Criminal Justice and Public Order Bill (Hansard, 14 June 1994)

HL Deb 14 June 1994 vol 555 cc1589-655 1589

§ 3.16 p.m.

Earl Ferrers
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Earl Ferrers.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]

§ Earl Ferrers moved Amendment No. 142C:

After Clause 82, insert the following new clause: ("Video recordings Video recordings: increase in penalties

.—(1) The following provisions of the Video Recordings Act 1984 (which create offences for which section 15(1) and (3) prescribe maximum fines of, in the case of sections 9 and 10, £20,000 and, in the case of other offences, level 5) shall be amended as follows.
(2) In section 9 (supplying videos of unclassified work), after subsection (2), there shall be inserted the following subsection— "(3) A person guilty of an offence under this section shall be liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine or both,
(b) on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding £20,000 or both."

(3) In section 10 (possessing videos of unclassified work for supply), after subsection (2), there shall be inserted the following subsection—

"(3) A person guilty of an offence under this section shall be liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine or both,
(b) on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding £20,000 or both."

(4) In section 1 I (supplying videos in breach of classification), after subsection (2), there shall be inserted the following subsection—

"(3) A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding level 5 on the standard scale or both."

(5) In section 12 (supplying videos in places other than licensed sex shops), after subsection (4), there shall be inserted the following subsection—

"(4A) A person guilty of an offence under subsection (1) or (3) above shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding level 5 on the standard scale or both."

(6) In section 14 (supplying videos with false indication as to classification), after subsection (4), there shall be inserted the following subsection—

"(5) A person guilty of an offence under subsection (1) or (3) above shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding level 5 on the standard scale or both."

(7) The amendments made by this section shall not apply to offences committed before this section comes into force.").

§ The noble Earl said: In moving this amendment, I shall speak also to Amendments Nos. 142D, 173A, 177A, 178B and 178ZCA. We turn now to the video 1590 amendments. I am sorry that the need to table our main video amendments before the House rose for the Recess meant that your Lordships and others did not have the: opportunity to comment on a draft before the amendments were tabled, but we thought that your Lordships would prefer to have the amendments tabled and to be able to discuss them in Committee rather than for the Government to wait for comments and table the amendments only on Report.

§ Any comments which your Lordships may make today will of course be carefully considered. If we are persuaded that the amendments which I am proposing are wrong, or that they are capable of improvement, then of course we can further amend them on Report.

§ By far the longer of the Government's two principal new clauses—Amendment No. 142C—is, I think, the easier one. It is designed to increase the penalties for offences under the Video Recordings Act 1984. At the moment the most serious offences—supplying unclas-sified videos or possessing unclassified videos for supply under Sections 9 and 10 respectively—can be tried only in the magistrates' court where someone who is convicted may receive a maximum penalty of a £20,000 fine. There is no imprisonment for those offences. Under our proposals, however, the offences will be made triable either way. That means that they will be able to be tried in the Crown Court where the maximum penalty will be two years' imprisonment and an unlimited fine. If they are tried in the magistrates' court, our amendment means that, as well as a £20,000 fine, there will be the possibility of imprisonment for six months.

§ The maximum penalties for most other offences under the Act are increased from a level 5 fine (which is £5,000) to include the possibility of a six-month prison sentence. They will continue to be triable only in the magistrates court.

§ The increased penalties for offenders will make clear the serious view which Parliament takes of those who break the law on videos, but that is only one of three measures to which my right honourable friend the Home Secretary referred in another place. The second is the British Board of Film Classification's agreement to raise classification standards for videos.

§ As most of your Lordships know, the British Board of Film Classification is an independent body which classifies cinema films on a non-statutory basis and has been designated as the classification authority under the Video Recordings Act 1984. That second measure will be reinforced by the third, which is the enactment of statutory criteria which the designated authority—that is, the British Board of Film Classification—must take into account when deciding whether or not to classify a given video, and also when it decides into which category a video should be put. It is that third element of the Government's proposals which has attracted most interest, and which I should try to explain.

§ We consider that it is right to change the law in order to provide firmer guidance for the British Board of Film Classification, both to help it in its difficult task and to help to protect the public. The Government are acutely aware of the considerable concern expressed that violent videos have contributed to crime by providing models 1591 of bad behaviour for children who are impressionable; and, indeed, by also providing models of bad behaviour for adults. Members of the Committee may recall the concern which was expressed in the wake of the appalling murders of James Bulger, Suzanne Capper and, most recently, Mr. Les Read. The press suggested very strongly in all those cases that the murderers had been influenced by videos. The trial judge in the James Bulger murder case, Mr. Justice Morland, also suggested that exposure to unsuitable videos might have accounted, at least in part, for the behaviour of the two boys, Thompson and Venables, who murdered James Bulger.

§ As a result, my right honourable friend the Home Secretary asked for police reports on those cases and on what role, if any, the videos had played in those crimes. The police reports did not support the theory that those crimes had been influenced by exposure either to any particular video, or to videos in general, and no evidence about the role of videos was presented in any of the prosecutions. Mr. Justice Morland later made it clear that his comments had been meant as a general contribution to the debate about videos and crime and that they were not based on any evidence at all in the Bulger case. I think that, in any case, it would have been unsafe to draw wider conclusions from such horrifying and, mercifully, such unusual crimes. However, that does not mean that we should not be concerned —and very vigilant—about the content of videos. We certainly should. That is why the Government are bringing forward their proposals today. Although there may be no evidence that videos cause crime, of course they affect people. Films affect people; books affect people; advertisements affect people. There is no reason to think that videos will not affect people. That is why we have the controls which we do, and why we are suggesting that they should be made tighter.

§ Amendment No. 142D, tabled in my name, lays down the criteria which the designated video classification authority —the British Board of Film Classification—must consider in determining whether a particular video work is suitable for classification and, if so, in which category it should be placed. The criteria are whether any harm may be caused to potential viewers or, through their behaviour, to society by the manner in which the work deals with criminal behaviour, illegal drugs, violent behaviour or incidents, horrific behaviour or incidents, or, indeed, human sexual activity. Material is covered if it deals with those subjects indirectly as well as directly. A "potential viewer" includes anyone who is likely to see the work in question if it is classified or placed in a particular category and it specifically includes children and young persons who are under the age of 18.

§ The advantages of that approach are, we believe, that it is consistent with the rest of the video classification system and it leaves the British Board of Film Classification with discretion to decide what to do once it has considered a work on the basis of the criteria which will be laid down in the Bill. If it concludes, for example, that the work will set a bad example to very young children, it need not ban the video altogether but 1592 it can place it in an age-restricted category. There may be some works which the board believes would have such a devastating effect on individuals or on society if they were released that there should be the possibility of their being refused a video classification altogether, and the clause leaves the board free to do that.

§ The criteria mean that the British Board of Film Classification must consider who is in fact likely to see a particular video, regardless of the classification, so that if it knows that a particular video is likely to appeal to children and is likely to be seen by them, despite its classification being for an older group, then the board must consider those children as potential viewers. That does not mean that the board must then ban the video altogether. The board will still have discretion on how, or whether, to classify it; but it must bear in mind the effect which it might have on children who may be potential viewers.

§ The amendment reflects the spirit of Mr. Alton's proposal which he put forward in another place but later withdrew. Moreover, his amendment is reflected in Amendment No. 144, tabled in the names of the noble Lady, Lady Saltoun of Abernethy, and the noble Earl, Lord Halsbury. The requirement that the British Board of Film Classification should consider harm which may be caused to a potential viewer—which is in our amendment—corresponds broadly to the test of, psychological harm to a child", which is to be found in the noble Lady's amendment. However, our amendment goes wider and is not confined to psychological harm or harm only to children. Harm to adults and to society in general can be taken into account. The requirement that the British Board of Film Classification should consider the possible harm to society which can be caused by the behaviour of potential viewers broadly corresponds to the test in the noble Lady's amendment which refers to an "inappropriate model" for children.

§ Amendment No. 142D requires the British Board of Film Classification to consider the harm which may be caused by a video because of its depiction of five particular subjects; crime, drugs, violence, horror and sex. They may overlap to some extent, and, of course, others may have different suggestions. However, I think that they represent the main areas of concern without all of us becoming bogged down in a lot of unhelpful detail about precisely what may or may not be shown. It is important to bear in mind that such statutory criteria are not intended to be exhaustive. The amendment says only that the board is to consider them, among the other relevant factors". The British Board of Film Classification will remain free to take account of other factors such as bad taste, bad language or offensiveness towards particular groups. For those reasons, I hope Members of the Committee will approve the amendments tabled in my name. I beg to move.

§ Lady Saltoun of Abernethy
I believe it will assist the Committee if I say a few words now about Amendment No. 144. Its object is exactly the same as that behind the noble Earl's amendment to which he has just spoken. Amendment No. 144 is the amendment which David Alton MP moved in another place but 1593 which he withdrew on the promise of a government amendment in this place. I tabled it as both a belt and braces operation in case the government amendment seemed inadequate and also to enable us to discuss the subject in Committee in this Chamber in case the government amendment was not forthcoming until a later stage. However, having seen the government amendment and being very happy with it, I shall not be moving Amendment No. 144.

§ Lord Merlyn-Rees
I am grateful to the noble Lady for her remarks and for the fact that she spoke before me. I shall now address only Amendments No. 142C and 142D. Amendment No. 142C is the penalty clause about which I am sceptical, but I certainly shall not oppose it. I support Amendment No. 142D but would like—as the noble Earl knows, because I wrote to him on the matter—to make some suggestions about the wording for him to consider before the next stage of the Bill.
Given the normal situation that I have taken due note of during my two years in this Chamber, we are usually revising legislation which has come from the other place. However, on this occasion, we are dealing with a new clause because there was insufficient time in another place to deal with it. The Home Secretary suggested to Members of the other place that he would bring forward a new clause in this Chamber to replace what I shall call for shorthand "the Alton clause", and that is what we are now discussing.
I declare an interest which I feel is relevant to the two proposed new clauses; namely, that I am president of the Video Standards Council. At the beginning of the day we can pass legislation in this Chamber, but, at the end of the day, it has to be policed and put into effect. The video industry—an industry employing 50,000 people, which is twice as many as those employed in television and radio—tries to play a part in the matter.
I should like to discuss television and radio because we sometimes ignore in particular what is seen in the home on television and also what is heard on radio and concentrate on the problems that arise from videos. The video industry distributes and makes videos and there are mail order videos and wholesalers' videos. In country areas—areas which I now know better since I retired from another place—vans travel around the countryside distributing videos to villages. Old people prefer to watch videos than to make a journey into a town to visit cinemas and return late at night. Videos are a major aspect of the entertainment industry. However, I suggest that we are perhaps ignoring the entertainment that people watch in their homes on terrestrial and other forms of television.
The industry has its own code of practice with which I will not bore the House. The industry tries to police that code of practice itself. The industry has a staff training video so that staff are aware of the law. It is important that staff should be aware of the law as it stands at the present let alone when the new clause that was introduced by the noble Earl increases the penalties. There is a consultative committee which comprises the head teacher of a comprehensive school and representatives from churches and boys' clubs and 1594 which seeks their views on certain issues. There is a packaging committee, because I fully understand that the nature of some packaging and some of the notices in shops cause anxiety for some people.
The Video Standards Council, which is a voluntary body, does not award classifications. The noble Earl has already mentioned the British Board of Film Classification. Film classifications are voluntary, but those for videos are statutory. The industry is concerned that often when these matters are discussed there is a mix-up between videos about which people are-concerned and which have been classified and pornographic videos which have not been classified and are easily obtainable. I wonder to what degree these amendments today deal with that matter.
The matter of pornographic literature needs to be considered seriously because that is a problem. The video industry is worried about that problem because it is often tarred with a brush that paints it as being connected with pornographic literature when that is not the case. It is worth a visit to the offices of the British Board of Film Classification to see how the board assiduously looks at all the videos, and indeed the films, and awards a classification, in the case of videos under the terms of the 1984 Act.
I should point out that at the moment under the 1984 Act, which was a Private Member's Bill, the British Board of Film Classification has to take into account the likelihood of video works being viewed in the home. That is already the case. The change which has been proposed today is not new. Often the classification of a film is different from that of a video because one is to be shown in the home. Indeed there are also differences in other respects.
I recommended a film to my son who is in his thirties and has no need of protection from me. I found a particular part of the film very amusing. Not long ago my son watched the film while travelling to the United States on a plane and he discovered that the part of the film which I had said was hilariously funny had been cut out. It had been cut out because there was a captive audience on the plane and therefore the film had been awarded a different classification. This whole business of classification, and the difference in classification applied to entertainment that is to be viewed in the home as opposed to entertainment that is to be viewed in the cinema, is a matter that should be taken into account. One would not have thought that that was so from the discussion that took place on the Alton amendment—I had discussions with Mr. Alton because I understood the nature of what he was trying to do—but already the BBFC has to take into account the fact that a video will be shown in the home.
I would also point out that the video industry in this country is controlled to a far greater extent than elsewhere in Europe, and probably in the world. There is anxiety about the relationship between violent crime and videos. But as the noble Earl pointed out, that relationship is not clear. In the terrible case that arose not long ago, the judge made clear that he was making a general observation because no one knows the relationship between crime and videos or films. I have my own views on the matter. However, when I was 1595 Home Secretary, one day I would receive on my desk a research document that argued a certain point of view and the next day I would receive a research document that argued exactly the opposite point of view.
No one knows the relationship between crime and videos or films and one cannot trust—if that is the right word—the media on this matter because they look at one report and proclaim, "Ah, at long last academics have seen that there is a connection". However, the following day, they ignore a report they receive which claims the exact opposite point of view.
I know where I stand on this matter. When I was bringing up my children there were certain things I did not wish them to see. There were many things on television and radio that I did not wish them to see or hear. I am sad at the growth of bad language over the past 20 years. I was brought up in a home where, when the men came home from work—I imagine their language at work was pretty strong—they would never use bad language in front of their mother. Bad language has spread in the community in a way that I find difficult to accept. However, the judgment as to what is right and wrong has to be taken by the individual.
I wish to point out a fact that is germane to the way in which we decide the fate of these amendments today; namely, there already is classification. The classification Uc denotes that a film has a universal category and is suitable for everyone. A U classification denotes that a film can be watched by people of all ages. The parental guidance classification cannot be ignored.
If videos are rented, those who hire the videos have to belong to a club. Sometimes an assistant will refuse to provide a video and in such cases a father may enter the shop and say to the assistant, "Do not tell me what my children are going to watch. I want this film in my home and I am going to have it. I am not going to allow a shop assistant to tell me that I cannot have a video in my home". This Committee is quite entitled to support video classifications, but there are individuals in our society who will not be subjected to classifications.
There is a 15 classification and an 18 classification. I hope that the Minister will comment on my next point. I understand there is talk of introducing a 12 classification. That would be yet another classification where, if people ignored it, they would be committing a crime.
I would point out that the existing penalties for supplying or offering to supply an uncertificated video or game, or possessing an uncertificated video or game for the purpose of supply, can already involve fines up to £20,000. People who commit these offences will, under the Bill, face two years' imprisonment. All other offences at present involve fines of up to £5,000.
I shall support the Bill and I would like to think that increasing the fine and introducing a penalty of two years' imprisonment will stop those who supply videos when they should not do so. But the penalty that is now proposed is prison. If a young person enters an off licence and the licensee supplies drink to him when he is not entitled to buy it, all that happens is that the licensee loses his licence. But if someone supplies a video to someone who is not entitled to have it, he will 1596 end up in prison. I suppose that would be all right if the measure achieved the desired effect, but I wonder whether that will happen. I warn the Government that there is a danger that the law will become an ass.
The TV programme "EastEnders" is transmitted at a time of night when young people are supposed to be in bed. If it is made into a video, it will receive a 15 classification. If the video is shown to someone who is aged under 15, the person who is showing the video could be penalised by having to pay a fine, and/or being sent to prison. However, if it is shown on a Sunday—as it is—on BBC or ITV, a young person can watch the programme without any fear or favour. However, the person next door could be sent to prison for watching a video. I find that extremely strange.
"Morse" was my favourite TV programme and I am sorry that it is no longer shown. It could have gone on forever as far as I am concerned. In video form it would receive a 15 classification, but on TV anyone can watch it at any time. I have some video tapes of the TV "Morse" programmes. If they had a 15 classification and I showed those videos to someone under 15 I could be sent to gaol. But if I told that young person to watch the programme on television, I would be all right. I hope that the noble Earl will consider the matter.
I ask the Committee to consider another aspect of this matter to show my scepticism as regards the extra penalties. Who is going to police this provision? The police have enough to do and I believe that in 1987 an alteration was made to legislation to enable this policing to be carried out by trading standards officers. A year or two ago I went to watch the trading standards officers scrutinise videos at a location in West Yorkshire, my former constituency. Those officers simply do not have the time to police videos. I believe that there were two and a half posts covering the whole of West Yorkshire. Those officers were responsible for seeing whether videos were being sold or rented illegally. Therefore, I hope that we shall hear that there will be more trading standards officers. Otherwise we shall be doing something that looks good on paper but will have no effect in practice. Too often Home Office legislation is introduced to placate the public. Ministers say, "Look what a great job we have done." There is very little change but it looks good.
Incidentally, regarding sales of videos I hope that a close look will be taken at car boot sales. I am advised that car boot sales—although often in aid of charity— are where pornographic and unclassified videos are sold. That is also where videos are sold to people under the wrong classification. Therefore, it is important that the matter should be policed, in addition to having the proposed new clause on the Marshalled List today.
In general I support the new clause. However, I have asked the noble Earl to examine the weaknesses in it. The Alton amendment and the letter which the Home Secretary wrote to Mr. Alton and which was made available to us pointed out the weaknesses in the Bill. I wish to spend a few minutes on the Alton amendment, which has now been withdrawn, and consider how it has been addressed in the new amendment, which I support in general and which the Home Secretary brought forward in response to the feeling in the other place.
1597 In his letter the Home Secretary explained the classifications. He spoke about inappropriate models. I shall mention the three points which the Home Secretary made. I support him in what he said, not because I belong to the ex-Home Secretaries club but because he knew what he was talking about, having taken advice from the police and others on the amendment in the other place. That amendment looked good but would have been incapable of being put into effect.
The Home Secretary referred to the catchphrase "inappropriate model for children". He said that it presented serious difficulties. He added: It is of course highly subjective and immediately raises the question of 'inappropriate when measured against what standard?' If this question could be satisfactorily resolved it would probably be on the basis that the work depicted actions or attitudes which most people in this country would not wish children to adopt. But in absolute terms this would be a very low test. Very many works (indeed I suspect virtually all) would fall into this category by portraying at some point undesirable activity". He added that the antics of the Artful Dodger in "Oliver" could come into this category, whereas one would not want to stop children seeing a film version of Oliver Twist.
I recall that when comprehensive education was introduced and more young people were taking O-level English in my former constituency a mother complained to me that the left-wing education authority was making her child read books which were undesirable. She was referring to the O-level Shakespearean play for the year; she thought undesirable ideas were being shoved down her child's throat. That is a very subjective valuation. For that reason the Home Secretary said that we cannot have this.
There is also the question of the likelihood of a work causing psychological harm to a child. The noble Earl mentioned that aspect. The Home Secretary said that it is not difficult to imagine lengthy and detailed argument about whether a scene, even in a work of high artistic merit, which frightens a child could be said to cause him or her psychological harm. I can recall children watching the most innocuous of television films in the home and hiding behind the settee because they were frightened. That does not do great psychological harm. I have not noticed that in those I was responsible for bringing up or in my grandchildren.
There is also the important issue of private use. Does that refer to viewing in the home or display other than on a commercial basis? In addition, what is meant by, any place to which children under the age of eighteen are admitted"? Does it mean that the works in question can only be shown in premises to which children are never admitted? There are many other such difficulties. The Home Secretary went on to say that that would be a major departure with significant implications for the freedom of adults to watch what they choose in the privacy of their own homes. There is undoubtedly public concern—which I share—about violence on video. However, 70 per cent. of homes in the country have no dependent children. The amendments would 1598 affect those homes. On those grounds the Home Secretary said that he could not support the Alton amendment.
At the same time, on behalf of the Video Standards Council, which took legal advice, I wrote to noble Lords and Members of another place pointing out the weaknesses in the Alton amendment. At the end of the day, in my view the matter was summed up clearly by Mr. Tony Blair—and one should not read into that other than that he said it—who declared: By imposing a statutory obligation on the board to take the care and protection of children into account but leaving; them with legitimate boundaries of discretion intact, we can meet the public concern while avoiding the pitfalls. That is a sensible way to proceed".—[Official Report, Commons, 12/4/94; col. 140.]

