Lords Sitting of 5 July 1994

Preamble
The House met at half-past two of the clock: The CHAIRMAN OF COMMITTEES on the Woolsack.
Prayers—Read by the Lord Bishop of Chester.

Ornithology: Funding
Lord Williams of Elvel Lord Williams of Elvel asked Her Majesty's Government:
Whether the funding from the Joint Nature Conservation Committee to the British Trust for Ornithology is to be reduced and, if so, why.
The Parliamentary Under-Secretary of State, Department of the Environment (The Earl of Arran): My Lords, the Joint Nature Conservation Committee's contract with the British Trust for Ornithology for bird monitoring data has been increased by almost £21,000 since last year. The contract will be worth £414,000 to the BTO this year. Changes to the contract, which were agreed with BTO, reflect changing priorities.
Lord Williams of Elvel: My Lords, I am grateful to the noble Earl for that response. Is he aware that the contract runs from 1990 to 1998 and covers vital services in ornithological monitoring and research advice and requires proper funding from the Government? Is he further aware that in the view of the trust the JNCC has reduced its funding for the agreed programme by something like 10 per cent? Do the Government take the contract seriously and, if so, will they make sure that the contract is properly honoured?
The Earl of Arran: My Lords, of course we take the contract between the JNCC and BTO very seriously indeed. I can assure the noble Lord that good quality information will continue to be collected on population, movement and trends of birds. The British Trust for Ornithology is now 60 years old and is the leader in bird monitoring. We greatly value its scientific work and the enormous effort put in by the thousands of volunteers who work for it. The noble Lord will in any case understand that in any contract emphasis is always shifting to reflect changing priorities. It is a process which goes on in all budgets.
Baroness Nicol: My Lords, I welcome the noble Earl's assurance that the work is considered valuable by the Government. Is he aware that in a recent discussion on a proposed amendment to the wild birds directive, one of the difficulties highlighted by the committee considering it was the lack of scientific data available to support any discussions? Can we be assured that the Government will continue to put value on a service which, after all, underpins the commitment to biodiversity which they made at Rio?
The Earl of Arran: My Lords, with regard to biodiversity and the publication of our action plan in January this year, there are several commitments which
1134
we regard as particularly important at this moment and which have to take their place in respect of changing priorities.
Lord Williams of Elvel: My Lords, will the noble Earl explain the words "contracts are constantly shifting"? Was that the expression used? To me a contract is a contract. The contract we are discussing requires the trust to undertake certain work. Under the contract the funding is provided by the JNCC. In that case, why is the requirement of the JNCC for the work of the trust being maintained and the funding not maintained?
The Earl of Arran: My Lords, perhaps I may add that the funding represents 5 per cent. more than last year. The noble Lord will appreciate that in any contract, however contractual the terms, certain priorities can be renegotiated at any time during that contract.
Baroness Nicol: My Lords, perhaps the House will allow me to come back on this matter. Will the Minister accept that the work being done depends on the annual collection of data? Does he agree that any interruption is destructive of many years of work? Is it not desperately important that the work continues at an even level? Are not the suggested fluctuations therefore unacceptable?
The Earl of Arran: My Lords, I assure the noble Baroness that long-term monitoring programmes, for example, the wetlands bird survey and the breeding bird programme, will not be affected. There will be smaller contributions to woodland birds and habitat research and a one-year delay on integrating the results of some monetary schemes.

Wolds Prison: Management Contract
2.38 p.m.
Lord Harris of Lord Harris of Greenwich asked Her Majesty's Government:
Whether they consider that the contract for the running of the Wolds prison was awarded in a satisfactory manner.
The Minister of State, Home Office (Earl Ferrers): Yes, my Lords.
Lord Harris of Greenwich: My Lords, I thank the noble Earl for that informative reply. Is he aware that the chief executive of the prison agency told the Public Accounts Committee of the other place that in terms of this contract the Home Office has been forced to pay for gas, electricity, water and acts of vandalism, as a result of which Group 4 will receive nearly £30 million rather than £21.5 million, as specified in the contract? Is not that a rather strange story?
Earl Ferrers: My Lords, all sorts of curious things happen in the course of contracts. The contract was given to Group 4 in competition with a number of other organisations. Group 4 acquired the contract and as far as I know it has been adhered to.
Lord Harris of Greenwich: My Lords, will the noble Earl be good enough to answer my specific point? Why were gas, electricity and water charges excluded from the contract? Was it a mistake? I assume that it was. If not, can the noble Earl explain why the charges were excluded from the terms of the contract?
Earl Ferrers: My Lords, I cannot give the noble Lord an answer because I do not know what the motivations were when the contract was first drawn up. However, if it was drawn up on the basis that those charges should be excluded, then they would be paid for by the Home Office. If in future contracts it is decided to include those charges, then future contracts will say so.
Lord McIntosh of Haringey: My Lords, it is not simply a matter of comparison between one bidder and another for the contract. It is a question of choosing between privatising and not privatising prisons. If the contract documentation is drawn up on an inconsistent basis so that a comparison cannot be made when deciding whether or not to privatise surely that is an issue of public policy, as the Public Accounts Committee recognises. It is not good enough for the Minister to say in reply that all sorts of curious things happen with contracts.
Earl Ferrers: My Lords, I do not believe I said that all sorts of curious things happen with contracts. I said that all sorts of curious things happen. That is perfectly true. Twenty-seven companies bid for the contract; eight were considered by a panel; five gave presentations and three were short-listed. I have no doubt that the question of whether or not gas and electricity were included in the contract is de minimis compared with the totality of the competitive contracts.
Lord McIntosh of Haringey: My Lords, I can hardly allege that the Minister is wilfully not answering my question. However, he has not understood my point. The issue is not simply the contrast between those bidding for the contract; it is whether or not the contract documents allow a proper comparison to be made between those prisons that are privatised and those that are not. In his answer the Minister simply referred to the differences between the different bidders. On what basis is it possible to make a satisfactory judgment between running the Wolds prison on a contracted-out basis and running it on a not contracted-out basis since the Government pay the water, gas and electricity charges in both cases? That is the issue.
Earl Ferrers: My Lords, the Wolds prison was intended to be a contracted-out prison because we wanted outside contractors to bring in outside expertise. It was decided that the prison service would not be a party because we wanted outside contractors in. They all bid on the same basis.
Lord Richard: My Lords, is the Minister telling the House that his description of £8.5 million as de minimis represents the policy of the Government? Is not that the amount by which the contract was varied because
1136
nobody appears to have included the charges in the first place? That is not de minimis; it is a large sum of money.
Earl Ferrers: My Lords, my point was that it was decided that the Wolds prison should be a contracted-out prison and should not be part of the directly managed prison estate. The contracts went out and all the bidders bid against the same contract. Therefore, whether or not the contract included electricity and gas, all those who bid, bid against the same contract.
Lord Dean of Beswick: My Lords, can the Minister say why, if it was decided that the prison should be contracted out, the prison service was deliberately prevented from putting in a bid? Is it because it may have won the contract and that would have been against the Government's policy? The Minister said that in the final analysis three companies were interviewed or in negotiation. Were they informed that the heating and lighting costs would not be part of the prime tender that was submitted? If so, it was not a level playing field. Was any part of the contract let by negotiation rather than by open tender? Once negotiations come in, excluding this and including that, the department is at liberty to pick the company it wants even if it is not the best.
Earl Ferrers: My Lords, it was decided that the Wolds should be used as a test area for the introduction of new ideas and approaches. It was an opportunity to introduce many of the proposals put forward by the noble and learned Lord, Lord Woolf. That is why it was decided that the contract should be given to outside contractors. As I said earlier, 27 companies submitted tenders and they were all considered. The company chosen was the one it was felt offered the best value for money.
Lord Dean of Beswick: My Lords, the Minister said: "tested". Tested against what?
Earl Ferrers: My Lords, as I tried to explain to the noble Lord, it was decided that the Wolds should be a contracted-out prison because we wanted to bring new ideas, thoughts and processes into the system. It is the first prison that is purely a remand prison and that is why it was decided that it should be contracted out.
Lord Monkswell: My Lords, are the Government saying that the effective management of the Wolds establishment will be best carried out when the people in control can ignore energy costs and usage and the costs and difficulties incurred as a result of vandalism? Are the Government aware that the Wolds houses a number of human beings and therefore their standard of living in terms of energy consumption will be significant? Living conditions as a result of vandalism or its containment will also be significant. Do not the Government think that the effective management of the Wolds establishment as a whole will be better undertaken where the managers in charge take responsibility for energy and vandalism?
Earl Ferrers: My Lords, I do not agree with the premise of the noble Lord's question. The contractors

1137
do have regard to vandalism. I remind the noble Lord of what Her Majesty's Chief Inspector of Prisons said. He produced a very good report. He gave praise for the staff attitudes, for their relationships with the prisoners, for the amount of time out of cells which the prisoners have, for the civilised meal times which they have, for the good quality food and for the opportunity for visits. All those are plus points. They are for those people who are put on remand and who have not yet been sentenced by the courts. That is why they have to be kept in the way in which they are kept.
Lord Harris of Greenwich: My Lords, the noble Earl has indicated what he described as the plus points identified by the Chief Inspector of Prisons in his report on the Wolds. Does he also recall that there were one or two minus points in the report, particularly with regard to the level of drug abuse taking place at the Wolds? Perhaps I may come to the second point; namely, the costs involved. The Government spend a great deal of time telling us about the desirability of achieving value for money. How can we be obtaining value for money when the taxpayer is having to pay £30 million to Group 4 rather than the £21.5 million specified in the contract? Is that not a clear indication that there has been serious negligence in the drawing up of the contract?
Earl Ferrers: My Lords, I do not think so at all. If the contract excludes electricity and gas, then the contract is that much smaller. If the contract includes electricity and gas, the contract is that much the bigger. The totality is the same.

RAF Squadrons: German Bases
2.51 p.m.
Lord Craig of Radley Lord Craig of Radley asked Her Majesty's Government:
Whether any of the Royal Air Force's operational squadrons, at present based in Germany, are to be disbanded or relocated to the United Kingdom without replacement.
The Parliamentary Under-Secretary of State, Ministry of Defence (Viscount Cranborne):My Lords, as the House is aware, we are at present engaged in the Defence Costs Study which has examined all aspects of the support provided to our operational forces, including basing arrangements. We hope to announce the results of the Defence Costs Study shortly.
Lord Craig of Radley: My Lords, I thank the noble Viscount for his reply. Are the Government aware that the simple single word "no" as an answer to my Question might have been more acceptable to the House, to our NATO allies and indeed to our ground forces in Germany? In recent years we have considerably reviewed our presence in Germany and elsewhere. Are there any new geo-political factors which now lead the Government to believe that further changes in our deployments in Germany are necessary?
Viscount Cranborne: My Lords, the noble and gallant Lord will be as aware as I am that the Defence
1138
Costs Study has proceeded on two principles: first, that the front line capability of our Armed Forces will in no way be decreased; and, secondly, that within the strictures of that rubric there should be no sacred cows. I would point out to the noble and gallant Lord that considerations of the solidarity of NATO are paramount to Her Majesty's Government. Those considerations must influence any decision about future basing of RAF squadrons in Germany. Equally, he will be aware that last year at least 60 per cent. of all low-flying training conducted by Germany-based squadrons with the RAF took place in this country.
Lord Mason of Barnsley: My Lords, is the Minister aware that he ought to be able to give an indication to the House of the extent to which the front line will be preserved by using squadrons of the Royal Air Force? He also ought to know by now the strength of the squadrons. Secondly, what are the views of the American and German governments on either a partial or total withdrawal of the squadrons from Germany?
Viscount Cranborne: My Lords, the noble Lord's distinguished service as Secretary of State for Defence is universally recognised in your Lordships' House. I respectfully remind him that, although I am well aware of what decisions are likely to be announced in the near future as a result of the Defence Costs Study, he of all people would not expect me to anticipate the statement of my right honourable friend in that respect. If I followed him down the path down which he encourages me to go I would be breaking that stricture. I am sure he would not like me to do that.
Lord Hailsham of Saint Marylebone: My Lords, will my noble friend bear in mind that, important as front line strength may be in the maintenance of our Armed Forces, there are people who believe that reserves are also necessary?
Viscount Cranborne: My Lords, as is almost invariably the case, my noble and learned friend puts his finger on a most important point. I can do no more than subscribe absolutely to what he says. It is a sentiment which I expressed myself at my biannual meeting with the TAVRAC council this morning and one with which, I am sure he will not be surprised to hear, it wholly agreed.
Lord Mackie of Benshie: My Lords, will the Minister clarify his previous statement that the basis for the review is that there will be no reduction in the front line strength? He also said that there are no sacred cows. I assume he means that there will be no reduction in front line strength.
Viscount Cranborne: My Lords, perhaps I did not express myself as clearly as the noble Lord would have liked me to express myself. I can only reiterate that, subject to the all-important proviso that there will be no sacred cows, we expect to be able to make announcements which conform with the objective very shortly indeed.
Lord Molloy: My Lords, is the noble Viscount aware that the British people and those of us who were

1139
involved in D-Day and what followed will know how much we depended on the magnificent endeavours of our Royal Air Force? Even the Americans, with regard to the Gulf War, acknowledge that the endeavours of our Royal Air Force made a massive contribution to bringing that campaign to a successful conclusion. Can the Minister please say that there will be no reduction in our Royal Air Force? If there were to be such a reduction, we would be endangering the security of our island home.
Viscount Cranborne: My Lords, I do not know how I can make it much clearer than I have endeavoured to do already, but I shall attempt to do so. I can reassure the noble Lord that when the announcement comes the proviso which my right honourable friend made when the Defence Costs Study was announced will be fulfilled. There will be no reduction in the front line defence capability of the Armed Forces as a result of these studies. We hope that we will be able to do our business better.
Baroness Strange: My Lords, can my noble friend confirm that it is an old British custom to wait until Parliament has risen before announcing defence cuts?
Viscount Cranborne: My Lords, my noble friend's experience of your Lordships' House is rather longer than mine and therefore I defer to her experience in this matter. All I would say to my noble friend is that we hope to be able to make this announcement in good time not only for your Lordships to be able to consider the matter but also to have the opportunity perhaps to hold a debate before the House rises.
Lord Bruce of Donington: My Lords, the noble Viscount said that in the review there would be no sacred cows. Is he aware that, even under this Government, cows do not fly? Will he explain a little more clearly exactly what he meant by that ominous statement?
Viscount Cranborne: My Lords, since we are venturing into the world of the animal kingdom, I am glad that the noble Lord did not talk about pigs flying. He will perhaps excuse me if I ventured into demotic English when I talked about sacred cows. I endeavoured to convey that all matters were open to examination so long as the front line was not cut. I ought to add that we recognise that, in order to be effective, the front line must have effective support as well.
Lord Dean of Beswick: My Lords, is the Minister aware that in saying that the front line defence will not be cut he is implying that we are getting rid of surplus capacity? Bearing in mind what happened in the 1930s because of the dangerous cuts in the Armed Forces of this country and what those precipitated, does he not understand that people of my age group, who remember what happened then, are becoming more than a little frightened that we may be approaching that situation once again and that we may be rendered helpless militarily?
Viscount Cranborne: My Lords, the noble Lord is rightly concerned about the defence capability available to this country and I pay tribute to the sentiments that he has often expressed both privately and to your Lordships on this subject. What I must ask him to do, as I must ask the rest of your Lordships to do, is to be a little patient yet and not tempt me down a road which would earn me the opprobrium of my right honourable friend if I were to make announcements before he were able to do so himself.
Lord Avebury: My Lords, will the Statement deal with the replacement or refurbishment of the ageing Lockheed Hercules transport aircraft without which our forces will not be able to get to any front line?
Viscount Cranborne: My Lords, at the risk of titillating your Lordships more than I would like to, I can say that I know the answer to that question, but that I am unable to give it until I make the Statement in your Lordships' House.
Lord Williams of Elvel: My Lords, the noble Viscount said that he was well aware of the decisions which have been taken under the Defence Costs Study. Has he had the opportunity of reading an article in the Observer of Sunday 19th June this year quoting senior defence sources? I quote from one senior defence source in the newspaper:
'The Government is also going to keep the issue of the squadrons in Germany separate from the Defence Costs Study … because it is felt that it would be difficult politically to bring back squadrons from a front-line role like Germany while trying to keep up the claim that the front line will be preserved".
Is that the view of the Government?
Viscount Cranborne: My Lords, I am always very interested in speculative articles in the press from any source. I am delighted that the noble Lord, Lord Williams, reads the Observer with such assiduity. But that article is highly speculative in nature and the noble Lord would not expect me to give an answer prematurely purely based on a hypothetical assumption which is based on an assumed leak or at least a presumed leak. I doubt whether that is something which the noble Lord especially, if he were in my position, would be tempted to answer.
Lord Williams of Elvel: My Lords, can we now assume from the noble Viscount that the whole question of the RAF squadrons in Germany will be dealt with in the Statement which the noble Viscount will certainly wish to repeat in this House when it comes?
Viscount Cranborne: My Lords, again, I am sure that your Lordships and the noble Lord, Lord Williams, will forgive me if I answer him very clearly that he can assume nothing. I hope that all will be made clear in due course. All I can do is crave your Lordships' indulgence in a little more patience.

Criminal Justice and Public Order Bill
3.2 p.m.
Report received.
Clause 1 [Secure training orders]:
Lord Carr of Hadley Lord Carr of Hadley moved Amendment No. 1:
Page 2, line 16, at beginning insert ("Subject to subsection (2A) below").
The noble Lord said: My Lords, in moving this amendment in the name of myself and my noble friends, I wish to make it absolutely clear to your Lordships what these amendments will do and what they will not do. It is important that we should be clear on both those points. First, perhaps I may stress what these amendments will not do. They will not alter the proposed new sentence of secure training orders in any way. They will not weaken or strengthen them, and they will remain exactly as they stand in the Bill. Many of us (and I am certainly one of them) have extreme distaste for putting children into custody. We are talking about children of 12 to 14 years of age. But in the circumstances in which we find ourselves at the moment, I and my supporters accept, and I hope that the House as a whole will accept, that it is necessary to put a small number (it is estimated 200 to 300 throughout the whole country) of wholly unruly tearaways into a period of custody. However reluctant one may be to accept that, I do accept it. These amendments do not weaken that in any way. In fact, we specifically support the concept of the new sentence of the secure training order.
The second thing which these amendments will not do is to alter in any way the nature of the proposed secure training centres. The Bill intend that five centres should be provided in different parts of Britain, each taking up to 40 of these tearaways. We do not weaken that in any way. The proposals for secure training centres remain untouched by these amendments.
I can be quite brief about this. I now draw your Lordships' attention to what the amendments will do. They give the courts, and I emphasise the magistrates' courts, not officers of either local or central government —extra powers which they do not possess at the moment. In the Bill as it stands when a court has decided that the appropriate sentence is a secure training order, they have no option but to send the children for whom they are giving that sentence to one of the five new secure training centres. That is the only thing they can do. They have no option in the matter.
In the amendments we are proposing that they should have an option. That option should be that the courts are able to direct that the requirement of the secure training order be carried out in the secure accommodation provided by local authorities throughout the country and which exists at the moment. Those places are being increased by 170 at the moment by concurrent action by the Government through the Secretary of State for Health. We are proposing that the courts should be given that option.
I wish very briefly to stress to your Lordships—and we hope that noble Lords agree—that what we are proposing is not in any way a soft option. It is maintaining the new sentence untouched and, in our
1142
view, strengthening it. Now the magistrates have the choice, if our proposals are carried through, either to send the person to a secure training centre or to local authority secure accommodation which is a power that the courts do not possess at the moment.
What are the advantages which we see in these proposals? Above all, we see the advantage of flexibility in punishment and rehabilitation. I think that the Government share my belief that this flexibility is good penal policy in principle. It is the magistrates who are given this flexibility. If we wish the magistrates to be responsible and to do what only they can do—that is to say, judge the merits of each case and the needs of each individual child that comes before them—it seems to us that it is the magistrates who ought to have this option and this degree of flexibility.
The courts will no doubt think that some children need to be sent away from home. As regards others, the courts may feel that they should be kept at home. Many of us will see the importance of that wherever that is possible. But the option is there: some can be kept near home and some can be sent a long way from home. The courts may think that some children ought to be kept in security in small groups of mixed types. The courts may believe that other children need to be sent away to be kept secure among a larger number of children of the same type. Once again, it would be for the court to decide which type of treatment is most suitable for each offender whom it is sentencing. That is the advantage in principle and practice.
The second advantage which we see is the realisation that we are embarking on a new field in dealing with children between the ages of 12 and 14 in these ways. It is unknown territory. We believe that there should be some opportunity to compare how different forms of treatment work in practice and how successful or unsuccessful they are. If we depend entirely on just five training centres throughout Britain, separated by long distances, there will be no comparison and they will have a monopoly of treatment. To have the option we suggest, there will be a growing standard of comparison by which Home Secretaries of the future can judge the appropriate way to deal with these terribly difficult and dangerous young children.
The third, and I would have thought very appealing, advantage, not only to the Government but to the country at large which is dying to see something done about this problem, is that if our amendment is adopted it will greatly reduce the delay in being able to implement the secure training orders. So long as the orders can be implemented only in one of the new training centres, we shall have to wait until they are built. Indeed, until the Bill is on the statute book the centres cannot even be contracted for. They then have to be built and staffed. Furthermore, there is bound to be a delay, which I suggest will be measured in years rather than months, before they can be tested. Meanwhile the urgent need to deal with the tearaways cannot be met by the means of the secure training orders.
However, secure local authority places exist at the moment and are in the process of being greatly increased by the concurrent action of a different Minister in the same government. The Secretory of State

1143
for Health is providing resources for local authorities to add no fewer than 170 to the number of secure places they have at their disposal at the moment. I believe that that brings the local authorities' capacity of secure places to over 300, of which about half exist at the moment, the other half being in the process of construction. But if we keep the Bill as it stands, we shall all have to wait until the new units have been built, commissioned and put into operation. Therefore, I believe that there is a very big advantage to be secured in the public interest by adopting the amendments.
The fourth advantage, so far as can be discovered from the soundings that I and my friends have taken, is that our proposal would be welcome to both magistrates and the police. We should not disregard that.
Finally, I wish to stress that our amendments do not weaken, but strengthen, the Government's proposals in this very difficult area. They are not in any way a soft option. I beg the Government to treat them seriously and to give them a trial. I beg to move.
Lord Gray: My Lords, I wish to add my voice in support of Amendments Nos. 1 and 2. I need not elaborate on the case so ably made by my noble friend Lord Carr. I hope that my noble friend the Minister has been persuaded that this is a clear opportunity to reinforce the Government's policy of introducing the secure training order. As has been pointed out, the amendments are a clear endorsement of that policy but offer a flexibility which we hope will enable magistrates to vary the application of secure training orders to meet the various different criteria to which my noble friend referred.
When the model of a new provision is introduced in this way, it is often subsequently found to be too inflexible. Surely it is better to anticipate than later to amend. I put it to the House that in these two amendments we are being asked to endorse Her Majesty's Government's policy and to reinforce it by sensibly adding to the core provision. I support the amendments.
3.15 p.m.
Lord Hailsham of Saint Marylebone: My Lords, I suppose that very seldom in recent years has an amendment been proposed by such authoritative and eminent persons as those whose names appear on the Marshalled List. They include a former Home Secretary; sitting next to him, my noble friend Lord Elton; and sitting opposite me, a former permanent secretary. I do not know that you can do much better than that. I am sure therefore that my noble friend the Minister will pay great attention to what has been so well said by my noble friend Lord Carr and by my noble friend Lord Gray.
I hope that I shall not be regarded as churlish if I raise a doubt about the amendment. It was at the bottom of the case made by my noble friend Lord Carr that he was not altering the nature of—by which I take it that he includes the philosophy behind—the new secure
1144
training order. I question whether that is the case. When my noble friend the Minister replies, I should like him to reassure me.
My noble friend Lord Carr accurately said that the object of this new departure—and it is a new departure —is to create a special sentence or treatment that will be accorded, at least in the short term, to a relatively small number of people, a tiny fraction of those who have custodial sentences. I refer to the very young persons between prescribed ages who will amount numerically to 200 or 300 persons altogether. I believe that that is what my noble friend said and I accept his figure.
I had understood that the idea—this is where I want reassurance from my noble friend the Minister—was to place those young people in a relatively few places of secure detention quite different from the ordinary secure places customarily provided by local authorities for persons who have to be detained against their will. The object is basically that although security is at the forefront of the treatment—an obvious necessity in the case of those few young people—the real purpose is to reform them by a special regime. That is what I understood to be the philosophy.
I come now to the point at which I question whether my noble friend can justify his amendment on that philosophy. Although he says—with complete convic-tion, I am sure—that he is not altering the nature of the sentence, I believe that the amendment does alter it. Side by side with the provision of a very few highly specialised places where reform takes place in secure conditions, my noble friend seeks to give to the courts —I shall return to this point in a moment—an option to mix that with the ordinary run of secure accommodation at present provided by the local authorities. I question whether it is compatible with what my noble friend the Minister has in mind in proposing the centres to mix those young people with the ordinary population of those requiring places in secure detention. They must include mentally deficient persons and persons of a quite different character to those for whom the secure training order is designed.
I turn now to my second point on the proposed amendment. Is what is proposed in the amendment, as distinct from that proposed in the Bill as it stands, a proper function either of the judiciary or of the magistrates' courts in particular? No one is more enthusiastic than I for the quality of our lay magistracy and its continuation. Indeed, every Lord Chancellor who sits on the Woolsack automatically becomes president of the Magistrates' Association. I hope that I did nothing during my term of office—and I certainly have no desire to do anything now—to depreciate in any way the value of the magistracy. It carries out immense work in England and Wales and does so to almost universal satisfaction, despite occasional criticisms of particular decisions. It is a popular and enormously successful institution, specific to England and Wales. I do not wish to say anything by way of criticism.
However, I question whether the option to put a particular patient or convicted young person into one of the special secure training centres which my noble friend has in mind or mix them up with the ordinarily

1145
secured population of local authority people is a good policy, or a matter for judicial discretion as distinct from an administrative decision.
I have one further comment to make which is not intended as a criticism of the magistracy. The magistracy is essentially a local institution all over England and Wales. It delivers a very high quality of justice. However, what it does not deliver nationwide is absolute consistency of policy; indeed, it cannot do so given the nature of the institution. If we are to try the suggested experiment we must have consistency of policy. I believe that that is better provided by the Bill as it stands than by the proposed amendment.
I should like my noble friend to comment on that aspect of the matter. I may have got the whole thing absolutely wrong, because I am not into the treatment of young offenders like my noble friend Lord Elton who is an expert on the subject, but I view the present proposal as one which might destroy the very valuable experiment—as I believe it to be—proposed by my noble friend the Minister. I entirely accept from my noble friend Lord Carr that he does not think that it will alter the nature of the sentence, but he has failed to carry my conviction with him in that argument. I believe that it will. I wonder what my noble friend the Minister will say in his response. I apologise to the House for speaking at such length, but we are discussing an important amendment which might destroy the whole purpose of the Bill.
Lord McIntosh of Haringey: My Lords, the noble and learned Lord concluded his speech by saying that there was a possibility that he had got the matter absolutely wrong. With the greatest of deference to him and his legal experience, I suggest that he has done so. The noble and learned Lord does not understand the nature of local authority secure accommodation or the various needs of different children for whom secure training orders may be appropriate.
The noble and learned Lord said that the effect of the amendment would be to mix up those youngsters with the ordinary run of persons in local authority secure accommodation. Indeed, he not only said it twice, he said it three times. Well, there is no ordinary run of children in local authority secure accommodation. One of the actual benefits of local authority secure accommodation is that it contains a wide range of people but not, as the noble and learned Lord suggested, the "mentally deficient"—if that is a term which is still acceptable, which I doubt. Such people would certainly be under medical supervision of some kind. However, accommodation is available for those who are disturbed, those who are in need of protection as well as for those who are guilty of serious or persistent offences. I see that the noble and learned Lord wishes to respond. I give way.
Lord Hailsham of Saint Marylebone: My Lords, I am much obliged. The noble Lord is perfectly right. I ought not to have used the phrase "mentally deficient". However, the noble Lord has grasped the exact meaning of what I was saying and is now expounding it.
Lord McIntosh of Haringey: My Lords, I recognise that fact and I am grateful for the noble and learned Lord's intervention. Indeed, it has strengthened the point that I am trying to make; namely, that there are genuine differences between local authority secure accommodation and the secure training centres proposed under Part I of the Bill.
The point that I wish to make is not to say that they are all the same; in fact, I wish to say the very reverse. Different kinds of secure accommodation are suitable for different kinds of offenders. Who is better able to know which kind of accommodation is suitable for different offenders than the magistrates or the courts? The noble and learned Lord suggested that it should not be a matter for judicial decision but that it should be a matter for administrative decision. That was the contrast that he made. I find that extraordinary. I should have thought that it is only those who actually come into contact with the child—and not administrator—who would be able to specify the appropriate place for that child. To me, that means the courts backed up by professional judgment, whether it be social workers, a matter of medical judgment, or whatever assistance is available to the courts. In my view, the point made on the need for judicial judgment backed up by professional opinion strengthens the arguments for the amendment before the House.
No one is saying that the same accommodation is suitable for everyone. However, the Magistrates' Association, of which the noble and learned Lord was a distinguished president in his time, said in terms that there are many young people for whom local accommodation, or local accommodation which allows access to their families, and vice versa, is a most important part of rehabilitation. That was said in response to the consultation document on secure training orders. As I understand it, for that reason the Magistrates' Association supports the amendments. On reflection, I hope that the noble and learned Lord will accept that those with whom he has been in contact who do understand such issues and who support the amendments may have a measure of truth in their arguments.
Lord Stewartby: My Lords, when I first read my noble friend's amendments I found them rather attractive. However, the more I reflected upon them, the more I have come to doubt whether they would in fact be as benevolent and innocuous as my noble friend suggested. I entirely accept the constructive spirit in which he has put forward the amendments. In view of my noble friend's enormous experience and great wisdom, I believe that his proposal deserves the most careful consideration.
However, I have reservations which are not dissimilar to those of my noble and learned friend Lord Hailsham. Although my noble friend Lord Carr suggested that the centres would be untouched, if a regime of the kind proposed in the amendments was introduced, I believe that it would change the way in which a considerable number of young offenders would be treated. Indeed, it would have an impact as regards uncertainty, staffing and the implementation of the

1147
process of training and education which I understood was a central part of the Government's proposal in setting up secure training centres. The reason for establishing such centres seems to me to be only partly to do with security and more specifically to deal with the problems presented by the care and rehabilitation of that unfortunate group of young offenders. I say "unfor-tunate" because they are unfortunate for themselves and highly unfortunate for society at large.
The security aspect could be handled in different ways. For example, it could certainly be handled by the route suggested by my noble friend's amendments. However, if the amendments were carried it would be that much more difficult to set up and operate the particular regime of training and education which, as I understand it, is at the heart of the proposals. Secure training orders are designed to enable the young offenders concerned to have the care of specialist staff, not only in relation to the security aspect but also in relation to treating the particular problems of personality and behaviour which are exhibited by those who may have become subject to secure training orders.
If we were to fragment the arrangements for their custody, we should clearly have to fragment the arrangements for their care, training and education. I do not believe that that is necessarily right. The proposed special secure centres are to be set up not only to incarcerate the offenders in an effective fashion but also to implement a regime which would be consistent not only among offenders but also among centres, and so provide an established means of trying to deal with that particular social and criminal problem.
It may be, like my noble and learned friend Lord Hailsham, that I have not understood correctly the proposals. But I do not believe that the noble Lord, Lord McIntosh, is right to suggest that my noble and learned friend has misunderstood one of the central issues; that is, whether we are talking about location or whether we are talking about treatment. I doubt whether it would be possible to implement a regime for training and education which the Government have in mind and which I thought had the general support of your Lordships if my noble friend's amendment were carried.
Clearly, if it were left to the discretion of the courts as to whether offenders were sent to a bespoke centre or to a centre provided as part of the local authority arrangements, it is likely that there would be very small groups of those offenders. Purely as a matter of practical administration, I do not see how it would be possible to provide them with the same degree of professional care, training and education which I thought lay behind the proposals.
For those reasons, I have very considerable reservations, not about the intention of my noble friend's amendment but as to whether it would be workable in terms of the intentions of the legislation.
3.30 p.m.
Lord Avebury: My Lords, the noble Lord, Lord Stewartby, and the noble and learned Lord, Lord Hailsham, have put their finger on an important issue; that is, whether or not a single regime applies to all the
1148
children who will be sentenced under those provisions. I think that the amendment moved by the noble Lord, Lord Carr, deals extremely effectively with that because the noble Lord is saying that in some cases a different regime from that which obtains in a large purpose-built and purpose-staffed centre may be appropriate.
The noble Lord who has just spoken referred to "the" regime. Of course, the noble Lord, Lord Carr, does not oppose the Government's proposals to establish a single set of training, education and care facilities which apply across the board to the five centres, each of which contains 40 children, spread across the country. The regime will be identical in all of them. There will be the same kind of professional staff and the same education and training. That may well be suitable for some of the children but, as the noble Lord, Lord Carr, said—and I agree with him—a more flexible system would be appropriate to meet the needs of children who may not fall into a pattern which is readily dealt with by the single system or a single regime. They may be better dealt with in local authority homes which are used to dealing with a wide variety of children on a much smaller scale.
The staff in those homes may not have the breadth of professional expertise. But if the courts were to send children to those homes, that professional expertise could be acquired. It would not necessarily have to be available on a full-time basis. For example, one must accept that a small local authority home which has five children would not have a full-time psychiatrist; whereas it may be possible to have that level of expertise in a large secure training centre with 40 children.
I wonder whether the noble Lord, Lord Stewartby, and the noble and learned Lord, Lord Hailsham, have overlooked the provisions in Clause 2(4) where the Secretary of State already has power to transfer offenders from a secure training centre not just to local authority secure units, as proposed by the noble Lord, Lord Carr, but to any other place which he may direct.
Lord Hailsham of Saint Marylebone: My Lords, I have not overlooked that at all. It is a point with which I could deal but in the interests of brevity, I did not do so.
Lord Avebury: My Lords, I am grateful to the noble and learned Lord. I mention that now to point out that the Government envisage that there may be circumstan-ces in which children are dealt with more appropriately either in local authority secure units or in some other and completely unspecified place which will presum-ably be of a secure nature.
Therefore, I suggest to the noble and learned Lord that if the Secretary of State should have those powers, then surely the courts should have them. The courts see all the circumstances of the child who is before them. They must then be in a better position to make the decision as to the appropriate kind of accommodation for that child than the Secretary of State who makes his decision on the basis of written evidence placed before him, without seeing the offender and without having the nuances of all the evidence that has been given in court., Therefore, on reflection, the noble and learned Lord may

1149
agree that the widening of the courts' powers would be a good idea; and that they add to and do not detract in any way from the Government's proposals in this Bill.
Baroness Seccombe: My Lords, I accept that secure training orders cannot come into force until the properly prepared accommodation is ready, which I understand it will be in 1995. But I believe that it is vital to have the centres with their challenging regimes and strong emphasis on training and education.
If there are only two or three of those persistent offenders in each local authority unit, it would be impossible to give them the high quality education programmes and the training necessary to try to change their patterns of behaviour.
There are no spare places in local authority education and the extra places promised are already designated for other purposes. I understand that the occupancy of local authority units is made up of roughly one-third young people on remand, some of whom may never be convicted; another one-third who have committed a very grave offence; and the remainder are there as a result of civil cases and are in the care of the local authority, and it may be that they have been abused. It cannot be right to place young persistent offenders in the same unit as those vulnerable groups whose minds no doubt would soon be contaminated. They have enough problems of their own.
Much is made of keeping young offenders in local authority accommodation nearer to their homes, but that just does not happen at present. Many young people are not kept near home at all. The National Bed Bureau, which is based in Leeds, allocates them to secure units as and when places become available. An example of that was a young offender from Bolton who was placed in Kidlington, Oxford, after 70 convictions. He actually escaped on a sightseeing tour.
As was said by many noble Lords in Committee, sadly many of those young people come from broken homes or come from families which just cannot cope. The discipline and structure of the unit are essential in order for them to sort out their lives.
It is widely recognised that people want and expect to be protected from these hardened young criminals and I believe that there is wide acceptance of the fact that something must be done. I was interested to read in the June 1994 edition of the Magistrate an article headed:
"Persistent Young Offenders: What Can Be Done?".
It was written by Dr. Michael Little, a research fellow at the Dartington Social Research Unit. He stated:
"We frequently hear that more priority should be given to protecting and public and perhaps less to crime prevention, looking after delinquents and improving the living conditions of those locked up. The balance between these two may be wrong. Talking to people on housing estates who feel they cannot leave their house for fear they will be burgled, one immediately senses that more needs to be done and perhaps recent prescriptions could even be right".
I believe that they are right. The Government have responded to the public who want something done to deter the few unruly persistent young offenders. I urge your Lordships to reject this amendment.
Lord Gisborough: My Lords, the secure training centres will be concentrations of the most disruptive 12 to 14 year-olds in the country who have no redeeming
1150
influence. Some of these youngsters will inevitably be up to 100 miles from their homes. In some cases, that may be a good thing where the families are a particularly bad influence. But, by and large, I understand that practitioners believe that the distance will make their task harder, reform more difficult and their efforts less likely to achieve success.
If some of the offenders could go to local authority secure centres and others to secure training centres, both systems would be able to compete with each other to prove which was the most successful and, not least, the most cost effective. All past experience suggests that there is little that can be done to cure the worst cases but at least competition will indicate the least unsuccessful approach and perhaps spur on greater effort.
One of the biggest complaints by magistrates and judges alike is that the Government try to lay down exactly what should be done with each offender. But every case is totally different; every offender is totally different. Thus, it would be far more effective to let the court, on the information it receives and within certain guidelines, make its own judgment as to whether it would be better for a child to have the discipline of a local authority centre or sent to a secure training centre.
I understand that local authority centres are regularly visited by teachers employed by the authority. On the other hand, I wonder how many good teachers will be persuaded to accept posts at secure training centres which deal with concentrated numbers of these evil youngsters.
This amendment in no way weakens the disposals for these young criminals; indeed, it strengthens it Apart from anything else, it allows these young people to be locked up forthwith without having to wait for a year for the secure training centres to be built. Local authorities would not be able to release these young people for any reason without the decision of the court. There would be no sending them on safari.
I was on the board of the Wellesley Nautical School during the period of the Borstals and approved schools. We all know that that system failed and was scrapped. But unlike the Borstals, the Wellesley had a mixture of boys ranging from those sent there in its role as an approved school to those who were there voluntarily. They lived in fairly spartan conditions, which were perfectly good enough and certainly much better than some of the accommodation that I suffered when I joined the Army. The result of the training and the mixture of people within the school was that there was a fair measure of success. After training, most of the boys went off to sea and there was even a reasonable degree of success among the worst of the entrants.
Lord Harmar-Nicholls: My Lords, I do not—
3.45 p.m.
Lord Allen of Abbeydale: My Lords, I believe that the Cross Benches should have an innings. We have heard a great deal from Members on the Conservative Benches. Having put my name to the amendment, I wish to make four brief points. The first is that it will, for the first time, give a clear power to the courts to send a child to secure local authority accommodation. That will fill

