Lords Sitting of 11 February 1997

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Lichfield.

Asylum Seekers: Detention Conditions
The Earl of Sandwich The Earl of Sandwich asked Her Majesty's Government:
What plans they have to improve the present facilities for asylum seekers held in immigration detention centres and Her Majesty's prisons.
The Minister of State, Home Office (Baroness Blatch): My Lords, asylum seekers and other Immigration Act detainees who are held in immigration detention centres and in Prison Service establishments in England and Wales are treated well and have the same special rights and privileges as remand prisoners. Only about 1 per cent. of those whose asylum cases are outstanding are detained at any one time.
The Earl of Sandwich: My Lords, I thank the Minister for her reply as far as it goes. Does she accept that many people, including most recently the chairman of the British Medical Association, cannot understand why so many asylum seekers are detained, without any hearing, in prisons and detention centres after all they have gone through in their own countries, and why there is no form of independent review of their cases and an overhaul of the bail system?
Baroness Blatch: My Lords, about 80 per cent. of those who are detained will have made an asylum claim at some stage. We understand that between 75 and 80 per cent. of those will have had their applications rejected. A significant number will also have had their appeals rejected and will be mounting last-ditch challenges to the system or awaiting documentation from other countries. There are many reasons for detention and the delays in detention, but I believe that the point made by the BMA is rather overstated.
Lord Renton: My Lords, is my noble friend aware that at present there is a vast amount of oppression in many countries throughout the world, that the unfortunate people affected believe that this is the easiest country to get into and that if we absorb all of them we shall increase our social problems to an unreasonable degree?
Baroness Blatch: My Lords, my noble friend makes a very important point. We honour all of our obligations, both national and international. Just 1 per cent. of outstanding applications is subject to detention. Every effort is made to provide facilities for asylum seekers. All of them have access to physical, education and library facilities, educational classes, recreational
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activities and medical services that are in line with those available to any citizen in the land. They have a more relaxed regime. They have the use of shops and telephones; they can wear their own clothes; they have generous visiting arrangements and regular meals, and dietary and religious requirements are met. I believe that we do our duty by these people.
Baroness Williams of Crosby: My Lords, can the Minister confirm that in 1994 in response to the European Committee on Torture and Inhumane Treatment Her Majesty's Government said that they would take every possible step to reduce the number of asylum seekers in detention? Further, does she agree that since that time the number has increased and the length of detention has increased despite the fact that the number of asylum seekers has declined? Will the Minister give further consideration to the suggestion of the noble Earl, Lord Sandwich, that an independent review be made of such cases, in particular for those who are detained for six months or more?
Baroness Blatch: My Lords, the noble Baroness is wrong in saying that the numbers have declined. The noble Baroness quoted the figure for 1994. In that year the number of applicants was 32,800. In 1995 the figure was 43,965. As a proportion, the figures are not as the noble Baroness has pointed out. A mere 10 years ago in 1987 the number of applications was only 4,256. That demonstrates the enormous escalation in the number of asylum applications. Referring to the earlier point made by my noble friend, the reason may be that this country is more accommodating to asylum seekers than many other countries.
Viscount Waverley: My Lords, can the noble Baroness confirm that hunger strikers have access to appropriate medical facilities? That said, does she agree that no government should ever be held to ransom?
Baroness Blatch: My Lords, indeed they do have access to medical facilities. An enormous amount of effort is made on two counts: first, to persuade hunger strikers to discontinue their hunger strikes; and, secondly, to ensure that all of their medical needs are met. That involves medical attention being given inside the prison, the hospital wing and in external hospitals. I absolutely agree with the noble Viscount: no government should be held to ransom in this way.
Lord Campbell of Alloway: My Lords, can my noble friend confirm that, in view of the suggestion of the noble Earl, there cannot be a review system until a decision has been made and that once a decision has been made there is a first-rate independent review system?
Baroness Blatch: My Lords, I confirm that. The delay is not all one way. The delay is not always the fault of the Government's administration. Delay may be caused by people simply not turning up for appeal hearings or failing to provide evidence to appeal hearings. Sometimes there is delay on the part of

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receiving countries who do not provide travel documents to their citizens so that they can return to their countries.
Lord Dubs: My Lords, does the Minister agree that the way in which she has answered questions put by noble Lords on the other side of the House this afternoon suggests that she looks to the imprisonment of asylum seekers who are innocent of any criminal charge as a way of deterring others from seeking safety in this country? Is she not saying that detention and imprisonment work?
Baroness Blatch: My Lords, I have made the point repeatedly that detention is a last resort. That is borne out by the figures: only about 1 per cent. of outstanding asylum cases are detained. They are not all wholly innocent; many of them are guilty of criminal offences. One of the reasons for detention is that they are deemed not to be reliable in conforming to and being compliant with the terms and conditions of their release into the community. It is for that reason that they are detained. During the many Questions on this subject that I have answered, and during the passage of the Bill on this subject, I have noted that noble Lords opposite would have a much more generous policy for such people not to be detained and to be at large in the community. I believe that that would add considerably to the risk in the community.
Lord Avebury: My Lords, does the Minister agree that 754 persons were detained at the end of 1996, and that that represents 2.79 per cent. of the 27,000 persons who applied for political asylum during 1996, and not 1 per cent. as she keeps reiterating? Does she further agree that 25 per cent. of the 754 persons in detention are awaiting an answer to their first application, and therefore should be considered as prime candidates for bail? Of those, 405 applied at the port of entry and are therefore within the terms of the Minister's definition of genuine asylum applicants.
Baroness Blatch: My Lords, I have never said what the noble Lord attributes to me as having said. I have never said that it was 1 per cent. of applications in any one year. If the noble Lord looks back at the correspondence that I have had with him, he will see that it is about 1 per cent. of the outstanding applications. At this moment there are about 70,000 outstanding applications.
Lord Avebury: My Lords, that is not consistent.
Baroness Blatch: My Lords, what I have said is consistent. It is about 1 per cent. of outstanding applications. If the noble Lord is saying that 75 out of 740 are awaiting their first consideration that does not detract from the fact that there must be good reason for detaining them, because there is an independent appellate authority which would consider bail were it applied for. It is not a question of the Government detaining these people. They are detained with full rights to apply for bail.
Lord Hylton: My Lords, why cannot these wretched people be brought before a magistrate, say, within two weeks of the start of detention?
Baroness Blatch: My Lords, if the Government had proposed that in the Bill, the noble Lord would have been the first person to have stood up and objected to it, because those people must be allowed to have their applications considered in the first place, and time to prepare their cases for appeal. I have said that we believe that sometimes there is undue delay in the appeals being prepared on the part of the applicants. We do not want to cut through that by having quick, sharp justice done by a magistrates' court overnight probably merely, at the end of the day, to deny them their rights. We do not agree with that.
Lord McIntosh of Haringey: My Lords, the Minister has obviously described the physical facilities of these people accurately, but does not she recognise that the despair that they feel, which in the most distressing cases has led to hunger strikes, arises from the fact that they have been put in prison by administrative action—by immigration officials—rather than by any judicial process, and that their appeals against detention depend in the first instance upon administrative action?
Baroness Blatch: My Lords, where I do agree with the noble Lord is that some of these people are desperate. They are desperate for different reasons, not just because they are detained. They are desperate because the economic conditions in their own country are such that they would prefer to live in this country. We have a system that is generous in awarding exceptional leave to remain in those cases which do not qualify for refugee status under the UN convention. There is independent consideration of bail applications. They are given fair consideration. The noble Lord knows that. We discussed that at length during the course of the Bill. It is not a government decision. It is an independent decision, and, as the noble Lord knows, His Honour Judge Pearl is at the head of that appellate body.
Baroness Farrington of Ribbleton: My Lords, would the Minister care to comment upon the fact that in answer to a previous question on this subject she referred to people who were accused of having committed crime? Will she tell the House how many of those accused of committing crime have been charged and how many are being kept in detention as a result of accusations that have not been brought to charge?
Baroness Blatch: My Lords, a number have not merely been charged, they have been convicted and served their sentence. There is one asylum detainee who had committed abuses against children, had served a prison sentence in this country, had been removed from this country, and re-entered illegally. There will be others who have a criminal background. When one is considering the likelihood of someone conforming to the terms and conditions of release into the community then the character of that person is an important consideration to be taken into account.

Pyramid Selling
2.50 p.m.
Lord Campbell of Croy Lord Campbell of Croy asked Her Majesty's Government:
How the latest legislation on controlling pyramid selling will affect schemes already in existence in the United Kingdom.
The Minister of State, Department of Trade and Industry (Lord Fraser of Carmyllie): My Lords, trading schemes covered by existing provisions will be subject to new regulations setting minimum standards of business practice. There is a six-month transitional period. Those schemes newly within the scope of controls also have six months to comply with the regulations, but they must comply immediately with the controls on recruitment set out in the Fair Trading Act.
Lord Campbell of Croy: My Lords, I thank my noble and learned friend for his Answer, especially as the new provisions are carrying out the intention stated in reply to a Question which I tabled in November 1994.
While consumer protection cannot help the blindly gullible, will the Government act firmly, after the six-month moratorium, in closing down schemes which appear to be plausible and attractive but are bound to lead to most participants losing money? Will they respond favourably to any request for advice from Albania, a country emerging from more than 50 years of isolation?
Lord Fraser of Carmyllie: My Lords, we have not introduced the new regulations to do nothing at the end of the six-month period. In our view, the six-month transitional period is appropriate. Certainly, if after the end of that period we discover that people are acting outwith the terms of the Act or regulations we would intend to take action. Ultimately, that could result in prosecution.
As my noble friend indicated, the luckless people of Albania seem to have suffered appallingly under a wide range of pyramid schemes and thousands have lost their money. I suppose that it will be of little comfort to them to know that such schemes would have been caught by the regulations in this country.
Lord Peston: My Lords, I am a little puzzled because such scams are of great age. Fly people preying on the gullible and greedy have been around for a long time. Why is there a delay? Why are not such schemes illegal and why are not the people concerned behind bars? We are talking about the three-card trick in its most extreme form. The police constantly stop people running the three-card trick, although, in my view, not enough of them end up in prison. I am staggered that we are talking about delay and so forth. It is about time that once and for all we made it clear that such people will be caught and dealt with by the law, and I am surprised that the noble and learned Lord's department has not done so.
Lord Fraser of Carmyllie: My Lords, the noble Lord is correct in saying that some of these so-called
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money circulation schemes are little more than scams and are probably fraudulent from the outset. If that can he established there is no reason why a prosecution could not or should not be taken immediately. With a number of the schemes the difficulty is that whether you can secure a return on your money depends upon enough people being recruited after you. In those circumstances, if people wish to participate in them, understanding that an element of gamble is involved, it is a matter for them.
We are anxious to ensure that anyone participating in such a scheme understands clearly the range of risks they are undertaking. I understand that traditionally only about 10 to 15 per cent. of those participating in such schemes make a profit or get their money back. Those who are recruited at the beginning can do very well, but up to 85 per cent. may lose out badly.
Lord Peston: My Lords, I hesitate to pursue the matter but the noble and learned Lord keeps using the word "may". Does he agree that the logical essence of such a scheme is that those who join later must be exploited or ripped off by those who joined first? That is the essence of the fraudulent behaviour. Those who try to argue to the contrary simply fall into the trap of the proponents of the scheme. I do not understand why such a scheme even remotely gets to run and I am looking for an explanation of that. Such a scheme is not a gamble; it is a crooked operation.
Lord Fraser of Carmyllie: My Lords, with respect, it is not necessarily a crooked operation. Curiously, I agree with the noble Lord that at the end of the day it is a matter of remorseless logic that some will lose out in the schemes. If the noble Lord had read the Daily Telegraph of 10th February he might have noticed that Professor Patrick Minford managed to construct an elaborate economic model to establish that that would not be the case. I believe that for once I am closer to the noble Lord in his economics than I am to Professor Minford.
If at the outset people participating in the schemes understand the risk there need not necessarily be something fraudulent in them. People must assess the risk. The regulations are set out to ensure that people participating in such schemes understand clearly the risk that is open to them. The noble Lord's observations probably apply in equal force to many of our fellow citizens who today will doubtless spend some of their money on horse-racing, where the odds of securing a return are probably worse than for the 10 or 15 per cent. who will probably gain under the pyramid schemes.
Lord Mackie of Benshie: My Lords, can the noble and learned Lord recommend any good schemes to the House?
Lord Fraser of Carmyllie: My Lords, no. However, I believe that when Professor Minford indicates that it is possible to make money out of them and that there is a reasonable way to approach them the adage of putting his money where his mouth is would be appropriate. I would not put a single penny of my money into the

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schemes. Those who have recently participated have lost considerable sums. The most recent to secure public attention required an initial fee of some £3,000. Therefore, people did not lose trivial sums.
The Earl of Northesk: My Lords, is my noble and learned friend aware of the seeming proliferation of pyramid schemes on the internet? What plans do the Government have for addressing that problem?
Lord Fraser of Carmyllie: My Lords, I must be honest with my noble friend and say that I had no idea whatever that such schemes were operated on the internet. However, I hope that I can offer him reassurance. One of the concerns has been that those who promote such schemes from foreign countries will not be caught by the offence provision in the regulations. I hope that I can reassure my noble friend that if the internet schemes are promoted from another country but operate in this country those who are operating them will be caught by the offence provisions of the regulations.

Nuclear Weapons
2.57 p.m.
Lord Jenkins of Putney Lord Jenkins of Putney asked Her Majesty's Government:
Whether, having regard to the statement of the International Court of Justice that the threat or use of nuclear weapons would generally be contrary to humanitarian law, they will ask the court to define the circumstances in which the threat or use of such weapons would not be contrary to humanitarian law.
The Minister of State, Foreign and Commonwealth Office (Baroness Chalker of Wallasey): My Lords, we shall not be asking the UN General Assembly to request the International Court of Justice for such an opinion. As we made clear, we do not believe that hypothetical questions should be put to the court.
Lord Jenkins of Putney: My Lords, is the Minister aware that, while there is no definition, it is open to any nuclear country to say that its weapons are being used in a virtually non-lethal way and that their plans and threat are not seriously meant? I believe that unless there is some definition any nuclear state can do exactly what it pleases. Is that the aim of the Government? If so, why did they sign the non-proliferation treaty?
Baroness Chalker of Wallasey: My Lords, I must admit that I find the noble Lord's question a little difficult to follow. However, bearing in mind all that we have discussed on this issue on previous occasions, I believe that the UK, having already made a number of reductions to the nuclear arsenal on a national basis, has shown good faith and it is absolutely right that we should have signed the non-proliferation treaty. Our deterrent is of a
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minimum consistent with assessment of our security requirements. Any nation which possesses a nuclear deterrent must have a credible deterrent if it is to deter.
I do not believe that the noble Lord yet accepts what your Lordships in general accept; that NATO has a strategy of war prevention. The strategy includes its nuclear element. That is essential to the process of forging the new relationships on international defence agreements.
Lord Chalfont: My Lords, I wonder whether the Minister can help me and the House and set the record straight. Is it not a fact that when the International Court of Justice was asked by the World Health Organisation to give an opinion on the legality of nuclear weapons it declined to do so? Is it not further a fact that the comment about this being against humanitarian law was contained in a statement by one judge who gave a dissenting opinion? Is it not misleading, therefore, to suggest that that is the opinion of the International Court of Justice?
Baroness Chalker of Wallasey: My Lords, the noble Lord is absolutely right. When the case was referred to it, the court decided that it did not have sufficient elements to enable it to conclude with certainty that the use of nuclear weapons would necessarily be at variance with the principles and rules of international humanitarian law in any circumstances. The legality of any such use would depend on all the circumstances of the case. As I said when answering a previous Question in your Lordships' House, one judge dissented, and it is on his view that a few noble Lords and some others have seized.
Lord Archer of Sandwell: My Lords, but did not the court make it clear that normally the use of nuclear weapons would be in conflict with international humanitarian law and that the exceptions were very rigidly defined? Do the Government take seriously the opinion of the International Court of Justice? Do they propose to initiate any kind of discussions on the implications? Or is the whole matter simply to be left as it is?
Baroness Chalker of Wallasey: My Lords, so far as I can see, a large majority in the court found that in international law there is no comprehensive and universal prohibition on the threat or use of nuclear weapons as such. That was perfectly clear. We have made it clear that we would only ever consider the use of nuclear weapons in self-defence and in extreme circumstances. That is absolutely clear. The point is that, taken as a whole, the opinion of the court does not give rise to any new factors affecting the fundamental principles of our nuclear posture. The text of Article VI makes clear that each of the parties to the treaty undertakes to pursue negotiations in good faith on effective measures. I do not think there is the lack of distinction which the noble and learned Lord tries to pose.
Lord Avebury: My Lords, if no new factors arise from the decision of the international court, why do the Government have difficulty in acceding to Protocols 1 and 2 of the Geneva Convention?
Baroness Chalker of Wallasey: My Lords, those are under consideration, as the noble Lord knows.
Lord Jenkins of Putney: My Lords, in these circumstances and if the Minister says that the Government are so reasonable, what is stopping them entering into a convention on the matter? They entered into a convention on nuclear weapons. So why can they not equally enter into a convention to obtain some certainty on this matter which at the moment depends entirely on interpretation? I must inform the Minister that her interpretation and the Government's interpretation are not widely accepted outside the nuclear states.
Baroness Chalker of Wallasey: My Lords, I do not think that I have anything to add to my previous answers. We know that the recommendation for an end to nuclear testing has been largely met by the conclusion of the CTBT. We also know that all such matters are reviewed when necessary. We have made much progress on disarmament. In fact, we have led much of it by the elimination of our maritime surface tactical nuclear capability and the withdrawal of our nuclear artillery and Lance missiles.
Lord Dubs: My Lords, is not another serious danger the nuclear weapons in the former Soviet Union which, according to press reports, are not protected securely by the Russian army? Can anything be done about that situation?
Baroness Chalker of Wallasey: My Lords, the noble Lord should not always believe all that he reads in press reports. Nevertheless, I accept that we do not know enough about the safety of nuclear weapons in the former Soviet Union. It is for that very reason that efforts have been made to get to know more and to help in the safe dismantling of such weapons. We may not be successful in that, but at least the West is trying.

Business of the House: Debate, 12th February
3.4 p.m.
The Lord Privy Seal (Viscount Cranborne): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the debate on the Motion in the name of the Baroness Jay of Paddington set down for tomorrow shall be limited to five hours.—(Viscount Cranborne.)
On Question, Motion agreed to.

Transfer of Crofting Estates (Scotland) Bill [H.L.]
Lord Strathclyde: My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Transfer of Crofting Estates (Scotland) Bill, has
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consented to place her prerogatives and interests, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
Read a third time; an amendment (privilege) made.
The Parliamentary Under-Secretary of State, Scottish Office (The Earl of Lindsay): My Lords, I beg to move that the Bill do now pass.
The Bill offers an important opportunity to the tenants of the Secretary of State's crofting estates to take on ownership of the estates and to enjoy the benefits and responsibilities which ownership will give them. I am grateful for the positive and constructive approach which noble Lords have taken in considering the proposals that we put before the House.
I am especially grateful to those Members of your Lordships' House who joined the Select Committee that took evidence both on Skye and in Inverness. Their contribution was significant. Specifically, I should like to thank the noble and learned Lord, Lord Jauncey of Tullichettle, for his expert chairmanship of that Select Committee, and other Members, such as the noble Lady, Lady Saltoun, the noble Lord, Lord Sewel, the noble Earl, Lord Mar and Kellie, and the noble Viscount, Lord Thurso. I look forward to seeing the first proposals for crofting trusts emerge in the near future.
Moved, That the Bill do now pass.—(The Earl of Lindsay.)
Lord Mackie of Benshie: My Lords, I too welcome the Bill. Happily, I have had to do little work on it because it has all been done by my noble friends Lord Mar and Kellie and Lord Thurso. I wish the Bill well. It is a very complex Bill and a great deal of work will have to be undertaken before viable and good crofting estates pass into the hands of workable bodies which can promote their well-being and expand the interests of the area. As I have said, I wish the Bill well, but it will be a long time before all the estates that are now in the Government's hands are in the hands of such bodies.
Lady Saltoun of Abernethy: My Lords, as the noble Lord, Lord Mackie, has spoken, I should like to thank in the first place the noble Earl, Lord Lindsay, for his customary help and courtesy and for his work in helping us with the Bill. We are accustomed to such help and courtesy from him, but that does not mean that he should never receive a word of thanks.
I should also like to put on record my gratitude to the crofters of the Annishadder and Borve estates and of the other estates on Skye which we visited, who gave their time so generously to help us. We learned a great deal from our visits to them and we were all very grateful for their help.
On Question, Bill passed, and sent to the Commons.

Firearms (Amendment) Bill
3.8 p.m.
Read a third time.
Clause 1 [Extension of s.5 of the Firearms Act 1968 to prohibit certain small firearms etc.]:
Baroness Blatch Baroness Blatch moved Amendment No. 1:
Page 2. line 9, leave out ("small").
The noble Baroness said: My Lords, in speaking to Amendment No. 1, I should like to speak also to Amendments Nos. 2, 10, 12, 16, 27 to 29, 39, 41 to 46, 48 to 50, 52 and 53. The amendments stand in my name and are all minor and consequential. They seek to ensure that visitors with firearm or shotgun permits are treated the same as firearm and shotgun certificate holders in respect of the provisions of the Bill. I beg to move.
The Chairman of Committees (Lord Boston of Faversham): My Lords, as Amendment No. 2 has been spoken to, I should point out that there is a mistake and that the amendment should read:
"Page 2, line 11, leave out ("7 below") and insert"—
the words as printed on the Marshalled List.
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 2:
Page 2, line 11, leave out ("7 below") and insert ("(Weapons and ammunition used for tranquillising animals).
(7A) In sections 2 to (Weapons and ammunition used for tranquillising animals) any reference to a firearm certificate shall include a reference to a visitor's firearm permit.").
On Question, amendment agreed to.
Lord Chalfont Lord Chalfont moved Amendment No. 3:
Page 2, line 13, leave out ("subsection") and insert ("subsections").
The noble Lord said: My Lords, I am not sure whether I am in order, but, in the absence of the noble Lord, Lord Pearson of Rannoch, and as I attached my name to Amendment No. 3, perhaps I may move it. I have not come prepared to do so so my remarks will be very brief. I move the amendment because it seems to me that this is the only sensible way to ensure that when this legislation is passed, as it obviously will be, those people who engage in national and international sport of a very pleasant and harmless kind are not deprived of the right to do so.
It seems to me that much about the Bill smacks of what I have called before—and have no hesitation in doing so again—the "something must be done" school of policy making. By that I mean that in reaction to some emotional or other impetus people seize upon a single measure in an attempt to solve a very complicated problem, whether it be nuclear weapons, landmines or pistols.
Whatever one's opinion of the Bill may be, it is quite clear that it has now acquired a momentum of its own and that it will, in one form or another, pass into law. However, I believe that there are certain measures which we can take to mitigate the impact of this measure on
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law-abiding people who seek only to pursue what I would call harmless and diverting pastimes. I beg to move.
The Chairman of Committees: My Lords, as I believe it would have been the intention of the noble Lord, Lord Chalfont, to speak also to Amendment No. 4, I should point out to the House that there is a printing error on the Marshalled List in that the names of those supporting the amendment should have included the name of the noble Lord, Lord Chalfont.
Lord Pearson of Rannoch: My Lords, I apologise to the House for not being present at the start of this debate. In fact, I was caught on the wrong foot by the speed with which the previous business progressed.
In speaking to Amendment No. 3, I shall speak also to Amendment No. 4, which is the principal amendment in this group. I should tell your Lordships that the noble Lord, Lord Howell, has asked me to apologise to the House for the fact that he cannot be here to support the amendment because he is chairing a Select Committee.
In our proceedings on Report a week ago, on 4th February, (Hansard col. 1543) an amendment was not debated which would have allowed the .32 wadcutter to be treated in the same way as .22 and smaller calibres. Subsequently, an amendment to allow the vital parts of .32 wadcutters to be kept in licensed premises or disassembled was lost. Therefore, for procedural reasons, the amendment cannot apply only to .32 wadcutters. Its purpose is to allow the Secretary of State to exempt certain specified competition pistols from Clause 1 of the Bill. In particular, it will allow him to make special provisions for the .32 wadcutter, which is a pistol used in the Commonwealth Games.
The amendment does not restrict the Home Secretary in any way and could apply to other competition pistols. I hope, therefore, that noble Lords will not suggest that it is going too far. Other calibres will only be allowed if the Secretary of State and Parliament want them. The amendment will merely allow them to be introduced without the need for primary legislation.
The amendment meets the specific concerns of my noble friend the Minister expressed during our debate a week ago. Then, my noble friend argued that the amendment, which was subsequently lost and which related only to the .32 wadcutter, was too loosely drawn. My noble friend said:
"My information is that the wording of this amendment is not strictly related to the wad-cutter… It is open to wider interpretation…There are concerns that by exempting one type of .32 calibre handgun, loopholes will be created so that all guns of such calibre will be freely available. Other .32 calibre pistols capable of firing high velocity rounds several times more powerful than the .22 rimfire and wad-cutter cartridges could be allowed through".— [Official Report, 4/2/97; col. 1565.]
This amendment, therefore, closes any such highly unlikely loophole because the Secretary of State will be able to decide which pistols are to be permitted and which are not. For example, pistols used in the Commonwealth Games, which are chambered only for use with the .32 Smith and Wesson long wadcutter cartridge, could be permitted. There is no possibility of

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other types of .32 or higher calibre pistol being "freely available" unless the Home Secretary and Parliament expressly permit them.
To appreciate why the loophole was in any case improbable, one has to understand a little about the .32 wadcutter cartridge and its weapon. To start with, the Government's own adviser (Mr. Warlow) has confirmed that,
"the striking energy is comparable to middle-of-the road .22 rimfire loadings".
Pistols which fire the .32 wadcutter are clearly designed and used to fire only that round. To do otherwise would put an individual who fired them at great risk. All the experts are agreed on this but I shall not weary your Lordships with the detail, unless pressed to do so by my noble friend or other noble Lords.
The likelihood of criminal misuse of a pistol which is only safe to use with a wadcutter cartridge is negligible. Furthermore, the Secretary of State will have the power under the amendment to ban any other type of cartridge other than the .32 wadcutter and any pistol which is not specifically used to fire that round.
During the Report stage my noble friend the Minister tried to suggest that such pistols could be converted to fire higher calibre cartridges. She said (at col. 1565 of Hansard) that,
"there is also the possibility of handguns already chambered for this particular cartridge being technically modified to fire the more dangerous round. That would constitute a very serious risk to public safety".
It is theoretically true that with machine tools a very crude conversion of a .32 revolver chamber, although not a .32 pistol, could be achieved to enable it to fire a .32 Harrington and Richardson magnum cartridge. However, that is an entirely unlikely scenario. An individual would need to go through the licensing system to obtain a legal .32 revolver. He would then need to manipulate the revolver with machine tools in order to lengthen the chamber in some way to ensure that the longer Harrington cartridge could fire. This really is a non-starter, given the number of illegal firearms in circulation which are far easier and cheaper to acquire, as we have noted before.
Even if the criminal were prepared to go to such lengths, both the revolver used to fire the .32 Harrington and Richardson magnum cartridge and the cartridge itself are very uncommon in the United Kingdom. There are only a handful of such revolvers in existence and the cartridges are just as rare. Faced with these difficulties, it is most unlikely that any criminal would attempt to modify a rare revolver to fire a rare cartridge instead of simply buying one of the millions of illegal weapons freely available on the black market.
All the evidence confirms that competition pistols are not modified and used in crime. Indeed, my noble friend confirmed on Report that the wadcutter cartridge simply does not feature in crime. My noble friend Lord Kimball had asked whether there were any examples of wadcutters being used in crime. In reply my noble friend the Minister said
"The answer is, very definitely, no".—[Official Report, 4/2/97; col. 1566.]
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The Government's adviser, Mr. Warlow, goes even further. In his letter of 15th November 1996, he said:
"We have never seen this target wadcutter—or the specialist pistols used with it—in criminal casework submissions in the last 25 years or so".
It would appear that the Government cannot justify banning the .32 wadcutter on its merits. It seems that their real objection is purely bureaucratic, as set out in a letter from my right honourable friend the Home Secretary to a Mr. C. A. Ewing on 21st November last year:
"I do not believe that a distinction can be made between these guns and other .32 guns and that the only certain and logical basis on which to draw a distinction by calibre is at the point of the .22 rimfire".
We should remember that the distinction drawn by Lord Cullen was not by calibre but by lethality, by killing power. On that test the .32 wadcutter is the same as the .22. The effect of banning these specialist pistols within the Bill is therefore to destroy a longstanding sport for the sole reason that the Home Office has not tried to produce a definition.
My right honourable friend the Home Secretary recognises this effect of the Bill. On 18th November last year he said in another place,
"I have authority under section 5 of the Firearms (Amendment) Act 1968 to enable that event to take place in Manchester in 2002 if the organisers of the Commonwealth games wish it".—(Official Report, Commons, 18/11/96; col. 743.]
We are pretty sure that they will wish it, as the .32 wadcutter event is one of the Commonwealth Games' central events. However, unbelievably, my right honourable friend went on to say, again at col. 743,
"British competitors will not be able to practise in this country for that event".
That is the incredible situation which this amendment seeks to alleviate.
I have to repeat the question which has been put to my noble friend and not yet answered, I think. In what other sport would a Minister dare to declare that his own country's top level sportsmen were less to be trusted than sportsmen from overseas? The amendment offers the Secretary of State an opportunity to overturn this injustice by allowing competitors to practise and so take part in the .32 event in Manchester on an equal footing. The .32 centre fire event is a most popular event of the Commonwealth Games. The British team has a proud history in the event and has long excelled in it.
The amendment does not drive a coach and horses through the Bill. I hope that no noble Lord will claim that it does. It merely offers the Government an enabling provision, with the approval of Parliament, to get them and any future government off the .32 wadcutter hook upon which they have so unfortunately impaled themselves. Who knows? Pistol shooting fashions may change. Even a Labour government in some distant future may wish to avail themselves of this sensible amendment. I commend it to the House and trust that my noble friend and noble Lords opposite can accept it.
Lord McIntosh of Haringey: My Lords, the noble Lord acknowledges fairly that he has used a wording device to circumvent the convention of this House that

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one does not introduce at Third Reading an amendment covering the same point as one rejected by the House on Report. The Government may object to that; I cannot object because I have done it myself on a number of occasions. Until dissolution I may have to do so again. However, I warn the noble Lord, Lord Pearson, against taking the amendment to a vote. First, he ought to know that a Labour Home Secretary would certainly not take advantage of an amendment of this kind to extend the definition of small calibre pistol.
Secondly, I must say in defence of the English language that if Parliament means there to be a small calibre pistol it does not mean that a future Humpty-Dumpty as Home Secretary will say, "When I say a word, it means what I want it to mean, nothing more and nothing less." The noble Lord's amendment states that a small calibre pistol will mean a small calibre pistol, but it could mean anything else he wants it to mean. That is an offence to the English language. The amendment should not be accepted.
Lord Peyton of Yeovil: My Lords, I should very much like to know how the noble Lord, Lord McIntosh, would have responded to the kind of argument which he has just deployed if it had come from some other section of the House. He is skilled at these things. I think he would have treated it with the utmost derision.
I understand perfectly well that this is rather a small, narrow amendment. I cannot avoid the impression that if my noble friend cannot accept so modest a proposal she will once again allow us a rather close look at the flimsy structure of logic on which the Bill is founded.
I do not want to delay your Lordships but again I am impressed by the large number of perfectly ordinary, well behaved citizens who would not dream of using any privilege accorded them as a means, or an encouragement, to break the law. They are law abiding citizens. Gratuitously to offend, in the wake of a serious shock, the feelings of such people is something which no wise government ought to do without second thoughts. Even at this late stage I hope that my noble friend will not be disposed just to say, "I am afraid I cannot accept this".
Lord Gisborough: My Lords, I support the measure. However, I wish to criticise my noble friend Lord Peyton for something he said. He suggested there is a flimsy structure of logic behind the Bill. That is a gross exaggeration; there is no logic whatever.
Lord Monson: My Lords, it is important to remember that this is an enabling amendment. Exactly a week ago at col. 1550 of Hansard the noble Lord, Lord McIntosh, indicated that Labour—or, more specifically and importantly, Labour's Front Bench—was prepared to adopt a neutral line, or even a somewhat sympathetic line, towards a similar enabling amendment; that of my noble friend Lord Attlee concerning disassembly. It is surprising that apparently he is not prepared to take a similar line on this amendment, particularly bearing in mind that there
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would be the safeguard that the regulations, if introduced, would require the approval of both Houses of Parliament.
If a new provision were subsequently taken advantage of by a Home Secretary—Labour or otherwise—it would certainly save money which could better be diverted, in the case of Labour being in power, to some of Labour's manifold social priorities. But above all it would allow British sportsmen and British sportswomen—there is a considerable number of successful women shooters in this country—to practise .32 pistol shooting in their own country without having to skulk off to the Continent to practise. If that were to happen Britain would be the laughing stock of the Commonwealth and of Europe.
Lord Hylton: My Lords, is it not possible that the Government's Amendment No. 71 might, if accepted, give the noble Lord, Lord Pearson of Rannoch, exactly what he is asking for?
Earl Attlee: My Lords, I support the amendment. We are talking about a highly technical matter. We have had amendments where we have discussed the energy of particular rounds. A new departure in this argument has been presented to me regarding energy per square inch relating to the diameter of a bullet. It is clearly a highly technical subject. Perhaps the matter is not suitable to be incorporated on to the face of the Bill. Therefore it is better to incorporate it into secondary legislation. However, the secondary legislation would still have the benefit of full parliamentary control.
The noble Lord, Lord Pearson, touched on the difficulties of a .32 pistol being able to accommodate a .32 long cartridge. The Secretary of State could define a pistol which would eliminate the possibility of its being fitted with a cylinder long enough to take the .32 long. Therefore the cylinder could only take a .32 wadcutter. That would address that particular issue. We also have the problem of the use of the .32 wadcutter at the Commonwealth Games. I understand the intention of the Secretary of State is to take advantage of Section 5 of the 1968 Act.
However, I understand that Section 5 enables the defence counsel to decide whether a specific gun can be authorised. The role of the defence counsel is to decide on issues of defence, not to balance the interests of sport against those of public safety. I am not sure that Section 5 of the 1968 Act is a proper vehicle for allowing .32s at the Commonwealth Games. I believe that the amendment addresses the problem in a more appropriate way and allows a future Secretary of State, after the election, to provide a better solution to the whole ghastly problem.
Baroness Blatch: My Lords, perhaps I may answer the question by the noble Lord, Lord Hylton, with reference to Amendment No. 71. Amendment No. 71 relates specifically—it is a rather narrow power that is being considered—to transitional arrangements only. Therefore it would not be possible for any Home Secretary to use that power to extend the calibre of guns exempt from Clause 1 of the Bill.