§ Lord Elton
I believe that I am right in saying that it is the custom in this Chamber to quote Ministers in another place but not Members of another place in extenso.

§ Lord Merlyn-Rees
I am very sorry about that. In that case perhaps, as the best way of approaching the matter, I may use the words of somebody else. I do not know who said them. I believe that it would be very sensible to say that by imposing a statutory obligation on the board to take the care and protection of children into account but leaving legitimate boundaries of discretion intact, we can meet the public concern while avoiding the pitfalls. That is a sensible way to proceed. I believe that the Government are proceeding sensibly. That is what the Government are attempting to do. That is the basis on which to proceed, and the basis of the new clause. We can add a proper amendment to the Bill. The amendment has been improved.
We took legal advice. Mr. Geoffrey Robertson, whose field this is, raised the question of the word "harm". That word is still in the proposed new clause. He said that it sets a very severe test which would enable the BBFC to justify films containing violence. A film, may shock, disturb or cause nightmares but would not be causing harm. The effect on the viewer would have to be more than transient. The film would have to change someone for the worse. It was put to us that the words: to any harm that may be caused to potential viewers should be amended to read, to any harm that may be caused to a significant number of potential viewers". The amendment refers to the word "society". It does not attempt, nor could it for reasons which the noble Earl put to us, to establish a link between the viewing of a video work and harm to society. Our adviser believed that the words, by the manner in which the work deals with", should be replaced by, by the manner in which the work encourages, incites or causes". Mr. Robertson indicated that it would appear that the "potential viewer" could be almost anybody. He suggested that the words, if a classification certificate or a classification certificate of a particular description were issued were superfluous. It would seem that the words are intended to restrict the definition. The words "potential viewer" would enable the court to give the words the widest possible definition. That definition would mean 1599 that the fact that some parents allow their child to watch a restricted video title and that child molesters use videos to seduce children could be taken into account. A potential viewer could be almost anyone.
I now come to the amendments which the noble Earl has spoken to. I should like to ask the noble Earl that the words appearing in Section 4A(1), to any harm that may be caused to potential viewers be changed to: any harm that may be caused to a significant number of potential views". The wording of the definition of "potential viewer" gives cause for serious concern. Our adviser suggests that "potential viewer" means any person (including a child or young person) who is reasonably likely to view the video work in question if a classification certificate or a classification certificate of a particular description were issued upon the basis that it is supplied and viewed in accordance with its classification.
I do not raise the issue just for the sake of it. The video industry has to police the matter itself. Thousands of shops sell videos. The assistants have to be instructed. The managers of the shops and owners of the firms are concerned about the issue. They need to be much more certain what the words mean. While I agree with the Government and support the Home Secretary with regard to the new clause which replaces the Alton clause—I believe that he has done well on that— nevertheless I hope that the Minister will consider these suggestions before the next stage of the Bill.
On the penalty side, what is being done about some of the stuff received via terrestrial or satellite television? It is precious little. Perhaps precious little can be done because the material comes by satellite. But we ought to concern ourselves with that issue.
The Government have done well. I have made those qualifications which I hope the noble Earl will consider. I hope that when the issue goes back to another place, given the great feeling on the subject there, it will be seen that the Government have done a reasonable job and that the intentions of Mr. David Alton have been carried out in a way which will enable the industry, trading standards officers, and, on some occasions under the Obscene Publications Act, the police to carry out their job properly.

§ Lord Renton
I do not know the answer to the many questions and doubts raised by the noble Lord, Lord Merlyn-Rees. However, although his speech was so very long, I believe that he has done a service to the Committee in raising some of the issues. In particular, I shall be interested to hear from my noble friend Lord Ferrers on the two somewhat separate points that the noble Lord raised about the showing of videos on television including satellite television.
I wish to challenge the noble Lord on one point. He feels that there is uncertainty of meaning about the word "harm". I do not feel that. I think that many others will believe that in the circumstances in which we pass this legislation it is a very suitable word to use. Surely we must leave some matters for interpretation by the courts. If we start to go into the application of a particular word to every conceivable hypothetical circumstance our 1600 legislation will become even more long, detailed and incomprehensible than it sometimes is. I suggest that we leave the word "harm" where it is and do not attempt to interpret it.

§ Lord Merlyn-Rees
Perhaps the noble Lord will allow me to intervene. I have checked my notes. One of the reasons why I suggest that the word "harm" should be altered is that our wording is the wording of the Obscene Publications Act; the wording used by the Home Office is not. Since both pieces of legislation will operate, there will be different wording in each piece of legislation.

§ Lord Renton
With great respect, although it may be said that it is a fine distinction, there is a distinction between the aims that we and the Government have in controlling video recordings and the much broader concept of the Obscene Publications Act. I have some recollection of the issue because in 1959 when I held the kind of position that my noble friend now holds I had to express the government view on the Obscene Publications Act of that year which broke new ground.
I congratulate the Government on Amendment No. 142D. I believe that they have got it just about right. There is no doubt that there is great anxiety not only among parents but among the public at large as to the potential harm done by videos, whether or not shown on TV. I have no suggestion for improving that amendment. I believe that it is excellent.
However, I am puzzled by Amendment No. 173A. It deals with time limits for prosecution. The general rule of our law is that although in civil actions there is always a time limit of some sort or another, with statutes of limitations and so on, for criminal prosecutions we do not have time limits—nullum tempus occurit regi, if a Latin tag would not be too bold. I do not see the point of a time limit in this context. It could be a way of getting round the law in the way that the amendment is drafted. I may be wrong about it. I would not expect my noble friend to give an immediate answer today. However, I hope that when today's proceedings are over, he will invite his advisers, including parliamentary counsel, to consider the effect of the time limit in subsection (3) of Amendment No. 173A which amends the 1984 Act.
I have this fear. Let us suppose that someone produces a video. Perhaps it has been put on sale and has therefore become public. A police officer, someone from the Video Standards Council or a private individual finds that it is in clear breach of what the Government put forward in Amendment No. 142D. Once that has taken place, there has to be a prosecution either within three years or one year from the date of the discovery of the commission of the offence by the prosecutor. If there is no prosecution, but the offence has been committed, under Amendment No. 173A it appears that after the expiry of that limitation period the video could be produced and published. That would be a simple way of getting around the law: one just has to wait, in the one case for only a year. That would be absolutely ridiculous. I hope that my noble friend will ask his advisers to consider the matter.
1601 Having said that, I believe that the Government have done a great service with these amendments.

§ Lord Elton
I add my congratulations to the Government on getting out of a very difficult position in the right direction. They have been subject to advice, apparently well qualified, both to the effect that videos have an effect and that they do not. I understand from my noble friend's speech that the police report surprisingly said that videos did not have an effect. However, the Government have undertaken a reform of the law which will receive the justified support of Members of another place, a matter drawn to the attention of your Lordships by the noble Lord, Lord Merlyn-Rees, in his presidential address. One can be sure that their constituents will support them. In a matter of three weeks 100,000 signatures were collected for a petition against the broadcasting and availability of material unsuitable for home entertainment. It was against that bandwagon that the Government wisely reacted.
Many of us were much heartened by the publication of a report on Video Violence and the Protection of Children by Elizabeth Newson in March this year, to which my noble friend did not refer. As the professor of developmental psychology at the University of Nottingham, supported by signatures of no less than 25 equally distinguished academics and practitioners, she concluded that videos have an effect, that we were naive in thinking that they did not, and that legislation was required to protect children from unsuitable material when parents failed to do so.
I refer to that report only briefly. It included an admission that no one is too clear about the causation of violence in children, or the causation of offending generally in children, and that there should be government-funded serious research into the issue as a matter of urgency to save a great deal of money in the future. I support that for all manner of reasons.
I have only two matters to raise, one narrow and one rather broader. The narrow matter relates to the list in Amendment No. 142D which my noble friend Lord Renton has just formidably endorsed. The list has a characteristic which worries me slightly: it shadows the provisions in Section 2 of the Video Recordings Act 1984 for which I was the Minister responsible in this House. The list is couched in slightly different terms, but there is a specific subsection; namely, subsection (2) (c), which states: human genital organs or human urinary or excretory functions". It is a matter of great distaste and surprise to discover that there are a number of videos in circulation which are aimed at people who are interested in the latter two functions as a means of abusing children in a particularly nasty way.
I wonder whether my noble friend would repeat to me the reasons which I received in correspondence for not extending the list to include those functions. I know that It can be said at first blush that they are caught up by the other human sexual activity which is in the list in Amendment No. 142D under subsection (1) (e). However, from a letter which I received from my right honourable friend the Home Secretary, I understand that 1602 none of those subjects constitutes human sexual activity. Therefore, they will simply fall into the catch-all of other matters.
I should like some reliable assurance from my noble friend —I am not sure that he is in a position to give it —that those matters will definitely be caught up in the definition by the video licensing authority, when it comes to consider the matter. I am not at all sure that we should not have an extension of the list for that purpose and I shall listen to my noble friend's answer with great interest.
The other point is a much wider and more difficult issue, which was touched on to some extent by the noble Lord, Lord Merlyn-Rees. I had rather more sympathy with that part of his address than with other parts. This country is already flooded with video material to a greater extent than, I believe, any other country in the world and certainly in Europe. The greater part of it is totally uncontrolled, circulating from hand to hand or car boot to car boot. Nevertheless, it seems to me that some fairly dreadful things have been identified and ought in some way to be caught—for example, the video recordings referred to by my noble friend in his address which both appeared to have a close bearing on two recent dreadful murders. I realise the difficulty of retrospection and that once something is on the market with a certificate one cannot change it. One can prohibit its further reproduction for commercial purposes, I dare say, but I hope that my noble friend will consider that. I believe that the public would expect to be protected from the effects of "Child's Play 3" after our work this day, since that is what precipitated the amendments in the first place.
As to enforcement, I am now in complete sympathy with the noble Lord, Lord Merlyn-Rees. I have an interest to declare as vice-president of the Institute of Trading Standards Administration. Aside from that interest, I urge the Government to increase the number of trading standards officers able to invigilate the application of the legislation, even though they have reduced their burden by allowing the bypass provisions to carry out prosecutions in other authorities.
I do not think that I need say more, except that I believe that the Government have done well to go in the direction in which the honourable Member, Mr. David Alton, led in another place. I support them in any method of refining the provisions in the two directions which I suggested.

§ 4 p.m.

§ Baroness Masham of Ikon
I am pleased to see Amendment No. 142C which will, I hope, be written into the Bill. I should also like to congratulate David Alton, the Member for Liverpool, Mossley Hill, for all his work and powers of persuasion in getting something done about the horrible videos. I sat through some nasty videos which were shown by Scotland Yard in your Lordships' House some years ago. They were the most degrading, violent and awful things I have ever had to watch. I put them to the back of my mind, but I still shudder if I think about them.
As regards subsection (5) of Amendment No. 142C, are the Government satisfied that the nasty videos will 1603 not leak into circulation from licensed sex shops? Are they satisfied that the penalties are sufficient to deter people from selling them? These videos which I maintain are violent can be damaging to people of any age who have a tendency to be disturbed. I should like to see them all banned for ever everywhere. They are dangerous, disgusting and debase our society. I support the amendment moved by the noble Earl, but I should like to see it made stronger.

§ Lord Campbell of Alloway
I should like to make a brief intervention. I wish to support the Government without qualification on Amendment No. 142C, the trial either way and the custodial sentence. I wish to support the Government, again without qualification, even having listened to the informed speech of the noble Lord, Lord Merlyn-Rees, with his experience as a former Home Office Secretary of State. Even after having listened to that speech I cannot accept that there is a substantial way in which the Government's provisions could be improved by amendment.
I particularly wish to support the new criteria for suitability and the time limits provision in Amendment No. 173A. As to that, I believe it is possible that my noble friend Lord Renton may have been under a misapprehension. The provision in Amendment No. 142D does not create any offence. It merely involves: criteria for suitability to which special regard must be had". Those provisions are in addition to the one criterion which exists in, I think, Section 4(1) (a) of the 1984 Act as to whether there is a likelihood of home viewing. That extension of the mandatory criteria is of the greatest possible value.
The offences, as the Committee may know, since we are dealing with offences and time limits, are provided for under other sections—Sections 8 to 12 of the Act which deal with the supply of videos of unclassified work, possession of videos of unclassified work, supplying and, under Section 12, the old sex shop provisions. Those are the offences. The proposed amendment does not involve the commission of an offence.

§ Lord Renton
If my noble friend will allow me to intervene, it is important to get this right. If he looks at Amendment No. 173A, subsection (3) amends the Video Recordings Act 1984. In place of Section 15 of the 1984 Act there is to be a new Section 15, the opening words of which are: No prosecution for an offence under this Act". That means any offence under the Act.

§ Lord Campbell of Alloway
I quite agree, but I do not think there should be any distinction between us. Amendment No. 142D cannot create an offence; and there cannot be a prosecution without an offence. All that the amendment does is to expand upon the mandatory criteria as to suitability to which the designating authority has to have regard for the purpose of issuing a certificate under Section 7. I do not want to argue the matter in this Chamber. I am either right or wrong about it.
The other matter is that I am grateful to the noble Lady, Lady Saltoun, for withdrawing her amendment.
1604 But it contains the seed of what could be a certain improvement to the Bill. I am particularly grateful that the amendment, which came from another place, does not and will not find favour with the Committee. Apart from other things, it introduces a system of censorship by certificate which would conflict with the general intent of the Bill. In this context one only has to look at Section 7(2) (c) and Section 12 (the sex shop provision) to appreciate that. But there is merit in this amendment —although it would have to be considerably redrafted.
If we take subsections (1) and (2) and marry them in one context, that part of the amendment contains the proposition that we should create a new offence of permitting children under the age stated in the certificate —as the Committee knows, that age need not necessarily be 18; it can be a lower age—issued under Section 7(2) (b) of the Act as it stands to view the video. It should be an offence of permitting children under the age stated to view the video at any place, which includes their home.
I regard this matter, as does the noble Lord, Lord Merlyn-Rees, as one that we cannot conceivably debate today. It is a difficult subject, and one which involves invasion of privacy. But on the other hand, it involves the protection of children from irresponsible or sadistic parents. There is not time to consider the issue, but I merely put it forward as something that we might extract from the jettisoned amendment and consider at some other time.
There are many other things that I wanted to say, but I shall not say them. I do not want to take the time of the Committee. By and large, subject to the reservations that I have stated, which are very few, I think that on this matter the Government have done an excellent job and I support them up to the hilt.

§ 4.15 p.m.

§ Lord Wigoder
I, too, should like to pay tribute to my honourable friend Mr. David Alton in another place, who pursued this issue with such persistence that eventually the Government have brought forward these proposals at this late stage. I welcome the proposals, although I have to express a feeling of sadness that yet another imprisonable offence is now being created to add to the many others that have been created during the course of the passage of this Bill—which is liable to give rise to increasing pressure upon the prison population. I accept, however, that there are reasons for doing so in this case.
I have only two comments. First, there is, I believe, scope for legitimate, well-informed and well researched argument and discussion as to what harm and what degree of harm can be caused by videos displaying the various types of behaviour set out in the new clause in Amendment 142D. There can be legitimate discussion of that issue. But what is perfectly clear is that there are no conceivable circumstances in which portrayal of the kind of behaviour that is set out in that clause can have any beneficial effects. We have gone a long way past the days—10 or 20 years ago—when in obscene literature cases self-imposed experts would come forward and argue that the more outrageously obscene literature was, the less likely it was to corrupt and deprave, and indeed 1605 the more likely it was to have positive, beneficial, constructive effects on certain types of individuals. Arguments of that kind gave rise to a number of totally unwarranted acquittals in various cases at that time. We have gone past that day. I do not believe that anybody would now seriously argue that behaviour of that sort, when shown on video, can possibly have any beneficial effect.
I shall make only one other comment. It is of course quite conceivable that in a film there can be a fleeting moment of hard porn or outrageous horror which passes us by so quickly that it perhaps has very little effect on the viewer. But with videos the situation now is somewhat different. Although those of us who are grandparents may find ourselves quite incapable of operating the various devices that control the machines, our grandchildren all know perfectly well how easy it is when they come across any such moment to stop the video, play it over and over again, and play it in slow motion and at varying speeds to produce a totally different effect from the one that it might have if it were simply played straight through at the normal speed once and once only in a cinema or on television in the ordinary way. I believe that legislation of this kind is necessary. I approve of it in principle and I support it.

§ Viscount Cross
I should like to speak very briefly to Amendments Nos. 142C and 142D. There are unfortunately many handicapped people in this country who see violent videos, think they are real life and act accordingly. And then, what about the rest of us? What do violent videos do for beauty, truth and goodness? What do they do for the rule of law, "back to basics" and family life? Not very much, I think.
I understand that the President of the United States has requested the makers of violent videos not to make them. May I with great respect suggest that Her Majesty's Government should do the same? I believe that violent videos are evil.

Lord McIntoshof Haringey
I should say first that this is not an issue on which my noble friends would be whipped. This is an issue of personal conscience and Members on these Benches speak for themselves. Having made that point, what I shall say, speaking for myself, is constrained in two ways. First of all, I recognise the part which my honourable friend Mr. Tony Blair played in the formulation of these amendments. He and Mr. James Ferman, of the British Board of Film Classification, played a considerable and active part in the discussions that took place prior to the formulation of these amendments. Therefore I think it would be fair to say that the amendments would have his support when they go back to another place.
I am, however, constrained by the fact that it is on the record that I opposed the Video Recordings Act 1984 quite persistently. There were only three of us who did so—I include my noble friends Lord Houghton of Sowerby and Lord Jenkins of Putney—but we kept the House up late trying to persuade your Lordships, with no success whatever, that to intervene in what people do, read or look at in their own homes is an infringement 1606 of human liberty. I would be seeking to deceive the Committee if I pretended that my views on that matter had changed.
We are a revising Chamber and therefore we must look at these clauses in some detail. Indeed, we have done so for the last hour and my noble friend Lord Merlyn-Rees, who claimed that he was supporting the amendments, then subjected them to the most devastating criticism. But I think we also ought to look very briefly at the background. The Conservative manifesto of 1992 claimed that we have the strictest video censorship in the world, and the Home Secretary repeated that claim earlier this year. I think it is true. We have a censorship system which criminalises not merely the supply of disapproved-of video recordings but also the possession of such recordings. We have a censorship' system which controls not merely obscene publications but also indecent publications.
We have a system which provides, for example, that when pornographic films of young people are issued the burden of proof of the age of the person photographed falls not, as normal, on the prosecution but on the defence. We have the possibility, which is increased in Clause 80 which we have already agreed, of arrest without warrant and of police raids on people's homes to investigate what they possess in the privacy of their own homes. In other words, we have gone a good deal of the way towards the powers of George Orwell's "thought police" and a good way towards the kind of censorship described in "Fahrenheit 451". We have to ask ourselves why, with the extreme video censorship system which we have in this country, it is thought necessary to seek these new amendments.
I share the views which have been expressed particularly by my noble friend Lord Merlyn-Rees and the noble Lord, Lord Wigoder, about the undesirability of creating large numbers of new offences, and not only new offences but new imprisonable offences. That is my fundamental objection to Amendment No. 142C. So far as Amendment 142D is concerned, tributes have been paid to the Government for the way in which they have avoided the pitfalls of the Alton amendment; but I suggest that there are a considerable number of pitfalls left in the amendment. The proposed new clause refers to "potential viewers" when surely it should be referring to "a significant number of potential viewers". My noble friend Lord Merlyn-Rees made that point, on advice, and I am sure he is right about that.
In new Clause 4A(1) (a) and (c) the reference is to "behaviour or incidents". If that were to be "acts" rather than "behaviour or incidents" it would exclude the prohibition on words and it would be a great deal more precise and more effective than it is now.