1151
the gap to which I referred in Committee. The noble and learned Lord, Lord Hailsham, raised doubts about the judiciary being involved. Perhaps I may remind him that the courts are already involved in authorising detention in secure local authority accommodation, but only after a kind of ping-pong, prolonged negotiation with the local authority—
Lord Hailsham of Saint Marylebone: My Lords, no, the noble Lord has not understood my argument correctly. My argument was that the secure training order obviously was a matter for the courts and so, of course, is sending an offender to a local authority unit; but the two were incompatible and once a secure training order had been made the child should receive the special treatment.
Lord Allen of Abbeydale: My Lords, I note what the noble and learned Lord says and our observations are on the record. As the noble Lord, Lord Carr, said, what is proposed in the amendment does not represent a soft approach to crime. On the contrary, it extends and toughens the powers of the court. Secondly—and here I am on good ground in saying that this point has some relevance to that made by the noble and learned Lord and by the noble Lord, Lord Stewartby—whatever happens to Amendment No. 6, under the terms of the Bill a considerable number of children will qualify for consideration for a secure training order although their behaviour will have fallen a long way short of that described by the Government in justification of their proposals. If in the case of any of these children the courts regard as inappropriate detention in what is, in effect, a gaol they will now have the new alternative of committal to a secure local authority unit.
Thirdly, although there is certainly a need for more uniform provision of secure local authority accommoda-tion—taking up the point made by the noble Baroness, Lady Seccombe—and for more uniform standards of management, which is in train, the facts are that a number of these units exist; that contrary to what is often said they are secure; that they provide training and education (and I shall be surprised if the new units are able to match that standard of education); and that they will be available to the courts at once while the other units are being built.
Fourthly, it may be a good thing for some of these children to be detained far away from their families and the surroundings which helped to lead to their delinquency. But for others the best hope will lie in retaining their connections with the family and the local social workers and doctors who know them. This amendment will mean that when the whole scheme is working the courts will have a choice in deciding what is the best course to take. Having listened to the various speeches that have been made today, I remain strongly in support of the amendment.
Lord Harmar-Nicholls: My Lords, I wish only to put a question to my noble friend. I do not believe that my noble and learned friend had got it wrong. He raised a point that ought to be examined in depth. I had been almost completely won over by the fluent and
1152
reasonable way in which my noble friend Lord Carr presented his amendment, but the doubt put into my mind has revived what I thought the Bill was about. I thought that in trying to face up to the dangerous section of young people who appear to have got away with things under the present regime we were going to set up five centres which would have a different approach. The amendment provides that in order to give the magistrates flexibility we should at the same time have local authority units.
We do not know yet whether the local authority units could be improved, as the noble Lord has just said, by the introduction of this Bill. However, if local authority provision remains as it is at present, or similar—this is my question—if the power is retained to send the people we are discussing to local authority units, and in individual cases it is seen that that is not successful, would it be possible under the amendments (or, if they were accepted, under the Act) to switch the people we are discussing from the local authority unit to one of the five new centres? If that could be done, part of my doubts would be removed. It would be a case of the penny and the cake. However, I am not certain that, at present, if these people were sent to a local authority unit, it would be possible, in the light of their experience in that unit, to switch them to one of the new five centres.
Lord McIntosh of Haringey: My Lords, before the noble Lord sits down, I should say that if he also reads Amendments Nos. 3 and 5 he will find the four amendments meet his points exactly.
Lord Harmar-Nicholls: My Lords, we must accept those amendments before my question is answered. The House may accept one amendment but not the others. It ought to be made perfectly clear whether the switch I am discussing would be possible if, in the light of experience, it proved desirable.
Lord Dixon-Smith: My Lords, the amendment proposed by the noble Lord, Lord Carr, rightly appeals to the proper humanitarian instinct which I would expect to find in every Member of this House. However, there is one aspect of these amendments that I wish to draw to the attention of the House which has not yet been mentioned. Subsection (5) of Clause 1 sets out the conditions which must apply before a secure training order may be made. The first paragraph deals with the question of age. I have nothing to say on that. Paragraph (b) of Subsection (5) states that the offender must have been convicted,
"of three or more imprisonable offences".
I suppose it is just conceivable that a child may, on his first outing, commit three or more imprisonable offences, but I have to say that I think it is highly unlikely. Indeed, I think it is very unlikely. Further, the offender, on either this or a previous occasion, must, under paragraph (c) (i) have been,
"found by a court to be in breach of a supervision order",
or to have been convicted,
"of an imprisonable offence … whilst he was subject to such a supervision order".
Anyone who is subject to a supervision order will already have been in the hands of the local authority

1153
system. He will have been dealt with by social services and the probation service. It seems to me that the amendment of the noble Lord, Lord Carr, invites the magistrates, for the best and the most humanitarian of reasons, to decide to put these offenders back into the hands of those who—heaven help us, with the best of intentions—have probably already failed them; or worse still, the offenders will feel that they have beaten that system. I cannot in all conscience accept that that is a reasonable way for us to go on. I have to say that I cannot support this amendment.
Viscount Tenby: My Lords, I wish briefly to support the amendments in the name of the noble Lord, Lord Carr, and other noble Lords, and also to refer briefly to the consequential implications should those amend-ments be passed. In Committee I drew the attention of the Chamber to the fact that what was needed was not the costly introduction of five secure training units but instead a conscious effort on the part of the Government to bring secure accommodation up to snuff. Accordingly, I very much welcome the remarks that the noble Lord made while introducing his amendment.
The noble Lord, Lord Stewartby, indicated that security was not the prime consideration but that rehabilitation was. Well, whether or not that be true—I cannot imagine, I have to say, wholehearted government endorsement of that view—it certainly does not invalidate the case for local secure accommodation. Post-sentence rehabilitation has much more chance of success, surely, in a local environment. Such local accommodation, with the emphasis on security, should be available throughout the country so that magistrates should have an easily accessible option open to them. Magistrates ought to be able to remand the tiny core of hard offenders into custody in secure accommodation, not necessarily into local authority care for assessment and eventual return to the courts for sentencing. It is frequently during such a hiatus that continued offending takes place. That is half the trouble.
Finally, we must ensure that local authorities are totally committed to the culture and use of secure accommodation locally. The fact is that some local authorities make better use of it, and are more firmly committed to it, than others. Surely it is for the Government to set uniform standards on local authorities in this respect and to see that they are followed.
Baroness Miller of Hendon: My Lords, I have to oppose the amendment proposed by my noble friend Lord Carr on the very simple grounds that it misses the whole point of this measure. A secure training order is intended to deal with the most persistent of young criminals who have been found guilty of several very serious offences. I am talking about young criminals, not young offenders.
The purpose of the secure training orders is twofold —first and foremost to protect the public from young criminals who have proved themselves impervious to reason, and unamenable to previous attempts at reform and who have flouted any number of previous attempts to give them another chance; young criminals who regard any leniency as a sign of weakness and a licence
1154
to continue with their previous anti-social ways. Their ways are more than anti-social because those who are involved in car crimes are putting themselves and innocent members of the public at risk of life and limb, while the persistent burglar or mugger strikes fear into his victims and potential victims.
The second purpose of a secure training order of course is as a deterrent. The young criminal who is given one conditional discharge after another, or who is returned time after time to the care of a local authority which has been unable to prevent him from continuing to offend, considers that he has, in his words, "got off". What is required is consistency of treatment. The noble Lord's amendment makes the sentence a total lottery.
In one court the young persistent criminal will be sent to a secure training unit set up under this Bill. In another he may be sent to one set up by the local authority, with whatever standard of training the local authority's social services department thinks appropriate. In yet a third he may be sent off to one of those experimental centres, whose idea is to send its inmates off on safari holidays.
The amendment is the same as suggesting that an adult should be given the choice between Dartmoor, or an open prison, or Butlins! In this country it is the state which provides or contracts for the penal institutions. All the court does is to decide whether any criminal should go to detention. The Home Secretary, in effect, decides where he should be sent.
There is also a practical aspect. Your Lordships were told in earlier debates that the number of persons countrywide who may be sentenced to secure training orders was likely to be small. There is simply no way that each local authority can make suitable and cost effective arrangements for just one or two young criminals in each district and to employ the highly specialised staff that it is intended should take charge of them. The very purpose of secure training orders is to protect the public and to provide a deterrent. It is not for us to destroy that deterrent by providing what these young scoff-laws will consider to be a soft option, especially when they will soon learn in which districts they avoid the risk of the toughest regimes.
It is essential that the method of dealing with these young criminals and the regimes that they are put into are totally uniform throughout the country. This is yet another instance where the protection of the public should—and must—be placed above the interests of the persistent young criminal. I urge your Lordships to reject this well meaning, but, I believe, wholly inappropriate amendment.
4 p.m.
Lord Harris of Greenwich: My Lords, what is a soft option? I listened to the noble Baroness with increasing astonishment. I have rarely heard a less well-informed statement of the position.
The noble Baroness spoke of local authorities failing and children running away time after time from local authority care. She may or may not recall the debate we had a year or more ago when we on these Benches raised exactly that concern. The problem was the lack of local authority secure accommodation, the amount of which

1155
has declined over the past 14 years. That is the reason for the problem in the first instance. There is too little local authority secure accommodation.
The choice is not between children's homes from which children can decamp and the new secure training centres. The choice given to the court is between local authority secure accommodation and the new secure training centres. It has nothing to do with places from which children can run away. I am surprised that the noble Baroness was not aware of that point, which was so carefully explained by the noble Lord, Lord Carr, when he initiated the debate.
Baroness Miller of Hendon: My Lords, I apologise for the fact that I was not in the House when my noble friend Lord Carr spoke at the beginning of the debate.
Lord Harris of Greenwich: My Lords, I am glad to give way to the noble Baroness. However, with respect to her, if she did not hear the speech made by a former Home Secretary on this point it is surprising that she chose to make the speech she has just delivered. It is not in accordance with the traditions of this House.
Baroness Miller of Hendon: My Lords, I am grateful to the noble Lord for bringing that to my attention.
Lord Elton: My Lords, the Government have responded to a crisis of measurably small proportions caused by a handful of difficult children, to whose nature the noble Lord, Lord Dixon-Smith, aptly drew our attention, by putting forward a proposal for a form of treatment for such children. I am talking about children aged between 12 and 14 some of whom, as I said earlier, would not be able to read what was laid flat on the top of the Dispatch Box before your Lordships. It is proposed that they should be taken to five separate centres where they would be concentrated together, segregated from other offenders of a different nature and given a specific form of treatment.
My noble and learned friend Lord Hailsham rightly questioned whether my noble friend Lord Carr, and, by implication, I and his other supporters were right in saying that the essential elements of the sentence would not be changed by the amendment. There are three essential elements.
The first element is the introduction of absolute security for children of that age. The noble Lord, Lord Harris of Greenwich, dealt adequately with the misunderstanding of the situation by my noble friend Lady Miller since the sentence, either under the amendment or in the Bill as drafted, only allows the detention of children in secure places where, as my noble friend Lord Harmar-Nicholls pointed out, without a change in the Bill they must remain for half of the sentence. No-one has referred to the fact that we are talking about only half of the sentence. The noble Lord, Lord Northbourne, has an amendment down to alter the proportion. However, as the Bill is drafted, the second half of the sentence must be discharged under the supervision of the local authority, which the noble Lord, Lord Dixon-Smith, so distrusts.
The second and third features are that children shall
1156
be concentrated and segregated. Neither of those elements is a new departure. Both were features of the "short, sharp shock" experiment, more openly admitted as such than is the case with the present proposal, introduced by my noble friend Lord Whitelaw.
A Noble Lord: It was Lord Butler.
Lord Elton: It was introduced by my noble friend Lord Whitelaw when he was at the Home Office. My noble friend Lord Belstead occupied a position in which he supervised the scheme, and I succeeded him in that supervision. Noble Lords shake their heads, but I remember the campaign clearly. I was responsible in part for the scheme's implementation.
Those aspects of the treatment are not new. Nor is the fact that it is an experiment. What is new is that the experiment will be carried out at only five locations. A child aged 12 from Cornwall who comes from a large family, perhaps with a single parent, would be required under the Bill as drafted to serve the sentence in Oxford, if planning permission is granted and all goes smoothly. Whether or not the Government pay the fare to and from the centre for the parent to visit, it is unlikely that visits will be frequent. In some circumstances that may be a good thing. I am assured that there are cases— mercifully few—in which withdrawal from a family is beneficial for a child. In the majority of cases it is not. Even in that minority of cases it is not good for the child to be withdrawn some hundreds of miles from the social worker who was in charge of his case before he reached that level of criminality and who will be responsible for him on his return home. That child will be removed from the continuity of supervision which is one of the few slender, fragile threads which connect him to a life of normal behaviour.
My noble friend Lord Carr and his colleagues number among us not only, as my noble and learned friend Lord Hailsham pointed out, a former Home Secretary, a former permanent secretary at the Home Office and a former Minister of State at the Home Office, but also a practising magistrate. We believe that the magistracy has a role. When my noble and learned friend Lord Hailsham entered the debate, he asked a question. I do not know whether it was a slip of the tongue which he corrected, or whether he asked two questions. He asked whether a decision between two different applications of a sentence should be a proper matter for the judiciary. When he repeated the question he referred to the magistracy. I speak only of the magistracy, so I do not need to tempt him to clarify the matter. I see that I have tempted him.
Lord Hailsham of Saint Marylebone: My Lords, my noble friend overlooks the fact that the magistracy is part of the judiciary.
Lord Elton: My Lords, I stand corrected. I am wiser but not repentant, because it is of the magistracy that I speak. The magistracy is close to the case. The magistracy is close to the community in which the case arises. The magistracy is close to the social work department and the probation services which are

1157
involved in the case. And the magistracy has the child before it. What is the point of having a magistracy if it is not given this level of responsible judgment?
Lord Hailsham of Saint Marylebone: My Lords, I am sorry to interrupt my noble friend. He overlooks subsection (1) of the clause which indicates that the question of whether to make a secure training order is at the discretion of the magistracy.
Lord Elton: My Lords, indeed it is. Were we in Committee I would return to the point and remind my noble and learned friend that it makes no difference. That is the point I am addressing: it is at the discretion of the magistracy. We wish that discretion to be extended to the question of whether the sentence should be served in a local authority secure unit —which I remind my noble friend Lady Miller is secure—or in a secure training centre.
There is a difference between the two. In the secure training centre there will be 40 children. I once taught in a rather rough area, in a school with 1,400 pupils which was on a slum clearance estate. The thought of having 40 such tearaways together in one institution makes me wonder whether practitioners in the field are not right when they say that it is very much better to dilute the problem rather than to concentrate it, and that to have a variety of children in an institution strengthens; it does not weaken. Having those children within the bounds of the local education authority from which they come and into the care of which they must be returned must be an advantage. Those teachers know the curriculum which the child will be taught. They can talk to the teachers who taught the children at the beginning and saw when matters went wrong.
What we offer to your Lordships is not a reduction but an extension of what the Bill offers. The amendment gives a choice. I do not doubt that there will be many cases where magistrates will feel, rightly, that children should go to the specialist, concentrated treatment to which the Bill refers and for which the Government believe that they can recruit adequate teachers. However, in other cases the magistrates may think otherwise. We believe that your Lordships should honour and trust the ability and intelligence of magistrates to make that choice. I hope that your Lordships will support the amendment.
Lord Ackner: My Lords, during the course of the debate no reference has been made to the Home Office Research and Planning Unit Paper No. 66, entitled Juveniles Sentenced for Serious Offences (1992) which compared the regimes in the prison service young offender institutions with those in secure units in a local authority community home system. Its sample of young offenders consisted of boys who had been sentenced to long term detention for really serious offences under Section 53 of the Children and Young Persons Act 1933. Some were held in young offender institutions; others were placed in local authority secure training units. The purpose of the research was to point out the advantages and disadvantages for the inmates in the two different organisations or institutions. I cite some of the findings.
1158
The local authority community homes provided significantly more and better quality education and training, a greater variety of physical exercise and recreational activity, a higher level of through care, and more help and advice with detainees' problems. Thus the Section 53(2) detainees from local authority community homes were more likely to emerge with some basic qualifications, training and work experience with which to resume life in the community than were those from young offender institutions Given the frequency of poor educational records of Section 53 offenders, that was a distinct disadvantage of the young offender institutions. Perhaps I may quote from the paper:
"In addition, the study found that the general quality of life as assessed by a wide range of measures concerned with food and mealtimes, hygiene and clothing, possessions and privacy, relationships and involvement, was demonstrably better in community homes than in young offender institutions".
I quote again:
'The differences in respect of relationships were particularly significant, the YOIs being unlikely to have the close and helpful relationships between staff and inmates … which would 'help the offender assume greater responsibility for his lifestyle and understand his responsibilities to others' as envisaged in official Prison Service policy".
Finally, the observation was made:
'The study also found that offenders who had been in secure units in the local authority community home system were significantly less likely to have been reconvicted two years after release than those released from young offender institutions. The Home Office's own research evidence therefore shows that local authority secure units provide a better quality of regime for young people than larger institutions".
That seems to reinforce the: point made by the noble Lord, Lord Gisborough, that by providing the. choice which the amendment suggests, competition—so much the hallmark of the Government's philosophy—might result in the single new institution keeping up to scratch as regards policy and in particular its approach to rehabilitation which is obviously so important but which so far has not proved a marked success in the large concentrated institution. I therefore support the amendment.
4.15 p.m.
Baroness Faithfull: My Lords, I support the amendment in the name of my noble friend Lord Carr. We all have a deep affection and respect for the noble and learned Lord, Lord Hailsham. Had I not been a practitioner in this field, I would have been lured into his very good, academic presentation. However, I realise that his wonderful presentation, like that of my noble friend Lord Stewartby, is divorced from the practical experience of dealing with these children.
Many points have been made. When I was a director of social services and a children's officer, if I could possibly help it I never sent a child to an approved school because, as the noble and learned Lord, Lord Ackner, said, 75 per cent. of such children re-offended within two years of leaving the school.
I support my noble friend Lord Gisborough. I ran centres where we mixed the children. It meant that those children who were not offenders mixed well with offenders. They did not form a gang as they did when those children were all together. With good staff it is perfectly possible to help those children. Therefore I am

1159
for a mix of children. Children often do better in the smaller units. One of the basic problems is that very often the children have been in difficult circumstances and need to be able to establish relationships, one human being with another.
At present, the magistrates and the police have great difficulty through not having enough accommodation now. Perhaps I may ask the Minister what will happen here and now. It is now that people are worried. It will take two years to build the new centres run by the Home Office. A total of 170 more places are being set up. Would it not be wise to give the magistrates the power to choose where to send the children, and to relieve the police and the magistrates? I support the amendment.
Earl Ferrers: My Lords, this is an important amendment. Most sides of the argument have been canvassed, as one would expect, although possibly not all. My noble friend Lord Carr, as usual, made a very persuasive and attractive speech. That did not surprise me. It is, if I may say so, characteristic of him. My noble friend says of his amendment that it is not against government policy. He does not like locking up children. Nor does anyone else, I fancy. He accepts that in certain circumstances it is necessary. He agrees therefore with what the Government are trying to achieve in the clause. But he is not convinced that the new secure training centres are necessarily the only place in which those youths should be confined, nor always the best place. Therefore, asks my noble friend and his supporters, why not let the courts have a choice? Send the youth to the secure training centre if the courts believe that that is the right place; or send him to local authority secure accommodation if the court thinks that that is the best place. What, my noble friend says, is unreasonable about that? How, he asks, could your Lordships take any exception to that? My noble friend seems so reasonable in his view and in his advocacy of it that I feel almost churlish in suggesting that there could be another view. But I think that there is and, if I may say so, a better one.
As your Lordships know, the Government have decided that the problems which are posed by a small group of persistent offenders need to be addressed by a new response in order to prevent the lives of others in the community in which the youths live and in which they have persistently offended from being ruined and from being made intolerable. We have decided, therefore, that there should be a new sentence and new secure facilities: the secure training order and the secure training centres.
The Government considered carefully whether expanding the secure accommodation places which the local authorities have might be the best answer, but we decided that it would not be and that a new kind of facility should be created which would be specifically designed to deal with the persistent offenders. There are four main reasons for this. My noble and learned friend Lord Hailsham was quite right when he said that secure training units are new and different from local authority secure accommodation. The noble Lord, Lord McIntosh, said that my noble and learned friend did not
1160
understand the problem and had got it wrong. I do not know whether my noble and learned friend gets upset when the noble Lord, Lord McIntosh, says that kind of thing about him, but I advise him not to worry about it. My noble and learned friend was in fact quite right.
The first reason for providing a new kind of facility is that the local authority secure accommodation caters for a whole host of different and difficult people. Some are disturbed; some are as young as 10; some are as old as 18; some may be offenders and some may not. Of the 1,300 youngsters who are placed in secure accommoda-tion each year, about one-third are on remand. Half stay in security for less than a month.
We considered whether it was right to inject into this hotchpotch of people this group of offenders with their particular problems. I agree with my noble friend Lady Seccombe that it would not be right to do so and we reached that conclusion. Local authority secure accommodation is a valuable way of dealing with young people, but given the wide range of what we might call their "residents" there are limitations in the kind of regime which can be offered.
The secure training centres, by contrast, will be specifically designed to deal with persistent offenders who are within a relatively small age group. The centres will be able to provide a much more specialised regime; specialised in terms of education and of programmes which are designed to tackle offending behaviour, training them to be better. All that will be much better than is possible within local authority units.
The second argument for the new secure training centres relates to the size of the units. Most local authority units are relatively small, often between eight and 16 places. The resources and activities which are available in these kinds of units are, therefore, inevitably limited.
The secure training centres, on the other hand, will be larger regional units, with about 40 youngsters in each. This means that they will be able to provide better resources, better education, better training specifically designed for their needs, better rehabilitation program-mes and better activities; activities which will be much more likely to confront and to reform their offending behaviour.
The third reason for opting for the new secure training centres is that larger centres allow for economies of scale which are not available in smaller units. Creating a larger number of smaller units would undoubtedly be a more expensive proposition than would be a smaller number of larger ones; and a larger unit can deal better with the differing needs of differing youngsters.
The fourth reason is the question to which my noble friend Lord Carr invitingly referred. He said that if we use local authority secure accommodation it can be used now and we will not have to wait for these new secure training centres to be built. My noble friend put a lot of store on that, as did my noble friend Lady Faithfull. I remember two years ago being castigated by some of your Lordships because there were not enough secure local authority accommodation places for offenders. That was a criticism on which some of your Lordships

1161
found difficulty in being restrained. The noble Lord, Lord Harris of Greenwich, was one such and there is nothing novel in that.
However, the Government have now proposed that local authorities should build 170 new secure places. These will enable us to implement the long-standing commitment to end prison remands for 15 and 16 year-olds; to allow courts to remand 12 to 16 year-old juveniles, who have not yet been convicted, directly into secure accommodation; and to cater for children who are detained for long terms under Section S3 of the Children and Young Persons Act 1933. They are not yet built, but they should be available by the middle of 1996. It is into this present stock—not the future stock —of local authority secure accommodation which everyone has complained is inadequate for present purposes that my noble friend wishes to propel this new category of offending juveniles.
As this new local authority secure accommodation has not yet been built and if my noble friend's proposal were to be implemented immediately—which is one of my noble friend's strong arguments—it could only be at the expense of those people who are already housed but who would not be able in future to be housed in it. In other words, if you are going to put into the present stock of secure accommodation an extra category of people who at present do not go there, you will tip out those who ought to go there, who would go there, who at present go there, but who in future will not be able to go there. To expect local authorities, on top of this commitment to provide a further 170 places, to provide places also for this new category of offender would, in our view, be unrealistic.
It is simply not a fact, as my noble friends Lord Carr and Lady Faithfull said, that this amendment would allow for the secure training order to be implemented earlier than the provisions which the Bill in its present form contains because new places would have to be built by local authorities. What the amendment would do, however, is to create two parallel sets of new accommodation for persistent juvenile offenders: one in the secure training centres and the other in the local authority accommodation.
My noble friend, Lord Gisborough, said that in no way did this amendment undermine the Government's proposals. It does. My noble friend Lord Elton says that it expands the Government's proposals. I am bound to tell my noble friends that the amendment would seriously disrupt the Government's plans for bringing secure training centres into being. Plans would literally have to go straight back to the drawing board. They have been based on assumptions about the numbers of offenders who will have to be catered for. This will be thrown into complete confusion if some of them are now to be diverted into secure accommodation belonging to local authorities. My noble friend Lord Stewartby was quite right. Having to develop not one but two sets of secure accommodation without any reliable indications of what will be the balance of their use, and who would go where, would be a most inefficient and uneconomic use of public funds.
Those who support this amendment say, in effect: "Very well, we have no doubt that in many cases the
1162
secure training centres will be better. But why not allow the courts to choose where to send people in each case?" I reply to that by saying that the secure training order will be a sentence of the court and it is the Government's responsibility to ensure that the facilities in which the secure part of the sentences are to be served will all be staffed and will be run to a consistently high standard.
Local authority secure accommodation, on the other hand, is what it says it is: secure accommodation provided by the local authority. There is no consistency between units. They vary in size, facilities and approach according to the circumstances of the local authority and the area it serves. At present, the courts have no power to send anyone to local authority secure accommoda-tion. In most cases, it is the local authority which determines that a person shall go to secure accommodation, although it has to get the approval of the court if the intention is to keep someone in secure accommodation for more than 72 hours.
My noble friend Lord Carr says with his amendment, "Let us give the courts for the first time"—the noble Lord, Lord Allen of Abbeydale, confirmed that it was for the first time —"the power to sentence youngsters to institutions whose character and regime may vary from place to place and which are designed to cater for a variety of disparate individuals, some of whom have committed no offence at all".
My noble and learned friend Lord Hailsham is right; so is my noble friend Lady Miller of Hendon. We do not believe that it would be right for the courts to have the ability to choose alternative facilities to those which are in the Bill, facilities which will have different and less consistent regimes. The impact of the secure training order would undoubtedly be dissipated if we did that. It would not be right for the same sentence to attract two totally different kinds of placement—one in a national unit and one in a local authority one—which serve such different purposes.
I should be the first to admit that my noble friend's amendment is superficially very attractive. It has attracted some of your Lordships, even someone as discerning as the noble and learned Lord, Lord Ackner. It seems so reasonable and so harmless to say, "Just let us give the courts a choice". I suggest that your Lordships should be hesitant before becoming like Little Red Riding Hood, who was taken in by the warmth of the welcome, the smiling countenance and the apparent charm of what she saw. I would never describe my noble friend Lord Carr as being like the Big Bad Wolf but I suggest that your Lordships would be ill advised to be like Little Red Riding Hood.
The fact is that, if we are to try to deal with these young offenders properly, they are best dealt with in special units with programmes which are specially designed for them rather than in a number of different and disparate units with a number of different and disparate regimes accountable to a number of different and disparate agencies.
As your Lordships would expect, we have considered all the different possibilities of how best to deal with people of that vulnerable age group. We have

1163
considered my noble friend's suggestion. We think, though, for the reasons which I gave, that the proposals in the Bill provide the best solution.
I hope that my noble friend, with his enormous ability to comprehend difficult problems—heaven knows, he must have had stacks of them when occupying the position of such eminence he held in the Home Office—will see the wisdom of what we are trying to achieve and will not press the amendment. If he does so, I hope that that your Lordships will not agree to it.
4.30 p.m.
Lord Carr of Hadley: My Lords, before my noble friend sits down and before I exercise my right of reply as mover of the amendment, perhaps he can say something about what is intended to happen within the secure unit after the half period of custody is over.
Earl Ferrers: My Lords, to answer my noble friend, when the half period of custody is over the person will be returned to his home under the guidance of a number of different possible agencies, which will be decided after he has served his time in the secure unit.
Lord Carr of Hadley: My Lords, I am most grateful to my noble friend for that reply. Only time will show whose arguments are the more shallow and whose are the more deep. I am bound to say that the reply just given to my question causes me considerably increased doubt about the desirability of not giving the courts this option. The idea is that the court should send these people away to something entirely new. They should not carry on in the accustomed surroundings. But then, when half the period of sentence is over, they are brought back from that distant point and re-introduced to the old locality from which it had been thought necessary to remove them. Quite honestly, that does not seem to me a very deep or profound consideration of the real needs of those people.
Before bringing this discussion to a conclusion, I beg your Lordships to remember that we are not just dealing with young juvenile offenders. We are dealing with children of 12 to 14 years of age. The whole question of locking children up and putting them into prison is new and very distasteful to have to think about. I support the view that, unfortunately, we do have to think about it. But I ask your Lordships to imagine yourselves as magistrates faced with that very distasteful need. I cannot help wondering, should any of us be sitting on the Bench, whether we might be rather less inclined to impose one of those sentences if we had to send youngsters miles away from home as we did not have any option. In particular, that would be the case, taking up the point made in an intervention by my noble friend Lord Harmar-Nicholls, if there is power during the course of a sentence to switch from one to another.
My noble friend the Minister made out that the size of the new units was a decisive argument. Is he saying that large is necessarily beautiful? That is a very doubtful proposition, particularly in this field. He also said that it was bad to have mixed groups. But the experience of those who know about the situation shows
1164
that sometimes there can be surprising success in mixed groups. To make that a major reason for turning down the amendment—I am sorry to throw the words back at him—seems to be shallow and not deep thinking.
I did not quite understand why acceptance of the amendment would apparently cause delay rather than expedite matters. I did not understand that at all. I cannot imagine why the plans for these special secure units, which are presumably far advanced, will all have to go back to the drawing board simply because the courts have an option to do something else.
I listened to my noble friend. I have never been particularly keen on divorcing myself or recommending my colleagues or my party to divorce themselves from the Government's view at the time, but I am afraid that on this matter I must ask the House to express its opinion.
4.38 p.m.
On Question, Whether the said amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 170; Not-Contents, 139.

Division No.1

CONTENTS

Aberdare, L.

Dilhorne, V.

Ackner, L.

Donaldson of Kingsbridge, L.

Addington, L.

Donoughue, L.

Airedale, L.

Dormand of Easington, L.

Aldington, L.

Eatwell, L.

Allen of Abbeydale, L.

Elton, L. [Teller.]

Alport, L.

Ewing of Kirkford, L.

Archer of Sandwell, L.

Ezra, L.

Ardwick, L.

Faithfull, B.

Ashbourne, L.

Falkender, B.

Attlee, E.

Falkland, V.

Avebury, L.

Fisher of Rednal, B.

Bancroft, L.

Foot, L.

Beaumont of Whitley, L.

Gainsborough, E.

Blackstone, B.

Gallacher, L.

Blyth, L.

Geraint, L.

Bonham-Carter, L.

Gisborough, L.

Boston of Faversham, L.

Gladwyn, L.

Bottomley, L.

Glenamara, L.

Brain, L.

Gould of Potternewton, B.

Brentford, V.

Graham of Edmonton, L.

Bridges, L.

Gray, L.

Brightman, L.

Grey, E.

Broadbridge, L.

Gridley, L.

Brooks of Tremorfa, L.

Halsbury, E.

Bruce of Donington, L.

Hamwee, B.

Caldecote, V.

Harris of Greenwich, L.

Callaghan of Cardiff, L.

Haskel, L.

Campbell of Eskan, L.

Hayter, L.

Carmichael of Kelvingrove, L.

Healey, L.

Carr of Hadley, L. [Teller.]

Henniker, L.

Carter, L.

Hollick, L.

Castle of Blackburn, B.

Hollis of Heigham, B.

Chapple, L.

Holme of Cheltenham, L.

Chester, Bp.

Howell, L.

Cledwyn of Penrhos, L.

Howie of Troon, L.

Clifford of Chudleigh, L.

Hughes, L.

Clinton-Davis, L.

Hunt, L.

Cocks of Hartcliffe, L.

Hylton-Foster, B.

Dacre of Glanton, L.

Iddesleigh, E.

Dahrendorf, L.

Irvine of Lairg, L.

Dainton, L.

Jacques, L.

Darcy (de Knayth), B.

Jay of Paddington, B.

David, B.

Jay, L.

Davidson, V.

Jeger, B.

Dean of Beswick, L.

Jenkins of Putney, L.

Dean of Thornton-le-Fylde, B.

Judd, L.

Desai, L.

Kagan, L.

1165

Kilbracken, L.

Robson of Kiddington, B.

Kinnoull, E.

Rochester, L.

Kintore, E.

Rodgers of Quarry Bank, L.

Kirkhill, L.

Roskill, L.

Lester of Herne Hill, L.

Sainsbury, L.

Lindsey and Abingdon, E.

Saltoun of Abernethy, Ly.

Listowel, E.

Scanlon, L.

Llewelyn-Davies of Hastoe, B.

Seear, B.

Lockwood, B.

Serota, B.

Longford, E.

Shannon, E.

Lovell-Davis, L.

Shaughnessy, L.

Lucas of Chilworth, L.

Shepherd, L.

Mackie of Benshie, L.

Simon, V.

Mallalieu, B.

Simon of Glaisdale, L.

Mason of Barnsley, L.

Slynn of Hadley, L.

Mayhew, L.

Stallard, L.

McIntosh of Haringey, L.

Stedman, B.

McNair, L.

Stoddart of Swindon, L.

Milverton, L.

Strabolgi, L.

Molloy, L.

Strafford, E.

Monkswell, L.

Strange, B.

Morris of Castle Morris, L.

Swansea, L.

Mulley, L.

Taylor of Gryfe, L.

Mustill, L.

Tenby, V.

Nelson of Stafford, L.

Thurlow, L.

Nicol, B.

Tordoff, L.

Northbourne, L.

Turner of Camden, B.

Ogmore, L.

Varley, L.

Orr-Ewing, L.

Wallace of Coslany, L.

Park of Monmouth, B.

Weatherill, L.

Pender, L.

Westmorland, E.

Peyton of Yeovil, L.

Whaddon, E.

Pitt of Hampstead, L.

White, B.

Prys-Davies, L.

Wigoder, L.

Rea, L.

Williams of Elvel, L.

Redesdale, L.

Williams of Mostyn, L.

Richard, L.

Winchilsea and Nottingham, E.

NOT-CONTENTS

Addison, V.

Cumberlege, B.

Ailsa, M.

De Freyne, L.

Aldenham, L.

Dean of Harptree, L.

Alexander of Tunis, E.

Denham, L.

Allenby of Megiddo, V.

Denton of Wakefield, B.

Annaly, L.

Dixon-Smith, L.

Archer of Weston-Super-Mare, L.

Downshire, M.

Arran, E.

Eccles, V.

Astor of Hever, L.

Eden of Winton, L.

Astor, V.

Elibank, L.

Balfour, E.

Ellenborough, L.

Barber of Tewkesbury, L.

Elliott of Morpeth, L.

Bauer, L.

Elphinstone, L.

Belhaven and Stenton, L.

Ferrers, E.

Bethell, L.

Flather, B.

Blatch, B.

Fraser of Carmyllie, L.

Boardman, L.

Fraser of Kilmorack, L.

Borthwick, L.

Goschen, V.

Boyd-Carpenter, L.

Gray of Contin, L.

Brabazon of Tara, L.

Grimston of Westbury, L.

Brougham and Vaux, L.

Hailsham of Saint Marylebone, L.

Bruntisfield, L.

Harding of Petherton, L.

Burnham, L.

Harmar-Nicholls, L.

Butterworth, L.

Harmsworth, L.

Cadman, L.

Henley, L.

Campbell of Alloway, L.

HolmPatrick, L.

Carnock, L.

Hood, V.

Chalker of Wallasey, B.

Hooper, B.

Charteris of Amisfield, L.

Hothfield, L.

Chesham, L.

Howe, E.

Clanwilliam, E.

Huntly, M.

Clark of Kempston, L.

Jakobovits, L.

Clitheroe, L.

Jenkin of Roding, L.

Cockfield, L.

Johnston of Rockport, L.

Colwyn, L.

Kenyon, L.

Constantine of Stanmore, L.

Kimball, L.

Courtown, E.

Lane of Horsell, L.

Craigavon, V.

Lawrence, L.

Cranborne, V.

Layton, L.

Crawshaw, L.

Lindsay, E.

Cross, V.

Long, V.

1166

Lyell, L.

Seccombe, B.

Mackay of Ardbrecknish, L.

Sharples, B.

MacLehose of Beoch, L.

Skelmersdale, L.

Mancroft, L.

Soulsby of Swaffham Prior, L.

Marlesford, L.

St. Davids, V.

Marsh, L.

Stanley of Alderley, L.

McColl of Dulwich, L.

Stewartby, L.

Merrivale, L.

Stodart of Leaston, L.

Mersey, V.

Strathcarron, L.

Miller of Hendon, B.

Strathclyde, L.

Mottistone, L.

Strathmore and Kinghorne, E.

Mowbray and Stourton, L.

[Teller.]

Munster, E.

Sudeley, L.

Murton of Lindisfarne, L.

Swinfen, L.

Nelson, E.

Tebbit, L.

Newall, L.

Thomas of Gwydir, L.

Norfolk, D.

Torrington, V.

Orkney, E.

Trefgarne, L.

Oxfuird, V.

Trumpington, B.

Peel, E.

Tugendhat, L.

Platt of Writtle, B.

Ullswater, V. [Teller.]

Plummer of St. Marylebone, L.

Wade of Chorlton, L.

Prentice, L.

Wakeham, L. [Lord Privy Seal.]

Pym, L.

Wedgwood, L.

Rankeillour, L.

Wharton, B.

Rees, L.

Wise, L.

Renton, L.

Wynford, L.

Rodger of Earlsferry, L.

Young, B.

Saint Oswald, L.

Zouche of Haryngworth, L.

Resolved in the affirmative, and amendment agreed to accordingly.
4.48 p.m.
Lord Carr of Hadley Lord Carr of Hadley moved Amendment No. 2:
Page 2, line 18, at end insert:
("(2A) Where a court makes a secure training order under subsection (1) above it may specify that the period of detention shall be in secure accommodation provided by the local authority or by a person or organisation with whom the local authority has made arrangements for the provision of secure accommoda-tion.").
On Question, amendment agreed to.
Lord Carr of Hadley Lord Carr of Hadley moved Amendment No. 3:
Page 2, line 22, at beginning insert ("Subject to subsections (4A) and (4B) below").
The noble Lord said: In moving Amendment No. 3, I shall speak also to Amendment No. 5, to which it is closely linked. I can be brief in regard to both amendments. I believe that I can separate our discussion on the first two amendments from the debate on Amendments Nos. 3 and 5 because the principles are split. It is therefore possible for noble Lords to agree with the first two amendments but to disagree with these two, or vice versa. Had the first two amendments not been agreed to, these two would not have been moved at this time. However, the first two having been accepted, I urge your Lordships to support Amendments Nos. 3 and 5 as well.
In this experimental sphere—let us not forget that dealing with children of this age is an experimental sphere —it is right that there should be some flexibility not only about where and how the sentence of a secure training order should be carried out, but also about the ability to switch in mid-stream if it should be thought necessary. What I and my fellow supporters feel, however, is that the decision to switch should remain very much a decision of the court and not a decision of officials at either central or local level. The amendments provide a power for a local authority, if a child has been put in local authority secure accommodation, to go to

1167
the court and say, "Please will you change this and perhaps send this child to one of the new units or to some other form of care". Similarly, if the court has sent the child in the first place to one of the new units, the director of the unit should be able to go back to the court and say, "Having had this child in my care for some time, we think it would be advisable that he or she should be switched to some other form of treatment under a local authority or should be treated in some other way". The court remains in control. If these amendments are passed the opportunity for flexibility is continued. I hope that the common sense of that will, without further argument, commend itself to your Lordships.
I beg to move.
Lord Renton: My Lords, I shall be brief. I am not in favour of the amendment moved by my noble friend Lord Carr of Hadley. It overlooks the main provision of Clause 1 that the court shall not make a secure training order unless it is satisfied about the offender's age; and,
"(b) that the offender has been convicted of three or more imprisonable offences; and
(c) that the offender, either on this or a previous occasion—

(i) has been found by a court to be in breach of a supervision order under the Children and Young Persons Act 1969, or

(ii) has been convicted of an imprisonable offence committed whilst he was subject to such a supervision order".

