Lords Sitting of 18 February 1997

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

Unemployment
Lord Dormand of Easington Lord Dormand of Easington asked Her Majesty's Government:
When they expect the level of unemployment to reach that of 1979.
The Minister of State, Department for Education and Employment (Lord Henley): My Lords, the Government do not forecast future levels of unemployment. We shall continue with the policies which have seen unemployment fall by over 1 million, and almost 900,000 more people in jobs, than when recovery in the labour market began.
Lord Dormand of Easington: My Lords, is the Minister aware that the admission last week by the Minister of State for Employment in another place that the last unemployment figures were substantially inaccurate comes as no surprise to these Benches, especially as the method of calculating such figures has changed so many times since 1979? Perhaps the Minister can tell us how many times. Indeed, the electorate simply do not believe the figures which are being published by the Government. The Government always refer to what they consider to be their successes by comparing the situation with 1979—the time of the last Labour Government. Why can they not do the same with unemployment? Surely to goodness 18 years is long enough to have done something about that particular question.
Lord Henley: My Lords, first, and most important, I should point out that my right honourable friend did not say that the figures were wrong or inaccurate. He made it quite clear that the unemployment figures are always very difficult to interpret. That task is not made easier by mischievous claims by the noble Lord, and others, that such figures are fiddled. My right honourable friend also made clear that the figures had been coming down steadily for 36 months. Since the introduction of the jobseeker's allowance last October, we have seen a further steady fall month by month. My right honourable friend also pointed out that two things had happened: first, we have seen many more people come off the register and go into work; and, secondly, we have seen many people come off the register because they should never have been on it in the first place. In other words, JSA is getting rid of the people who should not have been on the register at all. For that reason, I think that the noble Lord should welcome what my right honourable friend said.
Lord Clark of Kempston: My Lords, does my noble friend the Minister agree that the economic policy of
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this Government has resulted in a decrease in unemployment month after month after month? Will my noble friend also agree that that compares very favourably with the position in Germany, in France, and among our other partners in the European Union? Does my noble friend agree that the competitive position of this country would be impaired if we ever joined the social chapter or agreed to a minimum wage?
Lord Henley: My Lords, my noble friend is absolutely right to draw attention to the dangers of a minimum wage and, indeed, of the social chapter. Perhaps I may add to that the dangers of the so-called "windfall tax", which would certainly cost jobs and investment and lead to an increase in unemployment should the party opposite come into power.
Lord Bruce of Donington: My Lords, is the Minister aware that the Government had no difficulty in 1979 in interpreting the figures when they took over, which were approximately 1.25 million? Is the Minister also aware that, according to an impartial report by the Royal Statistical Society about a year ago, the 32 changes this Government have made in defining unemployment, so that "unemployment" becomes "claimant unemployment", have resulted in the existing figures regarding real unemployment being understated by 1.5 million?
Lord Henley: My Lords, that is simply not the case. The noble Lord knows that there are two methods of counting unemployment. First, there is the claimant count, which, quite rightly, counts those who are out of work, looking for work and receiving benefit. Secondly, there is the Labour Force Survey, which, as the noble Lord knows, works on the internationally accepted ILO rules and which shows broadly the same pattern as the claimant count. It shows that unemployment has been coming down steadily since 1992. At the same time it has been rising in Europe; namely, in Germany, France, Italy and Spain.
Lord Marlesford: My Lords, does my noble friend the Minister agree that we should really relish discussion of the subject on this side of the House? However, we must take inflation as well as unemployment together because both are crucial factors in managing the economy. Does my noble friend recall that in the five years up to May 1979 retail prices increased by 91 per cent., and that in the five years up to January 1997 retail prices increased by 14 per cent? When talking about figures, does my noble friend further agree that the very interesting figures on unemployment by constituency, which are published monthly, show that in January there were only 129 constituencies where unemployment was 10 per cent. or higher; that 199 constituencies had unemployment of under 5 per cent.; and that there were actually 39 constituencies where unemployment was under 3 per cent., which is full employment in Beveridge terms?
Lord Henley: My Lords, I am grateful to my noble friend for bringing those figures to the House and also

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for reminding the House of the important link between unemployment and inflation. I also remind my noble friend that under the previous Labour government unemployment doubled from half a million to 1 million.
Earl Russell: My Lords, is the Minister aware that according to a Written Answer given to me by his noble friend Lord Mackay of Ardbrecknish on 23rd January 1996 the number of people over 50 and under 65 who have not worked for 10 years is 2,594,000? The Minister will doubtless be aware that these people do not appear in the unemployment figures because they are excluded from the actively seeking work rules. I would not for one minute maintain that they should all be included in the unemployment figures. However, would the Minister be equally unwilling to say that none of them should?
Lord Henley: My Lords, if people are not seeking work I do not believe that they should be counted in the unemployment count.
Viscount Ullswater: My Lords, before the Opposition get too complacent about the figures from 1979, does my noble friend agree that in the late 70s the UK average unemployment figure was above the European average and rising, whereas now it is below the European average and falling?
Lord Henley: My Lords, my noble friend is absolutely correct. For example, the figures for 1975 show unemployment of about 4.3 per cent., which was higher than in Germany, France and Spain. When one looks at the figures for 1995–96 one finds that they are considerably lower than those of France, Spain, Germany and Italy, which are all high and rising.
Lord McCarthy: My Lords, how does the Minister square the answers he is giving today with the Government Statistical Service's Labour Market Trends, which has stated in the past two months' editions that the service does not know what is happening as regards unemployment? The January edition of Labour Market Trends states that the statistical service does not know how much of the recent fall in claimant unemployment is due to JSA and how much is due to job growth and therefore it does not know whether the downward trend has accelerated. Surely we have come to a point where the Government should get rid of the discredited claimant count and publish the Labour Force Survey month by month. The only reason they do not want to do that is because, contrary to what the noble Lord said, the survey shows that unemployment is still 2.2 million; still 8 per cent.; and falling at a far lower rate than the Government suggest.
Lord Henley: My Lords, I am interested in the new party policy that will abolish the count and rely solely on the monthly Labour Force Survey. I make it quite clear, as I did earlier, that the figures are obviously difficult to interpret. We never know precisely how many have come off and gone into jobs and how many
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have come off because they should not have been on the count in the first place. I think what the noble Lord can accept is that unemployment has fallen by over 1 million but employment—that is, real jobs—has risen by 900,000. So there are many new jobs as a result of the economic policies we are pursuing.

UK Economy: Inward Investment
2.47 p.m.
Lord Hooson Lord Hooson asked Her Majesty's Government:
What is their estimate of the total capital value of inward industrial investment to the United Kingdom from non-European Union countries during the past decade and what is the estimated value of its annual contribution to the United Kingdom economy.
The Minister of State, Department of Trade and Industry (Lord Fraser of Carmyllie):: My Lords, the stock of inward investment into the United Kingdom from non-European Union countries rose from £42 billion in 1987 to £81 billion in 1994 (the latest year for which figures are available). Although not all of them are quantifiable, we gain a wide range of economic benefits from inward investment including increased exports, the creation of new jobs, the introduction of new products and processes and the creation of local supply chains.
Lord Hooson: My Lords, does the Minister agree that this is a significant contribution to the well-being of our economy which has largely come about because we are a fully participating member of the European Union? How seriously have the Government taken on board the suggestion by Toyota that, in the event of our ceasing to be what can be described as a fully participating member of the European Union, it might withdraw its investment and transfer to another part of the European Union? How significant a factor would that be if other companies followed that suggestion?
Lord Fraser of Carmyllie: My Lords, I must say immediately to the noble Lord I am grateful that he, if no one else on the Opposition Benches, has recognised the enormous success of this Government in securing this extraordinary rate of inward investment into the United Kingdom. There are many reasons other than exchange rates for that inward investment locating in the United Kingdom—there is our low corporation tax, our established industrial infrastructure, our established enterprise culture and, I am pleased to say, a skilled and adaptable workforce. Joining the EMU would not of itself give rise to more inward investment. I understand that following the remarks of a member of the management of Toyota, which were widely publicised and which were delivered off the cuff, Toyota has spent a considerable amount of time indicating that what he said was taken out of context and that the significant investment it has in this country will continue.
Lord Boardman: My Lords, can my noble friend give us some indication of how many new jobs have been created directly or indirectly by this inward investment to which this Question refers?
Lord Fraser of Carmyllie: My Lords, at a rough estimate over the past five years it is estimated that 352,432 jobs stemmed from inward investment.
Lord Paul: My Lords, how much inward investment shall we lose because of the high level of the pound at present? What money incentives have we given to bring in that inward investment which were not available to the domestic industry?
Lord Fraser of Carmyllie: My Lords, clearly there is always some concern when the pound rises. However, it would appear that British industry, including those industries which located here as a result of inward investment, has become more sophisticated as regards hedging against movements in exchange rates.
A point well worth raising is that sometimes there is the misapprehension that most of the inward investment is attracted to this country because of grants in one form or another. In fact only about 26 per cent. of inward investment projects in the United Kingdom receive any grant from the Government.
Lord Clark of Kempston: My Lords, does the Minister agree that over 40 per cent. of all the inward investment into the European Union comes to this country because of our competitive position? Does he also agree that, if one takes into account the benefit of inward investment, last year our invisibles rose to over £12 billion? That must be a help to the economy.
Lord Fraser of Carmyllie: My Lords, my noble friend is absolutely right. We are the number one location in the European Union not only for United States and Canadian investment but also for Japanese and Korean investment. We are doing extremely well in that regard. It clearly makes a significant improvement to our economic performance. It is equally important that something like 42 per cent. of our exports are from companies which originally located in this country as a result of inward investment.
Lord Penton: My Lords, will the Minister ask his noble friends whether they will let me have the planted Questions so that I can look up the answers at the same time? I should be terribly sympathetic, as he is, to their needs.
I assume that the Minister saw a report in yesterday's Financial Times—his officials would have advised him of it—saying that Britain is now no longer the most favoured destination for non-European Union countries to invest in but that France is. Research seems to indicate overwhelmingly that that is precisely because we are members of the European Union and for none of the other reasons that the Minister put forward. Without prejudging what will be in the national interest in a few weeks time, while joining the EMU might not be helpful
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to inward investment, surely the evidence indicates fairly strongly that not joining the EMU will be immensely deleterious to this country.
Lord Fraser of Carmyllie: My Lords, I do not accept that. As I acknowledged in answer to an earlier question, our presence within the European Union is clearly a factor that makes us an attractive place in which to invest inwardly.
If there were a planted question, I have to say to the noble Lord that it would be the one that he put to me. I saw the report that France was receiving more inward investment than the United Kingdom. I understand that that calculation is based on flow figures and does not represent the value of the stock at the plant established within the United Kingdom. In our view it would be preferable to look to the investment stock in this country. In the figures that I gave to your Lordships—the noble Lord may have noted that—I gave 1994 as the most recent figure. The reason is that we take our data from the governments of the countries investing here. We believe that that is a far more reliable basis. If anything, those flow figures demonstrate one rather interesting feature of our inward investment that we had not realised; namely, capital being so readily raised in the United Kingdom may be a further reason for people investing here. That would certainly seem to be the case in relation to the Siemens project in the north east of England.

A.30 Road Improvement: Obstruction
2.54 p.m.
Lord Campbell of Croy Lord Campbell of Croy asked Her Majesty's Government:
What has been the additional cost to the public purse arising from obstruction by protesters to work on the route of the A.30 road improvement in Devon.
The Parliamentary Under-Secretary of State, Department of Transport (Viscount Goschen): My Lords, police costs to date amount to some £750,000. Under the terms of the privately financed contract, all other costs for the protester action are borne by the contractor, with the exception of guarding costs above an agreed threshold, which are shared with the Highways Agency. That threshold has not been reached.
Lord Campbell of Croy: My Lords, I am grateful to my noble friend for his clarifying Answer. Is he aware that residents in the Exeter area have been looking forward to this significant road improvement, knowing that our system of planning and inquiries, created and supported by the political parties, is fully adequate to consider objections and can lead to cancellation or changes? Are such protesters in their tunnels and trees included in the national statistics of homeless and persons living rough?
Viscount Goschen: My Lords, I agree with my noble friend that there is considerable support for this road improvement scheme. There is much congestion in that area. The road safety record for the existing road is not good.
My noble friend is right. A full statutory process was followed. The inspector recommended in favour of the published proposals but with modifications. That process is surely the forum for making objections to a road scheme.
My noble friend asked about the national statistics for the homeless and those sleeping rough. I understand that it is unlikely that those people are counted. Counts of the homeless are undertaken only in London and the major cities.
Lord Burnham: My Lords, can my noble friend give any assurance that similar costs and delays will not be incurred during the building of the extra runway at Manchester Airport?
Viscount Goschen: My Lords, I am not able to give that assurance. It is for the promoters of the application to build the second runway to manage their construction process. They will liaise carefully with the police. It is quite clear that the appropriate forum for making objections, whether it be to a runway or a road scheme, is through the public inquiry. The second runway at Manchester has been given the go-ahead from the application that was called in by the two Secretaries of State. Where illegal action is taken, I am confident that the police will deal thoroughly with it.
Lord Boyd-Carpenter: My Lords, does my noble friend have the figures for the costs involved in the obstruction to the building of the Newbury bypass?
Viscount Goschen: My Lords, I do not have those figures with me. However, I can tell my noble friend that, despite the high level of illegal action there, good progress is now being made on that important road scheme.
Lord Taylor of Gryfe: My Lords, as there is considerable concern about the roads programme, would it not be more desirable to invest greater amounts of money in the railways? Does the Minister agree that what has been experienced in this part of the world in the past few days does not justify the optimistic responses that we have had from time to time? On Thursday my train was two hours late; on Friday it was three-and-a-half hours late; and the following day it was an hour late. With the troubles experienced in London, does this really represent the triumph that the noble Viscount mentioned?
Viscount Goschen: My Lords, the noble Lord's ingenuity in going from those who tunnel under prospective road schemes to rail privatisation is to be commended. The House is probably familiar with the arguments on rail privatisation. We believe that it has been a tremendous success. We have seen huge levels
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of investment. As we have heard from previous Questions on unemployment, the party opposite cannot cope with good news.
Lord Campbell of Croy: My Lords, I have a more relevant question on railways. Does my noble friend appreciate that had such protesters existed in the past century, the epic engineering and construction of the Great Western Railway by I.K. Brunel, which also greatly improved communications with the West Country, might have been seriously delayed or probably killed?
Viscount Goschen: My Lords, in those days the robust official response to illegal action probably involved less consideration of the rights of the individual. It would probably have proceeded without the statutory safeguards that we now have. We have statutory safeguards. Where people are acting illegally, clearly it is for the police and relevant authorities to ensure that they do not obstruct the legal way.
Lord Clinton-Davis: My Lords, is the Minister aware that moles do it, rabbits do it and now Ministers are doing it? They are burrowing for false impressions in a world of their own—the world of illusion.
Leaving that aside, does the Minister agree that the chief constable of the area affected, Chief Constable John Evans, has said that the police have spent £750,000 on these exercises? Is it right that the cost of the evictions has caused initiatives against drugs and car theft to be put on hold? Is that correct?
Viscount Goschen: My Lords, it certainly shows that the money would have been much better spent on policing costs in pursuing exactly the considerations mentioned by the noble Lord. Money has been diverted to deal with illegal action which has very little support within the country. What is clear is that the road scheme has tremendous support locally. The police are obliged to keep the peace, and that is exactly what they have done.
Baroness Farrington of Ribbleton: My Lords, why will the Government not accept a degree of responsibility for the direct action—which we do not condone from these Benches? They have created the attitude that transport in this country is a competition between market forces. Is the Minister aware that even the RAC today acknowledged the need for a properly integrated transport system? Do the Government accept responsibility for the fact that people despair of their lack of acceptance of the need to plan?
Viscount Goschen: Absolutely not, my Lords. In election after election, voters have put this party in power with a stated manifesto and stated transport policies. That is the forum. If one wants to change transport policies, it should be done through the ballot box, not through direct action.

The London Art Market
3.2 p.m.
Lord Renfrew of Kaimsthorn Lord Renfrew of Kaimsthorn asked Her Majesty's Government:
Whether the reputation of London as an international art market of probity may be damaged by evidence of the public sale of looted antiquities smuggled from their country of origin, and whether they will take steps to monitor the scale of this illicit trade in the United Kingdom.
The Parliamentary Under-Secretary of State, Department of National Heritage (Lord Inglewood): My Lords, the Government believe that London's standing in the international art market should survive the recent allegations. We believe the trade should monitor its own activities, regulate itself and take appropriate steps against those who do not abide by its code of practice. Doing this effectively ensures its reputation. In addition, where the criminal law has been broken sanctions are available and when international instruments are broken appropriate steps will be taken in accordance with them.
Lord Renfrew of Kaimsthorn: My Lords, I thank my noble friend for that reply. Does he recall the words in the Written Answer that he gave yesterday, in which he observed,
"It is not an offence to import into this country antiquities which have been illegally excavated in and exported from their countries of origin"?—[Official Report, 17/2/97; col. WA 34.]
Is my noble friend entirely happy with that circumstance? Does he feel that it is to the credit of London as an international art market that it should become the clearing-house for looted antiquities from India, Turkey, west Africa and Europe? Does he not feel that his Answer perhaps verges on the complacent?
Lord Inglewood: My Lords, we believe that the London art market is important to this country and wish to maintain its position. Perhaps the greatest reason for this country's reputation is the fact that it is a place where fair and proper dealing has been the basis of the trade. The most effective way to maintain that in the future is through proper self-regulation. That is the most effective way to deal with the mischiefs about which everyone is concerned. Experience in other countries where it is illegal to do all kinds of things with antiquities has not stopped such trade taking place. Therefore we believe the right way to approach the matter is through a system under which rigorous action is taken when the self-regulating code is broken.
Lord Jenkins of Putney: My Lords, is the Minister aware that the international art market always has been a bit of a posh racket? Is he further aware that the trade in this country is probably cleaner than in most others, and that the recent exposure which took place will perhaps make people a little more aware of what was going on and help those of us who want to, to clean it up a little more easily than has hitherto been possible?
Lord Inglewood: My Lords, as the noble Lord says, the response of the art market in the face of an abuse is what will determine whether or not its reputation for probity survives. In the context of the recent allegations, it is relevant to note that Sotheby's, which was implicated, took steps straight away to endeavour to put matters right.
The Earl of Perth: My Lords, will the Minister also consider the other side of the coin; namely, keeping a watch on antiquities that may be leaving this country—more especially until the Treasure Bill and the code of practice become operative? Will the Minister tell the House when that might happen?
Lord Inglewood: My Lords, we share the noble Earl's desire to see the Treasure Act in operation as soon as is reasonably possible. As we explained, our aim is that it should come into effect this September. The consultation period on the draft code closed only last Friday. We have received over 150 responses, some of which are very detailed. We shall need to take full account of those when revising the draft code. We believe it is important to get it right. Nonetheless, we understand the noble Earl's concern that the code should be approved by Parliament before the election. While, as he will appreciate, we can give no guarantees, I assure him that we are doing our best to achieve that.
Lord Donoughue: My Lords, following the noble Earl's question, will the Minister ensure that the code is tabled as soon as possible in order to help curb any illegal trade in treasures found in this country? Will he bear in mind that, when he does so, he will have the full support of this side of the House?
Lord Inglewood: My Lords, I am most grateful to the noble Lord for his continuing support for the Bill and the measures proposed under it. As I explained, we shall endeavour to bring forward the code as soon as we responsibly can.
Baroness Rawlings: My Lords, does the Minister agree that it is the newly acquired antiquities in circulation about which we should be worried, not the old ones? What practical steps are being taken in the countries from where they are pillaged? Do those countries provide any help to us to stop that trade?
Lord Inglewood: My Lords, my noble friend is right. Items that are being illegally exported and pillaged are our principal concern now. The difficulties that other countries have are self-evident. We are essentially in the position of trying to organise our market to make sure that it is arranged most effectively in the interests of the market-place and to ensure that those items that come into the hands of dealers in this country, when they are identified as having been illegally exported from their country of origin or looted from sites, are returned, if they are of appropriate quality, to the countries of origin.

Succession to the Crown Bill [H.L.]
Lord Archer of Weston-Super-Mare: My Lords, I beg leave to introduce a Bill to remove any distinction between the sexes in determining the succession to the Throne. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read a first time.—(Lord Archer of Weston-Super-Mare.)
On Question, Bill read a first time, and to be printed.