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Amendments Nos. 3 and 4 allow the Secretary of State to make regulations to specify any pistol or type of pistol which would then be exempt from the general prohibition on handguns.
The pistols concerned would be treated as small calibre pistols for the purposes of the Bill. They would have to be kept in licensed pistol clubs, and could not be removed from them without a permit issued by the police under Clause 12 of the Bill.
The Government's position on small calibre pistols has been clear from the beginning. We believe that a distinction must be drawn between small calibre pistols of the type defined in the Bill—that is of .22 inch calibre or less, and rimfire—and all other types of handgun.
I am aware that there have been a number of representations to the Government saying that various other types of handgun—notably the Smith and Wesson .32 inch long target wadcutter cartridge—should be added to the list of those which are exempt from the ban. The Government have listened to and considered those very carefully.
The restriction to .22 inch rimfire draws a clear line as to what is allowed. The construction of the rimfire cartridge from a single piece of drawn metal places a finite limit upon its power.
However, the Government acknowledge that the amendment is targeted at the .32 inch wadcutter which is used in many target shooting competitions; that these handguns are no more powerful than the .22 inch rimfire pistols which will be permitted to be stored in licensed pistol clubs; and that they are technically very difficult to convert.
But the Government have had to draw a categoric line which they have chosen to do in terms of calibre size. Any handguns which exceed .22 inch rimfire will not be permitted. This has been a consistent government line in their response to Lord Cullen's report, and as set out in the Bill.
The House voted on the .32 inch calibre exemption tabled by my noble friend Lord Swansea at Report stage. That amendment was lost in this House by 158 votes to 102.
The amendment in the name of my noble friend Lord Pearson would give an open-ended power to a future Secretary of State to allow any handguns of whatever calibre, subject of course to the resolution of Parliament.
The Government have taken pains to ensure that the Bill allows target pistol shooting to continue with small calibre pistols as defined in a way which poses the minimum of risk to public safety. The inclusion of other types of pistol in the exempt category would inevitably open out that risk. The Government see no case, and foresee no case, for doing that. It follows that we consider that a provision which allowed the Secretary of State at some future date to include other types of
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handgun would be redundant. It would be unnecessary and, we believe, undesirable. For those reasons I am unable to accept the amendment.
Lord Pearson of Rannoch: My Lords, I am most grateful to all noble Lords who have spoken in support of the amendment.
The noble Lord, Lord McIntosh, and my noble friend Lady Blatch made the same mistake when they implied that only the Home Secretary would be able to decide any future calibre of pistol to be used. That is not what the amendment states. It provides that the Home Secretary could suggest that a new calibre could be used, in particular the .32 wadcutter, which would allow us to compete in the Commonwealth Games, but that it would be subject to the approval of Parliament.
The noble Lord, Lord McIntosh of Haringey, referred to some future Home Secretary, I think as "Humpty-Dumpty". I assume that he is not thinking, therefore, of a Labour Administration in that regard.
My noble friend Lady Blatch spoke about the construction of a rimfire cartridge being in some way safer than the construction of a central fire cartridge. I am advised that there is no measurable distance between the firepower, the killing power, the lethality, of a rimfire cartridge and a wadcutter cartridge. From the very complicated table of muzzle velocities and striking powers with which I have been furnished, I have to tell noble Lords that the .32 wadcutter—at which the amendment is mostly aimed—has a muzzle energy of 115 ft/lbs. That is less than the muzzle energy of the majority of the .22 cartridges which the Bill permits.
Finally, my noble friend Lady Blatch suggested that the amendment had been lost at Report stage. That is not so. My noble friend Lord Swansea did not move this amendment; it was Amendment No. 6 at Report stage. The amendment that was lost would have allowed the wadcutter to be included within the category of disassembly. I believe that it was my Amendment No. 24. The amendment has not been debated and divided on previously.
I find my noble friend's answer every bit as unconvincing as her previous response on disassembly. I very much regret that I have to ask the opinion of the House.
3.35 p.m.
On Question, Whether the said amendment (No. 3) shall be agreed to?
Their Lordships divided: Contents, 83; Not-Contents, 171.

Division No. 1

CONTENTS

Abinger, L.

Braybrooke, L.

Ailesbury, M.

Brookes, L.

Ailsa, M.

Campbell of Alloway, L.

Attlee, E. [Teller.]

Chalfont, L.

Barber of Tewkesbury, L.

Chapple, L.

Belhaven and Stenton, L.

Charteris of Amisfield, L

Blake, L.

Chorley, L.

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Clancarty, E.

Monson, L.

Clifford of Chudleigh, L.

Moran, L.

Congleton, L.

Mottistone, L.

Cottesloe, L.

Moyne, L.

Craig of Radley, L.

Onslow, E.

Cross, V.

Palmer, L.

Dacre of Glanton, L.

Park of Monmouth, B.

Donaldson of Kingsbridge, L.

Pearson of Rannoch, L. [Teller.]

Ellenborough, L.

Peel, E.

Erroll, E.

Peyton of Yeovil, L.

Exmouth, V.

Raglan, L.

Flowers, L.

Rees, L.

Gage, V.

Rennell, L.

Gisborough, L.

Romney, E.

Hardinge of Penshurst, L.

Rowallan, L.

Harmsworth, L.

Saltoun of Abernethy, Ly.

Harris of High Cross, L.

Sandford, L.

HolmPatrick, L.

Sandwhich, E.

Howell, L.

Savile, L.

Hylton, L.

Shrewsbury, E.

Hylton-Foster, B.

Simon, V.

Ilchester, E.

Stoddart of Swindon, L.

Inchyra, L.

Swansea, L.

Kitchener, E.

Swinfen, L.

Knollys, V.

Taverne, L.

Liverpool, E.

Temple of Stowe, E.

McNair, L.

Teviot, L.

Manton, L.

Thurso, V.

Marsh, L.

Torphichen, L.

Masham of Ilton, B.

Wade of Chorlton, L.

Merrivale, L.

Walton of Detchant, L.

Milverton, L.

Wyatt of Weeford, L.

Monckton of Brenchley, V.

Wynford, L.

Monk Bretton, L.

Zouche of Haryngworth, L.

NOT-CONTENTS

Aberdare, L.

Courtown, E.

Acton, L.

Craigavon, V.

Addington, L.

Cranborne, V. [Lord Privy Seal.]

Addison, V.

Cuckney, L.

Alexander of Tunis, E.

Cullen of Ashbourne, L.

Allen of Abbeydale, L.

Cumberlege, B.

Allenby of Megiddo, V.

David, B.

Ampthill, L.

Davidson, V.

Anelay of St. Johns, B.

Dean of Harptree, L.

Archer of Sandwell, L.

Denton of Wakefield, B.

Ashley of Stoke, L.

Desai, L.

Astor of Hever, L.

Dixon-Smith, L.

Balfour, E.

Dormand of Easington, L.

Banbury of Southam, L.

Downshire, M.

Beaumont of Whitley, L.

Dubs, L.

Beloff, L.

Dundee, E.

Biddulph, L.

Dundonald, E.

Blatch, B.

Elibank, L.

Blease, L.

Elliott of Morpeth, L.

Brabazon of Tara, L.

Elton, L.

Bridgeman, V.

Erne, E.

Brigstocke, B.

Farrington of Ribbleton, B.

Butterworth, L.

Feldman, L.

Byford, B.

Ferrers, E.

Cadman, L.

Fisher of Rednal, B.

Calverley, L.

Fitt, L.

Campbell of Croy, L.

Flather, B.

Carlisle, E.

Fraser of Carmyllie, L.

Carlisle of Bucklow, L.

Gainford, L.

Carmichael of Kelvingrove, L.

Geraint, L.

Carter, L.

Gilmour of Craigmillar, L.

Chalker of Wallasey, B.

Glenamara, L.

Chelmsford, V.

Goschen, V.

Chesham, L. [Teller.]

Graham of Edmonton, L.

Clanwilliam, E.

Gray of Contin, L.

Cledwyn of Penrhos, L.

Gregson, L.

Clinton-Davis, L.

Grenfell, L.

Cockfield, L.

Grimston of Westbury, L.

132

Hailsham of Saint Marylebone, L.

Mountevans, L.

Harris of Greenwich, L.

Mowbray and Stourton, L.

Haskel, L.

Murton of Lindisfarne, L.

Hayhoe, L.

Nicol, B.

Hayman, B.

Norrie, L.

Hayter, L.

O'Cathain, B.

Henley, L.

Ogmore, L.

Hilton of Eggardon, B.

Orr-Ewing, L.

Holderness, L.

Paul, L.

Hollis of Heigham, B.

Pender, L.

Home, E.

Pilkington of Oxenford, L.

Hood, V.

Ponsonby of Shulbrede, L.

Howe, E.

Prentice, L.

Hughes, L.

Prys-Davies, L.

Inglewood, L.

Ramsay of Cartvale, B.

Ironside, L.

Rawlings, B.

Jenkin of Roding, L.

Rawlinson of Ewell, L.

Jenkins of Putney, L.

Renfrew of Kaimsthom, L.

Johnston of Rockport, L.

Renton, L.

Kilbracken, L.

Richard, L.

Kimball, L.

Richardson, L.

Lane of Horsell, L.

Robson of Kiddington, B.

Lauderdale, E.

Sainsbury, L.

Lester of Herne Hill, L.

Seccombe, B.

Lindsay, E.

Selborne, E.

Long, V.

Serota, B.

Lucas, L.

Sewel, L.

Luke, L.

Shannon, E.

Lyell, L.

Soulsby of Swaffham Prior, L

Macaulay of Bragar, L.

Stallard, L.

McColl of Dulwich, L.

Stodart of Leaston, L.

McIntosh of Haringey, L.

Strabolgi, L.

Mackay of Ardbrecknish, L.

Strathclyde, L. [Teller.]

Mackay of Clashfern, L. [Lord Chancellor]

Sudeley, L.

Symons of Vernham Dean, B.

Mackay of Drumadoon, L.

Taylor of Blackburn, L.

Mackie of Benshie, L.

Taylor of Gryfe, L.

McNally, L.

Terrington, L.

Malmesbury, E.

Thomas of Gresford, L.

Mar and Kellie, E.

Thomas of Gwydir, L.

Marlesford, L.

Trumpington, B.

Mason of Barnsley, L.

Turner of Camden. B.

Merlyn-Rees, L.

Varley, L.

Mersey, V.

Whitelaw, V.

Methuen, L.

Wigoder, L.

Middleton, L.

Williams of Elvel, L.

Miller of Hendon, B.

Williams of Mostyn, L.

Morris of Castle Morris, L.

Wise, L.

Resolved in the negative, and amendment disagreed to accordingly.
3.46 p.m.
[Amendment No. 4 not moved.]
Clause 7 [Firearms of historic interest]:
Lord Gisborough Lord Gisborough moved Amendment No. 5:
Page 3, line 13, leave out ("1919") and insert ("1946").
The noble Lord said: My Lords, it is the Government's intention to exempt "heritage" pistols, and a government amendment provided for that. One aspect of that amendment continues to give concern; namely, the early limit on the date that allows exemption from prohibition, 1st January 1919. In the original draft of an amendment to deal with heritage pistols, the Heritage Arms Rescue Committee proposed that for the purpose of the relevant section a heritage firearm should mean "any short firearm of a type which was first made before 31st December 1918". I stress the phrase, "first made". By thus defining a heritage pistol, the

133
difficulty that may arise in proving that a particular pistol, although clearly of pre-1919 design, was actually made prior to that date would be avoided.
The government amendment, by limiting heritage status to pistols manufactured before 1919, invites the very difficulty that the committee sought to avoid. Moreover, given that Britain—uninvaded during two world wars and long a major auction centre for historic arms—is a repository of fine European heritage arms made after 1919, the wording will inevitably cause valuable and interesting pieces to be destroyed or permanently exiled overseas.
While having recognisable significance as the end of the Great War, 1919 has less relevance to the manufacture of pistols. Variations of the Mauser of the type carried by Churchill in the Sudan, for example, continued to be manufactured up to and during the Second World War, as were variations of the Luger. The historical significance of both types is reflected in their financial values. A naval Luger pistol, for example, normally realises £1,400 to £1,800 at auction; with accessories the same pistol will fetch about £3,000.
Estimates prepared by the Heritage Arms Rescue Committee based upon confidential information from the auction houses, the trade and the Historical Breechloading Smallarms Association suggest that the aggregated value of privately held heritage pistols in this country is as high as £31 million. Many of the pistols that go to make up that figure will have been made after 1919. Thus, were the terminus that defines "heritage pistols" to be brought forward, the cost of compensating owners for their losses must be reduced.
For "trophies of war", which would be exempted from prohibition, the Government propose in Clause 6 a 1st January 1946 terminus following amendment in Committee. With that date having been accepted by the Government in a context analogous to that of heritage pistols, I propose a simple but brief amendment to Clause 7 which would bring the two termini into accord. Since the Heritage Arms Rescue Committee proposes that possession of heritage pistols will be authorised by a firearm certificate with no ammunition permitted, there would be no measurable risk to public safety. That is a point which the Government appear to have accepted. I beg to move.
Lord Renton: My Lords, perhaps I may set at rest my noble friend's mind. The previous clause, Clause 6, deals with trophies of war. It refers to any firearm,
"which was acquired as a trophy of war before 1 January 1946".
My noble friend desires the identical date for a firearm of historic interest. I should have thought that most of the firearms he might have in mind were trophies of war, manufactured before January 1946. Therefore, frankly, those concerned will not suffer much if they find that they cannot treat firearms of historic interest made before 1946 as being covered by the Bill. I should have thought that there was no need for the amendment.
Lord Gisborough: My Lords, with the leave of the House, they are two separate points. On the one hand there is the trophy of war. That could be any pistol
134
which was captured during the war and which was a trophy. Heritage pistols may well have been bought by collectors without any link to capture on the battlefield. I mentioned the Churchill Mauser which was not captured but which is obviously a great historical weapon.
Lord Renton: My Lords, as regards the manufacture of pistols, we are talking of recent times in referring to 1946.
Lord Cottesloe: My Lords, I support the amendment. Our arms heritage is an extremely important part of our total historical heritage and within it pistols feature prominently. Although we are grateful to the Government for the exemption which extends to 1st January 1919 that date does not coincide with any considerable historical watershed or any technological one. In terms of historical context, a date around the mid to late 1940s far more closely corresponds to the end of our imperial aspirations and our fighting to consolidate and then retain the Empire. It would also embrace pistols of the Second World War, so underlining their place in world and European, as well as imperial and British, heritage.
Much of our national heritage in pistols is held in large private collections. For those who have so much financially at stake, the loss of their holdings represents a loss in some cases of a major part of their personal assets. Under existing proposals, only a proportion would qualify for the Bisley exemption. So there would be a severe, perhaps in many cases irresistible, temptation to send collections overseas. For a nation to contrive the loss of a significant part of its heritage and the heritage of the Commonwealth is surely misguided, some would even say reprehensible.
The adoption of the amendment would save many post-1919 pistols of real interest and significance at no cost whatever to public safety. They would be kept—disassembled if required—without ammunition. Moreover their age and outmoded design make them very unlikely targets for anyone seriously bent on crime. Spare parts are very difficult to locate, even at present; the task will be yet more problematic after the Bill is passed.
After all is said, the historic pistols that the amendment seeks to preserve include some which were carried in our darkest hour, our finest hour. They are as much part of the story of this country's survival as are the carefully preserved Cabinet War Rooms in Whitehall; the anti-invasion pillboxes and other defences scattered across our countryside now at last being systematically listed to ensure their survival; or the Spitfires and Hurricanes so devotedly kept in flying condition by armies of enthusiasts. There is no valid reason to discriminate against historic pistols. I support the amendment.
Baroness Blatch: My Lords, the amendments would extend the provisions in Clause 7 to allow historic handguns to be kept at home as part of a bone fide collection. I understand the reasons behind the amendment. It would increase the number of handguns

135
that may be kept at home, especially those that were manufactured in the inter-war years and during World War Two. I know that the police have expressed grave doubts about the greater availability of the weapons and the risk to public safety that they would create.
Under Clause 7 as at present drafted certain historic handguns manufactured since 1919 would not be destroyed but could be stored at sites designated by the Secretary of State. Such sites would have to meet similar security standards as the licensed pistol clubs. This would allow the historic guns to be safely stored, reducing the risks to the public but allowing the guns to be appreciated by their owners and others.
For all the reasons I have given as well as the point made by my noble friend, we believe that we are talking about relatively recent guns in a collection. Therefore, we find the amendment unacceptable as a compromise and are unable to accept it.
Lord Gisborough: My Lords, I thank my noble friends for supporting me. Clearly there is no point in going to a Division. I therefore beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 6 not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 7:
After Clause 7, insert the following new clause—
("Exemption for weapons etc. used for tranquillising animals
WEAPONS AND AMMUNITION USED FOR TRANQUILLISING ANIMALS
. The authority of the Secretary of State is not required by virtue of subsection (1)(aba), (b) or (c) of section 5 of the 1968 Act for a person to have in his possession, or to purchase or acquire, or to sell or transfer any firearm, weapon or ammunition designed or adapted for the purpose of tranquillising or otherwise treating any animal, if he is authorised by a firearm certificate to possess, or to purchase or acquire, the firearm, weapon or ammunition subject to a condition restricting its use to use in connection with the treatment of animals.").
The noble Baroness said: My Lords, under the Bill as currently drafted vets will be eligible to apply to the police for a firearm certificate allowing them to hold a high calibre handgun and expanding ammunition for use in connection with the humane destruction of animals. As part of their professional duties vets also have recourse to pistols, rifles and blowpipes for administering tranquillising darts or darts containing other medicines such as antibiotics to sick animals. Under the current legislation the Secretary of State's authority is required, under Section 5(1) of the Firearms Act 1968, for the possession, purchase, acquisition, manufacture, sale or transfer of any lethal barrelled weapon used for the discharge of any noxious substance and any ammunition which contains such noxious substances.
This gives rise to an anomaly. Under the Bill a vet will need only a Section 1 certificate, granted by the police, for a high calibre handgun used to kill animals. But for merely putting an animal to sleep or treating it with a specially adapted gun he will need the higher
136
level authority from the Secretary of State. This amendment has the effect of allowing tranquillising guns and darts simply to be covered by a specially conditioned Section 1 firearm certificate issued by the police.
The Royal College of Veterinary Surgeons is content with the change. Both the Association of Chief Police Officers in England and Wales, and the sister association in Scotland, have been consulted and are content that the change does not pose any greater risk to the public. The tranquillising equipment would still need to be held by a vet on a firearm certificate issued by the chief officer of police. I beg to move.
On Question, amendment agreed to.
Clause 9 [Expanding ammunition etc.: exemptions from prohibition]:
Baroness Blatch Baroness Blatch moved Amendment No. 8:
Page 4, line 1, leave out ("second") and insert ("first").
The noble Baroness said: My Lords, in moving Amendment No. 8 perhaps I may say that there is a minor error on the Marshalled List of which parliamentary counsel are aware. In Amendment No. 40, the last line should include the words "Section 27" instead of "Section 26".
I apologise for the number of the amendments, which are technical and drafting. The group comprises Amendments Nos. 8, 9, 11, 13 to 15, 19, 22, 30 to 37, 40, 47, 51, 54, 59 to 67, 69, 72 to 79, and 81. They concern consistency of language and clarity and have no policy implications whatever. I beg to move.
4 p.m.
The Earl of Balfour: My Lords, in this group of amendments I shall refer first to Amendment No. 30. There is a considerable difference between the word "surrender" and the word "deliver". Let me give your Lordships an example. When a keeper whom I employed suddenly died I found, rather to my horror, that not having the estate's .22 and .243 rifles on my certificate, I could not take those guns to my house. They had to be taken to a firearms dealer to be looked after until my certificate was altered. I surrendered the guns to the police, who then delivered the guns to an agreed firearms dealer. The police, would not permit me to drive five miles to deliver the rifles in question to the firearms dealer. So I believe that there is quite a difference.
I realise that Clause 27 deals with clubs. However, I feel that there could be some delay. I remind your Lordships that most steel gun cabinets have two locks and each lock requires a different key. If the police take away the keys, that at least makes it secure. That is my first point on my noble friend's amendment.
In Amendment No. 69 to Clause 80, unless I am mistaken, the letter (b) should not be there at all.
Those are my only comments on the amendments.
Baroness Blatch: My Lords, I wondered whether my noble friend Lord Balfour would raise the point. I believe that our amendment covers all my noble friend's concerns. Clause 27 of the Bill to which

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Amendment No. 30 refers, sets out precisely what would happen as regards the licence for a small calibre pistol club were that licence ever revoked. First, one would hope that there would be no occasion to revoke such a licence. But it is in the nature of legislation such as this that one covers all possible eventualities. My noble friend referred to one such eventuality.
The revocation would be a matter for the Secretary of State who issues the licence under Clause 27. He would send a notice to the responsible officer of the club or possibly to other members of the club if there were reason not to send it to the responsible officer. There must be provision, under the circumstances, for the small calibre pistols which are held at the club, and so the notice will require the people to whom it is sent to deliver them to the police. They would remain the property of their owners who would be able to join other clubs or sell them to firearm dealers if they prefer.
I understand my noble friend's concern. Whereas the Bill currently specifies that the pistols must be surrendered to the police, the amendment would require them to be delivered. In practice, that would mean the same thing and hence the amendment. The Government envisage that if one of the licences is revoked, the police would deliver the Secretary of State's notice to the club and they would therefore be on the premises to take delivery. The club members would deliver the guns to the police simply by handing them over, just as they would do if the Bill required them instead to surrender them.
There is also provision under Clauses 10 and 12 of the Bill for delivery to be effected by the club to the police station either by the responsible officer or by a third party, if by any chance that seemed the right thing to do. But we do not envisage that happening in practice, even if the time should come when any of the small calibre pistol licences issued under the Bill were revoked.
The point of the change from "surrender" to "deliver" in this clause is to clarify the fact that members of a licensed club do not forfeit their ownership of the pistols kept there by reason of that revocation. The clause already provides that the owners may recover those pistols from the police. So there is no change in policy in that respect.
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 9:
Page 4. line 9, after ("ammunition") insert ("to use").
On Question, amendment agreed to.
Clause 10 [Having small-calibre pistol outside premises of licensed pistol club]:
Baroness Blatch Baroness Blatch moved Amendments Nos. 10 to 12:
Page 4, line 38, at end insert ("or a visitor's firearm permit").
Page 4, line 39, after ("by") insert ("virtue of').
Page 4, line 43, after ("certificate") insert ("or visitor's firearm permit").
On Question, amendments agreed to.
Clause 11 [Firearm certificates to be subject to special conditions]:
Baroness Blatch Baroness Blatch moved Amendments Nos. 13 to 16:
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Page 5, line 34, after ("for") insert ("the grant or renewal of').
Page 5, line 37, after ("applicant") insert ("or, as the case may be, renewed").
Page 6, line 6, leave out from ("to") to end of line 7 and insert ("a condition requiring the pistol to be kept at a licensed pistol club.").
Page 6, line 9, at end insert—
("(5) A holder of a visitor's firearm permit who commits an offence under section 17(10)(b) of the Firearms (Amendment) Act 1988 tin this Act referred to as "the 1988 Act") by failing to comply with any condition mentioned in subsection (1) or (3) above is punishable—

(a) on conviction on indictment, with imprisonment for a term not exceeding seven years or a tine (or both); and

(b) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum (or both)").

On Question, amendments agreed to.
Clause 12 [Permits to have small-calibre pistols outside licensed pistol clubs]:
Lord Harmsworth Lord Harmsworth moved Amendment No. 17:
Page 6, line 10, after ("pistol") insert ("or for a pistol of a specified calibre under section (Police and military shooting clubs: specified exemptions)(1)").
The noble Lord said: My Lords, in moving this amendment, with the leave of the House I shall speak to Amendments Nos. 18, 20, 21, 23 and 26. These amendments, of which Amendment No. 26 is the substantive one, allow serving members of police and military shooting clubs to continue to practise with large calibre weapons, consisting mainly of the types used in service, while off duty. Their weapons must be stored only in police and military armouries.
On Report, I gave notice that I might resubmit the amendments to your Lordships, having had a chance to consider the reply last week of my noble friend the Minister. I had also hoped that the amendments of my noble friend Lord Pearson might help me in my cause, but I regret that his disassembly amendment, to which your Lordships agreed, does not help me much.
Off duty police and military serving officers are caught by the Bill. I firmly believe that that is very much against the public interest. The next Dunblane, as I said on Report, may be a very different kind of Dunblane from the last one, where police and military marksmanship may be utterly crucial to the outcome. In armed robbery, where innocent bystanders are involved; in hostage taking, where, heaven forbid, children might be involved; or in terrorist acts, skills with weapons may be utterly crucial. As I said on Report, one can never get enough practice.
Under the Bill, police and military personnel will be restricted to the use of .22s when shooting off duty, just like any other member of the public. I simply do not accept my noble friend's statement that there is no necessity for service training to be supplemented by practice during off duty hours. I cited the case of a firearms officer in the Dorset police force who is able to augment the amount of time spent in service training on pistols, which amounts to once every two or three months, by a factor of five or six. I believe that that is not untypical. I have since had a letter from another expert, who suggests that a typical firearms officer who

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is a member of a police shooting club might fire 100 rounds of ammunition a week, against possibly 400 to 500 rounds a year on training.
This is likely to be the last opportunity to turn back from taking an irreversible and deleterious step. I do not feel that we should put ourselves in the position of failing to do the very best to allow those officers' marksmanship to be as perfect as it can be.
A former Inspector General, Doctrine and Training, Sir Peter Duffell, is in no doubt about the matter. His remarks apply equally to military and police personnel. I have no hesitation in reminding your Lordships of what the general said:
"Precision is all important—whether it be in making sure that the enemy is hit with the first shot (in modern warfare you seldom get a second chance) or in ensuring that innocent bystanders are not hit".
The Government say that the training is adequate. That, to my mind, is a rather Mandy Rice-Davis type of response. Both the MoD and the Home Office would have to say that and it must surely be technically true. But there is a world of difference between a basic acceptable standard and a training regime which can be improved upon by constant practice should the serving member of the police or military club wish to do better. That is the best position. Any amount of service training will be bettered by any amount of supplementary private practice. I would have thought that that was self-evident.
A desperate gunman, or gunmen, may have taken a hostage or hostages; they may be nervous and trigger-happy. Firearms officers will have only one chance to get it right. They must pick their moment. Surely their every nerve should be strained towards doing the right thing, to getting the timing right. The accurate use of the firearm must not be a matter for concern at that point. Its accurate use must be second nature: taken for granted. The police or military must be able to handle their weapons in the way that a very experienced driver handles his car, not one who has just passed his driving test. Off duty practice is a public safeguard.
To move on to storage: a central feature of the Cullen report was ownership and storage of handguns. The noble and learned Lord, Lord Ackner, has drawn attention to what one might term the "gloat factor" in the wretched Thomas Hamilton affair. In my amendments no such opportunity for gloating ownership exists for legally held full-bore weapons. My amendments place their secure storage beyond reasonable doubt. They cannot be stored at home; they must be stored exclusively in military or police armouries. What could be safer than that? I understand that some police shooting club or military club weapons are already so stored, even if not on a permanent basis. The requirement to store large calibre weapons in such tight security will often result in no change from current practice. Armoury storage is a central pillar of the amendments I seek.
If your Lordships agree these amendments it would be in the knowledge that the members of these clubs will have been very closely vetted; that they are continually monitored by their immediate supervisors. Your Lordships would also be preserving a very valuable source of recruitment. Sir Peter Duffell was in no doubt about this when he said:
"I feel I should also stress the benefit the Armed Services derive from recruitment as a direct or indirect result of the activities of rifle and pistol clubs".
As I said on Report, I am not going to claim that the large calibre of the weapon is a sine que non so far as recruitment is concerned, but there must be an association.
The police too are in no doubt about the recruitment aspect. A former chief inspector and chief instructor of firearms, John Warner, states, and I précis:
"Police who have received only in-house training are initially surprised and embarrassed by the standards displayed by civilian shooters. In consequence many Policemen become motivated to improve and during my period with the Police I encouraged officers to take up shooting as a sport. In Police Firearms Training, shooting is just one of the skills to be acquired, but from them all, shooting skills (or lack of them) continues to be a worry for many policemen. It troubles them that other demands within the service do not permit more time/training to ensure higher standards. It is here that civilian clubs can, and do, offer additional opportunities to improve skills and confidence to those Policemen who become members. Clubs do not claim to give 'Police Training', more simply the regular opportunity to handle and use a firearm. Once a policeman feels more confident and at ease with his firearm, he is able to give more attention to strategy and tactics, etc., and this must contribute to safety and security".
My amendments also cover compensation. Compensation under the amendments may be had at any time. At Report stage my noble friend the Minister suggested that it might be a problem compensating serving personnel who, in due course, surrender their large calibre handguns, either owing to a decision to discontinue or owing to ineligibility to continue to possess them through, for instance, retirement from active service. I hope I have not misinterpreted my noble friend's meaning but she said:
"That would be a financial obligation on the public purse that would remain in perpetuity".—[Official Report, 4/2/97: co1.1576.]
That is so but I do not see the difficulty. They would simply receive compensation as if they had surrendered the weapons immediately under the Bill. The Secretary of State has great flexibility in Clause 15. Inflation could take its toll. That is a price I am sure any serving member would agree to pay. The longer the guns are kept the less the compensation, if the Secretary of State so determines. The burden on the taxpayer would be almost negligible, particularly given the small number of shooters involved in the first place.
My amendments are very narrow in their application. They are self-contained. They leave the Bill largely untouched. The serving police and military shooters who are affected by the amendments constitute a small number. I do not think they would amount to more than five or 10 per cent. of the total 60,000 shooters there are estimated to be in the sporting world. Their weapons are securely stored in

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police or military armouries. They are shooters of the most vetted kind. They practise at no expense to the taxpayer. Their practice must contribute significantly to the public safety. I beg to move.
4.15 p.m.
Earl Attlee: My Lords, as the noble Lord said, he has brought this issue to us before, at Report stage. I think he does identify an important point, but not in the way that he has explained it. The important point is that the police and the military authorities will now have to devote far more time to training their personnel to the required standards. In other words, they will not be able to rely upon the efforts of individuals to do their own training.
However, I have not detected any pressure from outside in support of this amendment, even though I have looked for it—gently, I accept. Would this amendment apply to TA soldiers and special constables? Of course if it does, that would then provide a loophole which, if I were so disposed as a TA officer, I could possibly exploit. I wonder if the noble Lord has thought of that particular point?
Lord Gisborough: My Lords, it is absolutely vital that policemen should be accurate and quick on the defensive draw, and it may well be true that the official training only allows 500 rounds which, we are told, is not adequate for training. If these policemen are to have their pistols in order to shoot in off-duty periods, where are they going to shoot them? I hope they are not going to practise in their backyard. In fact, they will not because they will keep their weapons in the armoury, and if their weapons are in the armoury then presumably they will be practising on their ranges. I hope that is so. If training periods are laid on for the police, I ask whether the police cannot go along when they are off duty and practise on the same ranges they normally use for official training. In fact, a good deal of the training could be done with the .22.
As well as accuracy, what is important is anticipating the right occasion to use a pistol. There are, of course, highly technical simulators which can show a variety of scenes going on. There may be a man in the boot of a car who swings round, sometimes with a pistol and sometimes without one. The police officer has a fraction of a second to decide whether or not to shoot. He shoots with a ray gun of some kind. He has to make that split second decision which saves his own life. It is what is done on simulators. It is an important part of training for hitting the right person at the right time. I am not persuaded that the amendment is necessary.
Lord Harris of Greenwich: My Lords, only a minority of police officers are trained in the use of firearms. They are intensively trained. With great respect to the noble Lord, Lord Harmsworth, I do not consider that the amendment is necessary. I would be very concerned indeed were we to believe that police officers should be enabled to use firearms in the circumstances described in the amendment because it was the only way in which they could demonstrate they
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were proficient. Have any representations been made to the Association of Chief Police Officers in favour of this proposition?
Lord Monson: My Lords, I rise to support the amendment. There seem to be two salient points. First, highly respected senior police officers confirm that acceptance of the amendments would enable police officers to get in five or six times as much practice without any cost to the taxpayer than they would in the absence of the amendment. That must be good from the point of view of public safety. Secondly, as the noble Lord, Lord Harmsworth, said, the guns in question will be securely locked up in police or military armouries. That also enhances public safety.
Lord Pearson of Rannoch: My Lords, I wish briefly to support my noble friend's amendments, particularly Amendment No. 26. If the noble Lord, Lord Harris of Greenwich, is right and police officers receive sufficient training in the use of these weapons, I do not see how one squares that with what my noble friend Lord Harmsworth described as the allowance for service training-500 rounds once every two or three months or so.
I do not shoot with a pistol but I shoot with a rifle. I know how extraordinarily difficult it is to obtain accuracy with a rifle. I also know that it is very much more difficult to reach the required standards of accuracy with a pistol. Far too many people nowadays watch films and television where the villain, the cowboy or whoever it is draws a pistol, fires it and a hundred yards away a Red Indian or someone drops stone dead. It simply does not happen like that. Pistols are extraordinarily difficult to shoot accurately with. It requires a great deal of practice. I say with some regret to my noble friend Lord Gisborough that I do not think the simulated ray gun in the television studio is adequate. It does not deal with the question of recoil. That is absolutely vital for accuracy with a pistol.
There will be a very simple proof to this pudding in two or three years' time if police officers cannot shoot as accurately as they do today when they need to save their own lives or the lives of others. Therefore, I very much hope that my noble friend will look kindly on this amendment.
Lord Clifford of Chudleigh: My Lords, I wish to support that part of the amendment which deals with clubs. It is exceptionally important for us to understand that practice makes perfect. I am reminded of what my father said when he left this country to go to Guernsey. Someone asked him what he would miss most of all. He said, "the House". The person said what a lovely house it was. My father said, "No, no. I am not talking about my house. I am talking about the House of Lords. It is the best club in England". That is the important point. The club is a significant social institution.
Some noble Lords may know police officers who have been injured in the course of their duty and are disabled. Many noble Lords and many Members of another place are fit and able and sound of mind. However, by considering the Bill in its present form,