§ Lord Campbell of Alloway
I thank the noble Lord for giving way. I think, with respect to him, that he was wrong when in saying that the amendments create new offences. I do not think, with respect, that they do. What they do is to up the sentence —there is custodial sentence and trial either way. I do not think that any new offence is created. Those in existence stand.

§ Lord McIntosh of Haringey
I may have been imprecise in my wording, in which case I apologise.
1607 What I meant was new imprisonable offences, and I thought I had made that point. Then again we have in new Clause 4A(1) (c) the reference to "violent behaviour or incidents". Violent behaviour takes place in boxing matches and rugby matches. Are these to be included in the scope of the video recordings legislation? Worst of all, so far as new Clause 4A(1) is concerned, it equates, by including them in the same list, human sexual activity with criminal behaviour, illegal drugs, violent behaviour and so on. I suggest to your Lordships that human sexual activity is a good thing. It is a desirable thing. We are all here because of it, and it ought not to be lumped in with criminal behaviour, illegal drugs and horrific behaviour or incidents as something which could fall foul of the law. My noble friend Lord Merlyn-Rees—

§ Lord Avebury
Will the noble Lord forgive me for intervening? It is not human sexual activity perse which is dealt with in this clause but the manner in which the work deals with human sexual activity. In the vast majority of cases the amendment is not going to apply; it is only if the activity is dealt with in a manner which is objectionable.

§ Lord McIntosh of Haringey
I do not want to engage in dialogue with the noble Lord, but what is there about the depiction of human sexual activity and in what manner can you deal with such activity as to cause harm? If somebody says "rape", rape is violence. It is not the same thing as human sexual activity as such. This is human sexual activity which is by definition, I suppose, not violent, horrific or criminal, because those are covered in the other parts of the new clause.

§ Lord Elton
May I just invite the noble Lord to read what I said in my brief intervention about human genitalia, defecation and urinary functions? Those are not violent but they are the cause of considerable abuse of children.

§ Lord McIntosh of Haringey
I listened very carefully to what the noble Lord said. I was not proposing to comment on it. If there is anything that needs to be commented on later, I will certainly do so.
Again, my noble friend Lord Merlyn-Rees has criticised the definition of "potential viewer" as being very wide indeed. Is it merely meant to include any person; for example, a person who is already mentally disturbed? Can we really run a censorship law in such a way as to deny access to videos to all people on the ground that they might have a deleterious effect on those who are mentally disturbed? Then again, who is likely to view the video? I am sure my noble friend will agree that at least the word "reasonably" should be included because the supplier is going to be in an impossible position. How is a supplier to know, if he sells a video work to an adult, whether the adult has a child in the household? Is it the supplier's responsibility to check whether the adult has sufficient control over the child to see that they do not view undesirable works?
I am sorry but I do not find these amendments satisfactory. I think they go far too far towards meeting a point which I do not fundamentally believe to be 1608 justified and they go far too far in the direction of interfering with what we do in the privacy of our own homes. Personally, not on behalf of my party, I regret them.

§ 4.30 p.m.

Earl Ferrers
I think the noble Lord, Lord McIntosh of Haringey, stands alone in his disapproval of the amendments, but of course he is entitled to have his view. This has been a very difficult area indeed in which to try and legislate. Mr. Alton had a shot at it in another place. The Government considered his proposals and we have now come up with our proposals. I am delighted that so many of your Lordships should have approved of them. My noble friend Lord Elton congratulated the Government on getting themselves out of an awkward position and in the right direction. I think he put it very well, if I might say so, because it is an awkward position when you are trying to legislate on this kind of subject. My noble friends Lord Campbell and Lord Renton approved, as indeed in general did the noble Lord, Lord Merlyn-Rees. The noble Lord, Lord Wigoder, also approved, even if he said he found it difficult to work his video. I understand that. He said that his grandchildren can do it quite easily; it just shows where the intelligence of his grandchildren comes from. I have difficulty myself because I find that people will unplug the wretched thing in order to put the Hoover in, which of course completely throws the video; and then you have to lie on the floor for half an hour in order to readjust it. So I do have a great deal of sympathy with the noble Lord, Lord Wigoder, from that point of view.
I also agree with my noble friend Lord Cross when he said, in a short but pithy intervention, that the President of the United States had asked people not to make these kinds of videos. I have a great deal of sympathy with that. I just wonder what it is that makes people want to make horrible, terrible and destructive videos. I have sometimes wondered whether it is not possible to stop them doing such things, but how can you stop people creating what to somebody may be acceptable? You then walk straight into the areas of censorship. That, of course, is difficult for governments, or for anyone else, to do.
The answer is that nobody knows the answer to this problem. Plenty of research has been done and I was grateful to my noble friend Lord Elton for referring to research carried out by Professor Newson, who said that there is evidence that people are affected by videos. That is an interesting piece of research. The fact is that nobody knows exactly how people are affected. I have always taken the view that you are only affected by three things in life: by what you see, by what you read and by what you hear. Very few other things actually alter people's opinions. That is why, when you are sent to school, you are given good books to read in order to edify the mind. Of course, the converse must be applicable: if you are given bad books they sully the mind.
Why do people spend so many millions of pounds on advertising on television? They do so because they know that when people see something that attracts them, they are attracted into receiving the message and 1609 carrying it out. I just find it unbelievable to think that what people see on videos and films does not affect them in some way or another. You can never quantify how that is achieved, or what is achieved; but it is a fact that what people see and hear affects their attitudes, their behaviour and what they think. I was only surprised that the noble Lord, Lord Merlyn-Rees, thought he has heard something hilariously funny; that is, what surprised me was the fact that he said it had been cut out of a video that was on an aeroplane, which he watched. I just wonder what kind of video it was: it must have been pretty hot to have cut out the hilariously funny remark. However, he seems to indicate that it was not very hot. I only hope that we may perhaps have the advantage of hearing more details on some other occasion of what the passengers in the aircraft had been denied.
I am grateful to your Lordships for the views put forward today because these are very important matters and it is not possible to have any form of censorship. But one has to try to draw the line somewhere. People expect the line to be drawn somewhere, and as I said earlier on, we shall certainly consider all that your Lordships have said this afternoon to see whether any improvements can be made.
My noble friend Lord Renton said that he did not like the time limit in Amendment No. 173A. That merely replicates existing law. The three-year time limit is currently to be found in the Video Recordings Act 1993.
The noble Lord, Lord Merlyn-Rees, made a number of very important comments. He was courteous enough to write to me on behalf of the Video Standards Council with two proposals to which he referred. Those were that the British Board of Film Classification should only have to consider harm which may be caused to a significant number of potential viewers, and that potential viewers should only include those viewing in accordance with the legal classification.
The first of those proposals would mean that the British Board of Film Classification need not take into account the possible harm that could be caused to a very small number of viewers if the great majority of viewers would not be affected. The second would mean that the British Board of Film Classification need not consider the possible effect on under age children of a video which was placed in an age restricted classification but which children were in fact likely to see. One immediately thinks of the position of a video which is perfectly suitable for an adult to have which he takes into his home and which the child then subsequently sees. It is very difficult to allow for legislative action to be taken. In the end, that is a matter of parental responsibility and over this issue parental responsibility is enormously important.
The difference between the Government's approach and the approach taken in another place by Mr. Alton is that the British Board of Film Classification will not be compelled to ban on video meritorious films which might have a harmful effect on a very small minority or on young children who would not be watching and who should not be watching. Under our proposals the British Board of Film Classification must consider any possible harmful effect of a video and then it has to make up its mind how or whether to classify, using its discretion.
1610 That is different from the position in the Obscene Publications Act 1959, which prohibits, for example, the publication of articles which have a tendency to deprave and corrupt those who are likely to see them and where it therefore makes sense to rule, as the courts have done, that this must mean a significant number of those likely to see the articles—and not just one exceptionally corruptible viewer. I agree with my noble friend Lord Renton that it is difficult to get into the minutiae of these things. It is difficult also to equate what we are trying to do over video recordings with the Obscene Publications Act. They all have a part to play in the general panorama of the problem of what affects people, but it is difficult to equate the two exactly.
It would be illogical to exclude the consideration of certain types of harm, or certain types of viewer in the case of the video criteria, especially as the statutory criteria are not exhaustive and the British Board of Film Classification would therefore remain free to take them into account in any case. Everyone agrees that the British Board of Film Classification should be able to carry on classifying good films for video even if they may be unsuitable for children or for a minority of other viewers. Our amendment ensures that it can do that. It is then up to the parents to make sure that their children do not get hold of that which they should not get hold of.
My noble friend Lord Elton wrote to my right honourable friend to inform him that he wanted to make two points about the Government's video classification criteria. His first point was that the proposed classification criteria do not cover exactly the same ground as the existing criteria in Section 2 of the Video Recordings Act 1984 for determining whether or not a video work is exempt from controls. That section provides that a work which is prima facie exempt forfeits its exemption if it depicts to any significant extent human genital organs or human urinary or excretory functions. My right honourable friend explained in his reply to my noble friend that it is true that the list of matters which the British Board of Film Classification is to consider does not contain a directly equivalent category. But that is because of the entirely different functions of the exemption criteria and the classification criteria.
The proposed classification criteria in fact go very much wider than do the exemption criteria. The exemption criteria determine for the purposes of the criminal law whether a given work is to be exempt from classification. There is no discretion about exemption. Either a work is, as a matter of law, exempt, or it is not exempt. That is a matter to be determined ultimately by the criminal courts. It was therefore thought necessary to provide explicitly that videos which show human genitalia, urination or defecation are not exempt from controls. Strictly speaking, none of those subjects would have been subsumed under a broad category such as human sexual activity.
The classification criteria, on the other hand, indicate broad areas which the British Board of Film Classification will be required to look at in order to consider whether the way in which they are depicted in a given video work might have a harmful effect on 1611 potential viewers or on society. These criteria will not be exhaustive and the British Board of Film Classification will remain free to take other matters into account. The classification criteria have no repercussions in the criminal law. Therefore they have therefore been drafted in broad and in general terms. It is our view that it was not necessary to refer explicitly to the depiction of human nudity in this context, or more specifically to genitalia, urination or defecation, as that is not a broad subject area and is covered by the discretion with which the British Board of Film Classification will have to consider any other matters.
My noble friend also asked that the Government should think again about making the classification criteria operate retrospectively, at least in certain cases. My right honourable friend has considerable sympathy with that point of view. He has considered the matter very carefully and takes the view that a system involving retrospection simply cannot be made to work very well.
The noble Lord, Lord Merlyn-Rees, asked whether there would be an additional age-12 category for video. I understand that there has been discussion between the British Board of Film Classification and the industry about an age-12 category. But that is not a matter for the Government. I understand that such a category already exists for cinema films.
The noble Lord was also concerned about the video of "Morse" and the effect that it might have on an under-age child. The offences in the Video Recordings Act relate to the supply of videos for gain. No one commits an offence if he shows a video in his home to an under-age child.
He also put to me a number of questions about the resources available for trading standards departments to enforce the new legislation. That point was of concern to my noble friend Lord Elton. It is a matter for local authorities. They have to determine the priority to be attached to those duties. I have no doubt that those authorities are well aware of the wide public concern about these matters when they decide on the allocation of their resources. The decision will be up to them.
Reference was made by the noble Lord to the problems of controlling material which is broadcast by terrestrial and satellite television. The control of material broadcast by television is the responsibility of my right honourable friend the Secretary of State for National Heritage. I shall ensure that the noble Lord's comments are brought to his attention, although I understand that he has already had discussions on these matters with the broadcasters.
I apologise for having made a rather more protracted speech than might have been desirable at the end of this debate. It is a very difficult and sensitive area. I felt it right to try to explain what the Government had in mind. I repeat that we do not have a monopoly of wisdom in these matters. We tried to accommodate the views of Mr. Alton in another place, but they were views which we thought on consideration would involve measures which would be too draconian and would not work. I 1612 like to think that these proposals are better and more appropriate. I hope that the Committee will approve them.
On Question, amendment agreed to.

§ Earl Ferrers moved Amendment No. 142D:

After Clause 82, insert the following new clause: Video recordings: criteria for suitability to which special regard is to be had ("After section 4 of the Video Recordings Act 1984 there shall be inserted the following section— "Criteria for suitability to which special regard to be had.

4A.—(1) The designated authority shall, in making any determination as to the suitability of a video work, have special regard (among the other relevant factors) to any harm that may be caused to potential viewers or, through their behaviour, to society by the manner in which the work deals with—

(a) criminal behaviour;
(b) illegal drugs;
(c) violent behaviour or incidents;
(d) horrific behaviour or incidents; or
(e) human sexual activity.

(2) For the purposes of this section—

"potential viewer" means any person (including a child or young person) who is likely to view the video work in question if a classification certificate or a classification certificate of a particular description were issued; "suitability" means suitability for the issue of a classification certificate or suitability for the issue of a certificate of a particular description; "violent behaviour" includes any act inflicting or likely to result in the infliction of injury; and any behaviour or activity referred to in subsection (1) (a) to (e) above shall be taken to include behaviour or activity likely to stimulate or encourage it." ").

§ On Question, amendment agreed to.

§ 4.45 p.m.

§ Lord Archer of Sandwell moved Amendment No. 143:

After Clause 82, insert the following new clause: ("Sexual offences against children outside United Kingdom

.—(1) Any sexual offence committed in any jurisdiction outside the United Kingdom, including the aiding, abetting, counselling or procurement of the commission of such an offence, shall be triable and punishable as if it had been so committed in the United Kingdom if—

(a) the act in question is punishable according to the law of the jurisdiction where it occurred; and
(b)the act in question is punishable according to the law of the relevant jurisdiction in the United Kingdom; and
(c) the act in question is committed against a child; and
(d) the perpetrator of the act in question is a citizen of the United Kingdom or ordinarily resident in the United Kingdom.

(2) For the purposes of this section, "a child" shall be defined as any human being below the age of 18 years.
(3) In this section, "sexual offence" has the meaning given by section 31(1) of the Criminal Justice Act 1991.
(4) Nothing in this section shall affect the legal principle of double jeopardy.").

§ The noble and learned Lord said: The noble Lord, Lord Hylton, who was kind enough to add his name to this amendment and who stayed in the Chamber last week until a very late hour in order to participate in the debate, has asked me to express his regrets that perforce he cannot be in attendance today. To those Members of the Committee who are not familiar with the background, the proposal may appear surprising. It proposes to confer on the criminal courts of England and 1613 Wales and those of Scotland jurisdiction to try and to punish certain offences committed abroad by United Kingdom citizens.

§ Normally, this country has been content to leave offences committed in other countries to the courts of those countries, although there are exceptions: Section 9 of the Offences Against the Person Act of 1861 provides that homicide committed by a British subject abroad may be tried in the courts of this country; and Section 134 of the Criminal Justice Act 1988 makes a similar provision in respect of torture by a British subject wherever committed.

§ Notwithstanding those precedents, I should not make a proposal of this kind had there not been a situation so compelling that it requires a remedy proportionate to the evil which has evoked it. A few years ago it became apparent that in some cities, notoriously in parts of Asia and particularly in Bangkok, child prostitution had reached such proportions that it had become a major industry.

§ Children make their way to the city in a variety of ways, all of which arise from poverty in the surrounding countryside. Some children are turned adrift by their families who cannot afford to keep them. Some are sold by their families to people who simply deal in children. Some are handed over on the assurance that there are those who are prepared to adopt them and give them a better life. Some are orphaned and make their way to the city in the hope of finding food and shelter. Some are simply kidnapped.

§ On their arrival in the city, those children who are in the control of an adult are simply sold. Those children who are not are rounded up by people known locally as the "fishermen". Then the children are sorted out. Some are sold into slavery—I nearly said virtual slavery—to some of the surrounding industries. The attractive ones are taken to brothels where they stay until they die either from disease or simply exhaustion. The brothels are not there to satisfy a local need. They are a tourist attraction. Paedophiles from the industrial world come to spend a holiday in the child brothels. There are tour operators in western countries who advertise scarcely disguised and sometimes not at all disguised holidays for that purpose.

§ Some years ago some people in Thailand formed a group whose aim was to make the situation known. It quickly became clear that not all the authorities were likely to apply themselves to stamping out what was in fact a source of foreign money. The foul tourist trade needed to be tackled at its source and the place to campaign was not in Thailand but in the West. An organisation was formed which was called End Child Prostitution in Asian Tourism, which, in the fashion of our day, is now known by its initials—ECPAT. That group addressed itself to the international community and particularly to Western governments. The international community was horrified by what it heard and the response has now assumed the proportions of a crusade. The Convention on the Rights of the Child, adopted by the United Nations in 1989 and ratified by the United Kingdom, includes an undertaking by states party to it to protect children from sexual abuse— Article 19; to take all appropriate methods to end the exploitative use of children in prostitution or other 1614 unlawful sexual practices—Article 34; and to take all appropriate measures to end the traffic in children— Article 35.

§ In 1991 the United Nations Human Rights Commission appointed a special rapporteur, Professor Muntharbhorn, who recommended, among other measures, that the criminal jurisdiction of the countries of origin of the tourists should be extended to cover the acts committed abroad by their nationals. Incidentally, he also suggested the stationing of police personnel in countries where there is a known threat to children. That suggestion was adopted by Sweden in Bangkok and Manila. But that is not part of the proposal which is before the Committee this afternoon.

§ In 1992 the United Nations adopted a programme of action to combat the sexual exploitation of children, specifically providing that:

"special attention should be paid to the problems of sex tourism. Legislative and other measures should be taken to prevent and combat sex tourism, both in the countries from which the tourists come and those to which they go".

§ That initiative is also supported by UNICEF.

§ In 1991 the Council of Europe adopted a recommendation on trafficking in children which included the recommendation that states should adopt extraterritorial jurisdiction. On 31st May this year-only a fortnight ago—the International Labour Organisation issued a statement to the effect that Its Committee of Experts had endorsed that recommendation. I understand that the proposal was welcomed by a spokesman from the Thailand Government.

§ So the measure is being strongly urged by virtually all the relevant inter-governmental agencies. In fairness, some of the larger and more reputable tourist agencies are themselves taking action. The German travel agency, TUI, has now told its agents in Sri Lanka that it will cancel all contracts with hotels which permit the sexual abuse of children. And as so often in matters of human rights, much of the initiative has come from the non-governmental organisations. The concern is escalating week by week.

§ Last year, Anti-Slavery International awarded its annual award for a contribution to the fight against slavery to ECPAT. Now Anti-Slavery International, CAFOD, Christian Aid, the Jubilee Campaign, and the United Kingdom section of Save the Children Fund, have formed a coalition on child prostitution and tourism to co-ordinate the campaign. It is right that I should also acknowledge the information that I have received from the Action for Children Campaign and from the Josephine Butler Society.

§ Last September, the National Council of Women adopted a resolution to the same effect. The noble and learned Lord may know that only last week, following a resolution last year by the World Federation of Methodist Women, a massive petition from the methodist connection in this country was presented to the Government. The noble and learned Lord will of course have in mind that in another place an Early Day Motion containing the same proposal has received nearly 300 signatures.

§ Already Sweden and Germany have legislated to this effect and similar legislation has been introduced into the parliaments of France and Australia. That legislation 1615 was the subject of a Question for Written Answer on 3rd May by the noble Lord, Lord Avebury. In reply the noble Earl, Lord Ferrers, said that the Government had no current plans to extend the jurisdiction of British courts.