In other words, we are dealing here with a very small hard core of persistent young offenders. The amendment would add confusion to what is envisaged by the Government, with or without the modification—I voted against it—which has been carried by your Lordships under Amendments Nos. 1 and 2. If we add to what is in the Bill and if we add to what is in Amendment No. 2, there will be great confusion—especially if we apply the further complication of what is put forward in Amendment No. 5.
I need not invite your Lordships' attention to the details for they are there for all your Lordships to see. But I very much hope that my noble friend Lord Ferrers will not accept the amendment and that your Lordships also will not.
Lord McIntosh of Haringey: My Lords, the noble Lord, Lord Renton, seems to think that a new degree of confusion will be introduced if the amendment is carried. Perhaps I may point out to him that the powers sought in the amendment are by no means new. For example, the power to move from one institution to another a young offender detained for a long term has existed since the passing of Section 53 of the Children and Young Persons Act 1933.
Lord Renton: My Lords, the noble Lord is right in saying that the powers are not new. But the circumstances in which they are being imposed are new; and they do not dovetail.
Lord McIntosh of Haringey: My Lords, I beg leave to doubt that as well. What is sought in the amendments is power to apply to the court to change the institution in which the young offender is kept; whereas what is provided in the 1933 Act is the power for the young offender to be moved from one institution to another
1168
without even application to the court. So I suggest, with all respect to the noble Lord, Lord Renton, that he is not merely exaggerating the extent of confusion that is possible but suggesting confusion which would be resolved by these amendments.
In my view, the amendments are a necessary complement to the amendments which have just been carried. They could not be debated together because the wording is dependent on the wording of the first two amendments. But I suggest to the House that those who supported the first two amendments should also in logic to support these two.
Lord Gisborough: My Lords, we have been talking so far about putting these youngsters into centres, but we must remember that they are going in for only six months or a year. They will then come out again, and they will come out probably with very little extra training. If, during the period of their detention, those working with them feel that there is a better chance that when they come out they will be improved by perhaps being sent home or sent for some other treatment, surely that chance must be taken. If one just locks them up and waits six months for them to come out, they will come out just as bad as they were before. It may be the case, as the noble and learned Lord, Lord Ackner, said, that local authority accommodation is very much better than the secure training centre, or perhaps that may be so in some cases. There must be the option to change if it is felt advisable. Only the court can make that decision. There is no danger, as some people seem to think, of suddenly the local authority sending these youngsters on safari. It is a court decision. It is not for any of the workers.
Lord Harmar-Nicholls: My Lords, it is not only those who voted for Amendment No. 1 who ought to support this amendment. I voted with the Government because I thought that we had been harrying the Government for years and saying, "For heaven's sake, do something about this terrible problem". They have produced a Bill which does something about it. I felt that as a result of all that harrying there was some justice in giving them a chance to implement what they were doing at our request. However, if the amendment passed by the House remains in the Bill, Amendment No. 3 would be indispensable to it. If the magistrates have made the decision to send a person to a local authority home and it does not work because of the character of the individual, to me it is good sense that those concerned should be able to apply to have that individual transferred to one of the five centres. The two run together.
I make that point because the noble Lord, Lord McIntosh, said that those who voted for the first amendment should support this amendment. Now that that amendment has been passed and if it remains and is part of the statute, the extra amendment is part of making a provision that might be workable.
Lord Avebury: My Lords, the noble Lord, Lord Harmar-Nicholls, has a very good point. During the discussion on the previous amendment I mentioned the powers of the Secretary of State under Clause 2(4) to

1169
transfer persons sentenced to secure training orders. They apply only to transfers of the offender from the secure training centre to such other place and on such other conditions as the Secretary of State may direct.
As the noble Lord, Lord Harmar-Nicholls, rightly pointed out, the Secretary of State does not have the power, and he would not have needed any such power if the amendment had not been passed, to transfer a person from a local authority secure unit to a training centre or from the local authority secure unit to any other place such as he may direct. If this amendment which the noble Lord, Lord Carr of Hadley, has moved had not been in the Marshalled List, the Government would have had to bring forward an amendment of their own to enhance the powers of the Secretary of State under Clause 2(4) so that the transfers could have been made either way.
When the noble Earl comes to reply, can he tell us why he thought it appropriate to give these powers only to the Secretary of State? It seems curious to me that the courts, as I mentioned in connection with the last amendment, knowing the circumstances of the offence and the offender, are not given the power, but the Secretary of State, at some later date, and of his own volition and based solely on his paper knowledge of the case, is able to make transfers from one place to another. Not only those who supported the last amendment would have to agree that these powers should be conferred on the courts; but everyone else who did not support it should pay attention to the wise advice of the noble Lord, Lord Harmar-Nicholls, and consider whether or not the additional flexibility which this amendment gives would greatly enhance the abilities of the courts under the Bill.
5 p.m.
Lord Campbell of Alloway: My Lords, I oppose this amendment. I voted with the Government at the last Division. I accept that in a sense this amendment is a logical development from what was decided by your Lordships at the last Division. It is not an inevitable derivative. I ask your Lordships to consider how far we should go. I suggest to the House that this amendment goes too far. I am concerned with what we do with these young people who are persistent, hardcore criminals. Something has to be done. For years, when I sat as a recorder—I am too old to be one now—we were powerless to do anything with them.
Since then the Government have taken the initiative to try to do something. That is what the people of this country, by and large, and outside this House, broadly wish. They wish for deterrence. One needs to have an element of deterrence. I was chided by my noble friend Lord Elton the other day who said, "These are young people who stand only as high as the Dispatch Box". They are committed, hardened criminals who are unable to be dealt with effectively. The only thing they understand is the element of deterrence. Although I totally agree that rehabilitation is an important and essential element in all this, and I do not derogate from that at all, I do not believe that that will start to work
1170
until we have effective deterrence which is known and understood. I support the Government up to the hilt on this amendment.
Lord Elton: My Lords, when my noble friend speaks of looking for deterrence, I believe that the noble Lord, Lord Campbell, should have argued in the opposite sense. We have now devised a system in which there are two routes which such a sentence can follow and there are two institutions in which it may be served. From what my noble friend has said and from the inference which I draw from others of his persuasion, it is thought that the secure training centre will be a tougher option than the local authority secure unit. If that be the case, surely the director of the local authority secure unit should be able to tell the unmanageable young tearaway whom he cannot control, "If you do not come off it right away, young friend, you will be sent to the dark black hole and swallowed up".
On the other foot, there is the argument that it should be possible on occasion to release somebody from the most severe to the less severe treatment on the ground that the child had made sufficient progress to warrant it and understood that this was the carrot.
When you have both the stick and the carrot you have discipline, which is what this matter is all about. I believe that the amendment which my noble friend and my colleagues and I have devised is an instrument which can be used for discipline creatively in order to strengthen the system and not to weaken it.
Baroness Faithfull: My Lords, I support this amendment. Perhaps I may point out two matters. The first is that every child is an individual and different from every other child. The family is different. Some children will need much more help than others. I believe that the needs of each child should be met. In both the secure training unit and the local authority unit not only are the social workers in touch with the children but there are also psychiatrists, psychologists, teachers and the parents. If a child makes rapid progress, as some of them do, then the needs of that child should be met. It ought to be possible to return to the court and to ask the magistrates to vary the order.
Earl Ferrers: My Lords, I am always hesitant when someone refers, as my noble friend Lord Carr did, to the common sense of the amendment which rather insinuates that anyone else who takes a different view is lacking in common sense and cannot see the rectitude of the other's ways. I was also fascinated by my noble friend Lord Harmar-Nicholls who spoke for this amendment. He did speak for the last amendment, although I am glad to say that he voted against it. He now speaks for this amendment and I hope that he will be sensible enough to vote against it too when the time comes. The noble Lord, Lord McIntosh, seems to have vaporised. I do not know where he has gone, but he has gone.
Lord Hailsham of Saint Marylebone: My Lords, he has levitated.
Earl Ferrers: That is an unusual thing and a bit in advance of his time. He said that this amendment

1171
complements the other one. Had the noble Lord been here, I might have said that he was talking rubbish, but I would not say that in his absence. I merely say that he was guilty of an erroneous description. The fact is that these amendments have nothing to do with the previous amendments. This is a very different amendment which enables the court to vary the order when the sentence is under way.
Let us be quite clear where we are over this matter. The last amendment which, in my view, your Lordships decided injudiciously to put into the Bill, has given the courts the ability to choose whether to send a youngster to a secure training unit or, for the first time ever, to send the youngster to local authority secure accommodation. This amendment allows the courts to move the youth from one to the other. I do not believe that that has anything to do with the last amendment because this amendment covers a totally different concept.
The noble Lord, Lord Avebury, asked why should the Secretary of State make transfers from secure accommodation to another place under the Bill. He is right that Clause 2(4) will have to be amended—if the earlier amendment remains in the Bill—to enable the Home Office to transfer a trainee from secure accommodation to another place. He referred to the power in Clause 2(4) to transfer youngsters out of secure places. That provision was included in order to cover exceptional cases where, for instance, a juvenile needs to be moved because he is mentally ill. That decision would be made by the Home Office and not by the court.
This matter is very different. Much of what I said in the earlier debate has equal force now. We believe that those who are subject to the secure training order should have the opportunity to serve the secure part of their sentence in the specialised new units which are being established. There they will receive the specialist education and training which they need. To allow the sentence to be chopped and changed, as between one establishment and another, would be bound to reduce the effectiveness of the new order.
There are three further reasons why I think that these amendments are undesirable. The first is a matter of principle. I know that this will appeal to those of your Lordships who are of a legal disposition. A secure training order is a custodial sentence. That means that the length of the sentence must reflect primarily the seriousness of the offending. That is a decision which must be taken when the courts impose the sentence in the first place. I think that your Lordships will find it difficult to reconcile this philosophy, which governs all custodial sentences, with the philosophy behind the amendment which would allow the courts in this one particular type of sentence to alter it in midstream.
The second problem is a more practical one. I am not at all convinced that the courts would necessarily welcome the highly involved role in the mechanics of the sentence which this amendment would inevitably give them. It would be time-consuming, complicated and, I suggest, unnecessary.
The third question relates to the availability of secure accommodation, which we talked about earlier. As with the earlier amendment, this one envisages local
1172
authorities somehow having access on demand to a number of vacancies for persistent offenders. That would pose particular difficulties for the local authorities. The simple fact is that it is to the secure training centres to which we must look for the secure training order to be served, and not elsewhere.
If your Lordships consider that it is necessary or desirable also to have local authority secure accom-modation—your Lordships did consider this—that is fine, but it is another matter. Perhaps I should not say that it is fine because it is an erroneous decision. Nevertheless, that is one thing; it is quite another thing to say that once a youngster is placed either in local authority secure accommodation or into a secure training unit, he should be swapped around between one and the other—even if that is with the approval of the courts. I hope that my noble friend will realise that that would be an undesirable addition to the Bill.
Lord Carr of Hadley: My Lords, I must be in a cantankerous mood, but I really do not find it easy or possible to understand the Government's thinking. I understood the Government's thinking on the first two amendments, although I profoundly disagreed with them; but with respect and in the circumstances in which we now find ourselves, I find the arguments that have been advanced by my noble friend very difficult to appreciate or understand. I cannot help noticing that Clause 2(4) provides for the Secretary of State to alter a sentence in midstream. I know that the circumstances are not quite the same, but the principle of altering a sentence in midstream is written into the Bill.
I beg your Lordships to remember that this is a highly experimental area. For the first time in our history, we are putting children of 12 and 14 into prison. Although I deeply regret it, I agree with the necessity for it. We are treading new ground. That is one of the reasons why I believe that we should show greater flexibility. It is possible that a court may send a child into local authority secure accommodation to start with. That centre may then find that it cannot cope, so it returns to the court so that the young child can be sent to one of the new units. Indeed, the same may arise vice versa, given that the secure units are available. I cannot understand why it is not wise to be able to provide that flexibility.
Although I had hoped not to have to seek to divide the House again, I feel that what the Minister has recommended is so irrational—I am sorry to have to say that—that I must seek leave to take the opinion of the House.
5.14 p.m.
On Question, Whether the said amendment (No. 3) shall be agreed to?
Their Lordships divided: Contents, 147; Not-Contents, 128.

Division No.2

CONTENTS

Aberdare, L.

Ardwick, L.

Ackner, L.

Ashbourne, L.

Addington, L.

Ashley of Stoke, L.

Allen of Abbeydale, L.

Attlee, E.

Archer of Sandwell, L.

Avebury, L.

1173

Bancroft, L.

Hylton-Foster, B.

Beaumont of Whitley, L.

Irvine of Lairg, L.

Blackstone, B.

Jacques, L.

Blyth, L.

Jay of Paddington, B.

Bonham-Carter, L.

Jay, L.

Borthwick, L.

Jeger, B.

Boston of Faversham, L.

Jenkins of Putney, L.

Bottomley, L.

Judd, L.

Brain, L.

Kilbracken, L.

Brentford, V.

Kirkhill, L.

Brightman, L.

Lester of Herne Hill, L.

Broadbridge, L.

Lindsey and Abingdon, E.

Brooks of Tremorfa, L.

Listowel, E.

Bruce of Donington, L.

Liverpool, E.

Callaghan of Cardiff, L.

Llewelyn-Davies of Hastoe, B.

Campbell of Eskan, L.

Lockwood, B.

Carmichael of Kelvingrove, L.

Longford, E.

Carr of Hadley, L. [Teller.]

Lovell-Davis, L.

Carter, L.

Lucas of Chilworth, L.

Chapple, L.

Mackie of Benshie, L.

Charteris of Amisfield, L.

Mallalieu, B.

Chester, Bp.

Masham of Ilton, B.

Cledwyn of Penrhos, L.

Mason of Barnsley, L.

Clinton-Davis, L.

Mayhew, L.

Cocks of Hartcliffe, L.

McIntosh of Haringey, L.

Cross, V.

McNair, L.

Dacre of Glanton, L.

Merlyn-Rees, L.

Dahrendorf, L.

Molloy, L.

Darcy (de Knayth), B.

Monkswell, L.

David, B.

Morris of Castle Morris, L.

Davidson, V.

Mulley, L.

Dean of Beswick, L.

Nelson of Stafford, L.

Dean of Thornton-le-Fylde, B.

Nicol, B.

Desai, L.

Ogmore, L.

Dilhorne, V.

Park of Monmouth, B.

Donaldson of Kingsbridge, L.

Pitt of Hampstead, L.

Donoughue, L.

Prys-Davies, L.

Dormand of Easington, L.

Rea, L.

Eatwell, L.

Redesdale, L.

Elton, L.

Richard, L.

Ewing of Kirkford, L.

Robson of Kiddington, B.

Faithfull, B.

Rochester, L.

Falkender, B.

Rodgers of Quarry Bank, L.

Falkland, V.

Saltoun of Abernethy, Ly.

Fisher of Rednal, B.

Seear, B.

Gallacher, L.

Serota, B.

Geraint, L.

Shaughnessy, L.

Gisborough, L. [Teller.]

Shepherd, L.

Gladwyn, L.

Simon of Glaisdale, L.

Glenamara, L.

Simon, V.

Gould of Potternewton, B.

Slynn of Hadley, L.

Graham of Edmonton, L.

Stoddart of Swindon, L.

Gray, L.

Strabolgi, L.

Gregson, L.

Strafford, E.

Grey, E.

Taylor of Blackburn, L.

Halsbury, E.

Taylor of Gryfe, L.

Hamwee, B.

Tenby, V.

Harmar-Nicholls, L.

Thurlow, L.

Harmsworth, L.

Tordoff, L.

Harris of Greenwich, L.

Turner of Camden, B.

Haskel, L.

Varley, L.

Henniker, L.

Wallace of Coslany, L.

Hollick, L.

Weatherill, L.

Hollis of Heigham, B.

White, B.

Holme of Cheltenham, L.

Wigoder, L.

Howell, L.

Williams of Elvel, L.

Howie of Troon, L.

Williams of Mostyn, L.

Hughes, L.

Winchilsea and Nottingham, E.

Hunt, L.

NOT-CONTENTS

Addison, V.

Astor of Hever, L.

Ailsa, M.

Astor, V.

Aldenham, L.

Balfour, E.

Alexander of Tunis, E.

Barber of Tewkesbury, L.

Alexander of Weedon, L.

Bauer, L.

Allenby of Megiddo, V.

Belhaven and Stenton, L.

Annaly, L.

Beloff, L.

Archer of Weston-Super-Mare, L.

Bethell, L.

Arran, E.

Boardman, L.

1174

Boyd-Carpenter, L.

Lyell, L.

Brougham and Vaux, L.

Mackay of Ardbrecknish, L.

Bruntisfield, L.

MacLehose of Beoch, L.

Burnham, L.

Mancroft, L.

Butterworth, L.

Marlesford, L.

Cadman, L.

McColl of Dulwich, L.

Campbell of Alloway, L.

Merrivale, L.

Carnock, L.

Mersey, V.

Chalker of Wallasey, B.

Miller of Hendon, B.

Chesham, L.

Monson, L.

Clanwilliam, E.

Mottistone, L.

Clark of Kempston, L.

Munster, E.

Clitheroe, L.

Murton of Lindisfarne, L.

Cockfield, L.

Nelson, E.

Constantine of Stanmore, L.

Newall, L.

Courtown, E.

Norfolk, D.

Cranborne, V.

Northbourne, L.

Crawshaw, L.

Northesk, E.

Cullen of Ashbourne, L.

Orkney, E.

Cumberlege, B.

Orr-Ewing, L.

Dean of Harptree, L.

Oxfuird, V.

Denham, L.

Peel, E.

Denton of Wakefield, B.

Plummer of St. Marylebone, L.

Dixon-Smith, L.

Prentice, L.

Downshire, M.

Pym, L.

Eden of Winton, L.

Rankeillour, L.

Elibank, L.

Rees, L.

Ellenborough, L.

Rennell, L.

Elliott of Morpeth, L.

Renton, L.

Elphinstone, L.

Rodger of Earlsferry, L.

Ferrers, E.

Saint Oswald, L.

Flather, B.

Seccombe, B.

Fraser of Carmyllie, L.

Sharples, B.

Fraser of Kilmorack, L.

Skelmersdale, L.

Gainsborough, E.

Soulsby of Swaffham Prior, L.

Goschen, V.

St. Davids, V.

Gray of Contin, L.

Stewartby, L.

Gridley, L.

Stodart of Leaston, L.

Grimston of Westbury, L.

Strathcarron, L.

Hailsham of Saint Marylebone, L.

Strathclyde, L.

Harding of Petherton, L.

Strathmore and Kinghorne, E.

Henley, L.

[Teller.]

Holderness, L.

Sudeley, L.

HolmPatrick, L.

Swansea, L.

Hood, V.

Swinfen, L.

Hooper, B.

Thomas of Gwydir, L.

Howe, E.

Torrington, V.

Huntly, M.

Trumpington, B.

Jenkin of Roding, L.

Tugendhat, L.

Johnston of Rockport, L.

Ullswater, V. [Teller.]

Kenyon, L.

Wakeham, L. [Lord Privy Seal.]

Kimball, L.

Wise, L.

Lane of Horsell, L.

Wynford, L.

Leigh, L.

Young, B.

Lindsay, E.

Zouche of Haryngworth, L.

Long, V.

Resolved in the affirmative, and amendment agreed to accordingly.
5.22 p.m.
Lord Northbourne Lord Northbourne moved Amendment No. 4:
Page 2, line 23, leave out ("one half) and insert ("between one half and one third").
The noble Lord said: My Lords, I find myself in some difficulty. I wish that the previous amendments had not happened, because my amendment is of a rather different provenance. While I do not disagree with what has been done, I should like your Lordships, if possible, to consider my amendment in its own right. With the permission of the House perhaps I may speak to Amendments Nos. 4 and 10 separately rather than as a group.
The reason for my setting down the amendments relates to the debates which took place on Second Reading and in Committee when many noble Lords

1175
referred to the fact that the incarceration of young offenders appeared to have the effect of making them reoffend more frequently or embracing the probability of them reoffending, but no one addressed the question of why. The two amendments address two of the reasons —there may be many—why young offenders who have been locked up are more likely to reoffend.
In discussing the subject we have perhaps tended to blur—the Government may even have tended to blur them in their own mind—the two elements which there are in such a sentence: the element of punishment, and the element of rehabilitation. My view is that the element of punishment is very necessary, and should not be ignored, but punishment and rehabilitation make poor bedfellows.
If one talks about rehabilitating a persistent young offender, one is talking about changing the value system of a young person. We are not just talking about naughty boys here; we are not talking about someone who has a set of values which he or she accepts but has transgressed for fun or because he or she was tempted. We are talking in the main about young people who are alienated from the values of society. One may ask why they have been alienated. In some cases it can be because their families themselves have values which are different from the values that your Lordships and I would accept. There are other cases where the young person has perhaps been rejected by his family and accepts the values of a peer group (a street gang, a group of friends) which once again are alien to the values of society.
If we are trying to rehabilitate those young people, we have to change their value system, and that can be done only by someone whom they trust and respect, and it can be done only over a substantial period of time.
The purpose of the amendment is simply to make it possible for the court to change the ratio between passing the part of the sentence which is devoted primarily to punishment and the part of the sentence which is devoted primarily to rehabilitation. I have suggested, perhaps modestly, only that the courts should be given the option of making a one-third punishment/ two-thirds rehabilitation division rather than a 50/50 division. I should like to hope that the Minister may be minded to consider the proposal favourably, or at least to give me an assurance that we might discuss it further. I beg to move.
Lord Renton: My Lords, I support the amendment. I hope that my noble friend the Minister will feel that it creates a degree of flexibility as to what the court can do under Clause 1, without interfering in any way with the basic principles of the clause, and without adding any confusion or complication. As we all know, nearly every case is different. The offences committed by each offender may be different and have different circumstances attached to them. The circumstance and personality of each offender may be different, and to give the court just that degree—it is only a small degree —of flexibility which the amendment would give would be an advantage.
1176
It is not a question of the court having to choose to have half or one third of the sentence served in detention; it is a variation between one third and a half. It is a very minor change. It is a very reasonable change. I hope that my noble friend will consider it sympathetically.
Lord Harris of Greenwich: My Lords, I agree with what the noble Lords, Lord Northbourne and Lord Renton, have said. The Minister and his colleagues have, on a number of occasions, told us of their enthusiasm for the cause and principle of flexibility. This gives them the opportunity to adopt the amendment. As the noble Lord, Lord Renton, said, cases coming before the courts in relation to the matters that we are now discussing will cover a wide range. The amendment gives the courts more power to take account of those special circumstances which may apply to an individual offender.
I hope that if the Minister does not give us an affirmative answer today he will indicate that he is at least prepared to consider the matter between now and Third Reading, with a view to adopting the course proposed by the noble Lord, Lord Northbourne.
Lord Hailsham of Saint Marylebone: My Lords, perhaps I may ask my noble friend a question as to the meaning of the amendment, if it were carried. The phrase used is:
"between one half and one third".
In the ordinary use of language that would mean that it cannot be either one half or one third, because that would not be between the two. What will be the effect of the amendment, as a matter of drafting, if it is carried?
Lord Northbourne: My Lords, the noble and learned Lord has caught me out completely. I suspect that by going down to millionths of a unit we can get very, very near to a half or very, very near to a third.
Lord Campbell of Alloway: My Lords, I oppose the amendment. We seem to have forgotten that the secure training order may be imposed, but does not have to be imposed. It is an option. I agree with my noble friend Lord Carr of Hadley that we are in an experimental stage.
I agree that we are concerned with young people who are alienated from society. It must be common ground that as yet we have not discovered how to deal effectively with them. The time has come when, if needs be, we must have at our disposal means with which to deal with them. At this stage of the experiment, I see no reason for qualifying the clause as it stands.
5.30 p.m.
Lord Elton: My Lords, perhaps I may clarify what my noble friend said. Clause 1(3) provides that the minimum period of detention and supervision together must be six months. Subsection (4) provides that the period of detention as a proportion of that shall be not less than one-half. Therefore, there is an absolute minimum of three months' incarceration. The amend-ment proposes to allow that to be dropped to a period nearer two months.

1177
I do not have enormously strong feelings about the matter, but I hope that in reflecting on it my noble friend will try to cast his mind back to the time when he was 12 years old. That is only a little further away from the time I was 12 years old. Perhaps he will remember what an eternity of time a single month or a single day then was. Therefore, the currency with which we are dealing has been debased by our old age. We now think of six months as something to toss aside and, after all, it is not even a complete year. To a child, it is several careers on the end of a lifetime and therefore I hope that my noble friend will remember that the currency with which he is dealing is very valuable.
Lord McIntosh of Haringey: My Lords, I support the amendment proposed by the noble Lord, Lord Northbourne. I am not sure that I go along with him philosophically in his analysis that there must be a period described as a period of punishment to be followed by a period described as a period of rehabilitation. I suspect that in practice the two will overlap and that they will not coincide with the period in incarceration, if that is the right word.
Certainly, the degree of discretion which is proposed in the amendment is consistent with and complementary to the view that was taken by the House on Amendments Nos. 3 and 5, although I would not claim that it is dependent on the earlier amendments. Noble Lords who supported Amendments Nos. 3 and 5, in particular, may well believe that this amendment provides an appropriate extension to the flexibility available to the courts.
Viscount Brentford: My Lords, I am not clear who will exercise the discretion as to whether the period is one-half or one-third. Subsection (3) provides that the court shall determine but there is no such wording in subsection (4). Nor does the phrase "the court determines" appear in the amendment. Is it intended that the court shall decide between one-half and one-third when the original order is made or is it a decision that someone else will make at a later date, depending on how the offender is spending his time?
Lord Renton: My Lords, perhaps my noble friend will allow me to intervene. The answer is perfectly clear. Subsection (4) begins,
'The period of detention".
That phrase is used in subsection (3), where we learn that it is a period decided by the court.
Earl Ferrers: My Lords, perhaps I may urge a little caution as regards what was said by the noble Lord, Lord McIntosh of Haringey. He said that the amendment was complementary to Amendments Nos. 3 and 5, which were accepted. When we dealt with Amendment No. 3, the noble Lord said that it was complementary on Nos. 1 and 2. I wish that he would get out of the habit of trying to join all the amendments together so that all those noble Lords who are not too familiar with the proceedings will believe that they are consequential. They are nothing of the kind. This amendment stands totally separate and has nothing to do with the previous amendments. Once again, the noble Lord, Lord McIntosh, is wrong!
1178
The effect of Amendment No. 4 would be to change substantially the balance of the secure training order. The order, as it is currently provided for in the Bill, consists of two halves. The first half is spent in security in a secure training centre and the second half is spent under supervision in the community. The minimum length of the whole order is six months and the maximum length is two years. That means that the minimum period in security is three months and the maximum period is 12 months.
That arrangement gives the courts a good deal of flexibility in determining the appropriate level of sentence. In determining the length of the sentence, as with all custodial sentences, the courts must have regard to the seriousness of the offending. The Bill as it stands offers a wide range of sentence lengths.
The purpose of Amendment No. 4 would be to allow the period in security to be not one-half but any proportion between one-third and one-half. In trying to persuade your Lordships towards the amendment, my noble friend Lord Elton asked me to look back to the time when I was a child, when a month was a very long time. Of course, it is a very long time, and one evening in your Lordships' House debating the Criminal Justice Bill is almost as long as is a month to a child.
If I look back to the time when I was a child, as if a month spent in a secure training centre would be terrible, I can say only that I like to think that I did not behave in the way that some of the characters who will be subject to a secure training order have behaved. If they find a month a long time, it would be better if they should not offend and subject themselves to such a sentence. Therefore, I believe that my noble friend's argument on that point is absurd.
Despite what was said by my noble friend Lord Renton, I agree with my noble friend Lord Brentford that it is not clear in the amendment who will make the decision about the proportion of the sentence to be spent in security. It might be the secure training centre itself which will make the decision on the basis of the youngster's progress within its establishment and his readiness for release. I agree that there are some attractions in having a non-rigid approach, but there are also some overriding objections. Such a system as this could well be unfair and there would need to be at least some arrangement for a quasi-judicial decision on whether or not to release a youngster. The Government considered this carefully but we decided that there were bound to be difficulties.
Experience of indeterminate sentences has been that the length which was served has often related rather less to the needs and progress of the individual offender than to the state of supply and demand for the places in the estate.
On the other hand, Amendment No. 4 means that the proportion of the sentence to be spent in security should be determined by the court. On the face of it, that seems reasonable but I see two difficulties. First, on what basis would the court make the decision that someone should spend half his sentence in custody whereas another could spend one-third in custody? Would it relate to the

1179
seriousness of the offence or would it just be an estimate of the progress that he is likely to make? I believe that we should keep the matter simple.
The magistrates—and we must remember that there are some 5,000 in the youth court—will already have to determine how long the sentence should last. Should it be six months, 12 months, 18 months or two years? To complicate the matter further by then saying that they must decide how much of the chosen length of the sentence should be spent in custody—should it be one-third, three-eighths or one-half?—really seems to be making it all unnecessarily complicated. My noble and learned friend Lord Hailsham said that if the legislation provides that the period must be between one-half and one-third, it cannot be exactly either, and that shows how much more complicated the matter becomes.
This is a matter to which we have given careful consideration. There are many factors to weigh up in determining how a sentence should work; for instance, the maximum length, the minimum length, the arrangements for early release and whether release should be based on an offender's progress. We consider that the secure training order should be a determinate sentence but a flexible one. At one end of the scale, the maximum order for two years, with one year in the secure training centre and one year under supervision, is designed for youngsters whose offending is the most serious and where the need for custodial training is that much greater. At the bottom end of the scale there is a minimum of six months—with three months in the secure training centre and three months under supervision. That sentence would be more appropriate for the less serious offender who needs a brief change of environment to stop him re-offending but whose offending suggests that a rather less extensive sentence will be required.
Between those limits, courts will have flexibility. They will be in the best position to assess what is an appropriate sentence, bearing in mind that the length of the sentence must be commensurate with the seriousness of the offence or, in the case of sexual or violent crimes, the need to protect the public from serious harm. I believe that there is sufficient flexibility in the arrangements as they stand. I hope that the noble Lord will see the wisdom of that.
Lord Northbourne: My Lords, I am very disappointed by that reply because it seems that he has entirely missed the point of the amendment, which is that the ratio between incarceration and rehabilitation should be different from the ratio provided in the Bill as it stands.
I contemplated the idea of simply changing "one half to "one third", but I felt that that would lead to the complaint that I was shortening the maximum sentence which can be given to a serious offender. I am saying, "Yes, if you like, let us change the wording of the amendment so that the most serious offender can spend a year in a secure unit but in that case, he needs at least two years in rehabilitation".
1180
I am not going to divide the House on this issue but I hope that the noble Earl will be prepared to meet me to discuss further the principle underlying the amendment before the next stage of the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Carr of Hadley Lord Carr of Hadley moved Amendment No. 5:
Page 2, line 24, at end insert:
("(4A) While any secure training order in respect of which a court has made such a specification as is mentioned in subsection (2A) above is in force, a court may, on the application of the local authority, and if it is satisfied that it would be appropriate to do so, order that the remainder of the period of detention shall be replaced by—

(a) a period during which the offender shall be required to live in other local authority accommodation;

(b) a period of supervision; or

(c) a period of detention in a secure training centre.

(4B) While any secure training order in respect of which a court has not made such a specification as is mentioned in subsection (2A) above is in force, a court may, on the application of the director of the relevant secure training centre, and if it is satisfied that it would be appropriate to do so, order that the remainder of the period of detention shall be replaced by—

(a) a period of detention in secure accommodation provided by a local authority or by a person or organisation with whom a local authority has made arrangements for the provision of secure accommodation;

(b) a period during which the offender shall be required to live in other local authority accommodation; or

(c) a period of supervision.").

On Question, amendment agreed to.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 6:
Page 2, line 30, leave out ("three or more imprisonable offences") and insert ("one or more imprisonable offences on three or more separate occasions").
The noble Lord said: My Lords, I hope that this is a drafting amendment because it is intended to give effect to the repeated statements of Ministers, both here and in another place, that secure training centres are designed for persistent young offenders.
I make the point about persistent young offenders because, of course, under Clause 16, there is provision for those young offenders who are convicted of very serious crimes—those which, if they were adults, would be subject to a prison sentence of 14 years or more—to be sentenced to long-term detention under separate powers. Therefore, let us be clear that we are talking about persistent young offenders rather than those who commit very serious offences.
As I said, there have been repeated references by Ministers to the word "persistent". In the debate on Second Reading in another place, the Home Secretary said:
"At present the courts are unable to deal adequately with persistent juvenile offenders, especially those aged between 12 and 14".—[Official Report, Commons, 11/1/94; col. 23.]
The Minister of State on the same day at col. 115 said:
"There is clearly a problem with persistent juvenile offenders … A few persistent offenders can be responsible for a vast amount of crime".
On Second Reading the noble Earl said:
"I suggest that Parliament has a right, and, indeed, a duty, to protect the public from persistent offenders".—[Official Report, 25/4/94; col. 381.]
And yet, curiously enough, the Bill does not provide that secure training orders shall apply to persistent young offenders. It provides that the criterion shall be:
"three or more imprisonable offences".
Of course, three or more imprisonable offences could occur at a single court appearance; indeed, the current court appearance. I cannot believe that it is the intention of Ministers that young people—as the noble Lord, Lord Carr, rightly reminds us, children—should be sentenced to secure training orders on the basis of a single court appearance at which they are dealt with for three or more imprisonable offences.
I hope that the Government will agree that the amendment gives effect to their repeatedly-expressed intentions that the order should be used for persistent offenders. I beg to move.
5.45 p.m.
Lord Allen of Abbeydale: My Lords, I was glad to put my name to the amendment. Like the noble Lord, Lord McIntosh, I have always been struck by the fact that the Government have said constantly that they are seeking to deal with a small number of persistent offenders for whom everything else has been tried. The noble Lord referred to what the noble Earl said on Second Reading on 25th April. On that occasion he gave as an illustration, suggesting that that was one among the kind of cases which the Government had in mind —the case of a 14 year-old boy who had admitted taking part in more than 1,000 burglaries in two years. On a single night he and other teenagers raided 23 branches of one particular store; and he had been arrested 40 times.
However, the entry qualifications in the Bill fall a long way short of such cases. As the noble Lord, Lord Elton, said so succinctly in Committee:
"the criteria on the face of the Bill are radically different from the descriptions that we are given of the customer we are hoping to catch".—[Official Report, 16/5/94; col. 37.]
I appreciate that the courts must have regard to the restrictions on imposing custodial sentences provided in the Criminal Justice Act 1991, but it does not seem at all consistent with the Government's proclaimed policy that a single afternoon's shoplifting expedition in three stores and the breach of a single supervision order are all that is needed to qualify for consideration.
This modest amendment would help towards making the provisions of the Bill go just a little bit nearer to what the Government have said that they are hoping to achieve. I hope that the House will agree to it.
Lord Hailsham of Saint Marylebone: My Lords, before my noble friend replies to the amendment, perhaps he will consider which of two things it would have the effect of achieving. Does it mean that the offender should have been convicted on three or more separate occasions of one or more imprisonable offences; or does it mean that the offences must have been committed on three separate occasions? It can mean either but I do not believe that it can mean both.
Lord Carr of Hadley: My Lords, I am troubled by subsection (5) (b) as it stands. It does not seem to be in line with what the Government have been saying about this matter from the beginning. On the one hand, we have heard that the new order will probably apply to not more than 200 children throughout the whole country. And yet one of the tests would bring in, I imagine,
1182
thousands of children. I know that that is not the only test which must be passed but it seems to be very much out of tune with "persistency", which is the word that Ministers in this House and in another place have used frequently.
While I have no particular attachment to the words chosen in the amendment, I believe that it raises an anomaly as it stands in relation to the Government's own repeated words on the subject.
Lord Campbell of Alloway: My Lords, further to the question put by my noble and learned friend Lord Hailsham, perhaps I may ask whether the Minister is aware that, if there are three imprisonable offences, they are not all tried on the same day in the same trial. Of course, one applies to sever the indictment so mat conviction on one will not prejudice the other. That process applies irrespective of whether the three offences are committed on the same day, on three separate days or on one or two days. That process of severing the indictment is always conducted with scrupulous fairness by the judiciary. If my noble friend the Minister could take that concept on board—and I speak subject to correction as there are noble and learned Lords present in the. Chamber—surely the Bill as drafted takes account of any possible: unfairness in that regard.
Lord Elton: My Lords, I am obliged to the noble Lord, Lord Allen of Abbeydale, for recalling what I said in Committee. It is a matter of considerable importance. In Committee we were invited to divide against the Government by my noble friend Lady Faithfull regarding the whole concept of this sentence. With great conviction, but perhaps not great eloquence, I urged noble Lords to resist my noble friend's cause because I believed that there was only a handful—probably one or two hundred—of young people who fitted the description given from the Dispatch Box.
However, if the description in the Bill covers a much larger number of people, and is to remain so, I feel mat I may have made that speech and taken that decision in Committee under something approaching a misap-prehension. My noble friend and his right honourable friend have come to Parliament requesting a provision to deal with a specific ill. All we are asking is that that ill should be accurately described on the face of the Bill.
Earl Ferrers: My Lords, the noble Lord, Lord McIntosh, said that we are discussing almost a drafting amendment. I do not wish to tell him yet again that he is wrong, but I believe that it is a little more than that—
Lord McIntosh of Haringey: My Lords, I said that I hoped it was so.
Earl Ferrers: My Lords, noble Lords are quite right always to have what estate agents call "hope value". May the noble Lord continue in that vein, so long as it goes no further.
Frankly, the effect of the amendment would make it more difficult for the court to make a secure training order. It would require the necessary convictions to have

1183
been obtained on at least three separate occasions. The Bill at present does not say on how many occasions the convictions must have occurred.
I can understand some noble Lords wishing to see the secure training order reserved for those juvenile persistent offenders who really have proved that they need to be locked up. To an extent the Government share that view. However, I think that the amendment is unnecessary and I shall explain why.
The noble Lord, Lord Allen of Abbeydale, mentioned the juvenile to whom I referred earlier who had committed 1,000 offences. He then said in a rather censorious way that the Bill falls far short of that. So it does; indeed, I should hope so too. My noble friend Lord Carr said that the provision is out of tune with the Government's thinking because many people would be caught. That is perfectly true. In theory, many people could be caught. Moreover, many people could be caught, in theory, for burglary and speeding. However, if one used such arguments one would never pass any law.
The Bill specifies that a juvenile must have three or more convictions to qualify for a secure training order. My noble and learned friend Lord Hailsham was worried about that aspect of the matter. I shall try to explain it to him. In theory, the convictions could be obtained on one occasion, perhaps for three separate offences of theft or burglary. My noble friend Lord Campbell of Alloway was similarly worried. However, in theory, the offences could all have been committed on one occasion, but they could also have been done on two or three separate occasions.
There are further criteria which must also be met. The noble Lord, Lord McIntosh, said that he did not want a secure training order placed on a youth on his first appearance in court. Of course, I understand that; but it will not happen because the juvenile must already have been subject to a supervision order on a previous occasion. He must either have offended while he was subject to the supervision order or he must have been in breach of it. The juvenile must have offended and done something pretty awful to begin with to be given a supervision order. Therefore, there will have been at least one other previous court appearance when the supervision order was made. To have qualified for a supervision order the offence must have been sufficiently serious to warrant a community sentence. In practice, it is likely that in most cases offenders who are sentenced to a secure training order will have had a good deal more than just one previous court appearance.
The kind of youngsters for whom such a sentence is designed are those who offend over and over again and who have defied all the efforts that have been made to help them. Courts are sensitive to children—heaven knows, we know that from the speeches made by my noble friend Lord Carr and others. The courts will not impose a secure training order unless they really think that it is necessary. Most of those children will have been cautioned and many of them will also, regrettably, have had many convictions.
I do not believe that it is right to tie the hands of the courts too closely in reaching their decisions about
1184
individual cases. There must be a balance between stipulating the kinds of cases on the face of the statute and giving the courts the right level of discretion to sentence effectively. I hope that noble Lords will agree that the Bill has got the balance right.
Lord Avebury: My Lords, I cannot help but say that the Minister has been even more inconsistent as regards this amendment than he was on the previous three. He admitted that the Bill is designed to catch—
Noble Lords: Order!
Earl Ferrers: My Lords, I rather fancy that the noble Lord, Lord Avebury, might be erroneously and unsuspectingly out of order. I believe that at Report stage noble Lords are not permitted to speak after the Minister.
Lord Avebury: My Lords, I was hoping rise to speak before the Minister sat down. I want to ask him whether he realises that he is now being even more inconsistent than he was on the previous three amendments. The Minister said that the Bill was designed to catch the offender who committed a great many offences. Yet, on the face of it, the Bill refers to only three, whether or not they were committed on one or more than one occasion. Does not the Minister think that that point is of sufficient importance to justify the passing of the amendment now before the House?
Earl Ferrers: My Lords, I do not wish to offend the rules of procedure, but the answer is no.
Lord McIntosh of Haringey: My Lords, I am most grateful to the Minister for confirming in his speech what I have always understood to be the meaning of the word "persistent". He referred to someone having offended "over and over again". I believe that that is what we all understand by the word "persistent". However, the problem is that the Bill does not provide for it. That is not just my view. After all, the Home Affairs Select Committee of another place in its report Juvenile Offenders published last year was, in a sense, the origin of the legislation now before us. Paragraph 152 of the report says:
"If Parliament approves the concept of secure training orders, we recommend that more suitable criteria would be that (a) the juvenile has been convicted of three offences committed on separate occasions, (b) the offences are each serious enough to justify a custodial sentence, and (c) he or she has been found by a court to have breached the conditions of a supervision order or of bail on more than one occasion".
The Minister has not denied that the Bill as drafted allows for the possibility of the imprisonable offences being committed on a single occasion and coming before the court at one time. I acknowledge what the noble Lord, Lord Campbell of Alloway, said about severing hearings when they are genuinely separate offences. However, a single break-in could involve three offences. Moreover—leaving aside break-ins—a single offence of joyriding, for example, could involve three offences, each of which could be imprisonable and they could be dealt with on one occasion.
The Minister has sought to defend the wording by reminding the House quite correctly that there is a further condition in Clause 1(5) (c) that the offender,

1185
"has been found by a court to be in breach of a supervision order".
That is true. But a supervision order can be awarded for something that is not an imprisonable offence. The understanding that we have is that the secure training orders (which are the equivalent of prison for children) are to be for imposed for imprisonable offences.
Therefore, we are left with the fact that the Bill provides that if a child who has committed an offence for which he has been put under a supervision order then breaches that order and appears before a court on one occasion for three or more imprisonable offences, he can be given a secure training order. That is not a case of persistent offending; it is not a case of offending over and over again. I appeal to the Minister to put the very excellent words which he and others have expressed onto the face of the Bill by accepting this amendment. If he will not do so, I shall ask the House to accept the amendment.
6 p.m.
On Question, Whether the said amendment (No. 6) shall be agreed to?
Their Lordships divided: Contents, 121; Not-Contents, 130.