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each of us, no matter what our political persuasion, will be party to a selfish castigation of a minority. I am speaking about the disabled. How little we have heard spoken of this group in our society. How little we have heard of the Bill's effect on them. What little attention has been paid to them by those who signed the Treaty of Rome. No mention has been made of the disabled.
The 5,000 disabled pistol shots need to use a club. Those 5,000 people do not go to the firearms club just to shoot. They go to socialise. For their own good and well being they may be closeted in one of the many fine homes specifically designed to care for the disabled. Although they may get on well with the others in the home, it is good, it is fun and it is interesting to enjoy a visit to "the club" to participate in activities that are practised at the club—whether it be bingo, bowls or target shooting. They can then compare notes and socialise with others.
We donate millions of pounds to unfortunates abroad who are plagued by famine, war, disease and drought, but what are we doing—the nannies of society, whether national or international—about our disabled? We know full well that in 1995 we passed the Disability Discrimination Act. But now we are racing through a Bill which has clauses and subsections that are so costly to implement that firearms clubs will close down. There will be no more shooting for the police in their spare time or any one else. There will be no more socialising—certainly not for the disabled. Some will say that if one club closes people can always go to another. That is simple for the able bodied, who can just jump into their car after work or at the weekend and go to another club. It is not so easy for a person in a wheelchair—for the one-legged, the one-armed or the blind. Clubs are to be financially squeezed out of existence.
I hope noble Lords will understand that what I am talking about is indirect discrimination. Whether it be at Pratt's, at a pub, at White's or at a wine bar, we socialise and select the beverage of our choice. That also goes for firearms clubs. It is to do with the club. Because a particular beer is removed from a pub, that does not mean that it closes down. I hope noble Lords will understand that this relates to firearms as well.
The enabling clause about which we heard earlier is fine for the able Secretary of State, no matter which party it may be, but it does not complement the disabled. Unfortunately, enablement does not lead to the return of fingers, arms and limbs. I support the amendment.
4.30 p.m.
Lord Renton: My Lords, since time immemorial, Armed Forces and police forces have had their own arrangements for training their members in the use of pistols and other firearms. They are not mentioned in this Bill and that is not necessary. In order to set our minds at rest, in view of some of the things which have been said, can my noble friend assure us that those arrangements will continue?
Baroness Blatch: My Lords, the amendments concern licensed pistol clubs used by police or military
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personnel when off duty. The amendments will allow the police and military personnel to continue to shoot higher-calibre handguns at gun clubs as an exemption to the general prohibition on the use of higher-calibre pistols for sporting purposes. I explained at Report stage that service and police personnel receive training in the use of firearms on the same basis as they receive training in the other skills which they require in order to carry out their important work. I can give my noble friend Lord Renton and the House an absolute assurance that that will continue.
There is no strong argument that police officers and servicemen and women need to practise in their spare time in order to reach a suitable level of skill. In debate last week I promised that we would expedite inquiries with the police and the Armed Services to find out their views. In answer to the noble Lord, Lord Harris of Greenwich, we have done that. The Ministry of Defence and the Association of Chief Police Officers for England, Wales and Scotland agreed with our assessment. In each case it was confirmed that training for the requisite standards of proficiency is provided for the police and personnel of the Armed Services and that when off duty—and they all stressed this point—they should be treated as private citizens. The position remains that this Bill will not compromise at all the levels of training of our Armed Services and the police.
I know that concerns have been expressed by my noble friend and others that it would be wrong to make an allowance for police or soldiers to be allowed to shoot higher calibre handguns for sport and recreation when law-abiding members of the public cannot do so. I do not believe that my noble friend Lord Harmsworth answered the question as to whether that included members of the Territorial Army and/or special constables. I understand that technically both special constables and members of the Territorial Army could be subsumed, which would widen the provision very much and increase the numbers of people who could, as the noble Earl, Lord Attlee, said, get through this loophole.
There is another point. As my noble friend Lord Renton said, the Armed Forces and the police have their own facilities. As long as the chief officer authorises the use of those facilities, Armed Forces personnel and policemen and women can continue to use those facilities in what is technically off-duty time. As long as it is authorised by senior officers those facilities can be used. But as members of private clubs, they must be subject to their rules and shoot subject to the conditions set out in the Bill.
I am not sure that the point which was made quite passionately by the noble Lord, Lord Clifford, on behalf of disabled people has much relevance to this particular amendment. Having said that, there is no discrimination against disabled people in the Bill. Disabled and able-bodied people will be able to shoot at gun clubs. They will all be subject to the limitation of .22 rimfire pistols. Membership will not be inhibited in any way. The conditions for using those clubs will not be

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inhibited in any way. As I say, both disabled and able-bodied people will be subject to the controls set out in the Bill.
Lord Clifford of Chudleigh: My Lords, with the leave of the House, I did explain that it is indirect discrimination. If one closes a club one makes it that much more difficult for disabled people. I have spoken to such people.
Baroness Blatch: My Lords, if a club closes that is as much of a problem for an able-bodied person as it is for a disabled person. People will be disenfranchised from being able to take part in a sport where sometimes there is only a single interest. At other times, it may be just one of a number of recreations enjoyed by a number of people. I am not saying that the plight of disabled people is not serious; I am simply saying that in this Bill we are not specifically discriminating against disabled people in any way which is different from the provisions relating to able-bodied people.
The noble Lord, Lord Clifford, also made a point about funding for clubs. They will be eligible to apply for national lottery funds. I made that point at an earlier stage of the Bill. I am sure that those clubs which cater for the disabled shooter will qualify for special consideration by the Sports Council and maybe even under the charities part of National Lottery funds.
Lord Harmsworth: My Lords, I am very disappointed by my noble friend's reply. Before deciding what to do about this amendment perhaps I may address some of the points made in the debate. The first point is that the amendments apply to serving members of police and military shooting clubs. That will include anyone who is a serving member, including members of the Territorial Army. My noble friend Lord Gisborough asked where they would shoot. By and large members of police shooting clubs shoot in private police clubs, possibly on police or military ranges. As regards the military, because they are far more mobile than the police, I believe there is a tendency for them to shoot in private clubs.
I do not understand the worries over the use of large calibre guns by these people. The amendments require that they be stored in police and military armouries. Surely that is safe enough. Members of those clubs are also very heavily vetted and continuously monitored. Alas, the members of those clubs tend to keep to themselves. The police will shoot and keep themselves to themselves wherever they do so.
My noble friend Lord Pearson said that some of the weapons used on service are very difficult to use. I can certainly confirm that from yesteryear. Some of the weapons have a kick like a mule and practice with them is absolutely essential if they are going to be used in very difficult circumstances. Where innocent bystanders are about, accuracy is paramount. No end of practice can be anything but to the public advantage.
At Report stage I believe that my noble friend the Minister used the word "invidious" when referring to the scenario where a member of a military or police shooting club would be using a high calibre weapon
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where there are other members who are not entitled to do so. A typical police shooting club consists of members who are serving officers, ex-police officers, possibly members of the family and civilians who work for the police. I do not see how anyone in such a club would fail to recognise the importance of continuing practice by serving members with weapons which they themselves would be denied. I am quite certain that they would understand that, to the point where they would welcome their being able to do it.
If this amendment is not accepted never again will police and military personnel be able to practise in their spare time on service weapons. They will be confined to .22s. I believe that this is thoroughly deleterious, and it is too serious a matter to leave to police and military training alone.
Baroness Blatch: My Lords, perhaps my noble friend will forgive me if I intervene. If the facility for serving policemen and Armed Forces personnel is exclusive to their use with authorisation from a senior officer it is possible for them to shoot around the clock. I have before me letters from both the Association of Chief Police Officers and the Association of Chief Police Officers in Scotland, and a letter that deals with training of the Armed Forces. All say quite categorically that personnel will receive the training required to meet the proficiency levels of a serving police officer or member of the Armed Forces. All of them say unequivocally that when personnel are off duty and shooting in clubs with private members, that is, retired personnel, the families of personnel or those who are not members of serving families, they should be treated as private citizens. I repeat—it is important that noble Lords understand the position—that there is no question of compromising the training of our Armed Forces or policemen who are required to meet very high levels of proficiency in carrying out their duties.
Lord Harmsworth: My Lords, I understand exactly what my noble friend has said. Nevertheless, it is the plain fact that training can be augmented by a factor of five or six. It is not untypical for that to happen as a result of off-duty practice. Surely, that says something to the House.
Baroness Blatch: My Lords, there is nothing whatsoever to stop serving personnel, either the police or the Armed Forces, from continuing their membership of private clubs and shooting, but they will be restricted to .22 pistols on those occasions. But on all those occasions when they shoot exclusively in their own facilities they will be able to use high-calibre guns, as is consistent with their training.
Lord Harmsworth: My Lords, I did not catch the last part of my noble friend's answer. Is my noble friend saying that when not on duty police and military personnel can use ranges and high-calibre weapons?
Baroness Blatch: My Lords, no.
Lord Harmsworth: My Lords, in that case my point is still good. I believe that this is too important a matter to leave. I should like to test the opinion of the House.
4.47 p.m.
The Deputy Chairman of Committees (Lord Aberdare): My Lords, the Question is that this amendment be agreed to. As many as are of that opinion will say "Content"; to the contrary "Not-Content". I think the "Not-Contents" have it. Clear the Bar.
Division called.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, Tellers for the "Contents" have not been appointed pursuant to Standing Order No. 51. A Division therefore cannot take place, and I declare that the "Not-Contents" have it.
4.49 p.m.
[Amendment No. 18 not moved.]
The Lord Advocate (Lord Mackay of Drumadoon)The Lord Advocate (Lord Mackay of Drumadoon) moved Amendment No. 19:
Page 6, line 20, leave out ("recognised") and insert ("designated").
The noble and learned Lord said: My Lords, Amendment No. 19 was spoken to with Amendment No. 8. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 20 and 21 not moved.]
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 22:
Page 6, line 45, leave out ("the pistol") and insert ("such possession").
The noble and learned Lord said: My Lords, Amendment No. 22 was spoken to with Amendment No. 8. I beg to move.
On Question, amendment agreed to.
Clause 15 [Payments in respect of prohibited small firearms and ammunition]:
[Amendment No. 23 not moved.]
Clause 17 [Compensation scheme for firearms dealers]:
Lord Pearson of Rannoch Lord Pearson of Rannoch moved Amendment No. 24:
Page 9, line 20, after ("as") insert ("manufacturers or").
The noble Lord said: My Lords, the amendment is designed to make it clear that manufacturers are included in the new clause which your Lordships passed on Report on 4th February. That amendment would pay compensation for loss of business to registered firearms dealers. During our debate, the noble Lord, Lord Lester of Herne Hill, who moved the new clause, was asked by the noble Lord, Lord Stoddart of Swindon, whether the definition of "registered firearms dealer" contained in the new clause covered manufacturers as well as dealers. The noble Lord, Lord Lester of Herne Hill, replied to that question: "My Lords, that is right. The definition of registered firearms dealer includes manufacturer".—[Official Report, 4/2/97; col. 1583.]
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It seems clear to many of us from that statement that the intention of the new clause was to cover manufacturers and that that intention was supported by your Lordships in a Division. Certainly, if I speak for myself, I thought that I was voting to include manufacturers in the amendment moved by the noble Lord, Lord Lester of Herne Hill. However, it now seems that the new clause does not have that desired effect. The definition of "registered firearms dealer" contained in that new clause covers some manufacturers but not all.
Some manufacturers, such as those who make pistols, will be covered by the new clause as they are required to be registered as a firearms dealer. However, there will be others who are not required to register as dealers who will be equally affected by the Bill. These include the manufacturers of, for example, holsters, targets, target holders, target patches, target systems, pistol cases, reloading equipment, lead bullets, and magazine loaders. Those manufacturers are an integral part of the pistol trade, and will be as adversely affected by the Bill as those covered by the new clause which your Lordships passed. There does not seem to be any logical reason to exclude them.
If any noble Lords are in doubt about the difficulty which some of these people will be caused, they should be aware of the typical example of an ammunition manufacturer, Roger Curtis, who has built up his own business (Hayes Manufacturing near York) supplying ammunition to shooting clubs and police. He took out a £30,000 bank loan and sold his home to raise a further £36,000 to start his business, which had a projected annual turnover of £75,000. He has already been forced into liquidation and has lost everything.
I am sure that other noble Lords have received letters from other such unfortunate people. I certainly have. They all tell the same sorry tale. Many other manufacturers are facing the same fate. The amendment will cover these individuals and is wholly in line with these sentiments behind the new clause which we passed on Report. Including these manufacturers is not akin to writing a blank cheque. The original new clause, in the name of the noble Lord, Lord Lester of Herne Hill, is tightly drafted to make payments only for:
"Loss of business directly caused by the prohibition contained in section 1".
That is, prohibition of full bore handguns.
The merits of the case for compensating those who suffer business loss as a direct result of the Bill has already been accepted by your Lordships. This amendment is simply delivering the original intention behind that new clause to cover manufacturers. If the other place wishes to disagree with it when the Bill returns to it, that is of course its prerogative, as it is with all our amendments. On that basis, it is only honourable that this amendment be accepted today. I therefore commend it to the House. I beg to move.
Lord Lester of Herne Hill: My Lords, I am grateful to the noble Lord for having introduced the amendment, because it gives the House a chance to look more carefully at what arose last time. I should like briefly to

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explain why I very much hope that the noble Lord and the House will not accept the amendment, and that he will not pursue it.
The starting point is to work out the principle upon which compensation should be payable. The noble Lord, Lord McIntosh, on the previous occasion rightly pointed out that if one allows an obligation to compensate to become too widespread, then it will become a clog, a real fetter, upon beneficial social and economic legislation of one kind or another. I agree with him.
The principle upon which compensation is payable can be summarised in this way: first, there must be a real and direct nexus or connection between the legislative ban and the business which is being destroyed or blighted as a result of the ban. There must be a close link. Secondly, those who carry on the business that is blighted or destroyed must have a reasonable or legitimate expectation of being permitted to carry on that business until the ban comes into force.
Those principles are the distillation of the principles in Commonwealth constitutional law on what constitutes a taking or interference of property that triggers a compensation entitlement and the case law under the European Human Rights Convention. If one has a licence to run a business—a restaurant, a butcher's shop—the licence creates a reasonable expectation that until it is terminated one can carry on with that business. Suddenly the legislator intervenes and says, "Sorry, you can no longer do so", and it is the combination of the direct link and the expectation created by the licence that, in those highly exceptional circumstances, triggers a right to some compensation—not full, but fair.
That is why Clause 17, as it stands, including the amendment that was carried on the previous occasion, limits the category of those who will be entitled to compensation to registered firearms dealers. They include manufacturers, but they include only manufacturers who have to be licensed as registered firearms dealers. As the noble Lord, Lord Pearson of Rannoch, has indicated, his amendment would greatly widen the scope of the group to include any manufacturers who were wholly or mainly carrying on business as manufacturers and who suffered a loss of business as a direct result of the prohibition in Section 1 of the Act, as passed. That would widen the category far beyond what is required under the European Human Rights Convention or would be required in any system that had a constitutional guarantee of free speech.
The final thing I wish to say is a matter of politics and political judgment. We are concerned with the art of the possible, as the late Lord Butler of Saffron Walden, called his great autobiography. The art of the possible means, it seems to me, only passing amendments in this House that are likely to commend themselves to another place, especially in circumstances in which there is widespread popular support, rightly or wrongly—some might think wrongly—for an extremely wide draconian ban.
I am not an experienced politician, but it seems to me unwise, to say the least, to nibble away at the scope of the ban, as some other amendments have sought to do on the one hand, therefore losing sympathy for those
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who want the ban, and at the same time to seek to widen the compensation terms in a way that goes beyond precedent or principle, will add to the taxpayers' bill and so cause unnecessary opposition in another place. For those reasons I hope that the amendment will not be pursued. If it is, I for one shall not be in favour of it.
Earl Peel: My Lords, what concerns me about what the noble Lord, Lord Lester, has said, is that legislation should depend upon what is an acceptable level of compensation in these matters. It seems to me that what we should be talking about is a matter of fairness. In that respect, I support the amendment. I believe that my noble friend is right. I said so on Report. I did not think that one year was sufficient or fair. I still take that view.
I believe three years would be fairer. But the noble Lord, Lord Lester, talked about the art of the possible—
Lord Lester of Herne Hill: My Lords, if the noble Earl will permit me to intervene, I believe that he is addressing a later amendment which I support. However, the amendment with which we are now concerned deals not with the three-year period but with widening the definition to include manufacturers. That is the amendment to which I am speaking in opposition.
Earl Peel: My Lords, I was involved in a similar amendment with regard to manufacturers. Perhaps I may continue to speak because my arguments still apply. We are indeed talking about the art of the possible, but we are at Third Reading of the Bill and I hope that my noble friend will not press the amendment. Although I have a great deal of sympathy for what he says and believe that one year was not very fair in the first place, I do not believe that now is the time to pursue this matter.
5 p.m.
Lord Wyatt of Weeford: My Lords, the whole of the Bill is fatally flawed, exactly like the Dangerous Dogs Act. I feel deeply sorry for the splendid and noble Baroness, Lady Blatch. She has conducted her defence of an impossible Bill with the utmost dignity, courage and charm. In my view, she should be in the Cabinet where they need a bit of guts which they do not always display. The noble Baroness has plenty of them.
The Bill was borne out of hysteria and from the understandable anguish of the people of Dunblane. All parties have cynically competed with each other in milking the emotions which arose out of the Dunblane affair and they all ought to be ashamed of themselves. Not a single life will be saved by the Bill. There are many ways in which serial killers can kill. Indeed, as was said by His Royal Highness the Duke of Edinburgh, it can be done with a cricket bat if one can terrorise enough people. One can certainly murder with a sawn off shotgun and just as easily in many other ways. It has been done in this country and elsewhere and one does not necessarily need a gun.
Many decent people have been or will be ruined to the point of suicide by the removal of a livelihood which they had expected to conduct for a long time. Their

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profits have been lost well into the future and their businesses have been totally ruined. I have received letters from people saying that they will commit suicide if all this goes on much longer. Their properties have been extinguished and it is rather worse, well about on a par, with what Stalin did to the kulaks—
Lord Renton: My Lords, I do not believe that the noble Lord realises that we are dealing with Amendment No. 24.
Lord Wyatt of Weeford: My Lords, perhaps the noble Lord does not realise that this is also Third Reading
Noble Lords: No!
Lord Wyatt of Weeford: My Lords, all right, but my comments are still relevant because the amendment is just as flawed. The compensation is either inadequate or non-existent—
The Earl of Courtown: My Lords, I know that the noble Lord, Lord Wyatt of Weeford, is keen to speak, but perhaps he is speaking on far too general a subject than the amendment. Perhaps he would save his comments for the debate on Bill do now pass.
Lord Wyatt of Weeford: My Lords, I shall merely conclude by saying that the whole Bill should be repealed and sanity returned, and I hope that it will be.
Lord Stoddart of Swindon: My Lords, we have heard a new principle enunciated today; that the House of Lords must do only what is possible—not what is right but what is possible. It is suggested that we must do what we believe the House of Commons will agree with. What kind of second Chamber is that? I had always understood that the House was here to examine legislation passed by the House of Commons and, if necessary, to revise it. If all we are going to do is to pass amendments that the House of Commons will agree to what on earth are we here for? We might just as well all go home and attend to our own business.
I must say to the noble Lord, Lord Lester, and to the noble Earl, Lord Peel, that I do not accept that principle. We are here as a second Chamber to revise legislation. If the House of Commons does not like it, its duty is to say that it does not agree with the revision and to send it back. Having understood that position, perhaps I may turn to the amendment—
Lord Lester of Herne Hill: My Lords, perhaps I may clarify the matter in case there is any misunderstanding. I do not suggest that we are to be—
Lord Hailsham of Saint Marylebone: My Lords, on a point of order, we are on Third Reading and Amendment No. 24. I understand that three speeches are
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not permitted at this stage and now we have heard a fourth from the noble Lord on the Liberal Democrat Benches.
Lord Lester of Herne Hill: My Lords, I was going to ask the noble Lord, Lord Stoddart, a question and not make a speech. Is he suggesting to the House that in its role as a revising Chamber, which is undoubtedly the role of the House, it should seek to amend the Bill in a way which does not accord with any recognised principle of legislation to compensate and which would certainly not be required by our international legal obligations? Is the noble Lord suggesting that we should in some other way legislate because we are a revising chamber?
Lord Stoddart of Swindon: My Lords, we received clarification from the noble Lord, Lord Lester, but it is not satisfactory to me. I am concerned that this House should act in accordance with its role in the parliamentary process and in accordance with the Parliament Acts of 1911 and 1949. If we followed the noble Lord's dictum those Acts would be nullified and completely useless.
Let me turn to the amendment—
Lord Hailsham of Saint Marylebone: Hear, hear!
Lord Stoddart of Swindon: My Lords, I am most grateful to the noble and learned Lord, Lord Hailsham, for his support. I support the amendment because I was misled on Report when I was given the answer by the noble Lord, Lord Lester—it appears in col. 1583 of Hansard—that the 1968 Act covered manufacturers as well as dealers. I went on to refer to a manufacturer who manufactured only full bore handguns. When I voted for the amendment I understood from the answer given to me by the noble Lord, Lord Lester, that that manufacturer would be covered by the amendment. Seemingly, he is not covered by the amendment and therefore I believe that not only was he misled but the House was misled. I do not suggest that that was done intentionally, but the House has nevertheless been misled and John Slough of London, the manufacturer to whom I referred, is bound to have been misled by what was said in this House. I believe now that that position needs to be put right. I hope that your Lordships will agree that the impression given on Report was that manufacturers such as I have described were covered and that your Lordships will therefore put the matter right beyond peradventure by voting for the amendment.
Lord Monson: My Lords, I had not intended to intervene on this amendment although I fully support it, but the noble Earl, Lord Peel, whose contributions have in general been so valuable during our proceedings on this Bill, seems totally to have misunderstood the amendment. It has nothing to do with raising the admittedly derisory level of compensation in the clause in question, but merely provides that it should be extended to gun manufacturers. That is all.
Lord McIntosh of Haringey: My Lords, I am sorry, but that is one of the strangest things that I have ever

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heard said—even in this House. If you extend the range of people who receive compensation, you increase the level of compensation. We have just been compared to Stalin and the kulaks, but the noble Lord, Lord Monson, has made us mad as well as bad.
Lord Monson: My Lords, the noble Lord is too clever to believe what he actually said. It is the individual level that counts, not the overall level.
Baroness Blatch: My Lords, this amendment concerns Clause 17 of the Bill and would require the Government to make compensation payments to registered firearms dealers in respect of losses of business which are ascribed to the operation of this Bill.
Amendment No. 24 would make it clear that compensation should be made to persons and companies operating as manufacturers of ancillary equipment as well as to firearms dealers. As the House knows, we are opposed to payments of compensation for business losses by dealers and manufacturers of firearms and ammunition and we do not therefore support compensation payments to manufacturers of ancillary equipment. My understanding is that for the purpose of compensation, manufacturers are dealers. Therefore, the issue is not about including manufacturers, but that the amendment considerably widens the scope of payments to manufacturers of ancillary equipment.
Lord Pearson of Rannoch: My Lords, I am most grateful to all noble Lords who have spoken. I was a little perplexed by the reasoning of the noble Lord, Lord Lester of Herne Hill, because I understood him to say that the principle of his amendment (which was accepted by your Lordships' House a week ago) was founded on a real and direct connection between the legislative ban and the businesses blighted. It is beyond any reasonable doubt that businesses which manufacture the holsters for pistols and pistol cases and the other items to which I referred in my opening remarks will inevitably suffer from a real and direct connection between their businesses and this deplorable legislative ban.
The noble Lord, Lord Wyatt of Weeford, was very encouraging in describing this as a bad and hopeless Bill. I hope that he may have more to say when we come to the question of whether the Bill should pass today. The noble Lord was right to imply that no amount of compensation is adequate to compensate the 57,000 people who will lose their hobby and the 2,000 to 3,000 licensed small businesses which, if this amendment is not passed, face ruin in various degrees of severity.
I was grateful that the noble Lord, Lord Stoddart of Swindon, shared my impression of what we were voting for a week ago when we passed the amendment of the noble Lord, Lord Lester of Herne Hill. He was quite clear that, as we stand, he was misled on Report, as indeed was I, and that the 1968 Act covered all manufacturers as well as just dealers. I do not think that the noble Lord, Lord Stoddart, and I are imputing any blame to the noble Lord, Lord Lester of Herne Hill, but that is the situation.
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The noble Lord, Lord McIntosh of Haringey, said that this amendment, if passed, would increase the compensation payable and that is, of course, true, but that is only because we thought that it was included in the amendment that we passed a week ago.
I regret that my noble friend on the Front Bench has had the unpleasant duty of once again producing an entirely unreasonable, niggardly and mean reply to this amendment, but I think that if your Lordships are not in the mood to accept an amendment which would have enabled the Secretary of State to allow the wadcutter to be included in the Bill and therefore the British team to compete at the Commonwealth Games in Manchester in 2002, I hardly think that your Lordships will be in a frame of mind to accept this amendment which will cost the taxpayer more money. I therefore feel that I have no alternative but to withdraw the amendment.
Amendment, by leave, withdrawn.
5.15 p.m.
Lord Pearson of Rannoch Lord Pearson of Rannoch moved Amendment No. 25:
Page 9, line 26, after ("years") insert (", or for the total period of trading if less than three years,").
The noble Lord said: My Lords, this is a refreshingly brief amendment and I trust that it is not controversial. It tidies up the new clause that was passed at Report stage to make payments for loss of business to dealers who are directly affected by the ban on full-bore pistols. The new clause provides for payments,
"equivalent to one year of after-tax profits of the business, based on the average after-tax profits from the audited financial statements of the business for the three financial years before the passing of this Act".
The problem is that that criterion will exclude new businesses—it appears to exclude new businesses—which will have been operating for less than the three specified years because there is no average of three years to apply. Many new gun traders started their business after 1994 and have been badly affected by the Bill. Hayes Manufacturing in York, to which I referred in my opening remarks on the last amendment, is one example. I cannot believe that it was the intention of the new clause to punish those new traders simply because they have been in business for less than three years.
The amendment addresses that discrepancy and would provide for an auditor to calculate a payment for compensation for the total period of trading if that business had been operating for less than three years. I very much hope that on this occasion the noble Lord, Lord Lester of Herne Hill, will feel able to support the amendment and that my noble friend on the Front Bench will be able to do likewise.
Lord Lester of Herne Hill: My Lords, as the architect of what became Clause 17, I am happy to confirm that I regard this amendment as coming within the logic of Clause 17 as it stands. Perhaps I may explain the reason for that. As I sought to explain on the earlier amendment, the two principles underlying Clause 17 are, first, that there must be what I call a direct nexus between the ban and the damage to the

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business and, secondly, that there must be a reasonable expectation on the part of the owners of the business that they would be able to continue trading but for the ban. It is that second point, which the noble Lord, Lord Pearson of Rannoch, left out earlier, which is crucial.
It is essential to pay compensation because we are talking about licensed, registered firearms dealers—whether they be manufacturers or otherwise. That is why they come within the category that needs to be compensated. The noble Lord is right that it is illogical to exclude from the scope of the beneficiaries those new businesses which are registered, licensed firearms dealers. That is why including a three-year period in respect of them makes sense because on the date the Bill becomes law, they will have been registered firearms dealers, including manufacturers of firearms. I very much hope that this will not be regarded as a controversial matter. It is within the spirit of what the House has already approved. Therefore, I support it.
Earl Peel: My Lords, I must apologise to my noble friend Lord Pearson on two counts. First, I thought that he was speaking to Amendments Nos. 24 and 25 earlier. Secondly, the noble Lord, Lord Lester, was right in that I assumed that the amendment sought to increase the compensation from one year to three years. I apologise to my noble friend, who is absolutely right. It is only logical that this amendment should be accepted, bearing in mind what we accepted at the last stage. I very much hope that my noble friend on the Front Bench will see it in that light.
Baroness Blatch: My Lords, the Government would agree that if there are to be arrangements under which dealers are compensated for loss of business—as in the Government's view there should not—it would make sense to include provision for dealers who have been in business for less than three years as well as for those who have been in business for three years or more. I see this amendment as being consequential upon Clause 17, which was inserted by your Lordships, and I do not intend to oppose it.
Lord Pearson of Rannoch: My Lords, that is wonderful news. I am most grateful to my noble friend the Minister.
On Question, amendment agreed to.
[Amendment No. 26 not moved.]
Clause 21 [No pistol club to operate without a licence]:
Baroness Blatch Baroness Blatch moved Amendments Nos. 27 to 29:
Page 10, line 25, after ("certificate") insert ("or visitor's firearm permit").
Page 10. line 27, after ("certificate") insert ("or permit').
Page 10, line 31, after ("certificate") insert ("or permit").
On Question, amendments agreed to.
Clause 27 [Revocation of licence]:
Baroness Blatch Baroness Blatch moved Amendments Nos. 30 to 33:
Page 13, line 5. leave out ("surrender") and insert ("deliver").
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Page 13, line 13, leave out ("(2)") and insert ("(1)").
Page 13, line 28, leave out from ("is") to end of line and insert ("delivered into police custody in accordance with a notice under subsection (2) above").
Page 13, line 28, at end insert—

("(5A) A small-calibre pistol delivered into police custody by virtue of a notice under section 26(2) above shall not be released to any person except on the authority of the chief officer of police into whose custody it was delivered.

(5B) The holder of a firearm certificate relating to the pistol, or any other person who may lawfully have the pistol in his possession, may apply in writing to the chief officer for the release of the pistol (whether to him or to a person nominated by him).

(5C) When such an application is made the chief officer of police may require such written statements, from any person, as he considers necessary for the purpose of determining the application.").

On Question, amendments agreed to.
Clause 28 [Exemptions from section 1 of the 1968 Act for officers etc. of licensed pistol clubs]:
Baroness Blatch Baroness Blatch moved Amendments No. 34 to 37:
Page 13, line 32, leave out subsection (1) and insert—
("(1) The responsible officer of a licensed pistol club may, without holding a firearm certificate, have a small-calibre pistol or ammunition in his possession on the licensed premises of that club.").
Page 13, line 38, after ("pistol") insert ("or ammunition").
Page 13, line 39, after first ("premises") insert ("in any circumstances").
Page 13, line 41, after ("pistols") insert ("or ammunition").
On Question, amendments agreed to.
Lord Monson Lord Monson moved Amendment No. 38:
Page 13, line 41, at end insert—("(3) A member of a licensed pistol club approved by the Secretary of State may. without holding a firearm certificate, use under the supervision of an officer of the club, for a period not exceeding 60 consecutive days, a small-calibre pistol and ammunition when engaged as a member of the club in, or in connection with, target shooting.").
The noble Lord said: My Lords, this amendment is a re-run of one which I have moved twice before. Without it, newcomers to the sport will face discouragingly high hurdles and the sport will slowly but surely die out. A cynic might suspect a hidden agenda here. In response to government concerns, my Report stage amendment very considerably tightened up on my Committee stage amendment; and, indeed, this amendment tightens up yet further on my Report stage amendment by allowing only a 60-day rather than a 90-day trial period for probationers.
Although the Government seem to indicate considerable support in principle for my amendment, last time round the noble and learned Lord, Lord Mackay, was worried about the very unlikely scenario of a beginner stealing a pistol from a pistol club. But, of course, a pistol/rifle club—and many clubs cater for both pistol and rifle shooters—can legitimately allow the beginner, minus a licence, to try a .22 rifle. He, too, could theoretically steal a pistol but I suggest that that would not only be difficult to do but that it would also, in practice, be extremely unlikely. It would in fact be easier and cheaper for him to acquire an illegal gun.
Another point which has not so far been mentioned is the fact that beginners who have gone to the trouble and the considerable expense of obtaining a firearm licence and who then find that they are not really keen on or suited to the sport will almost certainly feel, if the amendment is not agreed to, that they must, nonetheless, continue in order to get their money's worth. The net result would be many more firearm licences in existence than would otherwise be the case. It seems to me that that is probably contrary to public policy.
It is possible that the drafting of the amendment is not perfect but there is no problem in that respect because it can easily be put right in another place, as our amendments usually are. Indeed, although our amendments are often acceptable in principle, they are normally altered in another place. I must stress again that, without the amendment, the sport of pistol shooting in Britain will gradually die out over the years because beginners will be discouraged. I beg to move.
Lord Gisborough: My Lords, I am surprised at this worry about pistols being stolen. Certainly, when one fires in the military—and I would imagine that it is much the same in any other performance—the firing point discipline is very strong indeed. I cannot conceive that a club would allow someone who has never shot before to go out on his own and say, "Right, have a few shots and come back when you've finished". This is just unthinkable. Therefore, the idea that beginners could steal a weapon is really going a little too far.
We know that many clubs will close because they will not be able to modernise, either for financial or various other reasons. However, it is perfectly true to say that the publicity that the Bill has given to pistol shooting will probably encourage more people to want to shoot pistols than have ever shot before. A new complex is being built in Stockton with lottery money which will cater for what may well be a huge influx of people who have suddenly become interested in pistol shooting.
It never occurred to me to go pistol shooting; indeed, I did not even know that many people liked to do so. However, I am now certainly aware of the number of people who do so and I think that it might be rather fun. In fact, I think that I might try it. I am sure that there are many other people who feel the same way. Without the facility for a beginner to start shooting with borrowed weapons and to have a go, clearly, as the noble Lord, Lord Monson, said, the whole sport will fade away. There must be a facility for young people to take up the sport if they can until such time as they have decided that they like it and want to invest in it properly.
Lord Swansea: My Lords, I should like to express my support for the amendment. I do so because any sport, whether it be pistol shooting, golf, archery or whatever, is dependent upon the regular intake of newcomers. The amendment would enable a new member—that is, someone who is perhaps taken by the sport and wants to have a go—to shoot under the auspices of the club without having a firearm certificate. As with any beginner. he would be under the closest supervision all the time and would not be allowed to handle a pistol unsupervised. Indeed, it is ridiculous to
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suggest that he would. What the amendment suggests is only for the good of the sport, which I hope the Government are prepared to encourage. I hope that the Government are not trying to get such clubs to close down and I trust, therefore, that my noble friend the Minister will be disposed to accept the amendment.
Earl Attlee: My Lords, when the Bill first came before this House there were so many issues to be looked at that one had to select which ones it was appropriate to consider individually. At a previous stage of the proceedings I recall speaking to a similar amendment. I believe I suggested then that we ought perhaps to have three classes of certificate. The lowest class with the easiest test for the police to apply would be one which would allow the person merely to use a pistol or a rifle at a club. The intermediate class would allow the person to take the pistol or shotgun from one location to another for use and then return it to the owner. That would obviously require a slightly stiffer test by the police. Finally, the toughest test would apply to a certificate which would allow a person to own and be responsible for a weapon.
If such a system were in place, the issue of probationary membership of clubs would not be so important because the police would carry out the necessary investigations before allowing a person to go to a club and use a gun. That would allow the police to carry out certain checks, especially the PNC check which would guard against criminal involvement.
The noble Lord mentioned drafting and said that it was not necessary to draft such amendments properly. I have some difficulty in that respect because I believe that we should not wilfully send the Bill to another place with incorrect drafting. That is why we should, wherever possible, force amendments through in Committee and then tidy them up on Third Reading. We do not appear to have much appetite for pressing Divisions this evening. So I hope, therefore, that the noble Lord will not press his amendment.
Baroness Blatch: My Lords, when a similar amendment was discussed at Report stage last week it was explained that the Government had a certain degree of sympathy but, at the same time, saw some difficulties with it.
We undertook to look at the question again, and to do so with some urgency. The question is a simple but important one. It is suggested that it is difficult for would-be users of small calibre pistols for target shooting to decide whether to apply for the necessary firearm certificate before they have had a chance to carry out that activity.
They could of course make use of low-power air pistols or—under the terms of this Bill—low-power pistols powered by compressed carbon dioxide. But there are obvious differences between these and genuine small calibre target pistols. The Government accept that point and there is no need for me to go into it in any further detail.
Our concern is that there should be some form of independent verification by the police that a person is suitable before he or she is permitted to fire the first

