Crime and Punishment (Scotland) Bill

HL Deb 11 February 1997 vol 578 cc187-236

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.

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.

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 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.

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 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 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 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.

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.

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.

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? 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 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.

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 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 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 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 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 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.

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 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 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 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 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 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 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.

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 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 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 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 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 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 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.

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.

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 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 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 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 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.

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 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 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.

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 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 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. 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 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 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.