§ The Government's thinking on the subject appears in a letter written by the Minister of State, Mr. Maclean, to Sir Cranley Onslow, dated 7th February this year. He points out, first, that in Thailand there is no prescribed age of consent. It is taken as puberty, so some activities which would be unlawful in Britain are not unlawful in Thailand. This amendment takes account of that. It seeks to render an act punishable in Britain only if it would be punishable in the jurisdiction where it occurred.

§ Then he emphasises that, for constitutional reasons, Germany, which has been the subject of a previous reference, has no extradition laws comparable with our own. He argues that since Britain makes provision for extradition, it is better to deal with offences in that way because it is easier to gather evidence and call witnesses in the country where the offence takes place.

§ I have no quarrel with that if the authorities where the offence took place actually request extradition and if they are in a position effectively to enforce their own laws. But I believe that there are three answers to that argument. The first is to be found in the Minister of State's own letter. Earlier in that letter he writes:

"There are considerable difficulties because of the entrenched interest involved, including those of a number of corrupt police and other officials".

§ That appears to be confirmed by an article which appeared in the Evening Standard on 7th March which begins:

"Britons accused of seeking sex with children in Thailand have been able to buy themselves out of gaol with £10,000 bribes in a scandal which has left youngsters of only 10 available as prey for charter-flight tourists". The article goes on to allege that certain Britons who were awaiting trial had in effect been bailed in consequence of making unlawful payments, and had been permitted to leave the country with no intention of returning to stand trial.

§ The second answer to the argument of the Minister of State is that the Thai Government themselves appear to recognise the problem because in a recent statement, as I mentioned a moment ago, their spokesman said that they supported the arguments for extra-territorial jurisdiction in the countries from which the tourists come. It seems clear that there are those within the Thai Government who are very troubled over the situation, but they are under too many constraints to enforce the law effectively.

§ The third answer is that Thailand is not the only country where this form of tourism is to be found. It exists, for example, in the Philippines, and unless I am mistaken—the noble and learned Lord may assist me on this—this country has no extradition arrangements with the Philippines. It exists too in Sri Lanka, in parts of Latin America and Africa.

§ I understand that it will not always be easy to obtain evidence of offences, but there will be cases where evidence can be made available. It may be that this 1616 country may think it right to station a police officer in certain capitals in the same way as we station officials, for example, to control the drugs trade. Most particularly, the amendment proposes to make aiding abetting, counselling or procuring the offence, punishable here and so it would no longer be possible for tour operators and those with whom they are associated, to operate openly either here or abroad.

§ I would be surprised if there were any controversy in this debate as to the objective which the amendment seeks to achieve, and certainly not, I believe, from the noble and learned Lord, unless I have totally misjudged him. I accept that the Home Office has been exercising its customary caution as to the efficacy of the remedy which is proposed. The fact that the proposal has massive support throughout the international commun-ity is of course not conclusive. The Home Office requires to be persuaded. But the voices crying in the wilderness are no longer those who are proposing this measure, but the diminishing number who are resisting it.

§ Two hundred years ago this country led the world in the campaign to abolish the African slave trade and it still retains great respect in the international community as regards human rights. It would be a tragedy if in this campaign to end one of the cruelest and most foul forms of contemporary slavery, this country was ranged on the side of the Levite. I beg to move.

§ 5 p.m.

§ Lord Avebury
I was a little hesitant when I was first approached by ECPAT, the organisation which the noble and learned Lord, Lord Archer, has mentioned, took the lead in the campaign against sexual tourism. My hesitation was on grounds which he may find rather peculiar. I was hopeful that it would not be necessary to extend the jurisdiction of our law into acts committed by British citizens in foreign countries even though that may seem to be an argument which appeals to a lawyer rather than to a layman. It struck me that it would be a better course of action for us to assist the foreign governments which were doing their best to stamp out sexual tourism locally with whatever technical assistance we could, rather than to try to extend our jurisdiction into their countries.
I was finally convinced, not only by the arguments put to me personally by ECPAT, but by everything which I have read about this disgusting trade, that firmer measures had to be taken within our own law and that we are justified in doing that by some of the precedents for the extension of our jurisdiction which the noble and learned Lord, Lord Archer of Sandwell, has mentioned. To that I add not just the commission of torture by British subjects but now, as he has probably observed, the torture of British subjects by foreigners. There has been a very recent and important case in the courts where it has been decided that there is jurisdiction. There was the case of a man who alleged that he had been tortured in Kuwait. The courts declared that there was a case to answer on the ground that torture was an international offence and could be dealt with in the jurisdiction of any country. If one takes that view, the 1617 sexual exploitation of children which, in my opinion, is as nasty and vicious as torture, ought equally to be subject to extra-territorial jurisdiction of this kind.
The noble and learned Lord, Lord Archer, has by no means exaggerated the extent of that vicious trade. He mentioned that hundreds of Westerners are flocking to Sri Lanka to take part in the activities of sex tourism because they know that they will be immune from the law there. Although the Thai and Sri Lankan Governments have expressed their determination to strengthen their legal provisions against the exploitation of children in their countries, they are up against enormous vested interests, such as the tourist trade itself and, in the case of Thailand, corrupt local police who can be bought off by the managers of child brothels. That is why very few prosecutions are successful locally. I believe that one German tourist was convicted in Sri Lanka of very blatant activities with young children in a hotel somewhere down in the south. He was let off with a small fine and was allowed to leave the country. That was for an offence for which the maximum is a heavy custodial sentence. Again, the reason was that the courts did not wish to deter other people from visiting that country because of what they might read in their newspapers about the likelihood of such heavy sentences being imposed. Of course, the vast majority of Western tourists who visit Sri Lanka or Thailand do not engage in illegal activities.
Another aspect of this trade should be mentioned. I refer to the particularly despicable sale of Burmese refugee children across the border into Thailand. The noble and learned Lord, Lord Archer, probably knows about this. It has been dealt with by ECPAT. Refugees who are absolutely desperate to survive sell their children into slavery. In many cases the children find themselves in the brothels of Bangkok where they are lost for ever to their families.
It has recently been brought to my notice also that there is an unpleasant practice in Hong Kong to which the Committee's attention should be drawn. Children are brought across the border from mainland China to take part in sexual activities. When the brothel owners are caught they are not imprisoned, but the children are. In a recent case two children were kept in an adult prison in Hong Kong because they were required as potential witnesses in a case against the brothel owner. I could not believe that when I heard it. I could not believe that there could be a provision in the law of a British dependency which allowed children to be detained in an adult prison because they were required as material witnesses to an offence. I received a fairly long letter this morning from Mr. Alastair Goodlad, which I have not had a chance to study as yet, in which he makes out a justification for that law on the grounds that if those provisions were not in the statute there would be a flood of people coming across from mainland China. He said that the provisions were needed as a deterrent. I am sure that deterrents are necessary, but can we not provide them within the rules of natural justice and prevent witnesses from being detained in remand prisons simply because they may be required to give evidence in a later case?
1618 However, Hong Kong is not the main centre for the sex tourism about which we are speaking. The two countries which are principally concerned are Thailand and Sri Lanka, both of which are making every effort to stamp out this horrible trade. The Government have said that we should assist them in every way that we can in their own law instead of extending our jurisdiction in the way recommended in the amendment. I should like to ask whether further consideration might be given to my suggestion, made in correspondence with Ministers, that we should loan police officers to the forces of those countries. The places where such offences occur are well known locally. You do not need to look around very hard to find the particular hotels or beach resorts where child sex is available. Therefore, if police officers from Western Europe—from Britain or Germany— were stationed in those places, helping the local police with their inquiries among tourists, that might provide a substantial deterrent and help to close some of the brothels that indulge in this filthy trade.
We should also offer technical assistance, given what is known by the British police about the activities of paedophiles in the United Kingdom. Ministers have stated in correspondence that they are perfectly ready to do that if the countries concerned required it; in other words, if those countries took the first step by asking the British police for help we would be prepared to consider providing it. I am not sure whether that has been made known sufficiently firmly to the governments concerned. Given the expressed willingness of the Thai and Sri Lankan authorities to combat the trade, I believe that they would like to have such expertise available. We should make the offer without waiting to be asked.
In the meanwhile, the noble and learned Lord, Lord Archer, has given us an opportunity to do something which many other countries have already achieved. He referred to Germany in particular. I should like to mention Australia. I have recently sent to the Minister who deals with South-East Asia a letter that I received from my friend and colleague, Garrie Gibson, who is a Member of the Federal Houses of Parliament in Australia. He enclosed a copy of the Bill that was recently introduced there. If such a provision, which is in accordance with our legal traditions, can be introduced in Australia, it is possible to do the same here. I hope that the opportunity given to us this afternoon will be taken to extend our law and combat a disgusting and pernicious trade.

§ Lord Wilberforce
I strongly support the amendment that has been moved by the noble and learned Lord, Lord Archer. He made a very strong case. His reputation in connection with preventing the exploitation of vulnerable people and with their defence is well known both in this House and in the House of Commons. He deserves our support.
One has to ask two questions in this connection. The first is whether there is a need for an extra remedy above that which is already available under the law. As to the facts, I need not expand on them because the noble and learned Lord explained them and gave details of a very convincing character. ECPAT, the body which he mentioned, has been in existence for, I believe, three 1619 years and has collected a mass of totally convincing detail. It came to the notice of Anti-Slavery International, of which I have the honour to be a joint president. We decided to give our award of the year for 1993 to ECPAT for its work. That award is not given lightly. It is given only where the work has clearly been meritorious. Incidentally, the award was presented on behalf of our society by the noble Baroness, Lady Blackstone, thereby giving additional validation to the case made. The facts are not capable of dispute, and the noble Lord, Lord Avebury, added to them.
One must also question whether the existing law can deal with the situation. I suggest that the answer is, certainly not. The acts that are referred to in the amendment are committed abroad—in Thailand, the Philippines, Sri Lanka or wherever—and, naturally, prosecutions would be expected to take place in those countries. However, there are strong vested interests against attacking a trade which is lucrative and brings in tourism. Anybody who has had any connection with human rights legislation or with anti-slavery legislation knows that it is one thing to get legislation passed in a foreign country and quite a different thing to get that legislation enforced. A fortiori that is likely to be the case in this context.
Moreover, by the nature of things the offence is committed by a foreigner who is likely to have left the country by the time the wheels of justice have begun to move. Therefore, one is thrown back onto the possibility of extradition which, as the noble and learned Lord explained, may not be available. In any case, extradition takes a long time and is subject to difficulties. So much for the practical possibilities of prosecution in the country of the offence.
As regards prosecution in this country under the existing law, Members of the Committee will be aware that in order for it to take place some essential ingredient of the crime must have been committed here. If the whole crime took place abroad then, in the absence of special legislation, it cannot be prosecuted here. In many cases that would enable the production of advertisements or counselling to be dealt with here under a charge of conspiracy or something of that kind. That might be available but it would not attack the actual commission of acts in the country concerned by people who have gone there in order to engage in this horrible trade. Therefore, there are serious weaknesses at both ends; that is, in the country in which the crime is committed and in this country.
The second question is whether it is appropriate to make this type of crime an international crime. The noble and learned Lord, Lord Archer, gave instances of cases in which it is thought proper to make a crime capable of prosecution though committed extra-territorially. He mentioned the case of homicide with which Members of the Committee recently had contact in the case of war crimes. He also mentioned torture and some sexual offences. One might add as perhaps relevant that since 1873 offences in connection with the slave trade have been capable of prosecution though committed extra-territorially. A number of acts of a sexual character are capable of being dealt with under an 1620 Act of 1978. They include abduction, child stealing, rape and so forth. They are capable of being dealt with under the European Convention Against Terrorism but only as between countries which are parties to that convention, which are basically European countries. That is a pointer to the way forward; it is an analogy which can be drawn on. Other cases can be found in the books showing that in a suitable case a crime can be treated as a universal crime, dealt with by any country which has jurisdiction over its own nationals or persons resident in that country.
As the noble and learned Lord mentioned—it was added to by the noble Lord, Lord Avebury—a number of countries have announced measures to deal with the situation by legislation or otherwise. I would add to their list Canada and Japan, which have also announced measures, bringing to six the number of countries taking or planning action. We should be at the head of them. I have no hesitation in suggesting that it would be totally appropriate and right that we take measures as proposed to make this action generally an extra-territorial crime. I do not wish to enter into the details of the noble and learned Lord's amendment. It seems appropriate, if perhaps a little widely drawn, but that can be considered later.
To sum up, the amendment focuses on this evil, which is undoubted, widespread and probably increasing, and suggests a remedy which is appropriate to the nature of the case and perfectly consistent with the traditions of this country. I am happy to support it. I hope that the Government will take it on board.

§ 5.15 p.m.

§ The Lord Advocate (Lord Rodger of Earlsferry)
The noble and learned Lord, Lord Archer of Sandwell, has raised what everyone will agree is a most important matter. He has spoken of a form of trade and exploitation which is vile. I am sure that all Members of the Committee accept that that is so. The noble and learned Lord has proposed a particular remedy and, with his experience and knowledge, drawn from his contacts with various organisations, has painted in the background against which he makes that proposal.
He has, of course, recognised—as have other Members of the Committee—that the proposal is exceptional in that it is not in accordance with the usual provisions of United Kingdom law to provide for extra-territorial jurisdiction. That is not to say that there are not cases in which it has been provided for. Again, the noble and learned Lord has indicated a number of such cases and we have heard a full additional exposition from the noble and learned Lord, Lord Wilberforce. I accept that where in the past there has been an offence of such international dimension it has been recognised to be appropriate to breach the usual principle on extra-territorial matters and to provide for jurisdiction in such cases.
It is, therefore, not so much the issue of principle which has concerned the Government in this matter. We have reached the view, of which the noble and learned Lord is aware and to which he referred, that it would not be appropriate to make the extension here. That view was not reached simply on the basis of any general 1621 principle. The principle exists and one must examine the circumstances in which it is breached. Nonetheless, it is not on that matter that the Government have placed most weight.
We start from the position that where possible it is best that crimes committed in an overseas country are dealt with by the authorities and the courts of that country. I am sure that Members of the Committee would not dispute that position for one moment. It is almost a corollary that usually it is difficult for us to enforce law where the relevant events occur in a foreign country, in particular if it is a country such as Thailand or Sri Lanka. It must be remembered that our police and our courts do not have powers there and that usually the witnesses concerned do not speak English and so forth. Therefore, it is difficult for us to enforce laws where events take place overseas.
In that situation, what has been the Government's reaction to this undoubted problem? Of course, we have worked hard in international bodies, in particular in the UN General Assembly and the Commission on Human Rights, to combat the real evil of child prostitution. In 1992, for example, we supported the adoption by the commission of a programme of action for the prevention of the sale of children, child prostitution and child pornography. We have urged all countries to implement the measures that it contains. We have frequently raised the issue of child prostitution with the authorities of the countries where it occurs, in particular with the authorities in Thailand. We are a party to the Convention on the Rights of the Child, to which the noble and learned Lord, Lord Archer, referred, and we support the work of the Committee on the Rights of the Child in monitoring states' compliance with the provisions of the convention. Therefore, there is no lack of sympathy with what lies behind the amendment. However, the question is: what is the best way forward?
Reference has been made to extradition. But, the heart of the argument, described by the noble and learned Lord, Lord Archer, is that often the authorities in the countries where the problem arises are, shall I say, not enthusiastic in prosecuting the offences or in dealing with them. That lies at the heart of the matter. But that is a difficulty which really must be dealt with in those countries. We must use all our powers and arguments to bring home to those countries—be they independent countries with their own governments and so on—that it is their responsibility to clean up that filthy trade in their own countries. We must not allow any illusion to develop that by introducing the proposed provision, we should in any sense put an end to that filthy trade. That will be disposed of only when the authorities in those countries are really prepared to crack down on it. Therefore, in no sense must we get away from the position that it is for the authorities in those countries to act.
If they are prepared to act then, as has been said, the United Kingdom is prepared to extradite its own nationals for trial in those countries. Of course, that is a different position from certain other countries; for example, Germany, which, for its own historic reasons, does not do so. As the noble and learned Lord, Lord Archer, said, at present there is no extradition treaty 1622 with the Philippines and I can confirm that. But the main countries that we are considering at present are Sri Lanka and Thailand. The trade is at its worst in those countries. We contend that where the authorities are active, then extradition is the better and more workable option because a local trial is likely to be much more successful.
Equally, we are prepared to co-operate with the authorities of the countries concerned where they believe that a British holidaymaker has committed offences while there. For example, we are able to arrange for assistance to be given in terms of the Criminal Justice (International Co-operation) Act 1990 and we can take witness statements and further the investigations. Our police authorities give information about known paedophiles to the police of other countries. For example, the obscene publications branch warned the authorities in Thailand when a British paedophile was believed to be travelling to that country. Therefore, the Government and the authorities have been active.
But if the provisions of the proposed amendment were brought into effect in this country, what would be the practical results? As the noble and learned Lord, Lord Wilberforce, stressed, for the first time it would give jurisdiction to the courts of this country in that sphere. That would be the first step. But before a prosecution could be brought in this country, we should still need to have available the evidence necessary for a prosecution here. As Members of the Committee will be aware, we do not work, as some other countries do, partly by means of written procedures. On the whole, we have to have the witnesses present in this country or have some way of obtaining their oral evidence.
We are dealing with people who, as the noble and learned Lord, Lord Archer, explained, are often completely unwilling for their own reasons to co-operate. If they would not co-operate with a prosecution in their own country, they certainly would not be willing to co-operate with a prosecution in this country. There would be all the problems of language and so on. In other words, the practical difficulties of actually prosecuting in this country would be enormous and the Government believe that in practice, it would be unworkable.
Reference was made to the fact that certain other countries have introduced that legislation; and that is correct. But, for example, that legislation is in place in Germany and so far there have been three prosecutions under it. They all concerned sex offences committed by German nationals against children in Thailand. Every single one of those prosecutions failed due to lack of adequate evidence. That highlights the difficulties. The Government do not believe that the position would be any different in this country. If anything, it may be worse because of the form of our court procedures.
Members of the Committee have referred to the Australian legislation, but equally I know that some people have expressed doubts as to whether or not that legislation would prove to be of any real material use. For those reasons, the Government do not believe that the approach embodied in the amendment would assist materially in bringing to an end that vile trade. If 1623 anything, it would create an illusion of practical action which would only be an illusion. It would not really reach the heart of that particular abuse.
For that reason, the Government believe that the amendment is not acceptable. Of course, we shall continue to monitor what is achieved by the legislation in other countries. If it appears that something is being achieved, the Government will be prepared to reconsider the matter in the light of that information. But as advised at present, we do not believe that that is the way forward. Therefore, I ask the noble and learned Lord to withdraw the amendment.

§ Lord Avebury
Before the noble and learned Lord sits down, will he deal with the question that I asked with regard to a positive offer of help on the part of the British police? Instead of waiting for the Thai police or the Sri Lankan police to ask for help, will the Government consider making a positive offer to station British police officers in those countries in the places where those offences occur so that they could help their Thai or Sri Lankan counterparts?

§ Lord Rodger of Earlsferry
I beg the noble Lord's pardon; I should have referred to that matter. Although such matters seem simple in the abstract, one must remember that one is dealing with independent countries with their own authorities. We cannot give police assistance if it is not wanted. One must always bear in mind sensitivities in relation to such matters. I shall write more fully to the noble Lord on that matter and in regard to Hong Kong, about which the noble Lord also asked.

§ Lord Lester of Herne Hill
Perhaps I may raise two points. I listened very carefully to what the noble and learned Lord said. It seems to me that the argument put forward for leaving the law as it is would apply with equal force to those crimes which—I use a phrase of the noble and learned Lord, Lord Wilberforce—are international crimes; for example, trafficking in slavery or certain forms of international terrorism.
Is it not the case that one powerful argument for extending jurisdiction in this case is that it would have a certain deterrent effect on British people who indulge in that filthy trade because they would know that they stand some risk of being brought to book in the criminal courts of this country, even if they can go scot-free elsewhere?