Division No.3

CONTENTS

Ackner, L.

Greenway, L.

Addington, L.

Gregson, L.

Allen of Abbeydale, L. [Teller.]

Grey, E.

Archer of Sandwell, L.

Halsbury, E.

Ardwick, L.

Harnwee, B.

Ashley of Stoke, L.

Hardinge, V.

Attlee, E.

Harris of Greenwich, L.

Avebury, L.

Haskel, L. [Teller]

Barnett, L.

Healey, L.

Blackstone, B.

Henniker, L.

Boston of Faversham, L.

Hollick, L.

Bottomley, L.

Howell, L.

Brain, L.

Howie of Troon, L.

Brightman, L.

Hughes, L.

Broadbridge, L.

Hylton-Foster, B.

Brooks of Tremorfa, L.

Irvine of Lairg, L.

Bruce of Donington, L.

Jacques, L.

Callaghan of Cardiff, L.

Jay of Paddington, B.

Campbell of Eskan, L.

Jay, L.

Carmichael of Kelvingrove, L.

Jeger, B.

Carter, L.

Jenkins of Putney, L.

Chester, Bp.

Kagan, L.

Cledwyn of Penrhos, L.

Kilbracken, L.

Clinton-Davis, L.

Kirkhill, L.

Cocks of Hartcliffe, L.

Lester of Herne Hill, L.

Darcy (de Knayth), B.

Listowel, E.

David, B.

Llewelyn-Davies of Hastoe, B.

Dean of Beswick, L.

Lockwood, B.

Dean of Thornton-le-Fylde, B.

Longford, E.

Desai, L.

Lovell-Davis, L.

Donaldson of Kingsbridge, L.

Mackie of Benshie, L.

Donoughue, L.

Mallalieu, B.

Dormand of Easington, L.

Masham of Ilton, B.

Eatwell, L.

Mason of Barnsley, L.

Ewing of Kirkford, L.

Mayhew, L.

Ezra, L.

McIntosh of Haringey, L.

Faithfull, B.

McNair, L.

Falkender, B.

Merlyn-Rees, L.

Fisher of Rednal, B.

Molloy, L.

Foot, L.

Monkswell, L.

Gallacher, L.

Morris of Castle Morris, L.

Geraint, L.

Mulley, L.

Gladwyn, L.

Nicol, B.

Glenamara, L.

Ogmore, L.

Gould of Potternewton, B.

Pitt of Hampstead, L.

Graham of Edmonton, L.

Prys-Davies, L.

1186

Redesdale, L.

Taylor of Gryfe, L.

Richard, L.

Tenby, V.

Robson of Kiddington, B.

Thurlow, L.

Rochester, L.

Tordoff, L.

Rodgers of Quarry Bank, L.

Turner of Camden, B.

Seear, B.

Varley, L.

Serota, B.

Weatherill, L.

Shannon, E.

Wedderburn of Charlton, L.

Shepherd, L.

Whaddon, L.

Simon of Glaisdale, L.

White, B.

Simon, V.

Wigoder, L.

St. John of Bletso, L.

Williams of Elvel, L.

Stedman, B.

Williams of Mostyn, L.

Stoddart of Swindon, L.

Winchilsea and Nottingham, E.

Strafford, E.

NOT-CONTENTS

Addison, V.

Holderness, L.

Ailsa, M.

HolmPatrick, L.

Aldenham, L.

Howe, E.

Aldington, L.

Huntly, M.

Alexander of Tunis, E.

Jeffreys, L.

Annaly, L.

Johnston of Rockport, L.

Archer of Weston-Super-Mare, L.

Kenyon, L.

Arran, E.

Kimball, L.

Astor of Hever, L.

Lane of Horsell, L.

Astor, V.

Leigh, L.

Balfour, E.

Lindsay, E.

Barber of Tewkesbury, L.

Lindsey and Abingdon, E.

Bauer, L.

Liverpool, E.

Belhaven and Stenton, L.

Long, V.

Birdwood, L.

Lyell, L.

Blatch, B.

Mackay of Ardbrecknish, L.

Blyth, L.

Mancroft, L.

Boardman, L.

Marlesford, L.

Borthwick, L.

Massereene and Ferrard, V.

Boyd-Carpenter, L.

McColl of Dulwich, L.

Brabazon of Tara, L.

Merrivale, L.

Bruntisfield, L.

Mersey, V.

Burnham, L.

Miller of Hendon, B.

Butterworth, L.

Milverton, L.

Caldecote, V.

Mottistone, L.

Campbell of Alloway, L.

Moyne, L.

Carnock, L.

Murton of Lindisfarne, L.

Chalker of Wallasey, B.

Nelson, E.

Chelmsford, V.

Norrie, L.

Chesham, L.

Northbourne, L.

Clanwilliam, E.

Northesk, E.

Clark of Kempston, L.

Orkney, E.

Clitheroe, L.

Orr-Ewing, L.

Courtown, E.

Oxfuird, V.

Cranborne, V.

Peel, E.

Crathorne, L.

Pender, L.

Crawshaw, L.

Platt of Writtle, B.

Cumberlege, B.

Prentice, L.

Dacre of Glanton, L.

Rankeillour, L.

Davidson, V.

Reay, L.

Dean of Harptree, L.

Rees, L.

Denham, L.

Renton, L.

Denton of Wakefield, B.

Rodger of Earlsferry, L.

Downshire, M.

Rodney, L.

Eden of Winton, L.

Saint Oswald, L.

Elibank, L.

Seccombe, B.

Ellenborough, L.

Skelmersdale, L.

Elliott of Morpeth, L.

Soulsby of Swaffham Prior, L.

Elphinstone, L.

St. Davids, V.

Ferrers, E.

Stewartby, L.

Flather, B.

Stockton, E.

Fraser of Carmyllie, L.

Stodart of Leaston, L

Gainsborough, E.

Strange, B.

Gardner of Parkes, B.

Strathclyde, L.

Gisborough, L.

Strathmore and Kinghorne, E.

Goschen, V.

[Teller.]

Gray of Contin, L.

Sudeley, L.

Grimston of Westbury, L.

Swansea, L.

Hailsham of Saint Marylebone, L.

Swinfen, L.

Harmsworth, L.

Thomas of Gwydir, L.

Hayhoe, L.

Torrington, V.

Henley, L.

Trumpington, B.

1187

Tugendhat, L.

Wise, L.

Ullswater, V. [Teller.]

Wynford, L.

Wade of Chorlton, L.

Zouche of Haryngworth, L.

Wakeham, L. [Lord Privy Seal.]

Resolved in the negative, and amendment disagreed to accordingly.
6.8 p.m.
[Amendment No. 7 not moved.]
Earl Ferrers Earl Ferrers moved Amendment No. 8:
Page 3, line 13, leave out from ("section") to end of line 14 and insert ("shall have effect, as from the day appointed for each of the following paragraphs, with the substitution in subsections (1) and (5)—

(a) of "14" for "12";

(b) of "13" for "14";

(c) of "12" for "13";

but no substitution may be brought into force on more than one occasion.").

The noble Earl said: My Lords, this is purely a drafting amendment to subsection (10) of Clause 1 which allows the progressive implementation of secure training orders for 14 year-olds, 13 year-olds and 12 year-olds. I beg to move.
On Question, amendment agreed to.
Clause 2 [Secure training orders: supplementary provisions as to detention]:
Lord Carr of Hadley Lord Carr of Hadley moved Amendment No. 9:
Page 3, line 20, after ("place") insert ("other than to police detention").
The noble Lord said: My Lords, this is a simple amendment on which I need take only a moment or two. We are concerned about the possibility of children finding themselves in detention in police cells. We believe that that is wrong and bad in principle. Hence the amendment.
I speak entirely for myself, not having had a chance to speak to my colleagues about the matter, but I could be persuaded that there may be particular circumstances when, in an emergency, a child may have to be held in police cells for a few hours. I am reluctant to accept that, but I would not press the matter too far if the Minister were to offer some safeguard against a child being kept in a police cell, except in an extreme emergency, for a very short time, measured in hours rather than longer.
I say no more for the moment. I simply stress how seriously we take the possibility of children between the ages of 12 and 14 being held in police cells at all. That is the point I want to underline. It is something that must be prevented from happening: it can be permitted only in an extreme emergency for a very short time. I beg to move.
Lord Harris of Greenwich: My Lords, I hope that if the noble Lord, Lord Carr, is not intending to press the amendment, he will require from the noble Earl the clearest possible guarantees in the most unambiguous language. As the noble Lord, Lord Carr, will recall, it was thought to be unlawful before 1981 to hold anyone in a police cell who was in the type of situation we are discussing in connection with the amendment. In 1981, as a result of an industrial relations crisis in the prison system, a temporary provisions Bill was introduced. The only part of that Bill retained permanently on the statute book was the power for the police to hold Home Office
1188
prisoners. As we know, in Merseyside and Greater Manchester significant numbers of people are still held in police cells.
The issue put before us by the noble Lord, Lord Carr, is this: would it not be entirely unacceptable to have 12 year-old children held in police custody in a situation in which some adults have been held in police custody? In my view it would be intolerable for that to happen.
Of course an emergency can arise. However, I should have thought that there were many other places where children could be sent other than a police cell. The idea that the police have the capacity to look after 12 year-olds in police custody is absurd. They do not have the capacity. They have tried manfully, but with an increasing degree of resentment, to accept Home Office prisoners. Were they now to find that 12 and 13 year-old children could be placed in police cells because the centres could not hold them, I believe that they would resist that possibility with the utmost strength at their disposal.
I believe that there are two possible answers if an emergency arose. Other accommodation should be used. It is very difficult to imagine what the emergency could be. However, let us assume that such a situation arises. It will not be enough for the noble Earl merely to say that it is inconceivable that that will happen. One of the issues which a number of us raised following publication of the report of the noble and learned Lord, Lord Woolf, was whether the Government would accept the Woolf recommendation on this issue. The Government did not accept the recommendation in terms of what should follow if people were to be held in police custody.
If the noble Lord, Lord Carr, decides not to press the amendment I hope that the noble Earl will say in the most explicit terms, first, what would happen in situations of this kind and, secondly, whether Parliament would be consulted in the way that the noble and learned Lord, Lord Woolf, suggested it should be consulted or notified were police accommodation to be used. I specifically ask the noble Earl whether, if the noble Lord, Lord Carr, does not press the amendment, at Third Reading he will accept an amendment to this part of the Bill which would provide the safeguards as set out in the Woolf Report on the prison disturbances.
6.15 p.m.
Lord Elton: My Lords, having visited a number of police cells when they were in frequent and intensive use for prisoners earlier, I am convinced that they are not suitable for that use for adults and even less suitable for children. I recognise that if a court makes a secure training order and there is no suitable place for the child to go a dilemma presents itself. However, before it makes such an order the court is surely under a duty to satisfy itself whether accommodation is available.
Adult prisoners were frequently sent to police cells either because the prisons were full or because the Prison Officers' Association laid down rules as to when prisoners could be accepted and those rules did not coincide with the times when the courts wanted prisoners to be delivered to prisons. That was a temporary difficulty.

1189
However, your Lordships will see that Clause 2(2) (a) provides the power for a court to commit the offender to a place such as the Secretary of State may direct other than an STC for a period not exceeding 28 days. Under extreme circumstances that may be acceptable for adult prisoners, but I do not think that any of us would wish to give the courts the power to sentence a child to a month in a police cell which does not even have any of the primitive facilities of our oldest prisons. Therefore, I hope that my noble friend will be able to say something both about the great duress which the system would have to be under before recourse to such action and also about limiting the period of a month. That would be too long to send a child of prep school age for incarceration. My noble friend and I hope to be given those assurances in a solid and convincing form if we are to let the matter rest.
Lord McIntosh of Haringey: My Lords, the amendment was moved with great moderation. I can imagine that there are individual policemen and policewomen in police stations who would act very kindly towards a child put into a police cell. There would hardly be brutality from the police in those circumstances. However, one must think about the other people who would be in those police cells—the drunks, the drug addicts and people of that sort who would be in adjoining cells. The thought is appalling. I support the amendment.
Baroness Faithfull: My Lords, if one really believes that a child should not be put in a police cell, other ways can be found of dealing with the situation. In my authority three policewomen, the wives of policemen, agreed to take a child in an emergency rather than the child being put into a police cell. In that way, except on one occasion, we always avoided a child going into a police cell.
Earl Ferrers: My Lords, I can well understand your Lordships' concern that children should not be subjected to being in police cells. My noble friend Lord Elton said, I thought rather extravagantly, that Parliament must not send a child to a police cell for a month. Of course there is no question of that being the intention underlying the Bill. The clause allows a court to commit an offender to alternative accommodation. My noble friend Lady Faithfull said that she knows of plenty of places where there is alternative accommoda-tion. She is quite right; there is alternative accommodation. However, the Bill allows the Home Secretary either to direct where that alternative accommodation shall be or to contract with suitable providers for such accommodation. That would be, for example, local authorities, child care organisations or providers of children's homes which are registered under the Children Act 1989. There are many alternatives.
We certainly would not envisage police cells being appropriate accommodation. Of course they are not appropriate accommodation for children. It is not our intention that police cells should be used. I stated in Committee—I repeat it—that I would be reluctant to prevent by statute those places from ever being used.
1190
For them ever to be used there would have to be some highly exceptional circumstances in which there would be no choice but to make such placements on a temporary basis. For example, there might be a fire, or some other emergency which puts large numbers of places in secure training centres out of commission. Some foul disease might have broken out in secure accommodation so that those resident there would have to be placed elsewhere.
My right honourable friend the Home Secretary has other alternative accommodation. But in such a situation it might be necessary to hold youngsters on an emergency basis in police stations. However, I can assure your Lordships that the Government do not want to put them in police cells. The police do not want that People who care about children do not want that. Your Lordships do not want it either.
The noble Lord, Lord Harris of Greenwich, asked whether Parliament would be consulted. I am bound to say that I think that that would be going too far. Where there is an emergency, action has to be taken and taken forthwith. I can only repeat to your Lordships the assurance that I gave in Committee that police cells would be used only in emergencies such as I have described. In those unusual circumstances I can also assure noble Lords that the Home Office would work closely with the police to ensure that the conditions in which the youngsters were held, if they are to be held there, were as suitable as possible, and that the time during which they were held there would be as short as possible.
I can only repeat to your Lordships that those would be total emergencies and that it is not our intention that police cells should be used other than in those cases.
Lord Harris of Greenwich: My Lords, before the noble Earl resumes his seat, perhaps I may ask him one question. As he will recall, I specifically put to him the recommendation of the noble and learned Lord, Lord Woolf, regarding what should be done if people had to be kept in police cells. As I pointed out, the Government did not accept that recommendation.
Between now and Third Reading will the Minister consider whether the procedure suggested by the noble and learned Lord could be adopted? If so, it would put the minds of many of us at rest, including, I suspect, that of the noble Lord, Lord Carr of Hadley.
Earl Ferrers: My Lords, I apologise to the noble Lord. He asked the question and I failed to reply to it. I shall consider the matter and get in touch with him before the next stage of the Bill.
Lord Carr of Hadley: My Lords, this is a serious matter. I am prepared not to ask the House to go further on this occasion. However, we must have some more specific assurance at Third Reading. Of course, I accept his word. But these matters drift. In a few years from now, with different Ministers, different officials, and different policemen in office, matters could go wrong. At Third Reading we must return to the issue.
I understand that there can be some great emergency. However, I cannot believe that the emergency can be so great, in particular considering the small number of

1191
people who fall into the category to which we refer, that it could last more than an hour or two at most. I shall wish to return to the matter at Third Reading, but I do not press the matter further at present. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Northbourne Lord Northbourne moved Amendment No. 10:
After Clause 2, insert the following new clause:
( "Removal of young offender from previous influences
.—(1) Upon application from any of the persons listed in subsection (2) of this section the court may at any time (luring the currency of the sentence make an order requiring the relevant local authority to take the young offender into care and to provide for him to become resident and to be fostered or otherwise cared for after completion of detention at a place sufficiently remote from his previous place of residence to remove him from the influence of those who may have influenced him to offend.
(2) Persons who may make application to the court under this clause are—

(a) the young offender or a person representing him;

(b) any parent or legal guardian of the young offender;

(c) the secure training centre to which the young offender is committed; and

(d) the relevant local authority or probation service in whose area the young offender has been living during the year immediately prior to the offence.

(3) Before making an order under this section the court shall give an opportunity for any of the persons listed in subsection (2) of this section to make representations.").
The noble Lord said: My Lords, the amendment is another attempt to break the mould by which in the past persistent young offenders who have been sentenced to detention have quickly re-offended. The argument is —I believe it to be true of some young offenders—that the worst thing one can do having rehabilitated them and convinced them to change their ways is to plunge them back into the same environment in which they lived before they were sentenced. There are many different reasons why the environment may be unsuitable. The environment of the family may be unsuitable, or the peer group, the street gang, to which the child belongs.
I became conscious of the problem in the context of the family environment about two years ago. I found myself sitting on a log beside a camp fire trying to persuade a little girl of 12 not to steal chocolate biscuits from her friends. From the conversation it emerged that her father was at that time serving a sentence for burglary and that the family lived effectively by shoplifting. I found the task too much for me; the odds were stacked against me. In a family like that, it may well be appropriate to find some other solution for the young lady concerned.
Similarly, I do not envisage a young man, having spent his time in a secure training unit, going back onto the streets, meeting his mates and saying, "Sorry lads, I'm going straight now. I shan't be able to join you on any of the jobs like those we used to do together". That would take tremendous moral courage. I do not believe that many of your Lordships would have such moral courage; I am quite sure that I would not.
I apologise for the wording of the amendment; it may well be subject to criticism. I hope that noble Lords will not waste too much time tearing the wording of the amendment to pieces; it is the spirit of the amendment that I draw to your Lordships' attention. I suggest that the court ought to be given power to say, "This young
1192
person should be settled away from home for a while in a new environment where he can make new friends, go to a new school and join a new group". If those young persons go back into their old environment not only would they have to have the courage to turn away from their old group of friends but, having themselves been the tearaways, the good guys would not speak to them either. Apart from anything else, in their old environment those young persons will not have any friends and that will push them back into the old bad lot.
Those young people could go, say, 50 miles away. I suggest that that can be achieved in many ways. They can be put into a good fostering environment. They can be sent to excellent institutions such as the Caldicot community. Under certain circumstances they could be put into local authority care. I do not believe that the proposal would weaken the Bill.
The argument may be adduced: why do we not leave it to the local authorities to do it? The answer is funding. It is quite expensive for a local authority to place a young person outside the authority's area. I believe that it must be required to do so and possibly funded to do so, otherwise it will not happen. I beg to move.
6.30 p.m.
Lord Renton: My Lords, the noble Lord, Lord Northbourne, speaks from valuable experience in helping voluntary societies in East Kent who have tried to help delinquent young people. He has put forward a suggestion which breaks new ground and I find it rather interesting. The position is this. It anticipates a situation in which persistent young offenders have completed their secure training or are about to do so. They have become reformed characters. However, there is a risk that all the good that was done by their training might be undone by their returning home to a criminal background. That is one possibility. Alternatively, the young people may have suffered in the past from an unhappy home in which they had been maltreated or neglected. It would be depressing to contemplate that kind of situation.
I do not say that the precise proposal put forward by the noble Lord, Lord Northbourne, would necessarily be acceptable. A great deal would depend upon when the court was asked to make an order. But the noble Lord is right in assuming that it would need to be made before the end of the sentence of secure training so that there is no gap during which harm could come to the offender. In those interesting and unusual circumstances all I suggest at this stage is that my noble friend Lord Ferrers might give the proposal what I would call, "without commitment, sympathetic consideration".
Earl Ferrers: My Lords, I have considerable sympathy with the thinking which underlies Amendment No. 10, moved by the noble Lord, Lord Northbourne, and the concern to try to ensure that the youngsters who leave the secure training centres do not fall back into their old ways. However, I do not believe that the mechanism which is proposed by the amendment is either desirable or necessary. Perhaps I could explain my reasons for that.

1193
The amendment of the noble Lord, Lord Northbourne, would allow various parties to apply to the court during the time when the secure training order is in effect, whether that is when the child is in custody or when he is back in the community. They will make an application for another order which would require the local authority to care for the juvenile after his release from the secure training centre. That would be done at a place which is sufficiently far from his home to avoid the bad influences which may have contributed to his offending, as the noble Lord, Lord Northbourne, said.
There are two substantial difficulties which we find with this approach. The first is that the youngster would already have been made subject to a secure training order. He will have served the first half of his sentence in a secure centre and he will serve the second half under supervision. If a further order were made it might appear to the offender that he was being punished twice for the same offence. I quite see that the order which is proposed by the amendment is not intended to be punitive and that it is intended to help in his rehabilitation. But the young offender may not see it in that way and he may not recognise the distinction, particularly as there is no time limit set on the duration of the new order. It could at least in theory go on for a long time after the secure training order itself has come to an end.
The second problem is that the new order might well cut across the requirements of the secure training order. An essential component of the secure training order is the high quality supervision which will take place in the community and which will be undertaken by one of three types of agency: the social services department, the probation service or any other agency which may be designated by the Home Secretary. I can foresee serious difficulties in carrying out the supervision according to the national standards if the juvenile, when he goes back into the community, is moved a great distance from his home. Indeed, one of the chief purposes of supervision is in order to re-integrate the youngster back into his community with his family, his school, his training and his work opportunities. It is, among other things, to equip him with the skills which are needed to resist the influence of bad company in the future. The order which is envisaged by this amendment would go in the opposite direction by taking him away from all that he knows.
I hope that I can relieve the noble Lord, Lord Northbourne, of some of his anxieties by telling him this. There will, of course, be situations—and I recognise that—in which it is entirely inappropriate that an offender under supervision should live at a particular place. There are two ways in which that situation could be met under the existing legislation.
First, we intend that the notice of supervision for those who are subject to a secure training order might include a requirement that an offender should reside at a particular address or should refrain from residing at a particular address. Failure to comply with that kind of requirement could lead to breach of proceedings being brought and the person concerned being returned to the secure training centre.
1194
The second point is that the local authorities have a continuing duty to safeguard and to promote the welfare of children who live in their area. Those duties apply to all children and where a youngster meets the criteria in the Children Act 1989 there is nothing to prevent the local authority from making an application in the family proceedings court for a care or supervision order. Under such an order, the welfare of the youngster must be the paramount consideration. In determining how to care for such a child the extent of bad influences in his environment is bound to play a part, but only a part, in the considerations. There will be other considerations too and the Children Act offers the best framework within which they can be weighed up.
It is for that reason that the Government feel that the existing arrangements for juveniles are sufficient to meet the concerns of the noble Lord, Lord Northbourne. I hope that I have been able to allay his anxieties.
Lord Northbourne: My Lords, I realise that I forgot to tell noble Lords the sequel to the story of the young lady and the chocolate biscuits. About six months later, when she had attempted to stab one of her teachers with a pair of scissors, she was dragged away screaming: "Let me go. I'm going to be adopted by Lord Northbourne"! So perhaps I got through to some extent anyway.
Turning to the noble Earl's helpful reply, I shall not press the amendment. I know of three cases of young people from Tower Hamlets who said: "We can't get out of this situation until we move away from Tower Hamlets". They "put their money where their mouths are" and when they became 18 and were independent they moved away from Tower Hamlets and are now living in the Medway towns.
Thus there is room for the thought—and that is why I put in "the young offender" as one of those who could apply for the arrangement—that some young people would like to get away from the pressures that they are under in their home towns. Having said that, I am grateful to the noble Earl for what he said and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 [Supervision under secure training order]:
Baroness Faithfull Baroness Faithfull moved Amendment No. 11:
Page 4, line 18, after ("person") insert ("possessing a certificate of qualification in social work").
The noble Baroness said: My Lords, Amendment No. 11 is a probing amendment at this stage as I seek information. Where a child goes to a local authority secure place it is in the child's own area. It is likely that for a one-year order the child would spend six months in the unit and six months being supervised in the community. If the child is locally based it is very likely that a probation officer or a social worker of the local authority would be the person to offer supervision or be asked to supervise the child. I should be grateful if my noble friend the Minister can help me on one point. Will the person supervising a child who comes out of the training centre, which will probably be a long way from where the child lives, know the child and be a qualified social worker?
I believe that supervision in the community after a child has been in a secure training unit should be undertaken by a qualified social worker. Social workers have to work with other colleagues in education, health, social services, the youth training schemes and social security to find accommodation and so on. Social workers have to know where to seek help. Should a child break down, they have to know which psychiatrist or organisation can best help the child. With reference to the previous amendment of the noble Lord, Lord Northbourne, if a child specifically does not want to return to its area, the social worker should be able to assess whether or not the child should return.
I consider that anyone undertaking supervision of a child during the second part of the child's sentence, when he or she is in the community, should be a qualified social worker who knows the area where the child lives, knows all the facilities, knows the law and knows how that child is to settle down. They must also know how to help the parents with the child. I beg to move.
Lord Harris of Greenwich: My Lords, I assume that we are pushing at a half open door in this debate, which I expected would be replied to by the noble and learned Lord but which in fact will be answered by the noble Earl, Lord Ferrers. In that case, I shall have to explain the background in a little more detail.
We debated this issue in Committee. I should like to quote what the noble and learned Lord the Lord Advocate said on that occasion. It is on the precise issue raised in this amendment. He said that,
"that amount of flexibility—to use the controversial word — would allow the Secretary of State to appoint someone who did not fall within one of those categories but who nonetheless had, for example, what the noble Baroness speaks of: the necessary training and skills. One might think of someone who might, for example, have been employed formerly by the social services department or the probation service but who may have left temporarily because, for example, she had had a baby, but who nonetheless had all the skills necessary to provide the required supervision. In such a case the Secretary of State might well designate such a person".
I intervened and asked the noble and learned Lord:
"Is it a fact that the noble and learned Lord would be happy to accept an amendment requiring the Secretary of State to appoint only someone who has a recognised social work or other qualification?".
The noble and learned Lord replied:
"It would depend on what the amendment said, but if the spirit of what I have said could be captured in an amendment then obviously the Government would examine that amendment".— [Official Report, 16/5/94; col. 71.]
This is therefore the central question. The noble and learned Lord having said that on the last occasion, what will the noble Earl, Lord Ferrers, say on this occasion? I hope very much that he will accept the amendment. Although it was described by the noble Baroness as a probing amendment, it seems to me to give the Government an opportunity to accept and to put on the face of the statute precisely the approach which the noble and learned Lord said on the last occasion was entirely consistent with what the Government were trying to achieve.
6.45 p.m.
Baroness David: My Lords, my name is on the amendment and I should like to support it. I was rather sorry that the noble Baroness called it a probing amendment. I thought that, following upon what the noble and learned Lord said previously, the amendment would be accepted. I still hope that it will be accepted. If so, I should have thought that the noble Earl would already have jumped up, saying that we need not spend more time on it and he would accept it.
Baroness Masham of Ilton: My Lords, the Minister said that these young people have proved that they should be locked up. They will have proved that they are very difficult young people indeed, having difficult problems to overcome. Would it not therefore be wise to ensure that the people who will be in charge of their after-care should be trained in the profession of probation officer or social worker? I ask the Minister to tell us who will supervise these very difficult young people, who may come from problem homes in which child abuse, alcohol abuse and marital problems abound, if it is not a probation officer or social worker? Who will it be?
Earl Ferrers: My Lords, I am grateful to my noble friend for saying that this is a probing amendment, even though the noble Baroness, Lady David, would have preferred otherwise. I was rather taken aback when the noble Lord, Lord Harris, said that he assumed that he was pushing at a half open door. He also thought that my noble and learned friend the Lord Advocate would reply to the debate and looked rather surprised to find that it would be me. I was not quite certain whether that meant that the door was fully open or fully closed. He went on to say that as it was I and not my noble and learned friend the Lord Advocate who would be replying, he would have to explain in more detail. I do not know whether that was a reference to my intellectual capacity. If so, I quite understand and I do not bear a grudge against him for that.
The amendment would place a restriction on whom the Secretary of State may appoint as a post-release supervisor for a juvenile who is given a secure training order. Under the amendment he would only be able to appoint a person who possesses a certificate of qualification in social work. We discussed the matter in Committee on an amendment tabled by noble friend Lady Faithfull. There were a number of requests from the noble Lords, Lord Harris and Lord Wigoder, the noble Baroness, Lady Seear, and my noble friend for an amendment to the clause addressing the point. We considered the matter very carefully but have concluded that it would not be right for a number of reasons.
A restriction such as that proposed would exclude from providing supervision under the new secure training order many people who at present provide supervision in the community and who are not required to have the specified qualification but who in fact provide supervision under existing arrangements.
The purpose of subsection (2) as drafted is to allow the Secretary of State to appoint the most suitable person as the post-release supervisor, whether that

1197
person is a social worker of a local authority, a probation officer, a member of a voluntary body, or possibly a member of staff from the secure training centre. Those are all the people who could be appointed. That was the concern of the noble Baroness, Lady Masham.
The assessment of who or what agency should provide the post-release supervision will be made on an individual basis for each trainee. As drafted, the subsection therefore gives the greatest flexibility. In many cases the chosen supervisor's qualification may be the certificate of qualification in social work. But the Government do not believe that that is the only suitable qualification. And we would not want to be restricted to that alone. However, I should like to assure your Lordships that the person appointed as a trainee's supervisor will be required to be suitably qualified and properly experienced. The supervision process will start during the secure part of the sentence and the supervisor will therefore know the child by the time the second part of the sentence begins, where that is undertaken in the community.
Subsections (9) and (10) provide for the making of rules governing supervision and the incorporation in these Rules of National Standards. They will ensure that the supervision of juveniles who are given secure training orders meets the required standard. The possession of a certificate in social work alone cannot do that.
It is for that reason that we believe it would be a pity to inhibit the spectrum from which people can be drawn, which would be the effect of the amendment. I hope therefore that my noble friend can understand the reasons why we consider the Bill to be best as it is, and that she will withdraw the amendment.
Baroness Faithfull: My Lords, I thank my noble friend for that reply. I said that it was a probing amendment because I feared that the answer I would receive would be the answer he gave. I am worried because, first, the Bill does not state what training a supervisor will have as a member of staff of the secure training unit. We do not yet know what training the staff of the secure training units will receive. I sometimes wonder how all those fully qualified staff will be found.
Secondly, can my noble friend say what other qualifications he considers suitable? He may say that the person should be an ex-teacher, an ex-doctor or an ex-psychiatrist. But I suspect that none of those kinds of people will be on the staff of the secure training unit. He said that it is probable and likely that a member of staff who had supervised a child inside the unit would supervise the child in the community. However, even if the supervisor were highly qualified, he may not know what facilities are available in the area where the child lives. I am therefore unhappy with my noble friend's reply, but I do not at this stage intend to divide the House. I shall give consideration to the matter and ask whether I can see my noble friend to discuss the situation before the next stage of the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 [Management of secure training centres]:
Lord Elton Lord Elton moved Amendment No. 12:
Page 6, line 22, at end insert:
("( ) After subsection (3) there shall be inserted the following subsection—
"(3A) Rules made under this subsection shall ensure that—

(a) each offender in a secure training centre shall receive no less than 25 hours per week of education or vocational training; and

(b) each offender aged under 16 in a secure training centre shall receive a curriculum which—

(i) is appropriate to his age, ability and aptitude and to any special educational needs which he may have;

(ii) as far as possible satisfies the requirements of the National Curriculum; and

(iii) is determined, where appropriate, in consultation with persons involved in the offender's previous education and in the school which the offender will attend on his release." ").

