it would be in the detainee's best interests. The kind of circumstances in which this may be desirable are, for example, when a young offender requires to appear in a court such as Inverness or Aberdeen, which is far from any young offenders institution, or when for compassionate reasons or to enjoy accumulated visits there is need to hold a young offender in an establishment as near to his or her home as possible.

The problem addressed by Clause 23 is really one of geography. Apart from Dumfries, the other three young offenders institutions for males in Scotland are all located, as the noble Lord will be aware, in the central belt. The only such institution for females, in respect of whom there is even more of a problem, is Corn ton Vale, near Stirling. The new provision would, for instance, allow female young offenders to be held temporarily at the separate female facilities at Aberdeen, Inverness or Dumfries for the purposes which I have mentioned.

Other circumstances in which the provision might be used include facilitating access to any sort of specialist facility—be it medical, educational or whatever—which might only be available at a prison; or, given the small number of young offenders institutions, there may be cases where a young offender is unsettled or at odds with his peers and would benefit from a period of time out away from the heat of the situation in which the problems have arisen. A short period elsewhere, at a prison perhaps but not necessarily in association with prisoners, a point which concerned the noble Lord, might in such circumstances be an option.

Finally, the Prisons (Scotland) Act 1989 at present provides that a young person must be permanently transferred to prison some time between his or her 21st and 23rd birthday, allowing us the leeway to hold back the transfer of a less mature individual. The provisions in Clause 23 would allow room for manoeuvre below the age of 21 when it is judged, in the case of a particularly mature young offender, to be in his interests and possibly also in the interests of some of his peers that he be transferred to prison some time before his 21st birthday.

I have taken some time to illustrate how and in what circumstances the Secretary of State would intend to use the power conferred. The provisions are specific to individual young offenders. They could not be used en bloc. The power would be used in a considered and sparing way where it is adjudged that for the kind of reasons I have outlined it would be in the interests of a young offender if he or she were to be housed for a period in prison.

Lord Harris of Greenwich

My noble friend Lord Meston and I gave notice of our intention to oppose the Question that Clause 23 stand part of the Bill in order to secure an explanation from the Government. I am glad that the noble Lord, Lord Macaulay, sought to oppose the Question because we have now been able to secure what in my view is an entirely satisfactory response from the noble and learned Lord.

Lord Macaulay of Bragar

I am grateful to the Minister for his explanation of the clause, although I still find the clause unacceptable in that it is too wide and too unspecific. The fact that it is not novel does not make it good, as experience in your Lordships' House has shown. Nor does the fact that there was no objection taken at an earlier stage when the Law Reform (Miscellaneous Provisions) (Scotland) Bill was going through make it any better. I wonder whether, having accepted the principle behind the clause as explained by the noble and learned Lord, it might be appropriate that somewhere in the Bill there should be an obligation on the Secretary of State to lay down rules and regulations for the detention of a young person under the age of 18. That is the important part of the clause. The word "detained" is used.

If the noble and learned Lord is correct—I have no reason to doubt his word—that there is plenty of room in the young offenders institutions but the adult places are now becoming full again—I noticed a newspaper report the other day suggesting that people were again starting to have to share cells in adult prisons—where will these young people be put? Where will they be detained? In what circumstances will they be detained? Who will check that the prison where the person is detained is a suitable place which complies with regulations set down by the Secretary of State?

I ask the Government at least to take on board this proposition. If the principle is acceptable that they should be transferred for the social reasons or protective reasons given by the noble and learned Lord, will the Government consider building in a power for the Secretary of State to lay down guidelines or rules and regulations for the detention of young people in prisons? If those are contravened by the prison authorities the young person would have some recourse against the authorities. As the Bill stands, a young person would have none whatsoever. Having heard the Minister's explanation, I withdraw my objection to the clause.

Clause 23 agreed to.

Clause 24 [Additional days for disciplinary offences]:

On Question, Whether Clause 24 shall stand part of the Bill?

Lord Macaulay of Bragar

Clause 24 allows for additional days for disciplinary offences to be imposed on a prisoner, not exceeding in aggregate one-sixth of the prisoner's sentence", and so on, for breaches of discipline. I object to the clause on the basis that I believe the governor or the prison authority should not have the power to impose additional days upon a prisoner. Either a prisoner's sentence is correct or it is not. The correct way to impose additional days is to take the prisoner through the criminal system. If he has been proved guilty of another offence then it is in the courts that additional days should be imposed and not at the behest of the prison authorities.