§ Lord Rodger of Earlsferry
As I said in reply, I accept that there are certain international crimes which may occur in various places and which perhaps occur often in no particular jurisdiction—that is, the high seas or wherever it may be—where international jurisdiction is appropriate. I accept that. However, for the reasons that I have explained, we do not believe that it is appropriate in this case.
I accept that if there were a realistic prospect of prosecution and conviction, that may have the deterrent effect to which the noble Lord referred. However, for the reason that I have given, the Government do not 1624 believe that that would be so. Therefore, one would be at risk of putting on the statute book something which was really just a paper provision and nothing more.

§ 5.30 p.m.

§ Lord Williams of Mostyn
I support the amendment moved by my noble and learned friend Lord Archer of Sandwell. It seems to me that nothing has been said by the noble and learned Lord the Lord Advocate that deals with any of the points that have been raised. The noble and learned Lord asserts that in principle the Government would favour stamping out—indeed, he said it on a number of occasions—"this filthy trade". However, in the next breath he indicated that governments locally, whether in the Philippines, Thailand or Sri Lanka, are not particularly interested in stamping out the trade for various ignoble reasons.
Every one of the arguments marshalled by the noble and learned Lord the Lord Advocate is entirely apt to do away with the catalogue of offences which was accurately read out by the noble and learned Lord, Lord Wilberforce. However, there has been no answer of any quality of satisfaction to the point made by the noble Lord, Lord Lester. The mere existence of a criminal sanction has an extremely important deterrent effect. The Government are urging Members of the Committee to say that, under the legal jurisdiction which we apply extra-territorially, adult slaves must have a greater protection than those properly and accurately described by my noble and learned friend Lord Archer as child slaves. That seems an extraordinary conclusion for any government to be urging upon the Committee.
If the amendment is passed, it will not end the trade overnight. The position that I am respectfully putting forward is that it would be a start upon a very long journey. However, without that start, nothing will be done.

§ Lord Hailsham of Saint Marylebone
I find that I cannot remain wholly silent on the issue, but I hope to be very brief. I was totally convinced by the answer given by my noble and learned friend to the understandable feeling behind the support for the amendment. I should like it to be fully understood that not one word that I say diminishes in any way my disgust and horror at the existence of the appalling misuse of humanity which has been described and which has, naturally, excited the sympathy of Members of the Committee. However, I cannot see the smallest possibility of the amendment having the slightest beneficial effect whatever upon the putting down at any stage of such an appalling trade.
Admittedly, as the noble Lord, Lord Williams, said, there are cases where we accept extra-territorial jurisdiction for certain types of offence, including the more relevant one of slavery. The reason why that has passed through into our legislation is that, occasionally, there is the possibility of getting a witness into this country who will give evidence for the prosecution in such a case. That is particularly so in the case of slavery due to the fact that, very often, slavery takes the form of 1625 kidnapping people from one country and moving them over into another. Of course, the country from which such people are kidnapped is likely to co-operate.
Where the evil, as described, against a child takes place inside a country, you will not get the child over here in any circumstances. The only person to come here would be an officer of the police force of countries which are actively engaged in putting down such activities. The right course, if countries are sincere, is extradition. I should heartily support such a proposal.
However, the argument put on the other side is that in countries where such things take place either the authorities will not co-operate, in which case the whole situation would fail, or the police forces or persons who could give effective evidence for the prosecution are corrupt and would take bribes. If they are likely to take bribes where they are, they are not likely to come to this country and give evidence for the prosecution. We must use a little common sense. I support wholeheartedly the Government's attitude, although I detest the subject and its criminality as much as any Member of the Committee.

§ Lord McIntosh of Haringey
Paradoxically, the noble and learned Lord is arguing against his own Front Bench case. He is saying that we cannot rely on extradition as the alternative to what is proposed by my noble and learned friend's amendment. However, the Government are relying almost entirely on extradition.

§ Lord Hailsham of Saint Marylebone
The noble Lord misrepresents what I said. Of course, we can rely on extradition from countries where the authorities co-operate. But the argument put for the amendment is that either the government of the foreign country will not co-operate, in which case extradition is impossible, or the police officer who would be the only available witness to convict a man in this country would take a bribe so that he would not give evidence in the country where he is. Therefore, he would not come over to this country.
What I said was not against the Government's argument; it was in support of the Government's argument. The extradition option is in fact impracticable for the very reasons which the supporters of the amendment have put forward. For that reason, prosecution in this country is not an option either because the same considerations apply here.

§ Lord McIntosh of Haringey
With the greatest respect to the noble and learned Lord, I believe that the issue of whether the countries where this trade takes place are capable and willing to prosecute is a matter of fact. It has been well established by ECPAT that in most of the countries—certainly the most important ones— where the trade takes place, they are either unwilling or unable to prosecute effectively. Therefore, extradition from the country, which is what the Government relied on as their alternative, would not work.
The noble and learned Lord made a further point; namely, that if the governments of those countries are unwilling or unable to prosecute effectively, then, presumably, the police force is capable of being bribed and that its members would not come over to this 1626 country to give evidence. However, surely there are other people who would do so. It does not require the evidence of a Thai or a Sri Lankan police officer. There may be a number of people who could give evidence in this country. I repeat my conclusion that the noble and learned Lord is attacking the Government's case rather than that of my noble and learned friend.

Lord Archer of Sand well
Unusually, in the course of our debates on the Bill, I have to say that the reply of the noble and learned Lord the Lord Advocate disappointed me. I had genuinely hoped that the Government's consideration of such matters had developed a little as it went along, as so often happens in Home Office matters. I accept that the Government unreservedly support the objective behind the amendment. I also accept that the Government have not been idle in international deliberations on the matter. However, as the noble and learned Lord, Lord Wilberforce, said, the question is twofold: first, are the existing arrangements sufficient; and, secondly, would there be an addition to their effect if the amendment were passed into legislation?
As I understand it, the noble and learned Lord said that if we were to take extra-territorial jurisdiction it might weaken the resolve and the incentive of the governments in the countries where such acts take place to try to deal with them there. I do not follow that argument. For the life of me, I do not see why it should weaken their incentive; in fact, it might actually stiffen their resolution if they thought that other countries were sufficiently concerned to do something about it. In any event, as pointed out by the noble Lord, Lord Lester, and by my noble friend Lord Williams, if one looks at the examples given by the noble and learned Lord, Lord Wilberforce, that argument would apply equally to any of those examples. There would never be any attempt to address offences with an international dimension. I find myself totally unconvinced by that argument.
The second argument was that there would be difficulties in obtaining evidence. That was the argument addressed a moment ago by the noble and learned Lord, Lord Hailsham, whose views on this, of course, I take with great seriousness. First, it would not always be the case that evidence from the authorities abroad on acts which had taken place abroad would not be available in this country because we know that the Thailand authorities are not homogeneous on this. There are some authorities who want to address this foul traffic and I believe they would welcome it if we gave them this opportunity.
However, there are two other arguments, which I believe I mentioned at an earlier stage and which, if I may say so with respect, the noble and learned Lord did not take on board. The first is that much of this traffic originates with tour operators in this country—people who procure and counsel these offences. Although they sometimes carry out these offences by means of agents abroad, I believe there would be no difficulty as regards both them and their agents facing prosecution and punishment in this country.
My second point, which I understand might require some consideration, is that some countries, Sweden in 1627 particular, have stationed their agents abroad. That is not an expensive operation. It does not involve putting agents thickly on the ground in every city in the world. We know the cities where this trade goes on. We would need only one or two agents in each of these cities. That is exactly what we do now in relation to international drug trafficking. I have professional experience of people who have been convicted in this country through evidence obtained by our agents in cities where drug trafficking goes on. The Home Office might have thought about—

§ Lord Wilberforce
Will the noble and learned Lord add to that argument the presence in all these countries of non-governmental organisations and their representatives; for example, representatives of ECPAT and other people who work under the United Nations? One is not only confined to police or people stationed by, say, the Swedish Government. There are also many voluntary organisations who are vigilant and anxious to co-operate.

§ Lord Archer of Sandwell
I am most grateful to the noble and learned Lord. That is, of course, true and one can think of other kinds of offences —for example, environmental offences—where the evidence obtained abroad by non-governmental organisations has made prosecutions possible elsewhere. I am sorry that the noble and learned Lord, Lord Hailsham, said that we must use our common sense because I thought that was what we were trying to do. We are trying to add to effective control of this trade. Virtually the whole of the international community, the whole of the United Nations family, the Council of Europe and non-governmental organisations that have addressed this matter believe that they are using common sense. If they are all flying in the face of common sense, all I can say is that there is a large majority against common sense.
I have considered whether this might be an occasion on which it might be better to have second thoughts if we all undertook to read what has been said so weightily by so many Members of the Committee. But, on reflection, this appears to be a debate where, if I may say so with great respect, noble Lords have listened attentively and I should like to test the opinion of the Committee.

§ 5.44 p.m.

§ On Question, Whether the said amendment (No. 143) shall be agreed to?

§ Their Lordships divided: Contents, 86; Not-Contents, 126.

1628

Division No. 1
CONTENTS
Ackner, L.	Carmichael of Kelvingrove, L.
Airedale, L.	Chapple, L.
Archer of Sandwell, L.[Teller.]	Clanwilliam, E.
Ardwick, L.	Clinton-Davis, L.
Avebury, L.	Cocks of Hartcliffe, L.
Beloff, L.	Craigavon, V.
Blackstone, B.	Craigmyle, L.
Bonham-Carter, L.	Darcy (de Knayth), B.
Boston of Faversham, L.	David, B.
Brightman, L.	Dean of Beswick, L.
Bruce of Donington, L.	Desai, L.

1628

Donaldson of Kingsbridge, L.	Monkswell, L.
Donoughue, L.	Morris of Castle Morris, L.
Dormand of Easington, L.	Mottistone, L.
Eatwell, L.	Mulley, L.
Ennals, L.	Nicol, B.
Falkland, V.	Northbourne, L.
Foot, L.	Peston, L.
Glasgow, E.	Pitt of Hampstead, L.
Glenamara, L.	Ponsonby of Shulbrede, L.
Gould of Potternewton, B.	Rea, L.
Graham of Edmonton, L.	Redesdale, L.
[Teller.]	Richard, L.
Grey, E.	Russell, E.
Halsbury, E.	Seear, B.
Haskel, L.	Sefton of Garston, L.
Hollis of Heigham, B.	Sempill, Ly.
HolmPatrick, L.	Simon of Glaisdale, L.
Hooson, L.	Slynn of Hadley, L.
Hughes, L.	Stedman, B.
Jay, L.	Strafford, E.
Jenkins of Putney, L.	Taylor of Blackburn, L.
Judd, L.	Taylor of Gryfe, L.
Kennet, L.	Thurlow, L.
Kilbracken, L.	Tonypandy, V.
Lester of Herne Hill, L.	Tordoff, L.
Lockwood, B.	Turner of Camden, B.
Masham of Ilton, B.	Weatherill, L.
Mason of Barnsley, L.	Whaddon, L.
Mayhew, L.	White, B.
McIntosh of Haringey, L.	Wigoder, L.
McNair, L.	Wilberforce, L.
Merlyn-Rees, L.	Williams of Mostyn, L.
Milverton, L.

1629

§ 5.52 p.m.

§ [Amendment No. 144 not moved.]

§ Clauses 83 and 84 agreed to.

§ Lord Lester of Herne Hill moved Amendment No. 144A:

§ After Clause 84, insert the following new clause:

§ ("Amendment of Sexual Offences Act 1956

§ —(1) For section 1 of the Sexual Offences Act 1956 (rape) there shall be substituted the following section—

§ "Rape.

§ 1.—(1) It is an offence for a man to rape a woman.

§ (2) A man commits rape if—

(a) he has sexual intercourse with a woman who at the time of the intercourse does not consent to it; and
(b) at the time he knows she does not consent to the intercourse or is reckless as to whether she consents to it.

§ (3) A man who induces a married woman to have sexual intercourse with him by impersonating her husband commits rape.

§ (4) Subsection (2) above applies for the purpose of any enactment."

§ (2) In section 2(1) and 3(1) of the Sexual Offences Act 1956 (procuration of women to have unlawful sexual intercourse) the word "unlawful" shall be omitted.

§ (3) Section 1(1) of the Sexual Offences (Amendment) Act 1976 (which is superseded by this section) shall cease to have effect.").

§ The noble Lord said: This is a modest amendment. It is so modest that I cannot imagine that it will give rise to much debate or controversy.

§ In 1991 the Appellate Committee of this House decided that in modern times the supposed marital exception in rape formed no part of the law of England. In January 1992 the Law Commission, chaired by Mr. Justice Peter Gibson, as he then was, published a report on Rape within Marriage endorsing that decision by the Law Lords and recommending that the offence of rape should be redefined by omitting the word "unlawful" from the relevant provisions of the Sexual Offences Act 1956 and the Sexual Offences (Amendment) Act 1976. Before the Law Lords' decision the term "unlawful" had been interpreted to mean sexual intercourse only outside marriage.

§ The report is one of some 30 Law Commission reports, designed to cure anomalies and make the law simpler, which have yet to be implemented. The amendment is designed to give effect to the Law Commission's clear and convincing report. The Law Commission recommended that it was undesirable to 1630 leave on the statute book a provision that had been interpreted as mere surplusage and yet was a matter of real public importance. It wrote that it considered that to leave the statute book in this state would perpetrate on the face of the statute an unnecessary element of uncertainty about the meaning of the word "unlawful" in relation to other sections of the 1956 Act.

§ If the amendment were carried, subsection (1) would replace Section 1 of the 1956 Act with a new section taking in, except for the omission of the word "unlawfully", the substance of Section 1 (1) of the 1976 Act, which would be repealed by subsection (3). Subsection (2) would repeal the word "unlawful" in Sections 2(1) and 3(1) of the 1956 Act.

§ I have deliberately not included any of the other proposals of the Law Commission in this area lest they be regarded as controversial—too controversial to be acceptable to the Committee. If that is an excess of moderation then I plead guilty to moderation. I beg to move.

Earl Ferrers
The noble Lord, Lord Lester of Herne Hill, prefaced his remarks by saying that he could not see how there could possibly be any argument against his amendment. I could not help thinking of the number of times that I have heard noble Lords say in starry-eyed anticipation that their amendment would be accepted, only to find a catalogue of reasons presented by the hapless Minister to show that the amendment was not all that acceptable.
As the noble Lord said, this particular amendment deals with rape in marriage. For obvious reasons the Government have not been able to include within the Bill, despite its ever-increasing size, every worthy proposal for reform. We have consciously tried to avoid straying into the immensely controversial and difficult area of sexual offences laws.
The noble Lord has ventured into that terrain, with success and simplicity. In essence, as the noble Lord pointed out, the amendment merely confirms in statute what is already in law. It is an important declaration of Parliament's belief that a man who rapes his wife can expect no special treatment under the law.
It is open to question whether Hale's pronouncement that a man could not be guilty of raping his wife ever reflected the broad opinion of the general public. But it is beyond doubt that the relatively recent decision of the Judicial Committee of your Lordships' House on this matter encapsulated the modern day attitude of society.
The amendment will not change the law's practical effect, but it will represent an unequivocal statement of the value which Parliament places on a woman's right to be protected against the dreadful crime of rape. I am happy to recommend that the Committee should accept the amendment. I should like to congratulate the noble Lord, Lord Lester of Herne Hill, on having proposed such a firm, just and fair amendment.

§ Lord Lester of Herne Hill
I feel like a character in a Bateman cartoon: "The opposition Peer whose amendment was accepted by the Government". I am extremely gratified. It will not at all swell my conceit to think that I have contributed to the law of England for the first time as a greenhorn in this Chamber by 1631 removing one word from the statute book. I very much hope that the amendment will have the support of the Committee.
On Question, amendment agreed to.
[Amendments Nos. 144B and 144C had been with-drawn from the Marshalled List.]

§ Lord McIntosh of Haringey moved Amendment No. 144D:

§ Before Clause 85, insert the following new clause:

§ ("Accommodation in prisons

§ .—(1) No prison establishment shall hold a greater number of prisoners than is the certified normal accommodation, subject to subsections (2) and (3) below.

§ (2) A prison establishment may hold a greater number of prisoners than is the certified normal accommodation where—

(a) the additional number of prisoners in that prison is not greater than 3 per cent. of the certified normal accommodation; and
(b) the certified normal accommodation of that prison is not exceeded for more than a period of seven consecutive days in any three month period.

§ (3) The Secretary of State may, in exceptional circumstances, issue a certificate to a prison for a specified number of places, such that this section shall not have effect for a period of three months; and copies of any such certificate must be laid before both Houses of Parliament at the time of issuance and renewal, or as soon as possible thereafter.").

§ The noble Lord said: In rising to move Amendment No. 144DI should like to speak also to Amendment No. 144HA, which deals with the related subject of detention in police stations. The amendment deals with an issue of enormous importance because we consider the prison service part of the Bill. It concerns the fundamental issue of accommodation in prisons. As the Committee will know, there is a system of certified normal accommodation. The number of prisoners allowed in any prison is well established, not simply from the point of view of the number of beds which can be crammed in, but from the point of view of providing a civilised regime in prisons. I do not now talk about any of the other issues of discipline. The difference between myself calling a regime civilised and the Home Secretary calling it austere is not the subject of the amendment.

§ However, the amendment concerns the overcrowding in prison which is the biggest single threat to improvement in the regime in our prisons. The Woolf Report in 1990 and the debate on overcrowding in prisons, which took place in this House on 2nd February, pointed to the enormous risks if overcrowding in prisons continues, and continues to increase. The report pointed out the extent to which such overcrowding has increased. Although there have been additions to prison accommodation, in the past 16 months the prison population in this country has increased from 40,000 to 49,000. If the increase were to continue at that rate, it means that a new prison would have to be opened virtually every two weeks in this country. At the end of March of this year 500 prisoners were in police cells. That is a tragic failure if we remember that the objective of successive governments has been to eliminate the number of prisoners in police cells. That objective had been achieved: we got rid of prisoners in police cells only a short time ago. But now, 1632 because of the increase in the overall number of prisoners, we have slipped back to using police cells as emergency accommodation for prisoners.

§ It is not as though it is not possible in some parts of the prison service to prohibit overcrowding. The privatised prisons—in the Wolds for remand prisoners, in Blakenhurst for convicted prisoners—have provisions in their contracts which prohibit overcrowding. One might argue perversely that if the Government were to achieve their objective of privatising all prisons, and were to do so on the contracts which have been awarded in the Wolds and Blakenhurst, there could be no overcrowding in our prisons. I do not know whether that is the Government's objective; and, if so, in how many years they think that they might achieve it.

§ However, two factors are particularly disturbing about the current trend. The first is the increase in numbers. It is no good Ministers saying, as they do when it is suggested that this is a matter for the Home Secretary, that it is the courts which send people to prison not the Home Secretary. Of course, it is formally the courts which send people to prison. But it is conspicuous that the courts do so more readily when they are encouraged by the politicians. After the Home Secretary had made his notorious remark at the last Conservative Party Conference that prison works, the increase in the number of convicted people being sent to prison in the following weeks was quite remarkable.

§ It is a political responsibility on all of us, whatever the formalities may be, to ensure that the number of people sent to prison decreases. That is why throughout the consideration of the Bill, I and others have been arguing against the increase in the number of imprisonable offences, in the sure knowledge that if one has imprisonable offences someone will take advantage of the power to send people to prison, and will do so. That is the first issue: the increase in numbers, which has to be restrained.