Crime (Sentences) Bill
3.7 p.m.
The Minister of State, Home Office (Baroness Blatch): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Baroness Blatch.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 7 [Time to be served]:
On Question, Whether Clause 7 shall stand part of the Bill?
Lord Carlisle of Bucklow: I rise to oppose the Question that Clause 7 shall stand part of the Bill. We now move away from the emotive issues relating to mandatory sentences which we debated under Part I of the Bill and turn to Part II dealing with the effectiveness and effect of sentences passed by the courts. It raises a question as to what proportion of the length of any sentence should be spent in prison, how much on supervision in the community, and how best to achieve the twin aims of punishment for the individual and the protection of the public. I oppose Clause 7 in order to raise the issue of whether we are wise to move in the way that the Bill proposes.
Our present sentencing system has been in existence only since October 1992. I ask the Committee to consider three questions. Why are we changing the system at this stage? What are we attempting to achieve? And how will the new scheme work in practice?
I believe that it is a mistake to change the system at this time and that what is proposed will prove to be far more complicated. It will have a serious effect on the prison population; it will increase tensions within prisons; it will be found to be largely unworkable; and it will reduce rather than increase the safety of society.
I believe that we would all agree in principle that real-time sentencing sounds very good sense. If one were starting from scratch to devise a penal system, clearly a system under which, when a sentence of three years is passed on a prisoner, that prisoner serves three years makes sense and is simple and understandable. The fact is that we do not start from scratch but have to consider the existing system.
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We have had a system of early release from all forms of imprisonment since the middle of the last century. As long ago as 1837 the Select Committee on Transportation referred to the fact that those who were transported to Australia were given a ticket of leave which allowed them to be released from prison on licence approximately halfway through their sentences. When transportation ended, the penal servitude system in this country again provided that those sentenced to penal servitude should be released on licence at a period during their sentences.
As long ago as 1895 the Gladstone Committee, recognising the absurdity of a system whereby those who had committed the worst crimes were released from prison early while other prisoners served their sentences in full, recommended that all prisoners should gain a period of remission provided they behaved themselves while in prison.
Since 1948 and the abolition of penal servitude we have had a system under which, whatever the length of the sentence passed by the court, a prisoner obtains one-third remission of that sentence provided he behaves while he is in prison.
In 1967, a system of parole was introduced whereby not only were prisoners released automatically after serving two-thirds of their sentences, the rest of the sentence being completely ignored, but any prisoner serving a sentence of more than 12 months was free to be released on parole after serving merely one-third of the sentence. That system was accepted and agreed to by all parties and all sections of society until 1983 when the system was changed to make parole available to any prisoner who had served six months in prison. The decision on parole was removed from the Parole Board to the local review committee, and there was a presumption that prisoners would be released on parole. The effect was that almost all prisoners serving sentences of between nine and 18 months, irrespective of the difference in sentence, were released on the same day after having served six months in prison. That brought the parole system as it then existed into disrepute.
Against that background the then Home Secretary Douglas Hurd set up a committee, which I had the honour to chair, to consider the issue of parole and early release. I do not pretend that we necessarily got it right, but would suggest that it was a wide-ranging committee including, among others, a High Court judge, a chief constable, a principal probation officer, a senior criminologist and others. We took a year to complete our report. We considered a great deal of evidence and evaluated a great deal of research carried out by the Home Office. We made unanimous recommendations which were accepted by the Government. The Government said of our proposals at paragraph 6.6 of their White Paper:
"The recommendations … propose a coherent new scheme for supervised early release from prison. The Government is grateful to the Committee for its work and believes that most of its recommendations should be implemented".
What were those recommendations? Their purpose was simple. For all sentences up to four years, the first half, 50 per cent., should be spent in prison, after which

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people should be automatically released, subject to good behaviour, the next 25 per cent. of their sentences being spent under supervision in society. During the last 25 per cent., although no longer under supervision, they would be at risk of being recalled and serving the rest of their sentences should they commit any further offence. The recommendations for those serving sentences of over four years were that parole should continue but, rather than starting at a third, it should start at 50 per cent.; that it should go on until three-quarters of the sentence—a longer period—and that, again, people should stand the risk of being recalled if they reoffended during the time of the original sentence.
The objects were to ensure that prisoners served at least 50 per cent. of their sentences as against the third that most were serving at that time; to restore proportionality to all forms of sentence; to provide supervision when prisoners receiving a sentence of longer than 12 months returned to society; and to give a meaning to the sentence as a whole. That system was introduced in October 1992.
Why is it now intended to change the system fundamentally? I have seen no evidence that it has failed. Indeed, it would be difficult to obtain such evidence in a period of three to four years. No suggestion has been made. We are told that prison works, and I accept that. We are told that crime has fallen during the time that the system has been in existence. The only reason given in the White Paper for changing it is that it is said to be a complicated statutory system. Out of the blue at the 1995 Conservative Party conference the Home Secretary announced that he intended to abolish the system of early release and that prisoners should serve the whole of their sentences.
What does that mean in effect? It is not intended that the sentences should be the same and that prisoners should serve the whole of them in prison. What is proposed in the Bill is that all sentences should now be reduced by one-third and that prisoners should serve 84 per cent. of the two-thirds' length of sentence passed.
The White Paper stated that the aim of turning to what I call real-time sentences and what the Home Secretary calls honesty in sentencing was not that the length of period served by prisoners should be increased. The Bill proposes that sentences should be reduced in length by one-third to two-thirds to equate more with the sentences served. It does not put an end to early release. Although we were told that the system of early release was to end, what is proposed in its place is a system whereby every two months a prisoner will be assessed and will have the chance of receiving 12 days' reduction of his sentence every two months, six days if his behaviour meets the prescribed minimum behaviour of a prisoner, whatever that may be, and six further days if he has exceeded that standard.
What does that mean in practice? Let me take three simple examples. Today, when an offender gets a sentence of four years, he serves two years in prison, one under supervision and one at risk of recall. In future, under this Bill, for the same offence he would receive a
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sentence of two years eight months, serve two years two months and 24 days in prison and be on supervision for eight months (rather than 12), with no period at risk of recall should he reoffend. At present, for a sentence of three years, an offender serves 18 months in prison, nine months on supervision and nine months at risk of recall. That is to be replaced by a sentence of two years, with 20 months in prison, six months on supervision and, as I said, no further period at risk. Finally, at the top end of the scale, the armed robber who receives 18 years at the moment serves between nine years and 12 years, depending on the risk assessed by the Parole Board, is on supervision until the end of 13½ years and at risk of return for the whole of the 18 years if he commits a further offence. Under the new provisions, he would get a sentence of 12 years, serve 10 years and then be released—not on risk but depending on whether he had behaved himself in prison—and be on supervision for a period of three years.
With great respect, it is said that that system is simpler, more honest and gives greater protection. I do not believe that it meets or achieves any one of those aims. Therefore, I ask what its effect will be on the prison population.
I apologise for speaking at length but I want to take up three points. The White Paper states in terms that the inventions are that sentences should in no way be increased—the length of time that people spend in prison should not be increased as a result of the changes in sentencing policy. Indeed, in the chapter summarising the resource implications of the White Paper, the key assumption is that when imposing a sentence other than a mandatory sentence, courts will take full account of the changes in early release arrangements. It is not, therefore, intended that there should be a general increase in sentences following the introduction of honesty in sentencing.
Therefore, I take it that when the White Paper says that the provisions overall will lead to an increase of over 10,000 in the prison population and the need for 12 new prisons, it is assumed that its proposals in that area will be neutral. In fact, they will not be neutral. If all sentences are reduced by 66 per cent. of the present sentence, it means that everybody, even if they receive full remission for early release, will serve 11 per cent. more time in prison than they do at the moment. What does that mean? If all those sentenced up to four years automatically serve at least 11 per cent. longer, the daily prison population goes up by 1,900. What does that involve? It means £40 million extra a year and three new prisons.
But will that figure be achieved? It is on the basis that all of them will get early release. Yet, as I understand from the White Paper and the speeches that have been made, the intention is that most prisoners should serve their sentence in full and only model prisoners would get a short period of early release. Therefore, one must assume that not every prisoner will get his 12 days every two months early release. So, to the extent that that fails, so the prison population will become greater, as people spend longer in prison. We all know of the tremendous pressures with 60,000 people in prison today.

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Finally on that matter, will sentences in fact be reduced by one-third? I do not want to sound cynical about the judges, whose case I attempted to argue last week, but I am bound to say that when we wrote our report we wondered whether, even in the climate of nine years ago, it would be easy to have sentences passed in courts reduced by one-third. I suggest that in the climate of 1997 it may be considerably more difficult to have sentences reduced by one-third, even more difficult than it would have been in 1988. To the extent that they are not reduced, the increase in the prison population could rise by anything up to 20,000 people, which means some 30 new prisons, and could cost heaven knows how many billion pounds.
My other concern relates to how the system of early release will work. Is it practical to assess every individual prisoner on a two-month basis? Do we have the resources to do it? Is it the wisest use of those resources?
In conclusion, there is my question to the Minister about the effect on the protection of society. The vast majority of prisoners will receive a shorter period of supervision than they have at the moment. However, I agree with her entirely—I agree with the Government—that one of the faults of the present system can fairly be said to be that those who are the most serious prisoners at the moment receive the least supervision. If they are refused parole, they have supervision only from the 66 per cent. point to the 75 per cent. point, whereas the Government's proposal, which I wholly support, is that there should be a supervision period of at least a quarter of the length of the total sentence.
I ask my noble friend the Minister to consider carefully whether a system which, on the face of it, appears to remove risk as the criterion for release and replaces it by a criterion of being a model prisoner—many of the worst people in society are very well behaved in prison—would in fact improve rather than reduce the protection of society. Should we at least consider putting back the test of risk into the release of those prisoners. I ask her to look again at the effect that the proposals as a whole will have on the prison population. I ask her to say, in view of the numerous criticisms that have been made—totally well intentioned—about the effectiveness of what is proposed compared with the effectiveness of the present system, that she will examine its effect on the population, on protection and on tensions within prisons. I hope she will say that the Government will at least take time to reflect and that before moving in such a direction they have met the various concerns that I have expressed.
3.30 p.m.
Lord McIntosh of Haringey: The noble Lord, Lord Carlisle, made a thoroughly Conservative speech. Those who think of themselves as Conservative ought to support him. I rise to try to persuade my noble friends and others in the Committee who do not think of themselves as Conservative, that he is right and ought to be supported in this matter.
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Clause 7 of the Bill is a declaratory clause. It declares in advance of Clauses 8 to 33, which constitute Chapter I of Part II of the Bill, that the principle behind the effect of custodial sentences should be that prisoners should serve the term to which they have been sentenced and that there should only be the exceptions which are set out in subsequent clauses of that chapter.
Looking at the principles on which imprisonment is justified—not just in the public mind but in penal theory for hundreds of years—it is true that retribution and the immediate protection of society by the removal of offenders from society is reflected and only reflected in the length of their sentences. But there are other issues to be considered when deciding on the length of sentences and the length of the part of sentences to be spent in custody. The other considerations which are generally agreed by all concerned include rehabilitation and therefore the risk of re-offending.
Clause 7 is included in the Bill specifically and openly to put retribution over and above all other considerations in sentencing theory and practice. It is based on the statement in paragraph 9.3 of last year's White Paper which said that the existing system provides for prisoners to be released automatically after a certain proportion of their sentence has been served. That statement contains two major errors of fact. First, prisoners are not released automatically after they have served a certain proportion of their sentence. Provision exists in the current system for additional days to be served in custody because of misconduct in prison. That will be continued in Chapter I of the Bill.
It is also wrong to say that prisoners are released automatically. When prisoners are released from custody their sentence is suspended rather than remitted. If they are serving a sentence of more than 12 months, their supervision by the Probation Service continues to three-quarters of the original sentence and even after that they are still considered to be at risk. When they are released under those circumstances, they are released subject to specific conditions which include not just supervision by the Probation Service, but also more precise conditions as to where they should live, what their behaviour should be, reporting conditions and so forth. If they breach those conditions, they can be returned to prison on the authority of a supervising probation officer far more readily than is provided for under the Bill. Under Clause 13 of the Bill it is necessary to go to a court to secure a return to prison. I ask the Committee to think about what that means in terms of the protection of the public.
A sentence now is a determinate sentence just like a life sentence; it is a combination of custody and supervision. It is, or should be, a pragmatic question as to what the balance should be between custody and subsequent supervision. The evidence has shown, even in the short time since these arrangements were introduced by the Criminal Justice Act 1991, that the combination of custody and supervision—the Parole Board carrying out the supervision—has provided greater protection for the public than it had before or than it would have under the provisions of this Bill.

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Parole reduces re-offending rates. Despite what was said in Committee in another place by the Minister of State, it reduces them against a profile of prediction of the rate at which re-offending would otherwise have taken place. That is the official view of the Home Office Research Department and cannot be overturned simply by saying, as Mr. Maclean unfortunately did, that that is the view of a sociologist.
I come back to the issue of recall. It is important that we concern ourselves with the protection of the public and the need for recall to be immediate if that is deemed to be necessary. This Bill does not provide for that. I come back to the question of supervision. It is true that in a small number of cases the amount of time spent under supervision will increase under the Bill; but in the vast majority of cases there will be a reduction in the amount of supervision and therefore in the protection of the public.
I emphasise the issue of the protection of the public because it is important that we understand it. It contains two elements. One is that it is, of course, dependent on good behaviour in prison. The Bill provides for a reflection of good behaviour in prison in the length of time spent in custody. But the other element which, as we have seen, actually works, is the element of supervision. As the noble Lord, Lord Carlisle, said, and as Sir Peter Lloyd said in another place, the worst villains are often those who behave best in prison. They are therefore able to get out sooner and resume offending after their release.
If we have two workable measures which determine the release date—one being behaviour in prison and the other the possibility of supervision—why is the Bill throwing one of them away? Even the measure of good behaviour in prison is proposed in the Bill in a way that is, frankly, unworkable. It is proposed that every two months there should be two sorts of assessment; that is, one as to whether the prisoner has attained a minimum standard and the second as to whether he has exceeded a minimum standard. That means that around 80,000 assessments will need to be carried out every two months by the Prison Service. In practice, unless the amendment of the noble Lord, Lord Belstead, is carried, those assessments would be carried out by prison officers; not just centrally; not by prison governors; but by prison officers from the wings. One can imagine what that will mean in terms of discipline in prisons and the possibility of aggravation between prisoners and prison staff when they learn that they are not being given the same consideration as other prisoners on the wing. It is impossible for prison staff to implement the provisions proposed in the Bill.
I said when I began that this was a declaratory clause. Opposing the clause is a declaratory position for this Chamber to take. The Committee needs to declare this afternoon—I hope we will have an opportunity to do so, if necessary in the Division Lobbies—that we put the interests of society and the interests of a system, relatively recently introduced by this Government with widespread support, above the doctrinal statements of this particular Conservative Home Secretary at a conference. By refusing to accept that Clause 7 should
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stand part of the Bill, we would be declaring—perhaps a Conservative position—that penal reform is still a live concern of Parliament and of this country.
Lord Belstead: Perhaps I may intervene briefly. I shall not follow my noble friend Lord Carlisle and the noble Lord, Lord McIntosh, in their detailed comments on Part II of the Bill. My noble friend is justified in asking, as he did in his speech, the simple, single question: why this major change in the early release system in this country? It was my noble friend Lord Carlisle who chaired the committee which recommended major changes in the parole system only some five years ago, including incidentally the tightening up of the release date of a prisoner. I hope I do not misconstrue my noble friend but I think that he, arid certainly I, would very much understand if the Government wished to tighten up release dates further. However, Part II of the Bill, on which we are just embarking, does something very different. It abolishes the existing system of early release in this country and substitutes a new system of remission based on a test of good behaviour, and only good behaviour, leaving, as both noble Lords have said, a risk assessment of letting prisoners out into the community entirely aside.
So, declaring an interest as chairman of the Parole Board, I join the two noble Lords who have spoken in saying that I think this is an important clause. It makes a statement that full-time sentencing is the guiding principle of this part of the Bill, but following the line of thought of the noble Lord, Lord McIntosh, I say that it omits curiously any mention of the early release scheme to which we shall come in Clause 10. I join those noble Lords who I know believe that the way to make clear the exact meaning of what a sentence of the court is to the general public is for the judge to state in open court the time that will be spent in prison as retribution and the periods when it will be possible for a prisoner to be awarded early release into the community, making clear of course that this will be dependent upon a prisoner's positive efforts while in custody. However, instead of explaining in that way what full-time sentencing together with an early release system means in practical terms, the philosophy of honesty in sentencing seems to assume that the sentence of the court is almost entirely retributive.
In saying that, I am not forgetting that, within a full-time sentence, a prisoner should seek to tackle the causes of his or her offending behaviour. But it is clear from the Bill that the time to be served is looked on by the Government as being mainly retributive, with early release for good behaviour, and only for good behaviour, in prison, and not for the difficult test of success or failure of rehabilitative and risk reduction work. That of course is the inevitable consequence of abolishing parole.
I speak entirely as a layman so far as concerns sentencing; but my understanding is that if retribution, deterrence, prevention and rehabilitation—the well known foundations even to me—are the principles of sentencing, then prevention and rehabilitation cannot be achieved once and for all, rather like taking a snapshot, at the moment of sentencing. Decisions on the reduction

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and management of risk and on progress towards rehabilitation can only be taken, and judged to be taken, later on in a sentence. That is the whole reason for having parole.
I am sure, if I am sure of anything, that people want clarity concerning the meaning of a sentence. People want the retributive time to be clear; people want the time which can be awarded for early release to be clear. But, if they stop to think about it, people also want prisoners to be encouraged to reform. And that makes good, sound sense in terms of public protection, borne out by Home Office research which proves a very much lower reconviction rate for parolees compared with non-parolees.
I recognise that retribution and deterrence are essential principles of sentencing. But surely variation in the time to be served, according to the progress which a prisoner makes in risk reduction and rehabilitation, are also ingredients of a sentence which we should not lightly cast aside. Rather than the exact drafting of Clause 7, I must say that I am more interested this afternoon in the Government's intentions for Part II of the Bill. I shall listen very closely to the Minister's reply in the hope that the Government recognise that the principles of sentencing, along with retribution and deterrence, include whenever possible prevention and rehabilitation. If I hear that that is part of the Government's response, then I shall be very much heartened, and I believe many other noble Lords will be as well; for at the end of the day that is the road to the protection of the public, and that, I believe, should be our major concern as we start on Part II of the Bill.
3.45 p.m.
Lord Thomas of Gresford: The mandatory sentences which we discussed in Committee last week were justified on the basis that judges were not sentencing adequately. It is a very curious thing that the provisions of Part II are justified on the principle of honesty in sentencing when that principle is immediately qualified by a direction to judges to reduce their sentences by one-third; so that with Part I of the Bill judges are being told, "You are not being tough enough" and with Part II of the Bill they are being told to reduce their sentences. That is a paradox which perhaps the Minister can help to explain.
I direct my remarks to the provisions for early release. The framework of the present system is that prisoners should be entitled to be released at a fixed point in their sentence subject to a loss of remission due to misbehaviour. We consider that the framework now proposed by the Government for early release is not simply unworkable but, from a practical point of view, is positively dangerous. David Roddan, the general secretary of the Prison Governors Association, wrote in an article in the Guardian on 11th February this year:
"Any system that determines when a prisoner is released will need to be in accord with the rules of natural justice. The riots of 1990 caused Lord Woolf to remind us of the need for fairness and justice if grievances are not to fester. Under the Bill's proposals, governors will have to assess 80,000 prisoners every two months. This work will have to be pushed down the line, possibly to the level of wing staff. The dangers are obvious. Prisoners will intimidate or threaten
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action if they are rewarded less than their fellows. Staff will inevitably be accused of bias. Millions of pounds will be ploughed into defending appeals against differential awards. Alternatively, staff will allocate maximum remission automatically for a quiet life".
That is the view of the general secretary of the Prison Governors Association. One assumes that he is speaking for a general view among prison governors. The problems that he outlines cannot be over-emphasised.
Under the Government's proposals in this part of the Bill, for the first 12 months of a prisoner's imprisonment the prescribed person may award up to 12 early release days in each two-month period as he may determine. Who is this prescribed person? He is defined in the Bill simply as the person prescribed by prison rules. The noble Lord, Lord Belstead, has put down amendments which will at least ensure that the prescribed person is a person of governor grade. But even if his amendments were to succeed, upon whose recommendations or advice would this prescribed person—a governor shall we say—be acting? It is only on the advice of a prison warder on a landing, who can assess whether the prisoner's behaviour has attained the prescribed minimum standard.
According to the Bill, after 12 months of the sentence have been served, the discretion of the prescribed person is widened still further. He may award up to six days in each two-month period if the prisoner's behaviour attains the minimum standard. But he has in his discretion the power to award a further six days if he decides that it exceeds that minimum standard.
In theory, an individual assessment of each and every prisoner is admirable, but consider the requirements every two months of assessing between 60,000 and 80,000 prisoners in a shifting prison population. Records would have to be maintained of each and every one of the 60,000 decisions taken every two months. If the decision cannot be appealed, the prisoner would be at the mercy of the prison warder on the landing or, alternatively, the prison warder would be at the mercy of the prisoner whose conduct he has to assess. If there were a system of appeals introduced against individual two-monthly assessments, that would completely overwhelm the system. One can imagine an assessment every two months of 60,000 people if a substantial proportion of those prisoners decided to appeal. Inconsistencies are bound to occur between prisons depending on the inclinations and the temper of the prison staff.
The present system has been operating successfully. A prisoner is given a fixed release date, subject to supervision, but he may forfeit remission by being given additional days of imprisonment for misconduct at properly convened disciplinary hearings. The strength of the current system—I find myself, along with the noble Lord, Lord McIntosh, defending it, which is a somewhat unusual position for a Liberal to be in—is that the disciplinary proceedings follow a properly laid down procedure in which evidence of the disciplinary offence is presented. The prisoner knows the charge and he can challenge it and the governor must give his reasons. A proper record of those proceedings is made.

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If that seems to be too formalistic, giving too many rights to prisoners, it is a system which is open and fair and avoids grievances. The decisions which are taken currently may be made subject to outside scrutiny. It is not a case of the prison warder on the landing taking a decision, but a governor considering the charge that has been brought. By way of analogy, consider the disastrous effect on Army morale if punishment of the private soldier were placed at the discretion of the corporal and not dealt with through the hearing of a formal charge before the CO. One can imagine what effect that would have in a military context.
The noble Lord, Lord Belstead, said that the public have a right to expect that retribution follows sentencing but that it is very important to encourage the prisoner to reform. That is where the greatest protection of the public lies—that a prisoner is treated humanely, does not suffer grievances through the system which he is in and is encouraged to come out and play his part in society.
Like the noble Lord, Lord Carlisle, we want to know from the Minister why the present system is deemed not to be working satisfactorily. We are entitled to know that. We want to know what merits the government proposals are supposed to have. I for one will not be satisfied with an explanation that the public—the people on top of the Minister's bus—do not understand what is going on. It is the responsibility of government to explain what sentencing means and, if necessary, judges will take their lead from government and spell out in detail what the current system entails. What we do not want is change simply as a public relations exercise. I have looked at my thesaurus, because I know the Minister objects to my using the expression "an election gimmick". We do not want a public relations exercise; what we want is a system that is working fairly and honestly to continue.
Lord Ackner: The principal purpose of a sentence of imprisonment is obviously to punish—that is, retribution—but that punishment provides a possibility for the protection of the public in two ways. First, it disables the prisoner for as long as he is in prison from committing further offences, that is obvious. Secondly, there could be an element of deterrence in relation to that particular prisoner. He may learn, by loss of liberty, that crime does not pay. But excepting the life sentence, with which we are not concerned, the prisoner is going to come out of prison at the end of his sentence. If the public are to be properly protected, every well run prison system will contain facilities for the education and training of the prisoner so that when he comes out at the end of his sentence he will be better equipped for leading an honest life.
But the rehabilitation prospects and possibilities in prison should not end there. There should be rehabilitation prospects out of prison under supervision, that is where the parole system comes in. The person, having left prison—one hopes better equipped—is then supervised in order that he may better settle down to the difficult situation after a period of imprisonment of earning his livelihood.
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The present system of parole has the following obvious strengths. First, it is clear and intelligible; secondly, it ensures that every day of the sentence pronounced by the court has practical content—one half in prison, one quarter thereafter under supervision and one quarter at risk of recall if there is an offence. Thirdly, it enables offenders to be reintroduced into the community conditionally. Fourthly, it enables decisions on the release of more serious offenders to be based on the experienced judgment of an independent body of experts. Fifthly, it enables offenders whose behaviour in the community causes concern to be recalled quickly and with the minimum of legal formality and delay. Sixthly, it avoids the prolonged incarceration of those whom it is judged are safe to release. Penultimately, it is a regime which has worked well in practice. Finally, the validity of the research that has led to its adoption has not been in any way impugned.
All of the factors that I have spelt out in numbers were included in one paragraph in the speech of my noble and learned friend the Lord Chief Justice at Second Reading. He ended by asking,
"One asks why such a system so recently instituted is to be cast aside".—[Official Report. 27/1/97; col. 984.]
We have been given no reason. I can therefore only venture to suggest that the answer is to be found in one of the soundbites in one of the Minister's speeches to the party faithful; namely,
"no more half time sentences for full time crimes".
That sounded very much as though the four-year sentence in future would involve four years' imprisonment, but that has been totally cast to one side. The Minister, so to speak, having been hoist with his own petard—half-time sentences are to continue—had to do something to satisfy what he perceived to be public indignation. This is the way he achieves it. In my respectful submission, he achieves it at the risk of considerable prejudice to public safety.
4 p.m.
Lord Elton: This has been called a declaratory clause and the speeches so far have all been declaratory of position. Like my noble friend Lord Belstead, I await with great interest the declaration of the Government's position by my noble friend on the Front Bench.
I rise to ask only three short questions. The first is technical. What would be the effect on the whole of Chapter I of Part II of the Bill of deleting this clause from the Bill at this stage? If it would render it inoperable or ineffective, then it is proper to ask the next question; namely, how is the recall system going to work? We are told that we are looking for greater protection of the public. At present, under licence or parole, a prisoner can be taken straight back to prison on breach of his terms. In Clause 14 I see that breach of the terms is elevated to a criminal offence which is triable. What will happen to the ex-prisoner who has demonstrated himself to be a risk to the public by breaching his terms between the breach and the trial? Either we shall have a lot of people on remand, adding to overcrowding, or we shall have a lot of people at large adding to public risk.