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shot. We have not so far been able to find a satisfactory means of achieving that, short of the checks associated with the granting of a firearm certificate. However, I undertake that we shall explore urgently with the police whether there is a workable arrangement short of full checks that would allow a chief officer to agree to a person shooting under supervision for a limited period. If we can agree a workable arrangement with the police, we may bring forward amendments to the noble Lord's amendment in another place. Therefore I shall not seek to oppose the noble Lord's amendment.
I must make clear, of course, that if a workable arrangement cannot be evolved, the Government may have to seek to reverse the amendment when the Bill returns to another place. It is therefore without prejudice to the outcome that I suggest that the House allows this amendment to go forward in order to give some time to consider the matter further and for a workable solution to be sought. If we do not accept this amendment, the other place will of course have no opportunity whatever to consider the matter further. On that basis I shall not oppose the amendment.
5.30 p.m.
Lord Monson: My Lords, I am extremely grateful to the noble Baroness for the time and the trouble she has taken to examine the amendment. I agree, I think for the first time during our entire consideration of the Bill, with every single word she said. I am pleased to accept her offer. I hope your Lordships will accept the amendment.
On Question, amendment agreed to.
Clause 29 [Registers to be kept by licensed pistol clubs]:
Baroness Blatch Baroness Blatch moved Amendment No. 39:
Page 14, line 7, after ("certificate") insert ("or visitor's firearm permit").
The noble Baroness said: My Lords, I spoke to the amendment earlier. I beg to move.
On Question, amendment agreed to.
Clause 32 [Penalty for false statements]:
Baroness Blatch Baroness Blatch moved Amendment No. 40:
Page 15, line 28, at end insert ("or the release of a small-calibre pistol from police custody under section 27 above.").
On Question, amendment agreed to.
Clause 33 [Transfers of firearms to be in person]:
Baroness Blatch Baroness Blatch moved Amendments Nos. 41 to 43:
Page 15, line 42, at end insert ("or a visitor's firearm or shot gun permit").
Page 16. line 2, after ("certificate") insert ("or permit"). Page 16, line 6, after ("certificate") insert ("or permit").
On Question, amendments agreed to.
Clause 34 [Notification to chief officer of police of transfers involving firearms]:
Baroness Blatch Baroness Blatch moved Amendments Nos. 44 and 45:
Page 16, line 17, after ("certificate") insert ("or, as the case may be, a visitor's firearm or shot gun permit").
Page 16, line 19, at end insert ("or permit").
On Question, amendments agreed to.
Clause 35 [Notification of de-activation, destruction or loss of firearms or ammunition]:
Baroness Blatch Baroness Blatch moved Amendments Nos. 46 to 53:
Page 16, line 30, after ("relates") insert ("; or
(b) a firearm to which a visitor's firearm or shot gun permit relates,").
Page 16, line 33, leave out ("issued") and insert ("granted").
Page 16, line 33, at end insert ("or permit").
Page 16, line 35, after ("certificate") insert ("or a visitor's firearm permit").
Page 16, line 36, after ("certificate") insert ("or permit").
Page 16, line 38, leave out ("issued") and insert ("granted").
Page 16, line 38, at end insert ("or permit").
Page 17, line 5, leave out from first ("1988") to first ("be").
On Question, amendments agreed to.
Clause 36 [Notification of events taking place outside Great Britain involving firearms etc.]:
Baroness Blatch Baroness Blatch moved Amendment No. 54:
Page 17, line 21, leave out ("issued") and insert ("granted").
On Question, amendment agreed to.
Clause 40 [Register of holders of shot gun and firearm certificates]:
Lord Marlesford Lord Marlesford moved Amendment No. 55:
Page 19, line 15, leave out from ("persons") to end of line 16 and insert ("who have applied for a firearm or shot gun certificate or to whom a firearm or shot gun certificate has been granted or whose certificate has been renewed.").
The noble Lord said: My Lords, in moving Amendment No. 55 I wish to speak also to Amendments Nos. 56 and 57. These three amendments seek to tidy up Clause 40 which noble Lords will remember they inserted in the Bill at Report. The new clause seeks to set up a central register of all persons holding a shotgun or firearm certificate and to have it recorded on a computer with a number to which the police have direct access.
I was extremely grateful to receive a message on Friday from my noble friend's office saying that the Government were now ready to accept the new clause and the purpose behind it. It was put to me that it needed small modifications with which I have no difficulty. I thank my noble friend for arranging for me to visit the police national computer and the PHOENIX project at Hendon this morning. I spent a most useful two-and-a-half hours with Mr. Ladley, the Hendon data centre manager, and Chief Inspector Twigg, the PHOENIX project manager.
Two things arose as a result of the meeting. First, it will be practical to introduce the register that I sought within a reasonable timescale and at a reasonable cost using the facilities at Hendon. It appears that in about six months' time when certain operations being added to the police national computer have been digested, it will be possible to start putting into operation the new national register we seek. That will probably take about six months and will cost something in the region of £350,000. I suggest a budget of half a million pounds, but that is small in relation to the cost of other provisions in the Bill. It would then probably take about six months for police forces to transfer the data which

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each holds on to the new national register. We can expect that the new national register will be up and running by, let us say, October 1998.
Secondly, I learnt how right your Lordships were to put the new clause on the face of the Bill because there is no way in which the facilities, resources or priorities which previously existed at Hendon, and those of the Treasury, would have allowed this to happen within the reasonable timescale we seek. As your Lordships will remember, the whole object of the new register is to keep a much better check on the sort of people who are given certificates or licences for any form of firearm and to make it less likely that they are granted to unsuitable people which may lead to a further Hungerford or Dunblane. In recommending these three amendments I thank warmly those of your Lordships who spoke in favour of the measure on Report and those noble Lords on all sides of the House who voted in favour of the new clause. They have made this measure possible.
Baroness Blatch: My Lords, I am grateful to my noble friend for his Amendments Nos. 55, 56 and 57 to Clause 40 dealing with a central register of certificate holders. This now sets out a clear and achievable requirement for the establishment of a register. As my noble friend saw for himself during his visit earlier today to the site of the PHOENIX computer system, PHOENIX provides the police and other agencies with a sophisticated information system to support them in their tasks. The firearms register will form an important component of the system. I am happy to accept the amendment.
On Question, amendment agreed to.
Lord Marlesford Lord Marlesford moved Amendments Nos. 56 and 57:
Page 19, line 20, leave out ("provide") and insert ("be kept by means of a computer which provides").
Page 19, line 20, leave out from ("forces") to the end of line 23.
On Question, amendments agreed to.
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 58:
After Clause 41, insert the following new clause—
APPEALS
(".—(1) For section 44 of the 1968 Act (appeals against police decisions) there shall be substituted the following section—
"Appeals against police decisions.
44.—(1) An appeal against a decision of a chief officer of police under section 28A, 29, 30A, 30B, 30C, 34, 36, 37 or 38 of this Act lies—
(a) in England and Wales, to the Crown Court; and
(b) in Scotland, to the sheriff.
(2) An appeal shall be determined on the merits (and not by way of review).
(3) The court or sheriff hearing an appeal may consider any evidence or other matter, whether or not it was available when the decision of the chief officer was taken.
(4) In relation to an appeal specified in the first column of Part I of Schedule 5 to this Act, the third column shows the sheriff having jurisdiction to entertain the appeal.
(5) In Schedule 5 to this Act—
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(a) Part II shall have effect in relation to appeals to the Crown Court; and
(a) Part III shall have affect in relation to appeals to the sheriff."
(2) In Schedule 5 to the 1968 Act (provisions as to appeals), after Part II there shall be inserted—
"PART III
APPEALS IN SCOTLAND
1. An appeal to the sheriff shall be by way of summary application.
2. An application shall be made within 21 days after the date on which the appellant has received notice of the decision of the chief officer of police in respect of which the appeal is made.
3. On the hearing of the appeal the sheriff may either dismiss the appeal or give the chief officer of police such directions as he thinks fit as respects the certificate or register which is the subject of the appeal.
4. The decision of the sheriff on an appeal may be appealed only on a point of law." ").
The noble and learned Lord said: My Lords, in moving this amendment I wish to speak also to Amendment No. 80. Both amendments deal with the important issue of appeals procedures. It is right that I should explain briefly to the House the background to the amendments which seek to lay down a procedure for appeals against various decisions by chief constables under the firearms legislation. As noble Lords will recall, Lord Cullen made a number of important observations on appeals against these decisions. I shall describe in outline what the main recommendation was and how the Government propose to respond to it.
At the outset the Government accepted Lord Cullen's recommendation that consideration be given to reform of the appeal arrangements. In the event this turned out not to be a straightforward task. Case law on appeals has developed over the years, and despite the fact that the statutory provisions for Scotland and for England and Wales are similar it has developed in different ways. Partly because of that, I suspect, Lord Cullen's report did not give a clear blueprint for action but recommended that detailed consideration be given to the matter.
The Government continued with the consideration after the announcement of their response. In December the view was reached that it was important to consult with those most knowledgeable about, and interested in, the appeals procedures, including members of the judiciary, the legal profession, the police and shooting organisations. Conscious that we were initiating consultation just before Christmas, we thought it right, despite the urgency of the matter, to give consultees approximately one month to respond. We asked for their replies by 23rd January and since then a great deal of work has gone into considering the replies and the implications arising from them for statutory change. It is a matter of regret, for which I apologise to the House, that the drafting of the amendments could not be completed in time to give your Lordships' House the normal period between the tabling of the amendments and today's debate.
Perhaps it might assist the House if I remind noble Lords that at paragraph 8.119 of his report Lord Cullen said that consideration should be given to reforming the

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scope for appeal against decisions of the chief officer of police, by restricting it to enumerated grounds which do not trench on the exercise of his discretion.
In the course of his inquiry, Lord Cullen looked with great care at the way in which firearms appeals are currently conducted. He highlighted uncertainty in Scotland about key questions—in particular whether the sheriff on appeal could effectively hear the case afresh or whether (as had earlier been the understanding) he could only interfere with the decision of a chief officer of police if he were persuaded that it was a capricious or arbitrary exercise of his discretion. Lord Cullen also highlighted diverging approaches between Scotland on the one hand and England and Wales on the other hand, to which I have already referred.
Lord Cullen addressed the issue as to whether an appeal should amount to a rehearing of the application that had been refused or revocation of a certificate. In his report at paragraph 8.117, he said:
"It is to my mind strange that, when so much importance attaches—and rightly so—to the responsibility of the police and in particular the decision-maker, that a court of law should take on the responsibility of discharging that function in deciding an application or a question of revocation…While cases may occur in which a chief officer of police proceeds on what turns out to be incorrect information or mistaken view of the law, the core of his function is the exercise of his judgment."
At paragraph 8.119, Lord Cullen concluded that the appropriate approach was,
"to recognise the discretion of the chief officer of police, retain the courts as the avenue for appeal, and limit the scope of appeal to enumerated grounds which between them should cover the areas in which there should be room left for appeal."
Lord Cullen then drew attention to the Licensing (Scotland) Act 1968 and the Civic Government (Scotland) Act 1982 which contained provisions which in his view seemed to form a model for putting that approach into practice.
The initial view of the Government was that Lord Cullen's approach seemed eminently sensible. But detailed consideration of what he recommended, both in the light of the consultation which we carried out, and, more particularly, in the light of the terms of the European Convention on Human Rights, revealed that we could not safely proceed in that way without risking a violation of Article 6 of the convention. Article 6(1) requires independent judicial determination when somebody's civil rights are being affected by a decision. Our view, having considered the points made in consultation, is that the procedure for decisions by the chief constable, coupled with appeal limited to the grounds recommended by Lord Cullen, would not amount to a proper compliance with Article 6(1).
We therefore had to think long and hard about what to do in the light of the conflict between Lord Cullen's favoured approach and the terms of the European convention. We have reached the view that the best way forward is to clarify the position for appeals in both Scotland and England and Wales. We have decided essentially to include on the face of the Bill arrangements under which appeals have been made in England and Wales under the existing legislation, thus removing any uncertainty which may have affected
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appeals in Scotland. As Lord Cullen rightly said, that uncertainty was "clearly unsatisfactory". Accordingly, while we do not go as far as Lord Cullen favoured and to some extent recommended—indeed, we are not going as far as some noble Lords would have wished—in amending the appeals arrangements, I hope that chief constables having considered this clarification of the position will understand and respect it.
I turn briefly to the terms of the amendments themselves. Amendment No. 58 inserts a new clause into the Bill to give effect to the decisions that I have just described. The new clause replaces the existing Section 44 of the 1968 Act. It lists the various decisions by chief constables which can be subject to appeal under the Act. The list has been amended to include the new sections which the Bill seeks to insert into the 1968 Act. The new Section 44 restates the fact that in England and Wales appeals are made to the Crown Court and in Scotland to the sheriff. It provides that the court should hear a full appeal on the merits of the case. The chief constable will be able to take account of all information which is available to him in reaching his decision. The court will be able to take account of any evidence or other information then available whether or not it was available to the chief constable when the original decision was taken by him.
The amendment creates the necessary link to Schedule 5 to the 1968 Act which sets out the detailed arrangement for appeal procedures including which Scottish sheriff has jurisdiction to hear a particular appeal.
The new clause also inserts into Schedule 5 the necessary detailed arrangements for appeals in Scotland. The summary application procedure is to be used in appeals to the sheriff, as currently happens. It provides that appeals will be made within 21 days' notification of the decision appealed against. It also clarifies what the sheriff may do after hearing the appeal. He may either dismiss it or give the chief constable directions on the certificate or register which has been the subject of the appeal.
Appeals from the sheriff are allowed only on a point o law. Since the sheriff will have heard a full appeal on the merits of a specific case, it is unnecessary to have a further appeal except on points of law. Amendment No. 80 is a simple, consequential amendment which I need not go into.
I apologise for speaking at such length on the amendments. However, in view of the problems that the Government face in dealing with the detail of Lord Cullen's recommendation, and the importance of the matter to members of the shooting community and to chief constables, I thought it appropriate to set out a full explanation of what lies behind Amendment No. 58.
The Earl of Mar and Kellie: My Lords, I should like to support the amendment, but I hope that the noble and learned Lord the Lord Advocate can help me. I am concerned about the use of subjective criteria for determining whether someone should or should not have a firearms licence. In the case of Thomas Hamilton, the problem for the Central Scotland Police was that they

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had heard many what can only be described as rumours about his unsatisfactory behaviour and therefore unsuitability for a firearms licence, but they had no objective criteria. He had not committed any offences about which they knew. Therefore, they did not feel that they could refuse him a licence.
Does the amendment allow the police to refuse a firearms licence on the ground that a person is an unsavoury character? Are they able to proceed with a refusal without fear of that refusal being overturned on appeal?
Earl Attlee: My Lords, I support the noble Earl. I had similar concerns about the ability of the chief constable to take non-conviction information into consideration. That point came out in great detail in the Cullen Report.
Will the appeal procedure reflect the ability of the chief constable to consider non-conviction information?
The Earl of Balfour: My Lords, on reading this Bill and, again, the 1968 and 1988 Acts, I felt that the appeals procedure in Scotland was very weak. I am glad that the amendment has been introduced.
Lord Harris of Greenwich: My Lords, perhaps I may put a question to the noble and learned Lord the Lord Advocate. At the end of his remarks, he indicated that he hoped that chief officers of police would understand the reasons why the amendment was phrased as it is. If he will forgive my saying so, that implies that their representations to the Home Office and the Scottish Office pointed the Government in a different direction. Is that true? In other words, are the police content with the way in which the Government are proceeding?
Secondly, I wish to take up a point made a few moments ago. Let us say that the police have criminal intelligence that a man who has no previous criminal convictions has an unsatisfactory personality, or that he consorts with people so as to give rise to a belief that at some stage in the future he might behave unreasonably or irrationally. Is that enough to entitle a chief officer to turn down that person's application for a firearm licence? We should be clear on these points. There is great concern in the police service to get this matter right at this stage.
Lord Hylton: My Lords, the issue of objective and subjective criteria was raised in relation to this amendment. If rumours or allegations are flying about, would it not be prudent in many cases for the police to ask for a mental health check to be carried out on an individual before they satisfy themselves that he is suitable to be awarded a firearm certificate?
Lord Annan: My Lords, I do not know any way in which this cannot be a subjective judgment. All judgments concerned with moral questions are in the end subjective. The argument of the noble and learned Lord the Lord Advocate was perfectly valid.
Lord Mackay of Drumadoon: My Lords, I am grateful for the support that the amendment has
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attracted. To deal first with the point raised by the noble Lord, Lord Harris, police officers have been consulted on this matter, both in the Scottish association and the association covering England and Wales. I think that they will not be upset if I disclose that they would have preferred the approach that was clearly preferred by Lord Cullen although not specifically recommended by him. The implications of the European convention were explained to them. One of the reasons for my detailed explanation of what lies behind the amendment is so that everyone can understand why there has been this admitted change of tack.
I turn to the question of what information chief constables may take into account. It may not be helpful to look at the matter in terms of objective or subjective criteria. Chief constables are not restricted in any way in the information that they may take into account in deciding whether to grant an application or revoke a certificate. They are entitled to take into account the existence of criminal convictions; they are equally entitled to take into account evidence or information suggesting some aspect of an individual's character or behaviour which renders that person inappropriate either to obtain or retain a certificate. In other words, the information that chief constables have would not require to be necessarily admissible in law in a criminal or civil case for that information to be relevant to a chief constable's decision. His decision on an application before him has to be his own personal assessment based on information available to him, from wherever it came.
The import of the amendment, as opposed to the approach favoured by Lord Cullen, is that when the court comes to consider an appeal, the chief constable is required to lay all that information before the court to seek to justify his or her decision. Equally, the court is not limited, as in a criminal case, to receiving evidence or information that is admissible only if it complies with certain statutory provisions. Equally, the applicant or former holder of a certificate is not bound by the strict rules of admissibility of evidence. It is a full re-hearing, to be conducted by the Crown Court or sheriff court, taking into account any information, from whichever source, that any chief constable or applicant wishes to lay before it.
Lord Pearson of Rannoch: My Lords, I am most grateful to my noble and learned friend for giving way. While he is on this point, will he say whether he would expect a chief constable to refuse a firearm certificate to someone solely on the grounds that that person had a driving conviction? I understand that a number of certificates have been refused on that ground. Perhaps my noble and learned friend will give the House some idea as to exactly where his mind is moving on this point.
Lord Mackay of Drumadoon: My Lords, I am not prepared to suggest that driving convictions would necessarily be irrelevant to an issue that a chief constable would have to decide. It would be for each chief constable to take account of a particular conviction. If it was a comparatively trivial matter, for instance a charge of careless driving, it is unlikely that it would justify action. However, I cannot exclude that possibility since something might lie behind it. For instance, a careless

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driving charge involving someone else which led the chief constable to believe that there was some animosity on the part of the individual and that he displayed a tendency that made him an inappropriate person to hold a firearm certificate.
It is very important that this House does not seek to limit the discretion of a chief constable as to the information and evidence of which he may take account. Parliament has laid down the decisions that have to be taken and the statutory criteria to which a chief constable must have regard. Beyond that, the matter is to be left to chief constables. I hope that those who are anxious to protect the interests of the shooting community will acknowledge that these broad appeal procedures will allow a complete and unrestricted appeal against any decision taken by a chief constable and that their interests would be adequately protected.
I should also mention the point raised by the noble Lord about medical conditions. I understand that my noble friend wrote a letter on that subject to the noble Lord, Lord Hylton, dated 6th February and that a copy is in the Library or if it is not, I will ensure that a copy is placed there. The letter responds to certain points raised on Report dealing with a situation of mental illness.
Clearly it would be open to a chief constable who had a concern about that matter to ask for a medical certificate to be produced. Certain practical problems will arise in relation to that. It is no secret that some doctors have made it clear that there will be reluctance on their part to issue such certificates. However, if a doctor is prepared to do so, then no doubt such a report will be before the chief constable. If, on the other hand, the chief constable had no justification for seeking a medical report and that was the sole reason for his refusal to grant a certificate, or for revocation, then clearly the whole matter would require re-examination before the Crown Court or sheriff court. In either event I suggest that the interests of shooters would be well protected.
I am grateful for the support that these new procedures have received. I am optimistic that they will serve to promote a proper balance between the interests of public safety and of those who wish to participate in shooting.
Earl Attlee: My Lords, before the noble and learned Lord sits down, I have one slight concern. If the police have information that was given in confidence but not anonymously, will they be able to rely upon that? Will there be any difficulty when they try to rely upon it in court?
Lord Mackay of Drumadoon: My Lords, it is open to chief constables to rely on information which comes from any source they deem reliable and appropriate. It may be that to protect a registered informer or for some other sound operational reason a chief constable would not wish to disclose the source of that information at an appeal. A chief constable might say that he had reached the view that he was not disposed to place the information before the court. In that event it may restrict his chances of protecting the decision which he had taken and persuading the court to uphold it. But that has to be an operational matter for the chief constable.
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I think that the House would be content that it should be left on that basis. We should not restrict chief constables by restricting the sources from which they can obtain information. But equally it must be for them to reach a decision as to whether they disclose the source or the information itself when the matter comes to an appeal.
On Question, amendment agreed to.
6 p.m.
Clause 43 [Power of search with warrant]:
Baroness Blatch Baroness Blatch moved Amendment No. 59:
Page 22, line 33, after ("authority") insert ("or the Corporation of the City of London").
On Question, amendment agreed to.
Clause 44 [Firearm certificates relating to firearms used for target shooting]:
Baroness Blatch Baroness Blatch moved Amendments Nos. 60 to 63:
Page 23, line 6, after ("for") insert ("the grant or renewal of').
Page 23, line 7, leave out ("a").
Page 23, line 10, after ("applicant") insert ("or, as the case may be, renewed").
Page 23, line 15, leave out subsection (2).
On Question, amendments agreed to.
Clause 45 [Approved rifle clubs]:
Baroness Blatch Baroness Blatch moved Amendments Nos. 64 and 65:
Page 24, line 46, leave out ("as a rifle or miniature rifle club").
Page 24, line 48, at end insert—
("(3) Any approval of a rifle or miniature rifle club or muzzle-loading pistol club under section 15 of the 1988 Act which is in force immediately before the commencement of this section shall have effect as if it were an approval under section 15 of the 1988 Act as substituted by subsection (1) above.").
On Question, amendments agreed to.
Clause 46 [Coterminous pistol club licences and rifle club approvals]:
Baroness Blatch Baroness Blatch moved Amendments Nos. 66 and 67:
Page 25, line 4, leave out ("an approved rifle club") and insert ("approved under section 15 above").
Page 25, line 12, leave out ("as a rifle club") and insert ("under section 15 above").
On Question, amendments agreed to.
Clause 49 [Financial provisions]:
[Amendment No. 68 not moved.]
Clause 50 [Interpretation and supplementary provisions]:
Baroness Blatch Baroness Blatch moved Amendment No. 69:
Page 26, line 19, at end insert ("or
(b) an air pistol to which section 1 of the 1968 Act applies and which is designed to fire .22 or smaller diameter ammunition;").
On Question, amendment agreed to.
Lord Pearson of Rannoch Lord Pearson of Rannoch moved Amendment No. 70:
Page 26, line 36, at end insert—
("(7) References in the Firearms Acts 1968 to 1997 to "registered post" or "recorded delivery service" shall include facsimile telecommunications transmission of which a record is kept.").
The noble Lord said: My Lords, this amendment would allow the use of fax transmissions when dealers are issuing notices of transactions to customers and the police. Since some faxes do not have a system of proof of transmission, the amendment only allows the use of fax where a record is kept.
The present system is out of line with modern business practice in that it only allows dealers to use registered post or the recorded delivery service when issuing notices for transactions. That is not really appropriate nowadays, when electronic communication is such a vital part of business. The present system is also an enormous inconvenience to dealers and much less efficient than the use of a fax. For example, dealers in rural areas may have to travel miles to a post office which accepts recorded delivery. Registered post costs £3 plus postage, or £3.26 in all. But dealers normally use recorded delivery, which costs 60p plus post or 86p per notice. Dealers must also give notice to the chief officer of police who issued the certificate and so may well have to send half a dozen or more notices per day, which is unduly bureaucratic.
The use of a fax could have operational advantages because it would mean that the police would receive instant information.
For example, the use of a fax notification might well have been significant in the recent Humphrey case in which a gun was sent to an address other than that on the certificate and the police learnt of it too late.
There has been a suggestion that it is difficult adequately to define what constitutes a fax. However, BT has confirmed that "facsimile telecommunications transmission" is a proper definition. The amendment is important to the gun trade. It will save enormous cost and bureaucracy, so I commend it to your Lordships and hope that my noble friend can accept it. I beg to move.
Baroness Blatch: My Lords, my noble friend's amendment would mean that people who are required to submit notifications to the police about transactions in firearms and ammunition would be able to do so by facsimile transmission rather than by registered post or recorded delivery. Or they could if they wished continue to use these postal methods as now.
Clauses 34 and 35 of this Bill would extend and rationalise the requirement upon shooters to notify sales, transfers and disposals of firearms and ammunition to the police. There are also important requirements upon firearms dealers, set out in Sections 42 and 43 of the Firearms Act 1968, relating to notifying the police of sales and transfers.
It would clearly be of some practical value to firearms dealers, and would also be of practical value to some owners, if these notifications could be done by fax. This
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would echo a recommendation which was made by the Firearms Consultative Committee in its fifth annual report (1993–94).
The Government have some sympathy with this proposition. Fax messages are entirely acceptable in this day and age for routine correspondence.
But these firearms notifications do not fall into the category of routine correspondence. Failing to send them as the law requires represents a criminal offence. I fear I must report that there are important obstacles in the way of changing the law in the way my noble friend suggests.
A fax message is, of course, a copy of an original document. I regret to say that it would be quite possible for an unscrupulous individual to change the original document. They might, for instance, blank out part of the document before sending it by fax. The police, who received it, would then be quite unaware of the alteration.
The fact that a person has kept a record of having sent a particular fax would not, in law, be proof that he had sent it. Certainly there might be proof that he had sent a fax. But the important issue is what that fax contained, and there would be no proof of that.
Fax transmissions—unlike recorded delivery and registered post—are not what the law regards as provable documents. It is in the interests both of public safety—which benefits from the proper recording of firearm transactions—and of firearm owners themselves that these communications should be made in provable form, even though this might involve some minor inconvenience.
There are substantial problems standing in the way of what otherwise is a sensible idea put forward by my noble friend. I hope he will accept the difficulties and will not press his amendment.
Lord Pearson of Rannoch: My Lords, I have no intention of pressing the amendment. Inspiration has reached me from another part of your Lordships' House to the effect that police can acknowledge these documents by fax. I assume that to be so. However, it is not what the amendment was aimed at. In view of what my noble friend said, I cannot say that I am happy to withdraw the amendment; I withdraw it reluctantly.
Amendment, by leave, withdrawn.
Baroness Blatch Baroness Blatch moved Amendment No. 71:
After Clause 50, insert the following new clause—
POWER TO MAKE TRANSITIONAL, CONSEQUENTIAL ETC. PROVISIONS.

(".—(1) The Secretary of State may by regulations make such transitional and consequential provisions and such savings as he considers necessary or expedient in preparation for, in connection with, or in consequence of—

(a) the coming into force of any provision of this Act; or

(b) the operation of any enactment repealed or amended by a provision of this Act during any period when the repeal or amendment is not wholly in force.

(2) Regulations under this section may make modifications of any enactment contained in this or in any other Act.

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(3) The power to make regulations under subsection (2) above shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.").

The noble Baroness said: My Lords, the proposed new clause would give the Secretary of State power to make regulations in order to cover such transitional and consequential provisions as he considers necessary as a result of the passing of the Bill.
We believe that such a provision is necessary to ensure that the Secretary of State of the day is able to correct any unforeseen anomalies which may arise as a result of the speedy passage of the Bill. I must emphasise that this would be only a safeguarding provision and would only cover unforeseen circumstances arising from the implementation of this Bill as it relates to transitional arrangements.
The chairman of the Delegated Powers and Deregulation Committee has been consulted about this power. He has written to confirm that he can see no reason to object to it as long as the power is confined to transitional arrangements only, which is the effect of my amendment.
It is not an unprecedented measure. For example, under the Friendly Societies Act 1992 and the Reserve Forces Act 1996, regulations made under subsection (2) must be made for the purposes authorised by subsection (1). That is in connection with or in consequence of provisions already in the Act or repealed by the Act. They cannot introduce areas of policy not addressed by the Act, nor can they be used to amend enactments unrelated to the Act. I beg to move.
Lord Boardman: My Lords, I am concerned about the clause. It seems to me to be the most blatant form of Henry VIII clause that we have had for a long time. Earlier, in reply to my noble friend Lord Pearson, the Minister said that there was no power under the clause for him to bring about a change extending the range of guns. I find it difficult because subsection (1) of the new clause says that:
"The Secretary of State may by regulations make such transitional and consequential provisions and such savings as he considers necessary or expedient in preparation for, in connection with, or in consequence of"—
certain matters. Subsection (2) is in no way qualified and states that:
"Regulations under this section may make modifications of any enactment contained in this or in any other Act".
My noble friend suggested that that must be limited to those provisions which are:
"transitional and consequential…and such savings as he considers necessary or expedient".
Even if that were so, it would give a tremendous range for bringing in amendments. There is no reason at all why the amendments proposed by my noble friend Lord Pearson should not be brought into that. Certainly it would be, "transitional and consequential"
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and could come in under that Act. But I do not accept that subsection (2), which is in no way qualified by the "transitional and consequential provisions" and so on, does not enable:
"modifications of any enactment contained in this or in any other Act".
I ask my noble friend to give further consideration to this clause which is extremely dangerous and is offensive in so many ways by introducing a Henry VIII measure.
Lord McIntosh of Haringey: My Lords, I am glad to see a former chairman of the National Westminster Bank rise to object to something which appears to have been approved by the current chairman.
I have concerns about the amendment as well. I consulted the noble and learned Lord, Lord Simon of Glaisdale, who I think would generally be known as the Icing of Henry VIII clauses—he apologises for the fact that he has had to leave the Chamber—and he shares my concerns and those of the noble Lord, Lord Boardman. In introducing the amendment, the Minister spoke about "unforeseen circumstances". The phrase "unforeseen circumstances" does not appear in the clause. As the noble Lord, Lord Boardman, said, it says:
"as he considers necessary or expedient in preparation for"—
which is transitional—
"in connection with, or in consequence of … the coming into force of … this Act; or … the operation of [the Act]".
Even though I understand that subsection (2) is restricted to the provisions of subsection (1) by the phrase "under this section", there is nevertheless a lot of freedom there. For example, I put to the Minister that, if a Labour Secretary of State were to conduct an inquiry which would show him or her that there was a case for banning handguns altogether rather than exempting small calibre pistols, that would be:
"in connection with, or in consequence or
the operation of the Act and related Acts. Under this clause, could he not impose a total ban on handguns by regulation, subject only to the negative procedure? The Government should think about this amendment and consider whether it might work against their intentions as well as in support of them.
The noble and learned Lord, Lord Simon of Glaisdale, suggested that I refer to the transitional provisions of the Child Support Act. A number of assessments were made which had statutory force and which were then overturned by transitional powers because they were unjust. There was no division against that, because it was felt that an injustice was being remedied. Nevertheless, statutory powers were being overturned by regulation in that case.
Finally, there is something very wrong about introducing a new clause to provide "transitional and consequential provisions" at Third Reading, when the Bill is in the second House. I know that the Government consulted the chairman of the Delegated Powers Scrutiny Committee. But this is a matter which ought to have been considered—I say that with due respect to its

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eminent chairman—by the committee as a whole and reported to the House in writing, as are all other decisions.
I suspect that the right thing to do is for the clause to be agreed so that the Government can think about it and if necessary amend it when the Bill goes back to the other place. If the clause were to be rejected, there would be no "transitional or consequential provisions". I hope that the Minister, in responding to this short debate, will acknowledge the force of what has been said and indicate a willingness to look again at the wording of the new clause when the matter goes back to the other place.
6.15 p.m.
Lord Renton: My Lords, the noble Lord, Lord McIntosh, is quite right to show concern about this clause, as did my noble friend Lord Boardman. We need to look at the very wide discretion given by the clause. It is not only what the Secretary of State considers "necessary", but also what he considers "expedient", which can be dealt with. It is not only:
"in preparation for … or in consequence of … the coming into force … of this Act"
but also "in connection with" it, and that is somewhat broad.
But I wish to comfort in two ways the noble Lords who expressed anxiety. The original Henry VIII clauses were complained of in quite recent years in both Houses of Parliament because they were not subject to any parliamentary control. But this provision is subject to two forms of control in your Lordships' House. First, there has to be a statutory instrument subject to annulment by Parliament. Both Houses of Parliament have that opportunity. We hope that your Lordships' House will not follow too closely the ancient custom of simply nodding approval to statutory instruments.
Secondly, thanks to the initiative of my late friend Lord Rippon of Hexham, whose departure we all so much regret, we now have the scrutiny committee of your Lordships' House to consider these matters, supported by the noble Earl, Lord Jellicoe, and others. That is good. It already does very important work and will no doubt be vigilant as regards any measure which came before it under this proposed new clause.
Lord McIntosh of Haringey: My Lords, before the noble Lord sits down, perhaps I may say that the Delegated Powers Scrutiny Committee does not scrutinise all secondary legislation. It only scrutinises delegated powers provided for in primary legislation. This Bill, once enacted, will no longer be within the remit of the Delegated Powers Scrutiny Committee.
Lord Renton: My Lords, that has been its practice so far, but I understand that it does have power to draw attention to secondary legislation which seems to go too far and which seems to go beyond the powers offered by Parliament. I may be wrong about that, but such is my recollection.
Lord McIntosh of Haringey: My Lords, with the leave of the House and before the noble Lord sits down
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again, I confirm that that is so, but only for the secondary legislation which is provided for under the deregulation Bill and not generally.
Earl Attlee: My Lords, surely secondary legislation and statutory instruments are the problems of the Joint Statutory Instruments Committee.
I am grateful for the advice of the noble Lord, Lord McIntosh, on what we should do with this amendment; in other words, give the other place an opportunity to look at the matter. The great British public probably thought that the Government had presented to Parliament a properly drafted Bill which would not have such minefields and loopholes. The noble Baroness practically admitted that the Bill will contain them.
We have not made the Bill very much more complicated by our amendments, because not many of them were carried. My main concern is not with the little difficulties that may occur and the need for transitional and consequential provisions. The real problem will occur when we find that there is a huge loophole which can only be corrected by primary legislation.
Lord Harris of Greenwich: My Lords, I wish to say only a few words on this matter. My conclusion is exactly the same as that of the noble Lord, Lord McIntosh of Haringey. I believe that it would he wrong of us to reject the amendment because were that to happen the matter could not be considered by the other place when it reviews the amendments made by this House.
Like the noble Lord, Lord McIntosh, I profoundly regret the fact that the amendment was tabled for consideration only at Third Reading. I too have the highest regard for the chairman of the Delegated Powers Scrutiny Committee, but this matter should have been reviewed by the committee and could have been if the amendment had been tabled earlier. Having said that, I repeat that I am not opposed to the amendment because I think transitional provisions are necessary, but I regret the fact that it has been put down so late.
Lord Pearson of Rannoch: My Lords, I wonder whether I can take very slight issue with something that my noble friend Lord Renton said when he suggested that your Lordships' House would be able to have a proper look at anything that the Secretary of State might dream up over the next few years under this clause. There is a very unfortunate tradition that we do not vote on instruments of that kind, although the noble and learned Lord, Lord Simon of Glaisdale, in a recent debate achieved the unanimous consent of the House that we could. I am not sure it is such a very ancient tradition. My understanding is that it is a tradition which came in for the convenience of the Whips in 1979. I think it is high time it was removed; but that is not the object of my intervention on this occasion.
Subsection (2) of this unfortunate clause says
"regulations under this section may make modifications of any enactment contained in this or in any other Act",