§ The second issue relates to the quality of the prison regime when there is the overcrowding which now exists. I am sorry that the noble and learned Lord, Lord Woolf, is not able to be present this afternoon. However, the Woolf Report was absolutely explicit on that point. Lord Justice Woolf (as he then was) said that it is clear from the evidence that the conditions which exist at present in our prisons cause a substantial number of prisoners to leave prison more embittered and hostile to society than when they arrive. They leave prison in a state of mind in which they are more likely to reoffend. The real cost of overcrowding is an increase in crime. Any government which claim to be defending law and order and fighting crime cannot do so on the basis of a prison policy which does nothing effective to deal with the overcrowding in our prisons.

§ Lord Justice Woolf cited many factors which contributed to the riots of 1990 which he investigated. Nearly all of those stemmed largely, although not entirely, from overcrowding in prisons. Overcrowding means that officers have less time to deal with prisoners; workshop space is developed for use as accommodation instead of being used for workshops and for rehabilitation; and prisoners spend less time out of their cells. The result is resentment and anger among 1633 prisoners; and the result of that is an increasing inability of prison officers, many of whom really wish to get away from the oppressive regime of the past, to control the problems with which they are faced except on a day-to-day emergency basis.

§ I do not say that without evidence. If we consider the number of assaults on staff—it is the sharp end of what I describe—between 1990 and 1992 assaults on prison staff increased in our prisons by 56 per cent. The Chief Inspector of Prisons, Judge Stephen Tumim, made a speech to the Royal Society of Arts last week in which he stated that the law and order debate is driven by rhetoric and by prejudice. He criticised the Home Secretary's plans for more austere regimes by stating: Ultimately the belief that if you make prisons bad enough, men will not commit crimes, must be exposed as historically untrue".

§ It is the responsibility of Parliament to ensure that we do not continue to make our prisons worse, more ineffective and more likely to encourage prisoners to commit crime. The most effective way in which we can do that is by outlawing overcrowding in our prisons.

§ One recognises that that cannot be done overnight. One recognises that such a fundamental change in penal policy as we call for in the amendment is not capable of immediate remedy, unless we have, as some countries have, widescale amnesties for certain offences. Perhaps that would not be such a bad idea. For example, we might have an amnesty for those who are imprisoned as fine defaulters. However, leaving that aside, we recognise that outlawing overcrowding in prisons cannot be achieved immediately. Subsection (3) of Amendment No. 144D provides that, The Secretary of State may, in exceptional circumstances, issue a certificate to a prison for a specified number of places", in excess of the certified normal accommodation. We provide that the section should not have effect for a period of more than three months; and that notification to Parliament should be required at the time of issuance, renewal, or as soon as possible thereafter.

§ It is not an extreme amendment. The amendment calls for a stop to what has become an extreme deterioration in our prison service. I suggest that it is an amendment which the Committee ought to support. I beg to move.

§ Lord Donaldson of Kingsbridge
There is not a great deal to add to the arguments against overcrowding that we have just heard. Everyone knows them. They have been put again and again. I believe that 25 years is long enough and I wish to quote a sentence from remarks that I made in your Lordships' House in 1969: There is a prerequisite for any prison reform, and that is to get rid of overcrowding". Eighteen years later I made a further reference when I said: I believe that conditions in our prisons have deteriorated steadily and dangerously … There is one basic cause for this trouble; namely, prolonged overcrowding". On that date seven years ago, there were 393 prisoners in police cells. Now there are 500.
The story has been the same over the whole 25 years. There has been no coherent effort to deal with overcrowding and the reason is simple. There is only one way of dealing with it: with money. Unless we 1634 leave prisoners lying about for whatever period it is, we must spend the money in various ways, the most important of which is in staff. The worst effect of overcrowding is, as the noble Lord suggested, that with an overcrowded prison the facilities that are meant to make it, first, tolerable and secondly, useful, disappear and crumble. One way or another, the position becomes steadily worse.
When I said money, it does not necessarily mean building many new prisons. That has been done and has not produced the answer we wanted. I think we must go on building prisons because, on the whole, the existing ones tend to become unsuitable. The basic point is that we must have prisons correctly furnished, correctly built and correctly staffed. Only that will provide a satisfactory situation for the people in our prisons.
To have enough prisons will cost a great deal and I do not think we shall get the necessary finance. But let no one think that the problem will be cured in any other way. This is not the occasion to go into all the different things that could be done, but without proper spending, first, in relation to staff and, secondly, in relation to furnishing, buildings and providing facilities, matters will continue to become slightly worse, as they have for the past 25 years.

§ 6.15 p.m.

§ Lord Renton
I am sure that the Committee agrees with the noble Lords, Lord McIntosh and Lord Donaldson, that overcrowding of prisons is undesirable and to be avoided if possible. However, I stress the words "if possible". If the courts go on sending more and more people to prison, those people must be accommodated. Frankly, the amendment is a counsel of perfection, but it may be impossible for it to work. It allows the normal certified accommodation to be exceeded in certain circumstances, but to a very limited extent. Subsection (2) (a) refers to: not greater than 3 per cent. [more than] the certified normal accommodation". That could be a small percentage. Subsection (2) (b) is even tougher: the certified normal accommodation … is not exceeded for more than a period of seven consecutive days". If that had been the reality of the situation over the past 30 years or more we would not have been able to keep in prison the people whom the courts sent there.
I well remember that for quite a long time, under the Home Secretary, I had responsibility for prisons. We were worried by the fact that too many men were sleeping three to a cell which was built for one man. We had the biggest prison building programme in the early 1960s that there had been for 100 years. When my noble friend Lord Whitelaw became Home Secretary he found that the position was chronic and went into an even bigger prison building programme. I do not see how the Government can accept the amendment. I am sorry to have to say so, because I think it is well intentioned.

§ Baroness Seear
The noble Lord is right that prison overcrowding will continue as long as courts send people to prison. My noble friend Lord Donaldson is right in saying that if that is the position then only more spending will do anything about it. But surely the whole 1635 point is that two years ago we began to reduce the number of people going to prison. That is the way in which we wish to go. We thought that the Government had had a conversion on the matter and the numbers dropped quite dramatically. We should encourage the policy of courts not to send people to prison but to use the alternative methods of punishment which have been outlined again and again. In addition, we should take more positive action to see that people do not offend. There are a number of ways, with which the Committee are familiar, to encourage people who come out of prison not to re-offend. That can be through training, help with placing them in jobs and so on. After all, recidivism is one of the biggest causes of overcrowding in prisons and if we cut recidivism the problem will be much less. I support the amendment because it forces those concerned to look again at why there are so many people in prison. If the courts had to comply with the requirements of the amendment they would consider the two important ways of reducing numbers, using other methods of punishment and taking far more positive and active steps to stop recidivism.

§ Lord Renton
Before the noble Baroness sits down, I agree with her that the extra non-custodial sentences which Parliament has permitted to be used since the early 1970s have helped a great deal. The courts make pretty free use of them. But there are still many cases with which the courts feel they cannot deal properly and adequately without sending people to prison. So long as that is so, it is useless trying to impose conditions on the number of prisoners because we shall simply be interfering with the work of the courts in a way which would not be feasible.

§ Lord Avebury
The noble Lord says that the courts feel that they cannot do certain things, but that is a product of the climate of opinion which is created by Parliament and the Secretary of State. The Committee must recognise that there will be overcrowding, which will become worse. More police cells will have to be used for the accommodation of prisoners as a result of the attitude and the pronouncements of the present Home Secretary and of people like the noble Lord, Lord Boyd-Carpenter. They always harp on the few instances of persons released on bail who commit further criminal offences. The only way in which we shall stop that—as I tried to point out when the noble Lord, Lord Boyd-Carpenter, asked questions about it—is not to grant bail at all. Then no one can commit an offence while he is on bail.
In the relatively relaxed climate a couple of years ago, when bail was being granted freely by the courts, the number of prisoners on remand in prisons was much less than now. Perhaps the Minister will confirm that, but we see from the figures that the increase which has resulted in the present situation of so many prisoners in police cells—500 has been mentioned—is largely on the remand side, not people serving sentences.
Thus, although my noble friend is perfectly right that measures to counter recidivism are important and Parliament should concentrate on them, they will not have the fundamental effect on the prison population 1636 that we should like to see if overcrowding is to be altogether prevented. I am afraid that I have to agree with the noble Lord, Lord Renton, in one sense. We are talking in the amendment about something which is impossible to achieve unless the courts change their sentencing policy and unless the number of people held on remand is diminished. We must put people somewhere. It is the product of the cumulative decisions made by the courts throughout the country and the prison population has to be accommodated in the prison accommodation that is available.
We face, and have faced, a difficulty, as my noble friend Lord Donaldson pointed out. I can remember even further back than he mentioned, when the prison rules were first introduced in their present form. We talked in Rule No. 1 about enabling prisoners to lead a good and useful life. That was supposed to be the main purpose of incarcerating them. That of course meant, as everybody will concede, that the accommodation in which they were to be confined should be reasonably civilised. It never has been. We have never arrived at the point where there has been sufficient reasonably modern accommodation to satisfy the whole of the prison population.
The point that I was about to make is this. The fluctuations in sentencing policy and attitudes, for example, to the long-term imprisonment of people who commit serious offences alter with every successive Home Secretary and every successive government, so that the amount of accommodation that is needed to satisfy what the courts do goes up and down almost like a yo-yo. I do not mean quite so frequently as that, but since prison building essentially calls for a long-term capital investment programme, you cannot suddenly change course and increase or decrease the amount of accommodation to satisfy the changes of direction in the courts, which are in turn the product of the policy of the current Home Secretary or his Administration. Unless one is willing to spend an enormous amount on over-capacity to meet the maximum that any future Home Secretary may indirectly decree to be the prison population, we shall never get to the position where we can lay down, as the noble Lord, Lord McIntosh, suggests in this amendment, a fixed percentage by which the accommodation cannot be exceeded.
If we were to pass this amendment—much as I would like to do so—we should be deluding ourselves and the public into thinking that there is a simple solution to what is an immensely complex and unwieldy problem. It is a problem that has been made far worse by the current Home Secretary in his policies of long imprisonment for certain offences, a reduction in the amount of bail and hitting very hard a variety of offenders. We are making the situation worse in the current Bill by adding to the categories of conduct which have hitherto been dealt with by the civil courts, as the noble Lord, Lord McIntosh, reminded us, but which are now to be covered by the criminal law. Unless we address all those other problems, I am afraid there is no use in our declaring piously that we want to limit the amount of overcrowding in our prisons.

1637

§ Lord Boyd-Carpenter
The noble Lord, Lord Avebury, was good enough to refer to the fact that I have on occasion raised in this Chamber the question of the release of prisoners during times of sentence. The noble Lord is quite right in drawing attention to that. I have to admit that I have been concerned, and am concerned, that one undermines the deterrent effect of prison sentences if it becomes generally known among those who are sentenced, or are liable to be sentenced, that they are in fact likely to be released by a kindly Home Office and will not serve the sentence which the judge has imposed upon them.
The noble Lord has raised a very serious point. If he is going to say, "We haven't enough room in our prisons for prisoners actually to serve the sentences that the courts have imposed on them", then we really are abandoning a great deal of the deterrent effect of the prison system. I suggest to the noble Lord that it is a most dangerous argument to say, "It doesn't matter, because you may be sentenced to five years' imprisonment but you will be released after a few months", and therefore there will not be the congestion. It is a most dangerous argument. If we have to choose between sabotaging—for that is the right expression —the effect of a prison sentence, or overcrowding in prisons, then unpleasant and disagreeable as overcrowding in prisons is, I think it is the lesser evil.
It is certainly the fact that some prisons have been overcrowded and are likely to be so for years to come. But one of the reasons is that prison sentences have lost a good deal of their deterrent effect because of all the releases that have taken place. Therefore, paradoxically, a good deal of the additional pressure on space in prisons results from increased knowledge among the criminal classes that sentences are not likely to be served in full. That is the problem which the noble Lord, far from facing, appears to run away from.
I agree that it is a pity that prisons become overcrowded. It is very hard on good prison staffs if they have to operate under those conditions. On the other hand, I commend very much the efforts that the Government have made to increase the availability of prison accommodation. It is certainly necessary to do that, highly expensive though I am afraid it is. It is no use complaining of the high expenditure and, as a result, high taxation. One has to accept that creating additional prisons is very expensive.
I am afraid that the answer must be that we have little option but to continue as at present. We should very firmly reject the idea of the frequent and easy release of persons who are sent to prison. They no doubt expect it; they are no doubt therefore more likely to commit offences because the deterrent effect will be less. Simply to release them is too easy a way out. This sounds a brutal thing to say, but I think that it is true: if it becomes known that prisons are uncomfortably overcrowded, in an odd sort of way that will increase rather than decrease the deterrent effect of prison sentences. That is probably the direction in which the solution to this problem lies.

§ Lord Donaldson of Kingsbridge
Perhaps I may make just one remark. Overcrowding produces a better 1638 prison for the bad prisoner, in that he gets his drugs and the rest of it. It is impossible to run a prison properly when it is overcrowded. The idea that he is frightened and is sure that he will not get out is not relevant.

§ Lord Boyd-Carpenter
I do not accept that it makes it easier for a prisoner to get his drugs. It does mean that the prison staff have to exercise greater firmness and austerity in controlling the admission of drugs. That, I am afraid, we must ask them to do.

§ Baroness Gould of Potternewton
Before intervening in this debate I declare an interest in that I act as an adviser to the Prison Officers' Association. I do not wish to get too involved with the details of sentencing, which is obviously extremely relevant to the discussion, and particularly in respect of people who are on remand. The fact that 70 per cent. of women on remand and 50 per cent. of men do not subsequently get a custodial sentence has little to do with any deterrent but has much more to do with the sentencing within individual courts.
We have also seen during the passage of this Bill that there will be an increase in the number of people liable to receive custodial sentences. When we relate that to the growing number of fine defaulters in prison, there is bound to be an increase in the prison population. That makes me wonder whether the projected figures for the prison population by the turn of the century are somewhat overestimated. The Home Office estimates that there will be 55,000 people in prison in 1997. The noble Earl, Lord Ferrers, during the debate in February, said that there would be 56,600 prisoners—a very precise figure—by the year 2001.
This new clause is important because it goes some way, and only some way, to implementing the fundamental recommendation made by the Woolf inquiry. It is a very flexible amendment. It is not over-restrictive, as has been suggested. However, it requires the limits on capacity to be maintained. Limits are in fact laid down but they are not kept. Such limits should be reviewed constantly.
The Government say that they are committed to reducing overcrowding. The prison service states that the concepts of fairness, justice and respect to individuals to which it works are particularly relevant to the physical environment in which prisoners are held and the way their needs are met. Those are fine words. Unfortunately, owing to overcrowding and the dramatic increase in the prison population it will not become a reality. That is a great pity. It could have been possible. As the noble Baroness, Lady Seear, said, there has been a change of direction in the management of the prison population within the past two years and a change of attitude by the Home Secretary.
During the debate in February, I referred to Leeds prison, which has a capacity of 814 prisoners. In February the prison population there was 1,129. Now the figure is 1,155, which represents 42 per cent. overcrowding. At the end of March this year 11 local prisons were overcrowded by 40 per cent. We have seen a growth—we were promised that it would not happen —and not a reduction in the number of prisoners sharing 1639 a cell designed for one person. In February the figure was 7,300; it is now over 8,500. There are no guarantees at all that the numbers will not continue to rise.
The Woolf Report also stated that one of the key causes of the prison riots of 1990 was the fact that dangerous prisoners, because of overcrowding, were being placed in accommodation of a lower category than was merited. It may be that some Members may prefer overcrowded prisons to releasing such people from prison. In fact, that very bad combination of overcrowding and dangerous prisoners means, as has been said so often before, that prisons become schools for crime.
Those sentiments were echoed at the annual conference of the Prison Governors' Association, which called for the introduction of a legal limit on gaol overcrowding. It was felt that that would go some way to averting the risk of further riots in the face of the explosion in prison numbers.
Another very important factor, mentioned by my noble friend Lord McIntosh, concerns assaults on prison officers. The more overcrowded the prison, the more chance there is of assaults on prison staff. Between May 1990 and May 1992, such assaults increased by 50 per cent. Surely nobody can feel that that is acceptable.
Against the backdrop of an increasing prison population, there has been a reduction in the number of prison officers by 4,000. It may be that the prison officers will have to do their job a little better, as has been suggested, but a reduction in their numbers makes that extremely difficult to do.
I believe that if the Government accept this clause it will show that they have not only listened to people working in the field but that they have listened to the prison governors and the prison officers; that they have considered the views of the current director-general and the Chief Inspector of Prisons and the recommendations of the Woolf inquiry; and that they are genuinely committed to removing the horror of overcrowding in our prisons and its consequences.

§ 6.30 p.m.

§ Lord Elton
Overcrowding in prisons is an evil which should be tackled. Overcrowding does not act as a deterrent, as my noble friend Lord Boyd-Carpenter would wish. If it did, we would have seen a dramatic reduction in the prison population a long time ago. As the noble Lord on the other side of the Chamber said, it leads to the greater availability of drugs, despite the best efforts of prison officers, whatever their strength. It leads not only to demoralisation but to riots and destruction of prison property and to an increase in crowding. However, the amendment is not the way to tackle the problem.
Frequent and easy release, referred to by my noble friend, is perhaps not the best description of what goes on. Remission is not used as a means of reducing the prison population. It is used as a means of encouraging good behaviour among prisoners, without which it would be impossible to control their behaviour. Parole is not a means of reducing the prison population. It is a means of introducing prisoners to a life at liberty, so that 1640 if they are not fit for it they can be brought back in. If it were to be abandoned, serious and violent offenders would be released cold into the community with much more damaging results. Licence is used on very few occasions to end a life sentence when it no longer serves any detectably useful purpose.
There are two ways of reducing the prison population, both within the reach of the present administration at, I believe, no great cost. One way is prevention; the other is a change in the particular sentence. The preventive way is a simple one which I have brought to this Chamber's notice on a number of occasions. It means engaging young people in constructive, useful, disciplined and educative things to do-young people who otherwise would have no such things to do and whose vital spark of enthusiasm, energy and inquiry which God has given to each of us would be turned to destructive purposes, thus adding to the very large number of young people in our prison population. It is a tragedy which could be stopped by a greater involvement of the voluntary sector in particular in providing for them. I welcome the beginnings of a policy in the Home Office in the form of the Care in the Community partnership. But that needs to be multiplied tenfold. It costs an invisible fraction of the amount of money that custody costs. And custody is the alternative.
The other matter is more controversial. I have raised it in the Chamber previously. I bring it back and again draw it to the notice of my noble friend. At present it is an imprisonable offence triable either way to handle goods-that is, to shoplift goods-of a value of under £100. It appears that about 10 per cent of Crown Court time is taken up with hearing that kind of trivial case before a jury. The noble Lord, Lord Avebury, is right to say that the real problem is in the remand wings. It is there because the courts are chock-full with business, some of which in my view is not necessary. Because the courts are full of such business, remand prisoners cannot be taken out of the remand wings to be tried and released or put into the rest of the prison. Remand prisoners throw a far greater burden on the prison staff than convicted prisoners because they have many more privileges, do not wear prison uniform and have visits and mail in quantities which are not available to the rest of the prison population.
If the courts could be relieved of 10 per cent. of their business, it would have a dramatic effect on the remand wings. It would have a dramatic effect on the ratio between prisoners and prison staff. I believe it would have a dramatic effect on the morale within the prison service and could lead to a reduction of the instability that exists within it.
What is the price we pay? It means that the person who is charged with this offence should not have the right to go before a jury except on appeal-at least not a right to go to the Crown Court but to be heard by the magistrates. The principal objection to that is the possibility of error. I once walked out of a shop without paying for something, realised what I had done 50 yards later, went back and paid for it. I see that it is possible for things to be taken in error. I trust a magistrate to be able to judge whether or not I had done it with malice 1641 aforethought, if I had been apprehended. However, it is said that the risk of the loss of one's character by being put in prison for such an offence is such that there must be a right to jury trial.
The simple answer to that is to make this relatively trivial offence not imprisonable on the first offence, and tried only one way. That would cost nothing, and I believe it would save a great deal of congestion in the remand wings and would do a great deal for our prison service. The big issue, to my mind, is getting our young children and grandchildren out of situations where they have nothing with which to employ their divine energy and to turn that to constructive use. That is something on which adult volunteers can be gladly and profitably used up and down the country. That is not a subject for legislation, but it would be far more effective than this amendment.