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I suppose that my final question should be addressed to my noble friend Lord Carlisle. I listened carefully but I may have missed a reference in his speech to Clause 22 on continuity of sentencing. That clause begins:
"This section has effect for the purpose of securing that, where a person is sentenced to a term of imprisonment in respect of an offence … to which this section applies; and … which is committed after the commencement of this Chapter, he serves approximately the same time in prison as he would have served if the offence had been committed immediately before that commencement".
If anything is declaratory, that is. It declares that the Government's intention is that the prison population shall not be affected and that the courts shall take care to see that it is not so affected. My noble friend is going to illuminate this matter in a moment, for which I am profoundly thankful. As I shall not rise again after he has sat down, I merely say to the Minister that the question of recall is one of many matters about which I am anxious and I very much look forward to her reply.
Lord Ackner: Before the noble Lord sits down, does he agree that recall is operative not only for a breach of a condition but if there is good reason to anticipate that a condition will be breached?
Lord Elton: I was anxious not to become involved in a debate on the merits of the Probation Service, which I should do happily if I had longer. The noble and learned Lord has added a dimension to what I asked.
Lord Carlisle of Bucklow: welcome the declaratory nature of Clause 22. I thought that I had made that clear. My concern is that there is reference to 66 per cent., which means a built-in 11 per cent. increase. My further concern is as to whether it can be achieved. But the declaration that sentences should not increase automatically if one moves to real-time sentencing is a view which I certainly share.
Baroness Blatch: have heard a series of Second Reading debates on what the noble Lord, Lord McIntosh, has described as a declaratory clause. Moreover, we have had a good deal of debate which impinges on the next group of amendments, because Clause 7 relates to the measures which follow. As has been said, it is an introductory clause. Clause 7 is straightforward and self-explanatory. It provides for the release of prisoners when they have served their sentence. However, it paves the way also for the group of proposals which go under the heading "Honesty in sentencing". It may therefore be helpful if I outline the thinking behind those provisions.
We believe that the public, victims and offenders should know that the sentence passed by the court is the term that the offender can expect to serve. That simple concept is reflected in Clause 7, but it is certainly not what happens at present. The present arrangements are complicated and difficult to understand. As the noble and learned Lord, Lord Taylor of Gosforth, said, the present arrangements have the appearance of a charade, with everyone engaged in a calculation of how much
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less than the announced sentence will actually be served. It is common knowledge in court that that creates a sort of sport. First one hears what is the sentence and then there is almost a calculator under the Bench which works out how little of the sentence needs to be served in custody.
The present arrangements mean also that the vast majority of prisoners can walk away from prison after serving only half of the sentence. The public and in particular the victims are understandably confused and outraged when that happens.
It has been pointed out that the present arrangements for parole and automatic early release were introduced as recently as 1992. Of course, that is true. They were a substantial improvement on the previous system which in substance dated back to 1967, as my noble friend said. However, we believe now that it is time for a more radical overhaul of early release arrangements and that our proposals offer real advantages over the present system.
Perhaps I may explain why that is so. First, the new arrangements mean that the time which prisoners serve matches more closely the sentence imposed by the court. Much has been said—and I think wrongly said—about that being the be-all and end-all of the matter. As the courts sentence now, the custodial part of the sentence will be only up to half the sentence. There is then automatic release at the two-thirds point. That is reflected in the custodial sentence which would be awarded under the present arrangements. But that goes hand in hand with a much better supervision provision which follows sentence.
It will also avoid the current uncertainty which surrounds likely release dates. Prisoners will serve their full sentence, subject to a small discount. The remand time to be credited against sentence will be decided at the point of sentence in open court.
I was interested in the notion that simply spelling out the sentence in court would allay all people's fears and remove confusion. I have taken a simple four-year sentence under the present system and, if I may be so bold, I shall be the judge on this occasion talking to the offender who has been given four years.
I as the judge would say, "I sentence you to four years' imprisonment. You are eligible to be released on parole at the half-way point of the sentence, which is two years, and entitled to be released at the two-thirds point, which is two years and eight months. However, all of those periods will be reduced by whatever time you have already spent on remand, which the Prison Service will determine. You may serve longer if you are awarded additional days for offences against prison discipline. When you are released, you will then remain under the supervision of a probation officer until the three-quarter point of the original sentence, which means that you will be supervised for a maximum of one year and a minimum of four months, although those figures may also alter if you are awarded additional days for disciplinary offences. During the supervision period, you will be liable to be returned to prison if you fail to comply with the terms of your licence or commit an imprisonable offence. For one year you will remain at risk of being returned to prison to serve the

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balance of your sentence if you are convicted of an imprisonable offence. And it is fortunate that you are not already serving a sentence for another offence because the position would become even more complicated". I do not believe that spelling out the present system in court would help to allay people's concerns and confusion about the system.
Secondly, the provisions in the Bill ensure that there is no automatic release from prison. At present, 94 per cent. of those who go to prison are released automatically, subject only to any additional days awarded for disciplinary offences at the 50 per cent. point of sentence. The provisions in the Bill ensure that early release is earned. There has been concern that the earned early release schemes will be costly and difficult to operate, but they will build on and develop the existing earned privileges scheme which is bedding down very well in the Prison Service.
I say to the noble Lord, Lord Thomas of Gresford, that all the horrors he predicted in terms of the relationship between prison officers and prisoners have not been borne out in practice by the earned privileges scheme. The details of the scheme will be decided in consultation with those who will have to operate it—prison governors. The earned release scheme will provide a positive incentive for good behaviour that does not exist at present. Prison governors will retain the power to award additional days as punishment for disciplinary offences. They will be set against any earned early release days. The system will be more easily understood. For example, a person who is sentenced will be told that he is expected to serve that sentence unless by his own behaviour he earns up to 16 per cent. of earned early release. It is as simple as that.
The arrangements in the Bill will vastly improve the arrangements for post-release supervision. No longer will the length of the supervision period be determined by the point of release, as under the present system. Long term prisoners who receive no parole and are therefore deemed to be the greatest risk to the public are supervised for at most 8 per cent. of sentence under the present system. Under the provisions of the Bill all prisoners who serve sentences of 12 months or more will be supervised for a period equal to 25 per cent. of sentence whenever they are released. This means that high risk offenders who are currently refused parole will be supervised for substantially longer than at present.
In Clause 17 the Bill provides for the extended supervision of sex offenders. It will normally be for 50 per cent. of the sentence or at least for 12 months but it will be extendable to a maximum of 10 years at the discretion of the court. Breach of the conditions of supervision will in future be an arrestable offence. This will enable quick intervention to detain a person who has breached his conditions of supervision and bring him before the court. The court will be able to impose a range of penalties that is not now available. That will include imprisonment for the whole of the outstanding period of supervision. It will also be possible to attach a range of conditions to the release supervising order, in exactly the same way as now when an offender is released on licence. Risk assessments will continue to
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be carried out as part of the process of sentence planning and setting the terms of the release supervision order. We believe that this adds up to a coherent and comprehensive package of proposals that offers real improvements on the present arrangements for early release and post-release supervision. We believe that these proposals are more honest and open than the present system and that they provide better protection for the public from potentially dangerous offenders after they are released.
Since our deliberations on Thursday of last week I have gone back to the Second Reading debates. I have re-read the deliberations of last Thursday. I have had two very constructive meetings with my noble friend Lord Belstead. I have had a rather shorter meeting with my noble friend Lord Carlisle. I have had discussions with my right honourable friend the Home Secretary. My noble friends have made a point that I believe requires further consideration. As a result of the discussions with my noble friends, I should like to take away the particular point that they make: the value of risk assessment by the Parole Board in determining the release of long-term prisoners. I understand their concerns about the absence of this matter from the present proposals which may not provide the best possible protection for the public.
I am not able to give details because I would like to think about it and possibly table amendments at the next stage of the Bill. However, perhaps I may indicate the kinds of things that I am thinking about. In the case of those who are subject to Parole Board risk assessment under the present system, it is possible at the 84 per cent. point of the sentence for short-term prisoners to be released on the basis of good behaviour. But for those who are considered to be long-term prisoners there would be Parole Board involvement in risk assessment and the determination of the supervision conditions. Therefore, the Parole Board would have an influence on the supervision period that followed a sentence.
However, the very important point is that everything that is contained in the proposals of the Government is post-sentence. All of the supervision arrangements are post-sentence. We believe it is wrong for the Parole Board, the Secretary of State or anybody to re-commit anyone to prison or to impose a sentence of any kind without the involvement of the court. For that reason we want to look at ways of retaining court involvement post-sentence for returning people during prolonged periods of supervision. That would address two issues. First, it would address the particular concerns of my noble friends about the risk that is presented to the public post-release and therefore the involvement of the Parole Board in the question of the safety of releasing someone into the community. Secondly, although I want to think about it further, I believe that it would have some impact on the two-monthly review of those who fall into that category in terms of continuous assessment over what may be a longer term sentence. Nevertheless, I hope that both my noble friends agree, given their experience in these matters, that the behaviour of a prisoner in prison must be material to any risk assessment post-release. Therefore, one cannot ignore behaviour in prison.

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I shall look more closely at the particular areas of concern. But I still believe that a more transparent system is one in which a court says to an offender, "This is your sentence. On your behaviour your release will depend. On your possible risk to the public your release will depend". That will depend on the work that is done between this stage and the next stage of the Bill. This Bill exists precisely because of the interests of the public. The noble Lord, Lord McIntosh, said that in a moment he wanted to invite the Committee to consider the interests of society. I believe that the interests of society are reflected by the Government. The rationale for this Bill is the interests of society. The sentencing system appears confusing to the public, especially when the length of sentence is announced in court and they see prisoners coming out of prison as early as halfway through their sentences. The public simply do not understand that. We believe that the interests of the public will be better served by a more honest and transparent system in which the sentence served matches more closely the sentence that is imposed and release will be effected only on the basis of good behaviour. I hope that I shall be able to meet the concerns of my noble friends Lord Belstead and Lord Carlisle that others will be released on the basis of risk assessment, followed by effective periods of supervision, with strong and carefully thought out conditions which will influence their behaviour post-release and mechanisms to return them to custody or impose a range of sentences that can be administered by the courts.
4.15 p.m.
Lord Campbell of Alloway: Before my noble friend sits down, I should like to put a short question. If one assumes that Clause 7 does not stand part, does she agree that that will not have any real effect on Part II? Clause 7 is purely declaratory, is it not?
Baroness Blatch: Clause 7 is an introduction to the measures that follow. It is the declared intention of those who propose that Clause 7 does not stand part of the Bill that the measures which follow shall be very different from those that are proposed by the Government in the Bill and those that they may want to modify in the light of the concerns of my noble friends Lord Carlisle and Lord Belstead. If the introduction goes, as sure as night follows day those who vote for the Motion, if successful, will vote for the next group of amendments which will completely wreck the Government's proposals in the Bill.
Lord Campbell of Alloway: I accept what my noble friend has said on the substance of the amendments. However, does she agree that if one construes Clause 7 its removal from the Bill will not affect the substantive clauses?
Baroness Blatch: Part II of the Bill would not work without Clause 7. That was certainly the point that was raised by my noble friend Lord Elton. Clause 7 needs to be in the Bill in some form, whether or not it is the
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intention of noble Lords to produce another declaratory statement which introduces other provisions that they plan to substitute for the Government's proposals.
Lord Carlisle of Bucklow: It has been said by several Members of the Committee that of course Clause 7 is largely a declaratory clause. I made it clear that my purpose was to try to seek an explanation as to the reason for the changes that were being made and to express my concerns that, on balance, they were steps in the wrong direction. I am bound to say to my noble friend the Minister that, with the greatest respect, I still do not believe that we have really been given an answer as to why it is necessary to change the present system at all. I remain of the view that "if it ain't broke, don't mend it" applies to this part of the Bill.
The Minister said that we had had a short meeting. I hope that by use of the word "short" as related to the meeting she had with my noble friend Lord Belstead she was not implying that it was in any way acrimonious. It was short because we only had about five minutes when the Minister was able to speak to me and she started to put to me during that time certain proposals which she is prepared to look at again on this part of the Bill. I hope that I have that right.
I repeat that I have three major concerns. I am not against the idea that there should be clarity in what is said by the court. Indeed, our report recommended that the court should spell out what is the effect of a sentence when it passes it. My concerns are whether what is proposed will lead to an undue increase in the prison population, which my noble friend says she does not intend; whether it will lead to people being released without risk assessment for whom risk assessment should be made; and whether the system of early release is workable.
As I understand what my noble friend said—I would be grateful to have confirmation, even by silence—she is prepared to look again at the question of the terms on which people are released and she is prepared to look, as we did, at the division between short-term and longer-term prisoners and say that those who are over a certain stage of imprisonment—and I suggest that in this case it will have to be less than the present four years—should be reviewed by the Parole Board as at present and released under supervision to society for the greatest protection of society. I understand that that is one of the matters the Minister has said she will consider.
I understood the Minister also to say that she accepted and would look at possible concern over the mechanism of early release.
Although I am unhappy at the way it is achieved, the Minister also reiterated her view that it is not the intention of the Government that greater periods in prison should be spent than are being spent at the moment. If I am right in those three understandings, then, since I do not wish to be seen to be wrecking this part of the Bill and since a declarative statement and declarations of views have been expressed and the clause or that which follows will, I understand, probably have to be re-written to meet some of the matters to which my noble friend the Minister referred, I am

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willing to withdraw my objection at this stage and to consider what my noble friend proposes before Report. However, I would ask her to confirm that those are the sort of matters which at least in general terms can be discussed.
Baroness Blatch: Perhaps I may touch on the three points my noble friend raised. First, I can tell him that we have made no secret that there will be a small increase in the prison population as a result of honesty in sentencing. We have accepted that some people will spend more time in prison; indeed, it is an answer to one of the points made by the noble Lord, Lord McIntosh, for those shorter-term prisoners would be supervised for less time and would in fact be in custody for a longer time. There is a balance because they would spend slightly longer in prison. The extent of the increase has been fully taken into account in the assessment and is part of the financial memorandum for providing the additional prison places.
It is true that I want to address the other concern my noble friend invited me to consider—the involvement of the Parole Board in risk assessment for the release of long-term prisoners and the Parole Board's involvement in setting conditions. I give him an absolute assurance that I would wish to do that. I have to add the caveat that we do not intend to contemplate earlier release than that provided for in the Bill. In other words, it would be the 84 per cent. point, that point when the maximum amount of remission could be gained from good behaviour. For short-term prisoners it would be on the basis of good behaviour. For the longer-term prisoners it would be subject to assessment of risk to the public, which is the lacuna which has been identified by my noble friends. My noble friend asked whether people would spend longer in prison. I have just answered that question in relation to the prison places. We believe there will be some marginally longer periods of time spent in prison as a result of honesty in sentencing because we are doing away with the much earlier release at the 50 per cent. and the two-thirds points.
Lord Carlisle of Bucklow: Perhaps I may ask my noble friend one matter. Do I understand from the second question she answered that she is prepared at least to listen to representations over the viability of the method of deciding on earlier release? I believe it requires investigation.
Baroness Blatch: Again, I can give my noble friend the assurance that I will discuss the matters with him and start to flesh out in more detail the proposals that we have in mind to address the concerns of my noble friends on this matter.
Lord Carlisle of Bucklow: I am grateful to my noble friend the Minister. In those circumstances, I do not believe there would be any advantage, on a declaratory clause of this nature, in testing the opinion of the Committee, because the opinion of the Committee is clearly a desire to see a method of release which achieves the punishment of the individual and the greatest protection to society. In those circumstances,
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I beg leave to withdraw my Motion at this time, but I shall come back to it if necessary at Report stage when I have seen my noble friend's proposals.
Clause 7 agreed to.
4.30 p.m.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 33:
After Clause 7, insert the following new clause—
HONESTY IN SENTENCING
(". Where a court sentences an offender to imprisonment for a term, it, shall state in open court—

(a) the minimum and maximum periods which the offender will spend in custody, taking into account the duties and powers of the Secretary of State under Part II of the Criminal Justice Act 1991;

(b) the maximum and minimum periods during which the offender will be under the supervision of a probation officer after release; and

(c) the maximum and minimum periods during which the offender will be liable after release to be returned to prison under section 40 of the Criminal Justice Act 1991.").

The noble Lord said: In rising to move Amendment No. 33, I speak to Amendments Nos. 40, 48 and 50 in Clause 10, and to Amendment No. 51, which is a new clause to be inserted after Clause 10.
The noble Lord, Lord Carlisle, is entirely within his rights not to pursue his opposition on the Motion that Clause 7 should stand part of the Bill. I listened very carefully to what the Minister said and I listened very carefully to what the noble Lord said. I rather think that he is reading more into the Minister's undertakings than is justified, but we need not pursue that matter because that will be resolved by the time we come to Report stage.
If the three undertakings which the noble Lord, Lord Carlisle was seeking were indeed to be reflected in government amendments or government agreement to other amendments at Report stage, the result would be, at least for Chapter I of Part II, a very different Bill from that which is before the Committee, and an even more different Bill from that which was presaged by the Home Secretary in his Blackpool speech to the Conservative Party Conference in 1995. The essence of what he was saying to the party faithful was that a sentence of four years means a sentence of four years in custody, or a sentence of two years, or whatever the case may be. If the parole board is to be brought back into the equation and if there is going to be effective reflection of the risk to the community in release, then we are moving a long way back to the parole board system. It leads us to ask the question whether there is any sense whatever in pursuing Chapter I of Part II of the Bill at all, or whether, as was said by the noble Lord, Lord Thomas of Gresford, it has been a public relations exercise.
Therefore, it is entirely appropriate that we should move on to Amendment No. 33, which seeks to set out for the benefit of public understanding exactly what is meant and what should be meant by honesty in sentencing. The principle on which we are working, and with which the Government appear to agree, is not that

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either on balance or in many particular cases there should be any difference in the amount of time which prisoners spend in custody, because the Minister is now virtually saying that there will be no significant difference and therefore there will be no significant increase in the number of people held in prison. The principle is that it should be stated at the time of sentencing, which is the important time, what the implications of a custodial sentence are.
The Minister in her speech sought to make fun of the complication of the existing system. Her argument was quite amusing but it was not realistic. For example, in her mock-up—perhaps that is the way to describe it—of what the judge might say she included comments on what might happen if the prisoner were already serving the non-custodial part of an existing sentence. Of course, such complications will exist in whatever system we adopt. Perhaps in view of the Minister's undertaking she is not able to agree to my request, but I ask her to play the same game—it was only a game—in relation to what a judge would say not under the existing system but under that proposed in Part II of the Bill. We might find that what is proposed will result in at least as complicated a statement from the Bench as is required under the existing parole system. In any event, it is not all that complicated.
Amendment No. 33 provides that there should be a statement about:
"the minimum and maximum periods which the offender will spend in custody, taking into account the duties and powers of the Secretary of State under Part II of the Criminal Justice Act 1991"—
in other words, Sections 33 to 51 of the 1991 Act, which are repealed under Schedule 6. The amendment also provides that a statement shall be made about:
"the minimum and maximum periods during which the offender will be under the supervision of a probation officer after release".
Is that complicated? Is it so difficult to understand? I do not believe so. It also provides for a statement about:
"the maximum and minimum periods during which the offender will be liable after release to be returned to prison under section 40 of the Criminal Justice Act 1991".
All the Minister did was to embroider on that proposal. However, it is clear, it is definite, it preserves the conditions of the 1991 Act, which is what we seek to preserve, and it would be of benefit even if the Minister were to make significant concessions in negotiations with the noble Lords, Lord Belstead and Lord Carlisle. I hasten to say that if it seems appropriate I shall be willing to join in any discussions. That has always been my position; I do not hold myself apart from discussions which might lead to constructive results.
We still have the opportunity offered by the new clause to take the existing situation, with modifications which might be called for by any changes that the Minister might wish to make between now and Report, and say clearly what the provisions on honesty in sentencing should be and answer the only valid point which the Home Secretary addressed in his conference speech—that the public generally should be able to understand what is meant by reality in sentencing.
I hasten to say that honesty in sentencing is not the only issue. There is the whole question of progression in sentencing to which we must return later in Committee and, if necessary, on Report. The two are inextricably linked and I do not believe that in Part I of the Bill, even as amended, the Government have provided for proper progression in sentencing.
Amendment No. 33, and the consequential amendments to Clause 10 and afterwards, are a blow for transparency, a blow for clarity and a blow for greater public understanding of what is meant by sentencing practice. I commend them to the Committee. I beg to move.
Baroness Blatch: I am sorry that the noble Lord thought fit to respond as he did to my reply to my noble friend's concerns about the risk assessment for the release of certain prisoners. Either we are a revising Chamber or we are not. I often face accusations, I believe wrongly, that the Government are immovable and will not consider change. I hope that the Committee will accept that between last Thursday and today I have done a great deal of footwork in discussing some of the anxieties which emerged from the debates and have made some progress. I should like to think that the noble Lord believes that that is the House doing its job and welcomes that.
A key theme of this group of amendments, standing in the name of the noble Lords, Lord McIntosh of Haringey and Lord Williams of Mostyn, is to retain automatic early release. Amendment No. 33 seeks to retain the present system of automatic release at the half-way point or two-thirds point with just a requirement for that to be spelt out in court. Amendments Nos. 40, 48 and 50 seek to introduce automatic release to the new early release provisions set out in the Bill.
As regards Amendment No. 33, we fully endorse the principle of introducing greater clarity and transparency in sentencing. This is the aim of Part II of the Bill and the new arrangements for honesty in sentencing which it introduces. It is also perhaps worth noting that there is nothing to prevent the court when passing sentence from explaining what is the effect of the sentence—either at present or in the future. However, we believe that honesty and transparency are best achieved by ensuring that the sentence served equates more closely to the sentence imposed in court. This is the purpose of the Bill as it stands but is certainly not the result of the new clause before us.
We believe that public confidence in the criminal justice system is undermined when offenders are automatically released from prison after serving as little as half their sentence. I repeat that the noble and learned Lord, Lord Taylor, described the present arrangements as:
"a charade, with everyone engaged in a calculation of how much less than the announced sentence will actually be served".
This is exactly what Part II of the Bill is designed to avoid. In future, everyone—the court, victim and offenders alike—will know what the court's sentence means. The term imposed will match more closely the