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a point made by my noble friend Lord Boardman. Can I ask my noble friend on the Front Bench to concentrate on the words "in any other Act"? What other Acts do the Government have in mind?
Lord Stoddart of Swindon: My Lords, this is a very important amendment and I intend to say a few words about it. I am extremely suspicious of an amendment which comes before us at the end of a Bill which has been through the House of Commons and through all its stages in this House.
I am suspicious of it for two reasons. First, it seems to show that this Bill, as so many of us have said, has been drafted in haste. In other words, it has not been properly thought out. Had it been properly thought out and had this clause been necessary, then it would have been in the original Bill. But here we find, at the end of what the Government say is a well thought out Bill, a very important clause which clearly had not been thought of at the beginning nor at any stage in its passage through the House of Commons or in this House.
As has already been said by a number of people, the clause is not subject to the affirmative procedure, it is subject to annulment. Anybody who has been in the House of Commons knows perfectly well that it is very difficult to have a debate on this procedure. It is necessary either for the Opposition Front Bench to be in favour of any move to annul or for there to be a considerable number of signatures on the Order Paper. That, again, is why I am suspicious of this particular procedure.
On this occasion I will take the advice of my noble friend on the Front Bench, Lord McIntosh of Haringey. I notice he is aghast at that, but it is nice to conclude the Bill on the basis that for the first time during its passage I am able to accept his advice. I hope it will prove to be very sound and will be taken by the House of Commons.
Baroness Blatch: My Lords, first I apologise unreservedly for the bringing forward of this amendment so late in the Bill. Can I also say to all noble Lords who have expressed concerns—my noble friend Lord Boardman and noble Lord, Lord McIntosh, and others—that I understand them, certainly in the context in which they have been expressed by the noble Lords. I hope in a few minutes to be able to allay some of those fears. I should like to accept the advice proffered by the noble Lord, Lord McIntosh, in this instance that we pass this amendment today because I believe there are good reasons for it. The noble Lord, Lord Harris of Greenwich, has hinted that he believes so too. I can give an assurance that we shall continue to talk with the noble Lord, Lord Alexander, who is the chairman of the Scrutiny Committee, and I shall ask my right honourable friend the Home Secretary to continue to give thought to this to ensure that all the concerns expressed by noble Lords in this House are addressed and, if necessary, that the wording may be changed in another place, although I believe at this moment that that will not be necessary.
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A very real constraint is that subsection (2), if read as a free standing subsection is worrying, but it is limited to transitional or consequential matters because of what it says in subsection (1). It cannot be read in isolation from subsection (1). My noble friend Lord Pearson was also concerned about the use of Subsection (2). It would only refer to any other enactment in so far as it affects the transitional arrangements and consequences of implementing the measures of this Act—that would be the constraint—and the measures as set out in the Bill.
My noble friend Lord Renton offered two reasons why he thought people should feel less worried about this. But I proffer to my noble friend a third reason. The constraint is that the exercise of this power must arise from transitional arrangements and consequences of implementing the measures which are determined in the Bill. I say to the noble Lord, Lord McIntosh, that the amendment would not allow the purpose of the Bill to be changed. Regulations have to be consequential and they have to be transitional. If I can give examples: transitional arrangements for establishing a new licence to pistol clubs; or the change from the old to the new requirement for a firearm certificate.
My noble friend Lord Renton was right when he made the point that the Joint Committee on Statutory Instruments also scrutinises all delegated legislation to ensure that very point—that the powers are not abused. Therefore, if there was any hint whatsoever of a future Secretary of State wishing to use his powers rather more widely than they are set out in this amendment, that would be considered an abuse of the Secretary of State's powers and that would be reported to both Houses. So I believe all the safeguards are there. If I could read from a section of the letter which I received, signed by Dr. Tudor on behalf of my noble friend Lord Alexander,
"The Chairman has, however, asked me to say that the Committee's report on the Bill (a copy of which I attach) drew attention to the absence of any transitional provision in relation to what was then Clause 17 of the Bill. (That clause has of course now been amended in a way which would meet the Committee's specific concern.) In the light of the Committee's earlier concern"—
this is important—
"and provided that the new power is limited to transitional and consequential provisions, the Chairman sees no reason to object to the amendment which you [i.e. the Government] propose. He also considers that the negative resolution procedure is appropriate".
The amendment is here. The power is there for the Secretary of State so that when the transitional arrangements are made if there is some point that has not been foreseen it would be possible for the Secretary of State to have a remedy to put it right—and the power of course would have to be consistent with transitional arrangements—rather than hold up a scheme where he would have to wait for amendment of primary legislation in order to act.
I hope with those assurances, and taking the advice of the noble Lord, Lord McIntosh, that this House passes this measure. We will continue to look very carefully at it and at what has been said about it in this place.
On Question, amendment agreed to.
Schedule 1 [Transitional arrangements for small-calibre pistols]:
6.30 p.m.
Baroness Blatch Baroness Blatch moved Amendments Nos. 72 to 77:
Page 28, line 7, leave out ("purchased or acquired") and insert ("contracted to acquire").
Page 28, line 15, at end insert—
("( ) Sub-paragraph (1) above applies to a pistol which a person has (before the appointed day) contracted to acquire if it is delivered to any designated police station as soon as reasonably practicable after it comes into his possession.").
Page 28, line 36, leave out ("at a designated police station") and insert ("in police custody").
Page 28, line 38, after ("station") insert ("to which it was delivered under paragraph 2 above").
Page 28, line 40, leave out from ("writing") to end of line 41 and insert ("for the release of the pistol to the chief officer of police for the area in which the designated police station to which it was delivered under paragraph 2 above is situated").
Page 29, line 4, leave out ("which is").
The noble Baroness said: My Lords, these amendments were spoken to earlier. I beg to move.
On Question, amendments agreed to.
Schedule 2 [Consequential and minor amendments]:
Baroness Blatch Baroness Blatch moved Amendments Nos. 78 to 81:
Page 30, line 41, leave out ("32(2)").
Page 32, leave out line 15 and insert ("information comprised in that register in a visible and legible form)"; and").
Page 32, leave out lines 21 to 23.
Page 33, line 28, at end insert—
(" 21. In section 22(1)(c) (firearms consultative committee), for the words "the principal Act, the Firearms Act 1982 and this Act" there shall be substituted the words "the Firearms Acts 1968 to 1997" .").
The noble Baroness said: My Lords, these amendments have already been spoken to. I beg to move.
On Question, amendments agreed to.
Baroness Blatch: My Lords, I beg to move that this Bill do now pass. The first anniversary of the Dunblane tragedy will be in four weeks' time. On 13th March 1996 Thomas Hamilton entered a primary school in that town and fired 105 rounds of ammunition killing 16 children and their teacher and wounding a number of others. He had with him four high calibre handguns and 743 rounds, all of which he was legally entitled to hold. Lord Cullen's inquiry into the incident produced 23 recommendations on the control of firearms, which the Government have accepted, and one recommendation restricting the availability of self-loading handguns. Twelve of the recommendations are being implemented by administrative means; the remaining 11 are included in the Bill.
Recommendation 22 invited the Government to consult with interested groups about the proposal by the Association of Police Surgeons that a forensic medical examiner might consider the medical history of a person applying for a firearm certificate, that history having been provided by the applicant's doctor.
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We have duly consulted the Association of Chief Police Officers, the BMA and the British Shooting Sports Council, but none has given any support for it. Indeed, they have drawn attention to various practical or ethical difficulties. The Association of Police Surgeons has since withdrawn its proposals in the light of the lack of support from other parts of the medical profession. In the light of those responses we do not propose to take the matter further. I am grateful to the Association of Police Surgeons for its contribution to the general concerns that Lord Cullen addressed.
Turning to the subject of disassembly which now forms the new Clause 10 of the Bill, Lord Cullen, in his recommendation 24, invited the Government to consider the separate storage of component parts of handguns. This was debated at great length in the House, and the technical arguments for and against disassembly have been well rehearsed. The Government remain unconvinced that disassembly would provide sufficient assurance against the possible misuse of a pistol by a determined individual. The issue will be re-examined in another place.
Two clauses, Clauses 17 and 19, have been added to extend the compensation arrangements beyond the Government's commitment to compensate people for their surrendered prohibited handguns and ancillary equipment. The impact of those amendments will also need to be re-examined in another place.
The Bill is an important further step in providing the public with reassurances about the presence of handguns in the community. It will ban high calibre handguns and will introduce tight controls over the procurement, ownership, storage, use and disposal of the small calibre pistols that may continue to be used for the sport of target shooting.
The Government have an onerous duty to consider the extent of the controls necessary on the ownership and possession of handguns. Taking account of Lord Cullen's findings, we have set out in the Bill the way in which the Government believe that his objective of strict control on access to handguns can most effectively be achieved. As a result of today's debates, there will be further consideration of the issue of a probationary period of membership of clubs which was raised in the amendment of the noble Lord, Lord Monson.
During the passage of the Bill I have been sustained and helped greatly by my noble friends, particularly my noble and learned friend Lord Mackay but also my noble friend Lord Courtown who has worn out much shoe leather to-ing and fro-ing energetically on my behalf, and by the good humour which characterises our debates. My thanks go to the noble Lords, Lord McIntosh and Lord Rodgers of Quarry Bank, for their courtesy throughout the debates on the Bill. The Government have been guided throughout the consideration of the Bill by the need to provide the public with the necessary protection it deserves. I beg to move.
Moved, That the Bill do now pass.—(Baroness Blatch.)
Lord McIntosh of Haringey: My Lords, it is customary for the principal Opposition spokesman to speak first on these occasions, but really I do not consider myself to have been the principal Opposition spokesman. As the House and the country know, we in the Labour Party have been enthusiastic supporters of the Bill. We believe that, fundamentally, the balance has to be made between everything that can possibly be done to protect public safety, not just in the light of the terrible events of Dunblane but in the light of experience over many years in many countries of the dangers of too free an availability of handguns and the dangers of homicide, with the relatively free availability of handguns. We believe that the balance has to be drawn on the side of public safety.
We disagreed on the question of a total ban on small calibre pistols but I believe that it is not a fundamental disagreement. I share the view of those who are more opposed to the Bill than I am that in practice a large number of .22 weapons will not survive because there will not be suitably secure gun clubs for them. The Minister referred to the regulations for the procurement, ownership, storage, use and disposal of small calibre pistols. That emphasises the complications into which the Government have got themselves by rejecting the total ban which we proposed.
We have had a free vote on the matter. My noble friend Lord Stoddart has been doughty in his root and branch opposition to the Bill and has had some modest support from our Benches. However, I think the Government will recognise that, on the whole, my noble friends have followed my advice—it was no more than that—and have sustained the Government, whenever possible, in the Division Lobby. It has only caused some shock to some of my noble friends that even when we vote with the Government we still lose. But perhaps that is a unique and unfortunate experience.
We wish the Bill well. We sincerely hope that if and when another place rejects the amendments which have been carried against the Government that is the last we shall hear of it and that there will be no last ditch attempt to weaken the provisions of the Bill. If there were, it would call into question the composition as well as the powers of this House.
The Earl of Mar and Kellie: My Lords, as someone who lives a few miles from Dunblane I came down here to represent the view that we are fed up with handguns and want no more to do with them. I came here to seek a complete ban and to ally that with fair compensation. What have we achieved? We have certainly achieved a partial ban and we appear to have achieved fair compensation, although there is a threat that it may be withdrawn.
It is important that by 13th March whatever Bill we are going to have should be on the statute book. I thank the noble Baroness, Lady Blatch, and the noble and learned Lord the Lord Advocate for their forbearance
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during the passage of this difficult Bill when they were being encouraged by people like me to go one way and by their noble friends to go the other way. I wish the Bill well.
Lord Renton: My Lords, many years ago I piloted through Parliament a short firearms Act. I therefore wish to say a few words on the Bill. That Act created a new offence of possessing a firearm or imitation firearm with intent to cause fear of violence. This Bill seems a very big but logical sequel. Although the Government have had to rush the Bill through and although it will cost the taxpayer a great deal of money in compensation, they deserve credit, as do those members of the Opposition who have supported it, for the broad intention behind it. I know that it goes much further than was expected, but we should remember that firearms legislation has always been difficult to enforce.
I know from my own long experience that the police and magistrates have always done their best to enforce the law, but there have always been illegally held firearms of various kinds in the hands of dangerous people. As a result, lives have been taken not only on the scale of Hungerford and Dunblane but in the course of many burglaries and other violent crimes.
By greatly reducing the total number of firearms in circulation, this Bill should substantially reduce the number of lives lost by the aggressive use of firearms. But that depends on enforcement. The police will need the co-operation of the public, especially those members of it who have written to us in such large numbers about this Bill.
I conclude by saying two things. I have no hope of finding time—I do not suppose other noble Lords will, either—to reply to the vast number of letters I have received. I hope that we will be forgiven for that. This is a difficult Bill technically and it is also controversial. My noble friend Lady Blatch deserves great credit for her achievement in piloting this Bill.
Earl Peel: My Lords, this has not been an easy Bill for any of us, least of all for the Government and in particular for my noble friend. I reiterate the words of my noble friend Lord Renton.
I am surprised that the noble Lord, Lord McIntosh, said that he found that there was not a fundamental disagreement between himself and my noble friend. I find that quite astonishing. There is an enormous difference between what the noble Lord and his party have been saying about this Bill and what my noble friend and this side of the House have been saying. If the noble Lord's ideas had been implemented there would have been no .22 rimfire shooting whatsoever and a great swathe of people would have been prevented from participating in a sport which, under this Bill, at least they will still be allowed to enjoy. That is a very important point.
The next point is the question of disassembly. Noble Lords will no doubt recall that at Committee stage my noble friend Lord Swansea tabled an amendment which would have referred disassembly to a Select Committee. We debated that matter and it was suggested that that

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would not be an appropriate course of action. My noble friend did not divide the Committee on that amendment and accepted the advice that he had been given. My noble friend on the Front Bench said that she thought it quite appropriate that this House should discuss very carefully the question of disassembly and that we were qualified and competent to deal with the matter.
I am sure that noble Lords will recall that we discussed the issue twice, once at Committee stage and again at Report stage. Ultimately, my noble friend Lord Pearson divided the House and his amendment was carried. So I say to my noble friend that we did look very carefully at the issues, debated and voted on them. The amendment was carried. I hope that the message will go to the other place loud and clear.
I moved an amendment and divided the House on the question of a firearms control board, but I was not successful. But there was one very important point about which I expressed my concern at the time, and I am still concerned about it. It is the question of a fair and competent means by which the police will assess whether an applicant is an appropriate person to receive a licence. I was extremely disappointed by the response I received from my noble and learned friend the Lord Advocate.
I say to the Government now, please ensure that we have a fairer and more competent system. I say that because we must ensure that wherever possible we reduce the possibility of another Dunblane. Unless that matter is looked at seriously there is a danger—there is always a danger. We must reduce the possibility of another Dunblane and that is one sure way of doing it.
Perhaps I may make reference to comments which have been made in this House and elsewhere on the role that hereditary Peers have played in this particular Bill. If one analyses the voting patterns, it is interesting to note that without the support of Labour Peers—in particular that of the noble Lord, Lord Stoddart of Swindon, whose contribution has been quite extraordinary—and also the support of the Liberal Democrat Peers, the amendments on compensation would never have been carried. So it is not just a question of the involvement of hereditary Peers because the mathematics show quite clearly that Labour and Liberal Democratic Peers helped to carry those amendments. The Labour Party complains when the Government win with the help of the hereditary Peers; now they must accept the fact that the Government have lost with the help of the hereditary Peers.
I believe that this House has done itself a service. It has looked at this Bill very carefully and the strength and independence of this House have come through. We have done our job properly and I hope that that will he reflected.
I finish simply by saying to my noble friend yet again how grateful I am for all the help that she has given me personally on this Bill, difficult though it has been.
6.45 p.m.
Earl Attlee: My Lords, I believe that your Lordships' House has done excellent work with this Bill. We were told that we would be damned if we did something with
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it and that we would be damned if we did not. Personally, I would rather be damned for doing something than to be damned for not doing anything at all.
The Bill came to us in a completely impractical and unworkable form, but our relaxed procedures have allowed us to work on it and to improve it in many ways. As I have previously observed, the Bill, as originally drafted, would have practically eliminated the sport of target pistol shooting while providing a negligible increase in public safety. I therefore take issue with the comments made by the noble Lord, Lord Renton. I do not believe that the Bill does very much to improve public safety. However, with our amendments, the Bill will not now be quite so draconian.
This House is blessed with many highly regarded Ministers, and the noble Baroness is no exception. We have given her a terrible time: our intellectual challenges were hard to resist and many of them were accepted by the House. However, I believe that it is extremely unfair on the noble Baroness and her department to have to pilot several very difficult Bills through this House at the same time. As a result I sometimes wonder whether Home Office Ministers generally have as good an understanding of specific issues as they might. That observation applies not only to this Bill but just as much to others.
We have successfully provided for the disassembly of .22 pistols which, as well as allowing some sport to continue, will increase public safety. However, another place has now been given the opportunity to strike a balance between the cost of compensation if it does not open up our disassembly amendment and the perceived risk to public safety if it does. I contend that the increased risk to public safety—if there is one at all—is negligible in comparison with the risks from other types of guns and illegal weapons.
We remember the excellent work of the noble Lord, Lord Marlesford, and the success that he had with his amendment concerning information technology and databases. After all, we are here because one police force totally failed to administer properly the firearms law within its area. It is unfortunate that we did not make much progress with the control board amendment, especially when the Government's argument was so weak.
We have improved the compensation arrangements which provide some comfort to those who will be penalised under the Bill. I am not sure for how long those amendments will last in another place, especially in view of the comments of the noble Baroness. Attention has been focused on pistols, but one of my concerns is that the greater danger lies with shotguns. We have not even finished all the stages of this Bill, and yet last weekend in New Zealand there was a disaster in which six people were killed with a shotgun.
Despite our best efforts the Bill has problems. For example, as part of the knee-jerk reaction expanding bullets were identified as a problem and were banned. Unfortunately, my technical advisers, who are as good as those of the Minister, tell me that this policy gives

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rise to a problem. An expanding bullet will not penetrate a policeman's body armour; it will first disintegrate. However, a high velocity jacketed bullet is very likely to penetrate body armour. One also knows that the legislation is full of loopholes, ambiguities and anomalies. This branch of the law has acquired a Byzantine complexity. Even worse, some of the provisions are open to challenge in Europe. The amendments agreed to at Third Reading may help to deal with minor matters, but there are big loopholes in relation to major matters and primary legislation will be required. I am sure that the Bill will encounter big problems.
We have been subjected to press comment that we represent no one but ourselves, but it is apparent from a recent MORI poll that public opinion is evenly divided. Over 1,000 people were asked whether they would still support the change in the law if each taxpayer had to pay £40 to fund it. Forty eight per cent. responded that they would support the Bill and 47 per cent. said that they would not. Five per cent. said that they did not know. It is hard to understand how the Bill's extremely poor cost benefit analysis can be justified.
As to the future of the Bill, I would be content to accept any message from the other place with one very important proviso. The other place must properly debate our amendments when they do not infringe its privilege on money matters. I do not say that because of the gentle threat that emanated from the noble Lord, Lord McIntosh, but because we must concentrate the minds of the other place and not allow it to dodge the issue. It must decide the matter for itself.
Lord Stoddart of Swindon: My Lords, the noble Baroness referred to the courtesy with which this debate has been carried out. That is true. With her patience she has been instrumental in bringing that about. I am sure that all of us who have taken part in the debate will thank her for that. It is remarkable that the debate has been so good natured. We have been talking not only about the loss of a sport enjoyed by tens of thousands of people but also the livelihoods of many thousands of people who are employed in this activity. Bearing in mind those facts, the House is to be congratulated on discussing this Bill in such a calm and good-humoured way. It says a lot for the House and its procedures that it has been able to do so.
Two thousand five hundred years ago Pericles said that the worst thing to do was to rush into action before the consequences had been properly debated. That wise dictum was ignored by Her Majesty's Government. As a result, in my view we have a thoroughly bad Bill. Why do I say that? Following Dunblane, the Government set up the Cullen Inquiry to examine what had happened and what was to be done. But they refused to allow this House, another place or the country to debate that Bill. That was where the mistake arose. For that reason the Government would have been much wiser to follow the dictum of Pericles. They could have had a widespread debate in Parliament and out in the country before action was taken to draft the Bill. The Government acted before the consequences had been properly debated
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without a proper opportunity for consultation with those affected, let alone to receive representations from those affected, in the light of the Cullen Report and the public and parliamentary debate that should have taken place on it. Statesmanship demands careful consideration of the effects of action, including legislative action. Failure to understand that gives rise to very baleful consequences and often grave injustice. That is precisely what has happened in the case of this Bill.
The death toll and the manner of the killings in Dunblane were dreadful. It was a dreadful tragedy. But we must return again and again to a point that has been made so often in this debate and elsewhere: it was the action of a madman that killed those poor little children and their teacher. Guns were merely the instrument. On 16th December I said that 26 children were killed and 500 injured every month on the roads. I should like to develop that. Since the 16th December when this Bill was debated on Second Reading 500 people have been killed and 8,500 people have been injured on the roads. In spite of that the Government are considering increasing the weight of lorries from 38 to 44 tonnes. That will not decrease but increase deaths on the road. The Government should consider that very seriously. What they are saying is that whereas in one instance where innocent people are killed they will take such action as they believe will prevent it, in another instance they will take action that will exacerbate it.
This is a thoroughly bad Bill. I hope that the Commons will take note of what has been done in this House, which has undoubtedly improved the Bill. But I say to those who will be affected—like other noble Lords, I have received hundreds of letters to which I cannot reply but for which I am extremely grateful—that a Bill that is passed into law can also he repealed. So when they feel, as they will feel, a continued injustice, they should not lie down under that injustice, they should continue to fight against it until they can have it put right. That is what parliamentary government is all about. They, like other people, should fight their corner; and, eventually, if they are right, they will prove their point. My confidence in democracy is such that I believe that in the end they will win.
7 p.m.
Lord Swansea: My Lords, the noble Lord, Lord Stoddart, reminded us that our House is a revising Chamber. We have done our best through the passage of the Bill to make it a bit more comfortable to live with, although we have not been able to stop the main thrust of the Bill. We are grateful to the Government for having taken note of the points that have been raised at previous stages. I must express my appreciation to my noble friend the Minister for the nice and charming way in which she has dealt with the Bill. I do not blame her for the Bill. She was only doing what she was told to do by her superiors. The advice she was given was often wrong in our eyes, but she did very well.
That does not alter the fact that this is a thoroughly bad Bill, as the noble Lord, Lord Stoddart, said. It will not improve public safety one iota. If the Government and the Opposition want to improve public safety, they had better turn their attention to the vast reservoir of

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weapons held illegally by the criminal element. Public safety would be improved if that were eliminated. To take these weapons out of the hands of law abiding people and to destroy them, to deprive them of their recreation, and to ruin our chances in international competition, is a different matter altogether. That is what the Government have done in the Bill. I shall end now as I ended my speech on Second Reading: when guns are outlawed, only outlaws will have guns.
Lord Pearson of Rannoch: My Lords, my noble friend Lady Blatch said two rather interesting things in her opening remarks when she suggested that the Bill should now pass. First, she said that the Government remain unconvinced about the disassembly or segregation amendments that your Lordships passed. I have to say that I think she really meant that my right honourable friend the Secretary of State for Scotland is unconvinced. I fear that the Cabinet is guilty of giving in to his special pleading. Perhaps I may ask my noble friend the Minister to suggest to her right honourable friends in the Cabinet that when they come to consider our amendments, they must deal with the fact that the public is much safer under our disassembly amendment with guns segregated, than they will be with arsenals of weapons all over the country.
That is why I find another thing my noble friend said strange. She said that the Bill would provide the public with the reassurance that it deserves. This Bill should not provide any such reassurance. I cannot see why it is likely to save a single life; but, as the noble Lord, Lord Stoddart of Swindon, and other noble Lords have said, it will ruin thousands of small businesses; it will deprive thousands of people of their hobby; and, worst of all, I fear that it certainly will not prevent another Dunblane. I say that because—to repeat—it penalises the instrument used in that terrible tragedy, but that instrument was not its cause.
This Bill does little new for the cause, it will merely tighten up the existing procedures which failed at Dunblane with such tragic results. The noble Lord, Lord McIntosh of Haringey, said that the Labour Party supports the Bill. So I have another question for the Minister which I should be grateful if she would pass on to her right honourable friends in the Cabinet. When will they come to realise that when they carry legislation in your Lordships' House with the support of the Benches opposite, they are likely to be wrong?
Lord Mottistone: Certainly.
Lord Pearson of Rannoch: My Lords, certainly. In my brief six years' experience, it is certainly. Of course my sympathy goes out to my noble friend the Minister. She has done her courteous best with an extremely bad Bill. For myself, I have to confess to a feeling of shame for having had anything at all to do with it.
Lord Monson: My Lords, perhaps I may, first, enlarge briefly upon a point made by the noble Earl, Lord Peel. Not only did the support of noble Lords on the Labour and Liberal Democrat Benches enable us to win the compensation amendment, without the support
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of courageous Labour Peers, Liberal Democrats, and a right reverend Prelate, we should not have won the disassembly amendment either. Perhaps I, too, may pay tribute to the noble Baroness the Minister for her patience, stamina, good humour and willingness to listen carefully to opposing points of view, even if ultimately those opposing points of view were rarely accommodated. That is not to say that we are not extremely grateful for the rare concessions made.
As the noble Lord, Lord Swansea, reminded us, it is a bad Bill. The overwhelming feeling in the House at Second Reading, and not only in the House, was that it was a bad Bill for many reasons already set out by a number of noble Lords. The amendments passed by your Lordships make it a somewhat less bad Bill. I trust that common sense and a sense of fair play will prevail in the other place when the Bill returns to it, and that our amendments will be accepted. I said common sense and a sense of fair play: common sense, because disassembly is a safer option as well as being cheaper for the taxpayer.
Mass produced repeating pistols have been around for about 140 years (five generations). From that, one can calculate that the statistical chances of being murdered by a psychopath with a legally held pistol are already thankfully extremely low at about 15 million:1. The Bill as drafted might reduce that to, let us say, 20 million:1, but disassembly, I submit, might very well reduce it substantially further to 30 million:1, given that there would then be no complete fully assembled legal pistols to steal.
Now to the question of fair play which in this context means fair compensation for clubs, associations and businesses. It has been argued that where businesses lose money because of some vital new safety consideration, compensation is not normally paid. But in reality the Bill has very little to do with public safety and everything to do with public relations. It could be compared with the slaughter, without any scientific justification, of hundreds of thousands of perfectly healthy British cattle, not for genuine safety reasons but in order to appease hypochondriac German and other continental consumers. Generous compensation has rightly been granted not just to dairy farmers and those with beef herds but to others such as renderers. One trusts that the other place will agree, in logic and fairness, that the same principle should apply to gun clubs, dealers and manufacturers.
The Earl of Balfour: My Lords, I should like to add just one or two further points. First, whatever decision another place comes to, I hope that we, too, will agree to it. I should not like the Bill, through some disagreement between the two Houses, to fail. That would be a disaster. I should like to thank my noble friend the Minister for all the courtesy that she has shown to me during the course of the Bill. I have one last request, but I do not know how it can be done. If the Bill becomes an Act, would it be possible for this Government or the next government to consider consolidating the legislation from 1968 right up to date, because there is

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hardly one section in any Act that has not been amended? It is extremely difficult to follow the technicalities of what the law is supposed to be.
Baroness Blatch: My Lords, with the leave of the House, I shall answer two questions. Yes, we will consider consolidation. That was an important point raised by my noble friend Lord Balfour. Secondly, I say to my noble friend Lord Pearson that all Members in another place will read with interest what has been said today. I always report back to my right honourable friend at the conclusion of the passage of any Bill with which I am involved.
On Question, Bill passed, and returned to the Commons with amendments.

Crime and Punishment (Scotland) Bill
7.10 p.m.
Lord Mackay of Drumadoon: My Lords, I beg to move that this Bill be now read a second time. One of the primary obligations of any government is to protect the public. This Bill seeks to fulfil that obligation in addition to other important objectives. Its key provisions are informed by a number of important considerations: first, the principle that individuals and communities should have the confidence to say no to serious crime; secondly, the conviction that serious crime, particularly when it is committed by those who have offended before, should meet with serious punishment; and thirdly, the belief that the people of Scotland will more readily understand, respect and support their criminal justice system if the sentences served by those convicted of serious crime correspond directly with the sentences actually imposed by the courts.
Against that background, there can be no doubt as to the importance of the Bill. Its key proposals were contained in the White Paper Crime and Punishment published in June last year. It was the subject of detailed comment by many individuals and organisations, including two noble Lords who are to participate in today's debate. The proposals have since received extensive and detailed scrutiny in another place from where the Bill emerged the better for some useful amendments proposed from all sides. However, it is important for your Lordships to be aware that in another place none of the key proposals in the Bill was the subject of sustained opposition. Indeed, on Third Reading the Bill had a majority of 287.
I look forward to equally useful discussion in this House, and I hope that the Bill will pass on to the statute book at the earliest opportunity.
I now outline some of the major provisions in the Bill. Many of them relate to sentencing. They demonstrate the Government's determination to keep the statutory framework for sentencing under review and to provide the courts with appropriate powers to deal with those who repeatedly commit serious crimes, whether they be violent or sex offences or drug trafficking offences.
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Clause 1 deals with automatic life sentences. It provides that where an offender is convicted in the High Court on a second occasion of violent or serious sexual crime, the sentence to be imposed should be an automatic life sentence. The Government consider that there are occasions when such a sentence is the only appropriate sentence. These occasions arise when an offender is convicted in the High Court of a violent or serious sexual offence having previously been convicted in the High Court for a similar offence. Individuals who are convicted more than once in the High Court of such offences clearly pose a serious risk to society—a risk that can remain when they come to the end of a determinate sentence. The Government's proposals will reduce the chances of such individuals causing further serious harm to other members of the society in which they live.
It is important for your Lordships to be aware that both convictions require to be High Court convictions before an automatic life sentence falls to be imposed. When offenders aged 18 acquire such convictions automatic life sentences will follow unless the High Court judge is satisfied that there are exceptional circumstances that justify his not passing such a sentence. However, it is important that your Lordships are aware that the High Court judge will continue to set the part of the sentence that represents punishment and deterrence. This period will be known as the designated period. It will be spent in custody before release can be considered on the grounds of public safety and is entirely at the discretion of the sentencing judge. High Court judges will still require to exercise judicial discretion even when the automatic life sentence provisions apply.
Clause 2 includes provisions laying down minimum sentences of at least seven years for those with two convictions for a Class A drug trafficking offence who are then convicted in the High Court of a further Class A drug trafficking offence. The gravity of the criminal conduct of those who traffic repeatedly in Class A drugs cannot be exaggerated. It is for that reason that the Government consider that such a mandatory minimum sentence is called for. As with automatic life sentences, the High Court judge will be able to impose a lesser determinate sentence if there are exceptional circumstances which would justify taking such a course of action.
I turn to the provisions which increase sentencing powers in the sheriff court. In order to operate an effective criminal justice system we must ensure that the courts are equipped to hand down the most appropriate disposal in each case and that there is sufficient flexibility in the court system. The current maximum period is three years for sheriff and jury trials. That is subject to the power of the sentencing sheriff to remit to the High Court for sentence. In sheriff summary courts the maximum is three months, although where second and subsequent offences inferring personal violence or dishonest appropriation of property are concerned, the courts may impose a maximum of six months. In the district court, the maximum is lower and is restricted to 60 days.

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The Government make no apology for keeping the sentencing powers of the different courts under review. The sentencing powers of the sheriff sitting as the solemn sheriff in a jury court was increased in 1988 from two to three years. In 1994, after further consultation, it was concluded that, in the absence of a system of sentencing guidelines, it would be better to concentrate instead on seeking to have more cases tried in the sheriff solemn court. But things have changed since then. Business has increased in both the High Court and the sheriff solemn courts and the number of remits for sentence from sheriff solemn court to the High Court has also increased. Crucially, and importantly, the High Court has now acquired express statutory powers to issue sentencing guidelines, which are required to be followed by High Court judges and sheriffs.
Clause 12 therefore provides for the maximum period of imprisonment which certain courts can impose to be increased to five years in sheriff and jury trials and six months in sheriff summary, with up to 12 months for relevant second and subsequent offences. There would be no change in the powers of the lay justices in the district court. These are designed to be practical steps which respond to evidence available to the Government to the effect that the sheriff court could function better with extended powers. More serious cases can he tried locally in the sheriff court which could result in such cases being dealt with more speedily. Greater flexibility should also help relieve pressure on the system and enable the sheriff courts to determine the most appropriate sentence for the cases before them without as much need to remit to the High Court for sentence.
It is important to remember that the Bill is not just about prison sentences; its proposals must be seen as an overall package. It may be helpful if I make reference to some of the other provisions that affect the sentencing powers of the courts. Clause 3 deals with supervision on release from custody. It enables the court to impose a supervised release order of between three months and two years, or 25 per cent. of sentence (whichever is greater) on any offender receiving a determinate sentence where the court considers it necessary for the protection of the public. Equally, such orders are available and must be imposed where the offender is convicted of a qualifying offence for the purposes of the automatic life sentence provisions. The new provisions will allow resources to be targeted on those judged a risk to society and will assist all of us in doing our utmost to stop such offenders reoffending.
The Bill also makes provisions relating to restriction of liberty orders. While we are determined that courts should deal firmly with serious offenders, we are equally determined that less serious offenders, particularly younger ones, should not be given custody for want of suitable community based disposals. For that reason, Clause 4 provides a further disposal for the courts which will provide an alternative to custody. It will be called a restriction of liberty order. We envisage that such orders will be remotely monitored by the use of electronic tags. A restriction of liberty order will allow a court to restrict an offender's movements to
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such extent as the court thinks fit having regard to the circumstances of the offender and the particular offence of which he has been convicted.
I deal now with the appeal procedures which are set out in Part III. The Sutherland Committee, which examined the issue of criminal appeals and miscarriage of justice procedures, published its report in June last year and recommended among other things that an independent review body should be established in Scotland to examine claims that miscarriages of justice had occurred.
It is important when considering this matter to remember the particular circumstances which exist in Scotland. Unlike in England, we have happily not had the widely publicised cases involving miscarriages of justice which have led to the setting up in England of the new Criminal Cases Review Commission. The evidence which the Sutherland Committee received on this topic was divided on the need for an independent body in Scotland. Moreover the terms of the committee's report did not demonstrate any overwhelming pressure or compelling case for fundamentally changing our machinery for reviewing the miscarriage of justice allegations. For those reasons the Government were not convinced that they should accept that recommendation.
On a reading of the report it is clear that the committee's main concerns were with the appeals criteria. We believe that our acceptance of almost all of its recommendations should effectively address the main concerns about miscarriages of justice in Scotland. Those provisions are to be found in Part II of the Bill.
I turn now to deal with the early release of convicted prisoners, which is dealt with in Part IV. Public confidence is crucial in maintaining the integrity of our criminal justice system. If the courts, when imposing sentence, are seen to be doing one thing while administrative arrangements for implementing their sentences produce another, it is little wonder that the public is at best confused and on occasion disillusioned and cynical. Lord Ross, who recently retired as Lord Justice Clerk, in response to the consultation paper, said that,
"under the arrangements for early release of prisoners which presently exist, I regard myself when imposing sentence as taking part in something in the nature of a charade".
The 1993 Act allowed prisoners a generous margin of early release—up to one half of sentence which could be achieved without any substantial effort on the part of the prisoners concerned. Over recent years, it has become increasingly clear that the public neither understand nor accept why this should be. That flows naturally from the comment which Lord Ross deemed it appropriate to make in public. The lack of understanding may have contributed to some of the public criticism in the media which members of the judiciary have had to bear in recent years.
For those reasons, we now propose to give full effect and respect to the sentences handed down by the courts. The proposals in the Bill will dispel the idea that early release is something in the nature of a right. The public believe that it should not be that—and the Bill seeks to meet that concern.