The noble Lord said: My Lords, Clause (5 deals with the conditions in secure training centres in a variety of respects. In Committee I drew your Lordships' attention to the important nature of the provisions that would apply, because the bill of sale offered to us for the STC implies that it will be such a specialist and effective treatment that the children will have a better chance of becoming proper and well-conducted citizens after attending than they would if they went elsewhere. However, in debate it transpired that children in a secure training centre, although of school age, would not be subject to the education Acts and therefore there would be no requirements for the child to be educated.
It seemed to me that, although the units are called "secure training centres", education rather than training must be at the core of rehabilitative and corrective programmes. I therefore tabled Amendment No. 12 which will import into the Bill the various bones of what would be required to ensure that such an education was given even though the children, and indeed the centres, were not subject to the education Acts.
Since then my noble and learned friend has been kind enough to have sent to me an administrative paper providing the proposed rules for secure training centres, a copy of which is in the Library. On page 3 1 was happy to find most of my amendment incorporated in the text of the draft rules; that is to say, a reference to the trainee receiving a curriculum appropriate to his age, ability and aptitude and any special educational needs he may have. That is welcome. As far as possible the centre must satisfy the requirements of the national curriculum, and that too is welcome.
While I pause warmly to welcome those factors, perhaps my noble and learned friend will go a little further in two respects. The first is that, in consulting on the draft rules—I take it that that is his intention and perhaps he will confirm it—he will consider importing the third leg of my proposals; that is to say, that in devising the curriculum for the incarcerated pupil the authority shall, as far as possible, consult with those who have been responsible for the child's education hitherto and with those who will be responsible for the child's education when he is returned, as he must be at the end of his sentence, into the community.
That seems to me to make sense and to be extremely important. If a child is taken out of education completely and given some other curriculum or treatment, and then is put back in, he is virtually

1199
condemned to re-offending, making a totally frustrated and bewildered pupil. The object of the education in the STC must be not only corrective as to his social behaviour, but also progressive as to his educational behaviour. The object of the staff must be not only to secure better behaviour from him, period; it must be also to render him in a condition where he can take up his educational progress again with minimum difficulty. He will not be disposed to overcome that difficulty himself and must be taught how to do it.
I hope therefore that my noble and learned friend will say that that aspect also will be taken into consideration, and indeed that consideration will be given to the objects of the educational process in the STCs being described in the rules so that those responsible for it understand that their job is to try and create a pupil who is acceptable into school in his home area.
My other question, of which I gave my noble and learned friend minimal notice, is whether he will kindly remind your Lordships under what parliamentary process the rules will become—as I understand they will do—subordinate legislation. That will determine the extent to which we shall be able to influence them later. If it is a small influence, then we shall obviously have to try to influence them early. I beg to move.
Baroness David: My Lords, I strongly support the amendment. A number of us felt extremely anxious about what education will be provided; whether it will be by qualified people and whether it will be adapted to the young people attending. I obtained from the Library this morning part of the specifications for the training centre. The document is called, Schedule: Staff Selection, Training, Qualifications and Certification. It did not totally convince me that everything would be all right. In paragraph 8 it says,
"In addition to the considerations listed above the Service Provider should note that teaching staff will normally be expected to have qualified teacher status. Expertise in the management of youngsters with special educational needs and prior professional training in handling difficult or aggressive behaviour would be an advantage. Consideration should also be given to the appropriate skills and experience required for the development and delivery of a suitable curriculum."
That is not totally convincing. I should like to hear a little more about what is intended. I know that Ofsted is to examine the education provided in these establish-ments. But we need a little more convincing that the right thing will be done, and I should very much like to hear what the Minister has to say.
7 p.m.
Lord Elton: My Lords, before the noble Baroness sits down, when she started quoting I had assumed that she was quoting from the document that I have before me and which I have already described. She seems to be quoting from something else. Will she kindly tell the House what it is and will the Minister say how they both relate to each other?
Baroness David: My Lords, when I asked for the specifications from the Library it gave me various documents. The one from which I quoted was called Schedule: Staff Selection, Training, Qualifications and
1200
Certification. I can assure the noble Lord that the Library has it. We are told that consideration must be given and so on, but there is no real confirmation that that will happen.
Baroness Masham of Ilton: My Lords, education for these difficult children is vital. Many of them will not have done well at school. Many will have truanted. They are children of school age. They should be in a secure school environment, not a prison environment. Education can give them hope—perhaps the only hope for a life of going straight.
Prison can mean despair, giving these difficult children a passport to a life of crime. I hope the House will recommend that education is so important that it is unwise not to write it on the face of the Bill.
The Lord Advocate (Lord Rodger of Earlsferry): My Lords, when the matter arose in Committee there was on all sides a recognition that education is important. Initially there was some surprise that there was not more reference to it on the face of the Bill. As I explained then, the mechanism under Clause 6 of the Bill is for rules to be made under the Prison Act 1952 by amendment of Section 47 of that Act. The rules will become like other rules made for prisons and other institutions under Section 47. The rules accordingly will be subject to the procedure for rules provided by the Prison Act 1952. I can tell my noble friend Lord Elton that that is the negative resolution procedure.
The documents placed in the Library of the House are two in number. First, there is the administrative paper outlining the proposed rules for secure training centres. The paper is intended to be made available to those who are thinking of tendering so that they can see what the rules are likely to provide. It is not an absolutely final form but nonetheless one has in it a very clear indication. It is an indication of what will be put into secondary legislation. That in its turn is supplemented by the operational specification which noble Lords will have seen. It will be made available to those who are intending to tender so that they should see what is required of them if they propose to offer to run one of these centres. To get the flavour one has to read both sets of documents together.
My noble friend Lord Elton drew attention to the fact that on page 4 of the administrative paper outlining the proposed rules one finds reference to at least two of the matters which are specifically referred to by him in his amendment; namely, in sub-paragraph (i) the need for a curriculum which is appropriate to age, ability and aptitude, and in sub-paragraph (ii) the need for a curriculum which as far as possible satisfies the requirements of the national curriculum. My noble friend drew attention, however, to the fact that what is set out in sub-paragraph (iii) of the amendment does not as such appear in the draft of the rules. That is intentional because it is recognised that it will not always be possible for consultation, and so on, in every case to be exactly in the form which might be envisaged by my noble friend's amendment. As he himself will recognise, there will be cases where unfortunately these children have had very little contact with an education

1201
system in the past and therefore contacting people who were involved in previous education may not be appropriate in a number of cases.
Although it cannot be made for that reason a rigid part of rules and therefore does not appear in the proposal for the rules, nonetheless your Lordships will see from the operational specification that it is envisaged that in connection with education and vocational training there will be contact with the previous person involved in education. One finds at the bottom of page 19 and at the top of page 20 of the operational specification:
"In deciding what are the appropriate requirements for education and training the service provider must quickly acquire details of a trainee's education records to date. The service provider should state how he proposes to gather such information".
That would be one of the contractual duties. Your Lordships will see that it involves finding out what the details have been of the education to date.
Your Lordships will also see in what is described as "What is to be done in planning the component"—in (ii) on page 20—that trainees who are of school age on release will return to the education system. Attempts should be made to ensure that they continue their education in the light of the national curriculum and that examination course work is maintained or initiated through close contacts with trainees' schools so that they are not unnecessarily disadvantaged by their period in security. The matter in (iv) on page 21—the idea that they should have regard to the national curriculum and so on—is there specifically because what is to be done is framed against the consideration that their peers are learning within the national curriculum to which they will be likely to have to return.
Your Lordships will also see that the specification provides in paragraph 7, on page 23, for the service provider to state how many staff he will employ or contract for education and/or vocational training, what qualifications and/or levels of experience of the relevant age group they will require and how they will be deployed in such areas as time-tabling of subjects, staff/trainee ratios and what other duties they might undertake. The noble Baroness, Lady David, has the advantage of me with regard to the particular document from which she quoted as I could not immediately trace it in the papers which I have before me. Perhaps she will allow me to write to her in connection with the matter which she raised.
I hope that noble Lords will see that partly through the use of secondary legislation, but where that is felt not to be appropriate because it would not be proper to provide absolutely for duties on the face of legislation, nonetheless in those cases, through the operation of the contractual duties, we have built up a regime which should provide for this very important educational component of training for these young people. With that explanation, I hope that my noble friend will feel able to withdraw his amendment.
Lord Elton: My Lords, I am obliged to my noble and learned friend for that detailed reply, which I shall read with great care. I shall possibly return to the matter. My difficulty is that while at the outset I was very much
1202
attracted by what I saw in the draft rules and in particular the 25 hours for classroom teaching, and so on, there is a certain amount missing. I thought that that certain amount should be in the statute. I thought that it was the statute which was supposed to drive the system and that Parliament said what should be in commercial documents.
As I listened to my noble and learned friend I wondered whether he was getting the commercial horse in front of the legislative cart. It sounded to me as though he was saying, "This is laid down in a commercial document, so we need not have it in the statute". The commercial document on which the contract is let is valid for the period of the contract. It is subject to variation by agreement between both parties. I do not suggest that the whole detail of this should be imported into legislation, but it ought to show the minimum criteria which should be in the commercial document. It need not be on the face of the Bill; it can be in the subordinate legislation which, I am sorry to hear, is to be introduced by the negative rather than the affirmative procedure. That is a subject on which we have all become well-versed lately. I therefore give notice to my noble and learned friend that I shall be looking with great care at what he has said in the light of the two documents to which he referred, with the possibility of returning to this matter at a later stage in order to knock this other nail into the framework. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7 [Contracting out of secure training centres.]:
Earl Ferrers Earl Ferrers moved Amendment No. 13:
Page 6, line 42, at end insert:
("( ) Where the Secretary of State grants a lease or tenancy of land for the purposes of any contract under this section, none of the following enactments shall apply to it, namely—

(a) Part II of the Landlord and Tenant Act 1954 (security of tenure);

(b) section 146 of the Law of Property Act 1925 (restrictions on and relief against forfeiture); and

(c) section 19 of the Landlord and Tenant Act 1927 and the Landlord and Tenant Act 1988 (covenants not to assign etc.).

In this subsection "lease or tenancy" includes an underlease or sub-tenancy.").

The noble Earl said: My Lords, this amendment enables the Secretary of State to lease land to a contractor for the purpose of building and operating a secure training centre, without losing the ability to reclaim possession of the land. This is achieved by disapplying the protection which is normally afforded to tenants by legislation.
This will enable the Home Office to regain control of the land (and the centre on it) on termination of the contract for the secure training centre, and so avoid the need to enter into potentially protracted litigation for repossession. I beg to move.
Lord Elton: My Lords, I wonder whether my noble friend will go a little further. I refer to paragraph (c) of the amendment which states,
"section 19 of the Landlord and Tenant Act 1927 and the Landlord and Tenant Act 1988 (covenants not to assign etc.)".
I do not understand how it is necessary to set aside the power to make a covenant if it is not intended to use it.

1203
I may have misunderstood what my noble friend was saying, but if he can enlighten me on that I shall be most grateful.
7.15 p.m.
Earl Ferrers: My Lords, I shall do my best, but I will not guarantee success. Where a centre is to be built it may be built on land which will be leased to the company concerned for a period of about 15 years. If it were to transpire that the company did not carry out its responsibilities properly, it may be necessary to terminate the contract. By doing so, the centre would revert to the ownership of the Home Office through the payment of a sum of money. It would be wrong for that to happen with the contractor owning the lease of the land or, in the case of paragraph (c), it would be wrong for him to have sublet it to somebody else so the Government could not get back into their possession the land on which the building was erected and for which the contractor would have been paid in the event of the arrangements for the centre coming to a conclusion. I hope that I have explained that adequately to my noble friend. I shall read what he has said in the quietness after this debate. If I have misdirected him, I shall get in touch with him.
Baroness Faithfull: My Lords, can my noble friend the Minister say exactly where are the secure training units to be built? We have heard that they are to be built in prison grounds. Does that mean that some will be, and others will not?
Earl Ferrers: My Lords, we are in danger of becoming out of order. I do not wish to prevent my noble friend from asking a question, but I believe the convention is that once the Minister has spoken, speeches as such do not continue. The answer to my noble friend's question is that it is anticipated that these buildings will be built on Home Office land.
On Question, amendment agreed to.
Clause 9 [Powers and duties of custody officers employed at contracted out secure training centres.]:
Lord Mottistone Lord Mottistone moved Amendment No. 14:
Page 7, line 43, at end insert:
("() When exercising the powers conferred by subsection (2) above the custody officer shall have regard to items of clothing worn in respect of religious beliefs.").
The noble Lord said: My Lords, at Committee stage I had an amendment similar to this one. My noble friend the Minister said that he would consider including this requirement in Home Office guidance covering the undertaking of searches by custody officers in secure training centres.
I am most grateful to my noble friend Lord Ferrers for writing to tell me that he has done that, and for telling me that the relevant guidance that I require will be included. I had already tabled my amendment before I received the letter, but I thought that I would move it in order that my noble friend might be able to tell the House, and therefore have a record, of what he told me in the letter. I beg to move.
Baroness Masham of Ilton: My Lords, as we are discussing clothing, what will be the clothing worn by the staff at the secure training centres? Will it be prison uniform or ordinary clothing? It makes a difference to children in a school environment.
Earl Ferrers: My Lords, as these are not prisons, staff will not be in prison uniforms. I should like to consider whether there should be some form of uniform used. Perhaps I may get in touch with her about that.
As regards the amendment, the need to have regard to items of clothing which are worn in respect of religious beliefs is acknowledged; but, as I stated at Committee, I do not think that it would be right to deal with this sort of thing in primary legislation.
But I can assure my noble friend Lord Mottistone that this matter will be addressed in the guidance which will be issued to secure training centres by the Home Office in respect of the undertaking of searches.
Lord Mottistone: My Lords, I am most grateful to my noble friend both for his letter and for his remarks. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Viscount Tenby Viscount Tenby moved Amendment No. 15:
After Clause 15, insert the following new clause:
("Mandatory pre-sentence reports for under 18 year olds
.—(1) Subject to subsection (2) below, a court shall obtain and consider a pre-sentence report before forming any such opinion as is mentioned in subsection (2) of section 1 or 2 of the Criminal Justice Act 1991 in the case of an offender under the age of 18 years.
(2) Where the offence or any other offence associated with it is triable only on indictment, subsection (1) above does not apply if, in the circumstances of the case, the court is of the opinion that it is unnecessary to obtain a pre-sentence report.").
The noble Viscount said: My Lords, in moving this amendment, I speak also to Amendments Nos. 179 and 182. The anxieties lying behind these amendments were clearly and admirably expressed by the noble Baroness, Lady Mallalieu, during the Committee stage of the Bill. At the time I felt that the Minister, though unyielding in the end, as is his wont, was not entirely unsympathetic to the compelling case made. I hope that in the intervening period he and his right honourable friend in another place may have moved to a more conciliatory position. We shall wait in pious and earnest hope. At the time it was clear that there was a substantial body of opinion within the House which had reservations about the concept that a request for a pre-sentence report should no longer be mandatory—those anxieties being heightened in the case of juveniles.
The objective behind the Government's proposal is clearly financial. Fewer reports mean a reduction in the demands on the probation service which has to prepare them. But is the game going to be worth the candle? Is the saving going to be worth the real danger to the effective—I stress the word "effective"—disposal of cases? The Government have already said that this change to one of the cornerstones of the Criminal Justice Act 1991 is necessary to alleviate the problem, which was not foreseen at the time, that the increased workload of the probation service would lead to greater delays in the preparation of reports and therefore in disposals. But it would scarcely have taken an Einstein to foresee such

1205
an outcome, especially since five pilot schemes in certain probation areas were put in hand at the time. As a result, ways have been found of simplifying and standardising reports. Although there is still much to be done in reducing the delay between a request from a court and delivery of the report, there are distinct signs that we are getting there. So this is hardly the time to run up a white flag, one might think.
As the Minister may say—and if the noble Earl does not say this others already have—this provision does not mean that pre-sentence reports cannot be requested where custody or a community sentence is a possible outcome; only that they do not have to be requested. We understand that. However, I think it very likely that most magistrates will ask for a pre-sentence report and that, accordingly, the saving to the public purse will be minuscule. The point is that the dangers far outweigh any possible savings. It may be that in only a handful of suitable cases would an up-to-the-minute pre-sentence report not be requested, but even if it were to be only one case, that would be one too many.
No one is arguing for a "sky's the limit" policy. If someone from an adult court is already enjoying a stretch at Her Majesty's pleasure we can all agree that to request a pre-sentence report in respect of a later offence would be an unnecessary extravagance. Noble Lords will note that in an effort to reach some sort of accommodation with the Government—to show good faith, as it were—the amendments now suggest that pre-sentence reports should be mandatory only for 18 year-olds and under.
Perhaps I may make another point clear. In case anyone should mistakenly think that this apparent solicitation towards offenders is another manifestation of the bleeding hearts' club—or the sticking plaster industry, as it is sometimes disparagingly described— please bear this in mind: while it is true that a fresh report might save someone from what would otherwise be a custodial sentence, it might equally work the other way. The Magistrates' Association, the members of which deal with the overwhelming majority of juvenile offenders, opposes in strong and unequivocal terms the removal of the mandatory obligation for fresh pre-sentence reports, as does the Association of Chief Officers of Probation and all the other associations involved in probation work.
I have been a magistrate for some 20 years. Although I much regret that I have not served on a juvenile panel, I know from my experience in the adult courts what an indispensable tool in the sentencing operation up-to-date reports from the probation service are. In my own area of north-east Hampshire, I and my colleagues may have been particularly fortunate in the helpful contributions that we have received from the probation service, first through the social inquiry reports and latterly through pre-sentence reports, but I am confident that in general that high standard is reflected throughout the country.
Sentencing is a serious matter that affects not only the future of individuals, but, even more importantly, the protection and wellbeing of society. Therefore, when sentencing it is essential to have at one's disposal every single piece of fresh information about the
1206
accused. That requirement is self-evident in the adult court; but how much more important it is when dealing with juveniles.
Adult offenders often, regrettably, settle into a predictable pattern of anti-social behaviour. The circumstances relating to juveniles can, however, change dramatically—sometimes overnight. A pattern of criminal behaviour of hair-tearing frustration can suddenly stop just like that. Indeed, there have been cases of defendants totally changing their patterns of offending—perhaps even giving up altogether—bet-ween being charged with the offence and being brought before the court. Given that state of affairs, is it really desirable to sentence without the latest available information? In this context, the reversal of the measures contained in the Criminal Justice Act 1991 are highly regrettable—I am trying to choose my words with care.
This is not a political matter. It is a matter of common sense. Oh dear, those dreaded words, referred to by the noble Earl, are rearing their ugly heads again. I hope that the Minister will accept my apologies for using them, but I will. It is a matter of common sense, inextricably linked principally to the effective running of the lower courts and, as such, it transcends party division. The plain question is: are we going to interfere seriously with the ability of Benches to deliver realistic and fair sentences in order to produce savings which are probably illusory and almost certainly derisory? I hope not and I think not. I beg to move.
Lord Mottistone: My Lords, I should like briefly to support what the noble Viscount, Lord Tenby, has just said. As your Lordships know, I am advised by the Magistrates' Association and the noble Viscount has more than covered all the points that it would want to make. The basic point is that youth court justices do not feel constrained by the present arrangements, so it seems strange that we should have these changes forced upon us. I hope that my noble friend the Minister will be able to give us encouragement on this amendment, even if he does not accept it as drafted.
Lord Ackner: My Lords, I should like to support the amendment. Unless one has been involved in sentencing, one does not realise how necessary it is to have all the up-to-date information that is available. Without that up-to-date information, there is a risk that one may be too harsh or, alternatively, that one may be too lenient. To an extent, one is sentencing in blinkers if one is thrown back on material which may, at the material time, be out of date.
Baroness Masham of Ilton: My Lords, with the increase in drug abuse, it is most important that people's drug habits should be made known to the courts in case drug rehabilitation is more appropriate than another custodial sentence. Also, with so many people with learning difficulties in the community, such conditions should be known to the magistrates and the courts. I support the amendment.
Baroness Mallalieu: My Lords, I too support the amendment. It simply is not good enough to say that a safeguard is provided in the proposed changes in that

1207
magistrates can use an old report. New and up-to-date reports are absolutely essential because they contain information which no old report, even a relatively recent old report, can contain. An old report will not be able to deal, with, for example, the current offence; why it was committed; or with the defendant's remorse or likelihood of further offending. Even more important, an old report will not deal with the response to the sentence that was imposed for the offence for which that original report was prepared.
An old report will not deal with changes in circumstances. It is not good enough to say that no doubt a court will be alerted to such changes by the barrister or solicitor who is representing the young person. Often they will have spent only 20 minutes or half an hour with their client, sitting outside the court, trying to update the facts that they have been given about the background. A young person in those circumstances is scarcely likely to be articulate about the important changes that may have occurred to him, his family, his circumstances or his problems.
Nor will an old report deal with the sentences which are available currently to the court. Of course, a sentencer knows in general terms the various options that are open to him, but he may well not know of particular local community programmes to help an offender in that category. Nor will he have from the old report a recommendation from the probation service as to which of those possible courses is open and available to him and suitable for that offender at that particular time in his criminal career.
There is a vast range of options open to a sentencer dealing with a juvenile. That sentencer needs advice, guidance and in-depth information about the offender even more than he does with an adult. It is essential, particularly with young people, where circumstances and problems are subject to rapid changes, not to cut out the requirement that that report and information should be the most up to date possible. To try to do so in those circumstances, when it was considered to be essential as recently as October 1992, when the 1991 Criminal Justice Bill was enacted, is false economy. I hope that the Minister will feel that he can accept the amendment.
7.30 p.m.
Lord Wigoder: My Lords, we too support the amendment. It is not just that pre-sentence reports are, as the noble and learned Lord, Lord Ackner, said, more up to date; they have two other advantages over the remaining information that might be available to the court. One is that it is likely to be more impartial than any evidence or information produced by the defence solicitor and, through the defence solicitor, to the defence counsel; and, as the noble Baroness, Lady Mallalieu, said, there will almost inevitably be far more information about the defendant's family background which is so important when trying to assess how he came to get into a life of crime, and, equally important, in trying to assess his prospects of rehabilitation in due course. That has the advantage of being impartial and fuller information than is otherwise likely to be available to the magistrate or the judge.
1208
I can only say, speaking for myself, having had the painful task of dealing with numerous young offenders, that the assistance given by a pre-sentence report has been invaluable, and I believe that miscarriages of justice would have taken place without it.
Earl Ferrers: My Lords, my noble friend Lord Mottistone said that he hoped that I would be able to give your Lordships some encouragement. I shall do my best to do so. No one disputes for a moment that pre-sentence reports are of enormous value and importance.
The Government's aim in providing the courts with the discretion to dispense with a pre-sentence report is in order to meet concerns which have been expressed, in the light of experience, by many sentencers who believe that the existing arrangements for imposing custodial and major community sentences are inflexible and that in its present form the requirement imposes unnecessary burdens on the courts and unnecessary costs for the criminal justice system as a whole.
The noble Viscount, Lord Tenby, said that the Government are doing this for entirely financial reasons. That is not so. It is not entirely financial. Of course finance comes into it, and we believe that a pre-sentence report is expensive and in some cases unnecessary.
The amendments would have the unhelpful effect of removing the court's ability to dispense with the requirement to obtain a pre-sentence report when considering whether to impose a custodial or a major community sentence on a young offender. The amendments would create anomalies.
It could result in one regime for over 18 year-olds, where they can dispense with the need for a pre-sentence report, and another for those under 18, where they could not. The Government have already imposed a requirement for the court to consider a previous report before the court can exercise its discretion to dispense with a report. They have anyhow to consider the previous one. That means that in every case involving a juvenile under 18 the courts will have had regard to a report on the offender. If the previous report is not relevant to the current offence or if it is out of date, the court would, of course, need to obtain a new one.
If the pre-sentence report which the court is bound to consider is relevant and up to date, it is pointless to turn round and get another one.
In order for the courts to satisfy the welfare requirement, which they are obliged to do under Section 44 of the Children and Young Persons Act 1933, we expect that the courts will obtain a new pre-sentence report in any case where there is any doubt whatever about the information in the latest report being up to date.
We have imposed that requirement precisely because we recognise that special considerations apply in the case of juveniles and because the court must have proper regard to their welfare requirements.
The noble Viscount said that it was common sense to have a pre-sentence report. I agree with him, but it is also common sense not to have a report if there already is one. The amendments would require the court to

1209
obtain a new report even though a recent one on that offender might contain all the information which the court needed to bring out the welfare argument. I suggest that the Bill as it stands provides the right balance. While I understand the reason why the noble Viscount has put down the amendments, I fear that they would involve arrangements which would be unneces-sarily expensive and bureaucratic.
Viscount Tenby: My Lords, I am grateful to noble Lords who have taken part in this mini-debate, and who have, for the most part, put forward their point of view far more eloquently than I was able to do on the important points. I am also grateful to the Minister for his detailed and typically courteous reply to the points I raised. It showed, alas, that my hunch that there might be some movement on the Government's side was ill-founded. All along the Government's position has been that this is what they describe as a minor amendment. I do not so regard it. I am surprised that a government who were able, powerfully and rightly, to recommend that a pre-sentence report should be mandatory three short years ago could later argue the reverse without so much as a collective blush. That surprises me.
It is not a minor matter, but I should like to ponder upon what has been said tonight and exercise the right to return to the matter on the next occasion. So I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Harris of Greenwich: My Lords, can we have cleared up what is actually going to happen? Is the debate going to resume or is the "debate" which I see taking place on the Front Bench going to continue?
Earl Ferrers: My Lords, the noble Lord, Lord Harris of Greenwich, is always helpful. I was trying to suggest that it might have been helpful to him, as well as to other people, if we were to take the next amendment now even though the bewitching hour of half past seven has passed by about two minutes, as it is, even to the noble Lord, Lord Harris, uncontroversial.
Clause 20 [Secure remands for young offenders]:
Earl Ferrers Earl Ferrers moved Amendment No. 16:
Page 13, line 27 leave out from ("words") to end of line 30 and insert:

("(a) "person who has attained the age of fourteen";

(b) "person who has attained the age of thirteen"; or

(c) "person who has attained the age of twelve";

but no substitution may be brought into force on more than one occasion.").

The noble Earl said: My Lords, this is purely a drafting amendment. I beg to move.
On Question, amendment agreed to.
Lord Annaly: My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion, perhaps I may suggest that the Report stage begin again at 8.40 p.m.
Moved accordingly, and, on Question, Motion agreed to.

Royal Assent
7.40 p.m.
The Deputy Speaker (Lord Lyell): My Lords, I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified her Royal Assent to the following Acts:

Parliamentary Commissioner Act,

Antarctic Act,

State Hospitals (Scotland) Act,

Chiropractors Act,

Social Security (Incapacity for Work) Act,

Local Government (Wales) Act,

Sunday Trading Act,

Coal Industry Act,

Vehicle Excise and Registration Act,

Value Added Tax Act,

Commons Registration (Hast Sussex) Act,

Dunham Bridge (Amendment) Act,

London Underground (Green Park) Act.

Veterinary Profession: EU Training Support
7.42 p.m.
Lord Soulsby of Swaffham Prior Lord Soulsby of Swaffham Prior rose to ask Her Majesty's Government what action they propose to take following the decision of the Commission of the European Union to withdraw support for the sectoral directives and advisory committees on training for the health professions, with particular respect to veterinary training; and how this will affect the health and safe movement of animals moving within and into the Union.
The noble Lord said: My Lords, I am grateful for the opportunity to ask Her Majesty's Government what initiatives they are taking and hope to take as regards the sectoral directives and support for the various advisory committees and their sub-committees of the health professions in the European Union. Many who are not familiar with such matters have been taken completely by surprise to learn how serious the situation is. Perhaps your Lordships will permit me to give a brief background to the situation.
The health professions in the European Union—for instance, doctors, veterinarians, dentists, nurses, midwives and pharmacists—have sectoral directives which were adopted by the European Community in 1975. They cover mutual recognition, training and advisory committees. Mutual recognition was a means to ensure the freedom of movement of professionals within the Community and it was based on the concept of a comparable high standard of training. I emphasise that it is not identical training between the different countries.
The advisory committees on training are the means whereby educational standards, including facilities, course content and clinical teaching experiences, are assessed with respect to the phrase "comparable high standards of training". It is important that each health profession can feel confident that professional persons

1211
from another European Community country meet the educational standards of the host country and are competent to practice that health profession in that host country. Of course, the importance of competence will vary between professions. No one would wish a totally incompetent health professional to be permitted to practice in their own country. But that is a very real possibility and we should be concerned about it.
But of even greater concern is the potential, though unforeseen, danger of this type of individual failing to recognise important diseases or, even worse, certifying that they do not exist. As regards the veterinary profession, that could mean a failure to recognise a highly contagious disease entity, especially one introduced from a third country, or an animal or group of animals, certified either mistakenly or even falsely to be free of disease. That occurred recently with serious consequences to the equine population of the United Kingdom with respect to equine viral arteritis.
With the development of a single market, the freedom of movement of animals and foodstuffs of animal origin occurs without border checks of the importing country. It is therefore imperative that the health of livestock, and also derivatively that of people in the European Union, be safeguarded by a competent veterinary profession within the Community.
It is these considerations that have led the veterinary profession in this country to be particularly active—in fact, the leaders—in their Advisory Committee on Veterinary Training. It initiated a system of visitations to veterinary schools—one in each member country of the European Union—to see at first-hand the quality of facilities for training, the curriculum, the staffing and the supply of clinical materials rather than rely solely on a written submissions. The visitations are similar to those that occur in this country, in the United States, Canada and Australasia. In those countries, schools failing to meet the requirements of that country are put on probation or, in some severe cases, the degree awarded is not recognised by the licensing authority.
Initially, one school per European Union country was visited. While the reports produced had no force of authority to discontinue the recognition of a given degree, in some cases a major upgrading of facilities resulted from the visitation report.
The success of the pilot scheme was acknowledged, and in 1990 the Commission agreed that the Advisory Committee on Veterinary Training could embark on a programme of visitations of the remaining EC schools, which would be completed by the end of the decade. The programme was to be funded by the Commission. However, in 1993 the Commission unilaterally announced that it would not fund the visitation programme after 1994; and if the programme were to be continued, the profession itself would have to organise and to fund it. At the same time, the meetings of the advisory committee were reduced from two days twice per year to one day per year. That is a totally inadequate time for the consideration of any reports that might emanate from the visitations. A similar curtailment of
1212
advisory committees was experienced by the other health professions in this country and in the European Union.
One is forced to conclude that the Commission of the European Union has little concern for the concept of ensuring comparably high standards of veterinary training, or indeed for other health professions such as dentists where funding for visitations has suffered a cut-back similar to that of the veterinarians.
The question might be posed: can the Advisory Committee on Veterinary Training and the visitations continue in the absence of Commission support? There are mechanisms by which this might be achieved; for example, through the European Association of Establishments for Veterinary Education. The deans of veterinary schools in the European Union have taken up the challenge but the task is daunting and considerable financial support will be required to fund and to organise the work of the visitations and the advisory committees. It is generally beyond the abilities of the veterinary schools in the various countries to fund that.
While there is no conflict between the aims of the Royal College of Veterinary Surgeons, which in this country is responsible for the assessment of the quality of veterinary education, and the Advisory Committee on Veterinary Training in the European Union in monitoring standards, the big difference is that the royal college has a statutory duty to carry out visitations under the terms of the Veterinary Surgeons Act 1966. The Commission has no such powers and were visitations to be organised by non-Commission bodies, such as the European Association of Establishments for Veterinary Education, it would have to rely on the goodwill of schools agreeing to invite visitors in the first place and to accept any report that might be produced—and, more importantly, to do something about that report if it contained criticism. There are already signs that certain schools within the European Union have indicated that they might well refuse to be visited and reported upon by any group that can no longer be recognised as an official Commission visitation.
The responsibility for those issues lies with two directorates-general: DGXV, responsible for the advisory committee on veterinary training and the free movement and right of establishment of veterinarians throughout the Community; and DGVI which is responsible for agriculture and the free movement of livestock and the safety of food products. I am aware that the Minister must wear two hats when replying to this Unstarred Question.
Pressure is necessary on both those directorates-general since there is much at risk including the diagnosis of disease, the proper use of veterinary medicines and honest and accurate certification, to mention a few, as well as freedom of movement within the Community.
Because the mutual recognition directive of 1978 obliges the United Kingdom to register European nationals who graduate from European Union veterinary schools and who wish to work in the United Kingdom, it must surely be the responsibility of the European Union, through the Commission, to ensure an acceptable standard of veterinary training throughout

1213
he Community. An increasing number of veterinarians from the European Union are registering in the United Kingdom—up to 200 per year—and of course that number is likely to increase as the number of countries joining the union also increases.
There are differing, but nevertheless important, implications of inadequate training of graduates for each health profession. In the case of the veterinary profession the health standards of the national herds and flocks of farm livestock, as well as those of sports and companion animals in the United Kingdom, as well as in the Community, may be put at serious risk with enormous financial and important welfare implications.
Several health professions in the United Kingdom share the anxiety of the veterinary profession about the threat of the Commission to withdraw support for the sectorial directives and advisory committees. The implications of that are wide and I hope that the Government will be willing to mount a robust challenge to the attitude adopted on those issues by the Commission.
7.53 p.m.
Lord Carter: My Lords, the House will be extremely grateful to the noble Lord for tabling this very important Question. Although it is directed mainly at veterinary training, as the noble Lord said it goes much wider and affects all the other health professions. I must admit that until I was briefed for the debate, I was not aware of the implications of the actions of the Commission. I have been briefed by the BMA, pharmacists, dentists and nurses, all of whom share the anxiety expressed by the noble Lord.
With regard to doctors, it seems that 19 years after the adoption of what were called the doctors' directives, discrepancies in both basic and specialist training throughout the European Union are still evident. It is clear that the work of the advisory committee on medical training is of vital importance. However, it is equally clear that its effectiveness is severely limited. The problems are twofold; it is under-funded and under-staffed, and it cannot meet as often as necessary. On the whole, its recommendations have not been given the force of law and have gone unheeded in many European Union countries.
The Royal Pharmaceutical Society of Great Britain has written to me. It makes the point that:
"In most countries of the European Union the 'qualified person' in the pharmaceutical industrial company who authorises the release of a batch of medicine must be a pharmacist. Bearing in mind that medicines with a marketing authorisation in various member states should be able to move freely among these member states, the importance of a consistently high standard of education and training for pharmacists throughout the European Union is clear".
The noble Lord who opened the debate mentioned dentists. We know that dentists with an EU qualification and EU nationality are free to move and establish anywhere in Europe. That freedom will extend next year to the EFTA countries through the new European Economic Area. It is essential, in order to protect the public health, that there are proper safeguards of the quality of training throughout an ever-widening Community.
1214
With regard to nurses, the Advisory Committee on Training in Nursing is one of a number of committees established by the Council of Ministers to advise the Commission on matters relating to the education and training of health care professions. In the past, the ACTN has performed valuable work for the Commission in a number of key areas such as cancer, elderly people, primary health care, and continuing and specialist nurse training, and in the drafting of the legislation which now regulates the movement of nurses among the member states. Again, the ACTN has had its finance reduced and the number of meetings curtailed. The ACTN for the period 1994–97 should have begun its work in April 1994 but that meeting and a rescheduled meeting in May were cancelled. Those are just some brief remarks regarding the effect on other professions.
I turn now to the thrust of the debate which deals with the vital matter of veterinary education. The EC Commission, in a letter from Mr. Mogg, the director-general of the internal market and industrial affairs, to Professor Van den Bergh, the chairman of the Advisory Committee on Veterinary Training, dated March 1993, expressed the view that,
"the heavy involvement by the Commission in the system of visitation of veterinary schools is no longer appropriate … and would more appropriately be run by the profession".
How would it do that and with what teeth? What would the veterinary profession do about an inadequate veterinary school in one member state even if every other member state were unanimous regarding its inadequacy? Is it conceivable that a similar attitude would have been adopted regarding the inspection and licensing of abattoirs? Would it be left to the industry in the member states?
This dereliction of responsibility has implications in two main areas; one of educational and another of national concern. In education, the system of performance indicators which rules the survival and prosperity of universities and their colleges includes vital judgments concerning their international standing. Yet we are about to lose a procedure which could have provided data on which to base such comparisons and indeed to confirm that UK and Irish schools are currently above average by European or other standards. Instead, they continue to be compared with non-veterinary science courses—a comparison which is relevant but dangerously incomplete since, for example, the obligation to teach a registrable degree course removes the flexibility simply to omit components which are inconvenient or understaffed.
If, sadly, any of the veterinary schools in this country were to close, the chances are that, in order to satisfy future demands for veterinary graduates in Europe, they would be replaced by the number of schools of dubious effectiveness elsewhere in Europe and, if present disastrous trends continue, with minimal supervision. It cannot make sense for sub-standard schools to proliferate anywhere in Europe while elsewhere first-rank schools risk closure. Least of all can it make sense to lose the excellent inspection system which permits such comparison as well as encouraging forward planning. I say at once that many European schools produce graduates whose performance equals or

1215
excels the performance of our own. The problem is the proliferating number of schools unlikely to attain a comparable standard.
The public should be aware that animal welfare and public health now depend on the legal right of any EC veterinary graduate to practise here, however inept, inadequate and devoid of practical training their course may have been. We are forced to pretend that their qualification is worth the paper it is written on. In most European schools, that is not a problem, but in a growing number of schools it is. Above all, in principle it is a grave threat if we accept qualifications which are unaccredited. That is not simply a matter of freedom of movement of goods and services. It is a matter of hoodwinking consumers that their health, welfare and safety standards are being properly safeguarded when, in reality, the Commission is choosing to abandon all responsibility. In short, it will insist that anyone can cross its internal frontiers and inflict services on the unsuspecting public under the protection of an unvalidated qualification.
As the noble Lord said in his opening remarks, while it was recognised that the EC would stop funding of the visitation system for veterinary schools at the end of this decade, the short notice of intention to cease funding for inspection of schools has come as a major surprise to many and leaves little scope for an alternative system to be put in place in the near future. While that development may be considered to be irresponsible by many, what is more important is that an inspection system should continue and that, whatever system of inspection is finally agreed, the Commission should act on reports from visits to schools as it is the best body to do so.
It may be more than just coincidence that the Commission decided to cease funding future visitations after it received an unfavourable report from a visiting group to a particular veterinary school on mainland Europe. If the Commission is not going to act on such reports, then there has to be a rethink of the whole concept of free movement of animals within the Community. However, what interested parties would hope for, above all, is an improvement in standards of veterinary education in all European countries.
High standards of training are fundamental to all areas of veterinary activity, whether it is caring for companion animals or safeguarding human and food animal health. Any shortcomings will inevitably rebound on the latter. Those standards are fundamental too to the various control measures envisaged for the single market, not least in the field of veterinary public health where veterinary ante-mortem inspection plays a vital role in arrangements for ensuring meat hygiene. As the noble Lord said, the system relies on the veterinarian's ability to recognise diseases in food animals and this, in turn, requires that the veterinarians involved should have had sound practical training in the diagnosis of such diseases. How can the Commission be sure that all veterinarians are receiving the required level of training if it fails to monitor standards across the Community?
1216
The outbreaks of foot-and-mouth disease in Italy last year and the problems with animals imported from eastern Europe into Britain have highlighted the reliance that Community policies for safeguarding animal health place on uniformly high standards of disease identification, reporting and control, and the fact that the health and welfare of herds and flocks in one member state may be crucially dependent on the standards of inspection and certification in another.
In terms of animal health and imports from countries outside the EC, frontiers can no longer be drawn on national lines, but have to be seen in terms of the Community as a whole. Here again, the necessary standards can be maintained only if levels of training are equally high, with the training embracing certification and professional ethics as well as animal health. Mutual reliance on another's certification means that everyone has to have confidence in the diagnostic ability and the clinical competence of their veterinary colleagues. In the absence of monitoring, where is that assurance to come from?
Mutual recognition of veterinary qualifications and measures allowing the free movement of veterinarians in Europe also assume that levels of training are uniformly high. Again, that requires that standards are monitored. If the Commission presses ahead with its proposal, we know for a fact that the profession itself will be invited to assume responsibility for visitations. However, without the weight of the Commission behind it, it is difficult to envisage a body with the necessary authority to gain access to schools on a Community-wide basis and achieve improvements where necessary.
Sadly, having rushed to introduce legislation for the single market, the European Commission seems to be taking a back seat in its operation, leaving it to member states and others to implement the rules and regulations as they see fit. Its proposal so suddenly to withdraw funding for the ACVT's system of visitations without consultation is especially unfortunate. As the practical effects of the legislation start to be felt, a system of monitoring is more necessary now than ever before. Standards of veterinary training underpin so many of the Community's activities. Having spent the past five years devising arrangements for the single market, the Commission should not now abrogate its responsibility for helping to ensure that they work.
We already know that in the first year of the single market we have had the importation of brucellosis and warble fly. It is a very serious matter. I can say that most livestock fanners are convinced that there is an animal disease time bomb ticking away as a direct result of the mad rush to a single market in the movement of animals without ensuring that the necessary standards of veterinary education and veterinary practice apply throughout the European Union. Those responsible in the Commission for that situation will bear a very heavy responsibility if our worst fears regarding imported animal disease are confirmed. An equal responsibility will lie on the Council of Ministers if it allows the Commission get away with it.
When he replies, I hope that the Minister will be able to reassure us that the British Government are doing their utmost to get such a dangerous decision reversed.