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time served; any time off will have to be earned, rather than granted as of right; and the offender will be supervised on release for a sufficient period to allow him to re-integrate into society and to provide adequate protection for the public. That period of supervision will be confirmed at the point of sentence.
All the above are achieved by the Bill as it stands. However, the new clause appears to envisage that the present arrangements would continue to apply, which means that 94 per cent. of those who go to prison would continue to be released automatically after serving just half their sentence. I do not believe that that would restore public confidence in the sentence of the court.
Part II of the Bill constitutes a radical and important overhaul of the current early release arrangements which are set out in the Criminal Justice Act 1991. I know that those arrangements continue to have their champions in this House. However, I believe that our proposals offer real advantages over the present system. Simply explaining the effect of the court's sentence, which is what this clause proposes, would not go nearly far enough to restore public confidence. It would not, in practice, make the effect of the sentence any better understood by either the victim or the public at large. The public at large are not present in court when the sentence is spelt out. I have given an example of what it would sound like to have a sentence spelt out. If the defendant in court understood it, that would be one thing; but I doubt whether the public outside would understand.
It is a straightforward case which does not involve either consecutive or concurrent sentences like the example I gave of the four-year sentence. Is that what the Opposition really mean by that almost garbled explanation which did not take into account the one complexity that I mentioned earlier; namely, where the person concerned had already been serving a sentence? Moreover, it did not deal with consecutive or concurrent sentences with which we are dealing in our proposals.
Is this what the trial judge is supposed to say each and every time he passes sentence? It is easy to see why the noble and learned Lord, Lord Taylor, described the present arrangements as a charade. Amendment No. 33 would simply perpetuate that charade. Our proposals are designed to replace the present arrangements with a far simpler, more straightforward and more honest approach.
Amendment No. 51, combined with Amendments Nos. 40, 48 and 50, seeks to remove the requirement that prisoners should earn any early release, and to substitute automatic awards. The amendments to Clause 10 would provide for automatic release at the maximum level that we are proposing for good behaviour by prisoners for those prisoners serving sentences of two months or more. That is 12 days for every completed two months of sentence. Amendment No. 51 would mean that prisoners serving sentences of two months or less would receive automatically up to three days early release for every completed two weeks of their sentence. Incidentally, as an aside, the noble Lord suggests up to three days, having abolished it being assessed on the basis of behaviour. However, the noble
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Lord did not say how those three days would be determined in each two-week period. For example, will it be one, two or three, and on what basis will the "up to three days" be granted if it is not to he based on behaviour?
The amendments to Clause 10 introduce a further requirement that the court passing sentence informs the prisoner of the number of early release days to which he is entitled. That entitlement could be reduced if the prisoner was subsequently found guilty of a disciplinary offence and the reduction would be allowed to exceed the number of early release days already notionally awarded. There is also a provision permitting prison rules to set a maximum on the number of early release days a prisoner could lose.
The amendments would enshrine the principle of automatic rather than earned early release in the new early release arrangements in the Bill. That would significantly weaken the new arrangements in the Bill for the release of prisoners. It would certainly undermine a central element of the honesty in sentencing proposals which is that there should be no automatic release, irrespective of behaviour, before the end of the term of imprisonment that is imposed by the sentencing court.
The present automatic early release provisions provide no incentive for prisoners to behave well: they merely discourage prisoners from behaving so badly by awarding additional days for disciplinary offences. Automatic early release is neither understood nor supported by the public. That is why the proposals in the Bill provide for prisoners to earn early release. That is why the proposals provide for the earning of early release to be based on continual assessment.
The Bill's provisions provide a powerful incentive for prisoners to behave well throughout their prison sentence. Those that do so will be awarded the maximum early release. In practice this is about one-sixth of sentence length earned at a rate of 12 days for each two-month assessment period. Those that do not behave well will remain in prison to the end of their sentence. The Prison Service has already taken a step in this direction by recently introducing a new scheme under which prisoners must earn their privileges. Earned early release will be in line with one of the recommendations made in the Learmont Report on prison security. In that report General Sir John Learmont says that,
"if every day by which release was brought forward had to be earned … a cornerstone of good behaviour throughout the period of sentence would be laid. This is fundamental to the security of our prisons".
I know that there has been some concern, particularly among prison governors, that prison staff will not be able to cope with the new assessment system. I do not share those fears. It is our intention that this new assessment be integrated into existing prison procedures wherever that is practicable. Prisons have already introduced arrangements for assessing the behaviour and performance level of privileges earned. Prisons are at this moment introducing an improved system for the planning and management of prisoners' sentences, which aims to regularise and unify present assessment

579
arrangements. I would expect the new assessment arrangements to be linked with or form a part of those procedures.
When one thinks of nurses, one realises that they are recording the state of a patient by the hour; indeed, they are doing so in the morning, in the afternoon and in the evening on a 24-hour basis. Moreover, if one takes the case of a teacher, he or she is recording the behaviour of the children on a daily basis. Why should it be any different for people who are managing prisoners? Why should they not be reminded that it is an important feature of management to be recording the behaviour of the prisoners in their care? For those reasons, I cannot recommend this group of amendments to the Committee. I very much hope that Members of the Committee will not follow the noble Lord into the Division Lobby should he decide to press the amendment.
4.45 p.m.
Lord McIntosh of Haringey: It was significant that the Minister went straight back in her response to the claim that I had already dealt with—although perhaps at excessive length when considering the earlier debate—that the existing system represents automatic early release. That is not the case. It is not the case that it is automatic because there is still the provision for additional days to be served under certain circumstances. Moreover, it is not the case, as the Minister implied, that release is unconditional. Early release of any kind under the existing system is a suspension of the custodial part of a sentence rather than the remission of that sentence. It is always accompanied by a specific period of supervision with specific conditions which the person released has to comply with, and is always accompanied by the threat of a return to prison if necessary either when the period of supervision is still in force or, at the end of that, when the prisoner is still at risk. In those circumstances, it is simply a misrepresentation of the facts to return to the catchphrase of "automatic early release" as, I am afraid, the Home Secretary wished it to be understood when he made his statement about, "You don't serve half the time if you have done the whole of the crime". I have probably got the wording wrong, but the implication is still the same.
The second claim that the Minister made in her reply was that somehow by retaining the existing system—with whatever amendments she is prepared to discuss and negotiate, which would in turn mean that this amendment may be amended by any changes that the Government are able or willing to make—we would abolish any consideration for the behaviour of a prisoner while in prison; that could not be further from the truth. Under the Government's present proposals, only behaviour while in prison will affect the length of the custodial sentence and the length of the period to be served in custody. However, as I believe has been made very clear by those sitting behind the Minister, good behaviour in prison is not the only consideration. Indeed, the risk to the public is at least as great a consideration. If there is any advance to be made in
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discussions between now and the Report stage, so much the better. That, in turn, could also be reflected in my amendment.
I simply do not see the analogy with teachers and nurses which the Minister made. Prison officers, like teachers and nurses, are always making assessments: sometimes they make informal assessments, and occasionally even formal assessments, of the prisoners in their charge. There is no doubting that fact. But if such assessments are to be turned into decisions about the time spent in custody, that would be decentralisation of decision making to a degree which the Government have never admitted before and perhaps ought to spell out in a little more detail.
Amendment No. 33 and the consequential amendments provide for the kind of discussions which could be undertaken. If the Minister is serious in the undertakings that she has given, or in the indications that she has given—I think she would probably shrink from calling them undertakings—some version of Part II of the 1991 Criminal Justice Act will survive. It is worth preserving that in the wording of this amendment. Therefore I have no hesitation in commending Amendment No. 33 to the Committee.
4.50 p.m.
On Question, Whether the said amendment (No. 33) shall be agreed to?
Their Lordships divided: Contents, 152; Not-Contents, 164.

Division No.1

CONTENTS

Ackner, L.

Dubs, L.

Acton, L.

Eatwell, L.

Alderdice, L.

Elis-Thomas, L.

Allen of Abbeydale, L.

Ezra, L.

Archer of Sandwell, L.

Falkender, B.

Barnett, L.

Farrington of Ribbleton, B.

Bath, M.

Fisher of Rednal, B.

Beaumont of Whitley, L.

Fitt, L.

Berkeley, L.

Freyberg, L.

Blackstone, B.

Gallacher, L.

Blease, L.

Geraint, L.

Borrie, L.

Gerard, L.

Bridges, L.

Gould of Potternewton, B.

Broadbridge, L.

[Teller.]

Brooks of Tremorfa, L.

Graham of Edmonton, L. [Teller.]

Bruce of Donington, L.

Gregson, L.

Calverley, L.

Grenfell, L.

Carmichael of Kelvingrove, L.

Grey, E.

Carter, L.

Hampton, L.

Chandos, V.

Hamwee, B.

Cledwyn of Penrhos, L.

Hanworth, V.

Clinton-Davis, L.

Harris of Greenwich, L.

Crook, L.

Haskel, L.

Dahrendorf, L.

Hayman, B.

Darcy (de Knayth), B.

Hilton of Eggardon, B.

David, B.

Hoffmann, L.

Dean of Beswick, L.

Hollick, L.

Dean of Thomton-le-Fylde, B.

Hollis of Heigham, B.

Desai, L.

Holme of Cheltenham, L.

Diamond, L.

Hooson, L.

Donaldson of Kingsbridge, L.

Howell, L.

Donoughue, L.

Howie of Troon, L.

Dormand of Easington, L.

Hughes, L.

581

Hylton, L.

Redesdale, L.

Ilchester, E.

Ritchie of Dundee, L.

Jay of Paddington, B.

Robson of Kiddington, B.

Jenkins of Hillhead, L.

Rochester, L.

Jenkins of Putney, L.

Rodgers of Quarry Bank, L.

Judd, L.

Rogers of Riverside, L.

Kennet, L.

Russell, E.

Kilbracken, L.

Sainsbury, L.

Kirkhill, L.

Sefton of Garston, L.

Kirkwood, L.

Serota, B.

Lawrence, L.

Sewel, L.

Lester of Herne Hill, L.

Shepherd, L.

Lincoln, Bp.

simon of Glaisdale, L.

Listowel, E.

Smith of Gilmorehill, B.

Lloyd-George of Dwyfor, E.

Southwark, Bp.

Lockwood, B.

Stallard, L.

Longford, E.

Stoddart of Swindon, L.

Lovell-Davis, L.

Strabolgi, L.

McCarthy, L.

Symons of Vernham Dean, B.

McIntosh of Haringey, L.

Taverne, L.

Mackie of Benshie, L.

Taylor of Blackburn L.

McNair, L.

Taylor of Gosforth, L.

McNally, L.

Taylor of Gryfe, L.

Mallalieu, B.

Tenby, V.

Thomas of Gresford, L.

Mar and Kellie, E.

Thomas of Walliswood, B.

Mason of Barsley, L.

Thomson of Monifieth, L

Molloy, L.

Thurlow, L.

Monckton of Brenchley, V.

Thurso, V.

Monkswell, L.

Tope, L.

Monson, L.

Tordoff, L.

Morris of Castle Morris, L.

Turner of Camden, B.

Murray of Epping Forest, L.

Varley, L.

Nicol, B.

Wallace of Coslany, L.

Ogmore, L.

Walpole, L.

Oliver of Aylmerton, L.

Wedderburn of Charlton, L.

Oxford, Bp.

Wharton, B.

Palmer, L.

White, B.

Paul, L.

Whitty, L.

Perry of Walton, L.

Williams of Crosby, B.

Peston, L.

Williams of Elvel, L.

Prys-Davies, L.

Williams of Mostyn, L.

Ramsay of Cartvale, B.

Winston, L.

Rea, L.

Young of Darlington, L.

NOT-CONTENTS

Addison, V.

Campbell of Alloway, L

Ailsa, M.

Campbell of Croy, L.

Aldington, L.

Carnegy of Lour, B.

Alexander of Tunis, E.

Carnock, L.

Allenby of Megiddo, V.

Chalker of Wallasey, B.

Anelay of St. Johns, B.

Charteris of Amisfield, L.

Annaly, L.

Chelmsford, V.

Archer of Weston-Super-Mare, L.

Chesham, L. [Teller.]

Arran, E.

Clark of Kempston, L.

Ashbourne, L.

Cochrane of Culls, L.

Attlee, E.

Colwyn, L.

Balfour, E.

Cork and Orrery, E.

Banbury of Southam, L.

Courtown, E.

Belhaven and Stenton, L.

Cranborne, V. [Lord Privy Seal.]

Beloff, L.

Crickhowell, L.

Berners, B.

Cuckney, L.

Biddulph, L.

Cullen of Ashbourne, L.

Blaker, L.

Cumberlege, B.

Blatch, B.

Davidson, V.

Boardman, L.

De Freyne, L.

Bowness, L.

De Ramsey, L.

Boyd-Carpenter, L.

Dean of Harptree, L.

Brabazon of Tara, L.

Denbigh, E.

Braine of Wheatley, L.

Denham, L.

Brougham and Vaux, L.

Demon of Wakefield, B.

Bruntisfield, L.

Derwent, L.

Burnham, L.

Eden of Winton, L.

Butterworth, L.

Ellenborough, L.

Byford, B.

Elles, B.

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Elliott of Morpeth, L.

Milverton, L.

Elton, L.

Minto, E.

Erne, E.

Monk Bretton, L.

Feldman, L.

Montgomery of Alamein, V.

Ferrers, E.

Mottistone, L.

Fraser of Carmyllie, L.

Mountevans, L.

Gainford, L.

Mowbray and Stourton, L.

Geddes, L.

Nelson, E.

Gisborough, L.

Newall, L.

Glenarthur, L.

Nickson, L.

Goschen, V.

Norfolk, D.

Gray of Contin, L.

Northesk, E.

Grimston of Westbury, L.

O'Cathain, B.

Haddington, E.

Oxfuird, V.

Hailsham of Saint Marylebone, L.

Peel, E.

Hanson, L.

Perry of Southwark, B.

Harding of Petherton, L.

Peyton of Yeovil, L.

Hardinge of Penshurst, L.

Pike, B.

Harmar-Nicholls, L.

Pilkington of Oxenford, L.

Haslam L

Plummer of St. Marylebone, L.

Hayhoe, L.

Prior, L.

Hemphill, L.

Quinton, L.

Henley, L.

Rankeillour, L.

Holderness, L.

Rawlings, B.

HolmPatrick, L.

Reay, L.

Hood, V.

Rees, L.

Howe, E.

Renfrew of Kaimsthorn, L.

Howe, E.

Inglewood, L.

Renwick, L.

Keyes, L.

Romney, E.

Rotherwick, L.

Kimball, L.

Rowallan, L.

Kinnoull, E

St. Davids, V.

Knollys, V.

Sandford, L.

Lane of Horsell, L.

Seccombe, B.

Lauderdale, E.

Shaw of Northstead, L.

Lindsay, E.

Skelmersdale, L.

Long, V.

Strange, B.

Lucas, L.

Strathclyde, L. [Teller.]

Lyell, L.

Strathcona and Mount Royal, L.

McColl of Dulwich, L.

Sudeley, L.

McConnell, L.

Suffolk and Berkshire, E.

MacFarlane of Bearsden, L.

Terrington, L.

Mackay of Ardbrecknish, L.

Teviot, L.

Mackay of Clashfern, L. [Lord Chancellor.]

Teynham, L.

Thomas of Gwydir, L.

Mackay of Drumadoon, L.

Trefgarne, L.

Macleod of Borve, B.

Trumpington, B.

Malmesbury, E.

Wade of Chorlton, L.

Marlesford, L

Westbury, L.

Marsh, L.

Whitelaw, V.

Merrivale, L.

Wilcox, B.

Mersey, V.

Willoughby de Broke, L.

Middleton, L.

Wise, L.

Miller of Hendon, B.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
5 p.m.
The Deputy Chairman of Committees (Baroness Turner of Camden): I call Amendment No. 34. If Amendment No. 34 is agreed to, I cannot call Amendment No. 35.
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 34:
Page 5, line 27, leave outfrom ("concurrent") to end of line 29.
The noble Earl said: Amendment No. 34 relates to the backdating of sentences after a period of remand. I move the amendment because the Bill introduces the idea of refusing to backdate on the grounds of wasting time. I bring the amendment before the Committee because

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I believe that not to do so would cause injustice and the possibility of unnecessary appeals against that injustice; and because I am interested in reducing friction in prisons and in young offender institutions. That belief is based on having worked in such an institution. I apologise to the Committee for not bringing forward a consequential amendment: the deletion of paragraph (d) of subsection (6).
In the context of deciding how much of the time spent on remand should be credited to the convicted prisoner, the Bill gives the court the power to decide whether the remand credit or "backdater", as it is known in gaol, would be just. That is presumably aimed at offenders who may appear to be slowing up the proceedings in an allegedly unnecessary way. At present, time on remand in England and Wales is automatically credited to the prisoner and, after a lengthy period of remand, may lead to the immediate release, or substantial reduction of time served after conviction.
Time spent on remand as an untried prisoner is probably worse than being on the convicted side. Not only is there a restricted programme for the untried or remand prisoner, leading to boredom, based on the dubious privilege of not having to work, there is also the constant movement of remand prisoners. Their collective anxieties on the remand wing far exceed those on the convicted wings. That is because the outcome of the trial and conviction is already known, is being worked out, or slept through, with a release or lib date on the horizon. The automatic crediting of the remand period is extended to all periods of remand. That contrasts with the Scottish practice where the backdating is decided by the sheriff or High Court judge, often at the prompting of the defence agent. The usual Scottish practice is that when the remand period has been interspersed by a period of bail, only the latter part of the remand forms part of the backdating. There is no requirement to explain the formula used.
As regards the proposed practice for England and Wales, it seems to me that the frequent use of the power in Clause 8(3)(b) could be unjust in a number of ways. First, the fault could lie with dilatory or incompetent lawyers both for the defence and the Crown Prosecution Service. Secondly, the fault could lie with other co-accused and/or their lawyers. Cases with multiple co-accused are notorious for their delays. Thirdly, should a co-accused be on bail, only the accused on remand would be required to serve extra time for time wasting. Fourthly, it might wrongly encourage an accused person to plead guilty and not to opt for trial, which is his right, for fear of being accused of unnecessarily delaying the proceedings. That could also lead to a compound punishment. The accused can already be punished by loss of a discount for a timely plea of guilt.
In its response to the White Paper, the Magistrates' Association states:
"The Association sees great difficulties in assessing how much time on remand is attributable to time wasting, and regards this part of the proposal as unworkable".
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That is a view from the sharp end about a new, controversial, onerous and marginally useful task. It may ultimately lead to appeals against this element of sentence. It certainly poses problems of uniformity between courts and 28,000 lay magistrates on the bench as it is based on subjective criteria.
I conclude with the suggestion that the rigorous application of time limits at each stage of the pre-trial process would be more helpful. I cite the scrupulously observed Scottish 110 day rule as an example of an achievable working practice in this respect. The amendment would prevent injustice and subsequent appeals, and reduce whingeing and complaining in prison. I beg to move.
The Lord Bishop of Southwark: As Bishop of Southwark, I minister through my chaplains to several prisons. One of them, Brixton, which I have visited twice in recent months, endures conditions of great overcrowding. I am told that last week up to 150 prisoners were admitted into the induction wing for people who had never been in prison before. Some had received their sentence but many were on remand. Despite the exemplary work of prison officers and governors, conditions are very bad. Prisoners spend their time banged up for all but two or three hours each day. Even food is eaten while locked up in cells.
Some spend many months in prison on remand, and as more cases become drug related and the complexity of evidence delays the date of trial, periods of remand get longer. Virtually no periods of employment or education are provided for those on remand in prisons such as Brixton. That is not the fault of the prison staff, who suffer from shortage of numbers. Where bail cannot be obtained, prisoners sit and wait.
However, Clause 8 of the Bill allows the court not to count time on remand as part of the sentence if it seems "just in all the circumstances". The White Paper Protecting the Public suggested that courts should leave out of the sentence any period attributable to time wasting spent on remand. I cannot imagine anyone on remand in Brixton Prison choosing to waste time in such conditions. As the noble Earl reminded us, less competent lawyers may delay a case. Nevertheless, the Magistrates' Association regard the Bill as unworkable. I believe that out of a sense of natural justice this part of the clause should be deleted. I support the amendment.
Lord Carlisle of Bucklow: Perhaps I may ask the Minister whether I understand correctly the purpose of this part of the clause. It gives a wide discretion to the judge to decide whether or not time spent on remand should count towards the sentence. If that is so, surely common justice requires that the representations of the individual or his counsel should be heard before that decision is made. Perhaps I have misunderstood the point.
Lord Williams of Mostyn: Perhaps I may assist the noble Lord. He refers to the next amendment, which I shall move.
Earl Russell: There is in this part of the Bill, which my noble friend's amendment seeks to delete, a discrepancy between the words in the Bill and the purpose which we are told by the White Paper those words are intended to serve. The words in the Bill are that the court in all the circumstances may not give a direction if it is in the interests of justice. But we are told that the purpose of the provision is to prevent time-wasting.
I think that we in this Committee know perfectly well that time-wasting is something that the other side does. The notion is inherently subjective. In sentencing a prisoner, we shall be judging whether the prisoner's conduct was time-wasting on an assumption that the prisoner is guilty. That is an assumption which the prisoner may be continuing to contest and which may even in future be tested on appeal. In giving an extra sentence for time-wasting, because we believe the prisoner, being guilty, was prolonging and evading the inevitable, we may be subjecting the prisoner to something that has at least a faint resemblance to double jeopardy.
There have been cases of this sort before. Cases have been tried in this House where it was said that the offender had made his offence worse by defending himself. It is the sort of thinking to which this approach gives a very dangerous opening. While I do not suggest that anything like that is in the mind of the Home Secretary, if we leave a power like this on the books to be used in the time of future Home Secretaries, I do not know where it may lead.
We should also always bear in mind, in extending power to detain people on remand, that the procedure of bail contains within itself an inherent social bias. It is perfectly obvious that it is very much easier for those who are propertied and well-connected to obtain bail than it is for those who are not so. Imprisonment on remand always bites more severely on one part of the population than it does on another.
When I was young I used in my folly to believe that if we thought hard enough we should soon think of an alternative to bail. I am a great deal less confident of that than I was 30 years ago. But, just for that reason, I become rather more wary of powers to extend time spent on remand. Imprisonment is a penalty. I do not want to subject people to a penalty for defending themselves.
5.15 p.m.
The Lord Advocate (Lord Mackay of Drumadoon): In seeking to respond to the amendment, I should perhaps confess an interest, having had throughout my experience of the criminal courts in Scotland a similar, albeit not identical, provision there. Periods spent on remand have always been taken regard of. Sometimes they are allowed in full in backdating the sentence; sometimes the sentence starts from the date when it is imposed. On the basis of my experience both as a defence lawyer and a prosecutor, I have never been conscious of any of the concerns raised by noble Lords in speaking to this amendment.
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The clause as drafted requires the court to direct that the number of days spent by an offender on remand in custody for an offence shall count as time served as part of the sentence. Two exceptions are proposed to this general approach. First, remand time may not be counted if and to the extent that rules governing the counting of remand time towards consecutive or concurrent sentences provide that no such direction shall be made. I shall draw attention to those rules in a little more detail in a moment. Secondly, it is provided that remand time shall not be counted if the court's view is that it is just not to do so in all the circumstances.
It is important to bear in mind the precise terminology of subsection (4)(b) of Clause 8:
"it is in the opinion of the court just in all the circumstances not to give a direction under that subsection".
That means just not simply to the offender (the defendant) but just to the wider public. The court is required to have regard to both those matters in addressing the issue of whether or not it is just in all the circumstances.
We believe that such a discretion is fundamental to the justice and good administration of the new provisions set out in Clause 8 for more honest sentence calculation by the courts. Clause 8 simplifies the existing law governing the calculation of remand time against sentence. But there is the potential for anomalies in sentence calculation to arise whatever system is adopted. It is impossible for the clause to cater for all the possible permutations that may arise when sentence calculations having regard to periods of remand are carried out. It is impossible for the calculations to anticipate all the specific factors that may be of relevance in particular cases. It is for that reason that this discretion is set out on the face of the Bill.
The clause as drafted reflects the fact that it will be the exception rather than the rule where the court does not give full credit for remand time against sentence. A discretionary power is, however, necessary to allow the court to take account, as it considers appropriate, of all the circumstances where the outcome of counting total remand time towards sentence is patently unjust or anomalous.
Perhaps one or two examples may illustrate the point I seek to make. Let us take the case of an offender on remand in custody for two offences which are tried on separate occasions for good reason. The defendant might be given a prison sentence in respect of one of them, against which the remand time would be counted. Some time later he would fall to be dealt with in connection with the other matter whether or not he had been released from any initial period of imprisonment and would be required to be sentenced separately for that separate offence. In those circumstances, clearly the remand time that had already been credited towards the first sentence should not also be counted towards the latter sentence. The courts should have the right to exercise judicial discretion to ensure that the remand time would not be credited twice. Other circumstances in which discretion not to credit the full remand time might come into play would be where an offender was serving a term of imprisonment in default of payment of a fine at the same time as being on remand in custody