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The Bill provides that prisoners will spend a greater proportion of their sentence in custody and will not be able to commit new offences against the public as too many of those given early release in the past have done. The Government believe that this represents the best possible protection for the public. The Bill makes it clear that prisoners will have to earn any measure of early release. There will therefore be a new incentive for prisoners to co-operate with programmes designed to address offending behaviour, something that does not exist under the 1993 Act. Early release provisions will reduce that to the minimum consistent with maintaining good order in prisons.
We believe that a margin of earned early release, following the scheme set out in the Bill of 12 days in every two months, should be retained to provide an incentive to ensure that control can be maintained in prisons and, equally importantly, to encourage prisoners to make a positive effort to address their offending behaviour. In practice, remission of up to one-sixth of a sentence can be earned through good behaviour in prison and, equally importantly, through participation in programmes designed to help offenders to tackle their offending behaviour.
Some who have commented on the Government's proposals question what effect they may have on the behaviour of prisoners while they remain in prison. The Government believe that the proposals I have outlined will provide a crucial incentive to maintain good behaviour in prison. Prisoners will be encouraged not only to keep out of trouble but to participate in programmes designed to enable them to address the problems they may face when trying to behave themselves in society. However, it will still be possible for days of earned early release to be forfeited if disciplinary offences occur. In that way, "additional days" can be added to the sentence in the same way as applies at the moment. The Government therefore believe that, with such additional resources as the Bill's provisions may give rise to, the Scottish Prison Service will be able to maintain and indeed improve on the necessary discipline in our prisons.
In Part IV the Bill addresses the important issue of legal aid. There is widespread support for the view that the costs of criminal legal aid must be brought under better control. The Bill contains a range of powers to assist in that objective. The legal aid system in Scotland cost the taxpayer £133 million in the financial 1995–96 and 60 per cent. of that expenditure was on criminal legal aid. The Government believe that the proposals in the Bill will help to ensure that the system of legal aid rewards lawyers who progress cases fairly and efficiently while at the same time upholding the right of every accused person in Scotland to receive a fair trial.
Those are the main proposals in the Bill, but noble Lords who have scrutinised the measure with care will already be aware that it contains a range of other proposals. Some are in fairly short compass, but most are of considerable significance and assistance to the criminal justice system in Scotland. Clauses 5 to 11 include important provisions for dealing with mentally disordered offenders. Clause 13 increases the maximum
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penalty for certain statutory sexual offences. Clauses 24 to 27 make important changes in the law on evidence. Clause 58 provides new powers for the police to confiscate drink from under-age drinkers. I anticipate that many other provisions will be the subject of detailed discussion at further stages.
I conclude by saying that the package of measures I have outlined to the House reinforces the Government's policy that society should not be expected to tolerate those who consider themselves to be above or beyond the law. The Bill extends the options open to the courts for supervising prisoners on their release from prison. It widens the courts' powers for dealing with mentally disordered offenders and lesser offenders who need not be sent to prison. These provisions, together with those dealing with appeals, the early release of prisoners and legal aid, illustrate that the Government are alive to their responsibility to keep the criminal justice system able to deal with the changing nature of crime and its effect on law-abiding citizens. The main proposals in the Bill received a considerable measure of support in another place where the Government's main objectives were not seriously challenged. I trust that those objectives will find support among your Lordships. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Lord Mackay of Drumadoon.)
7.30 p.m.
Lord Macaulay of Bragar: My Lords, I am sure that the House is grateful to the noble and learned Lord the Lord Advocate for setting out the basic structure of this very important piece of legislation in the criminal field. Perhaps I may say at the outset that concern for law and order and the proper order in society does not just belong to the Government. Indeed, those on this side of the House have made it clear time and again that they are also concerned—and always have been—about that particular aspect. However, their particular concern is to ensure that we get a workable system and not just a piecemeal system which the Bill, if implemented, may well turn out to produce.
There is no guarantee at this stage of the proceedings from this side of the House that the Bill will receive such a smooth passage through this House as the noble and learned Lord indicated it received in another place. One reason why it may have gone through more quickly than anticipated is that it is a massive Bill and one which requires considerable consideration by all concerned. Indeed, it is a Bill on which it is extremely difficult to write a Second Reading speech because most of the matters raised are more geared to a Committee stage. The Bill should be referred to as another "miscellaneous provisions" Bill rather than having its present title.
The evidential sections in the Bill are helpful, and anything that helps reduce public expense and wastage of police and court time in the administration of justice is welcomed. So not all parts of the Bill are objectionable to this side of the House. However, I am bound to say that certain aspects of the Bill have a strong political flag-waving flavour about them. That approach to the law is not conducive to good legislation

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in any field of law. In particular, the issue of mandatory life sentences, which the noble and learned Lord outlined in his speech, and the methods of dealing with legal assistance in criminal matters, seem to be politically and financially driven. That is certainly the case with the latter matter.
The mandatory life sentence provisions are clearly designed to fetter the traditional discretion of the judges. The explanation which the noble and learned Lord tendered to your Lordships' House in the course of his speech just did not help that position at all. The discretion of the Scottish senior judges has been exercised with great care and wisdom in Scotland over the years. There is no discretion where a person is convicted of murder—that is an exception to the general rule.
I suggest that the strength of the Scottish legal system is being seriously undermined by that proposal. The strength of the Scottish legal system has always been the strong foundation of the common law allied to common sense and the use of life sentences where appropriate. Indeed, there are many occasions in the past where judges have, for example, imposed life sentences on a person who has raped for the second time. This is a rather strange provision and it is almost bound to create unjust comparative law in sentences and lead to inequality and lack of consistency in sentencing.
There is no timescale for the commission of the qualifying offence which preceded the current qualifying offence. Moreover, there is no lower age limit. It follows from that that if a young person under the age of 16 commits an offence and is no further trouble until perhaps he is 24 or 25, that person, who may well have led a not quite blameless life but who, nonetheless, had a conviction to carry with him, would automatically under the provision have to be sent to prison for life, subject to the judge finding exceptional circumstances in terms of the Act.
The question of "exceptional circumstances" is not defined. It is left as an open house. There is no guidance for the presiding judge who may have to state reasons for finding exceptional circumstances which fall within the umbrella of the statute. He may indeed have to do so in preparation for an appeal. It is possible that a judge may be forced into a corner where he does not want to impose the mandatory sentence because he has heard all the facts and the circumstances of the case, knows all about the accused and has no doubt been supplied with a multiplicity of reports. The judge may be forced to stretch matters to get the leeway under the "exceptional circumstances" exception—if I may put it that way.
The mandatory life sentence will cause problems. We accept that the law does not belong to the judges any more than it belongs to anyone else. The law is for the benefit of the people but it is the judges who must interpret it. The judges are well represented by the presence in this Chamber tonight of three very senior judges. I shall not therefore pursue the matter any further as no doubt they will have their own particular points of view to put forward. However, judges' views must be listened to and respected even if they are not followed. It is possible that the existence of the
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mandatory life sentence as set out in the Bill is such that where the judge imposes something less than a mandatory life sentence, the public reaction will automatically be, "Why didn't he give him life?" That is why I say that the presence of the mandatory life sentence provision may very well be a barrier to justice.
Judges are men and women in whom the community places great trust, and their integrity and vigilance in protecting the public of Scotland is seldom challenged. However, that is not to say that they are always right; indeed, the Appeal Court has corrected them on some occasions but, basically, they have a good track record. Given this two-way sentencing street in the legislation now before us, some of them may be tempted to avoid the mandatory sentence by stretching the definition of "exceptional circumstances". That would be bad for the law and bad for the country. It may even put pressure on the prosecutor because he may have sympathy towards an accused and may not push the indictment to its outer limits so that the person will avoid receiving the mandatory life sentence.
Can the Minister explain to the House where the demand for that approach came from? I believe that it began with President Clinton and floated its way across to our Home Secretary, Mr. Howard, who then did a back-to-back exercise with the present Scottish Secretary, and here we are landed with it in Scotland where we do not need it. The prison population is at a new level and the imposition of more mandatory life sentences will increase that population still further in circumstances where the system just cannot cope because it will be overloaded.
No sensible person opposes a system which makes sure that serious criminals are dealt with severely; but this approach is seriously flawed. The system must build in for the convicted prisoner—and, indeed, for his family and other people—some hope for the future. Can the Minister say why it is being applied to people between the ages of 18 and 21 who may very well be at a stage where, with proper guidance from supportive sources, they could pull themselves out of the criminal slot into which they may have fallen? However, instead, they are to be locked up in terms of a mandatory life sentence.
No political party has monopoly of right in dealing with law and order. Anyone, whether politician or otherwise, who claims to have a solution to the so-called "law and order problem" is naïve, not streetwise or mentally unbalanced. There is no answer and all that we can do is to provide legislation which, on the one hand, may reduce offending and, on the other hand, make the community safer when the person is released.
The prison population in Scotland is now over 6,000. Her Majesty's Inspector of Prisons made some scathing comments about accommodation when I believe he visited Saughton prison. There are still three prisoners sharing one cell in that prison. We would complain if our citizens were held in such conditions as prisoners overseas. As I understand it, the only plan for a new prison is one which may be completed by 1999 in Kilmarnock which will hold only 500 people.

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It is important to remember in dealing with this subject that not only the prisoner serves a sentence, but also the prison officers in a way serve it too. The family of a prison officer, or his partner and his children in a way all serve the sentence, too. In many cases the longer officers work in a prison, the more problems outside increase for them. One has only to ask the families concerned about that. While the objective of making sentences count as outlined by the noble and learned Lord the Lord Advocate may be achieved, vast problems outside prison may be created. Taking what I might call a judicial swipe at the accused in terms of the mandatory life sentence is not something that is to be welcomed. It costs £26,000 a year to keep a person in prison. That is quite extraordinary.
I shall not go into detail on the removal of the parole provisions as my noble friend Lord Sewel may have a few words to say on that. However, that is another matter which will create problems in prisons. It may be politically "macho"—if I may put it that way—to let the public know what great steps the Government are taking to protect them by doing away with parole. However, it is only three years since the 1993 Act was passed, which dealt with the provisions carefully set out by Lord Kincraig in his report and welcomed by the Government. What has changed since 1993? Can the noble and learned Lord the Lord Advocate tell your Lordships' House what analysis has been made of the operation of the 1993 Act, or if the Act has had time to function and to be analysed?
The theory behind this restriction of release seems to be the old adage that if it is not hurting it is not working. While politicians pontificate it is the prison system and the staff who have to co-operate in putting the Act into operation. Additional strains are being placed on prison officers day by day through overcrowding and conditions in prisons but now they are being asked to assess prisoners' behaviour to see whether a prisoner can be given some release days. One can imagine the situation that might arise in a prison where an officer takes a dislike to a prisoner, or a group of prisoners, or vice versa. How can one possibly decide that someone should receive remission off his sentence when that situation arises?
As regards the tagging issue, when this Bill was first framed there was no mention of people under 16. Now people under 16 are included. Indeed in another place a specific undertaking was given that at that stage there was no intention of including under-16s in the Bill although the matter was subject to consultation. Why have the under 16s been included? How can a person under 16 give consent to be tagged? I refer to a child from a broken home who has no father or mother to look after him and is perhaps looked after by an aunt or uncle. There may be no formal custody arrangements of care. Who will give consent for that under 16 year-old? Whatever the merits of this provision may be for the over-16s, it is nonsense to apply it to children of 16 and under. It would be far better to spend the money to try to help children to forgo their criminal ways—if I may call it that—and offending behaviour rather than try this experiment.
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This measure is being imposed upon Scotland without any pilot scheme having taken place in Scotland. If there has been no pilot scheme, there can be no results of a pilot scheme. Pilot schemes have taken place in England which I understand have already cost half a million pounds. They have not been particularly successful and I understand that magistrates are quite reluctant to use the tagging process. They do not use that process for women. We should remember what happened to the poll tax. Scotland was used as a guinea pig and that scheme fell flat on its face. The tagging process may suffer a similar fate.
Experience so far has shown that the tags do not always work. I am advised by one group that an alarm was set off and there was a great hunt for the man concerned but he was found to be lying asleep in bed at home while the police hunted for him elsewhere. If the process is used sparingly, it is almost meaningless. Female offenders either have to wear the tag on their wrists and wear a long-sleeved blouse, or they have to wear it on their ankles and wear trousers. They do not have much of a choice in their dress when they are wearing a tag. That aspect is perhaps not so important for a man who may boast about the tag. There are indications that a person who has been tagged may be mistaken for a sex offender. The noble and learned Lord the Lord Advocate will know what happened recently in Stirling when the identity of a sex offender was revealed by, I believe, the local authority to various agencies and he was attacked.
There are various other elements in the Bill which will require scrutiny such as the compulsory taking of DNA samples and other such matters. However, we can deal with those matters in due course. The issue of mentally disordered offenders will have to be considered in consultation with those who are more closely involved with those people. However, what happens if a first qualifying offence is committed while a person is suffering from a mental illness that is not subject to a hospital order? Is that to be considered as a first qualifying offence despite what might be considered to be mitigating circumstances?
The question of appeals has been dealt with by the noble and learned Lord the Lord Advocate. It is welcome in so far as it goes. I was intending to ask the Government to indicate if and when they will set about implementing the proposals of the Sutherland Committee to set up a miscarriage of justice review body. However, judging by what the noble and learned Lord the Lord Advocate has told us, I do not need to bother because he has already given us the answer. It would be helpful, and would perhaps help the image of the Scottish legal system, if there was a lay input into the consideration of miscarriages of justice. It is important to remember that a jury of lay men has heard the first hearing of a case under the legal direction of the judge. Appeals are basically dealt with by judges who in one way usurp the jury function and say, "We do not think any reasonable jury would have done this or done that" or "We think a reasonable jury would have done this or done that despite the evidence". As I said, it would be helpful to have an input from lay persons.

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I wish to deal fairly briefly with the provisions for legal assistance. This matter again raises important questions. What is it all about and is it necessary? The end result will be that legally assisted persons may well be denied consumer choice within the legal aid system and may even have a solicitor foisted upon them. They may not have a solicitor of their choice to which they are entitled under the Scottish legal aid legislation and the regulations, but may be assigned a solicitor by the Scottish Legal Aid Board. What sort of system is that? There is a severe danger that a two-tier system of justice will be created—or perhaps I should call it injustice—in which the person assisted by legal aid not only loses his freedom of choice but may have the conduct of his case dictated by the state organisation; namely, the Scottish Legal Aid Board. The provisions are there, sticking out a mile, if I may use that colloquialism. Where is the demand for that approach to legal aid? All right, it costs money; it is bound to cost money. One does not get justice for nothing. However, to establish this system is not the answer.
I suspect—I may be wrong—that what sparked off the Bill was the publication of the earnings of certain solicitors in Scotland under the legal aid scheme. It caused considerable comment. I believe that the highest earner received about £1.2 million to £1.5 million from the system. What was ignored was that some firms provide a specialised service and deal only in criminal cases. Their contact with the courts helps the system to operate as smoothly as possible. The income does not go straight to one person. It has to support an office and staff.
The provisions for legal assistance are creating a new layer of bureaucracy and intervention which is bound to be costly and time consuming. Why cannot the Government reconsider this part of the Bill? Why cannot they sit down with the people directly involved in the administration of criminal justice? I understand that there are ongoing talks with the Law Society of Scotland—that is good—and with people such as the Glasgow Bar Association, the procurators in Edinburgh, and so on, to see whether a different system can be worked out. The Law Society is a self-regulating body which works satisfactorily. I understand that all the people involved in the administration of the criminal justice system are happy to co-operate with the Government in seeking to control legal aid, if I may so put it.
There is no objection to the register. That is a sensible idea. But who will frame the code of practice? The Legal Aid Board may approve it. How many criminal practitioners will be on the body which presents the code to the Legal Aid Board for approval?
New Section 25B(1)(c) is an extraordinary piece of legislation. The board will not control the conduct of the solicitor but the conduct of the case. New Section 25B(1)(c)(v) is worse. The code of practice will determine how a solicitor should conduct the relations with the prosecution. What on earth does that mean? Does it mean that a solicitor faced with an overwhelming case on paper who does not give a plea to the Crown will be found to be in breach of the code?
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It is another nonsense. The provision should be reconsidered, as should the prospect of one solicitor monitoring another within this field.
There is much more to be said. However, in closing perhaps I may refer to the powers of investigation. Again, those must be looked at. The measure is an all-embracing, hoovering operation, first, by request of the board, and, secondly, by warranted entry. The interesting point is that the client is not represented. The legislation has driven a coach and horses through the old tradition of confidentiality. I shall be corrected by noble and learned Lords who will speak in the debate, but I understand that the right of confidentiality does not lie in the hands of the solicitor but of the client.
If the client is not to be consulted on the matter, any papers can be taken away from an office—even from an MP's office, if the MP has received papers of complaint from a client. Under that section, a warrant can be obtained to raid the MP's office and papers taken. Could we not use the facilities of the Law Society? It has powers of recovery of papers if it believes that a solicitor; is acting improperly. Alternatively, instead of the bull-at-the-gate approach for very few occasions, can a commissioner be appointed, as in civil cases, to examine; documents and to extract from them such documents as the commissioner thinks relate to the alleged offence by the solicitor?
I apologise to the House for taking more time than I had meant to do, but this is an important piece of legislation. I do not say that I look forward to Committee stage, but I can assure noble Lords that there will be one.
7.55 p.m.
Lord Mackie of Benshie: My Lords, I make no apology, for speaking as a layman among distinguished experts on law and other matters. I wish to put a layman's point of view about the Bill, having a long interest in and experience of Scottish politics. We have our experts on these Benches. My noble friend Lord Mar and Kellie is an expert. He has been in prison, I hasten to say not as an inmate—although that might give him further expertise—but as a social worker in prison work. At present he is a prison visitor. He will add his contribution throughout the long Committee stages. My noble friend Lord Thomas of Gresford is a distinguished Welsh lawyer with strong Scottish affiliations. He will deal on level terms with the distinguished lawyers in other parts of the Chamber.
I wish to discuss a simple fact. I am told, the evidence appears to say, that prison does not improve people. A brief paragraph on the financial effects of the Bill states that cutting down the number of early releases will cost £65 million to £100 million, with some additional expenditure. That is an enormous sum of money. I do not know whether the figure includes the capital expenditure. Perhaps the noble and learned Lord the Lord Advocate will tell us. That is a great deal of money to spend on a Bill about which the Law Society of Scotland is particularly scathing. The noble Lord, Lord Macaulay, mentioned the Kincraig Committee and

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the fact that its proposals have not been given a fair trial. The society refers to the amount of work done. Its brief concludes coldly by stating,
"The Society believes that these proposals will have a serious adverse impact on prisoner behaviour".
These are extraordinarily serious accusations. We need to consider what can happen and is happening in Scotland in an effort to rehabilitate prisoners. I have the figures from the Apex Trust. No doubt the noble and learned Lord the Lord Advocate knows it well. It deals with prisoners in prison and after prison. Out of 4,000 individual cases, 40 per cent. obtained employment and only 5 per cent. offended again while under supervision. That is good work which should be encouraged rather than keeping people in prison for a much longer period, increasing their resentment. In addition, 60 volunteers from industry are seconded to the Apex Trust by their firms. That is a most effective contribution from industry and one which we should surely encourage. The total cost is £300 per prisoner. That seems a small price to pay. Surely expenditure to encourage such an organisation with volunteers would be more valuable than keeping prisoners longer in prison, increasing their resentment, at a cost of £500 a week.
I give two examples from difficult districts in London. One is the Dalston Youth Project, which deals with 11 to 18 year-olds who are at risk of becoming offenders. In other words, those young people are sent to the project by various bodies. They are provided with mentors, who are volunteers chosen from some 250 who apply. Thirty are selected and trained to look after the youngsters. Many of the volunteers are black men and women who have done excellent jobs in their own communities. The close looking after of those would-be offenders costs less then £3,000 a year. After one year, 73 per cent. of them return to school or college. So the project saves a potential 73 per cent. from crime.
Another example is the Hackney Youth Justice Intermediate Training Centre, which takes in and looks after about 40 young men and women—mainly men—under 18. The average age is 16. They are under the care of the centre as an alternative to custody. It is their last chance. They are given close personal attention. If they will not get up in the morning, they are bought an alarm clock. If that does not work, they are hoisted out of bed. They earn a little money and a percentage is paid back to victims. The project is extremely successful. Its "customers" have not been before a court for 18 months. The project costs some £200 a week per person. That appears to be an economic way to proceed rather than putting those young people in prison and making a large percentage of them worse.
I understand that, in Scotland, expenditure on the whole of such social work is about £31 million. It is quite obvious that such expenditure does a great deal more good than spending another £100 million on putting people in prison for longer.
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There are many good people who are available for this sort of work. I end with one final incident from some time ago. There is in the county of Angus a reform school called Rossie Farm School. Forty or 50 years ago it was under the charge of a Major Carson, who was an exceptional person. He used to achieve a success rate of almost 90 per cent. in the negative sense that the young people there never offended again. But above that, he had a tremendous success rate with intelligent inmates, who in many cases went on to do extremely well and would return to give substantial presents to their old school which had done them so much good. It appears that the whole trend in Scotland of keeping people in prison longer is uneconomic. The £100 million would be far better spent in another way.
8.3 p.m.
Lord Clyde: My Lords, there is much in the Bill that is to be admired. By and large, I commend it. I do so in the context of a world in which we still have to fall back on imprisonment as the final available course of disposal. I endorse much that was said by the noble Lord, Lord Mackie of Benshie, in regard to the merits or otherwise of that form of disposal.
There are just two clauses on which I wish to make some comment. If I seem critical in respect of those clauses, I hope that the noble and learned Lord the Lord Advocate will understand that I do so purely with the intention of being constructive and helpful, not destructive.
Clause 12 increases the sheriff's sentencing power from three to five years. I listened with interest to the explanation given for that provision by the noble and learned Lord the Lord Advocate. I took the message that there was a desirability to achieve "maximum flexibility". It was not immediately obvious to me why the provision was necessary at all.
At present the sheriff has a power to remit cases for sentence to the High Court. Sheriffs can, and do, exercise that power. Why should that not be sufficient? There is one possible danger that may arise as a result of this innovation; namely, that there will be a greater risk of inconsistent levels of sentencing in the sheriff court. The greater the range of sentences that are permitted, the greater is the room for divergence between levels of sentence between different sheriffdoms.
The problem is less serious in the High Court, because there a relatively small number of judges are engaged and they have considerable opportunity to discuss sentencing levels among themselves. While sheriffs can and do meet together, that can be achieved only occasionally. It may be difficult for them to achieve a consistency of level without frequent opportunities for consultation. I therefore have reservations about the purpose and merit of this provision.
Essentially, as I believe is recognised, this change is concerned not with the simple desire to achieve longer sentences but with the allocation of work

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between the High Court and the sheriff court. In my experience as a High Court judge, not infrequently cases would appear in the High Court which rapidly degenerated into matters which could and should have been sent to the sheriff court rather than the High Court. That is obviously undesirable for the economic administration of the High Court system and circuits.
The increase in sentencing power proposed in Clause 12 ought to lead to a radical reappraisal of the allocation of business between the High Court and the sheriff court. I hope that the noble and learned Lord the Lord Advocate will be able to give an assurance that there will be a significant decrease in the number of cases allocated to the High Court, to the benefit of the civil business of the Court of Session and to those who litigate there.
The other clause on which I wish to comment is Clause 20. It is a rewriting of Section 108 of the 1995 Act with certain extensions, some of which are prompted by the provisions in this Bill. The clause relates to the role of the prosecution in sentencing. It is an important provision.
Whether any sentence should be passed at all in a case has long been a matter for the prosecution. The prosecution must move for sentence before the court can act. In practice, usually the prosecution does little more after trial than disclose previous convictions, if any; or, if there has been no trial, to narrate the circumstances of the incident.
The background has now changed. Sentences by reference to some forms of tariff have crept in over the years. There is now a substantial degree of guidance or direction by Parliament as to what the sentence is to be. Parliament sometimes gets it wrong. I am extremely glad to see in Clause 5 the end of that absurdly low maximum sentence of two years which Parliament prescribed for certain sexual offences with young girls. That prescription by Parliament has long been a source of embarrassment in sentencing in a number of High Court trials.
However that may be, the state now plays an important role in determining sentences. The old idea that the prosecutor was not concerned with sentencing was destroyed when the prosecution was given a right of appeal against sentences as unduly lenient. Now, looking at Clause 20, it seems to me that there is little which is not potentially open to challenge by the Lord Advocate. Under Clause 17(2), he can challenge the judge's assessment of exceptional circumstances justifying an alternative course to the sentences prescribed in Clauses 1, 2 and 3 of the Bill. The standard for his intervention under the new heads in the new Section 108 is not one of undue leniency but that the disposal was inappropriate. It cannot now seriously be maintained that the prosecution is not concerned with sentencing.
We have reached the curious situation where the prosecution initiates the sentencing process and then sits back while only one side—the defence—is heard and then the prosecution may appeal. It is unusual for a judge to determine what may be a contentious issue between two parties by hearing one side alone. Every
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judge can be materially assisted by the guidance of counsel and should not be deprived of it. It is obviously preferable to get the correct sentence at the outset rather than trying to get it corrected on an appeal.
If the clause stands then, it should be qualified by a reference to the propriety of the prosecution making a submission to the court on sentence. That, of course, will be done with the same restraint as is exercised by the defence but nevertheless would be sufficient to enable a balanced view to be formed. Alternatively, the right of appeal could be made conditional on the point having been raised by the prosecution before the lower court.
Those are the only two clauses on which I wish to say anything. By and large I feel that there is a lot of good in the Bill and by and large I commend it.
8.12 p.m.
The Earl of Balfour: My Lords, I feel that when any criminal repeats the same crime again and again, the punishment must be sufficiently severe to prevent that criminal repeating it. That is what the public require Parliament to do. It is up to Parliament to make the punishment a deterrent, not the courts alone. The length of a life sentence must, I feel, be decided by Parliament and that is where I support the Bill.
It is a very difficult Bill to understand because it is mostly amending other Acts. On page 7, in Clause 4(5) we see the words:
"and the court shall not make the order unless the offender agrees to comply with its requirements".
Fair enough. But what if he or she does not agree? Then on page 14 in Clause 6 we see the words of the rubric:
"Effect of hospital direction".
The decision appears to be up to the Secretary of State, but I feel that he should only act after consultation and with the advice of a medical officer. Clause 9 amends Section 53 of the 1995 Act. Surely the small amendment to Section 53 in Clause 10 should be put into the same clause. There are also a number of other amendments to Section 53 in Schedule 1 to the Bill. That is where I find the Bill difficult to follow. At the bottom of page 35, in Clause 30(7), it is difficult to understand to which section of which Act the provision applies.
Perhaps I may take one more example of the 1995 Act. Section 106 deals with the right of appeal and a new subsection (1)(bb) is added by Clause 17. A new subsection (1)(da) is added by Clause 22 and new subsections (3), (3A) and (3B) are inserted under Clause 16. A new Section 106A is added by Clause 18. That makes the Bill difficult to follow and it makes it difficult to understand the nitty-gritty of the legislation.
I sincerely hope that after the Bill's passage through the House, laymen will be able to understand the legislation if they take a little care. As I have said before in your Lordships' House, ignorance of the law is no excuse, unfortunately.
8.16 p.m.
Lord Hope of Craighead: My Lords, it has for many years been the practice in Scotland for the senior judges, Ministers and many others to work together in all matters relating to the administration and reform of the Scottish system of criminal justice. Co-operation, mutual respect and understanding have been the principal features of that practice which has done so much to preserve and, where necessary, strengthen a system which I still firmly believe is without equal and in which, for the most part, people in Scotland continue to have confidence. The fact that sheriffs and judges are still held in high regard by most sections of the public in Scotland is due in no small way to the fact that all those engaged in the criminal justice system are seen to be working together to create a safer and more just place for all our citizens.
One has only to mention some of the principal landmarks in our recent history to illustrate the measure of the contribution which the process of co-operation has made: the Thomson Committee which reported in 1972 and again in 1975 and whose recommendations were implemented by the Criminal Justice (Scotland) Act 1980; the Emslie Committee on Penalties for Homicide which also reported in 1972 and one of whose recommendations has been picked up, perhaps inadvertently, by the Bill; the Kincraig Committee which reported in 1989 and whose work provided the foundation for the important reforms in the Prisoners and Criminal Proceedings (Scotland) Act 1993; and, most recently, the Sutherland Committee, among whose membership were two very distinguished and experienced judges, the then Lord Justice-Clerk, Lord Ross, and Sheriff Gerald Gordon whose report last year provided the basis for Clause 16 of the Bill, as the noble and learned Lord the Lord Advocate explained.
During my time as Lord Justice General, I worked closely, as the noble and learned Lord will know, with the then Minister and his predecessor as Lord Advocate in the preparation of the Criminal Justice (Scotland) Act 1995 and the various consolidating measures which reached the statute book later the same year. It was therefore very much to my regret that the last few months of my period of office as Lord Justice General were marked by confrontation, as I tried to respond, with so many others who were at least as much disturbed by it as I was, to the White Paper on crime and punishment, which was published last summer and which, as the noble Lord, Lord Macaulay of Bragar, pointed out, was formulated apparently as part of a political campaign. That regret remains with me as I see that so little has changed since the publication of the White Paper despite the opposition which the proposals received from almost every agency concerned with the criminal justice system in Scotland—many with far greater knowledge and understanding of the practical effects of the proposals than I can claim—except the police.
It is not easy for me to be conciliatory in these circumstances but I recognise, as the noble and learned Lord the Lord Advocate reminded us, that the Bill has come from another place and that it contains some good measures as well as bad ones. Therefore, I do not wish
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to speak at length in opposition to the principles of the Bill. I should like in due course in both this debate and at Committee stage to suggest some ways in which it might be amended and improved. I hope therefore that the noble and learned Lord the Lord Advocate will listen to my remarks, sharing my belief that we owe a heavy responsibility to the public in Scotland to improve our system of criminal justice, not to damage it, and that co-operation and not confrontation should be the atmosphere in which we debate the Bill.
The responsibility for the maintenance of law and order must rest with the Government. Speaking entirely for myself, I can see no objection on constitutional grounds to the process by which Ministers recommend to Parliament measures whose effect will be to restrict the discretion of judges in sentencing and the judges, if the measures are approved by Parliament, being bound by them. I believe that with that responsibility, which means that the Government are answerable to Parliament and ultimately to the electorate for their policies, comes a responsibility of another kind; that is, the responsibility to give leadership, to consult wisely, to listen to advice and to promote understanding of their policies. I believe that the judgment of history will be that it is in that vital area of good government that Ministers have laid themselves open to criticism.
With the enactment of the Prisoners and Criminal Proceedings (Scotland) Act 1993, which incorporated many of the recommendations of the Kincraig Committee, it seemed that the Government were persuaded that the best way of strengthening the criminal justice system was to reduce the risk of reoffending by convicted criminals, a matter to which the noble Lord, Lord Mackie, made reference. Indeed, from my own experience I can say that it is most unusual in Scotland for a person who is convicted of a serious offence not to have offended previously. The aim appeared to be to provide for their rehabilitation both before and after their release from custody. The emphasis was to be on the use of the parole system to balance the negative effects of imprisonment. The aim was to improve social reintegration on release and to encourage prisoners, by a fair and impartial system of review and supervision, to address their behaviour and not reoffend. Part of the philosophy was that offenders who showed themselves worthy of that treatment were to be offered the incentive of serving a substantial part of their sentences out of prison, subject to instant recall at any time if their conduct gave rise to concern on the part of the Parole Board. The same philosophy had been adopted two years previously for England and Wales by the Criminal Justice Act 1991.
Now, as to what I believe is the almost unanimous dismay of those who were working together to make that new system work and enable it to prove itself, it is to be abandoned, as we see from Part III of the Bill. What ought to have been allowed time to prove itself is to be cast aside without waiting for the results. The reason given is the need for honesty in sentencing. But, in truth, if honesty is what we seek, it is hard to believe that it is not the tide of public opinion that is being allowed to rule the policy. Instead of explaining the policies so recently adopted by the Government

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themselves, the soft option has been taken of responding to the emotions of fear and insecurity by demonising the criminal. The power to govern is being displayed as the power to punish; hence the title of the Bill. Thus, much to my regret, there appears to be a process of polarisation by which one side of the criminal justice system is set against the other. I believe that as a long-term policy that will fail. In fact, there is no long-term agenda. If these harsh new policies do not succeed, there is no way forward, unless mass imprisonment is to result.
The answer to the problem, surely, must lie in a greater understanding of the nature of our society and the way people live and how they are housed and educated, not in shutting the door after the event. Those who are being led to believe, as many are, that the provisions in the Bill for the imposition of automatic sentences will lead to a significant reduction in offending are likely to be disappointed. In the short term, the words of those who would be tough on crime will no doubt win the day. But it is the long term which matters, and that is the background against which we must debate the Bill.
There are, indeed, some good things in the Bill, as I said. I am particularly glad to see in Clause 3 a widening of the power to make a supervised release order. That is something for which I and some other judges in Scotland have been asking in order to strengthen the powers of disposal in the case of violent and sexual offenders, although that was in the context of the parole system introduced by the 1993 Act. If the resources, to which the noble and learned Lord the Lord Advocate referred, can be made available to meet that demand, I agree that this measure should produce results which will improve public safety and reduce crime.
Clauses 5 to 11 which deal with mentally disturbed offenders contain some useful reforms, although we may wish to examine some of the detail. Clause 13 which increases the maximum penalties for certain statutory offences—the noble and learned Lord, Lord Clyde, referred to Clause 5 but I believe that it is Clause 13—is also welcome and, as he pointed out, long overdue. Here again the judiciary has expressed unease about the inadequacy of its sentencing powers when seen alongside its sentencing powers for common law crimes, which in the High Court are unlimited.
Clause 15, which will bring children sentenced for murder within the scope of existing procedures that govern discretionary life sentence prisoners, is an interesting development. This is the measure which appears to reflect a similar recommendation by the Emslie Committee in 1972, in paragraph 100 of its report, where it was stated that it was desirable to strengthen judicial involvement in the sentencing of this class of offender and, through the pronouncement of the court, to emphasise its deterrent effect in this most difficult area of juvenile crime. However, I wonder what the reason is for introducing the reform at this time, bearing in mind that the effect of the clause, as I understand it, will mean that the Secretary of State for Scotland will no longer have any decisions to take in
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the release of those children. The matter will lie entirely with the judges who make the initial recommendation and with the Parole Board which recommends release.
Clause 16 seeks to implement most of the recommendations of the Sutherland Committee and I am content with what is proposed. I accept the explanation given by the noble and learned Lord the Lord Advocate as to why it was decided not to go further and set up an independent review body. I believe that that was a sensible judgment in the context of the situation which we have in Scotland and the way in which these matters are being administered.
I should like to add my words of tribute to the work of the Sutherland Committee which consulted so widely in the course of its work. The measures in the clause, when reduced to print, may seem insignificant but I believe they will go a long way towards strengthening the powers of the High Court in dealing effectively with those cases where a miscarriage of justice has occurred.
This is not, of course, the time to go into detail but I should like to raise one or two other points now in the hope that the Lord Advocate will be able to consider them before the Bill goes into Committee. The suggestions are offered in the spirit of co-operation, to which the noble and learned Lord, Lord Clyde, referred, with the aim of making some of the more difficult provisions in the Bill more effective and more workable.
Clause 1 provides for the imposition of automatic sentences of life imprisonment. There are two points, I suggest, which require further examination by Ministers if the clause is to remain part of the Bill. The first relates to the cross-Border aspects of the measure, some of which I touched on in my observations at the Second Reading of the Crime (Sentences) Bill. As the Lord Advocate will remember, the noble Baroness the Minister described this as "kilting" the Bill. I am not sure how she would describe the operation when conducted, as I am about to do, in the reverse. To refer to it as "removing the kilt" would seem a little indelicate.
The second point relates to Clause 2 as well as to Clause 1. It incldes the provision that the High Court may decline to impose the automatic sentence if it considers that there are exceptional circumstances which justify its not imposing the sentence which otherwise would be imposed automatically.
As for the cross-Border aspects I have, from the outset of these proposals, been voicing my concern about the difficulties which are likely to arise in trying to compile a list of violent and sexual offences which, without being too sweeping, will make sense in Scotland and, at the same time, would be compatible with the corresponding lists for England and Wales and Northern Ireland. The two systems of law and procedure are so different that a uniform pattern across the Border is probably not attainable. But if we have to proceed down this road it would, I suggest, be a great help to all practitioners, and no doubt also to the noble Earl, Lord Balfour, if the lists of relevant offences from England and Wales and Northern Ireland could be set out in full on the face of the Bill, as the Minister has now agreed to do in the light of my remarks in the case of the Scottish offences in the Crime (Sentences) Bill.