1217
This year is the 150th anniversary of the founding of the Royal College of Veterinary Surgeons. It would, indeed, be ironic if, during this year, the European Union took such a backward step.
8.5 p.m.
The Parliamentary Secretary, Ministry of Agriculture, Fisheries and Food (Earl Howe): My Lords, I am most grateful to my noble friend Lord Soulsby for initiating what has been a helpful discussion on such an important matter. The concerns expressed in my noble friend's Motion relate, as he explained, to a number of different professions. However, above all, it is the concerns relating to the veterinary profession on which, like my noble friend, I intend to concentrate.
My noble friend has considerable experience in this field as he is a veterinary surgeon who was formerly Dean of the Veterinary School at the University of Cambridge and a member of the Council of the Royal College of Veterinary Surgeons. We all agree that to ensure the health and safe movement of animals, and the quality of animal products, moving within and into the Union, it is essential that the veterinary surgeons who are certifying that movement are trained to a comparably high standard. Although the provisions for veterinary training in the UK and the EC have been outlined during the debate, I hope that it will be useful if I draw together briefly the background to the whole matter.
The regulatory body, and competent authority, for the veterinary profession in the UK is the Royal College of Veterinary Surgeons. The Royal College Council, as constituted under Section 1 of the Veterinary Surgeons Act 1966, is comprised of elected members of the profession, members appointed by the six UK universities which provide veterinary training, and members appointed by the Privy Council; one such appointee is the Chief Veterinary Officer.
In 1978, two European Community Directives (78/1026/EEC and 78/1027/EEC) laid down procedures for prescribed training in veterinary surgery and the mutual recognition of qualifications in the EC. Those directives covered the requirements for training, mutual recognition of EC veterinary qualifications and freedom of movement and rights of establishment of veterinary surgeons. The number of professions with such "sectoral" directives is quite small —doctors, dentists, nurses, midwives, pharmacists, veterinarians and architects; and, more recently, lawyers. The two veterinary directives require member states to allow veterinary surgeons, who have undergone the prescribed training and obtained the scheduled qualifications, to practise on any of their territories.
The veterinary sectoral directives were implemented in this country in 1980 via an amendment to the Veterinary Surgeons Act 1966 which inserted a new section listing the recognised qualifications across member states. They have been amended from time to time since then to reflect expanded membership of the Community. On 31st March 1994, there were 16,432 veterinary surgeons on the RCVS register, of whom 663 were nationals of a member state registered under the
1218
provisions of Section 5A of the Veterinary Sturgeons Act 1966. In 1993 the number of EC qualified veterinarians admitted to the register was 122.
The Advisory Committee on Veterinary Training (ACVT) was established in 1978 with the purpose of ensuring that standards set down in the veterinary directives were being met and maintained. The decision sets out the responsibility of the committee,
"to ensure a comparably high standard of veterinary training in the Community".
The ACVT is comprised of representatives nominated from various sectors of the veterinary profession, including the competent authority in the member states and is supported financially and secretarially by the Commission.
By discussion, consultation and an exchange of information designed to develop common approaches, the ACVT advises the Commission on the subject of veterinary training. As an advisory committee it makes recommendations to the Commission and has no legal powers. The Commission of the European Union holds the ultimate legal powers to ensure compliance with the veterinary training directives.
In its earlier years, as my noble friend mentioned, the ACVT met for two days, twice a year. Subsequently meetings were reduced to two days per year and the savings used to finance visitations to veterinary schools in member states. In 1991 the Commission agreed to assist substantially with the cost of the first cycle of evaluation visits, which was expected to last about eight years and cover all veterinary schools in the Community. The programme of visitations was therefore intended to ensure that all schools would be visited by 1999 but, to date, only about 10 per cent. have been visited.
As both my noble friend and the noble Lord, Lord Carter, have already said, these visitations, although few in number, are the only means whereby compliance with the directives can be assessed and pressure brought to bear to bring about improvements where deficiencies are identified. Without that pressure it is feared that many schools will fall below the required standard. From discussions that officials have had with officers of the Royal College of Veterinary Surgeons, it is apparent that serious deficiencies have been identified following visits in some member states.
The Commission's report on subsidiarity to the European Council last December expressed the intention of reviewing a number of the sectoral directives based on the harmonisation of training, including the veterinary directives. The United Kingdom supports the application of subsidiarity and will, of course, examine the results of any such review. Nevertheless, the potential costs to the Community and the UK of inadequate standards of veterinary training are such that any proposed changes would have to be examined very carefully.
In March 1993, the Commission intimated its intention to withdraw its financial and managerial support for the system of visitation of veterinary schools by the ACVT by the end of 1993, which naturally caused the Royal College of Veterinary Surgeons and

1219
the British Veterinary Association serious concern. The Government shared that concern and the previous Minister, my right honourable friend John Gummer, instructed officials to enter into discussions with senior Commission officials in the hope that they would agree to support the ACVT.
I firmly believe that it is misleading to draw comparisons between the veterinary and other health professions in the context of the principle of subsidiarity; there is no direct comparison between the movement of humans within the European Union and the movement and trade in animals and animal products. If these are not controlled there is severe risk of hazards to public and animal health.
Last November, MAFF officials and representatives from the Royal College of Veterinary Surgeons met the Directorate General to discuss their concerns. They were encouraged by that meeting into believing that the Commission was sympathetic to their arguments, and could accept the logic that not all professions should necessarily be treated in the same way. In January, the RCVS was informed by the Commission that it acknowledged the value of the present system, and proposed that responsibility for visitations should pass to the European Association of Establishments for Veterinary Education or EAEVE (that is, the deans of veterinary schools).
My right honourable friend the Minister, together with senior veterinary officials, met the president of the Royal College of Veterinary Surgeons and his colleagues in February of this year and following that meeting my right honourable friend wrote to Commissioner Steichen expressing her deep concern that the Commission was withdrawing support for the ACVT. She has received assurances from Commissioner Vanni d'Archirafi in DG 15 that the Commission will continue to monitor results of the visitations by the EAEVE and receive the opinions and recommendations of the ACVT on these visits. The financial arrangements for the EAEVE visits are still unclear and discussions are continuing with the Commission to resolve the question of funding.
As your Lordships will readily appreciate—and as my noble friend emphasised—to ensure confidence in the operation of the internal market in the veterinary sphere, it is essential that veterinary surgeons throughout the Community are trained to the same high level of competence in accordance with the two directives. Deficiencies in their training could lead to a failure to recognise serious animal diseases and put the whole Community at risk by spread of disease through animals or their products. We have to be sure that all veterinary surgeons in the European Union are trained to a comparably high standard in the interests of public health, animal health and disease control. The public also rightly expects that their livestock and companion animals will receive a consistently high level of veterinary attention irrespective of the origin of the veterinary surgeon.
The noble Lord, Lord Carter, raised his anxiety about inept veterinary surgeons practising in Great Britain. Suitably qualified veterinarians from the European

1220
Union have the automatic right to be registered in the UK if their qualifications meet the terms of the relevant directives. However, they will not, of course, be guaranteed employment here and the vet will have to use his or her own endeavours to obtain a position. With regard to negligence, vets from other countries who become members of the Royal College of Veterinary Surgeons are subject to the same provisions that apply to other members of that college.
In the single European market, the obligation is clearly placed on the exporting member state to ensure that consignments meet all the conditions for intra-Community trade. The importance of correctly completed, valid veterinary certification in preventing the spread of disease, and protecting the welfare of animals in transport cannot be over-emphasised. No evidence suggests that official veterinary services in other member states are any less competent than those in the UK. There have been occasional errors in veterinary certification but these have been taken up immediately and vigorously with the member state concerned.
The UK is pressing for harmonised EC standards of veterinary certification based on the principles drawn up by the Federation of Veterinarians in Europe (FVE), in particular that veterinary surgeons should only certify where they have personal knowledge of the facts. There is a draft Council regulation on the certification of animals and animal products requiring certification based on the original FVE principles to be adopted throughout the European Union. The regulation includes penalties for false or misleading certification. In a wider context at a recent OIE meeting in Stockholm, there was unanimous acceptance of a resolution to adopt the FVE principles of veterinary certification.
Since the completion of the Single Market in January 1993 and the discontinuation of vaccination against foot and mouth disease in Europe, we have seen a large increase in imports of cattle into this country from other EU member states and an equally dramatic increase in our exports of sheep. The increased trade in animals will put increasing reliance on veterinary certification at the point of origin, which, as I have said, is now the principle of the single market. For this to be successful it is vital that satisfactory Community standards of veterinary education are maintained on an international basis and that a common understanding is developed, and put into practice, on the principles of certification itself.
The noble Lord, Lord Carter, referred to concerns about the effectiveness of the advisory committees, particularly with regard to the health professions. A meeting recently took place between representatives of the different health professions within the Department of Health. It was convened to discuss the problems experienced by the different advisory committees and ways in which the work of those committees could be progressed. At the meeting it was agreed that the group constituted a useful forum and should be reconvened on a regular basis.
It has been evident for some time that the effectiveness of the advisory committees is severely

1221
limited. I am aware that there is a widely held view that they are underfunded and understaffed by the Commission, and as a consequence they do not meet as often as necessary. The worry is that work on visitations to medical schools and dental schools, for example, has been impeded for lack of resources. Of particular concern at the present time is the failure of those member states who have still to nominate their delegates to the advisory committees, which has prevented the committees from resuming their meetings. Various efforts have been made by the UK to persuade the relevant member states to submit their nominations to the Commission, and the matter was raised again by the UK delegate to the committee of senior officials on public health at its meeting in Brussels on 30th June.
I have no difficulty in agreeing with the noble Lord, Lord Carter, that the advisory committees perform an essential function. That is particularly true of those serving the health professions, as continual develop-ments in technology, skills and knowledge need to be reflected in all aspects of training.
My noble friend's Motion refers to the withdrawal of support for the sectoral directives and advisory committees on training. It is important that I should make clear that that support has not been withdrawn. There are no proposals on the table arising from the review of the directives presented to the European Council last December. However, the Commission's handling of other matters has, in the Government's view, been less helpful than it might have been. It is a great pity that the withdrawal of the EC Commission's support for the ACVT visitation scheme was presented as a fait accompli. The Commission's decision to shunt it into a siding was never put to or discussed by the full ACVT. Proposed meetings of the committee were cancelled, and it was only on 1 st June this year—for one day—that the committee was able to meet. It is vital that the ACVT should be enabled by the Commission to monitor compliance with the directives and to ensure that deficiencies identified through visits are corrected.
My right honourable friend the Minister has put our concerns to the Commission and has received an encouraging response which she is now considering. She has been assured that the Commission will continue to monitor results of the visitations by the EAEVE and receive the opinions and recommendations of the ACVT on those visits. We have received assurances that the principle of visitation is one which the Commission firmly supports. We shall maintain pressure to see that the proposed voluntary scheme for visits to the veterinary schools in member states gets off the ground and has a proper programme of visits. We shall ensure that if deficiencies are identified the Commission is pressed to take action.
My noble friend's Motion tonight has highlighted an area of the utmost importance to public health, the well-being of our livestock industry and our trade. I can assure your Lordships that the Government continue to support the Royal College of Veterinary Surgeons in its efforts to ensure the maintenance of high standards of veterinary education throughout the Community.
The Earl of Strathmore and Kinghorne: My Lords, I beg to move that the House do now adjourn during pleasure until twenty minutes before nine o'clock.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.22 to 8.40 p.m.]

Criminal Justice and Public Order Bill
Consideration of amendments on Report resumed.
Baroness David Baroness David moved Amendment No. 17:
After Clause 21, insert the following new clause:
("Bail support Schemes
—(1) It shall be the duty of every local authority to provide, or to make arrangements with such persons as seem to them to be appropriate for the provision by those persons of, "bail support schemes", that is to say arrangements for the support and supervision of children and young persons granted bail in criminal proceedings.
(2) The Secretary of State may, with the consent of the Treasury, make such grants as he considers appropriate to local authorities in connection with their duties under this section.").
The noble Baroness said: My Lords, the new clause places a statutory duty on local authorities to provide bail support schemes for juveniles. I moved this amendment in Committee on 17th May and I am bringing it forward again because I am following up the response of the noble Earl, Lord Ferrers. He made a commitment to consider whether local authorities might be encouraged by means of a circular to set up bail support schemes. We wait to hear the response of the noble and learned Lord the Lord Advocate.
Bail support schemes which provide support and supervision for defendants on bail provide an important means of reducing the likelihood of offending during the crucial period awaiting trial. At present no such schemes work with juveniles, although the number working with young adults is now growing. Such schemes use a range of approaches which encourage young offenders to comply with the conditions of bail and help them to gain access to constructive opportunities and activities. The methods used include: regular officer reporting; placements with volunteers during the evening and weekends; monitored attendance at youth activities; monitoring of school attendance; programmes designed to reintroduce juveniles to school or the negotiation of specialist education provision; assistance with employment problems; involvement in youth training schemes; participation in supervised activity programmes; and work with families to help resolve conflicts, to ensure a continuing home base for the young person and to involve parents in taking more responsibility for their children's behaviour. Such methods achieve a large number of very useful objectives. The great advantage of bail support schemes is that constructive work with the young person begins during the bail period. It is not put off for weeks or months until the case has been heard.
While most areas have bail support schemes, some do not. A survey carried out last year by NACRO of 103 social services departments found that 30 of those authorities had no bail support arrangements for juveniles in their area and a further six had such arrangements in only part of the area. I remember that last time we debated the issue there was some discussion

1223
about the number of authorities which did or did not have such schemes, and which had some support from the Government. I hope that we may have that matter cleared up today.
At present local authorities are under a statutory duty to provide certain services for young offenders. They are under a statutory duty to provide "intermediate treatment" facilities. When Section 61 of the Criminal Justice Act 1991 is implemented they will be under a statutory duty to provide secure accommodation. We say that the prevention of offending on bail is so important that there should be a similar statutory duty in relation to bail support schemes.
Subsection (2) of the new clause establishes a mechanism whereby central government can reimburse local authorities for some or all of the cost of holding a young person in secure local authority accommodation on remand. There should be a similar arrangement in relation to bail support schemes which are equally important and which, by working effectively with young people on bail, can avoid the need to place them in secure accommodation, thereby saving a vast amount of money.
When we debated the issue in Committee the noble Earl, Lord Ferrers, resisted the idea of a statutory duty but agreed to consider whether local authorities might be encouraged to set up bail support schemes by means of a circular. He said:
"I quite understand the desire of the noble Lord, Lord Hylton"—
unfortunately he is not present today—
"to have a circular, which is supported by my noble friend Lord Elton".
He also is not present.
"Obviously, there is a limit to the number of circulars that one can chase around to local authorities. I shall certainly consider the points that have been made. I cannot guarantee that a circular would be the right course to take, but it is a point worthy of consideration".—[Official Report, 17/5/94; col. 153.]
Putting the new clause down again at Report stage enables Peers to ask the Government for the results of that consideration. However, I hope that the Government might consider going further than a circular and that they might consider it an excellent statutory duty to impose. I beg to move.
8.45 p.m.
Lord Rodger of Earlsferry: My Lords, I do not know whether it is a matter with which I or my noble friend Lord Ferrers dealt with in Committee. For some reason I am dealing with the matter that he dealt with previously. Earlier he dealt with the issue with which I had dealt previously. Your Lordships are having a variety of responses on these issues. Whether that is good or bad I leave to the judgment of the House.
The noble Baroness raised this matter on a previous occasion. As was made clear then, in March 1992 the Home Office issued guidance, with the Department of Health, to local authorities the purpose of which was to encourage those local authorities to establish schemes of the kind that the noble Baroness proposes. I am happy to say that since that time the number of bail support schemes has increased steadily.
1224
As noble Lords may be aware, the Government have made a three-year grant to NACRO for a national bail support development unit. That is a three year programme in connection with bail support schemes. Among other things, a survey has been carried out of the availability of such schemes throughout England and Wales. That survey was done on a confidential basis and therefore the exact details are not available. However, out of the 103 local authorities which were contacted, 78 have made bail support schemes available in their areas. That is an encouraging response and suggests that there is every reason to believe that local authorities are responding to the circular from the Home Office and the Department of Health and that they are indeed setting up schemes in their areas rather than seeking to avoid their responsibilities.
In addition, under the three-year plan for the probation service which was published in the autumn of last year the Government have encouraged the probation service to develop pre-trial services. Those include bail information schemes —those, of course, are different schemes—and grants to the voluntary sector to provide support for those on bail.
The Home Office has indeed gone further and is devolving to local probation services funds for grants to the voluntary sector for work with those on bail and with offenders. The funding involved in general is some £8.5 million. That figure includes an element of funding for bail support schemes. But the essence of the idea is that the arrangements are essentially local and that the decisions on spending are taken locally in the light of local needs and priorities. I stress that because in her amendment the noble Baroness seeks to impose a statutory duty on all local authorities. She will realise that the need for such a statutory duty on a local authority really depends on whether that is the way in which in that area a bail support scheme would be provided. In fact, around the country one finds that in different areas there are cases where the local bail support scheme is funded from a voluntary organisation. Therefore, in that area to provide a statutory duty on a local authority to provide exactly the same scheme as is already being provided would be inappropriate.
For that reason we believe that the scheme which has been devised by the Home Office which devolves the decision to local areas is the best way. It involves the local people who know the position on the ground in taking the decision as to what funding or what amount is appropriate in the area. Some areas will require more; some less. Thus, we think that a statutory duty such as that envisaged by the noble Baroness is inappropriate.
As she said, when the matter was discussed previously the question of a circular was raised. As I have already indicated to your Lordships, in March 1992 a circular was issued by the Home Office and the Department of Health. We have reason to believe that it is being followed with success.
I cannot say that at this precise moment the Government intend to issue a circular. As the noble Baroness will realise, there are a number of matters in the Bill and if and when it receives Royal Assent they will obviously have a bearing on subjects relating to

1225
bail. Quite a lot of clauses cover such matters. In the light of that legislation, it will be necessary at that stage to consider what circular would be appropriate.
The question of a circular has to be postponed until we see the legislation which evolves, and at the end of that stage there will need to be a circular on bail. Among the matters wrapped up in that circular, could be any further appropriate guidance in relation to the bail support schemes. So there is no immediate plan, for the reasons I gave, and it would be more appropriate if it were wrapped in the wider circular on bail which will result from the legislation. But we have every reason to believe that the steps which have been taken so far by the circular in March 1992 and in other ways are bearing fruit, and that these schemes—whose importance is well recognised by the Government—are progressing and thriving.
Baroness David: I thank the noble and learned Lord for his full reply. At least he seems to recognise that bail support schemes are of great importance and value. I do not quite see the reason why, if voluntary organisations are putting them into practice, that should prevent them being a statutory duty. If the duty is being performed, usually that is all right. I understand that if there is to be a circular issued after the Bill has received Royal Assent, it will apply to other matters in the bail field and that this could be included in that. At this time of night, I should like to read what the noble and learned Lord said, then take advice and decide whether it is necessary to come back at a later stage. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Earl Ferrers Earl Ferrers moved Amendment No. 18:
After Clause 22, insert the following new clause:
("Arrest of young persons in breach of conditions of remand Liability of young persons to arrest for breaking conditions of remand
.After section 23 of the Children and Young Persons Act 1969 there shall be inserted the following section—
"Liability to arrest for breaking conditions of remand.
23A.—(1) A person who has been remanded or committed to local authority accommodation and in respect of whom conditions under subsection (7) or (10) of section 23 of this Act have been imposed may be arrested without warrant by a constable if the constable has reasonable grounds for suspecting that that person has broken any of those conditions.
(2) A person arrested under subsection (1) above—

(a) shall, except where he was arrested within 24 hours of the time appointed for him to appear before the court in pursuance of the remand or committal, be brought as soon as practicable and in any event within 24 hours after his arrest before a justice of the peace for the petty sessions area in which he was arrested; and

(b) in the said excepted case shall be brought before the court before which he was to have appeared.

In reckoning for the purposes of this subsection any period of 24 hours, no account shall be taken of Christmas Day, Good Friday or any Sunday.
(3) A justice of the peace before whom a person is brought under subsection (2) above—

(a) if of the opinion that that person has broken any condition imposed on him under subsection (7) or (10) of section 23 of this Act shall remand him; and that section shall apply as if he was then charged with or convicted of the offence for which he had been remanded or committed;

1226

(b) if not of that opinion shall remand him to the place to which he had been remanded or committed at the time of his arrest subject to the same conditions as those which had been imposed on him at that time.".").

The noble Earl said: This amendment would give the police the power to arrest a juvenile who breaches a condition of his remand and then return him to the court. The court would then be able to reconsider the remand decision in respect of the offence for which he was remanded.
In practice, I do not envisage that this power will be greatly used. In most cases a juvenile in breach of local authority remand conditions who comes to the attention of the police would do so in circumstances in which the police already have the power of arrest: for example, in the act of committing an offence. However, it is widely accepted that it would nevertheless be useful to give the police the power of arrest for breach of remand conditions. Indeed, the introduction of such a power was recommended by the Home Affairs Select Committee in its recent report on juvenile offending. I beg to move.
On Question, amendment agreed to.
Clause 23 [Detention of arrested juveniles after charge]:
Lord Elton Lord Elton moved amendment No. 19:
Page 14, line 39, leave out from ("charge),") to end of line 41 and insert ("after paragraph (b) there shall be inserted—
"or
(c) in the case of an arrested juvenile who is not less than 12 but under 15 years of age, that—

(i) he has been convicted of three or more imprisonable offences;

(ii) he is subject to a supervision order under the Children and Young Persons Act 1969 or has on a previous occasion been found by a court to be in breach of such a supervision order;

(iii) no secure accommodation is available; and

(iv) keeping him in other local authority accommoda-tion would not be adequate to protect the public from serious harm from him." ").

The noble Lord said: My Lords, in speaking to Amendment No. 19, I should like also, with your Lordships' leave, to speak to Amendment No. 20. These are two alternative resolutions of the same problem. I hope that my noble friend will give them equal attention. Not long ago, when we were discussing at great length the Criminal Justice Act 1991, we spent a great deal of time on the question of the inappropriate detention of juveniles of the ages of 14 and 15 overnight in police cells. I cited a number of examples to your Lordships where that happened despite guidance that it was inappropriate and the fact that local social work departments were prepared and indeed volunteered and asked to be able to take the children into care overnight. The grounds varied, but usually they were that in the view of the police no suitable accommodation was available or that it was not convenient or easy to move them.
As a result of those debates, we moved an amendment to Section 38(6) of the Police and Criminal Evidence Act 1984 which I also helped to take through this House, so as to provide that juveniles could not be held overnight in police detention unless a custody officer certified two things. One is that it is impractical

1227
to transfer the juvenile to local authority accommoda-tion. The other alternative is that where the juvenile is aged 15 or over, no secure accommodation is available and keeping him in other local authority accommoda-tion would not be adequate to protect the public from serious harm from him.
Clause 23 has the effect of lowering the threshold of 15 in that case to 12, which is disturbing. It is not desirable that children aged 12 to 14 should be held overnight in police cells when they could be transferred to the local authority and held overnight in local authority accommodation. Before the rules were changed, young people of that age were not infrequently held in police custody in circumstances where local authority accommodation was available. I have a number of cases to illustrate that; but at this late hour I think that your Lordships will take them on trust.
However, the key characteristic of each of those cases is that the juvenile appearing in court the next day was granted either conditional bail or placed in an open unit of a regional remand and assessment centre. In other words, the requirement of security alleged by the police did not exist, which is why we now need a formal undertaking of the custody officers.
In Committee my noble friend said:
"I must emphasise that that is an exceptional power… The vast majority of juveniles, who are aged 12 to 16 and who are refused bail, will continue to be looked after by the local authority in the short period following charge and before their first court appearance".—[Official Report, 17/5/94; col. 161.]
My two modest alternative amendments are designed to make sure that that is in fact what happens and not merely what is intended to happen. The first amendment will achieve that by restricting the use of police detention to those young people under 15 whom the Bill has already identified in Clause 1 as requiring secure detention after sentence. I understand that that is what my noble friend originally intended.
However, since I tabled the original amendment it has been drawn to my notice that there is another arrangement which may be preferable on which we can also reflect; namely, restricting the use of the detention power to those who would be eligible to be remanded by the court to secure accommodation under a security requirement. Both those groups of criteria are familiar. I hope that my noble friend will agree that one or other of them will serve to implement the intentions he so clearly stated in Committee. I beg to move.
9 p.m.
Earl Ferrers: My Lords, Amendment No. 19 seeks to alter the circumstances in which the police can use their discretion to hold an arrested juvenile aged 12, 13 or 14 in police detention. If the amendment were to be accepted, the police would only be able to detain a juvenile where the young person had been convicted of three or more imprisonable offences; where he had been subject to a supervision order or where he had breached one on a previous occasion; and where there was no local authority secure accommodation free and the police considered that that kind of accommodation was necessary in order to protect the public from serious harm.
1228
Amendment No. 20, which goes with Amendment No. 19, would also alter the circumstances in which the police can use their discretion to hold an arrested juvenile in that same age group in police detention. If Amendment No. 20 were accepted, the police would only be able to detain an arrested juvenile where he or she was charged with, or had been convicted of, a violent or sexual offence or an offence which would be punishable, in the case of an adult, with imprisonment for a term of 14 years or more; or where the juvenile had a history of absconding while remanded to local authority accommodation. In both cases it would also need to be established that there was no secure accommodation available and that that kind of accommodation was necessary to protect the public from serious harm.
I appreciate my noble friend's desire for consistency in the proposals for that age group. However, the decision to detain a juvenile overnight, or at most over a weekend, before a first court appearance is a very different one from that which applies when sentencing or remanding a juvenile. When deciding whether to deny bail for a juvenile there is a wider range of options available and more information about the juvenile will usually be available. A sentencing decision is made on a different basis too. In that case consideration will be given to the rehabilitative aim of any sentence; the background of the offender; the long term implications of a custodial sentence; and, of course, the appropriateness of the sentence for the particular offence.
In reaching a decision on whether to detain a juvenile in police cells, where there is no secure accommodation available, the police must be concerned primarily with the immediate risk to the public. The police carry the responsibility for protecting the public and ensuring that arrested youngsters appear before the court. It is only right, if responsibility rests with the police, that they should have the necessary powers to detain an arrested juvenile where they think that there would be a serious harm to the public if the juvenile were not so contained. This power should be available whatever may be the nature of the offence or nature of past history of offending.
That does not mean that I do not share my noble friend's concern that as few juveniles as possible should be held in police cells overnight. It is entirely understandable. That is why Clause 23 ensures that the police have the power to detain arrested youngsters who are aged from 12 to 14 and will only use that power on those very rare occasions when no local authority secure accommodation is available and after consultation with the local authority. In the majority of cases where that will happen, the criteria for the proposed amendment are in fact very likely to be met. I believe that it is wrong to insist that they should nevertheless always be met. I hope that my noble friend will understand that point of view.
Lord Elton: My Lords, I cannot say that I am at all gratified by what my noble friend has said. We have a situation in which, with great difficulty and after long debate only three years ago, we decided that the age of

1229
14 was the minimum age at which the custody of children in police cells should, under difficult circumstances, reluctantly be permitted. Three years later my noble friend comes back and says that that level should be reduced to 12 years old. Children whose voices are not within a year or more of breaking are to be included in the age group which is not protected by these strict requirements.
It seems to me that my noble friend's speech—which I shall read with great care between now and Third Reading—is dramatically inconsistent with what he said in Committee. I quoted his words a moment ago. Noble Lords will remember that the sense of what he told us in Committee was that such custody would be carried out very rarely indeed and that it would only happen to people who had had a very serious history of offending, a history so serious that they qualified under Clause 1. What he said a moment ago was that whatever the nature of the past history of offending, the police should have the power to lock up those children. I shall verify that from the Official Report between now and Third Reading.
It seems to me that the position of the Government has hardened against these people and we should be looking for the same undertakings which were given in the passage of the 1991 Act as to the sort of circumstances under which the police would justifiably have recourse to this form of custody. Those criteria are set out in a circular of guidance issued by the Home Office following our debates and in the light of what was said. The examples given were of a blizzard, a serious strike and a third illustration which I cannot at the moment remember. We were told that the only circumstances which would justify this sort of custody for a person of that age were of that order. We did not hear that tonight. I hope we shall hear it at Third Reading when I shall return to the matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 20 not moved. ]
Clause 24 [No bail for defendants charged with or convicted of homicide or rape after previous conviction of such offences]:
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 21:
Page 14, line 44, after ("who") insert ("in any proceedings").
The noble and learned Lord said: My Lords, in moving Amendment No. 21 I shall speak also to Amendments Nos. 22 and 24. The amendments relate to Clause 24. Their purpose is to clarify the circumstances in which Clause 24 would apply.
The intention of Amendments Nos. 21 and 22 is to place beyond doubt that Clause 24 is to be triggered by the present proceedings in the circumstances of the clause. Amendment No. 24 puts beyond doubt that Clause 24 is not to apply retrospectively to persons who were charged prior to the commencement of the section. The amendment makes clear that Clause 24 operates on proceedings instituted on or after the commencement of the section. I beg to move.
On Question, amendment agreed to.
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 22:
Page 14, line 46, at end insert ("in those proceedings").
On Question, amendment agreed to.
Lord Harris of Greenwich Lord Harris of Greenwich moved Amendment No. 23:
Page 14, line 46, at end insert ("unless the court is of the opinion that release on bail can be justified by the exceptional circumstances of the case.").
The noble Lord said: My Lords, it is always a. matter of speculation who will reply to the arguments. I hope that on this occasion the noble and learned Lord the Lord Advocate will respond because I propose to quote some of the comments that he made on the last occasion we discussed the issues involved in the amendment.
Amendment No. 23 allows bail to be granted in serious cases which are covered by Clause 24 when the circumstances of the case are truly exceptional. Clause 24 provides that when a defendant has a previous conviction for one of a small number of serious offences —actual or attempted murder, manslaughter or rape— and appears before the court again charged with one of those offences, he or she must be refused bail and remanded in custody.
In any event, it would be rare for a defendant to be granted bail in those circumstances. If by some remarkable chance bail was granted, the Bail (Amendment) Act of 1993 empowers the prosecution to appeal against the granting of bail and the defendant is kept in custody until the appeal is heard. But there are rare and exceptional cases when it may be reasonable for a court to consider granting bail. Let us consider the case of a boy of 15 or 16 who is convicted of attempted rape and sentenced to long-term detention under the terms of the Children and Young Persons Act 1933. He may serve several years in custody and the period in custody and what follows it may lead to a significant improvement in his general attitude and conduct.
He is eventually released and over a period of time becomes a stable and law-abiding member of the community with a job, a home and a family. Then 30 years or so after the original offence he is charged with a so-called "mercy killing" in which it is alleged that he administered a fatal overdose at the request of a grievously sick relative who was in great pain. That is a most serious allegation—and I do not make light of it —but should not a court in those circumstances have the power to grant bail if it regards the case as truly exceptional? It is very difficult to believe that there is any serious argument against the court having an absolute discretion in a case of this kind to make a decision on the merits of the case. Why should Parliament be invited to say, "Under no circumstances whatever should such a person be given bail"?
I am sure that the noble and learned Lord the Lord Advocate will remember when we discussed this matter on the last occasion because he was asked a most reasonable question by his noble friend Lord Mottistone, who I am glad to see is with us this evening. The noble Lord, Lord Mottistone, said:
"Before the Government start saying, 'Look, we can't trust the magistrates or the judges in regard to bail for serious offences',

1231
they must be able to tell us that there is a good example of when such a case occurred. Even one example would help".—[Official Report, 17/5/94; col. 181.]
That seemed at the time to be an entirely reasonable statement. The noble and learned Lord the Lord Advocate did the best he could, given the fact that his brief on this point seemed to be a blank piece of paper. He said:
"The Committee can rest assured that, if I had had examples which I could have given in the Committee, I would of course have done so. I did not seek to say to the Committee that I had such examples. I simply put the matter on the basis that, without being able to cite examples of the kind that my noble friend desired, my proposition to the Committee was that, even though I could not identify such cases, nonetheless Parliament was entitled to take the view that the risk was not one that should be run".—[Official Report, 17/5/94; col. 182.]
We all look at the noble and learned Lord with an immense degree of affection, but in the 20 or more years that I have been in this House I have not heard such an extraordinary statement made from the Government Front Bench. Here was a clear case where urgent action had to be taken by Parliament. Asked the simple question, "What evidence is there that there is a problem?", the Government spokesman says, "I have not a single example I can give that such a problem exists". I can understand rhetoric at party conferences but I find it most disturbing that we are being invited to pass legislation on that basis. I very much hope that we will not have a similar approach in the debate this evening. I beg to move.
9.15 p.m.
Lord McIntosh of Haringey: My Lords, the noble Lord refers to rhetoric at party conferences. I am sure he will agree—I am afraid he will be forced to agree—that we have spent night after night over the past two months dealing with the consequences of ill-advised rhetoric at party conferences. That is what a large part of this Bill is about. It is an abuse of parliamentary procedure that we should be forced into this situation.
Lord Mottistone: My Lords, with this amendment we are also taking my Amendment No. 25 which seeks to remove Clause 24. It may be appropriate if I contribute at this stage in view of the fact that I have been so extensively quoted.
I have had, as other noble Lords have had, a letter from my noble and learned friend who has the task of tackling this matter yet again, and also a letter from my noble friend Lord Ferrers. Both letters spend a lot of time saying why they think it is a good idea to do this —in order to set everyone's mind at rest and so on. Before I get on to that I should like to say a few words about Amendment No. 23, which is a fall-back position if one likes it. I do not like it because of its implications for the magistrates' courts. I am not here concerned with the higher courts. Perhaps the noble and learned Lord, Lord Ackner, can help us with that. The magistrates' courts grant bail only where they think that bail is right. They think it is wrong that there should be a clause which implies that they should get that wrong. To accept the clause even with the noble Lord's amendment gives the pass away that it could happen because it asks to be
1232
able to grant bail in exceptional circumstances. I do not like that solution. I believe that we should get rid of this confounded clause anyway.
The important thing for your Lordships to know— perhaps it is just as well that my noble friend Lord Ferrers is not in the Chamber—is that in his letter to me he attempted to tell me of examples. I quote:
"There are a number of cases involving homicides which are committed on bail".
I expect that that is true, but the letter does not say that there are a number of cases of homicide which are committed while on bail after the persons concerned have been found guilty of offences which are the subject of the clause in question. Therefore, I believe that we can discount that sentence. The letter continues:
"The most notable in recent years being the Hagans case, where the defendant, who had a previous record which included indecent assault"—
indecent assault is not on the list, but let that pass—
"was granted bail with conditions on a charge of rape".
So that fits.
"He went on to rape and to murder a young married woman".
In the nature of things I suspect that it was not a magistrates' court which granted bail. It may have been. That is one case. The letter goes on:
"There is also at least one case in the last ten years where a defendant has gone on to commit manslaughter whilst already on bail for manslaughter".
That is one case in the last 10 years, but the letter does not say which case and how we can identify it. I do not know why not. The letter continues:
"We cannot provide an example of a person who, having been once convicted for an offence in this serious category, goes on to be charged with another, is given bail and commits a third. But there are, as I have outlined, sufficient cases to indicate that there are risks of a type from which the public ought to be protected".
That must have squeezed the barrel to the bottom to get that tiny bit of juice. The only name which comes out of the whole of that letter and which might be convincing, but which probably does not apply to magistrates' courts, is the Hagans case. It is one off. It is a very exceptional case if it is true.
So we are left with what we had before. There is not a good example of where magistrates' courts have allowed people bail when they have committed the kinds of offences which are the subject of Clause 24. It is quite disgraceful that we are being pressed to include this in the Bill, because it is not necessary. Not only is it not necessary, but it implies a lack of trust in the judiciary at all levels to be careful not to give bail to people who have committed the serious kinds of offences which are the subject of Clause 24.
My noble friend Lord Ferrers said at the beginning of his letter that this matter had been the subject of long discussion between him and his colleagues. I am delighted to hear that. If he had been here I would have liked to thank him for that consideration. But they have still insisted and they really cannot find an example. It would be very good indeed if my noble and learned friend, when he replies, says "We shall go on having these discussions and we shall withdraw this clause at Third Reading if it is not struck out now". That is my contribution to this debate.
Baroness Mallalieu: My Lords, at the risk of repeating some of what has already been said it is worth

1233
remembering in a little more detail what happened at Committee stage on 17th May. Noble Lords from all sides of the Committee asked the Minister to return to the Home Secretary and to convey to him the overwhelming feeling that this clause was flawed. He kindly undertook to do so. But in the meantime, as has already been mentioned, he wrote to a number of us who took part in that debate and I am most grateful to him for the trouble which he took in doing so. In the letter which I received the Minister set out the Government's position in relation to some of the points which were raised but sadly there was nothing in that letter to suggest that the Home Secretary was prepared to reconsider any aspects of this clause.
The question which he was asked by a number of noble Lords was whether there was in fact any example which he could place before the House to support the need for this particular piece of legislation. As I recall, it was asked by the noble Lords, Lord McIntosh of Haringey, and Lord Mottistone, the noble and learned Lord, Lord Ackner, and the noble Lord, Lord Harris of Greenwich. Certainly, no example was given in the correspondence which the Minister was good enough to send me.
My noble friend Lord McIntosh of Haringey put it in this way, asking whether there should be some,
"evidence of a mischief which is supposed to be remedied by what is virtually a full page of legislation".—[Official Report, 17/5/94; col. 181.]
I ask the noble and learned Lord whether this is a real problem—or whether what we have here, in virtually a full page of statute, is something that is devoted to an empty gesture. If Criminal Justice Bills are to be used by the Government to legislate against hypothetical events which, so far as the Home Office knows, have never actually occurred in significant numbers, if at all, but which may hypothetically occur at some unspecified future date and which may thereby theoretically cause embarrassment to some Home Secretary perhaps as yet unborn, it is little wonder that I, together I suspect with the country at large, despair of the Government making any real impact on crime and its causes.
This provision is insulting to magistrates and judges alike because it says in terms, "You cannot be trusted to exercise your judgment correctly. The question of bail in these cases is far too important to be left to you". I do not know whether the noble and learned Lord can help me on this, but who has asked for this clause to be inserted in the Bill? Where does the pressure or the need for it come from? I suspect that I could supply an answer.
It is extremely rare for bail to be granted in cases such as those envisaged by the clause, but there are exceptional cases. The clause refers to culpable homicide. As I understand it, that includes the offence of causing death by dangerous driving. Manslaughter may result simply from using excessive force in self-defence when one is being attacked. Is it really to be the case that a man convicted in his youth (perhaps as a result of a driving accident, albeit a serious one) cannot many years later be granted bail when he is charged with manslaughter in circumstances such as I have just outlined?
1234
In Committee, the noble Lord, Lord Mottistone, sought to remove the clause from the Bill altogether. Amendment No. 23, which is grouped with the noble Lord's amendment, Amendment No. 23, is surely modest and is, one would hope, the very least that a sensible government would feel able to accept.
Lord Ackner: My Lords, I respectfully submit that where the Executive seeks to interfere with the established discretion of the judiciary, it has a very heavy burden to discharge—and the Government have not got within miles of so doing on this occasion.
With apologies to the noble and learned Lord, Lord Hailsham, who is not in his place, perhaps I may borrow one of his well known phrases. This clause bears the imprint of the cloven hoof of popularisrn—and for that reason should be ignored.
Baroness David: My Lords, as my name is to Amendment No. 23, I naturally support it, but having listened to everything that has been said, I think I would much prefer that the clause is deleted altogether, as the noble Lord, Lord Mottistone, wants. I hope at the very least that the noble and learned Lord will accept Amendment No. 23. It would do the Government a great deal of good if they could occasionally accept the excellent arguments which are put before them and give way rather than obstinately hanging on to what is there in the Bill.
9.30 p.m.
Lord Rodger of Earlsferry: My Lords, I hope that we are not thought merely to cling obstinately to what is in the Bill. When this matter was before your Lordships previously, I undertook to convey to the Home Secretary the strongly held feelings of your Lordships which had been expressed in Committee. That was done, but although the matter has been reconsidered—as my noble friend Lord Ferrers said, it has been carefully and anxiously reconsidered—by the Home Secretary and so on, none the less, the Government's view is that the clause should stand, and stand in its present form.
With the greatest possible respect to the noble and learned Lord, Lord Ackner, I do not accept his characterisation, which he used in Committee, of this being interference in the courts by the Executive. With the greatest respect to him, there is all the difference in the world between a provision in an Act of Parliament and some interference—if one uses that word—by the Government, as opposed to Parliament, with what the court is doing. After all, Acts of Parliament are how judges learn part of the law that they have to apply. If the provision were enacted, it would become the law and would in no sense be the Executive interfering with the discretion of the judiciary.
The issue is a basic one. I said on a previous occasion —I did not shrink from saying it on that occasion and I do not shrink from saying it now—that I could not give your Lordships examples of such a situation having arisen. Had I been able to, as your Lordships may well imagine, I should have been delighted then, and more than delighted in the interim, had I have been able to discover examples, to have written to your Lordships.