§ 6.45 p.m.

Earl Ferrers
These two amendments of the noble Lord, Lord McIntosh of Haringey, have really stimulated quite a debate on prisons and the prison establishment. That has been of interest. I shall refrain from following my noble friend Lord Elton down the path of saying that there should be alternative methods of dealing with certain offences in court. I know this is something he feels strongly about and he is quite right to take the opportunity of mentioning it, even if it is a little far removed from the amendments we are discussing.
The noble Lord, Lord McIntosh, told us that he wants to prevent the overcrowding of prisons, and so did the noble Lord, Lord Donaldson of Kingsbridge, together with the noble Baroness, Lady Gould of Potternewton. My noble friend Lord Elton also agreed with them. The trouble is that the amendment put down by the noble Lord would actually restrict the prison service in its task of keeping in custody those who have been committed by the courts. It would create a risk that more prisoners would be locked into police cells. It would impose extra operational burdens on remand centres and local prisons, which receive prisoners directly from court. Obviously, we do not want to use police cells for prisoners: nobody does. Conditions in the police cells are not in some cases as good as those in prisons, and the use of police cells by the prison service is expensive. It also distracts the police from their proper duties.
Most training prisons operate at or below their certified normal accommodation. On these prisons, the suggested new clause would therefore have little effect. Most of the overcrowding in prisons happens in local prisons and fluctuations in their populations depend very much on the decisions of the courts. In many cases, prisoners cannot be moved away from these prisons because of the need to hold them close to the courts at which they have to appear.
As well as the certified normal accommodation, each establishment has an operational capacity. This is the number of prisoners which an establishment can hold without rendering itself liable to serious risk to good order, security and the proper running of the planned regime. In the case of many local prisons the operational 1642 capacity is higher than the certified normal accommodation; and that is authorised by the appropriate prison service area manager.
The noble Lord's amendment would allow occupancy of up to 3 per cent. above the certified normal accommodation, as he has explained. However, this would be considerably lower than the operational capacity in many local prisons and the amendment would therefore reduce the amount of prison accommodation which is available. It would not of course have any effect on the number of prisoners who have to be accommodated somewhere, who would then of course have to be sent to police stations. The noble Lord, Lord McIntosh, said there were 500 prisoners in police cells. I am sure he did not mean to be misleading, and of course there is no reason why he should know the actual figure. But the actual figure today is only 121. The extraordinary part is that the noble Lord wants to see fewer prisoners in police cells, but promptly puts down an amendment which would have precisely the reverse effect and which would actually increase the number of prisoners in police cells.
If the local prisons were allowed to exceed their certified normal accommodation by no more than 3 per cent., as suggested, the capacity of local prisons would drop by 3,600 on present operational capacity. Where would those people go? They would go into police cells. If the operational capacity had been held at 3 per cent. above the certified normal accommodation, as suggested by the amendment, on 13th May there would have been 2,700 prisoners in excess of capacity who would have been at risk of being held in police cells. So when the noble Lord, Lord McIntosh, says, "We want to have fewer people in police cells: let us agree to this amendment", all I can say is that if the Committee were to agree to this amendment, the effect would be precisely opposite to that which the noble Lord intended.
The noble Lord, Lord McIntosh, referred to prison overcrowding, and I think he tried to lay the blame on the Government. He said, "We must outlaw overcrowding". The noble Lord, Lord Donaldson of Kingsbridge, said that 18 years ago he had said that we must get rid of overcrowding. He also said, "There is no coherent effort; there is only one way to do this and that is to spend money". Those are the noble Lord's words. Since 1984, 20 new prisons have been built, with another one due to open this month. This has been the biggest increase in the provision of prison building since Victorian times. It has provided over 11,000 new places at a cost of £12,000 million, and some 8,000 new places have also been built at existing prison establishments since 1979.
When the noble Lord, Lord Donaldson of Kingsbridge, says "Spend more money", all I can say to him is, "We have". In addition to these prisons, the Home Secretary has announced plans to build six more prisons. The first two of them are planned to open in 1997–98 and will provide a further 1,200 places. The other four will provide 2,400 more places; by the year 2000. There will also be at least 2,000 more places built at existing establishments. Therefore, with the greatest respect to the noble Lord, Lord Donaldson, it does not 1643 do simply to say that we must spend more money. We have actually spent more money and we have done a very great deal towards helping the situation.
Of course it is undesirable to send people to prison if it is not necessary; and much is done through community service to enable people to serve their penalties within the community. That has been a very important part of the regime for dealing with offenders in the recent past. But prisons have to be a proper option, and I agree with my noble friend Lord Renton that they have to be there when the courts want to send people to prison. They must be able to send people to prison when it seems to them necessary.
I am bound to say this to the noble Baroness, Lady Seear, and to the noble Lord, Lord Avebury. Many people are in fact fed up with courts who refuse to use the powers available to them and who, in their view, keep letting people off with inadequate penalties. People have to be allowed to go to prison if they have offended. There is no point in saying "In order not to have so many people in prison, let us not put into prison those who ought to be in prison". Crime has to be dealt with.

§ Baroness Seear
I am sorry to interrupt the noble Lord, but he really has not dealt at all with the point that I made. Two or three years ago, following a previous White Paper, there was a big drop in the number of people being sent to prison. That was the policy that was then advocated. What has not been explained is why that has gone into reverse. The only explanation that some of us can find is that since then we have had a change of Home Secretary. If that is not the reason, why is it that, having reduced the numbers in prison following a government policy so to do, they have now gone up again?

Earl Ferrers
The noble Baroness knows only too well that whether people are sent to prison or are given any other form of penalty is a matter for the courts. What Parliament has done is to make available certain options for the courts to use. If the number of people in prison has gone down, there may be a variety of factors to explain that. What the courts have described as being the correct penalty may be one of them. The types of offences which have occurred may be another one. However, it is wrong to say or to insinuate that the Home Secretary has the ability to ensure that people go to prison. He does not.

§ Lord Avebury
But the Home Secretary has the power to determine the length of time that a person remains in prison because he has the power and duty to determine the tariff. In every case he is increasing the tariff. I know of two cases. In one he is doubling the tariff from 10 to 20 years. Ten years was the tariff suggested by the trial judge. Twenty years is the amount laid down by the Home Secretary. In the other case, 15 years was the tariff set by the trial judge. Twenty-five years is the amount laid down by the Home Secretary. The Home Secretary is enormously lengthening the time 1644 that people spend in prison although he does not have any effect on whether or not they go there in the first place.

Earl Ferrers
The noble Lord is referring to those few cases which are life sentence cases and ones in which my right honourable friend has by law a strict involvement. But no one-not even the noble Lord, Lord Avebury-would say that those cases are the cause of overcrowding in prison. Where crime has increased —and it has increased over the past years even though it may have been decreasing more recently-it is a matter of great anxiety, and Parliament and the Government have to make provision for it. What we have done is to make provision in extra building and extra prisons.
One of the reasons for that is the point that has been expressed for ages that the prison estate was not big enough and the conditions were not good enough. Those problems have been addressed. All I am trying to say, in distinction from what the noble Baroness, Lady Seear, and the noble Lord, Lord Avebury, said, is that there are plenty of people in this country who are fed up with criminals and fed up with being burgled, mugged and so on. They expect the courts to send those people to prison and not to allow them to have community service. Whether the courts do or not is a matter for them, but the fact is that those establishments have to be made available.
After that complete diversion from the facts of the amendment, all I am saying to the noble Lord, Lord McIntosh of Haringey, is that if the Committee were to accept his amendment, it would result in precisely the reverse effect of what he wishes to do. It would result in more prisoners in police cells.
I would find difficulty with Amendment No. 144HA. This is only a technicality but the noble Lord referred to a section of the Imprisonment (Temporary Provisions) Act 1980 which expired in 1992. From that section he seeks to remove words which were never actually part of it, even when it was in force. So even if the new clause were enacted, it would mean nothing and have no effect whatever. I congratulate the noble Lord on having devised such a curious and obtuse amendment.

§ Lord McIntosh of Haringey
A brilliant answer in the last sentence. In everything else the Minister is almost entirely wrong. The conclusion I am coming to is that the Prison Department of the Home Office should be merged with the Department of Transport. The Department of Transport, when it sees traffic congestion, has only one solution-to increase road capacity. The years of experience showing that increasing road capacity only increases traffic demand and simply transfers congestion elsewhere-and indeed increases congestion-has never sunk in at the Department of Transport. It still does not have the idea that one has to deal with traffic congestion directly rather than increase capacity.
That seems to be the attitude of the Home Office towards prison capacity. It can see that there are too many people in prison; it can see that the prisons are overcrowded; it can see that because the prisons are overcrowded, they are not doing the job that they should 1645 be doing. It is told so by the Chief Inspector of Prisons, by the noble and learned Lord, Lord Woolf, by its own Director General of Prisons and by everyone who knows anything about prisons, including the noble Lord, Lord Elton. Yet it persists in the view that the only solution is to build more prisons.
I suggest that the Government's response to this amendment is faulty in three major respects. First, it is faulty in arguing that it is not the business of government to determine how many people go to prison. I quote the noble and learned Lord, Lord Woolf, on 2nd February: As a result of a change of climate, the importance of avoiding custody when it is appropriate to do so has been forgotten. A factor which has undoubtedly contributed to this change of climate is that the Government, who give a lead in these matters, have abandoned preaching the need for restraint in the use of prisons. The message which is being received loud and clear by all those involved, in particular magistrates throughout the country, is that it is necessary to get tough with crime. It is that policy which is resulting in the bulk of the increase in the population of our long-suffering local prisons".—[Official Report, 2/2/94; col. 1276.] I insist in my view, which has been supported by a number of noble Lords, that it is within the power of the Government to do something about the prison population.
The second argument which the Government use, and which a number of noble Lords, including the noble Lord, Lord Donaldson, have used, is that the problem is the expense of the alternative. Again I quote the noble and learned Lord, Lord Woolf. He said that imprisonment is an immensely expensive process and, should be reserved for those, and only those, for whom it is appropriate. It needs to be reiterated repeatedly"— that is tautology— that if prison is used when it is not necessary, then it is frustrating, not furthering, the objectives of the criminal justice system. It is an expensive way of making the criminal justice system less effective".—[Official Report, 2/2/94; col. 1277.] All the evidence we have is that the expense of putting more and more people into prison is not the expense of building new prisons but the expense of having people in prison who should not be there.
The third way the Government argue that my amendment is unsatisfactory is in the Minister's accusation that its effect would be to put more people in police cells. The amendment is quite explicit. It says, as the Minister recognised, that the control should be that prisons, including local prisons, should not hold more than 3 per cent. above the certified normal accommodation. But it provides in subsection (3): The Secretary of State may, in exceptional circumstances, issue a certificate to a prison for a specified number of places, such that this section shall not have effect for a period of three months; and copies of any such certificate must be laid before both Houses of Parliament". The effect would be not that there would be an immediate drop in the prison population. We clearly cannot expect that. The effect would be that the excess prison population would be drawn constantly to the attention of Parliament, and it would be the Home Secretary's responsibility to do so. I suggest that the amendment, which puts that duty on the Home Secretary and brings the fundamental issue of overcrowding in prison before Parliament on every 1646 occasion when it becomes necessary, is a valuable addition and does not have the effect that the Minister suggests. I wish to take the opinion of the Committee.

Earl Ferrers
The noble Lord made an astonishing statement. He said that if the amendment were to go through, it would draw Parliament's attention to the overcrowding in prisons. Yet at the same time he has castigated the Government for building more prisons. What is the point of drawing to the attention of Parliament the condition of overcrowding if when we provide more prisons the noble Lord says that we are wrong to do so? The noble Lord said that the only reason why prisons are full is. that the Government have to get tough on crime. He may have forgotten that Mr. Blair said, "Tough on crime and tough on the causes of crime". Does the noble Lord disagree with that?

§ 7 p.m.

§ Lord McIntosh of Haringey
I am delighted to have the Minister taking part in the Labour Party political process. He knows very well that I agree with Mr. Blair on that. What I am objecting to as regards the Government's policy is their proposition that only an increase in the number of prisons can solve the problem. That is the situation in which they are finding themselves because they have reversed the beneficent trend of the past three years whereby there has been a deliberate attempt, following the Woolf Report, to decrease overcrowding in prisons and to decrease the prison population. Because they have moved away from that as recently as within the last nine months, they believe that the only solution now is to build more prisons. I suggest to the Committee that the solution both from the point of view of expense and of the effectiveness of the penal system in this country, is that we should make another deliberate attempt, as we did three or four years ago, to reduce the prison population. Although that cannot be done at a stroke, what can be done is to impose an obligation on the Home Secretary to bring this matter before Parliament on every occasion when he seeks to breach civilised standards of prison accommodation.

§ 7.1 p.m.

§ On Question, Whether the said amendment (No. 144D) shall be agreed to?

§ Their Lordships divided: Contents, 45; Not-Contents, 120.

1629

Division No. 1
CONTENTS
Ackner, L.	Carmichael of Kelvingrove, L.
Airedale, L.	Chapple, L.
Archer of Sandwell, L.[Teller.]	Clanwilliam, E.
Ardwick, L.	Clinton-Davis, L.
Avebury, L.	Cocks of Hartcliffe, L.
Beloff, L.	Craigavon, V.
Blackstone, B.	Craigmyle, L.
Bonham-Carter, L.	Darcy (de Knayth), B.
Boston of Faversham, L.	David, B.
Brightman, L.	Dean of Beswick, L.
Bruce of Donington, L.	Desai, L.

1628

Donaldson of Kingsbridge, L.	Monkswell, L.
Donoughue, L.	Morris of Castle Morris, L.
Dormand of Easington, L.	Mottistone, L.
Eatwell, L.	Mulley, L.
Ennals, L.	Nicol, B.
Falkland, V.	Northbourne, L.
Foot, L.	Peston, L.
Glasgow, E.	Pitt of Hampstead, L.
Glenamara, L.	Ponsonby of Shulbrede, L.
Gould of Potternewton, B.	Rea, L.
Graham of Edmonton, L.	Redesdale, L.
[Teller.]	Richard, L.
Grey, E.	Russell, E.
Halsbury, E.	Seear, B.
Haskel, L.	Sefton of Garston, L.
Hollis of Heigham, B.	Sempill, Ly.
HolmPatrick, L.	Simon of Glaisdale, L.
Hooson, L.	Slynn of Hadley, L.
Hughes, L.	Stedman, B.
Jay, L.	Strafford, E.
Jenkins of Putney, L.	Taylor of Blackburn, L.
Judd, L.	Taylor of Gryfe, L.
Kennet, L.	Thurlow, L.
Kilbracken, L.	Tonypandy, V.
Lester of Herne Hill, L.	Tordoff, L.
Lockwood, B.	Turner of Camden, B.
Masham of Ilton, B.	Weatherill, L.
Mason of Barnsley, L.	Whaddon, L.
Mayhew, L.	White, B.
McIntosh of Haringey, L.	Wigoder, L.
McNair, L.	Wilberforce, L.
Merlyn-Rees, L.	Williams of Mostyn, L.
Milverton, L.
NOT-CONTENTS
Addison, V.	Elton, L.
Aldington, L.	Ferrers, E.
Alexander of Weedon, L.	Fraser of Carmyllie, L.
Allenby of Megiddo, V.	Gainsborough, E.
Alport, L.	Gardner of Parkes, B.
Annaly, L.	Gisborough, L.
Archer of Weston-Super-Mare, L.	Glenarthur, L.
Arran, E.	Goold, L.
Astor of Hever, L.	Goschen, V.
Astor, V.	Gray of Contin, L.
Balfour, E.	Gridley, L.
Belhaven and Stenton, L.	Hailsham of Saint Marylebone, L.
Birdwood, L.	Harmar-Nicholls, L.
Blake, L.	Harmsworth, L.
Blatch, B.	Harrowby, E.
Boardman, L.	Hayhoe, L.
Borthwick, L.	Hemphill, L.
Boyd-Carpenter, L.	Henley, L.
Brabazon of Tara, L.	Hertford, M.
Brougham and Vaux, L.	Hothfield, L.
Bruntisfield, L.	Howe, E.
Butterworth, L.	Hylton-Foster, B.
Cadman, L.	Kenyon, L.
Carnegy of Lour, B.	Kimball, L.
Carnock, L.	Kintore, E.
Chalker of Wallasey, B.	Lauderdale, E.
Chelmsford, V.	Leigh, L.
Colwyn, L.	Limerick, E.
Constantine of Stanmore, L.	Long, V.
Cork and Orrery, E.	Lucas, L.
Courtown, E.	Lyell, L.
Craig of Radley, L.	Mackay of Ardbrecknish, L.
Cranborne, V.	Macleod of Borve, B.
Crickhowell, L.	Mancroft, L.
Cumberlege, B.	Marlesford, L.
De L'Isle, V.	Merrivale. L.
Dean of Harptree, L.	Mersey, V.
Denton of Wakefield, B.	Middleton, L.
Devonport, V.	Monk Bretton, L.
Dixon-Smith, L.	Montgomery of Alamein, V.
Donegall, M.	Mountgarret, V.
Dormer, L.	Moyne, L.
Eden of Winton, L.	Munster, E.
Elibank, L.	Murton of Lindisfarne, L.
Ellenborough, L.	Nelson, E.

1629

Norrie, L.	Soulsby of Swaffham Prior, L.
Orkney, E.	St. Davids, V.
Orr-Ewing, L.	Strange, B.
Pearson of Rannoch, L.	Strathclyde, L.
Perry of Southwark, B.	Strathmore and Kinghorne, E.
Plummer of St. Marylebone, L.	[Teller.]
Rankeillour, L.	Teviot, L.
Reay, L.	Thomas of Gwydir, L.
Rees, L.	Torrington, V.
Renton, L.	Trumpington, B.
Rodger of Earlsferry, L.	Tugendhat, L.
Saltoun of Abernethy, Ly.	Ullswater, V. [Teller.]
Savile, L.	Vivian, L.
Seccombe, B.	Wade of Chorlton, L.
Selborne, E.	Wakeham, L.[Lord Privy Seal.]
Shannon, E.	Wise, L.
Sharpies. B.	Wynford, L.
Simon V.	Young, B.
Skidelsky, L.

Resolved in the negative, and amendment disagreed to accordingly.

1647

Division No. 2
CONTENTS
Addington, L.	Grey, E.
Airedale, L.	Hollis of Heigharn, B
Avebury, L.	Irvine of Lairg, L.
Blackstone, B.	Judd, L.
Carmichael of Kelvingrove, L.	Kagan, L.
Clinton-Davis, L.	Kilbracken, L.
David, B.	Kilmarnock, L.
Donaldson of Kingsbridge, L.	Lester of Herne Hill, L.
Donoughue, L.	Lockwood, B.
Dormand of Easington, L.	Mason of Barnsley, L.
Eatwell, L.	McIntosh of Haringey, L.
Glenamara, L.	McNair, L.
Gould of Potternewton, B.	Monkswell, L.
[Teller]	Morris of Castle Morris, L.
Graham of Edmonton, L.	Mulley, L.
[Teller.]	Nicol, B.