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for an untried offence. Discretion would be needed if the court's view was that the period of time which he had served in respect of the fine default should not be credited towards his sentence in respect of the offence for which he was simultaneously remanded in custody.
A further example of the need for discretion, highlighted in the White Paper, arises in the question of time-wasting. Experience in Scotland has shown that it is perfectly possible not only for professional judges but for lay justices to work out when an accused person, as opposed to his solicitor or counsel, falls to be blamed for any delay which may have arisen. As I said at the outset, I am not conscious of any of the prejudice remarked upon by noble Lords who spoke in support of the amendment.
It is important to bear in mind that two safeguards will ensure that such discretion does not result in injustice. First, where the court decides not to credit the full remand time, Clause 8 requires the judge or magistrate to state reasons for not doing so in open court. Secondly, an offender will have a right of appeal against the overall length of his sentence. That should help to ensure judicial consistency. It is clearly an area where in the fullness of time the Appeal Court could exercise its power to issue guidelines if that proved necessary to put these provisions into practice.
I have already mentioned the rule-making power set out in Clause 8(4)(a) of the Bill. Many Members of the Committee will have seen the report of the Select Committee on the Scrutiny of Delegated Powers which invites the House to consider whether Clause 8 should either be amended to ensure that the Secretary of State consults on the draft rules or that there should be a formal ministerial undertaking that such consultation will be conducted.
I am happy to be in a position to give such an undertaking. I fully appreciate the significance of these rules which, as the Committee pointed out, can affect the liberty of the defendant. These rules are necessary because the crediting of remand time towards consecutive and concurrent sentences can be a complex and technical matter and the courts will need to know what principles to follow in making the calculations.
In view of the complexity and importance of the issues which arise from putting these provisions on the face of the Bill, the Government fully accept the need for consultation on the detailed contents of the rules prior to their being laid before Parliament. I remind Members of the Committee that the rules will be subject to affirmative resolution.
I hope that, on the basis of that explanation and the undertaking given in connection with the rules, it will prove possible for the noble Earl, Lord Mar and Kellie, not to press his amendment.
Earl Russell: Perhaps I may ask the noble and learned Lord the Lord Advocate one question before he leaves this matter. It was with great pleasure that I heard a Minister of the Crown defend the exercise of judicial discretion. The argument was powerful and persuasive. However, suppose all the judges should decide that days
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on remand should not count towards sentence; or suppose one judge should always take that decision. Would the Home Secretary accuse such a judge of flying in the face of the will of Parliament?
Lord Mackay of Drumadoon: I am not sure that it is helpful to anticipate what the Home Secretary would do in the extreme hypothetical situations on which the noble Earl focuses. I detect in his question a certain chiding of the Government for relying on the existence of judicial discretion to ensure that justice is done. Perhaps I may say to the noble Earl, with the greatest respect, that that chiding may have issued because he overestimates the extent to which the Bill interferes with judicial discretion. To elaborate on that might take us back to the discussions of last week. As we have many other amendments to address, I decline to become too involved at this stage.
The Earl of Mar and Kellie: There is a certain irony in someone from these Benches rooted in the Scottish criminal justice system being answered by someone else who is also so rooted. However, that is one of the merits of an international assembly such as this Committee.
I was keen to put forward this amendment because it addresses a matter introduced into a system of automatic backdating, unlike the Scottish system which is not automatic but discretionary. Prisoners do not like it when a change occurs. I am always concerned about keeping the atmosphere in prison fairly light; I am also concerned that we keep the roof on the prison. I know that an upset prisoner requires a lot of assistance from the staff and that an angry prisoner is not only a pain in the neck but also liable to have a very deleterious effect on the prison.
I was pleased to hear that the use of the provision with regard to time-wasting was expected to be rare. I sincerely hope that that will be the case. It is extremely subjective and therefore how it would stand up to scrutiny on an appeal is obviously a matter of concern.
I am very pleased to hear from the noble and learned Lord the Lord Advocate that the rules will come before this Chamber. Therefore, while thanking the right reverend Prelate the Bishop of Southwark and my noble friend for their support, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 35:
Page 5, line 29, at end insert—
("( ) In forming an opinion under paragraph (b) of subsection (4), a court shall invite and take into account any representations on this matter by the offender or by his legal representative.").
The noble Lord said: This amendment in the names of my noble friend Lord McIntosh of Haringey and myself deals with the practical difficulties which were prefigured by the noble Lord, Lord Carlisle, a moment or two ago and most helpfully developed by the noble and learned Lord the Lord Advocate in his reply to

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the observations of the noble Earl, Lord Mar and Kellie, and the noble Earl, Lord Russell. I listened to them very carefully and found them extremely beneficial.
Clause 8(4)(b) gives the sentencing court—which I take to be a magistrates' court as well as a Crown Court for the purposes of jurisdiction in England and Wales—the discretion to order that time served on remand shall not count against a sentence. That discretion is given to the court if the court takes the view that it is just in all the circumstances not to give a direction.
Rather different language is found in the explanatory memorandum at Part II. There it is stated that Clause 8 gives the court the discretion to allow time spent on remand not to count towards sentence. The words used there are,
"unless, in all the circumstances of the case, it considers it unjust to do so".
That is slightly different.
The reason that I go to the explanatory memorandum, Clause 8, is that the language used there is precisely the terms of the amendment which Members of the Committee rightly carried last Thursday. The noble and learned Lord the Lord Advocate said a moment ago that what we have here is a question which can affect the liberty of the defendant. Agreed. He said that it is a complex and technical matter. Agreed. He said that it is right to maintain the exercise of judicial discretion. Agreed.
The noble and learned Lord the Lord Advocate put all these matters so much better than I could that I simply move this amendment on the basis that, if there are technical matters and if there is judicial discretion, there should be a statutory requirement—which is all this amendment seeks—for the court, before it takes away a defendant's liberty on the basis of not allowing remand time to count, to invite, and to take into account, representations made by the offender or his legal representative.
It is important to bear in mind that, as all practitioners know, 95 per cent. of criminal work takes place in the magistrates' courts. Not every defendant is represented, even in the Crown Court. This is a perfectly sensible, efficient and workable amendment. I would expect that the noble and learned Lord the Lord Advocate would readily recognise the coherence of thinking between what I have said and what he said only a moment or two ago. I beg to move.
Lord Carlisle of Bucklow: Having risen to support the noble Lord, Lord Williams of Mostyn, on this point on the previous amendment, when I got the amendments wrong, perhaps I may say that nothing that he said has dissuaded me of the view that I then held, which is that it would be common justice to accept that anyone in this situation should be represented or have the chance to make representations
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before a decision of this nature is taken. I hope that my noble and learned friend the Lord Advocate will explain that that is the Government's position.
Lord Thomas of Gresford: I strongly support the amendment moved by the noble Lord, Lord Williams of Mostyn. I represented someone who spent seven years on remand, three years in Pentonville and four years in Brixton. I agree with everything that the right reverend Prelate said about incarceration in those institutions. Remand is not an easy option for anybody.
I was interested to discover to what circumstances Clause 8(4)(b) referred. I waited with interest to hear from the noble and learned Lord the Lord Advocate what the Government had in mind. He referred to the double-counting of time spent on remand. I believe that that was quite recently the cause of an unusual and unexpected release of a flood of prisoners from prison. On appeal it was held that to count the remand period twice was not lawful. Accordingly, this is not one of the circumstances which can possibly be in the minds of the Government under Clause 8(4)(b).
The noble and learned Lord referred to the case of someone serving a term of imprisonment for failing to pay a fine concurrently with a period on remand. I cannot see why, when a person has been arrested and held in custody for a serious offence, the fact that he concurrently serves a period of imprisonment for failing to pay a fine should in any way affect the situation.
So one comes to the third heading: time wasting. If a person is to serve a period of imprisonment for the very serious criminal offence of wasting time, the very least that one can expect is that he should have the right to make representations to the court, either personally or through his advocate, to prevent that sentence of imprisonment being imposed—because that is effectively what it is—and to make sure that all the facts are properly disclosed and are before the sentencing judges, be it magistrates or the Crown Court judge.
5.30 p.m.
Earl Russell: I rise to join issue briefly with a few remarks made by Mr. David Maclean on behalf of the Home Office. Speaking in another place on 26th November last (cols. 188–9) he said:
"I do not think it is necessary or wise to provide explicitly for this in statute … To do so in these circumstances might be to imply that in others there is no need to take account of defence misrepresentations".
There seems to be quite a depth of legal misunderstanding behind that remark.
The requirement to hear both sides is a basic requirement of natural justice. I shall not speculate on how far back in English law that goes because it is a great deal further than it is wise to take us tonight. But that requirement is perfectly clear. There is no danger of it disappearing in one place because it is specified in another. The argument for specifying it is lest the statute might appear to be attempting to overrule it.

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I do not for one moment deny that a statute may overrule natural justice or indeed do absolutely anything else that it likes. But, as the Home Office knows perfectly well, statutes which purport to overrule natural justice are rightly construed a great deal more strictly by the courts than any other statutes. They might then avoid a good deal of trouble by accepting the amendments of the noble Lord, Lord Williams of Mostyn.
Lord Mackay of Drumadoon: am grateful to the noble Lord, Lord Williams, for accepting my advocacy at an early stage. I hope that he will continue to accept what I say and depart from his amendment. As I said earlier, there are similar provisions in Scotland which work perfectly well without any requirement in the legislation that before taking account of a period spent in remand, the court has to invite and take into account any representations on this matter by the offender or his legal representative.
Clearly, the Government do not argue with the principles that lie behind the amendment. It is a standard part of the criminal procedure both north and south of the Border that the accused man or the defendant should have the right to make representations about whether it would be just to disallow any time spent in remand counting towards his prison service or the date from which any prison service is to be imposed.
But, quite genuinely, we do not consider it necessary to provide explicitly for that in statute in the form that the amendment proposes. Any representations that the defendant might wish to make either personally or through counsel in respect of receiving the lightest possible sentence can be made during the speech in mitigation prior to sentence being passed. The clause as drafted makes clear that the magistrate or judge must take account of all the circumstances of the case in reaching a decision. That will include any mitigating factors raised by the defence and, following the coming into force of these provisions, will include taking account of factual material as to the period spent in remand, which will no doubt require to be placed before the court, I assume by the prosecutor. Certainly that is the practice in Scotland.
The criminal justice system in England works on the basis that, where a court is minded to make a decision which is to the disadvantage of the defendant, the defence is given the opportunity to address the issue in question. That is as it should be and common practice reflects that underlying principle. If, for whatever reason, a court was minded not to credit the full remand period and no mention is made of remand time in the mitigating speech, I should have thought it implicit that the court would invite the defence to make such representations before reaching a decision. I have to say, again based on my experience, that invariably when a period has been spent on remand and it is competent for the court to take it into
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account, it forms part of the plea in mitigation seeking to gain the maximum advantage for an accused person of such a period in custody.
I recognise that this amendment seeks to place on the face of the Bill principle and practice which are accepted. However, as the Minister said in another place, there is a danger that doing so might imply that in other circumstances a court should not take a similar tack of inviting defence representations. Clearly, we would not wish to give any cause for believing that that is the case.
I should like to remind the Committee of an important safeguard against any potential injustice in that respect. As I have already indicated, the court has to explain in open court why its decision has been reached and the defendant will have a right of appeal. If, for whatever reason, the court had not properly exercised its discretion or had denied a defendant the right to make submissions on this important matter, I have little doubt that the appeal would be successful.
Returning to the point I made at the outset, I hope that on this occasion at least the noble Lord, Lord Williams, will accept that experience from north of the Border suggests that this particular amendment is unnecessary.
Lord Williams of Mostyn: I am most grateful for that careful exposition. Our stance is one of principle. Of course the defendant has the right to be heard but if he is not represented or is inadequately represented, which I believe happens on some occasions even south of the Border, there ought to be a mechanism in place to deal with putting things right. With great regard to what the noble and learned Lord said, I cannot believe that if a man is unjustly treated, the mere existence of a right of appeal is a better mechanism to deal with it than getting the matter right first time. However, the noble and learned Lord the Lord Advocate has made it perfectly plain—I am most obliged to him—that in respect of this particular statutory power it is expected that the opportunity to make representations will be given in every case, whether or not the defendant is represented. On the basis of that specific assurance, we have achieved our object. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 8 shall stand part of the Bill?
The Earl of Balfour: Subsection (4) of this clause reads:
"Subsection (3) above shall not apply if and to the extent that … rules made by the Secretary of State so provide".
I have raised this matter in regard to previous legislation that has passed through this Chamber. I was under the impression that regulations are made by the Secretary of State but that rules are usually made by a court. I do not say that I necessarily have any right to expect an answer now but between now and Report,

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would my noble and noble and learned friends on the Front Bench consider whether they are using the right words there? I feel that it should read:
"regulations made by the Secretary of State and rules made by a court".
Lord Mackay of Drumadoon: I am happy to take the advice of parliamentary counsel as to whether the clause as presently framed is in the correct terms. We shall report further on that at Report stage.
Clause 8 agreed to.
Clause 9 agreed to.
Lord Belstead Lord Belstead moved Amendment No. 36:
After Clause 9, insert the following new clause—
RELEASE ON LICENCE OF LONG-TERM PRISONERS
(".—(1) After a long-term prisoner has served three-quarters of his sentence, the Secretary of State shall, if recommended to do so by the Parole Board, release him on licence.
(2) Where a long-term prisoner is released on licence, the licence shall, subject to any revocation under section 28 below, remain in force until the date on which he would (but for his release) have completed his sentence.
(3) In this section, a "long-term prisoner" means a person serving a sentence of imprisonment for a term of four years or more.").
The noble Lord said: The reason for tabling this amendment and the amendments grouped with it is that the new remission scheme for prisoners, set out in Clause 10 and subsequent clauses, looks certain to put the general public at greater risk than it is at present of prisoners committing further crimes when they are released early. In making that assertion, I do not imply that I did not listen carefully to what the Minister said earlier in this afternoon's proceedings. I realise that this is perhaps an issue on which we are not seeing entirely eye-to-eye.
My reason for making this assertion is simply that Clause 10 will award early release days at a maximum rate of 12 days every two months on a test simply and solely of good behaviour—or behaviour of the "prescribed minimum standard" as the Bill rather dryly puts it. That is not risk assessment.
I ask the Committee to contemplate for a moment the situation of a robber or the attacker of a defenceless pedestrian being released early from prison under the Bill to live near one's home, having had no proper risk assessment as to whether or not he is still a danger to the public. I would guess that most people would not be happy about that situation. It takes little imagination to realise that many prisoners have little difficulty in behaving well in prison, but do not necessarily experience a change of attitude or of criminal intent and in some cases can remain as much a danger to the public as on the day that they were sentenced.
It is exactly that problem which, for the past quarter of a century, the parole system has tried to tackle by weighing up the risk of releasing a prisoner early. As a result, reconvictions for parolees are lower by some half to two-thirds than the reconviction rate for non-parolees. I was heartened therefore to hear my noble friend Lady Blatch, in relation to the first amendment this afternoon, indicate that the Government recognise the danger to
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the public of the early release of, at any rate, long-term prisoners without risk assessment and that the Government will now accept risk assessment for more serious offenders. I assume of course that the release will be based on risk assessment reports.
Nonetheless, I tabled Amendment No. 35 in order to record factors which I expect my noble friend the Minister to take into account in any discussions following today's debate. I have therefore adhered to the new clause, which has the effect of retaining the opportunity for prisoners serving sentences of four years or more—in other words, long-term prisoners—to have a single parole review at the three-quarter point in their sentence. If at that point the long-term prisoner is granted parole, he or she will be supervised for the remaining 25 per cent. of their sentence, which is exactly the time stipulated in the Bill for supervision.
As the Committee will already have perceived, the new clause is limited. It is simply a method of inserting into the new remission scheme one opportunity for long-term prisoners to have a single parole review. However, though the amendment is limited, the new clause will do a great deal to put right three major problems inherent in the remission scheme.
First, it will provide a full-scale risk assessment for long-term prisoners and will not just tip those more serious, fixed-term prisoners out into the community on grounds of good behaviour. That is absolutely in line with the directions the Home Secretary gives to the Parole Board at the present time. They make clear that, in considering early release, "primacy—the Home Secretary's word—must always be given to the safety of the public.
The second advantage, which is a spin-off of the amendment, is that at the parole review it would be possible to decide what conditions should be placed on a long-term prisoner's supervision period which will either follow immediately if parole is granted, or after sentence if parole is refused. The aim of extra conditions is to reduce recidivism by obliging an offender to tackle problems which contributed to his or her criminality; for example, drugs, alcohol and anger. But setting the right licence conditions is only possible if the supervising probation officer—the probation officer who will supervise when the offender comes to that part of the country to live—contributes to and sees the reports on which early release is to be based. As the Bill stands, it does not seem that probation officers will be required to undertake the wide-ranging risk assessment which they currently provide for a parole review nor, significantly, to impose licence conditions based on that assessment and specifically aimed at reducing risks. Those are serious omissions which would be put right by my amendment.
Thirdly—more briefly, but just as importantly—the new clause would make it much more possible to recall a long-term prisoner than under Clause 14, which requires court proceedings to be started if recall is to take place. I realise from what my noble friend said

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earlier that this is an area where the Government feel that the Bill has got it right. Perhaps I can say briefly therefore that the effect of Amendments Nos. 68 to 71 and 73 to 79 is that if a prisoner starts to go off the rails; if he ignores licence conditions relating to victim protection or psychiatric oversight; if he leaves a rehabilitation centre or abandons offence-focused work; if for any reason a prisoner under supervision looks as though he or she is about to re-offend, there can be recall before and not after another crime is committed. As the noble and learned Lord, Lord Ackner, indicated earlier this afternoon, that is an essential safeguard now for public protection.
The amendments do not jeopardise the Bill. They tackle the three issues to which I have just referred in Clauses 10 to 14, which will jeopardise public safety if amendments are not made. I am heartened that my noble friend Lady Blatch recognised that danger, particularly in relation to the release of long-term prisoners who, as the Bill is drafted, would be released without a real risk assessment. I hope that the additional points I have made in speaking now to these amendments can be taken into account in the discussions which the Minister kindly offered following this Committee stage. I beg to move.
5.45 p.m.
Lord Pilkington of Oxenford: I served on the Parole Board for six years and, like my noble friend Lord Belstead, I am delighted that the Minister is showing some sympathy with the thinking behind this amendment. The participation of the Parole Board would be of particular importance for those offenders—there will be many of them—who are released for good behaviour six, seven or eight months before the completion of their sentences.
Prison officers on their own are not the best fitted to be the judges of risk or to set the conditions of licence. While on the board I had considerable experience of the reports from prison officers. Many were not good. They were often bland and vague. It is not surprising that, in conditions of open reporting in prisons, reports were not as direct as one would have liked.
More than that, I should like to underline something of the nature of the Parole Board that makes it the best judge of risk and of conditions of licence. First, it is independent. Secondly, the Parole Board consists of a wide range of expertise: judges, psychiatrists, probation officers and independent members drawn from a wide range of professions.
I add another fact. Since the last Criminal Justice Act it has been the practice of the Parole Board to require one of its members—not one who considered whether or not to grant parole—to conduct a lengthy interview with the offender at the prison. The interview would last anything from between 40 minutes to one hour. When I sat on the board I found that the reports of those interviews—often covering four or five pages—were of inestimable value; they were of much more value than the rather limited reports of prison officers. Inevitably, hard pressed, overworked prison officers, living and working within the prison, are much influenced by the
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exigencies of the prison service. This element of independence and detachment is very important if the interests of the general public are to be guarded. As I have said before, under the Bill, an offender serving four years would receive as much as seven or eight months' remission for good behaviour before the end of his sentence. Therefore, in her discussions with my noble friend Lord Belstead I would urge the Minister to take note of these points.
Viscount Colville of Culross: I certainly did not come to the House this afternoon with the intention of making a Second Reading speech, and I shall try very hard to avoid doing so. However, I have looked at Chapter I of Part II of the Bill as it was printed and as it has come before the Committee. I do not think it is a financial interest that I have to declare but I was the predecessor of the noble Lord, Lord Belstead, as chairman of the Parole Board and a very good and happy colleague of the noble Lord, Lord Pilkington. The Committee will appreciate that since then I have spent most of my time trying to administer justice in the Crown Court in the same way as some noble Lords may do, although perhaps not many of them, on a regular basis.
We have all got used to the 1991 legislation. Indeed, I was part of the arrangement whereby Sections 33 to 51, now to be swept away by Schedule 6, were put onto the statute book. I am very concerned about the risk assessment element which has been mentioned during the course of the debates today. The noble Baroness, Lady Blatch, said that that will be looked at again. Therefore, nothing I can say will do anything other than, I hope, point consideration in certain directions. However, when one is passing sentence in the Crown Court—I hope that this is a wholly non-political matter—one has to consider the assessment of risk and the way in which that will be dealt with at the end of any sentence one may pass.
I am not sure whether noble Lords have previously considered the aspect of the 1991 Act which deals with longer than normal sentences. Longer than normal sentences can be passed—not of course exceeding the maximum that is laid down by statute but exceeding what might otherwise be the amount that the Court of Appeal has advised us to pass in such cases—when one is dealing with a violent or sexual offence. I should like to illustrate what I am saying by referring to arson. Under Section 1(2) of the Criminal Damage Act arson carries a life sentence, and rightly so because it is a very worrying offence. It is not included as part of the arrangement in Part I of the Bill whereby people will automatically have certain offences registered against them and at the end of the day they will receive a life sentence. Arson is not among those. But arson is one of the most difficult and complicated issues with which we have to deal when it comes to sentencing. Indeed, the Court of Appeal has said—I am certain, from every background I have, with great justification—that one always ought to have some medical evidence before one deals with it.