In the Kincraig Report the matter is covered in paragraphs 7.13, 7.14 and 7.20 with perhaps rather tortuous reasoning. The Kincraig Committee was against the matter, not least because it might infringe the decisions of the European Court of Human Rights. In any event, the report suggested that there should be more privileges open to prisoners such as home release and so on. If that were so, there would then be more to take away from the prisoner in terms of privileges rather than imposing additional days on his sentence.

It does not matter whether the aggregate is one-sixth or one-sixteenth of a prisoner's sentence. The principle is that the prisoner should not have anything added to his sentence unless it is imposed by the correct authorities; namely, by going through the courts. If the system is complaining that it does not have enough privileges to take away from prisoners, that is a pretty weak excuse and is just too bad. Ways will have to be found of imposing authority on the prisoners. Accordingly, I oppose the Question that Clause 24 should stand part of the Bill.

Lord Fraser of Carmyllie

As the noble Lord recognises, any prison system requires to be able to enforce discipline fairly summarily; that is, without being hedged around by cumbersome procedures. The ability of governors to make disciplinary awards for minor offences provides for swift, fair and effective action to maintain discipline in prisons.

A deferment of the prisoner's release date within the sentence passed by the court is the strongest and most effective sanction available to a governor. It is restricted to a maximum of 14 days for any one offence and, as Members of the Committee will note, in Clause 24 we are proposing that it should be further restricted to an overall maximum of one-sixth of the sentence. We do not believe that it is an unduly harsh punishment, nor do we accept that it is one which could safely be abolished in favour of loss of privileges as recommended by the Kincraig Committee and correctly recorded by the noble Lord. That was one of the committee's recommendations which met with a very adverse response. I share the view which was then expressed that the deferment of release is, and will remain for some time, an essential sanction for the maintenance of discipline.

We are not entirely satisfied with the orderly room procedures for the award of such punishments. The Scottish Prison Service Board proposes to implement changes recommended by an internal working group which was set up to consider how those procedures might be improved. The changes which will stem from the recommendations of that group will bring orderly room procedures into line with current perceptions of natural justice as developed by the courts.

It is open to any prisoner who considers that he has been unfairly treated to petition the Secretary of State, to complain to the visiting committee, to complain to a visiting sheriff or ultimately to apply for a judicial review of the governor's decision. Major breaches of discipline are and will continue to be referred to the police. That ensures independent investigations within a short space of time of the event taking place and allows ample opportunity for prisoners to make their case or lay counter charges.

Lord Macaulay of Bragar

Before the noble and learned Lord sits down perhaps he will be good enough to give the Committee an explanation as to what subsection (7) (b) means. Does it mean that a prison governor can impose additional days upon a person who is on remand before he has been sentenced? Alternatively, does it refer to remand in custody after sentence? The point has just occurred to me and I apologise for raising it at this late stage. I have just been trying to read the subsection to ascertain what it means.

Lord Fraser of Carmyllie

I think that it is fairly clear that what happens is that the governor can conditionally impose additional days but that the condition that has to be met is that that person eventually becomes a prisoner. If no prison sentence is imposed, those days cannot be added.

Lord Harris of Greenwich

Has the report of the working group to which the noble and learned Lord referred been published? If it has been, can we see a copy between now and the Report stage?

Lord Fraser of Carmyllie

As I understand it, the report has not yet been published. However, once the final arrangements which are to be introduced have been arrived at, I have no doubt that its contents will become known in the way that all other prison rules and the like are well known.

Lord Harris of Greenwich

Perhaps the noble and learned Lord will be good enough to look into the matter between now and the next stage. No doubt the noble Lord who raised the matter on the first occasion would like to know what information the Government have on the matter.

Lord Macaulay of Bragar

I am obliged to the Minister for his attempt to explain what subsection (7) (b) means. Speaking for myself, I am none the wiser and no better informed. I understand what the noble and learned Lord was trying to say, but I am not sure that it is a correct interpretation of the subsection. Perhaps some consideration can be given to a possible review of the wording by the parliamentary draftsmen and those advising the Ministers. On that basis, I withdraw my opposition to Clause 24 standing part of the Bill.

Clause 24 agreed to.

Clauses 25 to 27 agreed to.

House resumed.