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To do that would also, I believe, provide an opportunity for removing at least one anomaly. As the Bill stands, a previous conviction for an offence of lewd, indecent or libidinous behaviour or practices, which is commonly found in the case of child abuse, for example, will qualify the offender in the event of a repeat offence—and I stress any of the offences in the list will qualify for this purpose if he has a previous offence on the list—for an automatic life sentence under Clause 1. But there is no equivalent for that offence on the list of qualifying offences for England and Wales or Northern Ireland. The reason, I understand, is that the nearest equivalent is the statutory offence of indecent assault for which the maximum sentence is 10 years' imprisonment. I think I can understand why it was thought not possible for an automatic life sentence to be imposed for that statutory offence, even for a repeat offence of the same kind. My point is simply this: it is not something which should trouble the High Court in Scotland which will be sentencing not for the previous offence committed elsewhere but for the offence of which the person has just been convicted which, to give it jurisdiction, must have been committed in Scotland. The only purpose of referring to the previous offence will be to show that the person has qualified himself for receipt of the life sentence from the Scottish court. It would seem odd and, many might say, unfair and unsatisfactory if a man whose previous offence of this kind was committed in Gretna qualified for the life sentence while the man whose previous offence was in Carlisle did not. I hope that the Lord Advocate will feel able to give further thought to the possibility of listing the English and Northern Ireland equivalents of this crime in the Bill as relevant offences so that a logical and coherent system can be provided and to avoid the purpose of this clause, which no doubt is directed at the evil of child sexual abuse above others, being defeated in such circumstances.
Turning to the question of exceptional circumstances, there are, I think, two problems which must be addressed. The first is the meaning of "exceptional circumstances". The second is to identify the circumstances which can be taken into account. There are two distinct issues here. The first is, I accept, a matter for the court. We may wish to alter the wording to find some other formula which is more acceptable but, at the end of the day, whatever phrase is used it will be for the court to interpret it and to apply it to the circumstances of each case. But I do not agree that it is enough for Ministers to leave it to the courts to decide what circumstances can be taken into account in the search for what is exceptional. The particular issue which is bound to be raised sooner or later is whether the sentencing court can have regard to the circumstances of the offence as well as those of the offender and, if so, whether it can have regard to the circumstances of the previous offence as well as those of the offence which is before the court.
I believe there are two positions which could be adopted on this issue, either of which is logically defensible. What Ministers cannot do, in view of the practical implications in this uncharted territory, is to
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slide between the two stools and refuse to declare which of them they wish to adopt in order to give effect to their policy. The first position is that the circumstances of the offence—and, indeed, of both offences—must be left out of account. On this view it will be conclusive for the purposes of the automatic sentence that the offences were qualifying ones. The question of whether they were not serious offences of their type will be irrelevant. To some this may seem harsh, but it would avoid all argument about whether the offence was or was not serious. It would also avoid the difficulties which are bound to arise in informing the court about the circumstances of the first offence which may have been committed in another jurisdiction a long time ago.
The other approach, and the more just approach, would be to say that it is open to the court to look at the circumstances of the offence. This would make sense in bringing our common law crimes into the list. There would be no point in bringing into the regime cases which, although bearing the label—the nomen iuris, to use the correct words—of a serious violent or sexual crime, were after all quite trivial. As the noble and learned Lord, Lord Clyde, pointed out, cases which may seem serious to begin with in the High Court may turn out later to be far from serious and yet the convictions will be High Court convictions. Unless attention is paid to this matter the result will be to devalue and discredit the use of the life sentence—a sentence which, if imposed literally, could not, as the Emslie Committee observed, be more awesome and whose deterrent effect must, for use in the right cases, at all costs be preserved. What I fear is a judge having to declare under the requirements of Section 2 of the 1993 Act that the punishment element for the crime is something like two or three years while at the same time sentencing the prisoner to life imprisonment. This approach, however, leads directly into the problem as to how the court is to be informed about the circumstances of the first offence without the risk of dispute about them which could cause delay and uncertainty.
The first stage in the resolution of this difficulty requires a decision to be taken by Ministers as to which of these two courses to adopt. If the second, and more just, approach is to be adopted something will need to be done to address the problem, especially as it is not, if my recollection is correct, at present the practice for the prosecutor in Scotland to enlarge upon the information set out in the list of previous convictions of which notice has been given under Section 69 of the Criminal Procedure (Scotland) Act 1995.
And there is another problem about the previous qualifying offence which does not seem to have been addressed in the Bill and to which the Lord Advocate may wish to give further thought. No doubt this is because we are indeed being taken into new and uncharted territory where there are no rules of practice to guide us as to what should be done. It is the practice in Scotland for previous convictions which are under appeal not to be included in the list which is lodged under Section 69 of the 1995 Act. But what is to be done if the offender who has been convicted of a qualifying offence is released on bail pending his appeal against his conviction and then reoffends while on bail

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by committing another qualifying offence before his appeal is disposed of? Some provision will have to be made to enable the prosecutor to give notice to the offender that his first conviction, if upheld by the appeal court, is to be treated as a qualifying offence for the purposes of this clause, as I would understand the intention is to be. And some provision will also have to be made to enable the court to adjourn the case for sentence—we are after all, speaking about the life sentence—until the appeal against the first conviction is disposed of, which, in a complicated case involving, say, the leading of additional evidence, might take some considerable time, far in excess of the period which is currently provided for by the power to adjourn in Section 201 of the 1995 Act.
I have already taken up far too much time. I shall have to reserve other matters of detail to later stages in our discussion of the Bill. I would only mention in passing, in order to leave it aside for the time being, my concern about the operation of the provisions in Clauses 30 to 38 for early release from custody. Under Clause 13 of the Crime (Sentences) Bill—the English Bill—all offenders (I stress "all offenders") serving a sentence of 12 months or more will be subject to a release supervision order, the breach of which will be dealt with as an offence. Under the Scottish Bill, as I understand it—I should be grateful to be corrected if I am wrong—supervision after release will be available only if the court orders this when passing sentence before the offender is removed to custody. There is an obvious weakness here which affects public safety despite the provisions in Clauses 34 and 35 for punishing those who reoffend after release. This point is directed to the very emphasis of the Bill which is punishment and not prevention of reoffending. What is missing is the guidance and support which is needed after release to prevent reoffending, the need for which may only be seen while the offender is in custody. It is this aspect of the Bill which attracts so much concern in view of the abolition of the parole system. In the English Bill the position can be defended by the Minister—I am not saying effectively, but at least it is a defence—on the ground that the new system will in all cases be available and that it will provide a better pattern of supervision in the case of prisoners who would have been refused parole. As I understand the Bill, that defence is not available in the provisions for Scotland. If I am right about that, the Lord Advocate may wish to consider whether we should not adopt the English approach in order to reduce the risk that the abolition of the parole system will increase the evil of reoffending after release from custody.
As others have said, there are many matters of detail to be considered at the Committee stage. That is a pity, because there are some measures here which need to be implemented without more delay. I certainly would not have been for refusing a Second Reading to the Bill, even if that course were open to us, but I hope that when the Bill leaves this House it will be an improved Bill which will assist the administration of justice in Scotland, which is so important to its good government and of such concern to us all.
8.44 p.m.
The Earl of Mar and Kellie: My Lords, as my noble friend Lord Mackie of Benshie has already mentioned, my interest in the Bill lies in issues concerning prisons, prisoners, victims, community sentences, mentally disordered prisoners and children. I confirm a non-pecuniary interest, that I am a member of the Visiting Committee for Glenochil Young Offenders' Institution, and I mention in passing that I was involved in criminal justice social work for many years.
Perhaps I may say to the noble Earl, Lord Balfour, that consent is normally required when a community-based order is made. That would be because non-compliance with the order renders the person placed under the order liable to repunishment.
The provisions in the Bill for mandatory sentences of life imprisonment and of seven years for repeated class A drug trafficking offenders are both qualified by "exceptional circumstances" provisions. It is in the extent of the interpretation of these "exceptional circumstances" that the justice or injustice of Clauses 1 and 2 will have to be determined. I am certainly reassured by the fact that Clause 2 will apply to genuine drug dealers appearing on indictment in the High Court and not to some pathetic addict caught sharing illegal drugs with addict friends. I sincerely hope that such sad offenders will continue to be dealt with in the Sheriff Court. They are, in any case, more in need of help than punishment.
Clause 3 introduces the supervised release order. I am reasonably impressed by this. But then I am also impressed by the current scheme of supervised and conditional release. I can approve of the specification of between three months and two years, or a quarter of sentence if greater, for post-custodial supervision. It has to be noted that this SRO will be an additional, and so consecutive, sentence, whereas the 1993 arrangements of supervised and conditional release are a constituent part of a single sentence. The process of explanation of this to offenders will need attention as there is always a degree of resistance to post-custodial supervision.
In Clause 4, the introduction of restriction of liberty orders brings to offenders a system of curfews, exclusions, inclusions and monitoring, both by humans and by electronic devices. Restriction of liberty will also be available as an additional condition of a probation order. I approve of that. I am reasonably satisfied that a restriction of liberty order can be useful, so long as it is within the context of a human supervision system. I am obviously concerned about remote monitoring in isolation. I am perhaps less concerned about monitoring by telephone than by electronic device or tag.
Recognising the chaotic lifestyles of many offenders, especially juveniles, I believe that there will be a need for substantial counselling if the restriction of liberty order is to be successful; that is, counselling about how to comply, how to make good use of leisure opportunities, use of time at home—of which there will be a good deal—contact with acquaintances, which may not be desirable, and employment measures. Without this human intervention, I see remote monitoring as having little constructive input, and so as being suitable

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only for generally law-abiding citizens who have erred once. However, I welcome attempts to widen the range of community-based disposals.
The measures for the mentally disordered offender introduce a hybrid order—the hospital direction. This will pose considerable ethical problems for psychiatric staff as well as providing a disincentive for the patient to get better and respond to treatment. I am concerned by the thought that someone with a background of psychiatric illness can be thought of as being robust enough to withstand the pressured life of prison. Already, there are too many prisoners who could be classified as psychiatric patients. They need the protection of the prison staff to survive and, inevitably, they do not have the wisdom to "stay behind their door"—itself a practical but unjust solution.
However, I do recognise that there are circumstances where an offender may have committed an offence while mentally fit and has subsequently become mentally unfit or—the other way round—committed the offence while mentally unfit and has recovered substantially. This hospital direction may have the administratively unfortunate effect of "bed-blocking" or a reluctance to move the patient on to prison. This is currently dealt with by the existing regulations for the supervised release of patients on hospital orders and on restriction orders.
Clause 12 raises the maximum sentence allowed to the sheriff court. In summary cases it rises, as we have heard, to six months and 12 months and in solemn procedure it rises from three years to five years. I would have preferred to see the solemn procedure maximum rise to four years. That would keep it in line with the classification and status of prisoners who, at four years, are identified as long term.
Clause 13 raises the scale of sentence for sexual offences against girls under 16 years of age, as has been said, from two years to 10 years. That will need to be well publicised among young people, among whom the rules regarding unlawful sexual intercourse are often casually regarded. However, I recognise that the new 10-year maximum sentence is for cases appearing on indictment. That suggests to me that it will not usually apply to offences of consensual sex with a girl aged between 13 years and 16 years.
Clause 14 introduces yet another community sentence; that is, disqualification from driving for non-motoring offences and also for fine defaulters. I am glad to see that there will be a pilot scheme for this controversial measure. I believe that it will only be suitable for law-abiding citizens who have erred once or twice or rarely. The risk that an offender will ignore the driving ban and drive without a licence—and, more critically, without insurance—will have to be clear in the sentencer's mind. Uninsured drivers create a special class of victim after accidents.
Part III of the Bill brings us to a really difficult area of penal policy—the introduction of a major change in liberation practice. The introduction of these new measures of early release will endanger the security and good order of our 22 prison establishments unless—and
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it is a big unless—they are well explained to the prisoners and prison staff. I am tempted here to suggest that Ministers should involve themselves in this task of explanation.
There is one provision missing from the Bill, which would be helpful in that regard—the instruction to sentencers to reduce the length of sentences passed to take into account the new restricted provision for so-called "early release". Prisoners are generally a conservative bunch who do not like change. What is more, they have a keen sense of injustice to themselves—which I wish they would transfer to their victims, which would solve a great many problems. Managing these changes in liberation practice, which sounds as though more time will be spent inside, will be tricky and, basically, puts at risk the roofs of many of our prisons.
I am also concerned by the assessment process by which early release days will be awarded. The first three days per month will be virtually automatic, I suggest, unless the prisoner has been on report. The second three days will be awarded for above-average participation and commitment to the prison's programmes, of which I approve. While that is superficially sound, it is difficult to understand how this will operate in a prison which does not have a full programme for prisoners to participate in. This early release scheme introduces a bureaucratic approach of questionable efficiency. The existing 1993 scheme only involves the loss of remission by misbehaviour, which is entirely up to the prisoner. It will also become more difficult to co-ordinate a sensible plan of post-custodial supervision and support, especially where accommodation has to be arranged. I hope that this scheme will be introduced cautiously, if it has to be introduced at all.
The introduction of alcohol testing for prisoners in Clause 39 extends the current approach of mandatory drug testing for prisoners. This has aroused the suspicions of the civil liberties lobby, and probably quite rightly so. I doubt whether this alcohol measure will be as significant as mandatory drug testing has proved to be due to the decreased scale of illegal alcohol in prison. The provision of random tests and tests on suspicion is already beginning to identify drug misusers in prison. As drug misuse is rife in prison, I believe that mandatory testing is the only coherent response available.
Finally, Clause 58 introduces the power of the police to confiscate alcohol which is being consumed in a public place by under-age drinkers and by those who appear to have supplied them with that drink. While that will tidy up an anomaly in public order, it will have to be handled with considerable tact to avoid incitement and harassment allegations. I hope that a pilot project can be undertaken, if that has not already been done.
This Bill has many liabilities contained within it. I look forward to a lively Committee stage.
8.57 p.m.
Lord McCluskey: My Lords, this is an extremely important Bill not, I believe, for the reasons given by the noble and learned Lord the Lord Advocate, but for

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other reasons which I hope to make clear in the course of this speech. I should like to begin by saying that I share many of the concerns expressed by my noble and learned friend Lord Hope of Craighead about the background to this Bill. He mentioned a list of distinguished judges who had contributed towards the reform of criminal justice by presiding over committees. I add to that list Lord Stewart and Lord Dunpark whose committees made recommendations which were acted on in the 1970s and 1980s. I also agree entirely with my noble and learned friend about the importance in this Bill of extending the powers to make supervised release orders.
But I want to contrast the whole background to the Bill with that of the Criminal Justice (Scotland) Bill, 1995. At the Second Reading of the 1995 Bill in this House the then Minister described it as
"the result of the most substantial overhaul of the criminal justice system in Scotland in the last 15 years."—[Official Report, 29/11/94; col. 545.]
When that Bill was enacted on the 19th July 1995—fewer than 19 months ago—it contained 118 sections, seven schedules and it filled 179 pages of the statute book. In asking the House to give it a Second Reading, the Minister, the noble and learned Lord, Lord Fraser of Carmyllie, said,
"We have been careful to take account of the views of all those with an interest in the criminal justice system in Scotland. The proposals in this Bill are the product of wide and detailed consultation: seven consultation papers, five research studies, a White Paper and a report from the Scottish Law Commission. I cannot recollect in past years any proposal for legislation in Scotland which has been subjected to that intense degree of consultation other than the Children (Scotland) Bill published last week".
He continued,
"The responses to the consultation suggest to me that we have found the right approach to reform. The great majority of our proposals were supported. And where our original proposals met with reasoned opposition they were reconsidered, and discarded or adjusted".—[col. 546.]
Please observe and note the Government's pride at that time in the width, depth and success of the consultation which gave rise to that massive Bill, that so-called "substantial overhaul". These words of self-congratulation echo similar statements with which in October 1992 the then Secretary of State for Scotland, Mr Ian Lang, at Second Reading in another place introduced the Prisoners and Criminal Proceedings (Scotland) Bill.
That became an Act of Parliament as recently as 1993 and came into force on 1st October of that year. It had 48 sections, seven schedules and occupied 53 pages of the statute book. That Act is to be repealed almost in its entirety by the present Bill. It is to be swept away before it has had any real or measurable effect. Yet, when it was introduced, Ministers rightly claimed that it had resulted from very wide study and consultation. Its gestation period was over five years. At the end of a lengthy period of consultation, the Government decided to introduce into Scotland a complete and fundamental reform of the system for the release of convicted prisoners. The Government's new system for Scotland was to be modelled on that introduced for England and
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Wales by the 1991 Act, to which my noble friend has referred. That was based upon a report of the Parole Review Committee chaired by the noble Lord, Lord Carlisle of Bucklow.
The second source of ideas for the 1993 Act was the report of the very distinguished Scottish committee chaired by Lord Kincraig. At Second Reading of that Bill the Secretary of State, Mr Ian Lang, described the report of Lord Kincraig as,
"generally very well received and our proposals reflect the wide acceptability of most of its recommendations".—[Official Report. Commons, 19/10/92; col. 238.]
The junior Minister, Lord James Douglas-Hamilton, concluded his speech on that Bill with these words:
"…the Bill has a strong reforming purpose. It will be in the best interests of Scotland's prisons, prisoners, prison officers and the public at large, and I strongly commend it to the House".—
Yet now both he and the present Secretary of State, with the help of the noble and learned Lord, the Lord Advocate, propose the total abolition of the parole system which was introduced just three years ago.
The noble Lord, Lord Macaulay of Bragar, asked for an explanation of the new thinking. We got it from Lord James Douglas Hamilton on 30th September 1996 at a public meeting, which my noble and learned friend Lord Hope of Craighead and I attended. What he told the astonished audience about the proposals in the White Paper which are now contained in the Bill was the following:
"I have already told you what a danger I believe cynicism can pose to the reputation of our legal system. How do we explain to a victim that a convicted criminal is walking out of gaol after serving only half or two-thirds of his sentence? It does not surprise me that the public are sometimes cynical about this practice".
I listened to those words with some astonishment. I was so astonished that I asked for a copy of the speech. I have read from it. I was moved to respond that the explanation for this practice could and should be sought from the Minister himself because it was he who had successfully invited Parliament to enact Section 1 of what became the 1993 Act which provided that convicted criminals should walk out of jail after serving only half or two-thirds of their sentences. To paraphrase another remark of the Minister on 30th September, it does not surprise me that the public are sometimes cynical about Scottish Office Ministers.
The then Secretary of State for Scotland also said in his Second Reading speech in another place on 19th October 1992:
"There are those who argue that the sentence of the court should mean precisely what it says—a fixed number of years in custody. The Government believe, however, like the Kincraig Committee, that a better approach is to allow, within the compass of the total sentence, for a period in custody, and a period in the community, during which the offender will be encouraged to resettle".—[col. 238.]
That was the philosophy of the 1993 Act which is to be abolished. We must make no mistake but that the Bill that is to receive its Second Reading today is a complete and utter reversal of the philosophy, thinking, methods and systems introduced and framed by the Government and enacted in 1993. It would be thoroughly dishonest to pretend otherwise.

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The most striking contrast between the genesis of this Bill and the others that I have mentioned is that the present Bill was produced without consultation, research or study. The ideas that it enshrines appear to have originated in the personal instincts of the present Secretary of State for Scotland. He announced the important proposals—I have a note of them—contained in the Bill and at the same time denounced the 1993 system all within a few months of taking office as Secretary of State.
I have spoken to many in the responsible services—the judiciary, the Parole Board, SACRO, the Howard League and even the police—and have been unable to discover anyone who was consulted by the Secretary of State before he first announced each new set of what were described as "proposals" or "decisions". Those who should have been consulted read of the Government's proposals or ultimate decisions in the Sun or Scottish Daily Mail, or read of their announcement to appreciative audiences at party political conferences or conferences of middle-ranking police officers. At one of these he claimed in a televised address, which was repeated on BBC Scotland last week, without reference to any evidence whatever, that the public were scandalised by judicial leniency.
The so-called consultation process following the White Paper which the noble and learned Lord, the Lord Advocate, has mentioned, was a complete sham. Responses were required to be in within a few weeks. The almost unanimous and highly critical comments of judges and various interested bodies and others with great experience have been brushed aside. I believe that it is an outrage to treat the judicial, criminal and penal systems of Scotland in this arbitrary, ill-informed and populist fashion.
If Scotland is truly afflicted by judicial leniency, how is it that Scotland has the highest per capita prison population in western Europe, with the sole exception of Northern Ireland? Further, the prison population of Scotland is proportionately much higher than that of England and Wales. Yet, in a bizarre twist, when one looks at the Crime (Sentences) Bill applicable to England and Wales one sees in Clause 22 a provision that is designed to ensure that after that Bill is enacted, no convicted person will serve any longer time in prison than he would have served if the provision had not been enacted. In other words, English judges are to be compelled, by statute, to reduce the sentences they pass so as to compensate for the reduction of remission contained in the Crime (Sentences) legislation. So much for the headline-catching promise that those who do the crime must do the time: Clause 22 of the English Bill reveals that that is an empty catchphrase and misleading rhetoric.
So the English judges are to be compelled to take specified steps to prevent the English prison population from rising as a result of the virtual abolition of parole. Yet for Scotland there is to be no equivalent of that clause. So the prison population of Scotland is bound to start rising as soon as this Bill takes effect. The result is
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bound to be that Scotland's prison population will come to exceed that of England and Wales to an even greater extent, proportionately, than it does now.
Not only do we have the largest per capita prison population (Northern Ireland excepted), but in answer to my Parliamentary Question, the Government admit that Scottish prisons are already seriously overcrowded. I need not add to the statistics that the noble Lord, Lord Macaulay, mentioned. Given those facts, I expressly invite the Minister when he comes to reply to confirm or deny the view that the judiciary in Scotland is to be criticised for leniency and that its leniency is scandalising—the word used by the Secretary of State. Does he say that judicial leniency causes public scandal in Scotland? If so, upon what is that assertion based?
The average cost of keeping a prisoner in a Scottish gaol for one year, according to the Government's answer to my Parliamentary Question, exceeds, £26,000. That is the same amount of money as it costs to put a full-time policeman on the beat. The proposal in the Bill will, according to the explanatory memorandum, increase the annual prison population by some 2,200 places—a 40 per cent. increase in the prison population. It will cost, as the noble Lord, Lord Mackie of Benshie, remarked, according to the explanatory memorandum, an extra £65 million to £100 million per year at current prices.
For that expenditure we could provide an extra 2,500 policemen or even build one new royal yacht every year, and still have £5 million to £40 million left over. That would make much more sense in terms of reducing unemployment and the causes of crime, particularly if those royal yachts were to be built on the banks of the Clyde. If they were not needed for the designed purpose, they could be used as prison ships to house the rising prison population as is proposed for England. More seriously, it would make infinitely more sense to put 2,000 more policemen on the streets to prevent crime and to detect it than to warehouse another 2,000 men or women in our already seriously overcrowded gaols.
The noble and learned Lord the Lord Advocate said that the Bill must be seen as an overall package. I shall accept that invitation. I therefore turn to a vitally important consequence of the Bill which appears to have escaped public attention and the so-called detailed scrutiny in another place. I have read that scrutiny, and it is not a description with which I entirely agree.
Clause 1 of the present Bill compels the High Court of Justiciary to impose a sentence of life imprisonment on an offender if he commits one of the specified offences and is convicted in the High Court. The list of offences is contained in what is described as Schedule 5A of the 1995 Act. Many of those offences, and the vast majority in terms of actual numbers brought to court, can be prosecuted either in the High Court or in the sheriff court. It follows that if a person is prosecuted and convicted in the High Court for his second such offence, he will have to be sent to prison for life. If, however, he is prosecuted in the sheriff court, which is an option, he does not have to be sent to prison for life. Who then is it who determines in which court he will be prosecuted? The answer is the Lord Advocate and

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his staff, including Crown counsel, assisted by the procurators fiscal. They and they alone decide in which court to indict an accused, except in the case of rape.
Before I spell out the extreme importance of this matter, perhaps I may draw attention to Clause 12 which is the clause, as your Lordships have been told, that gives a sheriff in respect of any case brought on indictment in the sheriff's court the power to send a person convicted to prison for up to five years. At the present time the maximum sentence is three years. To complete the analysis it is necessary now to look at Part III of the Bill which deals with release. The effect of the provisions in Chapter I of this part of the Bill is to abolish the current system of parole under which a person is released after half his sentence if his sentence was less than four years, and after two thirds of his sentence if it exceeded four years.
Accordingly, what is the effective power of a sheriff at the present time? The effective power is to put a person in prison for 18 months. Under the new Bill, taken along with the abolition of the 1993 parole system, his power is to sentence a person to remain in prison for 50 months. In other words, his effective power is increased by—not to—178 per cent. The effective power of a sheriff to put a person in prison is increased by more than two and a half times. I cannot find in the explanatory memorandum any prediction as to the effect of the distribution of cases between the High Court and the sheriff court, but it seems extremely likely that many cases which are now routinely indicted with the High Court, including cases which contain charges listed in the new Schedule 5A, will be indicted in the sheriff court.
The choice as to in which court to indict a case is made in secret by the Lord Advocate and his staff. There is no possibility of reviewing that choice. The decisions of the Lord Advocate in relation to this matter—namely, in which court a case is to be indicted—are not open to review by any court, by Parliament or otherwise. The decisions are taken in secret and the reasoning is not disclosed afterwards. The Lord Advocate is not accountable to anyone for them; not to the courts and not to Parliament. If one asks the Lord Advocate questions about these decisions he simply declines to answer on the ground that his reasoning in decisions is not open to scrutiny.
Accordingly, the total effect of these various provisions when read together as a package is that an enormous power is conferred upon the Lord Advocate and his staff to be exercised in secret and without any possibility whatever of scrutiny by the courts or anyone else. That means that when the Lord Advocate or the Crown counsel decide to indict a person for an assault of the kind listed in new Schedule 5A, or robbery with a firearm, or any of the other offences, it will be he and he alone who decides whether the accused is to be sent for trial in the High Court and thus to face the possibility of a sentence of life imprisonment.
He can decide to send him to the sheriff court. Let us think for a moment what that means. The prosecutor is given an extremely powerful tool with which to plea bargain on American lines. He can frighten the defence
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with indictment in the High Court unless the accused offers to plead guilty in the sheriff court. At the present time, sentencing is done by judges in open court and their sentences can be reviewed in the High Court of Justiciary sitting as a criminal appeal court. But everything that the judges do in relation to sentencing is done openly and reasons are publicly given.
The combined effect of the various provisions to which I have referred will be to turn a public, accountable and reviewable system into a secret, unappealable and inscrutable one. The transfer of such power from the public courts acting in public and accountable to prosecutors who act in private and are not accountable will be enormous. I regard the combined effect of these provisions as being utterly reprehensible. They are revolutionary in effect. Their overall effect has not been commented upon by any commentator that I have managed to discover.
The provisions have not been preceded by a study and there is no consultation paper in which anyone has been asked to comment upon this feature of the combination of several provisions in the Bill. The consequences are to Americanise the criminal justice system by transferring enormous power from the courts to the prosecution. It is a sad day for Scotland that our criminal justice system should be treated in this fashion. It is deeply regrettable that opposition political parties have failed to notice that point or have preferred to pass over it.
Perhaps I may turn to a separate point. For the first time in our history, except in relation to murder, the discretion of High Court judges in relation to sentencing for common law crimes is to be removed. I wonder whether the noble and learned Lord is aware of an interesting piece of information which I can now disclose to the House. The High Court in Glasgow is currently being extended and magnificent new courts are being constructed adjacent to the old building in the old mortuary. The vast public entrance is to be decorated in what appears to be a most beautiful fashion by displaying lovely stonework quotations from three texts. They include words from the Wisdom of Solomon, words taken from the writings of the philosopher David Hume, and words from his relative, Baron Hume, the father of Scots criminal law. The words of Baron Hume, which will appear there for all to read as they enter and leave the court, include the following:
"the determining of the proper punishment of a crime when proved… is left… to the discretion of the Judge".
If the Government have their way and Part I of the present Bill is enacted, the discretion of the judge in a most material respect will be removed for the first time in relation to our common law offences. I wonder whether the public entering the new court in July will be able to decide whether the hypocrisy lay in choosing those words to decorate the new court or in enacting legislation to make a mockery of this fundamental principle of Scottish sentencing practice and policy.
I have drawn attention to the shift of power from the courts to the prosecutors. Perhaps I may point to a further blow to the criminal justice system. It is struck by Part V of the Bill. The new provisions about legal aid are predicated upon an unproven assertion and

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assumption that lawyers who provide legal aid services within the criminal justice system are somehow responsible for the increase in the cost of legal aid. I do not believe that that is so.
There are three main causes for that very regrettable rise. First, there is the steady increase in the crime rate. If you have more crime, you have more cases, and if you have more cases you spend more money on criminal legal aid. Secondly, there has been the enactment by Parliament since 1979 of 11 Acts of Parliament governing the criminal law and procedures in Scotland, resulting in huge increases in the amount of work required to prepare and present a case. Thirdly, I refer to the growing inefficiency of the operation of the Scottish criminal justice system which results in more adjournments, postponements and transfers of cases. Even the most trivial of cases can be called in court half a dozen times.
Perhaps I may quote to your Lordships the words of the leading authority on Scots criminal law and practice. He is not on the High Court, but he is probably the leading authority in the country as a whole. I refer to Sheriff Gordon who wrote in February of this year in an account of the five judge case of Gardner v Lees:
"Can I just repeat here my view that the present inefficient and uneconomic muddle, if not indeed shambles, which passes for summary procedure in many courts today … would not survive the most cursory cost-benefit analysis".
That gentleman has served on many of the most important committees, including the Sutherland Committee. He has been a sheriff for many years. He was a procurator fiscal. He has enormous experience and has written the main texts on Scottish criminal law. Just at the same time as the power of the prosecutor is to be increased, so the police are to be given new powers and the restrictions and bureaucratic obstacles of Part V are to be imposed on legal aid practitioners.
I should like to make many more points, but I have already used up my time. I have no doubt that this is the most revolutionary criminal justice Bill in Scotland since at least 1887. It grossly interferes with judicial discretion in relation to common law offences other than murder, for the first time. It effects a huge transfer of power from the courts to the prosecutors. It threatens the system whereby people can defend themselves against criminal charges—and yet, despite its importance, it has been preceded by no Royal Commission, no research, no pilot study and no realistic consultation. It is brought to this House within a few weeks of the calling of a general election. The Americanisation of our system in the run-up to that election is to take a great leap into the abyss, given the notorious failure of the American populist-inspired reforms.
The noble and learned Lord, Lord Hope of Craighead, said that he did not want to choose confrontation. I do not choose confrontation, but I find that with a Bill of this kind it is thrust upon me. The enactment of the main provision in this Bill would in my judgment inflict serious damage on our widely respected system of criminal justice without having any beneficial effect on
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our crime rates. I agree with the noble and learned Lord, Lord Hope, on that. I hope that your Lordships will not give it an easy passage through this noble House.
9.23 p.m.
Lord Thomas of Gresford: My Lords, I declare not so much an interest as a commitment to Scotland. It could hardly be otherwise with a Scots wife and with a home on the rolling Highlands once occupied by the ancestors of my noble friend Lord Mar and Kellie. I have also had the benefit in my career of sitting in Glasgow and Edinburgh and learning at the feet of the noble and learned Lord the Lord Advocate, over a cup of tea, his knowledge of the criminal law. Therefore, I have no scruples in addressing your Lordships on this important matter.
Yesterday on the Welsh circuit I happened to be in a court presided over by a very distinguished and experienced judge, Sir Robin David, who was dealing with a number of drugs cases at first instance, on application. As I waited for my application to be heard, I listened to two contrasting drugs cases, both concerning Class A drugs. One was a plea of guilty by a defendant to the provision of a number of Ecstasy tablets to friends, for which he was sentenced to 120 hours of community service. The other case concerned a man who had been caught with 7.5 kilogrammes of heroin in the boot of his car on the local motorway, with a value well in excess of £1 million. There was simply no comparison between the two offences. So when the noble and learned Lord the Lord Advocate said that the gravity of the case of the repeat drug offender cannot be exaggerated, I believe those words must have been written for him. I say that because I am sure from his own experience that the noble and learned Lord must know about the great disparities that exist between convictions of that type. That is only by way of an illustration of some of the problems which will arise if the Bill is enacted.
The war against crime is a serious and continuing battle, which this Government have been losing over the past 18 years. Between 1979 and 1995 the number of non-sexual crimes of violence in Scotland has increased from 10,025 to 21,119. That is more than a 100 per cent. increase. To fight that war there are, of course, limited resources and the issue for a responsible government is how those resources may best be spent. It might be thought that the emphasis should be on the prevention of crime; that is to say, to stop the crime which causes the distress and anguish to the victims about whom we are so much concerned.
Money should be spent on having more policemen on the beat, on modern equipment and on crime prevention schemes. According to the Scottish police, 24 per cent. more is spent in England and Wales per officer in capital expenditure and 16.5 per cent. more per officer in revenue expenditure than in Scotland. Why is that so? Why are resources being diverted away from the prevention of crime into the matters that are contained in the Bill? Resources should be spent on tackling the causes. Those causes are no doubt deep—for example, unemployment, poverty, poor housing, lack of parental control and other influences, including the