1235
But examples there are not. I never pretended that there were. There is a fundamental disagreement, and not one that can be bridged easily, between the Government's position and the position of your Lordships who oppose the provision. I respect the position on this matter that your Lordships adopt.
On Report in another place the Opposition did not suggest that the clause should not stand part of the Bill, or anything like that. I accept that one can look at the list, and ask—as the noble Lord, Lord Wigoder, did on a previous occasion—why certain offences were not included while others were. One could look at the list and say that one could add or subtract from it. None the less, the Government have looked at the matter, taken that into account, and said that in those circumstances —not others —bail should not be considered by the court. That is not in any sense an insult to the magistrates or judges. It is merely that the Government take the view that Parliament is entitled to say that in those circumstances there should be no question of any risk arising.
It was easy, if I may say so, for noble Lords to make a certain degree of fun about whether it might theoretically —I think that is what was said—cause some embarrassment to a Home Secretary not yet born. It is not a question of embarrassment to a Home Secretary, but of the pain caused to someone who suffered as a result of an offence committed by someone who had been granted bail, however careful may have been consideration of the circumstances.
The Government say that the balance of considera-tion is that in such circumstances bail should not be available. The circumstances are rare but the Government say that in those circumstances Parliament is entitled to take the view that bail should not be available even as a last resort, as suggested in the noble Lord's amendment. We accept that where the provision applies, the. circumstances will be exceptional. We do not believe that, exceptional as they are, bail should be available in any circumstance. I hope that in the light of that explanation, the noble Lord will feel able to withdraw his amendment.
Lord Mottistone: My Lords, before my noble and learned friend sits down, I wish to ask him one question. He agrees that there are no examples of this particular event. He said that it is appropriate for the Executive to pass legislation which controls the courts. However, he does not give examples of that being a good idea, such as this case which has no precedent; it is new. Can my noble and learned friend think of legislation that has been introduced because it is a happy idea and on which the courts have been letting the side down, but not this particular case? I do not believe that there is one otherwise he would have come up with it.
Lord Rodger of Earlsferry: My Lords, I do not know whether I can give an example of the kind my noble friend is looking for. It depends exactly how one characterises it. But there are examples of situations in which Parliament has provided a rule and has left no discretion to the courts. The noble and learned Lord, Lord Ackner, posed a clear example of that in the case
1236
of life imprisonment for murder where no discretion is left to the courts. Therefore, Parliament can and has done that and I make the point strongly that it is Parliament as opposed to the Executive that is doing so.
Lord McIntosh of Haringey: My Lords, before the noble and learned Lord the Lord Advocate attempts again to sit down, perhaps I may make a point. He said that on Report in another place the Opposition did not oppose this provision. He will know better than I that on Report in the House of Commons it is not possible procedurally to deal with all the issues that arise from the Bill. Does the noble and learned Lord agree that in Committee the Opposition tabled an amendment which was close to that moved by the noble Lord, Lord Harris of Greenwich?
Lord Rodger of Earlsferry: My Lords, I certainly accept that there were discussions and amendments in Committee. However, the noble Lord, Lord McIntosh, will be equally aware that there was a Government amendment to this matter on Report, which appears in the Bill before your Lordships, and that was not opposed at that stage by the Opposition.
Lord Ackner: My Lords, before the noble and learned Lord sits down, will he agree that his analogy with regard to the mandatory life sentence is wholly untenable? It is not a case of reining in existing discretions as exist here. He knows as well as all of us that it was a compromise solution in order to affect the abolition of the capital offence situation.
Lord Rodger of Earlsferry: My Lords, of course I accept the characterisation of the situation in which that particular provision is brought forward. My concern was to say that it is an example of Parliament indicating to the judges that they will do something, and it leaves them no discretion in the matter.
Lord Harris of Greenwich: My Lords, no doubt the noble and learned Lord during his career at the Bar has had some unattractive cases to argue. I doubt whether he has had such a miserable case as that which he has had to defend tonight. We began by looking desperately for examples. The case of Andrew Hagans was cited. He was indeed granted bail by a magistrates' court and then he raped and murdered Anna McGurk. However, he would not have been covered by Clause 24 because his previous conviction was for indecent assault and not rape or homicide.
When governments ask for parliamentary powers of the kind for which they are asking here, one would assume that there would be a scintilla of a case, and something, (however vague and transitory it may be) which could be used to justify the powers that are being sought which, as the noble Baroness, Lady Mallalieu, said, cover a page of the statute. There is nothing. The noble and learned Lord was quite explicit. I believe that he said that there are no examples.
When this matter was put to the Minister on the last occasion and he admitted total ignorance of any such examples, I have not the slightest doubt what followed. There would have been letters from Home Office

1237
officials to the Crown Prosecution Service asking it to identify any such cases. After that huge trawl, the answer would have been that there was none.
Why do they want those powers? They want them so that speeches can be made at party conferences. There is no other serious argument behind it at all. As the noble Lord, Lord Mottistone, rightly said, Clause 24 asks us to make an implied criticism of the magistracy; and yet there is no single example of magistrates using their powers or authority irresponsibly.
I am afraid that it is just another piece of political nonsense and theatre. When the noble and learned Lord desperately thought of something that he could say to justify the contents of the clause, as far as I was able to understand the point that he was making, it was that on the assumption that such a case might arise in the next 10,20 or 30 years, somebody might be gratified that the magistrates' discretion had been limited in that fashion. No other serious argument was deployed by him at all.
On the substance of the matter that we are discussing, I agree with the noble Lord, Lord Mottistone. I prefer to get rid of the clause altogether. It is foolish, irresponsible and is yet another indication of Ministers prepared to play games with the statute book in order to derive temporary personal political advantage. There is nothing else to be said with regard to the amendment.
I intend to withdraw the amendment because the noble Lord, Lord Mottistone, is quite right with regard to the substance of the argument.
Amendment, by leave, withdrawn.
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 24:
Page 15, line 34, at end insert:
("(6) This section does not apply in relation to proceedings instituted before its commencement.").
On Question, amendment agreed to.
Lord Mottistone Lord Mottistone moved Amendment No. 25:
Leave out Clause 24.
The noble Lord said: My Lords, I beg to move.
9.43 p.m.
On Question, Whether the said amendment (No. 25) shall be agreed to?
Their Lordships divided: Contents, 23; Not-Contents, 68.

Division No.4

CONTENTS

Ackner, L.

Lockwood, B.

Addington, L.

Mackie of Benshie, L.

Cocks of Hartcliffe, L.

Mallalieu, B.

David, B.

Masham of Ilton, B.

Dean of Beswick, L.

McIntosh of Haringey, L.

Faithfull, B.

Monkswell, L.

Graham of Edmonton, L.

Monson, L.

Harris of Greenwich, L. [Teller.]

Mottistone, L. [Teller.]

Hollis of Heigham, B.

Seear, B.

Howie of Troon, L.

Taylor of Blackburn, L.

Kilbracken, L.

Wigoder, L.

Lawrence, L.

NOT-CONTENTS

Allenby of Megiddo, V.

Bridgeman, V.

Annaly, L.

Burnham, L.

Balfour, E.

Butterworth, L.

Belstead, L.

Campbell of Alloway, L.

Blatch, B.

Carnock, L.

Blyth, L.

Carr of Hadley, L.

1238

Chalker of Wallasey, B.

Lyell, L.

Clanwilliam, E.

Mackay of Ardbrecknish, L.

Coleraine, L.

Mancroft, L.

Colwyn, L.

Marlesford, L.

Craigmyle, L.

McColl of Dulwich, L.

Cranborne, V.

Miller of Hendon, B.

Cumberlege, B.

Mowbray and Stourton, L.

Dean of Harptree, L.

Moyne, L.

Denham, L.

Murton of Lindisfarne, L.

Denton of Wakefield, B.

Norrie, L.

Dixon-Smith, L.

Northesk, E.

Downshire, M.

Peel, E.

Elibank, L.

Renton, L.

Elliott of Morpeth, L.

Rodger of Earlsferry, L.

Ferrers, E.

Rodney, L.

Fraser of Carmyllie, L.

Seccombe, B.

Gardner of Parkes, B.

Soulsby of Swaffham Prior, L.

Goschen, V.

St. Davids, V.

Gray, L.

Stodart of Leaston, L.

Grimston of Westbury, L.

Strange, B.

Hacking, L.

Strathclyde, L.

Harmar-Nicholls, L.

Strathmore and Kinghorne, E.

Henley, L.

[Teller.]

Hesketh, L.

Teynham, L.

Howe, E.

Trumpington, B.

Jenkin of Roding, L.

Ullswater, V. [Teller.]

Kimball, L.

Wakeham, L. [Lord Privy Seal.]

Leigh, L.

Wynford, L.

Long, V.

Resolved in the negative, and amendment disagreed to accordingly.
9.51 p.m.
Lord Harris of Greenwich Lord Harris of Greenwich moved Amendment No. 26:
After Clause 25, insert the following new clause:
( "Effect of custody on mental health of offender
.In paragraph 9 of the Part I of Schedule I to the Bail Act 1976, after sub-paragraph (d) there shall be inserted the following sub-paragraph—
"(e) the state of the mental health of the defendant and the likely effect upon this of a remand in custody".").
The noble Lord said: My Lords, this new clause requires the court, before remanding a defendant in custody, to consider the likely impact on his or her mental health. There is, I think, a widespread concern about the current arrangements whereby mentally disturbed people are often remanded in custody for medical reports. In the year ending March 1992 there were 4,732 such reports. I think it is recognised that prison is the worst place for someone who has a mental disorder. Often they live in gloomy and insanitary conditions inside large Victorian prisons, with mentally disordered offenders being locked up for substantial periods of time—in many cases for over 20 hours a day. That, of course, exacerbates the mental condition of people who are in some cases suffering from mental illness.
These conditions can increase both the risk of suicide and self-mutilation. According to a Written Answer at col. WA74 of Hansard given by the noble Earl, Lord Ferrers,—whom I am glad to see here this evening—on 26th July last year, 218 prisoners took their own lives between 1988 and 1992. Just about half of those people were remand prisoners and of that group nearly one in three was mentally disordered.
A study of mentally disordered remand prisoners was recently carried out for the Home Office by Adrian Grounds, Susanne Dell and Katie James of the Cambridge Institute of Criminology and by Graham

1239
Robertson of the Institute of Psychiatry. I am glad this report was actually published, unlike, I understand, some other Home Office research reports which are now being suppressed by Ministers. However, this one was published and I welcome the fact that that was done. It was in the high traditions of the Home Office that it published the report—a tradition which has been followed by governments, until now, of both major political parties. However, the research in this particular case was summarised in an article contained in Home Office Research Bulletin No. 32 in 1992. The study recorded details of all the men and women remanded in custody in Holloway, Brixton and Risley over a five to six-month period in 1989. The people remanded in custody totalled 952 in all.
The authors' conclusion is worthy of our attention. They concluded:
"Although there was variation in the medical organisation and practice of the three establishments … all were totally unsuitable places in terms of regime and physical conditions in which to house mentally disordered people. Why then should all these people, so few of whom were thought to require imprisonment when sentenced, have been sent to prison on remand? It seemed clear from the study that this was not because of the seriousness of their offences, but because of their apparent need for help: the courts were using remand prisons as social and psychiatric assessment and referral centres.
"The research however showed remands in custody to be not only an inhumane, but an ineffective way of securing help and care for disturbed people. For those who obtained hospital places it meant weeks or months of imprisonment, at the end of which they were admitted to beds for which they had been qualified at the outset. And for the mentally ill people who were not offered beds, the process was equally unsatisfactory. In most cases they were petty offenders without social roots, for whom magistrates had evidently ordered custodial remands in the hope that some kind of solution to their problems would be found. After weeks in prison they were generally discharged back to the situations they had come from without the courts being able to arrange for accommodation, treatment or support".
That is the view of the authors of the report. It shows that Home Office Ministers and the last Home Secretary —and also his predecessor—all indicated their serious concern about the number of mentally disordered people who were finding their way to prison.
A few moments ago the noble Earl, Lord Ferrers, reminded us of the need to save public money in relation to pre-sentencing reports. He said that we must avoid unnecessary expenditure of public money. I cannot think of anything which involves greater waste of public money than sending these sad, bewildered people to remand prisons, particularly when they are sent there for reasons of social inadequacy.
It seems to me that once again this is an amendment which the Government could accept without a great deal of difficulty. However, I have not the slightest doubt that they will resist it. I hope to be proved wrong by the noble and learned Lord the Lord Advocate, but the Government do not appear to be even remotely interested in the arguments which are advanced against any aspect of the Bill. That is an unfortunate outcome to our discussions. Nevertheless, I look forward to being proved wrong by the noble and learned Lord the Lord Advocate. I beg to move.
Baroness Faithfull: My Lords, I rise to support the amendment. The noble Lord, Lord Harris, has spoken about the effect of custody on mentally ill offenders.
I have visited several prisons. Time and time again the warders who are in charge of the men, and who care for them, say that they are not qualified to look after mentally ill offenders. It is of great concern to them that they do not know what to do. They do not believe that they should have that task. It does not come within their terms of reference. It is harmful both to the men and to the warders looking after them.
10 p.m.
Lord Rodger of Earlsferry: My Lords, at Committee stage I had occasion to observe that the noble Lord, Lord Harris, had remarkable powers of prediction in these matters. On this occasion he has predicted that I would resist the amendment and I have to say that his prediction is correct. However, it is not the case that that arises simply from an unwillingness to consider the matter. On the contrary, the matter has been considered and the whole issue relating to the mental health of prisoners is obviously one of considerable concern. The noble Lord, Lord Harris, has done a great service in drawing attention to the matter both in Committee and on Report.
I observe in passing that, considered strictly and technically, the amendment of the noble Lord is not appropriate. It seeks to add into the list of considerations in paragraph 9 of Part I of Schedule 1 of the Bail Act 1976 the sub-paragraph in the amendment. The effect would be to suggest that the court would have to take that into account in reaching a decision on the first of the two matters on which the court has to take a decision under paragraph 2 of the schedule. Those matters involve, for example, whether or not the person would fail to surrender to custody, or would commit an offence while on bail or interfere with a witness. Those matters have to be looked at when considering whether the person should lose the right to bail. The provision on the Marshalled List would be relevant to the second of the decisions under paragraph 2. I do not believe that that consideration would be relevant to the first of those issues. Therefore, considered in a strictly technical way, I believe that the noble Lord's amendment is not proper.
However, the matter that the noble Lord raises goes wider and is a more serious issue. As I said on the previous occasion when we discussed the matter, it is not the case that the Government have shown no interest. It is not the case that nothing is being done. The simple fact is that over the past few years there has been a development of mental health assessment schemes at both police station level and in the magistrates' courts. The effect of those schemes is that the mental condition of people to be brought before the courts is considered even before they come before the courts and their disposal considered.
For example, let us consider the Horseferry Road Magistrates' Courts. A team comprising two psychiatr-ists—one psychiatrist always being of consultant status —an approved social worker and a senior forensic psychiatric nurse attends the court two days a week. Where the magistrates ask for that to be done, the people

1241
who appear before the court are sent to the team and a report prepared about them. That report is available to the magistrates when they take the decision about bail or remand.
As the noble Lord, Lord Harris, knows perhaps better than most of us, under the Bail Act at that stage it is open to the magistrates to have regard to any other factors which appear to be relevant. Among the factors to which they will be entitled to have regard would be information which came from the team as to the effect of a remand on the mental health of the person concerned. In that way, the matter can be focused before the magistrates when they take that kind of decision.
In addition, the detail does not need to be gone into, but noble Lords will know that there are also powers available under the Mental Health Act 1983 both to the magistrates and under slightly different conditions to the Crown Courts to make orders for someone to be remitted to hospital, even at an early stage. Even if it does not go as far as that, it is always possible, as a result of the kind of examination which I have described, that in an appropriate case, if there were a decision not to proceed with the case, the psychiatrist could make an order under Section 2 or Section 3 of the Mental Health Act 1983, as appropriate, for a civil order for a person to be sent to a mental hospital for investigation and treatment. All those are available at that stage.
I accept that nevertheless a large number of people who find themselves on remand are suffering from some kind of mental condition. The result is that they have to be dealt with. As your Lordships may know, over the past few years there has been an increase in the number of transfers from prisons to hospitals. In 1989 the figure was 217. It had risen to 325 in 1990. By last year it was 749, and 480 of those transferred were remand prisoners. So there has been an increase.
I recognise that there is a need for appropriate accommodation for those people. Obviously, the figures cannot go. on rising unless there is appropriate accommodation. Here again, there has been put in place a programme for an increase in the number of secure places, particularly in connection with the National Health Service medium secure places. Again, I can give your Lordships the figures. In 1993 there were 654 medium secure places. In 1995 it is projected that the number of such places will be 1,014; and by 1996, 1,274.
In 1993 there were 416 private sector medium secure places. I do not pretend for one minute that all those places are available for people being transferred. Other people are accommodated as well. But noble Lords can see from the figures that there is a recognition of the need for such places and that there is an increase in the numbers.
Our position is therefore that work is being done and that a statutory duty of this kind is not the way forward. What has already been done is having an effect. It will continue to have an effect. We should go on in that way with the kind of scheme we have in place at the moment. To give examples of what is being done, even in terms of the prison service, in 1993 over 16,000 consultations with consultant psychiatrists took place within the prison service. The number of officers in nursing grades
1242
working in prison doubled between 1992 and now from 257 to 539. Also—I believe that it is important—the percentage of those working in prisons with profession-al qualifications in relation to healthcare staff has been increased from 35 per cent. to 51 per cent.
A lot has been done and this particular proposal is not appropriate and not necessary. There are various ways of tackling this problem in the courts and ultimately in the prisons. That is being done. That is indeed the way forward. I hope that in the light of that explanation the noble Lord will withdraw the amendment.
Baroness Seear: My Lords, before the noble and learned Lord sits down perhaps he can reassure us on one point. He told us that a great deal has improved, and that is very welcome news indeed. However, I well recall some years ago, when I was doing a study in Holloway, the case of someone who plainly was totally mentally disturbed. The governor agreed. I said to him —it is now a different governor, I may add—that surely this was not a case for prison but a case lor a hospital He replied, "Of course it is, but hospitals cannot be made to take someone. The courts say to me, 'Here is a case. You have to take him. You are a prison and you cannot refuse'. The hospitals can refuse."
So long as that is the case surely there will be such misplacing of people who quite clearly should not be in prison. The hospitals have a right to refuse and therefore such people get dumped in prison because there is nowhere else to put them. Can the noble and learned Lord reassure us that that position is changing and that the hospitals are not able to refuse to take those which are plainly hospital cases and not prison cases?
Lord Rodger of Earlsferry: My Lords, the noble Baroness raised a point on which I am not sure of the exact details. However, my understanding is that the Home Secretary has indeed a power to make an order transferring to a hospital. If I am wrong in that, I shall write to the noble Baroness. But my understanding is that, as a result of reports from responsible medical officers in prisons, in such a situation an order can be made by the Home Secretary. I believe that that deals with the point made by the noble Baroness. If I am wrong in my understanding, I shall write to her.
Lord Harris of Greenwich: My Lords, as the noble and learned Lord said, I rightly predicted his reply. It does not surprise me in the least because that has been the invariable response of the Government to the overwhelming proportion of amendments to the Bill which we put forward. His response did not deal with many of the serious issues which I tried to cover in my speech, particularly the Home Office research study. As I said, it was welcome, given the fact that it was published in the period before the shutters came down on Home Office research, which we now know has; been decided by Ministers for the first time.
What the noble and learned Lord said—no doubt he will intervene if he wishes to respond to the point and I shall gladly give way to him—was that it would not be appropriate to pass this amendment, laying the burden on the court in the case of remand in custody. It would be wrong to require the court to consider the impact on

1243
a person's mental health before the remand. If that is not appropriate, perhaps he can explain why Section 4 of the Criminal Justice Act 1991 requires the court to take that into account before passing a sentence of imprisonment on just such a mentally disordered person.
I know that the Government have retreated very rapidly indeed from many of the provisions of the 1991 Act, but the noble and learned Lord will forgive me for saying that it seems rather strange to lay that requirement on a court so far as a sentence of imprisonment is concerned but to resist so firmly the suggestion that it should also be considered by the court in the case of a bail decision, given the fact, as we all know, that the local prisons where such persons are kept are overflowing. Many of them suffer from hideously difficult personal problems and are not in any sense people with sophisticated criminal pasts. They are simply before the court for reasons of social and mental inadequacy.
The problem is made even worse by the so-called "care in the community" programme where the Government cheerfully throw people out of mental hospitals—many of them on to the streets—as a result of which many of them are sucked into the criminal justice system. The police have consistently told Ministers what has been happening not only in London but in other cities and in many smaller communities in this country. It is a wholly irresponsible policy for the Government to pursue.
The noble and learned Lord says that we must think of the duty psychiatrist schemes. I agree. I visited such a project in Clerkenwell which is first class and run by two first rate psychiatrists. But that in no way undermines the case for an amendment of this kind. They both flow in exactly the same direction; namely, that there could be some requirement for the court to consider the mental condition of someone they may remand in custody and at the same time have an effective duty psychiatrist system in operation. The noble and learned Lord will know from those who are briefing him that pitiably few duty psychiatrist schemes exist in this country, though the number has increased over the immediate past.
As I indicated, I shall gladly give way to the noble and learned Lord if he will answer the question I put to him a moment ago; namely, that under Section 4 of the 1991 Act the court is required to consider the mental condition of someone before deciding whether or not to send a person to prison yet it is apparently wrong for the same court to consider exactly the same issues before deciding whether or not to remand a person in custody. What is the answer?
10.15 p.m.
Lord Rodger of Earlsferry: My Lords, the basic point is that in the other case we are dealing with a final disposal and here we are dealing with a remand where other issues are involved. As I said, it is open to the magistrates, when the matter is drawn to their attention and when appropriate, to take account of the mental condition—indeed they must take account of it—if it appears to them to be relevant. That is what paragraph
1244
9 of the schedule says. Therefore, in so far as they think the matter is relevant and it is drawn to their attention, they must already take it into account. To go further than that and place upon them a duty which would appear to apply in all cases, is going too far.
Lord Harris of Greenwich: My Lords, I hope that the noble and learned Lord will read those words tomorrow because, with great respect to him, they appear almost to be devoid of meaning. He tries to reconcile the two approaches yet uses terms like, "It is more appropriate in one case than the other". That is not a serious argument. However, the hour is late and we may well come back to this at Third Reading. As I indicated, I am not surprised by the response which is entirely consistent with the responses we have heard on many other occasions. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness David Baroness David moved Amendment No. 27:
After Clause 29, insert the following new clause:
( "Offences committed by young persons
.In section 50 of the Children and Young Persons Act 1933 there shall be inserted the following—
"✶(1) Where a child or young person is alleged to have committed an offence whilst under the age of 14 years, the prosecutor shall satisfy the court that the child or young person knew that the behaviour which is alleged to have constituted the offence was seriously wrong.
(2) For the avoidance of doubt, the word "satisfy" in subsection (1) above shall mean satisfied beyond reasonable doubt".").
The noble Baroness said: My Lords, on 24th March this year a High Court judgment in the case of C (a minor) v The Director of Public Prosecutions, undid the common law rule which required the prosecution to satisfy a court that a child under the age of 14 understood that what he or she had done was seriously wrong. The purpose of this clause is to return the law to what it was prior to 29th March.
This common law principle, known as doli incapax, was an effective way of ensuring that the law was able to reflect and respond to the varying rates of maturity for different individual children; and they do vary very much indeed. The age of criminal responsibility in this country stands at 10 years. That is one of the lowest ages of criminal responsibility in Western Europe. While children of such a young age are subject to the rigours of the criminal law, it is important that some degree of flexibility is included in the legal framework for dealing with them. The aim of this clause is to require the prosecution to demonstrate to courts that children aged between 10 and 13 knew that what they were doing was seriously wrong.
Sometimes this will be very straightforward and easily demonstrated, particularly for those at the older end of the age range. In other cases, particularly for the younger age group, there may be serious doubt as to whether the child really understood the wrongdoing involved in his or her action. It cannot be right to burden a child as young as 10 with the stigma of a criminal conviction when the individual concerned does not understand that what he has done is wrong. For such a

1245
child it may be much more appropriate to take action, if necessary, through welfare legislation and the family proceedings court.
This clause is not a new or radical departure from our traditional approach to children in trouble. Rather, it aims to reassert a legal principle which has evolved over the past 150 years. There has been a series of court judgments which have clarified and supported the principle of this clause. The most recent was in 1991. The judgment in March overturning the common law principle surprised many in the child care and legal professions. This clause will enable us to return to a situation which enables criminal courts to respond sensibly and sensitively to young children.
Many children appearing before the court will have experienced significant difficulties while growing up. It is only right that courts have the opportunity to decide, on an individual basis, if such a child, aged 13 years or under, really is able to understand the wrongdoing involved in his or her action. This clause seeks to allow criminal courts the level of flexibility required when dealing with very young children. I would ask for your Lordships' support. I beg to move.
Earl Ferrers: My Lords, the effect of this new clause would be to place on the statute book the presumption —which is known as doli incapax—that a child aged between 10 and 14 does not know the difference between right and wrong and is therefore incapable of forming the mental intention necessary for him to be convicted of a criminal offence. Some of your Lordships might find that sometimes hard to swallow, but there it is.
Your Lordships may be aware that this long-standing common law principle was earlier this year overturned in a Divisional Court ruling. I understand that the case concerned is now the subject of an appeal to the Judicial Committee of this House. It would, I think, therefore be premature at this stage to seek to legislate on the matter. I hope that the noble Baroness will agree that it would be better to wait until the outcome of the appeal is known. The Government will then give full considera-tion to its implications.
Baroness David: My Lords, I thank the Minister for that reply. I did not know that this was the subject of an appeal, which does, of course, make a difference. Can the noble Earl tell me when the appeal is likely to be heard?
Earl Ferrers: My Lords, I am afraid that I cannot give the noble Baroness any information about that.
Baroness David: My Lords, I hope I have made my point because it is an important one. Our understanding of children should be rather greater. It is, again, a case of the courts being trusted and having responsibility. However, in the circumstances I have no alternative but to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Ackner Lord Ackner moved Amendment No. 28:
Before Clause 30, insert the following new clause:
( "Imputations on character
.In section 1 of the Criminal Evidence Act 1898 there shall be inserted at the end of sub-paragraph (ii) of paragraph (f) the words "the deceased victim of the alleged crime; or".").
The noble and learned Lord said: My Lords, as your Lordships will recall from the debates on the right of silence, it was in 1898, under the Criminal Evidence Act, that an accused person was first allowed to give evidence in his own defence. That Act provided, because it gave that right, protection for that person being asked questions with regard to his character, his past convictions if any. Section l(f) provided that:
"A person charged and called as a witness in pursuance of this Act shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character unless"—
It is paragraph (ii) which is the relevant exception and the subject matter of the amendment. The exception reads:
"unless the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for that prosecution".
The way it works in practice is simply this: if the accused, having given instructions for the character of the prosecution or its witnesses to be attacked, then elects to give evidence, there can be put to him his convictions so that the jury are not given a false or unbalanced picture when asked to decide whom they believe, the evidence of the prosecution or that of the defence. But your Lordships will have observed that this relates only to where the witnesses for the prosecution are attacked.
In the case of a fatality—murder or manslaughter, or an offence of grievous bodily injury which results in death—there is ex hypothesi no victim who can be called by the prosecution. That enables the accused to attack the character of the deceased and then to give evidence as if he were whiter than snow because no one is entitled to put to him his character. I instance the well-known defence on the western circuit known as the Portsmouth defence where the accused says, "I was subject to an outrageous homosexual attack and all I was doing was defending myself and then produces evidence of homosexual convictions in relation to the deceased, he, ex hypothesi, the defendant or accused, having a long record of violence. But that is not drawn to the attention of the jury.
I put forward the amendment in Committee. I submitted that I was doing no more than advancing the philosophy of the Government, with which I agreed, that the balance had tilted too far in favour of the accused and also that where there were technical rules which no longer seemed justified and which in fact seemed repugnant to common sense. They should be done away with.
In reply the noble Earl, Lord Ferrers, expressed considerable sympathy with the criticisms I had made of the law but said that the Government had asked the Law Commission to undertake a review of the law governing evidence of previous misconduct. The noble Lord, Lord Harris of Greenwich, pointed out in fairly firm terms that anything which was sent to the Law Commission for its consideration inevitably involved, first, delay

1247
before its report it came out, but, greater still, the length of time it took for government to find time to introduce legislation. I pointed out that coincidentally it was only a week or two before our debate that the head of the Law Commission had protested in very strong terms at the amount of dust which reports which it had made were gathering awaiting, unsuccessfully, an opportunity to be the subject matter of legislation.
With his usual willingness to give further thought to the matter, the noble Earl said that he would certainly consider the point that there might be a very long delay before what is a very modest alteration to the law could be given parliamentary time. It is in that sense of optimism that I raise yet again this amendment in the hope that he can provide us with some comfort on the subject. I beg to move
10.30 p.m.
Baroness Mallalieu: My Lords, I should like to support the amendment, as I did in Committee. Where an attack is made on a live witness for the Crown, the defendant's own bad character may, if the judge gives leave, be placed before the jury so that it has the full picture in deciding where the truth lies. It seems ironic that where an attack is made on the character of the deceased who cannot give his or her own account of events, the jury is denied the right to know the details of the character of the defendant who makes the attack. Whether defending or prosecuting in a murder case as a member of the Bar, it always seemed to me that the interests of justice require that no such distinction should be made.
It will not do to suggest, as the noble Earl sought to do on the last occasion, that this is a matter for the Law Commission to consider because, as the noble and learned Lord, Lord Ackner, has already said, when the Law Commission does consider such matters and produces draft Bills, too often those Bills simply pile up because the Home Office does not press for them to take any priority in a future government programme.
This is a relatively minor but important proposal to alter the law in a respect which I should have thought would appeal to the noble Earl and his Government. I hope that he will feel able to accept the amendment on this occasion.
Lord Campbell of Alloway: My Lords, I support the amendment unreservedly in the light of my experience of conducting murder cases.
Lord Wigoder: My Lords, I feel as a matter of common sense that those who have spoken to this amendment are quite right: this is an amendment that should be supported. However, I should be grateful if one of those who has spoken could help me on one matter. It is possible, I think, to construct an argument to say that an attack on the character of a witness is carried out for the purpose of disputing the credit of that witness before the court in his evidence, whereas an attack on the character of the deceased is done for a quite different reason. It is not done to discredit his evidence; it is done to show some propensity on the part of the deceased to a certain type of behaviour. I hope
1248
that that matter can be dealt with in simple terms—I am sure that it can be—because that would remove my one lingering doubt about the merits of this obviously worthwhile amendment.
Lord Harris of Greenwich: My Lords, I rise briefly, as I did on the last occasion that we debated this, to agree with the noble and learned Lord, Lord Ackner, and the noble Baroness. It seems only right and proper that an amendment to the law along these lines should be accepted.
All that I would add is that I very much hope that the noble Earl will not rely on the Law Commission defence because, as the noble and learned Lord, Lord Ackner, pointed out, it impresses remarkably few people. As we all know, if a matter is referred to the Law Commission it will be a substantial period of time before it is able to adjudicate on it, and we know about the length of the queue of Law Commission Bills which are awaiting Parliament's attention.
As the noble Earl may recall, I raised this matter with the noble and learned Lord the Lord Chancellor. In my view and in, I think, the opinion of others, I did not get a wholly satisfactory response. As far as Parliament is concerned, there are intolerable delays in considering Law Commission Bills. I hope that we shall not be told this evening that we have to await a decision of the Law Commission on this important matter. It requires more urgent attention than that.
Earl Ferrers: My Lords, I cannot tell your Lordships the pleasure that it gave me when the noble and learned Lord, Lord Ackner, said during the course of his introductory remarks that he agreed with the Government. From his record of voting today, that was not immediately obvious. The noble and learned Lord will forgive me if I say that I did not know that his view always was that he agreed with the Government, but he did say so this evening, and that came as nectar to my soul.
I said in Committee that I would reflect carefully on the noble and learned Lord's powerful case for his amendment. I took note in particular of your Lordships' more general impatience to deal with this matter before the Law Commission's review of the law on evidence of previous misconduct. As I said in Committee, the amendment departs from the rationale of the tit-for-tat rule, because it is not concerned with an attack upon the character of a person who is giving evidence. The victim is dead. For rather obvious reasons, he will be unable to give evidence.
The amendment will though increase, albeit marginally, the number of occasions upon which the defence has to decide whether it is worth risking putting forward what may be a truthful and justified attack upon the character of a deceased victim in a case that results in his criminal history being exposed.
The amendment has the obvious attraction of deterring unjustified attacks on the character of a deceased which would thereby spare the victim's family further suffering. Certainly the noble and learned Lord's views seem to have won the sympathy of the Committee. Like most matters, there are arguments for and against, but the Government would not wish to

1249
stand in the way of a general consensus that this limited extension of the tit-for-tat rule should be undertaken in advance of the Law Commission's fundamental review.
Of course, the noble Lord, Lord Harris of Greenwich, said, on an amendment of his to which my noble and learned friend the Lord Advocate had the unbridled pleasure of replying a little earlier, that Her Majesty's Government are not remotely interested in any improvement to the Bill that anyone might suggest. So the noble Lord, Lord Harris, would understand were I to tell him that the Government did not wish to accept the amendment, but the noble Lord will not be surprised if I tell him, as is so often the case, that his rather trenchant diktats sometime misfire and are not always correct. The fact is that the Government are in favour of amendments where they improve the Bill, but they are not in favour of amendments where they make it less effective. In this case of course we consider that the amendment would improve the Bill. I am happy to accept the noble and learned Lord's amendment.
Lord Ackner: My Lords, I am most grateful to the noble Earl for his kindness, and for his willingness to reconsider, as he clearly has done, the situation which was outlined on the previous occasion.
I am sorry to disappoint the noble Earl to this extent. As Hansard will show, I expressed my support for the Government in the observations I made in a distinct and limited field. I have shown that support consistently on the important matter of the right of silence, as so called. It was to that that I referred. It was not a general pat on the back for all their activities in this extensive Bill.
On Question, amendment agreed to.
Clause 30 [Abolition of corroboration rules]:
Lord Campbell of Alloway Lord Campbell of Alloway moved Amendment No. 29:
Page 20, leave out line 23 and insert:
("shall comply with such practice directions as to a revised form of warning as may be given by the Lord Chief Justice.").
The noble Lord said: My Lords, Clause 30 abolishes the current requirement that judges should warn juries of the danger of convicting on the uncorroborated evidence of the complainant (male or female) in sexual offences, or of an accomplice, leaving it to the discretion of the judge as to whether to warn or not to warn.
According to current practice, when the judge has ruled that there is no evidence capable of corroboration, he first explains to the jury the meaning of corroboration in relation to the evidence given. He then directs them that it is dangerous to convict but that they may do so if they are sure. One must be objective about this. No one can truly pretend that this is entirely satisfactory. As the noble and learned Lord the Lord Chief Justice said in his Tom Sargant Memorial Lecture:
"In practice, the corroboration rules have become more and more technical and arcane; less and less in accord with common sense. Explaining them intelligibly to juries has become difficult. I therefore agree with the Royal Commission's recommendation and am glad the Bill reflects it".
Perhaps we may pause for a moment. Clause 30. retains the corroboration rules. It retains them and, instead of making a warning mandatory, all that it does is to leave to the discretion of the judge the decision whether or not to warn. Secondly, Clause 30 retains the
1250
current form of warning if it is given—that it is dangerous to convict—without affording any opportun-ity for the judiciary to devise any other formula.
The natural interpretation of the Bill is that the current form of warning in these two types of cases and in all other cases will be given where the particular circumstances must warrant a caution and that in due course further guidance will be given by the Court of Appeal or by practice directions, as proposed by the amendment. But in these two types of cases what is to happen pending such further guidance? Although it may well be said that the concept of Clause 30 was fathered by the Royal Commission, it is apparent from its report that the problems of implementation, to which I have referred, were not considered.
In those circumstances, as regards these two types of cases, it is not acceptable to leave to the judge the decision whether or not to warn. First, where no warning in current form is given, the prospect of an appeal against an unsafe conviction is simply put to the hazard, and that matter was not considered by the Royal Commission. Furthermore, the obligation to give a warning in whatever form avoids all hint of criticism of the judge who fails to warn and puts paid to the suggestion made by my right honourable friend the Secretary of State either in his Blackpool speech or in the 27-point programme that:
"It is not appropriate for a female judge to have to give such a warning in a rape case with a female complainant".
That is a matter to which I referred on Second Reading as constituting a wholly unacceptable basis on which to support an amendment to the law as proposed by Clause 30.
Perhaps it is apparent that the current practice is not entirely satisfactory; that the corroboration rules should be abrogated; that Clause 30(1), which leaves those rules as they stand, is not acceptable; that leaving it to the discretion of the judge as to whether or not to warn does not begin to grapple with the essence of the problem. Therefore, perhaps a new approach, such as that proposed by Amendment No. 31, is worthy of consideration.
Clause 32(2) amends Section 34(2) of the Criminal Justice Act 1988 so as to abolish the need for the corroboration warning to be given before convicting only on the evidence of a child complainant in a sex case or where the child is an accomplice or for some other reason. That is not well conceived. It will tend to engender unsafe convictions in serious cases where the interests of justice and the dictates of common sense require that such warnings should be given. Furthermore, again, it would inhibit the Court of Appeal from quashing unsafe convictions.
The amendment to which I speak maintains current practice pending modification of it by the judiciary. It removes statutory intervention in what should continue to remain within the province of the judiciary. It avoids the problems arising in the wake of Clause 30, if enacted —the vacuum period pending guidance. I beg to move.
10.45 p.m.
Lord Ackner: My Lords, on the last occasion, I listened, as always, to the admirable submissions made by the noble Baroness, Lady Mallalieu, who always prepares her work with the skill of a well-practised Queen's Counsel and then delivers it in a way in which it is a pleasure to listen. But I did not intervene because I had only a hazy recollection at the back of mind of two decisions for which I was responsible—Regina v. Beck when I was presiding in the Court of Appeal, and Regina v. Spencer, where I gave the leading judgment in your Lordships' House.
That reminded me to look at the Law Commission's report which was produced in September 1991, in order to discover what exactly had been the conclusion of the commission. It concluded:
"We are impressed by the almost unanimous view on consultation that the present obligation to give a corroboration warning should be abolished".
It pointed out that of the 38 submissions which commented on the proposed abolition of the corroboration rules, 35 agreed with that proposal. Abolition elicited strong judicial support, in particular from the judges of the Queen's Bench Division, who responded collectively, and the Council of Her Majesty's Circuit Judges. It was viewed as highly technical, complex and potentially confusing for a judge; and it really gave the jury no assistance.
One has only to consider that at the outset of a judge's summing up he has to tell the jury that they must be satisfied so that they feel certain. In other words, they must be satisfied beyond reasonable doubt. Then, if the corroboration rules stand, the judge continues to say, "It is dangerous for you, members of the jury, to convict without corroboration. I have to direct you in this case that there is no corroboration". He then says, "But, of course, if you are so convinced with the evidence of the uncorroborated witness, you are entitled to convict". Obviously, that is an unsatisfactory situation.
I have one or two further general observations to make. I shall deal first with the direction to a jury. I quote from a decision of the Court of Appeal in Chance 1988. The court said:
"The aim of any direction to a jury must be to provide realistic, comprehensible and common sense guidance to enable them to avoid pitfalls and to come to a fair and just conclusion as to the guilt or innocence of the defendant. This involves the necessity of the judge tailoring his direction to the facts of the particular case. If he is required to apply rigid rules, there will inevitably be occasions when the directions will be inappropriate to the facts. Juries are quick to spot such anomalies, and will understandably view the anomaly, and often, as a result, the rest of the directions, with suspicion, thus undermining the judge's purpose. Directions on corroboration are particularly subject to this danger".
I have one further quotation which comes from that most experienced, and still alive, of former Lord Justices, Lord Justice Lawton. When dealing with the object of a summing-up he observed in the case of Sparrow:
"The object of a summing up is to help the jury and in our experience a jury is not helped by a colourless reading out of the evidence as recorded by the judge in his notebook. The judge is more than a mere referee who takes no part in the trial save to intervene when a rule of procedure or evidence is broken. He and
1252
the jury try the case together and it is his duty to give them the benefit of his knowledge of the law and to advise them in the light of his experience as to the significance of the evidence".
Lord Justice Lawton then went on to refer to the judge's duty, "always to be fair" and added:
"What is said must depend upon the facts of each case and in some cases the interests of justice call for a stronger comment. The trial judge, who has the feel of the case, is the person who must exercise his discretion in this matter to ensure that a trial is fair. A discretion is not to be fettered by laying down rules and regulations for its exercise".
There may be cases where the evidence calls for the judge to give a particular strong and emphatic warning as to the dangers of relying upon a certain witness's evidence. How he does so will depend on the nature of the case. That is what was said in the Court of Appeal in Beck and in the House of Lords' case in Spencer, to which I have already made reference.
The Law Commission raised and dealt with the question of whether something should be put in place as regards the abrogation of the corroboration directions in sexual cases and in the accomplice case. The commission suggested that consideration should be given to a practice direction—in its view, the matter was not suitable for legislation—on the extent to which a judge should, before summing up in such a case, invite submissions from counsel as to how that particular case should be handled in order to ensure that the defence was put fairly, adequately and fully. That, no doubt, is something which may well be considered by the Judicial Studies Board and by the Chief Justice following the legislation here. I am bound to say—I expect it was only to stimulate discussion—that to find suggested in legislation the proposition that judges should comply with practice directions issued by the Lord Chief Justice seemed to me a remarkable piece of surplusage. If we were going to put that in this Act, why not in every Act? Of course without legislation judges will comply with practice directions. If not, the Court of Appeal will have something very firm to say about it.
With regard to the further part, that is, subsections (2) and (3), the noble Lord, Lord Campbell, perhaps overlooks that what is in the Bill is taken straight out of the draft Bill proposed by the Law Commission. In regard to those two subsections, it pointed out in the notes to its draft that the,
"subsection is consequential on the change effected by subsection (1). Section 34(2) of the Criminal Justice Act 1988 abolished the requirement to give the corroboration warning in respect of the evidence of a child where the warning was required only by reason that the evidence was the evidence of a child. The provision thus left untouched the requirement to give the corroboration warning where the child is an alleged accomplice or, where the alleged offence is a sexual offence, the person in respect of whom it is alleged to have been committed".
That explains how those subsections were brought in. In my respectful submission—it is a particular pleasure once more to excite joy in the breast of the noble Earl, Lord Ferrers—I happen to agree with the Government's approach to this subject.
Baroness Mallalieu: My Lords, I have put my name to these two amendments, perhaps for slightly different reasons to those of the noble Lord, Lord Campbell of Alloway. In Committee I moved an amendment to retain the requirement that a judge should be obliged to warn the jury of the dangers of a conviction based on the