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The case of an arsonist, if one is going to give him an ordinary sentence, a longer than normal sentence or anything else other than a life sentence, will involve a risk assessment. If it is a life sentence, under the Bill there will be a risk assessment, because that is still left in the hands of the noble Lord, Lord Belstead, and his colleagues on the Parole Board. However, it is anything else, there will be no risk assessment.
I looked at one of the cases we have in the encyclopedia. It took place in 1988. It involved an arsonist. He lived in a ground-floor flat of a block of dwellings. He piled his furniture together, set light to it and then went. When he was arrested he said that he was fed up with life, that he had forgotten about those living upstairs and he claimed not to realise that they were at risk. He had 18 previous convictions, including two for arson and eight for criminal damage. He was put on probation with a condition requiring him to reside and undergo treatment at a clinic forming part of a mental hospital. Within a few months he left the clinic and was brought before the court for failing to comply with the requirements of the probation order. He was then sentenced to five years' imprisonment. That was before the 1991 Act came in allowing longer than normal sentences. There were medical reports—he was of low intelligence, he was subject to schizophrenic episodes and personality disorder, he lacked insight and was likely to set further fires in future. But he was unsuitable for a normal mental hospital and had been refused admission to a special hospital.
At the end of the five years one would have thought that it would be necessary for there to be a risk assessment. Under that legislation, and under the legislation as it now exists, that risk assessment is undertaken by the Parole Board. People who sentence in the Crown Court do not pass sentences of four years or more in order to make people subject to assessment by the Parole Board. It would be wholly wrong and it would be set aside on appeal if we did. But we are aware, because we are trained, that if we sentence people to more than four years there will be an assessment by the Parole Board before they are released as a matter of risk assessment and other conditions such as have already been mentioned by the noble Lords, Lord Belstead and Lord Pilkington. That is to go; or is it?
The noble Baroness, Lady Blatch, suggested that we might think again about this. I have talked to colleagues in my court about the kind of case I have described as it would stand under the Bill. Clause 22 is the continuity of sentencing exercise. If the Bill is left as it stands we shall have longer than normal sentences in the kind of case I have described of someone who is obviously a serious potential risk when released. We are supposed to pass what is approximately the same time in prison as that person would otherwise have served under the old regime. We are also aware that there will no longer be any process for risk assessment before that person is let out. I do not see how any court can pass a sentence which is approximately the same. There is no mechanism whereby you can test whether at the end of the time you pass as a sentence that person is fit to go out except by taking the views of the wing officer in the
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prison. I am very much afraid that the Bill as it stands at the moment on this issue will force judges to pass longer sentences than would otherwise be the case.
I dare say that we shall all be trained and told what to do about it. At the moment, because we know that we are dealing with somebody who certainly will not receive a life sentence, which would be totally unjust, that person will be released and be confronted by the public again, having had no risk assessment whatever. The only way in which we can protect the public—that is one of the things which, as I understand it, judges are supposed to do as well as being fair in every possibly way to the offender, the victim and anybody else concerned—is to increase the length of sentence. I do not believe that that is what the Government are trying to achieve in this part of the Bill. If the noble Baroness intends to look at this matter again, I hope that she will use that to illustrate why this particular provision will simply not work satisfactorily and that she will perhaps consider it as part of a revision of the regime that she is putting forward.
6 p.m.
Lord Hope of Craighead: I do not wish to prolong this debate, but I would like to endorse the observations of the noble Lords, Lord Pilkington and Lord Belstead, about the work of the Parole Board. I have never served on it, but I have observed the Parole Board at work. I went to visit the board in my capacity as Lord Justice General of Scotland and I have also seen reports by the board in connection with tasks that I had to perform. I have also seen and been able to compare its work with the reports provided by prison officers, who no doubt do a very good task under difficult conditions.
I endorse with all the strength I can what has been said about the quality of the work which the Parole Board can perform and the value of the work it can do with the various expertise which its members bring to bear on the difficult problems with which it has to deal. I urge the Minister to think very carefully about abandoning that particular input into the criminal justice system, bearing in mind the aim that we all share which is to protect the public against the risk of re-offending.
Lord Carlisle of Bucklow: The noble Viscount, Lord Colville, has given a very clear example of the way in which this Bill may have the effect of increasing sentences in a manner which the Government say they do not intend. I hope that my noble friend the Minister will bear in mind what the noble Viscount said.
I do not want to repeat the arguments that we had earlier as regards Clause 7 of the Bill. However, I wish briefly to support Amendment No. 36 in the name of my noble friend Lord Belstead. The Minister has implied that we are to look again at what is really the restoration of parole. At the moment the Bill does away with parole other than for life sentences. If we are to look again at risk assessment for long-term prisoners, we would be looking at the return of parole, and that is important for the protection of the public. I hope that the Minister will put forward proposals on this matter

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which will command the general support of this Chamber. In fact, we need something along the lines proposed by my noble friend Lord Belstead. In other words, if sentences are to be two-thirds their present length, we should see whether that person is to be released based on risk. Then we shall have the kind of protection that we have at the moment, with the advantage that the longer period of supervision suggested by the Government in the Bill will cover an equivalent period of supervision if the prisoner was released having completed 50 per cent. of a longer original sentence.
There is one point about which I really wish to ask my noble friend. At the moment subsection (3) of the new clause in the name of my noble friend Lord Belstead, states,
"In this section, a 'long-term prisoner' means a person serving a sentence of imprisonment for a term of four years or more".
As I understand it, that has always been the classic definition of a long-term prisoner used by the Home Office, and that is why the present provisions provide for automatic release up to four years and only with the approval of the Parole Board after four years. If we are to be serious in the intention of reducing by one-third the sentence passed by the court, then technically the sentence line between longer and shorter-term prisoners should be reduced to two years and eight months. That might be unrealistic, but I suggest to my noble friend that if we are to live in a regime where it is the desire and intention of government that the judiciary should pass sentences which are one-third shorter than they are at the moment, it will be necessary to reduce the definition of "long-term prisoner" from four years to three years so that people will be subject to risk assessment at a suitable point in the sentence, as they are at the moment. Unless one does that, one is in fact saying that many people will no longer have risk assessment.
Lord McIntosh of Haringey: I apologise to the noble Lord, Lord Belstead, in that I was detained outside the Chamber for the first part of his opening speech. I want to support the general thrust of this complex group of amendments very much for the reasons suggested by the noble Lord, Lord Carlisle, just now. In effect, the noble Lord, Lord Belstead, is proposing the restoration of the Parole Board, with virtually all of its current responsibilities. We very much support that and hope that the indications given by the Minister in her response to the debate on Clause 7 mean that.
I heard one part of the speech of the noble Lord, Lord Belstead, in which he spoke about recall powers. It occurred to me then to wonder whether I should have grouped my Amendment No. 57 with this group, because that amendment is specifically designed to retain the powers which the Parole Board now has to order the immediate recall from post-release supervision of somebody who has been breaking the conditions. In the debate on Clause 7 the Minister
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referred to the power to go back to court laid down in Clause 14. That is fine as far as it goes, but it is not an immediate recall of the kind—
Baroness Blatch: It is possible for a person to be arrested on the spot for a breach. The most likely way in which that would be done would be on information provided by a probation officer. The person would be held in custody and the opportunity would be sought for a court hearing the following morning in order to confirm whether the person should remain in custody or be released on bail before the breach is properly considered. In relation to an arrestable offence, that person can be taken into custody on the spot for breaching the terms and conditions of the supervision order.
Lord McIntosh of Haringey: I accept what the Minister says. The committing of an arrestable offence is not quite the same as that which the Parole Board is prepared to consider. At the moment the board considers a report from a supervising probation officer. That officer may not feel that the breach of the conditions of the post-release supervision order is sufficiently explicit or serious to justify an arrestable offence which would lead to a new term of imprisonment, which is what Clause 14 provides.
Under the present arrangements, the supervising probation officer reports to the Parole Board, which meets daily for that purpose. As I understand it, it considers recall applications as the first and urgent business of that daily meeting. The Parole Board is then enabled to order a recall to prison immediately, without the court considering the matter or there being any further arrestable offence.
It may be that in extreme cases the Minister is right and that what is proposed in Clause 14 could result in very rapid recall. But that is not the same as recall under the existing sentence, which is what is now provided. When that was debated in another place, Mr. Maclean said that the difference is that the release supervision order under the new arrangements will be in addition to rather than part of the prison term. That seems to me an entirely technical answer that does not deal with the issue of the protection of the public, which I understand to be the basis of the amendments in the name of the noble Lord, Lord Belstead.
It may be that I am not raising this in a definitive way and that it would be better for the Minister to take advice on the matter rather than to respond immediately. But I believe that the issue which I raise in Amendment No. 57 is of great importance and germane to the amendments to which the noble Lord, Lord Belstead, has been speaking.
Having said that about my amendment, I wish to support everything that the noble Lord, Lord Carlisle, said about the importance, in the discussions which are to take place, of restoring the responsibilities of the Parole Board, because that is the only way in which risk to the public will resume its pre-eminence in the consideration of the amount of time that prisoners should spend in custody and what sort of supervision should take place after they have been released.
6.15 p.m.
Lord Ackner: I should like to register my support for the amendment in the name of the noble Lord, Lord Belstead. I shall not express my reasons because they have been covered, and in any event there is no question of a Division on this amendment.
I stress that it is very important that the Parole Board should continue to have the power to recall if it is anticipated with good reason that breach of the conditions may occur. Odd behaviour, acting as a danger signal, should give power to act, as occurs now. One wishes to prevent breaches and future offences, not merely wait until they occur. I too support fully what has been said by the noble Lord, Lord Carlisle, that the period of four years needs to be brought down to at least three years, both in this amendment and the amendments which the noble Lord, Lord McIntosh, had in mind.
Baroness Blatch: My noble friend's amendment seeks to combine for long-term prisoners the current parole arrangements with the earned early release arrangements set out in Part II. I have listened carefully to the debate and in particular I have listened to my noble friend Lord Belstead, whose experience and knowledge of the parole system I hold in great respect.
I understand and share my noble friend's concerns to ensure that any system that we have in place for dealing with the release of prisoners both affords the public proper protection and affords the best opportunity for the prisoner to follow a law-abiding and constructive life on his return to the community. It is for that reason that I made clear in speaking to Clause 7 that, as regards the release arrangements in the Bill, we must see how best to build in the release of the most serious long-term prisoners. I do not believe that the amendments proposed by my noble friend Lord Belstead would be the best way forward. However, I give my noble friend an assurance that I shall make every effort to see that a way will be found to achieve that.
One very evident anomaly arising from the proposed amendments would be that those prisoners who have committed less serious offences and who have received a sentence of less than four years would have to serve at least five-sixths of their sentence, whereas an offender who had committed a more serious offence and had received a longer sentence could serve as little as three-quarters of it. I do not believe that the public would understand or would even accept that. Prisoners would not understand it or accept it, and we do not believe that it is consistent with the aim of honesty in sentencing.
As I understand the effect of the amendment, long-term prisoners would continue to earn early release. A prisoner serving a four-year sentence who did not receive parole would nevertheless be eligible for release before the end of the sentence if he behaved well. In other words, he would be released at exactly the same point as under the provisions of the Bill.
Therefore, the main effect of the amendments would be to release some prisoners earlier than under the provisions in the Bill. None would be held for longer. And if the prisoner were released early on parole, then
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all the work that had been undertaken to assess the prisoner's behaviour under the earned early release scheme would be largely redundant.
Those released earlier on parole would of course be released on licence, such that they could be recalled to prison on the recommendation of the Parole Board to serve the remainder of their sentence. But the licence period would be no longer than the 25 per cent. supervision period provided in the Bill. The range of conditions that could be imposed would be the same. The possibility of return to prison is provided for in the Bill if supervision is breached.
The early release arrangements in the Bill improve upon the present system and protect the public. The proposals in the Bill ensure that all prisoners will serve their full sentence unless they behave well; there will be no automatic release, as there is now for short-term prisoners, and I must remind the Committee that that is the majority of prisoners. About 90 per cent. of people who go to prison serve sentences of less than four years.
The proposals in the Bill ensure also that all prisoners serving sentences of 12 months or more will be subject to a period of supervision equal to 25 per cent. of the sentence; that sex offenders will be supervised for at least 50 per cent. of the sentence and up to 10 years; that a range of conditions can be attached to the supervision period of any prisoner, just as they can now be imposed when an offender is released on licence; and risk assessments will continue to be carried out as appropriate as part of the process of sentencing, planning and setting of post-release conditions.
If an offender breaches conditions, he can be returned to prison. In deciding whether to imprison, the court is required to consider the same issue—the protection of the public—that the Parole Board must consider before recommending the recall of a prisoner. There is no other constraint on the court when considering a return to prison. If the court judges that that is inappropriate, it has a range of other options that are not available under the present system which it can take; namely, probation, community service, curfew orders. As I say, they are not presently available. I believe that in the light of the changes we are now contemplating, we should want to build on those advantages and further improve the scheme.
Perhaps I may pick up on one or two points mentioned by Members of the Committee. My noble friend referred to the role of the probation officer. Under the terms of the amendments and the terms set out in the Bill, there is no way in which this will work without the expertise and influence of the probation officer. That simply is not possible. The views of the probation officer, particularly the through-care workers and those working in the Prison Service, will be extremely material in reports which go either to the Parole Board and/or to people carrying out the assessments of the shorter-term prisoners.
All of the examples of breaches mentioned by my noble friend, unlike the interpretation placed on them by the noble Lord, Lord McIntosh of Haringey, will be arrestable offences. If the Parole Board or others set conditions about behaviour that are material to the

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indexed offence—for example, someone who has been involved in child abuse may be hanging around school gates or someone who gets drunk may frequent the pub every night—and there is evidence that that pattern of behaviour is repeated, it will be possible to regard it as an arrestable offence. All breaches of conditions will be considered to be arrestable offences. It will allow flexibility to deal with breaches from the most minor to the most serious throughout the whole period of supervision. The setting of conditions will be a very important part of that process.
The noble Viscount, Lord Colville of Culross, made some important points. First, I give him the absolute assurance that I will take very seriously all that he has said in deciding what to do at the next stage of the Bill in addressing the concerns that have been expressed. The illustration that he gave involved acts of arson. The other day I met a young man who was just 24 and had already served a life sentence. He had been found guilty of a number of arson offences, during one of which people had died. I was shocked to find that he was still aged only 24 and was back in the community. I had a slight intake of breadth when the noble Viscount said that a person who had 18 previous convictions, two for arson, had been put on probation. I am no judge of the appropriate sentence, but I suggest that that raises eyebrows just a little.
Viscount Colville of Culross: The noble Baroness cannot say that. When one is confronted with a person in this position sometimes there is a point in putting him on probation. I do not know what happened in this case, but it was before the 1991 Act. One could try it out to see whether the person would abide by the conditions of the probation order. He is told that if he does not he will be brought back before the court. This man did not abide by the conditions, was brought back before the court and given five years. I and justices sitting with me have done this in order to see whether there is any way out of what would otherwise be an impossible dilemma. If not, the person is sentenced accordingly. The noble Baroness must not raise her eyebrows. With respect, she does not know the way in which one must deal with these matters in practice.
Baroness Blatch: I believe that I am as free to raise my eyebrows at the circumstances of a particular case as any member of the public. I only know what I am told. I concede that I do not know all of the circumstances. However, this person had 18 previous convictions, two of which were for arson. I simply pose to myself the rhetorical question: had probation been tried before? The point that the noble Viscount makes, which I take seriously, is that when the court considers the sentence the assessment of the risk if the person is released back into the community is a factor in the mind of the judge. That is a matter which will weigh heavily with me in the course of the debates and discussions that I will have between now and the next stage of the Bill in order to address the issue of the protection of the public.
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The noble Viscount went on to describe this offender. There are measures in the Bill, which we will discuss at a later stage, that give the court more flexibility to deal with mentally disordered offenders so that it does not have to chose either prison or hospital. It can impose a hybrid sentence that may be prison with a hospital direction. I believe that that would be a welcome addition to the disposals available to the court.
We want to retain the principle that there should not be automatic release or staged early release but that before someone is released into the community the question of whether it is safe to release him is addressed. My noble friend referred to subsection (3) and long-term prisoners. This was a matter discussed only in passing because we had insufficient time to develop it in earlier discussions. If one is referring to sentencing and the release arrangements for long-term prisoners, clearly one must take a view as to what is a short-term and what is a long-term prisoner. I am entirely seized of that point and I want to include it as part of the package of proposals to be brought back to Committee. It would involve taking a view as to what the sentence should be now and what the comparable sentence would be under the new arrangements.
The noble Viscount also referred to freedom to give longer sentences in certain circumstances. Nothing in this Bill will preclude judges from doing that. I see Clause 22 as being interpreted in the following way. If a judge felt that had he been sentencing under today's proposals he would have given a longer sentence, that would be the starting point for determining the two-thirds of the longer sentence. We do not want to preclude that. The effect of Clause 22 would be very much a continuum not only of normal sentencing but longer than normal sentencing.
I return to a question posed by the noble and learned Lord, Lord Ackner. He referred to waiting for a crime to be committed. In setting out the supervision arrangements we specifically do not intend that someone must commit a crime before he can be dealt with. We intend that breaches can relate to any of the conditions laid down before a person is released. Therefore, it may be a matter of displaying the kind of behaviour that leads to crime. Perhaps someone takes up drinking again or begins to demonstrate threatening behaviour towards a partner similar to that which was involved in his previous crime.
Lord Ackner: It was not a question of waiting for someone to commit a crime but of a breach of the conditions. The point that I sought to make was that a situation might occur well before a breach of the conditions in which the person behaved in a worrying way without breaking the conditions and the psychiatrist, or even the probation officer, said, "This augurs ill. If I do not do something soon there will be a breach of conditions".
Baroness Blatch: I understand the point that the noble and learned Lord has just made. On many occasions in discussions with probation officers, for whom I am responsible, they have spoken of patterns of

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behaviour that give rise to concerns about the kinds of crimes that they may lead to if they remain unchecked. We see that as being related precisely to a condition. It is easy to describe a condition where a breach would be committed if that happened.
Recently I came across a case involving a particularly violent offence against a partner. A different partner went to the police to describe the kind of behaviour that the individual was displaying 'which made her very nervous. When the police cross-referenced with the probation officer, the probation officer immediately realised that this was just the kind of behaviour that had preceded the indexed offence. A return to custody was then initiated through the Parole Board. All of that would be possible under the supervision arrangements in the Bill.
I remind the noble and learned Lord that even under the present arrangements, when one comes to the at-risk period, which is still within the sentence period, it is a very different matter. An offence must be committed. One wants to get away from the necessity for an offence to be committed before people can be dealt with. Pervading the whole of the supervision period should be the belief that behaviour that gives rise to concern must he dealt with by making sure that the conditions are properly spelt out.
In the light of what has been said and my assurance that I will think carefully about these matters, in particular the whole question of safe release into the community, I hope that my noble friend will not press his amendment.
Viscount Colville of Culross: Before the noble Baroness sits down, 1 am wholly in favour of her proposal to discuss this matter with the noble Lords, Lord Belstead, Lord Carlisle and Lord McIntosh. Will she also discuss it with the noble and learned Lord the Lord Chief Justice on behalf of the judiciary? This is completely new and it must be workable by the judges. Before the Bill and the provision go to Report stage in an amended form, it must be discussed with the judiciary to see whether they can handle it. Can the noble Baroness give an assurance as to that?
6.30 p.m.
Baroness Blatch: If I may say so, it is not nearly new. The tension between what we have at the moment and the proposals in the Bill is that before long-term prisoners are released into the community they are released on the basis of a risk assessment into the community with conditions. I am simply looking for ways of taking that form of release into the community at the point when they are eligible for release into the community and working it into—not grafting it on—the system we have at the moment. There is nothing new. The way it is envisaged that the parole board will do its work is exactly the same as it is now, taking its information from the sources it takes its information from now: probation officers, psychiatrists, medical people, the Prison Service and anybody who has any involvement with the prisoner, using exactly that same system. I want to consider doing that. It is nothing new;
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it is simply an adaptation of the release arrangements for the longer-term prisoners as opposed to the shorter-term prisoners.
Lord Shepherd: The noble Viscount made a plea. Surely the noble Baroness would not resist the wish of this Committee that she should consult with the Lord Chief Justice.
Baroness Blatch: I have given assurances throughout the whole of this day that I will discuss this with all the relevant people, including the Lord Chief Justice. The point I was taking at issue was that this is new; it is not new. It is a question of taking the best of the present system and making sure that it does not compromise the intentions of the Home Secretary that there should not be automatic release on the basis of nothing other than it being automatic, and that certainly there should not be an earlier release contemplated other than at the maximum point at which one could be released under the provisions of this Bill.
Lord Belstead: I shall speak briefly because I know that the Committee wishes to proceed. There were three reasons I suggested for this group of amendments. The first lies at the heart of any debate on law and order. Are prisoners, once they are released, going to return to crime or are they not? If I have learnt anything in the last four years working with the Parole Board it is that the chairman requires a little humility in these matters. Nonetheless, the available evidence shows that prisoners on parole are reconvicted at much lower rates than non-parolees, and this is significant protection for the public. However, parole is decided by assessing the risk of earlier release of an individual prisoner into the community and not by a test of good behaviour in prison, as the Bill is worded at the present time.
The second reason for the amendment was that it would be a practical way of enabling, at a parole review, the board to decide what special conditions should be placed on the prisoner's period of supervision. Surely, it is going to be quite considerable at 25 per cent. of the sentence. It still remains totally unclear to me how, for instance, hard-pressed prison officers can possibly decide whether a prisoner needs psychiatric treatment on release or whether a special and probably crucial victim protection condition should be imposed. But these can be life and death decisions which, under the amendment, can be decided professionally and independently at that particular point of sentence.
My understanding of the reply of my noble friend Lady Blatch is that the Government recognise that those two reasons for the amendment are based—these are my own words—on Protecting the Public, using the exact title of the White Paper which preceded the Bill, and that she accepts the case put for those two points and intends to proceed as she described in her most valuable assurance; namely, seeing how we can bring again within the scope of the Bill the parole procedure for long-term prisoners.
Having heard the speeches in support of this amendment from those with very much more expertise than I shall ever have, indeed from noble and learned