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acquisitiveness and selfishness of the world in which we live. Our children are harried by drugs and alcohol and sexual imagery, and so on, and no doubt their values are distorted by such influences.
However, if it is too much to expect that a responsible government will tackle in a serious way the social problems which create the climate in which crime breeds, they should, at the very least, when they have them available, use resources to tackle the problems of the offender. I was very much struck by the expression used by the noble and learned Lord, Lord Hope, when he talked about the "demonising" of the criminal—that is, taking away from him the attributes of a human being and of a member of our society and treating him as a statistic, a statistic who can easily be locked up in the nearest prison or prison ship and forgotten about, thrown away and disregarded. What really should be done is to rehabilitate that person and bring him back into our society as a full and responsible member of it.
I share the disquiet so passionately and eloquently expressed by the noble and learned Lord, Lord McCluskey, about the reasons behind the Bill—wrecking, as he put it, the philosophy behind previous legislation, on which there had been so much consultation. On Second Reading in another place on 5th November the Secretary of State said:
"If the hon. Gentleman"—
that is, the Shadow Secretary of State for Scotland, Mr. Robertson—
"votes against the Bill tonight, we will harry him all the way to the election and beyond, and tell the people of Scotland that he was not prepared to give them the protection to which they are entitled from sexual and violent offenders who repeatedly carry out villainous crimes in Scotland".—[Official Report, Commons, 5/11/96; col. 1048.]
That is rhetorical rubbish and it is the basis of the policy which has been expressed through the Bill.
The noble and learned Lord, Lord Hope, talked about this Bill being formulated as part of a political campaign. The noble Lord, Lord Macaulay, referred to its flag-waving flavour. It is a reversal of priorities when this Government, under the influence of electoral necessity, cast around for someone to blame for their failure to tackle the problems of crime in this country. The judges, apparently, are so failing in their responsibilities that they have to be told what to do. Their discretion in sentencing matters has to be taken away from them.
I say to the Government that it is dangerous to attack the trust that people have in the judiciary and in the criminal justice system of this country. It is a pillar of the constitution of this country that judges act impartially and in a judicial fashion. The White Paper Protecting the Public, the Government's Strategy on Crime in England and Wales in April of last year critically observed that in 1994 of the 3,121 people who were convicted of offences which under the English provisions would merit a life sentence 65 per cent. received a custodial sentence and 35 per cent. a non-custodial sentence. Under the provisions of the English legislation they would all have received a mandatory life sentence.
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Is it seriously to be suggested that in every one of those 1,000 or so cases the sentencing judge was so wildly wrong that he failed in the duty that he had been trained to perform? Life sentences, said the noble and learned Lord the Lord Advocate in introducing this Bill, were the only appropriate sentences in those cases. But by whose standards of justice and fairness are they the only appropriate sentences? Are they the standards of Mr. Michael Howard or, in Scotland, of Mr. Michael Forsyth? What training do they have? What balancing of court cases, between various defendants and the various completely different circumstances that arise in criminal cases have they undertaken which permits them to say that the collective view of the judiciary who have spent their lives and their careers in close contact with the courts is wrong? Have Mr. Forsyth's personal instincts—to borrow the phrase of the noble and learned Lord, Lord McCluskey—been substituted for the collective wisdom of the judges and the professionals, not just the legal profession but all those who are engaged in our criminal justice system?
There is a demand for honesty in sentencing yet Clause 1 of this Bill enshrines dishonesty and gives it statutory form. A person is to be sentenced to life imprisonment. Everyone knows that that is not what will happen, nor what is intended. What is intended is an indeterminate sentence which will leave it to some future arm of government—the Parole Board or someone else—to decide whether a person is safe to be let loose in the community.
There is some confusion of thought here. Is this mandatory life imprisonment to be imposed because a person actually is a danger to the community in the first place? No, that does not have to be established at all. A person is to be automatically assumed to be a danger to the public if he or she has committed these two offences we have discussed. Many instances have been given by your Lordships of the injustices that will arise if a person is convicted at an early age of some offence that qualifies, and then many years later is convicted again.
The noble and learned Lord the Lord Advocate says that there is a serious risk in every case where a person has committed the two offences named in the Bill. I, too, share the concerns of the noble and learned Lord, Lord Hope of Craighead, about the phrase "exceptional circumstances". I was interested in his analysis. He asked whether the name of the offence was sufficient in the previous qualifying offence. Does one look into the circumstances of that previous offence; or does one accept it at face value? If one does not look into the circumstances, and does not consider exceptional circumstances in the light of a previous qualifying offence, what about the age at which the previous offence was committed? What about the results of the previous offence? I prosecuted a lady who had killed her husband with a hammer. She received an absolute discharge on a manslaughter conviction because the circumstances were so overwhelmingly in her favour and everyone understood why she had done what she did.

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If there is injustice in the criminal justice system, what shall we have? As has been said, we shall have plea bargaining, choice of court, choice of offence, and reduction of the charge brought. We shall have defendants fighting cases to which they would otherwise plead guilty. As the Women Against Rape organisation emphasised, in rape cases victims are in danger of being killed if they are the only witnesses to the offence.
Those are positive disadvantages. But, above all, the disadvantage that arises out of injustice is the loss of confidence in the system by the public. If people perceive a lack of fairness, and a lack of justice, and they lose confidence in our system, what do we have? We shall have juries who will not convict, witnesses who will not co-operate, and families who will not name their relatives as people who have committed crimes; and the whole system will be dragged down. When the noble and learned Lord, Lord McCluskey, said that this is a revolutionary Bill, he was right. This is a Bill for injustice and not for justice.
There is perhaps a case for an additional tool in the hands of the judiciary. There may be situations where an indeterminate sentence may be passed upon someone even though that person does not qualify for a life sentence in the ordinary way. If there is such a case for an indeterminate sentence, why do we not call it a public safety sentence rather than a life sentence? Let us not pretend it is something that it is not. If it is to be called a public safety sentence, and an indeterminate sentence is to be passed, let it be done in a clear statutory framework when the judge minded to pass such a sentence receives all the information he requires—the full detail of previous offences, commentaries from the probation service, medical reports, and so on.
As the noble and learned Lord, Lord Clyde, said, there is a role for the prosecution to play if a public safety indeterminate sentence is to be passed. But let us get rid of this fiction of a life sentence enshrined in the Bill. We have suffered long enough in murder cases, with all the qualifications required, the definitions involved, and the difficulties which juries have to face simply because there are mandatory life sentences. Let us get away from this concept. It is not consistent with modern judicial systems of this world.
I could refer to many other matters in the Bill. The hybrid sentence involved in the hospital direction will destroy the patient-doctor relationship. If you get better you go to prison. Who says that you are better?—your doctor. How can a patient in a psychiatric hospital have confidence in and follow the treatment prescribed for him by a psychiatrist who he knows is effectively his jailer who can determine whether or not he goes to prison? Earned early release will be dependent on the reports of prison officers on the landing. Either that becomes automatic, or it becomes potentially the greatest flashpoint imaginable within the prison system. Blackmail and favouritism would be involved in attempting to operate a system such as this.
As a Welshman, I have to say that my overwhelming feeling in listening to this debate is: why is it being held here? Why is it not being held in a devolved parliament
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in Scotland where these issues can be properly thrashed out, where there would be full Benches and a press and media completely interested in what was happening? I am glad to hear that the noble and learned Lord the Lord Advocate agrees with me in that particular sentiment. If I misunderstood him, no doubt he will tell me later.
Could this Government get away with these proposals if the Scottish people were alive to what is intended and if this debate were taking place in Scotland? I venture to suggest that if people there were to think that English hereditary Peers were going to thrust this legislation through, and if they were to realise what it meant for Scotland, they would reject it. And they will reject it.
9.41 p.m.
Lord Sewel: My Lords, this has been an important debate. In our terms it has been relatively short, but nevertheless of high quality. Although there may have been a nil-nil draw in Monaco this evening, here the Government have been right royally routed. We heard a series of speeches devastating in their effect. I mention merely those of the noble and learned Lords, Lord Hope of Craighead and Lord McCluskey, and, as we just heard, that of the noble Lord, Lord Thomas of Gresford. All in their different ways made a decisive contribution and critique of the Bill before the House. I also draw attention to the contribution of the noble Earl, Lord Mar and Kellie. We should give it special prominence, given the noble Earl's detailed experience of the workings of the Scottish prison system.
As the debate proceeded it became increasingly clear that the Bill is in many ways a bogus measure. In some ways it is deeply cynical; in others it is technically deficient and anomalous. Let us examine some of the main areas which noble Lords identified during the course of the debate.
Many noble Lords referred to the problem of automatic and minimum sentences—the restriction on judicial discretion. As was pointed out, are we somehow saying that it is all the fault of the judges? What is the evidence for that? In talking about automatic and minimum sentences, the Government raise the phrase, "exceptional circumstances". It is a phrase that most likely causes more trouble than it allays. The noble and learned Lord the Lord Advocate needs to give some sort of answer and guidance on the issue of whether, for example, the circumstances of a previous offence should properly be taken into account. How will they be taken into account when the offence happened about 20 or 30 years ago?
Is another factor the period of time between offences where one offence was committed in a rush of blood to the head in adolescence and another due to temptation in—a stage dear to some of us—the mid-life crisis? Are those factors to be taken into account in deciding whether there is an exceptional circumstance? Again, there is the age of the individual when the offence was committed. Above all, would an exceptional circumstance arise where the imposition of an automatic or minimum sentence would, in the view of the judge, because of the lack of proportionality, be against the

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interests of justice itself? Is that an exceptional circumstance? It seems to me that it is a critical and fundamental factor which should be taken into account.
My noble friend Lord Macaulay, the noble and learned Lords, Lord Hope and Lord McCluskey, the noble Lord, Lord Mackie of Benshie and the noble Earl, Lord Mar and Kellie, as well as others, have drawn attention to the provision for early release. The comparison was made with the 1993 Act. But a much more worrying and wider comparison was made dealing with the whole provenance of the Bill and how, in the way it has evolved, it breaks the quite proper tradition of consultation, research and deliberation that in the past has underpinned the reform of the criminal justice system in Scotland.
As the noble and learned Lord, Lord McCluskey, said, the Bill is the product of no study, no research and of very little consultation. Where there has been consultation, the decision of the Secretary of State and the Government has often been in the opposite direction from the weight of the evidence they have received.
Let us go back to the 1993 Act following the Kincraig Committee proceedings. We come to the simple but basic point: what is the evidence? We are talking about a Criminal Justice Bill, so it is right to ask about evidence. What is the empirical evidence that the provisions of the 1993 Act have not worked? We deserve to be told. The case has not been made in another place nor, so far, here tonight.
The noble Lord, Lord Thomas of Gresford, and the noble Earl, Lord Mar and Kellie, focused attention on how the proposals for early release, coupled with the increase in the prison population, would affect the management of the Prison Service. In a way that is where the deep cynicism about the Bill lies. Basically the Government seem—I put it no stronger than that in this case—to have little concern about how the measures will impact on the Prison Service and the management of the prisons.
Let us take two points. As the noble Lord, Lord Thomas, indicated, the business of earned early release will be the subject of a recommendation, a decision, a judgment, made on the landing, to all intents and purposes. That is fundamentally wrong because, for a start, it puts the individual prison officer in a position of great vulnerability. If there is an extremely desperate and dangerous criminal with unpleasant friends on the outside, think of the vulnerability of the prison officer in that situation.
That is on the one hand. On the other, the system is set up basically in a way which cannot avoid the charge of favouritism or vindictiveness. That is wrong. We are setting up a system which is almost guaranteed to result in an explosion within the prisons. The Government seem to have little or no concern.
Also, of course, there is the movement from parole, by which 50 per cent. of the sentence was served in the community—let us make that clear—to earned remission, by which it is one-sixth. I ask noble Lords to consider what effect that will have on the management of prisons. With basically so little to gain, will some difficult and dangerous prisoners give indications of
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good behaviour? Will not the reduction of earned remission as a management tool be a proper management tool that the Prison Service no longer has available to it? In order to overcome that difficulty, there is an overwhelming case for some kind of independent review body to be involved in the determination of early release. We have one, in many ways. It is called the Parole Board. That is being swept aside.
Let us look at tagging. The Bill we are considering tonight differs from the Bill that was first published in another place. The Bill before us tonight would allow the tagging of young people under the age of 16. When that possibility was raised in another place, the Minister made a great point of saying that consultation was taking place and that the Government were not committed to it. They wanted to hear what people had to say. They went out to the appropriate interests and apparently received 102 responses. I ask the noble and learned Lord the Lord Advocate how many were in favour of extending tagging to the under-16s? Perhaps he would answer that. I shall just give to other noble Lords—he will know them—a flavour of some of those responses. These are from radical, dangerous, Left-wing, liberal interest groups. There is the Association of Scottish Police Superintendents. It said:
"The overwhelming view was very much against the concept … for younger children. Tagging would hugely divert attention from the positive purposes of supervision. Far from being the solution to the problem, supervision becomes the problem itself".
There is that other well known, dangerous, liberal, seditious, subversive body, the Scottish Police Federation.
Lord Mackay of Drumadoon: My Lords, I do not wish to interrupt the noble Lord in full flow but I detect that he is reading from the Official Report of another place, which I recall the noble Lord, Lord McIntosh, reminding the House the other night was not appropriate.
Lord Sewel: My Lords, I thank the noble and learned Lord the Lord Advocate for his offer of help and guidance. I shall continue. The Scottish Police Federation said:
"At this time, we do not believe that electronic tagging would be appropriate to supervision requirements for young people under 16. We do not believe that electronic tagging would be a positive incentive to a child to demonstrate greater responsibility and self-control".
So it goes on. We wait to hear from the noble and learned Lord as to who was in fact in favour of tagging for the under-16s.
Another loss as a result of the Bill—it was referred to by many noble Lords who contributed to the debate—is that of supervision. The opportunity for supervision has been weakened. I believe that the point was made by the noble and learned Lord, Lord McCluskey. In some cases supervision will only be possible if the court decides it at the time of sentencing. That is surely a weakness because the judgment should really be made, and can really better be made, when the individual has reached the end of the custodial period and it can

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actually be shown that actually shows that supervision is supposed to be a supportive, reformist and beneficial measure in itself.
There are many things in the Bill which require further deliberation. In particular the whole business of the hospital orders has been referred to. I will not go into them tonight but it is an issue that is likely to cause great concern and worry to a number of noble Lords. However, the Bill we have tonight is, in some ways, slightly better than the Bill that was originally published in another place. There is much to do and, as we proceed in Committee, we will try to improve upon it further.
9.55 p.m.
Lord Mackay of Drumadoon: My Lords, this has been a useful debate and has demonstrated the value of having a revising Chamber. I can therefore pick up the point of the noble Lord, Lord Thomas of Gresford, about imagining this debate taking place in Scotland. The fact of the matter is that it would never take place in Scotland if the proposals of the noble Lord's party and of the party opposite were to be implemented, because the only Chamber that would look at a Bill of this nature would be the elected Chamber.
Lord Thomas of Gresford: My Lords, does not the noble and learned Lord agree that a devolved Parliament would have the time and the concern to deal in detail with all the provisions of this Bill?
Lord Mackay of Drumadoon: My Lords, I have no doubt that a devolved Parliament would have that time, but if the noble Lord had read the reports of the Committee stage of this Bill in another place, I defy him to suggest that the other place did not have sufficient time to sit and deliberate over this Bill line by line, clause by clause. As I will remark in a moment or two, it is abundantly obvious from the noble Lord's speech and indeed those made by noble Lords opposite that the two main Opposition parties are seeking now to take a different position from that taken by their colleagues representing the respective parties in another place.
To return to the point that the noble Lord raised, debate would not be possible in Scotland if his party's policies were put into operation. It would also not be possible in Scotland to allow members of the senior judiciary, either sitting in Scotland or who have formerly sat in Scotland, to participate in such a debate. So it may well be that on further reflection the noble Lord will feel that his reference to what may or may not happen in the future in Scotland was not a particularly happy one.
I welcome the support which many clauses of the Bill have received from various quarters of the House. Many detailed comments have been made in the speeches which have been carefully prepared. I will endeavour to answer some of them this evening, but it would clearly be impractical to answer them all. However, I undertake that where appropriate they will be answered by letter and certainly they will all be considered before this Bill reaches its next stages.
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The noble and learned Lord, Lord Hope of Craighead, drew attention to the fact that during the years that he was Lord Justice General in Scotland, it was the practice for the Government, the senior judiciary, those who work in the courts and those interested or involved in any way with the criminal justice system, to work together. He asserted, and I agree with him, that that was one fact which contributed to the high regard in which sheriffs and judges are generally held in Scotland. I reject completely the suggestion that that co-operation has broken down. Undoubtedly the publication of certain responses by senior judges to the White Paper published by the Secretary of State provoked a measure of media attention, media attention which in many respects I personally regret. For the fact of the matter is that that co-operation not only continues but has been developed since the present Secretary of State assumed office. As noble Lords will be aware, he has set up the Scottish Criminal Justice Forum, in which a senator of the College of Justice sits as a member as do two sheriffs and many others involved in the criminal justice system. That body has already met. It has begun to address one of the issues which the noble and learned Lord, Lord McCluskey, addressed—the problem of adjournment—and it is a practical example of how consultation and co-operation continue even if there may be differences of opinion as to what falls to be enacted in primary legislation in Parliament.
The noble and learned Lord, Lord Hope, said that he had no objection in constitutional terms to Parliament restricting the discretion of judges but that the counterpart of that was that it fell upon the Government to show leadership and to consult and listen to advice. If noble Lords consider the detail of what has been said during the debate it may be possible to take the view that following advice applies only if it comes from those who are actively involved in the criminal justice system but does not apply if it involves listening to members of the public and the victims of crime. I suggest that if one sits back and thinks about it that may explain why there was so much co-operation in another place on the part of the elected representatives of the various parties to give the Bill the fair wind that it undoubtedly received.
While I welcome the participation in our deliberations of noble Lords who are senior members of the judiciary, I regret to say that I personally could not conceal my regret that the noble and learned Lord, Lord McCluskey, sought to attack the Bill in the terms that he did. He has served uniquely among those who have spoken in the debate not only as a member of the senior judiciary in Scotland for many years but as a former Advocate Depute and a former Law Officer in Scotland. He is uniquely qualified to contribute to our discussions. I sincerely hope that when the Bill reaches consideration in Committee it may prove possible for him to moderate both the terms and the tone of any criticisms he seeks to advance.
Lord McCluskey: My Lords, if the noble and learned Lord would refrain from making personal remarks and reply to any of the points that I made, I should appreciate it very much.
Lord Mackay of Drumadoon: My Lords, I am happy to do that. Perhaps I may now accelerate a point

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which I intended to make later. When discussing the terms of Clause 1 the noble and learned Lord drew attention to what he alleged was a transfer of discretion to the Lord Advocate and sought—I hope he will forgive this term—to ridicule the Government's proposals by quoting from what Baron Hume said and what I understood to be engraved in the new Glasgow High Court building. Perhaps I may quote Baron Hume back to the noble and learned Lord in describing the Lord Advocate's role under reference to the sentencing process:
"The Lord Advocate is master of his instance … even after he has brought his libel into court, it is a matter at his discretion, to what extent or effect he will insist against the pannel—
the old Scottish term for the accused person—
"and he may freely, at any period of the process … restrict his libel to an arbitrary punishment, in the clearest case even of a capital crime".
He goes on to give an example.
"There was an instance…in the case of John Lyle who, in consequence, had sentence of transportation only though convicted of highway robbery—[a capital offence]. This restriction was made in consideration of…circumstances known to the public prosecutor".
In the same passage, Baron Hume referred to the,
"great confidence reposed in the Lord Advocate".
If the noble and learned Lord's concern is that the Lord Advocate of the day, through the exercise of his discretion as to the court in which proceedings will be taken involving qualifying offences has more say over whether a convicted person receives a life sentence from the sentencing judge, it may be sensible to pay attention to what Baron Hume had said and to his description of the extent to which the Lord Advocate has a power in the past and at present to limit the sentence which a judge can impose.
The law may have changed since Baron Hume's day, but even now there rests within the discretion of the Lord Advocate a power to influence or to determine the extent of sentence. From time to time in every year every Lord Advocate has to take decisions as to whether to insist on a charge of murder or depart from it and accept a charge of culpable homicide thereby giving the sentencing judge a wider discretion. The noble and learned Lord has exercised that discretion himself in the past. It is nothing new. It is one of the important constitutional principles that underpins the Scottish criminal justice system.
It may help to make progress if I do not deal in any great detail with some of the other comments made by the noble and learned Lord, Lord McCluskey. I undertake to read them again, but I find it difficult to depart from the comments to which he takes exception.
Perhaps I may move on to the points raised by the noble and learned Lord, Lord McCluskey, which were clearly supported by the noble Lord, Lord Sewel. Both made it clear that this Bill cannot expect the smooth passage in this House that it received in another place. One can only watch and wait so far as concerns that matter.
Lord Macaulay of Bragar: My Lords, I apologise for interrupting the noble and learned Lord. Is he referring to me or to the noble and learned Lord, Lord
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McCluskey? The noble and learned Lord referred to the noble and learned Lord, Lord McCluskey and the noble Lord, Lord Sewel.
Lord Mackay of Drumadoon: My Lords, if I did so, it is an error on my part. It has been brought about by the lateness of the hour. I apologise.
The words of the noble Lord, Lord Macaulay, as I noted them, were that there was no guarantee that this Bill will receive the smooth passage in this House that it did in another place. The words used by the noble Lord, Lord Sewel, were put in a slightly different way, but clearly signal a significant change. We await with interest to see what amendments come from that quarter.
Lord Sewel: My Lords, is the noble and learned Lord the Lord Advocate aware that all the comments that I made in my speech are grounded in the points made in the previous debate by my colleagues in another place? The Lord Advocate is trying to be mischievous. He is trying to drive a wedge. There is no wedge: there is not even a cigarette paper between myself and my colleagues in another place.
Lord Mackay of Drumadoon: My Lords, with great respect, I find that virtually impossible to accept. I have seen the amendments tabled by the noble Lord's party in connection with the Committee stage of the Crime (Sentences) Bill. On the basis of what has been said this evening by speakers on the Benches opposite, I expect to see similar amendments to this Bill. If they were not tabled in another place, I find it impossible to understand how there has not been a change of position. As I have said, I am content to wait and see. It may be that, for the purposes of making progress, noble Lords might find it advantageous to listen to my remarks, which inevitably have to cover a number of points in a comparatively short period of time.
The noble and learned Lord, Lord Hope of Craighead, raised important issues to do with the cross-Border implications of the Bill. As he correctly said, he raised these matters in connection with the Crime (Sentences) Bill. Action has been taken to address them, and I am very sympathetic to the idea of doing something similar here. Like other noble Lords, he raised important issues about the approach required to be taken to the application of the provisions relating to exceptional circumstances.
The Government's position is that it would unnecessarily trammel the discretion of the court to provide further specification on the face of the Bill of what would or would not constitute exceptional circumstances. The noble and learned Lord made detailed points on which I will certainly reflect before Committee stage. The policy, as clearly explained in another place and as enshrined in the Bill, is that it is for the court to determine where exceptional circumstances apply which may lead to a particular judge deciding not to impose an automatic or minimum sentence in a particular case. But this matter merits further consideration, and I undertake that that shall be carried out.

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I have already adverted to the discretion of the public prosecutor. This matter was touched on by the noble and learned Lord, Lord McCluskey, and the noble Lord, Lord Macaulay of Bragar. I believe that both noble Lords suggested that prosecutors might be encouraged by the provisions of the Bill to do a variety of things. First, it was said that they might charge a less serious type of offence than would currently merit prosecution in the sheriff court when they might not otherwise do so. It was said that they might in some way threaten an accused person that if he did not tender a plea in the sheriff court he would be indicted in the High Court. It was suggested that in a variety of ways the Lord Advocate and his deputes, who include the Solicitor General for Scotland, might seek to circumvent the will of Parliament. I resist unequivocally the suggestion that the Lord Advocate would do such a thing. Of course, he has the discretion described by Baron Hume in the passage I have already quoted, but the suggestion that the Lord Advocate of the day would act improperly to circumvent the provisions of the Bill and thereby avoid any unfairness that an individual prosecutor might perceive is one that I resist. I hope that on further reflection noble Lords will accept that that is not a valid criticism of the Government's legislative proposals.
I turn briefly to deal with two points made by the noble and learned Lord, Lord Clyde. He referred to the increased sentencing powers of the sheriff court and how they might give rise to inconsistency. He drew attention to the existing power that a sheriff had to remit. While undoubtedly the power to remit exists, it is not one that is always used. While it would always be open to the Lord Advocate to challenge by an appeal a sentence imposed by a sheriff and suggest that he should have remitted the accused after conviction, I venture to suggest that it would be very difficult for the Lord Advocate to satisfy the Appeal Court that the sentence imposed required to be a High Court sentence if the case had not been indicted in the High Court in the first place. Since this matter was last considered, sentencing guidelines have come along. The Secretary of State recently announced the introduction of a more formal system of judicial training in Scotland, making resources available to the judiciary to conduct training as it deems appropriate. Those developments, plus the local knowledge which sheriffs can undoubtedly bring to bear on local cases, have persuaded the Government that there is merit in increasing their sentencing powers.
The noble and learned Lord referred also to the provisions in Clause 20. I have already dealt with that to some extent. He stressed the importance of the prosecution playing an active part in the sentencing procedure. To some extent, that is a development which is already taking place, because, as I am sure the noble and learned Lord is aware, the Appeal Court in Scotland has already held that if the prosecutor does not seek to correct any factual statement made by the defence with which it does not agree while the
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sentencing procedure is taking place in front of the trial court, then it is held bound to accept what the defence position was, irrespective of what its own information may be.
I shall move on to the implications for the prison system of the Government's proposals. A number of noble Lords have spoken about Scotland having one of the highest prison populations. Certainly, when expressed as a rate per head of population, there is substance in that comment. However, an alternative approach is to compare the prison population with the level of recorded crime. If that approach is adopted, then a different picture emerges. On the basis of the latest published information, which relates to 1995, we find that Scotland's rate of imprisonment is lower than that of many other European countries. Indeed, out of 14 other countries for which equivalent data are available, eight have higher rates than in Scotland, so it may be that there is not quite the force in that line of criticism as noble Lords might first have expected.
The noble Lord, Lord Mackie, stressed the importance of rehabilitation. That is a policy which the Government support, and support in the Bill. The structure of the early-release provisions will reward prisoners who co-operate with programmes in prison which seek to address their offending problems and any drug problems that they may have. It cannot be denied that that must have a beneficial effect on rehabilitation. Equally, supervised release orders, seeking to target those who are most in need of supervision, also go along that line.
Some question has been raised about the additional resources which may be required if the sentencing provisions have the effect of increasing the prison population. Reference was made to the fact that the English Bill has a clause which requires the English courts to take account of the new provisions when imposing sentence. That was another matter upon which the Government consulted fully in bringing forward this legislation. The then Lord Justice Clerk, Lord Ross, said in his reply to the consultation paper:
"A judge when imposing sentence selects the sentence which is appropriate for the offence and for the offender and he does not take into account when doing so that the prisoner may be released before he has served the full sentence".
He referred to certain case law in support of that view. I know that similar consultation took place with the noble and learned Lord, Lord Hope, when he was Lord Justice General.
As a matter of law, the situation is different in England and Wales. That has been the position since at least 1992 when the then Lord Chief Justice issued a practice direction on how sentencing should be approached under the Criminal Justice Act 1991. It is therefore not surprising that the Crime (Sentences) Bill proceeds on English experience. As a clear answer to one of the criticisms made by the noble and learned Lord, Lord McCluskey, the fact that there is no similar provision in the Scottish Bill proceeds from the results of consultation with the two senior judges sitting in Scotland at that time. If it leads to an increase in the prison population the Government are committed to

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making those resources available. The provisions will not be brought into force until the prison system is able to deal with the situation.
I turn to the issue of tagging of under 16 year-olds. I apologise for interrupting the noble Lord, Lord Sewel, if I did not fully understand the guidance given to the House the other night by the noble Lord, Lord McIntosh. Having listened to the rest of what the noble Lord quoted, it was obvious that he misunderstood the purpose of the consultation exercise to which he referred. I hope that he will not take exception to that remark. The consultation exercise to which he referred concerned a suggestion that tagging should become a condition of a supervision requirement, which, as he knows, is not imposed by the courts but by the Children's Hearing. As he correctly mentioned, various people in Scotland, whether Left-wing, Right-wing or in the centre, opposed that proposal. The Government listened to those responses and have no plans to introduce tagging as a condition of a supervision requirement. That is a good example of how the consultation process continues and is working.
The noble Lord may also know that in Scotland people under the age of 16 are prosecuted only on the express authority of the Lord Advocate. It is a very, very rare occurrence indeed. Normally when it occurs it is for a very serious crime and the issue of tagging is unlikely to arise. However, where there is an exceptional prosecution there may be an exceptional case where tagging would be appropriate. No doubt any sheriff or High Court judge seeking to impose the appropriate order would think long and hard about the family circumstances of the individual and any other relevant personal circumstances before imposing such an order and having it surveyed by electronic tagging.
I turn to the issue of legal aid. Despite the criticisms of the Government's proposals which have come from many quarters, there is widespread recognition that there is a concern about the increase in legal aid. Part of it may be caused by the problems of managing the criminal courts of Scotland. The Criminal Justice Forum is one practical way of dealing with such a problem. However, there may be others, and having a good hard look at the criminal legal aid scheme is one. That, too, is a matter which those participating in the Criminal Justice Forum, which includes defence solicitors and a member of the Faculty of Advocates who has previously served as an advocate depute but now acts as a defence counsel in the High Court, are perfectly willing to address.
A number of points were made about the code of practice and a number of criticisms were advanced with the support of or on behalf of the Law Society of Scotland. Noble Lords may be interested to learn that the Faculty of Advocates, the other branch of the profession in Scotland, has been fairly supportive of a number of proposals. I look forward to dealing with them in detail in Committee.
My noble friend Lord Balfour, in his usual inimitable manner, put forward some technical and interesting points about the Bill as currently framed.
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It may be a difficult Bill to follow, but attempting to do so is much helped by the consolidation of criminal procedure legislation which took place in 1995. I intend to write to my noble friend to respond to the detailed points that he made. If my answer does not provide satisfaction, we can no doubt meet, as we met in connection with previous Bills, to seek to resolve those matters.
Lord Mackie of Benshie: My Lords, before the noble and learned Lord sits down, I have listened to many noble and learned Lords speaking tonight and their refrain has been the question of why the previous legislation, which was so carefully thought out, has been discarded. I do not think that the noble and learned Lord has touched on that major question.
Lord Mackay of Drumadoon: My Lords, the previous legislation has been departed from or "discarded", if the noble Lord prefers to use that word, because it is quite clear to those who follow the public's reaction to these matters that it has contributed to a loss of confidence in the sheriffs and the judiciary. Suggestions from the Benches opposite indicate that that may be incorrect; I venture to suggest that it is correct and that it is one of the reasons why elected Members of all parties in another place did not seek to oppose the Bill.
Members of the public do not understand that if prisoners are sentenced to eight or 10 years in prison, if they keep themselves out of trouble they may have a good prospect of being released in four or five years or certainly a year or so thereafter. Members of the public do not accept that. That is one of the reasons why, when the responses of the noble and learned Lords who were consulted about our proposals in the White Paper were made public, many people criticised them, and did so publicly. That criticism was issued either by the media or by people using the media.
The Government believe that if this matter is approached sensibly, as we believe that it is now being approached, it offers the prospect of restoring confidence in the criminal justice system, whereas the present system of half-time sentencing—if that is the term that one wants to use—does not. That is the basic 'reason for the proposals. It is a reason on which I shall be happy to elaborate if amendments are tabled at a later stage to seek to challenge the structure of the current proposals.
Lord McCluskey: My Lords, will the noble and learned Lord the Lord Advocate answer one question? He talks about judges and others criticising this in public. Does he not understand that what happened was that those who submitted responses to the Green Paper or to the White Paper sent them to a named address at the Scottish Office and that that person or office at the Scottish Office made them available to anyone who chose to have copies? I obtained copies of the responses simply by telephoning or writing to that address on each occasion. It was then that the

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press, having got hold of the matter, chose to make the responses public. Surely, the Lord Advocate will agree that those are the facts.
Lord Mackay of Drumadoon: My Lords, I do not demur from that for a moment. I am not making any criticism of noble Lords for making this public. The consultation paper made it clear that any responses would be made public unless the consultee chose not to have that done, as occasionally happens when members of the judiciary respond to public consultation documents of that nature. There is no criticism of the noble Lord for making it public. What happened thereafter and whether anybody is to blame or is responsible for it is neither here nor there.
The noble and learned Lord will read the Scottish papers, as I do, and what happened thereafter was that many sections of the public criticised the Scottish judges for the leniency of their sentencing. The noble and learned Lord shakes his head, but he cannot have been reading the Scottish papers in recent months if
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he is not aware of the Scottish judges being criticised in those papers and in the media for their sentencing. I do not welcome that development, but what I say in response to the point raised by the noble Lord, Lord Mackie of Benshie, is that one way of seeking to reduce such criticism is to have a closer relationship between the time spent in custody and the time imposed by the sentencing judge or sheriff. That is one of the main reasons that has persuaded the Government to introduce proposals which will fulfil that policy.
In conclusion, I thank again those who have spoken. I do not know the time by convention for a speech in a Second Reading debate, but it is obvious that many noble Lords have put a great deal of preparation into the speeches that they have delivered. Those speeches will certainly assist the House and the Government when preparing for the Committee stage of the Bill. I commend the Bill to the House.
On Question, Bill read a second time, and committed to a Committee of the Whole House.
House adjourned at half-past ten o'clock.