1647

Peston, L.	Taylor of Blackburn, L.
Pitt of Hampstead, L.	Taylor of Gryfe, L.
Prys-Davies, L.	Tordoff, L.
Redesdale, L.	Turner of Camden, B.
Seear, B.	White, B.
Sefton of Garston, L.	Wigoder, L.
Skidelsky, L.	Williams of Mostyn, L.
Stoddart of Swindon, L.
NOT-CONTENTS
Addison, V.	Hayhoe, L.
Ailesbury, M.	Hemphill, L.
Allenby of Megiddo, V.	Henley, L.
Alport, L.	Hertford, M.
Annaly, L.	HolmPatrick, L.
Arran, E.	Howe, E.
Ashbourne, L.	Hylton-Foster, B.
Astor of Hever, L.	Inchyra, L.
Astor, V.	Kenyon, L.
Balfour, E.	Kimball, L.
Barber of Tewkesbury, L.	Lawrence, L.
Belhaven and Stenton, L.	Leigh, L.
Blake, L.	Limerick, E.
Blatch, B.	Long, V.
Blyth, L.	Lothian, M.
Boardman, L.	Lyell, L.
Borthwick, L.	Mackay of Ardbrecknish, L.
Boyd-Carpenter, L.	MacLehose of Beoch, L.
Brabazon of Tara, L.	Macleod of Borve, B.
Brougham and Vaux, L.	Mancroft, L.
Buckinghamshire, E.	Marlesford, L.
Burton, L.	McColl of Dulwich, L.
Byron, L.	Merrivale, L.
Cadman, L.	Mersey, V.
Carlisle of Bucklow, L.	Monk Bretton, L.
Carnegy of Lour, B.	Monson, L.
Carnock, L.	Morris, L.
Carr of Hadley, L.	Mottistone, L.
Chalker of Wallasey, B.	Mountevans, L.
Clanwilliam, E.	Mountgarret, V.
Clark of Kempston, L	Munster, E.
Colwyn, L.	Murton of Lindisfame, L.
Courtown, E.	Nelson, E.
Craigmyle, L.	Orr-Ewing, L.
Cranborne, V.	Pearson of Rannoch, L.
Cross, V.	Perry of Southwark, B.
Cumberlege, B.	Prior, L.
Davidson, V.	Rankeillour, L.
Dean of Harptree, L.	Reay, L.
Denton of Wakefield, B.	Rodger of Earlsferry, L.
Dixon-Smith, L.	Savile, L.
Donegall, M.	Seccombe, B.
Dormer, L.	Selborne, E.
Elibank, L.	Sharples, B.
Ellenborough, L.	Soulsby of Swaffham Prior, L.
Elles, B.	St. Davids, V.
Elton, L.	Stevens of Ludgate, L.
Fairfax of Cameron, L.	Strathmore and Kinghorne, E.
Ferrers, E.	[Teller]
Fraser of Carmyllie, L.	Teviot, L.
Gainsborough, E.	Thomas of Gwydir, L.
Gisborough, L.	Trumpington, B.
Glenarthur. L.	Tugendhat, L.
Goschen, V.	Ullswater, V. [Teller.]
Greenway, L.	Vivian, L.
Gridley, L.	Wade of Chorlton, L.
Halsbury, E.	Wakeham, L. [Lord Privy Seal.]
Hanson, L.	Wise, L.
Hanworth, V.	Wynford, L.
Harmsworth, L.	Young, B.
Harrowby, E.

On Question, amendments agreed to.

1648

§ 7.9 p.m.

§ Clause 85 [Arrangements for the provision of prisoner escorts]:

§ Lord Williams of Mostyn moved Amendment No. 144E:

§ Page 73, line 11, at end insert:

§ ("( ) After that subsection there shall be inserted the following subsection—

§ (3A) All escorts of prisoners under subsection (1) above, where the prisoner is either

(a) a category 'A' prisoner,
(b) a category 'B' prisoner, or
(c) a remand prisoner who is likely to be a category 'A' or 'B' on conviction;

shall be carried out in a secure cellular vehicle.").

§ The noble Lord said: I move this amendment which stands in the name of the noble Lord, Lord McIntosh of Haringey, and, if I may, I shall speak at the same time to Amendments Nos. 144F, 144G, 144M and 144N, together with Amendments Nos. 153B and 153C. Amendment No. 144E has its counterparts in Amendment No. 144M relating to Scotland and Amendment No. 153B relating to Northern Ireland. These amendments are perfectly simple and straightforward. I am sure that they fall into the category described by the Minister earlier as the sort of amendment against which it is impossible to marshal a sensible argument.

§ Amendment No. 144E relates entirely to the question of the escort of prisoners. It is intended to provide a statutory obligation that all prisoner escorts for Category A prisoners, Category B prisoners and remand prisoners who, if convicted, would be categories A or B, shall be carried out in a secure cellular vehicle. As is well known, at the moment secure cellular vehicles are not in sufficient supply to deal with the whole range of Category B prisoners or remand prisoners as earlier described. Quite often, dangerous prisoners or potentially dangerous remand prisoners are carried in taxis or coaches which are insecure. They are possibly dangerous to the public and are certainly likely to be dangerous to prison staff.

§ It seems to me that the case for Category A prisoners speaks for itself. No Category A prisoner should be moved by escort other than in a secure cellular vehicle because his designation as a Category A prisoner ought to put him into that high risk category. Category B is different. However, it includes murderers, rapists and people who have committed quite serious offences of violence. They often serve long sentences but are frequently transported in coaches and taxis on escort occasions. Perhaps I may give one example. Earlier this year, two prisoners were being transported in a coach, non-secure. Both were Category B. One of them had murdered a police officer and the other had battered a taxi driver to death. They were not properly searched and one produced a knife to a police officer's throat and threatened to kill him. Both men escaped. That would not be possible if the amendment were to be accepted.

§ There are too few cellular vehicles. There are only 24 in the whole of the prison service. Amendment No. 144E and the related amendments for Scotland and Northern Ireland are perfectly simple. Their purpose is perfectly plain. It is to bring an end to the use of 1649 non-secure escort vehicles for Category A, Category B prisoners and for remand prisoners who would be categories A or B on conviction.

§ As the common theme of the amendments is the escort of prisoners perhaps I may turn now to Amendment No. 144F. It would bring into existence a statutory obligation that all escorts of Category A and Category B prisoners or remand prisoners who are likely to be A or B on conviction would have to include at least one officer with first aid training to the level of St. John Ambulance first aid at work or its general equivalent. The purpose therefore is to ensure that private escorts would have at least one officer with a reasonable knowledge of medicine and with some degree of medical training. Prison service staff already have expertise of that nature and quality. Again, perhaps an example may be helpful. Last year, a prisoner, Ernest Hogg, died. He was a remand prisoner who was in the custody of Group 4 Security. His death was the first death of a prisoner on escort for a very long time.

§ The number of incidents which cause alarm to the public and certainly to prison staff is increasing. It is perhaps helpful to bear in mind that the training manual for Group 4 Security personnel provides for only 270 hours of training, of which only eight hours—that is, one day—is set down for medical training. That is far too little for anyone who has to deal with prisoners who may offer difficult and sometimes dangerous behaviour. Prison officers, on the other hand, do not have one day's training; they have one week's training in medical care and attention out of their total of 13 weeks. In his admirable report, the noble and learned Lord, Lord Woolf, regarded 13 weeks' training as barely enough and wished it to be extended. Again, the purpose of the amendment is perfectly plain. It is to secure the provision on a statutory basis of a certain minimum level of expertise for those involved in escort work.

§ Amendment No. 144G is intended to delete a provision of the Criminal Justice Act 1991 which allows the contracting out of escort services. It is a matter of pure principle. Our belief is that escort services should not be contracted out where the level of service is likely to be less than that provided by the prison service. The noble and learned Lord, Lord Woolf, recommended in his report that there should be a separate prisoner escort service. We agree. It should be part of the prison service. It should not be contracted out.

§ Some comparisons may be helpful. In the three and a half years before the privatisation of some parts of the prison regime, Moorlands young offenders' institute near Doncaster provided 17,000 escorts. There was no escape over those three and a half years. In the first four weeks of the contract being awarded to Group 4 Security, three prisoners were lost. Driffield town council in East Yorkshire found it necessary to write to the Home Secretary at the end of last year when four prisoners escaped in December from an escort conducted by Group 4 Security. Having escaped, one prisoner went to a local junior school and terrorised the children. Fortunately, he was recaptured without any other harm coming to the children.

§ We believe that such incidents are intolerable and are likely to continue unless there is a separate prison escort 1650 service which is properly and fully trained. It is perhaps worth bearing in mind that most escapes are not from prison custody but from escort custody. The purpose of tabling these amendments is to draw attention to that serious problem. I beg to move.

§ 7.15 p.m.

§ Lord Donaldson of Kingsbridge
I fully support the amendment. I do not think that there is anything to add to it. Implementing it will cost a certain amount of money, but so will everything that has to be done if we are to put the prison service right. I believe that if the recommendation of the noble and learned Lord, Lord Woolf, that there should be a separate escort service, which should be part of the prison service and which should not be privatised, were adopted, we should get more of what we want. I believe that the amendments as moved are, without exception, satisfactory and should be carried.

§ Lord Mottistone
I have a friend, a taxi driver, who is frequently invited to take prisoners from one place to another. He has been doing it for 10 years to my certain knowledge and has had no trouble at all. It is easy to find examples, as the noble Lord, Lord Williams, did, of where things have gone wrong. On the whole, I think that the arrangements are working satisfactorily.

§ Lord Williams of Mostyn
Before the noble Lord sits down, I wonder whether his friend who is a taxi driver was carrying Category A or Category B prisoners at the time.

§ Lord Mottistone
He specifically never asked what sort of prisoners they were and he would not have been told if he had. In view of the fact that I come from the Isle of Wight, I think we can expect that some will be of the categories described.

Earl Ferrers
All of the amendments to which the noble Lord, Lord Williams, referred, deal with matters of escort in various ways. Amendment No. 144E and Amendment No. 144M refer to high security prisoners being carried in cellular vehicles. I do not think that it would be advisable to lay down in statute, as the amendments propose, a requirement that all prisoners in the highest security categories should invariably be carried by prison custody officers in cellular vehicles. After all, that would include all remand prisoners who would be treated as if they were Category B prisoners.
Where escorts are undertaken by the police or prison service, prisoners are transported in a variety of different types of vehicle including, as my noble friend Lord Mottistone said, taxis. They are also sometimes transported in police cars, in vans with parallel seats, sometimes in conventional minibuses, sometimes in coaches, and sometimes in cellular vehicles.
When prison custody officers in England and Wales are undertaking the escort of prisoners in the higher security categories it is normal for cellular vehicles to be used. I would be reluctant to see that become a statutory requirement. There are circumstances in which it would be inappropriate; for example, when carrying pregnant women or prisoners who are unwell. A higher level of staffing is of course required where cellular vehicles are 1651 not used. I believe, in the light of experience, that these matters would be better regulated and adjusted by contract. These arguments hold good in respect of Amendments Nos. 144E, 144M and 153B.
The amendment which the noble Lord has proposed in respect of first—aid training requires that a prison custody officer on each escort duty should be fully trained in first aid. The noble Lord, Lord Williams of Mostyn, said that there must be a minimum level of training in first aid. That is perfectly true. In England and Wales, before the prison custody officers are certified to undertake escort duties they have to undertake extensive training, including 32 hours of training in first—aid principles and techniques. Every officer on the escort—and not just one—will have undergone that kind of training. The contracts that have already been let for court escort and custody work provide for first—aid training either to be approved by the Health and Safety Executive, in accordance with the Health and Safety Regulations 1981, or to lead to St. John's Ambulance or Red Cross certificates. It is likely that any contract for escort duties in Scotland and Northern Ireland will have similar provisions.
I do not believe that it would be right to have such a requirement in primary legislation. Should different types of first—aid training be thought to be more appropriate in future it would then be impossible to make changes without amending the legislation by means of a further Bill. That would not be the right thing to do. As it is, Schedule 10 to the Criminal Justice Act 1991 already requires that prison custody officers shall not be certified by my right honourable friend the Home Secretary until the applicants have received training to such standard as he may consider appropriate for the performances of those functions. Therefore, there is a standard guarantee.
The noble Lord, Lord Williams of Mostyn, referred to Amendment No. 144G, which, in effect, prevents further contracting out. He said quite honestly and openly that this was a matter of principle and he criticised Group 4 and what happened during the first few weeks of its operation. That is understandable. I suppose that if I were arguing his case I should have done the same. But it was slightly hard because, obviously, when one starts a new enterprise—and the contracting out of these duties was a new enterprise —there are bound to be teething troubles and there were. However, most of those troubles have been overcome.
Contrary to what appeared in the press, the court escort and custody service in the East Midlands and Humberside region, which is operated by Group 4, is a distinct success. A recent survey confirmed that Group 4 was doing well. It showed that 86 per cent. of Crown Court centres, magistrates' courts, the police, prisons and lay observers in the area were all either satisfied or very satisfied with the company's performance. More than 90 per cent. of court staff rated it as better or as good as the service that went before.
Group 4's record on escapes is also much better than some people would believe. In 1993–94 the company carried out 100,656 prisoner movements and it had 26 escapes, excluding the 17 who were immediately 1652 recaptured. That is, of course, 26 escapes more than we would wish but it still compares well. In the year preceding Group 4's operation, 11 prisoners under escort or at court escaped from the custody of the prison service. During the first year under Group 4, there were only three escapes in similar circumstances.
That is comparing like with like. A great deal of escort and custody work which was previously carried out by the police is now carried out by Group 4. Not all forces kept records of escapes, but there is no reason to doubt that Group 4 has achieved a similar improvement in its secure handling of such prisoners. While I understand the noble Lord, Lord Williams of Mostyn, supported by the noble Lord, Lord Donaldson of Kingsbridge, not liking the idea as a matter of principle, I hope that he will accept from me that the result of what Group 4 has done compares favourably with —indeed, is better than—that which went before.

§ Lord Williams of Mostyn
I am grateful for the explanations that the Minister has sought to put forward. I am bound to say that if in December 1993 I were the parent of a child and four prisoners escaped, one of whom came to terrorise my child at school and I heard a Home Office Minister—whoever he or she might be—say, "These are teething troubles", I should have been distinctly unimpressed.
I must say, I hope with a degree of courtesy, that the Minister's response to the issue of cellular vehicles is not satisfactory. He suggested that prisoners who are ill or pregnant might be unsuitable for carriage in those vehicles. I cannot see the reason for that if one has properly qualified medical escorts. In any event, those categories are minuscule compared with the numbers of seriously dangerous prisoners who are being carried in insecure vehicles.
However, I am most obliged for the full answer that was given. I must confess that, amazingly, I was not convinced by it, but I beg leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ [Amendments Nos. 144F and 144G not moved.]

§ Clause 85 agreed to.

§ Clause 86 [Powers and duties of prisoner custody officers acting in pursuance of such arrangements]:

§ [Amendment No. 144H not moved.]

§ Clause 86 agreed to.

§ Clause 87 agreed to.

§ [Amendment No. 144HA not moved.]

§ Clause 88 [Contracted out parts of prisons, etc.]:

§ [Amendment No. 144J not moved.]

§ Clause 88 agreed to.

§ Clauses 89, 90 and 91 agreed to.

§ Clause 92 [Provision of prisons by contractors]:

§ Lord McIntosh of Haringey moved Amendment No. 144K: Page 77, leave out lines 5 to 7.

§ The noble Lord said: I shall speak also to Amendment No. 144L. A few years ago we heard from an earlier version of this Conservative Government the phrase "back to Victorian values". We do not hear much 1653 about it now—and for obvious reasons. What is proposed here is not a return to Victorian values but to Dickensian values. Members of the Committee will remember Dickens' description of the Hulks, which was given in Great Expectations. It was not a very attractive description and they were not very attractive things.

§ When a few years ago the Government sought to revive the Hulks—the prison ships—they did not have a very happy experience. They tried to use the "Earl William", which was moored near Harwich, in which to keep the Tamil immigration detainees. They did not use it as a proper prison but as a detention centre; there was no legal possibility of using ships for prisons. Unfortunately, apart from the unpleasantness of having a prison ship off Harwich—unpleasant for the people of Harwich—the vessel was a revamped car ferry that was torn from its moorings in the autumn of 1987 and ran aground. Despite the fact that fears about the safety of this detainment ship were expressed beforehand, the Government dismissed them.

§ Deliberately to bring back the possibility of prison ships into our penal system as an item of policy, even as an item of contingent policy which I am sure the Government will claim it to be, would be a real step backwards. I am not merely making the emotional Dickensian point. A ship is not suitable for use as a prison. Inevitably, it is extremely confined and it would be difficult to sustain a proper regime on a prison ship which would provide the exercise and constructive activities necessary.

§ I have no doubt that Ministers will say that there is still the "Queen Mary" at Long Beach. She could be brought back. She served a useful purpose as a tourist hotel for many years. But I do not believe that that is what is proposed. We are in danger of having the same revamped car ferries, or the equivalent, and they would not make good prisons. That would be an act of desperation on the Government's part. I hope that they do not mean it, and if they do not mean it they should take away the possibility from the face of the Bill. I beg to move.

§ 7.30 p.m.

Earl Ferrers
In the eyes of the noble Lord, Lord McIntosh of Haringey, the poor old Government cannot ever do anything right, can they? We have to make provision to deal with those prisoners who are sent into custody by the courts. A little earlier the noble Lord, Lord McIntosh, said how terrible it was that those people should be put into police cells and he tabled an amendment to prevent that. In fact, the amendment that he tabled would have resulted in more people being held in police cells. He was seeking to prevent too many people being held in prison. The noble Baroness, Lady Seear, castigated the Government about the fact that there are so many people being held in prison and she said that they should not be there. The noble Lord, Lord McIntosh, castigated the Government for building prisons.
Here we are merely saying that if the worst comes to the worst, we shall have to use boats. The noble Lord, Lord McIntosh, says that we must not put people there. I do not know where he wants to put them. Perhaps he 1654 does not want the courts to imprison them at all, but that is a matter for the courts. We are merely trying to make reasonable provision.
The noble Lord complains when people are in police cells and complains when the prisons are overcrowded. Therefore, the Government have brought forward another measure and the noble Lord, yet again, opposes that. The noble Lord must address himself to the facts of the matter.
In the past, the prison service has considered using maritime detention facilities—that is a delightful expression to indicate the use of a hulk or a boat—in order to cope with the surges in prison population. And whatever the noble Lord, Lord McIntosh, and the noble Baroness, Lady Seear, may say, that is nothing to do with the Government. It is to do with what the courts decide.
At present there is some doubt as to whether the Prison Act 1952 allows the use of detention facilities which are not land—based. I should make it quite plain that there are no definite plans to introduce maritime detention facilities; but it is the duty of the prison service to prepare for possible contingencies and if pressure on the prison population were to become too great the use of maritime detention facilities could well be more humane than having overcrowded prisons. Their use would be considerably cheaper than using police cells. They are likely to be more acceptable to the noble Lord, Lord McIntosh of Haringey—if ever he could persuade himself that they would be more acceptable. They would be more secure than some alternatives; namely, army camps. We are merely trying to make quite certain that if those facilities are required, they could be used. There is nothing more sinister than that.

§ Lord Mottistone
I have served on several warships in my time which would make very good prisons. Most of them have been broken up now. Of course, to choose the sort of ship which is unsuitable is an extremely good critical point but I can think of many ships, not just warships, which would make very good prisons on a temporary basis.

§ Lord McIntosh of Haringey
The Minister says that I seem to disagree with everything that the poor old Government do. It is a poor old Government—is it not? —because 47 per cent. of those voting last week preferred a Labour Government and only 28 per cent. preferred this Government. Therefore, when I am castigated by the Minister, I am comforted by the thought that I am not alone. A certain number of people even voted Liberal Democrat.
I am totally reassured. What I had thought was a hulk or a prison ship is now a maritime detention facility. Now that I know that it is a maritime detention facility, everything is all right. I beg leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ [Amendment No. I44L not moved.]

§ Clause 92 agreed to.

§ Clause 93 agreed to.

1655

§ Lord Annaly
I beg to move that the House do now resume. Perhaps I may suggest that the Committee stage begin again not before 8.35 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.