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Lords as well as other of your Lordships, and particularly the speech of my predecessor as chairman of the Parole Board, the noble Viscount, Lord Colville of Culross, it is enormously important that we have such an assurance from my noble friend Lady Blatch.
The one point on which my noble friend has not been able to meet the amendment concerns recalls. With the greatest respect to this Government, I believe that the problem is of their own making. The difficulty about the recall situation is that if you push the release date up into the region of 80 per cent., then you are going to find that the period under supervision is being spent entirely after the sentence has been served by the prisoner. That is why the Government do not like the way in which Amendment No. 57 of the noble Lord, Lord McIntosh, is drafted. This is a real impasse. It is going to be very difficult despite what has been said by, for instance, the noble and learned Lord, Lord Ackner, of the enormous importance of trying to see that recalls work so that one recalls somebody before and not after he has committed another offence. It is going to be very difficult to see if that can be achieved. I am by no means sure that it can be done. All I can say this afternoon is that I will continue to keep this in view. I will not harry my noble friend because I owe some thanks to her for showing that even with so much legislation on her shoulders, she is still capable of listening sympathetically. I beg leave to withdraw this amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (Viscount Allenby of Megiddo): Before calling Amendment No. 37, I should inform the Committee that if this amendment is agreed to then I cannot call Amendment No. 38.
Clause 10 [Award of early release days for good behaviour]:
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 37:
Page 6, line 19, leave out ("for a term of more than two months").
The noble Lord said: This amendment is grouped with other amendments. I have addressed the Committee earlier today on the difference between the present system, which depends upon a fixed date of release followed by supervision and conditions, and the proposals that exist in the Bill. However, I make no apologies for returning to this particular topic because, to my mind, it is vital.
My amendments seek to introduce into the framework of the Bill an entitlement to earlier release as opposed to a discretion. The amendments propose that we should have a fixed date subject to additional days for misdemeanours which are proved through a proper procedure. The discretion to which I refer is in the hands of the corporal, the warder on the landing. The Minister in her reply to the Question, That Clause 7 shall stand part, likened the prison warder to the teacher dealing with a pupil or the nurse dealing with a patient, and
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pointed out that the teacher and the nurse are concerned with constant monitoring of his or her charges. That seems to me to be not a very good analogy.
The prison warder is not trained in the same way to make assessments of this kind. He is not a person who has any specific expertise or calling to judge his fellow men. He is there simply to keep people contained and locked up. One can envisage that some form of training would be necessary for him to make the kind of assessment that nurses or teachers may make of the charges under their control. Therefore, if the prescribed person who, as I have already indicated to the committee, is simply defined as the person prescribed in prison rules, and if the prescribed person is either the prison warder or a person advised by the prison warder, how is he to exercise that discretion? What is the difference between a prisoner behaving well and thereby getting early release days awarded to him for reaching or exceeding the prescribed standard of behaviour, and a person who is so misbehaving as to be on a charge in front of the governor? What is the limbo land where a prison warder judges that the prisoner has not reached the prescribed standard of behaviour? What does that mean? Does it mean that he has not made his bed, has not cleaned his shoes, has been rude to the person who has cooked his meals and has not washed up? If so, it sounds like my own home life.
What is the prescribed standard of behaviour which prisoners must achieve in order to obtain early release? If they fall below the prescribed standard and do not get a tick on the assessment, what happens then? Are they told about it? Does someone come along and say, "You have to make your bed every morning, look smarter and dress better"? What kind of regime is envisaged that a prison warden must look at and judge? What temperatures does he have to take? What standards are required? I am trying to point out that between failing to meet a minimum standard and misbehaving there is a completely vague area. It is left to a warder or someone of that level to try to determine, and one can see the problems which will be created.
The Minister referred to the issues that I set out in an earlier address as a set of horrors which will not come about. They are not horrors that I have invented. They were horrors, to use her word, which were set out by the General Secretary of the Prison Governors' Association in his article in the Guardian on 11th February. I want the Minister to address the problems that I earlier outlined and to tell us what the Government intend to do about 60,000 assessments every two months. Where will the records be stored? If the assessments are not recorded, there will be no way of checking that they have been made, what kind of progress has been made and so forth.
How will they deal with the intimidation which might occur on the landing? How will they deal with favouritism, racism and all the problems outlined by the noble and learned Lord the Lord Chief Justice in his forceful speech on Second Reading? Are there to be appeals against assessments or is the matter to be left simply in the hands of the person prescribed without recourse to higher authority? In that case, a person may fall into the limbo-land below the prescribed minimum

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standard of behaviour and have no redress. He will simply be marked down and be moved off the register and, on the Minister's own analogy, will not be able to appeal to the headmaster to put the record straight on his behalf.
It is not enough for the Minister to say, "Well, we already have a system in operation whereby prisoners are assessed for the purposes of giving them privileges". There is all the difference in the world between giving a privilege to a prisoner to work in a certain capacity in a certain part of the prison or a specific privilege of free time within the prison and denying to him his freedom to go out into the world. One cannot equate those two types of assessment and say, "If we can give the prisoner privileges we can also leave it in the hands of the prescribed person to deny him his liberty".
Finally, if there is no fixed date for release towards which a person can work in order to make plans for the future—I will not accept the automatic date of release—what about the supervision plans that are to be made for him, his ability to apply for jobs and the ability of his family to look forward to him returning to be a breadwinner and to play a useful part in society? If the date is not fixed but is variable at the whim of the prescribed person—I say that the Bill permits the prescribed person to make whimsical decisions—the planning for release is that much more difficult for the person, who is suffering enough by being deprived of his liberty during his period of incarceration.
Like the noble Viscount, Lord Colville, I have the problem of sentencing people from time to time. Obviously, people who commit a crime deserve to be punished, but I repeat that the best protection for the public is that those people should come out of prison and lead a decent and honest life. All our planning for their release should be directed to that end. I beg to move.
6.45 p.m.
Lord Carlisle of Bucklow: I strongly support the noble Lord, Lord Thomas. He outlined all the problems which Clause 10 raises and which have not been answered. How will the new system of early release work in practice? I understand that the prescribed person is to be the prison officer on the landing. How is he to decide whether an individual has attained the prescribed minimum standard? What is the prescribed minimum standard? Is it a standard that is laid down? How can the prison warder decide whether he can have regard to the extent to which the prisoner's behaviour during the period has exceeded that standard? What does that mean? I understand from the Minister that it means that the prisoner must have shown active co-operation. However, if you are in an overcrowded local prison and banged up in your cell for 23 hours a day, how in practice, even if your heart is entirely in the right place, do you show co-operation which exceeds the minimum standard that is expected? What does it mean?
Surely what the noble Lord, Lord Thomas, said is right. Let us imagine that in the heat of the summer in
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a fraught, overcrowded prison during the last two months of a sentence one prisoner is granted 12 days' early release in order to attend a particular course but another is granted only six days because it is said he has reached only the minimum standard. I cannot fail to see anything other than tension caused between the prisoners, leading to problems within the prisons. I understand that that is exactly what prison governors have warned the Government about.
I notice that there is to be a right of appeal to another prescribed person. Who is that person to be? Is it to be the governor? How much resource time is to be used? One cannot ignore the points made by the noble Lord, Lord Thomas. For example, if there are 60,000 people in prison, a certain number of them will be serving under two months so they can be ignored. However, you must take into account those on remand because that remand may count towards the period of imprisonment eventually decided upon. Let us say that there are only 40,000 of the 60,000 prisoners who require assessment at the two-month level. How long is assumed for the purpose of working out the resource implications? What is the length of time considered necessary to make an assessment on an individual prisoner? There must be some time involved. If you have 40,000 prisoners being assessed every two months, surely there must be very substantial resource implications.
I do not want to repeat what I said earlier, but perhaps I may remind my noble friend the Minister that this has been tried before. I know that it is a long time ago but when remission or early release first came in, it was based on a marks system. Prisoners were awarded marks for good behaviour. In the earlier part of this century, which perhaps only the noble Earl, Lord Longford, will remember, that system was abandoned because it was found to be inoperable. The authorities moved instead not to automatic release as my noble friend always says but to a situation where, provided he behaved properly, a prisoner was given a target date on which to aim for release. If he failed to behave properly, days were added to that target and he failed to come out on that date.
As I said, the marks system was soon abandoned and we moved to a system where release was accepted, unless the person was involved in behaviour which was not good. I do not see why it is said to be less of an incentive to say to someone, "You will not come out on such a day unless you behave yourself", than it is to say, "You will come out on such a day if you behave yourself". That seems to me to be the difference, in some ways. With the greatest respect to my noble friend the Minister, I must admit that I am not persuaded as to how in practice the new system will work without putting great pressure on the Prison Officers' Association and increasing the tensions in prison.
Lord Burnham: I may seem very stupid but, as I read it, Amendment No. 37 would make no difference to someone who is serving a sentence of more than two months or someone who is serving a sentence of less than two months. I listened with great care to the noble

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Lord and my noble friend and I have heard no word addressing the specific amendment under discussion. Are we perhaps talking to some other amendment?
Lord Carlisle of Bucklow: I should point out that I was talking to the other amendments that are grouped with Amendment No. 37. I share my noble friend's views on Amendment No. 37.
Lord McIntosh of Haringey: Perhaps I may put the noble Lords, Lord Carlisle and Lord Thomas, out of their misery. They were speculating about what kind of behaviour would be classified as reaching the minimum standard or exceeding the minimum standard. Well, Notes on Clauses gives some examples. For the sake of brevity, I shall give examples only of behaviour which might exceed the prescribed minimum standards. Subsection (3) of the notes on Clause 10 refers to,
"participating constructively in sentence planning (if available); effort and productivity in workshops"—
I do not know what proportion of prisoners are in workshops but there must be a substantial number who are not. Therefore, the words "if available" or "if relevant" ought to be added,
"(where appropriate and available) participating constructively in courses on addressing offending behaviour or in educational or vocational training courses".
Finally, we have,
"promoting positive relationships between staff and prisoners".
The examples given by the Government in their Notes on Clauses reinforce the point that noble Lords have made. It is virtually impossible to imagine how one could have consistent, fair, acceptable and accepted standards which could be applied across the range of types of prison and prisoner. Fears expressed by Members of the Committee about the opportunity—indeed, the likelihood—of disruption and disaffection must be very much in the forefront of our minds.
I support what the noble Lord, Lord Carlisle, said about a target release date. I do not know how many Members of the Committee underwent peacetime conscription—that is, peacetime national service—but, when I was a gunner in the Royal Artillery as a conscript, the only thing that kept me going was being able to say:

"Only 121 days to do,

That's a lot less than you,

Get some more in!"

It is terribly important that people should have that protection, that target; and, indeed, that they should know that their behaviour will contribute to whether or not that target is reached. A target date is of enormous psychological importance.
The Lord Bishop of Lincoln: Perhaps I may express my concern regarding the last point made by then noble Lord, Lord McIntosh, about the uncertainty over the ever-changing release dates. How are probation officers and prisoner resettlement organisations expected to make sensible plans for released prisoners as regards hostel places, local authority housing, housing
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association accommodation, job training schemes, and so on, if they cannot tell when the prisoner will be released until such release is imminent? Those difficulties would be avoided or greatly reduced if prisoners were eligible for a fixed amount of early release, unless of course they lost it through the disciplinary system following misbehaviour in prison. That is a very important point.
The Earl of Mar and Kellie: Can the Committee be assured that the minimum prescribed standards in a prison are that you comply with the prison rules and that the test of whether or not you have done so is the fact that you have not appeared before the governor on report?
The Earl of Balfour: I should like to raise one further question about the word "prescribed". Clause 23 says that "prescribed",
"means prescribed by prison rules".
Having read that, I looked up the prison rules within Section 47 of the Prison Act 1942, but I could not find the word "prescribed" anywhere. However, it is possible that I have not read the most recent edition of that section which is mentioned in Clause 23.
Earl Russell: I am sorry to prolong the discussion but I am afraid that we have not exhausted the evils of the proposals contained in the Bill. On Second Reading, the noble and learned Lord, Lord Bingham of Cornhill, said that he believed that the proposals would prove incapable of fair operation and that they would give rise to a flood of appeals. There are many good reasons why that is so. It is a basic principle of English law that any exercise of public authority is subject to the rules of natural justice. That has been the case for a very long time.
Under the present procedure there is a date for release unless a disciplinary offence is committed which justifies its postponement. In dealing with any such offence, there is an orderly procedure. The procedure is laid down, the evidence is presented, the prisoner is given an opportunity to challenge it, reasons are given for the governor's decision and a record of the proceedings is made. That is a fairly precise outline of the basic minimum requirements of natural justice. It will be a great deal harder under the new and more discretionary system.
Perhaps I may take the Minister's analogy of a teacher. The effect of what is happening is very much as if we were to move from a formal examination to a system of continuous assessment. In a system of continuous assessment, the decisions which affect the ultimate class are taken at a very much lower level and on a very much more daily basis. Therefore, the range of situations in which an abuse of power may take place is very much wider. It is sadly true that charges of sexual harassment are very much more part of daily existence in an American University than is the case in a British one. I do not believe that that is because Americans are more libidinous than the British. I believe

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that it is because the power to affect the final grade is more constantly available to an individual professor, or even an individual teaching assistant at quite a low level.
It is this devolution down the scale of the power which worries David Roddan of the Prison Governors Association. He is surely right that the work will have to be pushed down the line, possibly to the level of wing staff. Therefore there will be a big risk of infringing one of the basic requirements of natural justice; namely, that a person should not be judge and party in his own cause.
Let us suppose it is alleged that a person has forfeited some of his early release by being offensive to his warder. The warder, in the end, may be the judge of this matter. If that is not the case, I should be extremely interested to hear the reasons why that is not so because those could be extremely helpful to the Committee. If there are to be these detailed decisions made on daily behaviour, there is surely a risk of them being made by people who are directly affected by the prisoner's conduct. It is not only a flood of appeals that we shall get; it is a flood of judicial reviews as well.
It is my understanding that the Government do not like the growth of judicial review. I can see why; I would not if I were them. But it seems to be the effect of legislation which frees public authority from statutory control that the only remaining controls are the principles of natural justice. That must lead to a growth of judicial review. In my opinion the Government frequently complain of that of which they are themselves the author.
There is also, of course, a problem of favouritism. For me to quote or refer to Sir Ivan Lawrence might be thought to be a case of the devil quoting scripture. But fortunately the rules of order restrain me from quoting him in detail. However, I hope I may be allowed one or two words. He said in another place that there was a real risk of cases in which relations between a prisoner and a warder became over-friendly. The risk of being judge and party in one's own cause is surely obvious.
7 p.m.
Lord Williams of Mostyn: Can the Minister help on one practical matter arising out of the detailed questions that the noble Lord, Lord Thomas, asked? Let us consider the situation of a man who is on remand, who behaves to an acceptable standard—rather better than the noble Lord, Lord Thomas, in his domestic circumstances—and who then serves a sentence of six months. Then let us consider a man who serves a prison sentence of 12 months. Is the good behaviour of the man who has behaved well on remand for six months taken into account as regards the overall period that he will serve? If it is not, it seems to me that he will be treated worse than the man who has served no remand time at all. How is that to be adjusted? Is the sentencing judge intended to aim off, as it were, and reduce the overall sentence?
Lord Harris of Greenwich: I wish to say a few words on this matter. When I had some responsibility for prisons at the Home Office I had the opportunity to visit the state prisons in the State of Georgia at a time
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when Mr. Carter was still governor of the state, shortly before he became President. I had the opportunity of looking at their system of creating an alternative to remission by earning what was described as "good time". On my return I discussed that and other matters with officials in the prison department. Their view was that it would be quite impossible to administer a system of this sort, yet this is precisely what we are discussing today, except that the prison population was then 40,000, whereas now it is 60,000 and still rising.
That is the first problem. I refer to the amount of documentation that will be required in terms of a prison officer having to establish whether an inmate has qualified for being treated in a particular fashion. As my noble friend Lord Thomas of Gresford, has pointed out, there will have to be a record. Presumably that will have to be referred to the appellate authority, whoever that may be. Then, inevitably, there will be a flood of judicial review applications. That is quite inevitable. We should recognise that from the outset.
Last Thursday we had a brief exchange with the noble Baroness, Lady Blatch, during which I believe she referred to tensions in the prison system. There are plenty of tensions but they will be as nothing compared with the tensions which will exist in the prison system if this system is introduced. One can see only too clearly what will happen. Perhaps the noble Baroness, Lady Blatch, will not be a Minister when the problem arises.
However, some unfortunate Home Secretary and junior Minister in the future will be faced with the prospect of serious disturbances in prisons because of the amount of ill will and suspicion that has been engendered as a result of the introduction of this system. Then, no doubt, a judge will be approached and asked whether he will be good enough to investigate the situation in some form of judicial inquiry, as was the noble and learned Lord, Lord Woolf, after the disturbances at Strangeways. We should have no illusions at all about what we are discussing today. We are discussing quite deliberately creating a system which will almost certainly lead to serious new difficulties in our prisons, with the possibility of creating serious disturbances.
Baroness Blatch: These amendments seek to remove the requirement that prisoners should earn early release and to substitute automatic awards. All prisoners, whatever their length of sentence, would be entitled to automatic early release at the maximum rate which can be earned under the Bill for good behaviour; that is, 12 days for every two months served.
We have already discussed the principle of automatic release in considering the amendments moved earlier today by the noble Lord, Lord McIntosh. The abolition of automatic release before the end of the term of imprisonment that is imposed by the sentencing court is a key objective of the honesty in sentencing proposals. The proposals put forward by the noble Lord, Lord Thomas of Gresford, to reintroduce automatic release would seriously weaken the provisions in the Bill and would undermine that key objective.

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The present automatic early release provisions provide no incentive for prisoners to behave well; they merely discourage prisoners from behaving so badly that they are awarded additional days for disciplinary offences. The noble Lord, Lord Harris, will know, with his knowledge of the prison service, that the behaviour has to be pretty serious before days are added to prison sentences. As I say, the level of behaviour that leads to additional days has to be serious. Automatic early release is neither understood, nor supported by the public. That is why we have these proposals in the Bill which provide for prisoners to earn early release. That is why we want the amendments rejected and the government proposals supported.
I know that the noble Lord, Lord Thomas of Gresford, has read the Bill carefully. However, I refer him to Clause 10 (5)(b) where he will find a provision for appeals. I think he said there was no way of appealing. However, there will be a system for appeals. If we were to have no measurement whatsoever for automatic release, why not simply shorten a sentence? It seems to me absurd to have a period of a sentence that will not be served which is not related to behaviour or to anything. To shorten a sentence and to allow the supervision period to start earlier is more honest in terms of what the noble Lord seeks.
The way that the noble Lord, Lord Thomas of Gresford, and others have described the Prison Service is decidedly uncomplimentary to that service. They have implied that those in the service are incapable of distinguishing good behaviour from bad behaviour and that they are incapable of being objective but are subjective. They have implied that people could become "toadies" and staff could get too friendly with prisoners. At the moment there is a system in operation in prisons which is working well and which involves earning privileges. The staff have to make judgments of their prisoners to decide whether the prisoners will receive the privileges or whether they will lose those privileges.
The noble Lord, Lord Thomas of Gresford, and my noble friend Lord Carlisle have overestimated the numbers of assessments. We have worked on the basis of an average of about 50 assessments per establishment per week. I apologise for giving an average figure. As someone who was a corporal about 42 years ago, I consider it rather a class ridden statement for the noble Lord, Lord Thomas, to refer to the warder on the landing as a corporal, speaking from his lofty officer class, as it were. I do not know who would comprise the officer class—perhaps the prisoner governor. I find it surprising in today's world to refer to the warder on the landing as the "corporal". However, I now know my place. Prison officers will receive training. They receive training now. They will be introduced to the assessment systems for early release. They will have clear criteria for assessments. Guidelines and training for staff will be available.
The noble Lord, Lord McIntosh of Haringey, said how difficult it is to tell good behaviour from bad behaviour. He gave some examples, rather disparagingly. Let me give examples of good behaviour:
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people who obey instructions; those who have an absence of violent or threatening behaviour; people who are not bullies; people who do not intimidate others; those who are not aggressive or do not use offensive language; people who co-operate with staff in the performance of their duties; people who do not interfere with others' property (which is probably a euphemism for stealing); people who comply with mandatory drug-testing provisions; and people who do not use drugs or alcohol. The converse of those examples would represent poor behaviour. With training most prison officers would know the difference between aggressively bad behaviour and good behaviour. They would also know the difference when behaviour is passively good—when the situation is ticking over and the person is neither good nor bad but simply wants to while away the time.
I return to the issue of appeals. The person to whom appeals can be taken against decisions on early release will be prescribed in prison rules. The word "prescribed" will not be in the prison rules. The system and the person to whom the appeal will be made will be prescribed in the prison rules. An internal appellate procedure is envisaged. There will be consultation on that. There is no question of appealing to the same person who made the determination in the first place. We envisage two levels of appeal: one with the governing governor and one with the Prison Service headquarters; and prisoners will also be free, as at present, to refer cases to the prison ombudsman. The Inspector of Prisons is keeping a fairly impressive downward pressure on prisons to ensure that systems in place work well and that they are working in the interests of the welfare of the prisoner.
As regards the idea that everyone will rush off to a tribunal, first, no one will act in isolation. The "corporal"—as the noble Lord, Lord Thomas, would have him—on the cells would not be the judge and the jury. The noble Earl, Lord Russell, referred to the one person in isolation acting as judge and jury. That would not be the case. The prison officer looking after the prisoners on the cells, the educators in the education block, the trainers in the training block, those in workshops and the supervisors of gangs working on external projects will all have an input, as indeed they do now; they produce behavioural reports. The probation officer and the voluntary sector working with prisoners in prison are all part of the present system of managing prisoners in prison.
Reference was made by the noble Lord, Lord Thomas, to no fixed release date. The prisoner will know exactly when he will be released—after serving five-sixths of the sentence if he behaves well. If he does not behave well, he knows that he will serve the whole of the sentence. If the prisoner wishes to be released earlier, that will provide the best possible incentive to behave well.
The noble Lord, Lord Thomas, said that prisoners need to know the date so that they can prepare for their release. I agree with that. The noble Lord is quite right. The noble Lord's arrangements create a shorter sentence. But prisoners will know their release date.