1253
evidence of a single witness who was either an accomplice of the accused or was the complainant in a sexual case where there was no evidence capable of amounting to corroboration; in other words, where there was a single witness who fell into either category.
There was some support from all sides of the Chamber for the amendment. Perhaps it was the lateness of the hour and also may be the complexity of the subject and no doubt my inability to explain it with clarity that led the noble Earl to undertake to go away and consider the matter carefully. In the interval between then and tonight he has been good enough to make time to see myself and a number of other noble Lords who expressed concern about the proposals in this Bill in the interim. I am grateful to him. We in turn had an opportunity to reflect upon the Government's position. I accept now, as I did at the earlier stage, that the present corroboration rules and warning do not work satisfactorily. They create difficulties for the judge who has to identify the specific parts of the evidence which amount to corroboration; they also create difficulties in explaining the nature of the evidence to a jury, in particular the distinction between corroboration and supportive evidence which is perhaps lost on most if not all laymen.
I remain deeply concerned about the way these changes have been proposed in the Bill because, as the noble and learned Lord, Lord Ackner, said, the proposals contained in Clauses 30 and 31 come straight from the Law Commission report. Here, I take back the criticism I made in relation to the earlier amendment. This is an example of the Home Office finding time as a matter of priority for a Law Commission Bill.
However, the additional proposal which the Law Commission made at the time it proposed this draft, and which was part and parcel of the proposed statutory changes, has not formed any part of the Government's proposals. As I hope to show the House—and I hope that noble Lords will forgive me for doing so at this late hour—it was never contemplated by the Law Commission that the warning as to the dangers of convicting on the sole evidence of an accomplice or a sexual complainant should go altogether. Yet that is the unfortunate and erroneous interpretation which has resulted from the way in which the Government have set about these changes. I am most anxious to correct the misapprehension which has developed in some quarters.
I remind the House of what the Law Commission, and indeed the Royal Commission, have said about this aspect. In Part V of the Law Commission report there are five recommendations in total. They run together.
The first recommendation relates to repeal of the provision of the Sexual Offences Act which imposes a statutory corroboration requirement relating to certain procuration offences. That is now incorporated in Clause 31 of the Bill.
The second recommendation is to abolish the present common law rule whereby the judge must automatically warn the jury that it would be dangerous to convict the accused on the uncorroborated evidence of a prosecution witness who is an accomplice or complainant in a trial for a sexual offence. That is taken lock, stock and barrel and put into Clause 30 of the Bill.
1254
The third of the five provisions is the abolition of the corresponding rule applicable to summary trials. That is to be found, again wholesale, in Clause 30.
The fourth provision is the express extension of Section 34(2) of the Criminal Justice Act 1988 relating to children's evidence to summary trials. That, again, is translated wholesale to Clause 30.
What is missing, and I do not criticise the Government for not putting it in the Bill but it should have played an important part in the way in which this particular change in legislation is introduced, is Recommendation (5). I stress that it is part and parcel of a package. It is the introduction by practice direction of a scheme whereby, in a case involving issues that might need special treatment by the judge when summing up before closing speeches, the judge and counsel should discuss those issues in the absence of the jury.
One of the remaining conclusions of the Law Commission was that the judge should not be prohibited from giving the jury a warning in any particular terms about the evidence of any particular type or category of witness.
In relation to the practice direction I fully accept, as did the Law Commission, that it may not be appropriate to incorporate a practice direction in a statue. But it is important to recognise, because the Law Commission took some trouble to go into the detail of the submissions it received, what the Law Commission considered should be covered by that practice direction. I hope that the House will bear with me if I refer to a small number of the passages which deal with it.
At paragraph 4.22 the Law Commission report states:
"On consultation, the Criminal Bar Association and some of the Judges of the Central Criminal Court favoured the introduction of a procedural rule under which the judge would discuss at the end of the evidence (and in the absence of the jury) the nature of the summing up and the problems to be dealt with in it. The Criminal Bar Association thought that the judge should be under a duty to consider submissions on the matter, thus helping to identify the relevant issues and ensure 'that the approach of counsel in their speeches coincides with the way in which the judge intends to sum up'. The Judges of the Queens Bench Division, though they did not think that there should be an obligation in this respect, suggested that
'there would be an ample opportunity for the judge to discuss [the question whether a warning should be given] in open court in the absence of a jury at the end of the evidence (or at any other stage) and in many cases the appropriate direction may well be agreed'."
The Law Commission considered that that would be an advantage not merely in the present corroboration cases but in all cases that present points of any difficulty or controversy. The report states that the practice direction,
"is not in our view a suitable subject for legislation, and thus it does not feature in the draft Bill".
Paragraph 4.27 states that,
"it should be used not simply in cases that fall into the present corroboration categories, but in any case in which there are difficulties about particular witnesses".
Paragraph 4.29 states:
"In our view, therefore, it would be beneficial if it were provided that, in any case that involved issues of fact or the credibility of evidence that needed or might need special treatment in the summing-up, the judge should before final speeches discuss those issues with counsel in the absence of the jury".
The Law Commission continues at paragraph 4.30:
"We think that it would be appropriate for such a scheme to be introduced by Practice Direction, and we so recommend".

1255
In a sense the Royal Commission took the same point: that a warning would still have to be given in many of these cases. The report of the Royal Commission on Criminal Justice, in the passage dealing with corroboration at page 127, states:
"It may still be necessary for the judge in these cases"—
that is, accomplices, and sexual cases—
"to warn the jury of the dangers of accepting evidence from particular witnesses. We agree, however, with the Law Commission that the approach should be not that the same warning should be applied inflexibly to every case but that, if a warning is required, the judge should tailor it to the particular circumstances of the case".
What troubles me is that by introducing four parts of a five part package, the Government are in danger of creating a lacuna. Without that practice direction an integral part of the proposals of the Law Commission is excluded. The rules of evidence in relation to corroboration and warnings did not develop by pure chance. They developed because it became clear to those who practised over many years in the criminal courts, and to those who sit as judges in those courts, that there are dangers inherent in the testimony of certain witnesses.
The noble and learned Lord, Lord Ackner, referred to the overwhelming majority of those making submis-sions to the Law Commission who are in favour of the abolition of the corroboration rules and the warning. But it is right to say that those who practise in this field, men and women, represented by the Criminal Bar Association, strongly urge the retention of a warning in some form. It is only necessary to state that an accomplice is someone who was or may have been involved in the case to see that such a witness may well have a purpose of his own to serve in giving his evidence which may not be readily apparent to a jury. In today's climate of political correctness it may be less obvious, but in relation to sexual offences—offences which it is easy to allege but often hard to disprove, in particular when only the two persons concerned are present and where there is no additional evidence such as violence or injury—there is a terrible danger of a miscarriage of justice occurring one way or the other. While most other cases in which a wrongful conviction occurs—perhaps one may take the example of a murder case—have a possibility of evidence arising at a later stage which leads to the miscarriage of justice being corrected, in cases where only the complainant and the defendant are present and the complainant is lying it is only if the complainant at some later stage admits that he or she has lied that there is any prospect of that miscarriage coming to light and being corrected. A warning is an important protection against wrongful conviction. It makes no sense to try to help the genuine victims of sexual attack by removing a warning which is likely to lead to the conviction of more people on the receiving end of false allegations.
Noble Lords should be in no doubt that false allegations are being made. I have practised in this field for of the order of 24 years. As a woman Silk, a large part of my practice involves offences of sexual allegations, both prosecuting and defending. Lest it be said that what I am saying is in some way sexist, in my
1256
experience it is not just women and girls but men and boys too who lie about sexual matters. Our courts are sadly filled with cases of this nature. Many of them are genuine, but some—and a substantial proportion—are demonstrably false, not simply cases where there is insufficient evidence but cases where—and this is something I have seen myself on a number of occasions —during the course of a trial it becomes clear and the complainant actually admits that he or she has not told the truth. I have seen it with girls and boys making allegations against teachers. I have seen it with women following the breakdown of relationships; I have seen it with children in relation to parents, or even more commonly step-parents, and I have seen it with boys and girls in relation to baby-sitters. I have also seen it in relation to adult men many years later making allegations about events which occurred during their childhood.
Sometimes the reasons for those false allegations have become apparent during the trial; but sometimes they are never clear. There is an explosion of sexual cases which are genuine but there is a significant number which are false. It is left to a jury in cases which depend essentially on the words of the one witness to try to sort that out. In those circumstances, a warning is an important reminder to a jury in a case which rests on the word of one person against another, particularly in the highly charged atmosphere of a sexual complaint, that they have to be sure. It is not in any way insulting to women; it applies to both sexes and I speak not only as a woman but also as at one stage a recorder who has had on occasion to give that warning. I have never felt it to be an insult; nor have I come across any other woman practitioner practising in this field extensively who finds it so.
A warning will still be necessary. It may well be, as the noble and learned Lord, Lord Ackner, said, and as the Law Commission took the view, that it would be inappropriate to include provision for a practice direction in a statute, as these amendments propose. But my reason for supporting the amendments is to prompt the Government to do what I hoped they would have done when introducing this part of the Bill; that is, to consult the Lord Chief Justice and to give the House an assurance before the Bill passes that a practice direction will form part and parcel of this package—otherwise, a vital piece will be missing from the jigsaw.
Perhaps I may mention that there is an additional concern. If it is left solely to the discretion of a judge without any form of guidance, either statutory or by way of practice direction, as to when and in what circumstances he should give a warning about a witness, one can readily envisage a judge trying a case involving a sexual allegation which has the focus of media attention upon it. It will be incredibly difficult for such a judge to give a warning to the jury which is likely to be interpreted by the press as criticism by the judge personally of the credibility of that witness. It would be very much easier for him, in the absence of any guidance, to avoid giving that direction. It troubles me that some judges may feel constrained from giving a direction which would otherwise be appropriate.

1257
The corroboration rules, according to the Law Commission, should not be replaced by a statutory scheme. May I give, I hope, some incentive to the noble Earl that there is one further amendment tonight before the House rises, in the names of myself and the noble Lords, Lord Campbell and Lord Wigoder, which deals with a proposal for just such a statutory scheme.
If the noble Earl felt able to give an undertaking that between now and Third Reading he would consider the question of a practice direction and would consult the Lord Chief Justice in that respect, if he could assure the House that such a practice direction, along the lines of that which the Law Commission clearly intended should be part and parcel of these statutory changes, will be introduced, then I should not press a following amendment, Amendment No. 31, tonight.
However, I am anxious that tonight the noble Earl should deal with the practice direction and also make clear, if he will, that it is not contemplated by the Government that no warning should be given in these cases. Clearly it will be necessary in many of them for a warning to be retained. I hope that the noble Earl will find what I have said helpful and that he will feel able to adopt that part of the Law Commission's Bill, as he has the rest.
11.15 p.m.
Lord Lester of Herne Hill: My Lords, even at this late hour I should like to explain why I have the good fortune to agree entirely with the speech made by the noble and learned Lord, Lord Ackner, and with the Government's welcome acceptance of the Law Commission's report, which was in turn adopted by the Royal Commission; and why I have the misfortune to disagree with the noble Baroness, Lady Mallalieu, and, I suspect, other of my friends and colleagues at the English Bar.
The noble and learned Lord, Lord Ackner, so completely described the present law that it would be impertinent of me to add to what he said. The present law regarding corroboration in relation to accomplices and any kind of sexual offence constitutes a qualification of the general principle that in an English criminal trial the jury are entitled to convict on the unsupported evidence of one witness. As I read the Bill in its present form, it will in no way prevent the judge from giving a full corroboration direction if, in his discretion, he considered it appropriate to do so, but the judge will not be obliged automatically to give such a direction. In other words, nothing in the Bill forbids the judge from giving the jury a warning in particular terms which the Law Commission recommended.
Amendment No. 31 proposed by the noble Baroness would abrogate the obligation of the judge to give a warning where there is evidence capable of amounting to corroboration; but where there is no such evidence, the judge would continue to be obliged to give a warning. But even from the noble Baroness's point of view, which I understand and respect, the amendment is flawed. At present the question of whether in fact a particular item of evidence is corroborative must be left to the jury. Under Amendment No. 31, by contrast, the judge might rule that the evidence, though weak, was
1258
technically capable of providing corroboration but then decide in his discretion not to give a corroboration warning. The jury would then have no chance to consider whether the testimony of the witness in question was in fact corroborated.
In a way that is a technical point. Perhaps I may deal briefly with other more substantive points. I should like to refer briefly to the important subject of the protection of defendants. The Law Commission was much exercised about the question of whether the abolition of the corroboration rules might result in injustice to defendants. It concluded that there was no such danger for the following reasons.
There is a general overriding rule that the judge must always put the defence fairly and adequately. The abolition of the corroboration rules would mean that witnesses now within the corroboration rules would be treated, as other witnesses already are, on their individual merits.
In addition, the Law Commission pointed out that there are two related but distinct safeguards that will not be affected by the complete abolition of the corroboration rules. The first safeguard relates to cases of any kind in which the identification of the defendant is in issue. The Turnbull rules require the judge to explain to the jury the need for special caution in accepting evidence of identification and must direct the jury in some detail and in a fairly specific way about the quality of the evidence of identification. Secondly, there is the important Beck rule to which the noble and learned Lord, Lord Ackner, referred, under which, where a witness is or may have,
"an interest or purpose of his own to serve",
in giving evidence adverse to the defendant, the judge is obliged to warn the jury about the evidence of that witness. But unlike cases within the corroboration rules, the form and content of the warning are a matter for the judge. For example, he may choose simply to warn the jury of the need to examine the evidence of the suspect witness with care, explaining that the witness has or may have an interest of his own to serve; or in his discretion he may go further and advise the jury to look for corroboration of the evidence. I respectfully suggest that the Law Commission is quite right in indicating that those rules give adequate protection to defendants if the corroboration rules are abolished.
I turn again briefly to the overwhelming objections to the existing corroboration rules. No noble Lord who has so far spoken indicated that the rules, as they stand, are unobjectionable. The first objection to the present law is its inflexibility. Whatever may be the judge's assessment of the reliability of the evidence or the assistance that the jury needs to be given in assessing the evidence, at the moment the judge is obliged to warn in standardised terms that it is dangerous to convict. So if, for example, a defendant is charged that he broke into the victim's house with intent to steal and then raped the householder, the judge must give a corroboration warning in respect of the rape but not in respect of the burglary. Again, bearing in mind that the corroboration rules apply to summary trials as well as to trials on indictment, many noble Lords may agree with the suggestion of the late Professor Rupert Cross that it is,

1259
"somewhat odd to require a magistrate to reason as follows on a charge of indecent assault brought by a respectable middle-aged female: 'I believe her evidence, but I must think twice before acting upon it because sex is a mysterious thing', whereas, on a charge for assault brought by a man with numerous convictions for violence, the magistrate can simply say to himself 'I believe his evidence and I need not think twice about acting upon it because there is no particular danger that charges of violence will be made on account of neurosis, jealousy, fantasy or spite'".
The second objection is to the complexity of the corroboration rule, which is notorious. Judges of great authority have commented on these problems in the strongest terms. To take one example, Lord Diplock observed that the
"complicated formulae about the concept of corroboration and the respective functions of judge and jury are … unintelligible to the ordinary layman".
The rules as to what evidence is and is not capable of being corroborative are difficult and complex and the cause of many actual or alleged errors and many appeals. Moreover, the direction is quite irrational. The judge is obliged to start by saying that it is dangerous to convict on the basis of certain evidence, but then to go on to tell the jury that it is possible for them to do exactly that.
According to the circumstances of the case, the formulae can lead either to placing an unfair handicap on the prosecution or to confusion that may be detrimental to the defendant. Lord Diplock suggested that the rules, far from protecting the defendant, may, by requiring the jury to be given a complicated and technical discourse about the evidence to be corroborated,
"have the contrary effect [on the jury] to a sensible warning couched in ordinary language directed to the facts of the particular case".
The third objection is that the present rules produce notorious anomalies. For example, they apply only to evidence given by prosecution witnesses and not to evidence given by a co-defendant. The fourth objection is that the rules require the judge to take special action over and above the discharge of his general obligation to put the case fairly to the jury, irrespective of whether in his view the testimony of the witness in fact requires a special warning or other special comment.
Finally, the noble and learned Lord, Lord Ackner, referred to the views of the judiciary and of practitioners and reminded us that the Law Commission received overwhelming evidence. Abolition elicited strong support from the judges of the Queen's Bench Division, who responded collectively, the Council of her Majesty's Circuit Judges, the Criminal Bar Association and the Law Society. One experienced circuit judge pointed out that the corroboration direction must seem,
"nonsensical at worst and contradictory at best to most juries. How are they to evaluate a direction that it is dangerous to convict on the uncorroborated evidence of a complainant or an accomplice against the further direction that, if they bear the warning in mind, they may convict nevertheless if they are convinced that the complainant or accomplice is telling the truth?"
The Law Society commented that the rules can be,
"meaningless in practice in any trial on mixed indictments involving offences to which the rules relate and others not covered by the rules".
Many consultees pointed out that the complexity of the rules led to many mistaken rulings at trials and hence to
1260
the unmeritorious quashing of convictions on appeal. The commission received particularly critical comment on the operation of the rule in sexual offences. For example, the judges of the Queen's Bench Division— and I respectfully agree—described the current model direction as "patronising".
For all those reasons—the safeguards, the objections and the anomalies—I respectfully agree with the Bill as it stands. So far as concerns any practice direction, that is a matter for the Lord Chief Justice and his colleagues. We can surely be confident that they will fill any gap of the type referred to by the noble Baroness.
Lord Renton: My Lords, far be it from me at this very late hour to get into a detailed argument with the noble Lord, Lord Lester, to whom I have listened with very great interest and some surprise. I wish to point out that subsection (1) will in its present form lead to uncertainty. I shall explain why.
The subsection begins with the words "Any requirement". A requirement in the context of subsection (1) could be a requirement under statute law, under case law, under a rule of court or under a practice direction. The subsection states:
"Any requirement whereby at a trial on indictment it is obligatory"—
that is the operative word—
"for the court to give the jury a warning"—
it then goes on about uncorroborated evidence—
"is hereby abrogated".
That means, by implication presumably, that if there were a subsequent requirement given either under a practice direction or under a rule stated by the judges —perhaps in the Court of Appeal (Criminal Division) —arising out of a particular case, a requirement saying that the jury might be given a warning, that would appear to be in order.
However, because of the way this subsection is phrased, ending in the words "is hereby abrogated", one wonders whether the courts, the judges making judges rules or any court giving a decision would feel free to say that there may be voluntarily a warning. That is a real difficulty of drafting which deserves the attention of my noble friend Lord Ferrers between now and Third Reading. I say that quite independently of all that has been said so admirably and in great depth by the noble Baroness, Lady Mallalieu, and, in a different sense, by the noble and learned Lord Ackner and by the noble Lord, Lord Lester. We must avoid uncertainty in our statute law, especially in a matter like this.
11.30 p.m.
Lord Wigoder: My Lords, all of us who are still in the House at this late hour are obviously zealous in the pursuit of truth and I know will not begrudge just a few extra minutes as we consider this extremely important matter. It is not a party political issue.
I differ very much from my noble friend Lord Lester of Herne Hill. It is fortunate that it is he that I differ from and not my noble friend Lord Harris of Greenwich because that, I fear, might have caused in the noble Earl an excitement which might have had fatal consequen-ces, and that is not something that I would want to see.

1261
Members of your Lordships' House have spoken of their experience in dealing with this matter. I myself have nothing like the distinguished or broad-based legal experience of the noble and learned Lord Lord Ackner. Almost the whole of my career at the Bar was spent in the criminal courts prosecuting, defending, or trying cases. It was a very much longer career than that of the noble Baroness, Lady Mallalieu, and that is quite obvious if any noble Lords were to look at the two of us.
My experience leads me to the view that no one in their senses would implicitly believe the word of any man or woman describing their own sexual experiences. It is as simple as that. I believe that it is self-evident. If one looks at the autobiographies of distinguished people over the past few years there is always a chapter called "My first sexual experience". It is always followed a few chapters later by descriptions of various sexual deviations. Everyone knows that they are put into the book to boost the sales. Nobody believes a word of them implicitly unless there is support from some outside source.
I believe that the same is true of people acting as complainants in criminal cases, whether men or women. Of course, some of them are speaking the truth. The difficulty is knowing which ones are doing so. Some of them are fantasising completely, totally inventing a whole sexual episode. Some of them are describing a sexual episode which has taken place but altering one or two crucial factors in it. Usually in a sexual case they say that there was no consent whereas in fact there might have been consent in an episode otherwise truthfully described. Other people truthfully describe a complete sexual episode from start to finish, and those are perhaps the most evil and difficult cases of all to spot. They then attribute the wrongdoing, for reasons of malice, jealousy or spite, to some man or woman whom they know to be innocent.
There are all those types of cases, some of which are perfectly genuine and truthful cases. The problem is how does one decide which is the truth. It is not by looking at the witness and judging by his or her demeanour. That is no test and we all know the dangers of that. It is for those reasons that, over the years, the common law has come to the view that where there is no corroboration it is dangerous to convict. That seems to me to be perfectly self-evident and in accordance with common sense.
To deal with that situation now —that being the existing common law rule —there are three proposals before us. The first is that of the noble Lord, Lord Campbell of Alloway, who says, in effect, that there will need to be a warning of the dangers of convicting on uncorroborated evidence, but it can be dealt with by a practice direction.
The second alternative is that suggested by the noble Baroness, Lady Mallalieu, in the subsequent amend-ment, Amendment No. 31, which has nothing to do with the complexity of the rules about which my noble friend spoke. It is a very simple statement that, where there is no corroboration, the court shall warn the jury in terms appropriate to the facts of the case of the dangers of
1262
accepting evidence from such a witness. Nothing could be less technical or less complex than a warning of that nature.
The third alternative is the view that the Government have taken—I know that it is supported to some extent by the Law Commission—that, where there is no corroboration, the matter can properly be left to the discretion of the judge.
In an ideal world, I doubt very much whether it would make much difference whether we decided on the amendment of the noble Lord, Lord Campbell, or that of the noble Baroness, or whether it was left to the discretion of the judge. In an ideal world, I have no doubt that practically every judge in practically every single sexual case where there was no corroboration would, as a matter of course, give a warning to the jury. That would be the commonsense course and I believe that for practical purposes every judge should take it.
The danger that arises is that we do not live in an ideal world and there are problems facing judges who are asked to rely on their own discretion in the matter. Those problems were outlined clearly by the noble Baroness. They are the problems, in the first place, of the hysterical reporting in the media of cases with any sexual content. I am afraid that I cannot limit that by saying "the tabloid press" because there is hysteria throughout our press in its reporting of sexual cases.
A further consideration which has arisen largely since the Law Commission reported may have affected the commission in some way if it had realised its extent. I refer to the huge organised lobby which appears to be of the view, expressed vehemently and reported in the press extremely strongly, that every complainant in a sex case is speaking the truth and that it is absolutely monstrous and outrageous to suggest anything to the contrary. Woe betide the poor judge who, for example, on one occasion said that it was possible that when a complainant said no in a particular sexual encounter, she might possibly have meant yes. One remembers the hysteria with which that comment was greeted.
I am not seeking to be anti-feminist in any way, but it is a fact that most complainants in sex cases are women. It is therefore a fact that the lobby that supports complainants in sex cases must inevitably be a feminist lobby. I have no doubt that if most complainants were men, there would be an equivalent male lobby carrying out precisely the same activities.
There is a problem facing a judge in a sex case in which there is no corroboration. If there is some indication either by practice direction or by statute that he must give a warning as to the dangers of convicting, he will do so and nobody will be able to criticise him. If there is no practice direction and no statutory direction and it is left to the discretion of the judge, there may be a very real pressure on sensitive judges not to deliver that warning because they are fearful of the pummelling which they are liable to get in the press. I know that our judges should be above any such considerations and I have no doubt that 99 per cent. of them are. However, I believe that there is the odd case where, for the reasons I have indicated, if it is left simply

1263
to the discretion of the judge, although a warning should obviously be given, it will not be given because of the possible consequences for that judge.
In such circumstance, it is possible that if warnings are not given, miscarriages of justice may occur. Although it is not mentioned anywhere in the Long Title of the Bill, I should have thought that the primary object of any criminal justice Bill must be to prevent miscarriages of justice. Therefore, I ask the noble Earl to consider whether it would not be right to go along the lines advocated by either the noble Lord, Lord Campbell of Alloway, or the noble Baroness, Lady Mallalieu.
Earl Ferrers: My Lords, the noble Lord, Lord Wigoder, said that this is not a party matter, and of course in that he is absolutely correct. The cookie crumbles, as they say, across party lines and without party involvement. Here we are considering more legal niceties in search of the truth and of a method of legal application which will enable the truth to be extracted. I know how concerned are my noble friend Lord Campbell and the noble Baroness, Lady Mallalieu, about these matters of corroborative evidence.
I had the pleasure of discussing this matter with my noble friend, the noble Baroness, and some other noble Lords after the Committee stage and before the present stage. I am grateful to them for giving me their views and for giving me the opportunity to see if, how and where we can meet their concerns. I have laboured long and hard to try to find a way of accommodating their concerns. In our discussions we discovered that our expectations of what Clause 30 should achieve are similar. The difference between us is that in order to be sure, the noble Baroness, Lady Mallalieu, my noble friend Lord Campbell and others, want judges still to be told what to do in certain types of case. The Government, on the other hand, stick more by the Law Commission's conclusion. We should prefer to give the judges a free hand.
The noble Baroness asked me whether I would give an undertaking to speak to the noble and learned Lord the Lord Chief Justice. She will not be surprised to learn that we have taken his view on the amendment. Indeed, we raised the whole matter of a practice direction—after all, it is the Lord Chief Justice who has to give the direction—when the decision was taken in the first place to adopt the Law Commission's proposal for legislation. So the noble and learned Lord the Lord Chief Justice has given the matter very careful thought. His conclusion is that a practice direction is not necessary. He is content with Clauses 30 and 31 as they stand. If further guidance proves to be necessary after the Bill is enacted, then it will fall to the Court of Appeal to provide it. That is the view of the noble and learned Lord the Lord Chief Justice.
Loath as I am to resist the combined urgings of my noble friend Lord Campbell, the noble Baroness, Lady Mallalieu, the noble Lord, Lord Wigoder, and, indeed, my noble friend Lord Renton, I approach with even more caution the prospect of writing into the statutes of the land matters relating to practice directions which are, by their very nature, non-statutory and entirely
1264
within the discretion of the Lord Chief Justice. That would be particularly so when the substance of the addition to the Bill would mean ignoring the views on this matter of the noble and learned Lord the Lord Chief Justice.
I do not often complain, but this is really like finding oneself between what one might describe as a rock and a hard place. Perhaps I can provide some reassurance to my noble friend and the noble Baroness. First, the response to the Law Commission's paper has not questioned that the judge has a continuing duty to put the defence case squarely before the jury. That is unequivocally the view of the Law Commission. The Royal Commission and the noble and learned Lord the Lord Chief Justice took that view as well.
There is no question therefore of the Bill telling judges that they cannot deliver warnings where the particular circumstances of the particular case demand it. Secondly, what the Law Commission sought was a sensible and practical approach to the judge's decision on how to sum up. The commission rejected any idea that a practice direction should categorise different types of offences and different types of witnesses. What it wanted was a pre-summing up discussion between the judge and counsel in all hard cases, whatever the nature of the case. There is nothing to prevent that sensible practice from happening now or, indeed, under the Bill. I agree with the noble and learned Lord, Lord Ackner, that whether it needs to be reinforced by practice direction is not a matter for Parliament but a matter for the noble and learned Lord the Lord Chief Justice. He is not persuaded that it is necessary, which I take as a measure of his confidence in the good sense of the judiciary.
I am also reassured by the reaction of judges to what the Bill is doing. In their response to the Law Commission, the judges have welcomed the abolition of rules which the noble and learned Lord the Lord Chief Justice has called:
"more and more technical and arcane; less and less in accord with common sense".
My noble friend Lord Campbell suspects that judges would recoil from adverse publicity if they were to choose still to deliver warnings after the Bill becomes law. With the greatest of respect to my noble friend, I believe that he is wrong about that. I do so in part because judges need and generally have pretty thick skins when it comes to that kind of reporting and in part because they know that the press will find reason to criticise them whatever they do.
I have spoken at some length about this issue—but not as long as some noble Lords—because the amendment stems from what I realise is a deep anxiety on the part of some noble Lords. As it stands, the amendment in the name of my noble friend Lord Campbell and the noble Baroness, Lady Mallalieu, would not relieve that anxiety because it assumes that there will be a practice direction which the noble and learned Lord the Lord Chief Justice does not consider to be necessary.
I hope that in any event your Lordships will be reassured, as I have been, by the considered but wholly positive judicial response over the months and years that

1265
these proposals have been in the making. I hope that they will further be comforted that very considerable thought has been given to the anxieties that they have produced. My desire not to accept their amendments has not sprung from a position of dull obduracy on the part of the Government but simply because, on wider reflection and discussion, which has been going on for a long period of time, we consider that the Bill in its present form commands the respect of the judiciary and does not impose the risk to defendants which they fear.
Lord Campbell of Alloway: My Lords, at this late hour all it would be right for me to do is to thank all noble Lords who have spoken in the debate both for and against the amendment. I thank in particular the noble Baroness, Lady Mallalieu, for her outstanding contribution—
Noble Lords: Hear, Hear!
11.45 p.m.
Lord Campbell of Alloway: My Lords, time does not allow me to deal with the tremendous contributions that have been made and I hope that it will not be thought that they were not appreciated. I wish also to thank in particular my noble friend Lord Ferrers, who has entertained long discussions with us and has taken enormous personal trouble to understand the anxieties that we felt. There is no question of any hint of dull obduracy in this affair.
This is not the time to argue, so perhaps I may reserve my position to read what has been said, to consider the matter further, perhaps to return on Third Reading and to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendment No. 30 not moved.]
Baroness Mallalieu Baroness Mallalieu moved Amendment No. 31:
After Clause 30, insert the following new clause:
( "Requirement for warning in case depending solely on evidence of accomplice etc
. Notwithstanding any statutory or common law provision where at a trial on indictment the court determines that the case for the crown relies on the evidence of a witness who is—

(a) an alleged accomplice of the accused, or

(b) where the offence charged is a sexual offence, the person in respect of whom it is alleged to have been committed,

and further determines that without the evidence of the same witness there would be no case for the defence to answer, the court shall warn the jury in terms appropriate to the facts of the case of the dangers of accepting evidence from such a witness.").

The noble Baroness said: My Lords, I shall keep the House but a short time. It would clearly be wrong for me to move the amendment at any length. I move it in a few sentences in the hope that the noble Earl will give it some consideration.
In the light of our discussions, I was anxious to see whether I could find a way to meet the Government's wish to move right away from corroboration and yet retain some form of warning which would be a safeguard for a defendant. The proposed new clause moves right away from a judge having to consider corroboration or having to direct the jury in relation to it. Quite simply, it provides that in a case which rests solely on a single witness who is either an accomplice or the complainant in a sexual offence and where but for
1266
the evidence of that witness, there would be no case to answer, the court should give a warning to the jury in terms which the judge thinks appropriate to the facts of that particular case about the dangers of accepting such evidence.
I hope that the noble Earl will consider the matter because I appreciate fully the objections and difficulties in relation to corroboration which were outlined at some length by the noble Lord, Lord Lester, and with which I do not disagree. But in the light of the somewhat disappointing information which the noble Earl had to give the House to the effect that part five of a five-part package will not be available at once and that we shall have to wait for the Court of Appeal to deal with the matter at some point in the future, I am concerned that a safeguard should be in place to meet the difficulty which now arises.
Clause 31, which follows on Clause 30, is an illustration of how far those changes go. Clause 31 deals with sexual offences which, if I can put it this way, come into the category of, "He made me do it." The Bill will abolish the requirement which currently exists for corroboration before there can be any conviction in those cases. Corroboration goes but, under the provisions of Clause 30, so does any warning. We have moved from one extreme to the other at a stroke.
The Criminal Bar Association—men and women who practise in that field—felt that an essential safeguard for the defendant was a warning in some form. I hope that the noble Earl will undertake to look at that proposal which I believe is a fresh one. I hope that it meets the objections of the Minister and others with regard to the dangers and difficulties of a corroboration direction. I beg to move.
Lord Campbell of Alloway: My Lords, I support the amendment to which I have put my name. It affords a substitute for current practice. It deals with the problems in the corroboration rules as to warnings in all types of cases.
The proposed resolution is novel. It is the brainchild of the noble Baroness, Lady Mallalieu. It is worthy of the most serious consideration. I am not satisfied that as yet it has received the consideration of the noble and learned Lord the Lord Chief Justice or other members of the judiciary.
The hope is that the noble Baroness will return with the amendment on Third Reading. As the noble Lord, Lord Wigoder, pointed out, the amendment deals in a simple, straightforward way with the essence of the problem; namely, how to find the truth.
Earl Ferrers: My Lords, I explained in relation to the previous amendment why the Government remain of the view that the Bill should be left as it stands. This amendment would preserve the special categorisation of witnesses who happen to be complainants in sexual offence cases or who are accomplices. It is precisely that special categorisation which we, the Law Commission and, indeed, the great majority of those who commented on the Law Commission's consultation paper, agree is no longer necessary or justifiable.
I cannot pretend to begin to match the experience, the competence or the understanding of the noble Baroness,

1267
Lady Mallalieu, or, indeed, that of other noble Lords on such matters. I have no doubt that many noble Lords know of cases where the mandatory warning has in their view prevented a miscarriage of justice. However, I guess that your Lordships may wonder whether the warning that was delivered had to be a mandatory one and whether it had to be about a category of witness. A discretionary warning by the judge who has heard the particular circumstances of the case would surely have been just as effective, and possibly even more so.
It is the cases about which we do not know that worry me more; for example, cases where the prosecution has decided not to go to trial because it was thought that the mandatory warning meant that there was no hope of success, or cases where the victim of a sex offence has had to be told that, even though he or she is totally innocent, he or she will be tarred with the same brush as are false and lying witnesses. Such people simply think, "Well, I've had enough of this. I can't go through with it". In those cases, the defendant does not even go to trial.
We are told that this piece of the law has worked for decades and that we should leave it alone. However, the Government, the Royal Commission and, indeed, the Lord Chief Justice of England all took the view that we differ from that position. That is why we have constructed the Bill as it now stands and why we believe that it ought to be left in its present form.
Baroness Mallalieu: My Lords, the example just given by the noble Earl and the words that he used in replying to the amendment have filled me with further alarm. I am greatly alarmed at the prospect of cases which have no prospect of success because the Crown Prosecution Service judged them not to be capable of proof, coming before the courts as a result of the abolition of the warning as a mandatory part of the
1268
judge's duty. I hope that, in many of those cases which fall into the categories of a single witness with no corroboration, judges will continue to give the warning and that the CPS will save those who come with complaints from appearing before the court in cases where there is no prospect of a conviction.
However, in proposing such statutory changes, the Law Commission saw the need for a safeguard by way of a practice direction. If we are not to have a practice direction, there must be some other safeguard. Clearly tonight is the wrong time to press the amendment or further consideration of it. I shall read with care what the noble Earl said both in relation to this and the earlier matter to see how far the worries that I have are met. At this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Annaly: My Lords, I beg to move that further consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.

University of London Bill
Brought from the Commons, read a first time and referred to the Examiners.
London Underground (Green Park) Bill
Returned from the Commons with the amendments agreed to.
Value Added Tax Bill
Returned from the Commons agreed to.

Vehicle Excise and Registration Bill
Returned from the Commons agreed to.
House adjourned at two minutes before Midnight.