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There is no difference between us. Knowing their release date is very much part of the proposals that we put before the Committee.
My noble friend Lord Carlisle claimed that early release will tear prisons apart. I do not know how he comes to that conclusion. As I have said time and again, prisons already have good experience of assessing prisoners and privileges. The scheme now in place has not torn prisons apart. It has been welcomed by many of the staff and accepted by the prisoners. One of the great spin-offs is that the level of behaviour is being modified as a result.
I say again that I find it deeply depressing that no one is giving the Prison Service the credit for doing the job objectively and well. It performs its assessment task of prison behaviour under the earned privileges scheme well. 1 pay tribute to that.
Lord Ackner: Before the noble Baroness sits down, can she tell the Committee whether the prison governors were consulted about the wisdom of the proposals? If they were, what were their views?
7.15 p.m.
Baroness Blatch: Yes. I think that the noble and learned Lord knows that they were consulted. The White Paper went to all interested parties. It is no secret that they were concerned about the operation of this proposal. I have already stated in responding to the amendments that we shall consult with them on the details and the implementation of the scheme and how it will work. That will be set out in prison rules, upon which they will also be consulted when those rules are in draft.
Lord Ackner: Will the Minister tell us the substance of their concern? What were the reasons which, according to them, gave rise to their concern?
Baroness Blatch: If the noble and learned Lord will forgive me, we always treat responses to consultation as confidential to us. It will be a matter for the prison officers. If I find that I can talk to the noble and learned Lord about it, I shall certainly do so. But it is no secret that prison officers have expressed concern. Indeed, there are noble Lords in this Committee who know that they have expressed concerns. If I can be more explicit with the noble and learned Lord, I shall. However, he has to understand that it was a response to consultation and we do not make public those responses unless the person who has responded to us allows us to do so.
Lord Harris of Greenwich: On that basis, will the noble Baroness undertake to ask the Prison Governors' Association whether it would agree that a copy of its representations be placed in the Library of the House? If she will give that undertaking, it will reassure many of us.
Baroness Blatch: The noble Lord is well able to do that himself. Perhaps I may say to him that he does not have to come through a third person in order to receive
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the consultation response made by the Prison Governors' Association. If the noble Lord wants it, I suggest that he asks the association direct.
Lord Harris of Greenwich: The noble Baroness must not try to evade answering simple, clear, straightforward questions. She made a great issue of saying that the responses are confidential unless the person making the representation to the Home Office agrees to make the position public. The noble Baroness is in the position of having to justify this Bill. It is not for us to do so. The onus of proof is upon her to demonstrate the rightness of the Government's position. In relation to the answer she gave to the noble and learned Lord, Lord Ackner, we merely ask that, with the major resources available to her within a great department of state, she asks the prison governors whether they will agree that their representation to the Home Secretary be placed in the Library of this House.
Baroness Blatch: These provisions will not come in for some time. I have made it absolutely clear to the whole House, and to the Committee, that the details of a scheme will be set out in prison rules. In draft form, there will be consultation about the scheme. We shall certainly do that at that time. We are not in a position to do so now. If the noble Lord wants the answer quickly, it will take a postcard and a 26p stamp simply to ask those who responded to the consultation whether they would like to make their response available.
The Home Office does not intend to be a third party for the myriad of people who can come to us. The noble Lord is well able to request that the response to the Home Office be made public.
Lord Thomas of Gresford: At a time when the Minister proposes a major change to the existing situation, the onus is upon her to establish the need for that change. I adopt what the noble Lord, Lord Carlisle, said earlier: if it is working, do not change it. Since 1991 when the Criminal Justice Act was introduced by the noble Baroness's own Government, we have avoided, thank God, serious rioting in the prisons of this country. We have done so for a number of reasons, but largely because the recommendations of the Carlisle Committee were accepted and implemented, and have been shown to work. If they are to be changed and a new and radical system is to be put in place, there is a serious obligation on this Government, before they finally depart, not to leave problems behind for a future government to have to resolve in the way described.
I am intrigued by two pictures that arise from the Minister's response. One is of her as a corporal standing in front of her barrack block telling the squaddies that their free time was to be taken up by punishments that she had invented for them and they were not to be allowed out into the town that night or on any night for a week. I wonder how long she would have retained her authority had she acted in that way. It is a picture that I leave with great regret. The second picture I have in

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mind is of the mountains of paper—I know that the noble Baroness wishes to give us more of her experiences.
Baroness Blatch: If I may put the noble Lord out of his misery, it happened quite commonly that as a punishment we were not allowed out into the town. We just took it like boys and girls at the time.
Lord Thomas of Gresford: The point is, was it the noble Baroness the Minister, foreseeing her future, who told those in her squad that they could not go out on the town; or was it some higher authority? That is the picture that I have in my mind.
The second picture is of the mountains of paper that would be engendered by all the agencies within the prison to whom she referred. It is not simply to be the warder on the landing; it is to be the head of the various working stations throughout the prison, presumably the cookhouse or wherever a person has the opportunity of working. All those reports are to come in and be sifted, and presumably discussed, and decisions are to be made by the prescribed person in 60,000 cases every two months, with appeals to follow.
I am not satisfied with the replies that the Minister gave. Although I seek leave to withdraw the amendment, we shall return to it at a later stage.
Amendment, by leave, withdrawn.
Lord Belstead Lord Belstead had given notice of his intention to move Amendment No. 38:
Page 6, line 19, leave out ("two months") and insert ("one month").
The noble Lord said: This amendment was intended to probe very much the same areas that have been probed at quite considerable length already. I do not seek to move it.
[Amendment No. 38 not moved.]
[Amendments Nos. 39 and 40 not moved.]
Lord Belstead Lord Belstead moved Amendment No. 41:
Page 6, line 20, leave out ("the prescribed person") and insert ("a governor grade of the Prison Service").
The noble Lord said: In moving this amendment I shall also speak to Amendment No. 42.
In each of these amendments "the prescribed person" is the person who may award a prisoner up to 12 days of early release, first in the initial assessment period for attaining the prescribed minimum standard of behaviour, and then in each two-month subsequent assessment period when the person can get six days' early release for "attaining" and six days for "exceeding" the prescribed minimum standard. The effect of these two amendments is to spell out that the prescribed person is to be a governor grade of the Prison Service.
Perhaps I may say just one word of explanation. At the moment, the report which is found in a parole dossier called "The Prison Assessment for the Parole Board"—which consists of 33 boxes each giving room for a brief report—is generally compiled by the
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prisoner's personal officer and is countersigned by a governor. In an instruction to governors sent out on 16th November last year, governors countersigning were required to monitor the standards of reporting in the Prison Assessment for the Parole Board.
The "PPA" is a vital document for parole assessment purposes; but it is not a decision giving document. It is read by a panel of the Parole Board which either decides on early release or, in cases of seven years and over, recommends to the Home Secretary how he shall decide on release.
But Clause 10 of the Bill is concerned with decision-making. In these two amendments we are talking about the person who will decide whether a prisoner is to be awarded early release days and it is not unreasonable to expect that this decision, taken early on, may set the course of a prisoner's hopes for remission for some time to come. It is also crucial in terms of public confidence that the assessment of behaviour is accurate and fair. It therefore seems very important that a governor grade has a responsibility in the decision-making process in Clause 10 for the award of early release days. I beg to move.
Baroness Blatch: It is quite likely that, in practice, it will be a governor grade who awards early release. But there may well be other people in the prison whom it is appropriate, and on occasion even necessary, to prescribe as being empowered to award early release days.
I am not talking here about the prison officer on the wing who is in regular day-to-day contact with the prisoner. This officer will not be taking the final decision on early release. I am talking about one of the senior members of staff in an establishment, whose job it might be to consider a number of assessments of a prisoner's behaviour over an assessment period and to come to a reasoned judgment as to how many early release days that behaviour has earned. We have the excellent example of the earned privileges scheme already operating in prisons which demonstrates that an assessment procedure can work successfully. That must be an encouraging precedent.
We must not forget the consequences to a prisoner of delay in awarding earned early release, which has a direct effect on his or her release date. There must be adequate machinery in place to provide for staff to be available to make these awards. If, for example, all governor grades were fully occupied in dealing with a protracted operational emergency it could be quite proper for another senior designated member of staff in the establishment to award early release.
The Bill leaves this possibility open, and intentionally so. Before drafting the prison rules which will set out exactly who the prescribed person is to be, there will he full consultation with operational staff to decide whom it is sensible to include. Before that point, we would not want to rule out the possibility of senior members of staff in an establishment who are not of governor grade awarding early release. There are people in the Prison Service who are acting governors at any given time and, for

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example, there would be the flexibility of being able to use those people. I should add that prison rules which will prescribe this person will be laid before this House and another place before coming into operation.
I take entirely the point that my noble friend makes. It is intended that the decision should be taken by very senior staff indeed. However, we want just an amount of flexibility so that emergencies can be coped with; and/or, as I say, an acting governor grade could, if appropriate, be used.
Lord Carlisle of Bucklow: Before my noble friend sits down, I apologise to her, but might I ask a question? She was good enough, in answer to an earlier point, to answer the question I raised about the number of likely assessments, which she said she thought I had grossly exaggerated. She gave a figure which I am afraid I missed. Is it possible to be told what that figure was?
Baroness Blatch: If one assumes everybody—I have to qualify that with a caveat about completing the work on re-examining longer-term prisoners; there are also those who are on two-month sentences and below who I believe represent about a quarter of the intake and movements in and out of prison in the course of a year. We think that about 26,000 assessments would be required per month. That would average out at about 50 per establishment.
Lord Belstead: It is my intention to withdraw the amendment. I merely say that what arises from the Minister's reply is the need for validation by a governor grade of the different steps that will be taken in seeing that assessments are made in a fair and equitable manner. I very much hope that that point will be taken into account so far as the rules are concerned.
I do apologise; I do not hear as well as I used to and this is an important point. Could the Minister repeat the figure she gave? How many cases are we talking about that will go through the whole prison system of England and Wales over a two-month period for assessment for behaviour?
Baroness Blatch: Again, repeating the caveat, in the absence of, or in advance of, making any changes to the schemes to which we referred earlier today as a result of my remarks on Clause 7, and also remembering that those sentences of two months or less are not included in the scheme, we reckon about 26,000 for each month. That represents about 50 assessments per month as an average for each institution across the whole prison estate.
Lord Belstead: Am I being very dim? I simply do not understand what the Minister is saying. How can 26,000 give rise to a figure of 50?
Baroness Blatch: Fifty assessments per prison institution, but 26,000 per month across the whole estate.
Lord Belstead: So is there some strange difference between a month and two months? The assessments are to be made every two months. I do apologise—I am being
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difficult, I know, but I genuinely want to know. How many assessments are to be made at every two-months' stopping-off point?
Baroness Blatch: Assessments will have to be made every month for some prisoners. At the end of every calendar month it will be necessary to do the assessment for those for whom that will be the end of a two-month period. At the end of each month there will be an assessment. I have therefore worked on the basis of how many assessments will need to be undertaken each month by the prison establishment.
Lord Belstead: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 42 to 45 not moved.]
Baroness Blatch: I rise to make a correction. My noble friend was right to look slightly confused about the figures I gave him earlier. The 26,000 is absolutely right: that is the figure that I assumed for the purpose of answering my noble friend's question. The 50 per prison establishment was a weekly figure.
The Earl of Courtown: I beg to move that the House do now resume. I suggest that the Committee stage begin again not before half past eight.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Northern Ireland Arms Decommissioning Bill
7.31 p.m.
The Parliamentary Under-Secretary of State, Northern Ireland Office (Baroness Denton of Wakefield): My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved, That the order of commitment be discharged.—(Baroness Denton of Wakefield.)
Lord Williams of Mostyn: My Lords, I should like to record the great courtesy the Minister has shown in sending me on 11th February a very full reply to the questions which I asked on an earlier occasion. I have shown that reply to the noble Lord, Lord Holme of Cheltenham. We should both like to ponder the terms of it rather than take up the time of your Lordships this evening.
On Question, Motion agreed to.

Race Relations (Northern Ireland) Order 1997
7.32 p.m.
Baroness Denton of Wakefield Baroness Denton of Wakefield rose to move, That the draft order laid before the House on 14th January be approved.
The noble Baroness said: My Lords, the Race Relations (Northern Ireland) Order 1997 will introduce provisions broadly in line with those already in force in Great Britain by the enactment of the Race Relations Act 1976. It has been supported in another place.
I believe that it will be helpful to the House if I comment briefly on the order and then say a few words about the detailed provisions. The main purpose of the order is to render unlawful direct and indirect discrimination on the grounds of race. It offers aggrieved individuals full and proper redress through the normal process of civil law. The order also establishes the Commission for Racial Equality for Northern Ireland.
As noble Lords will be aware, the Government are committed to the elimination of all forms of discrimination. In Great Britain legislation exists which outlaws discrimination on the grounds of gender and race. In Northern Ireland, the sex discrimination legislation replicates that of Great Britain. Because of the unique circumstances pertaining, Northern Ireland also has very stringent legislation which outlaws discrimination on the grounds of religious belief or political opinion.
Northern Ireland does not have race relations legislation. In this matter its citizens are not afforded the same protection in law as those of the rest of the United Kingdom. Racial groups account for less than 1 per cent. of the population of Northern Ireland. In the past it was felt that any deprivation suffered by such groups was insufficiently different from that suffered by the indigenous population to warrant specific legislation. Existing social and criminal legislation, together with various administrative policies, was thought to be adequate to address such problems.
Great Britain, however, has obligations not only to its own citizens but internationally through its ratification of the UN International Convention on the Elimination of All Forms of Racial Discrimination. The Standing Advisory Commission on Human Rights recommended that race relations legislation should be introduced in Northern Ireland as a matter of urgency.
The Race Relations (Northern Ireland) Order was drafted, following a lengthy period of consultation, to replicate the Great Britain race relations legislation. It is similar to the Great Britain legislation in almost all respects. It establishes a Commission for Racial Equality for Northern Ireland which will help to enforce the legislation and promote equality of opportunity and good relations between people of different racial groups generally. The commission will be the principal source of information and advice on the legislation and will have similar powers to those of the Commission for Racial Equality in Great Britain.
In line with the Race Relations Act 1976, the order will make racial discrimination unlawful in employment, training and related matters, in education, the provision of goods, facilities and services and in the disposal and management of premises. Individuals who suffer discrimination will be given the right of direct access to the courts and industrial tribunals for legal remedies.
The order will contain provisions enabling the Commission for Racial Equality for Northern Ireland to enter into voluntary, legally binding agreements with individuals or corporate bodies. The introduction of these provisions to the Great Britain legislation was recommended by the Commission for Racial Equality following its second review of the Race Relations Act 1976. It is the Government's intention to amend that Act to include this provision.
The proposed Northern Ireland legislation differs from that of Great Britain in that the Irish traveller community is defined as a racial group for the purposes of the legislation. Their inclusion was the subject of considerable lobbying during the early consultation period on the proposals for a draft order. It was again heavily supported in comments received on the proposed order before your Lordships here today.
The introduction of race relations legislation in Northern Ireland is a demonstration of the Government's commitment to equality for all United Kingdom citizens. To have access to employment, training, education as well as goods and services, regardless of racial background, is a basic human right which should not be denied to the people of Northern Ireland. I beg to move.
Moved, That the draft order laid before the House on 14th January be approved.—(Baroness Denton of Wakefield.)
7.38 p.m.
Lord Williams of Mostyn: My Lords, I thank the Minister for her exposition. We support this order, although it is 21 years since the Race Relations Act 1976 was passed and it has operated for most of that time in England and Wales.
We welcome the fact that the travelling people, who have particular complaints about discrimination, have been included as a separate minority group.
In addition, this is about the only time that I ever expect to find that another group which is sorely discriminated against will receive the full protection of the law. I refer to Article 26, whereby barristers are specifically given the protection of the law. This is a unique occasion, never to be repeated. Buy now while stocks last!
One of the problems is that anti-discrimination and human rights legislation in Northern Ireland has grown up piecemeal. That may have been inevitable because of history; it is unfortunate in many ways. Our commitment, if the electorate do their duty, is that after the election we shall introduce into domestic legislation the European Convention on Human Rights. That will probably be an occasion on which to look on an overall

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basis at all human rights and anti-discrimination legislation in so far as it relates to Northern Ireland as well as England, Wales and Scotland.
One thing that troubles me slightly is whether governmental functions relating to health, social security and housing are covered at all. I do not expect the Minister to deal fully with that on this occasion because I have not had the opportunity to give her notice; but, if she would be kind enough to write to me, I should be grateful. Other than that, we welcome this order.
Lord Holme of Cheltenham: My Lords, I thank the noble Baroness for her introduction of the order. We too on these Benches support this measure, which is long overdue. It is an extraordinary anomaly that we have had to wait since the 1970s for such a measure. The noble Baroness will recall that in the 1970s Parliament made it unlawful to discriminate on religious grounds in Northern Ireland but not in Great Britain and to discriminate on racial grounds in Great Britain but not in Northern Ireland. At least we now have a substantial step towards rationalisation. I pay tribute to the Standing Advisory Commission on Human Rights, whose continual pressure and analysis of this point has, I am sure, helped the Government and inspired them to bring the measure forward.
Most people think of religious discrimination in Northern Ireland. However, we should remember that, according to figures from the University of Ulster, there are significant ethnic minorities there. There are in Northern Ireland between 3,000 and 5,000 ethnic Chinese, who no doubt are the subject of the protection in Article 8(2)(c) which allows racial discrimination on grounds of race where food or drink is being sold. I dare say that it is intended to protect the admirable Chinese restaurants in Northern Ireland. But as well as the Chinese, there are 1,000 Indians and 641 Pakistanis, and the travellers mentioned by the noble Lord, Lord Williams. I usually agree with every word that the noble Lord my colleague says but I am not sure that barristers are a group that normally needs special protection. Probably a slightly different thought is that conspicuously in Great Britain there has been difficulty, particularly in solicitors' partnerships, for many members of ethnic minorities trying to succeed in that profession. Therefore I believe that there is a serious intent.
There is one point which the noble Baroness might like to consider, although I suspect that it goes wider than Northern Ireland. If we make legislation of this kind user-friendly so that people can use it when they are discriminated against, I wonder whether there is a case for some kind of human rights commission to mediate between the general public and the terrors of the law. When she responds, I should like her to say whether she considers that there is any merit in that suggestion. Otherwise, she has our wholehearted support from these Benches.
7.42 p.m.
Lord Alderdice: My Lords, the noble Baroness the Minister is indeed to be commended, in that it is during her tenure at the Department of Economic Development
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that this measure has come forward. I certainly welcome it very strongly. I could hardly do otherwise because my colleagues have been pressing for it, not for many years but for very many years. It has already been recalled that the Race Relations Act upon which the order is based came into effect in this country in 1976. So it has come of age just as this piece of legislation is coming into force.
It is not unusual, of course, that Northern Ireland finds itself a little behind in the legislative programme and that matters are brought into place in England and Wales and indeed Scotland and only subsequently in Northern Ireland. That is not always a bad thing. Sometimes we can learn from the experience in this part of country. For example, we have the example of the community charge. Northern Ireland did not find itself having to venture down that particular road and I hear very few voices raised in objection to that.
On a more positive note, perhaps, the mental health legislation which came through this Chamber in 1959 and which was subsequently replicated in Northern Ireland by the Northern Ireland Parliament in 1961 had a number of provisions which differentiated it from the previous mental health legislation here and which were an improvement. Subsequently, experience demonstrated that that was so, as legislation here began to take on some of the qualities of the legislation in Northern Ireland. So the idea that Northern Ireland is a little behind is not necessarily a bad thing so long as we learn from experience and so long as the read-across from this side of the water to Northern Ireland is an appropriate read-across.
What is more than a little disappointing is, first of all, that it has taken so long. Twenty-one years is an extraordinary length of time to permit racial discrimination in Northern Ireland to remain legal. Secondly, it is a little disappointing that in the read-across some things appear to have been missed. There is another similar example. When the health service reforms came into existence, the Government seemed to slip a little in recognising that in Northern Ireland there is an integrated health and social services system; and just as trusts were about to come into play, it was suddenly recognised that social services would be part of those trusts and all the statutory responsibilities thereof which did not apply to health trusts in this part of the country would apply in Northern Ireland. The legislation had to be delayed a year in order for that matter to be rectified.
I feel that this is a similar kind of matter. District councils and local authorities in Northern Ireland have an entirely different remit from local authorities here. It is a much narrower remit. One of the unfortunate things about this order is that because it places a statutory responsibility on local authorities, it applies to a much narrower area than is the case in respect of local authorities' responsibilities on this side of the water.
My colleagues and particularly my colleague Mary Clarke-Glass, whose experience as a former chairman of the Equal Opportunities Commission is quite singular, raised this matter with the noble Baroness the Minister. She kindly replied indicating that

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government departments which have those responsibilities in Northern Ireland have to accommodate themselves to the policy, appraisal and fair treatment guidelines. That is absolutely true. Nevertheless, it is a matter of some regret that a piece of legislation of this kind cannot apply in the widest possible fashion.
That leads me to my final comment, which takes up the very interesting comments of my noble friend Lord Holme of Cheltenham and the noble Lord, Lord Williams of Mostyn, that we have a series of quangos in Northern Ireland to deal each with a separate significant and important area of possible discrimination. I emphasise that that is not meant in any fashion as a criticism of those excellent bodies and their excellent work over the years. Nevertheless, by accumulating an increasing number of such bodies, we are achieving a degree of fragmentation and piecemeal effect in our approach to civil liberties and human rights and responsibilities.
I welcome the suggestion from the noble Lord, Lord Williams of Mostyn, that the time may be coming when we might be able to rationalise them and bring them together, and, indeed, in that regard to have some overall body which will help guide people through the maze of different organisations that has developed, all of whose members have one purpose; namely, to ensure that all people in Northern Ireland are treated equally and with dignity and respect. But perhaps there is a sense that we are coming to a point where there are so many channels and so many ways of working that it is a little confusing.
Having said that, we welcome the order, a little overdue though it be, and commend the Minister in that it has come into existence in her tenure at the department. We hope very much that no other matters, including the electoral timetable that is upcoming, will stand in the way of its urgent implementation.
7.48 p.m.
Lord Monson: My Lords, in the absence of the noble Lord, Lord McConnell, who I believe has a heavy cold, it falls to me strike the first slightly discordant note.
We are told that the ethnic minority population of Northern Ireland is approximately 7,000, which is less than one half of 1 per cent. of the population. Most of them are Chinese and the Chinese historically have never complained much about discrimination, not because they would be reluctant to do so if they were discriminated against but because people do not normally discriminate against them. That one half of 1 per cent. is an interesting and significant proportion. It is smaller than the ethnic minority population of Great Britain before the 1950s, when no race relations laws existed as there was no need for them. It is the case the whole world over—not simply in Europe—that when ethnic minorities are small and stable the indigenous population does not feel threatened. It is only when the minorities start growing rapidly and significantly that attitudes change and it is then felt that race relations laws have to be brought in.
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In parenthesis, it is worth reminding noble Lords that the Conservatives, both Front and Back-Benchers, bitterly resisted large tracts of the 1976 Race Relations Bill, as a perusal of Hansard will demonstrate. Therefore, it is rather puzzling that it is now felt that legislation has to be brought in for Northern Ireland, given that, happily, full employment exists among the ethnic minority population, in contrast to the situation among the majority, and that, happily, once again, there are so few racial incidents—only 66 in 1995, for example.
The cost of the new quango is estimated at £450,000 per annum. That works out at more than £7,500 per incident—not all of which are necessarily specifically racial. For example, Chinese or Gujarati shopkeepers who are attacked and robbed by thugs, are not necessarily attacked because they are Gujarati or Chinese; it may be because they are slight in build and therefore make an easier target for thugs intent on robbing them. It may also be thought that they will put up less resistance.
There is then the curious business of the "travelling community" being classified as belonging to a different racial group to the rest of the population, which clearly it does not. As I understand it, none of the travellers are Romanies. Once one starts treating cultural differences as racial differences, one opens the door to all sorts of unintended consequences.
Be that as it may, one imagines that it is that factor alone which prevents the Government from simply extending the law in Great Britain to Northern Ireland, which would surely be a lot cheaper and simpler. As I understood it, the noble Lord, Lord Alderdice, suggested harmonising the law and the operation of the race relations quangos in that respect.
One important factor has so far not been mentioned—it may seem far fetched at the moment, but may not be so far fetched in a few years' time. Not only will discrimination on the grounds of race be forbidden, of course, but also discrimination on the grounds of nationality.
At the moment the Republic of Ireland is enjoying a great economic boom—in part due to EC subsidies. Northern Ireland is also doing well, but rather less so. Suppose the position were dramatically reversed in five or 10 years' time and the Republic suffered from a severe and prolonged economic slump. Suppose then that the citizens of the Republic—a republic which in its constitution formally lays claim to the whole of Northern Ireland territory—started pouring over the border trying to buy up houses and land. Once they had established residence, they would immediately be able to vote in local elections and elections for the European Parliament. It is possible that before long they would also be entitled to vote in general elections.
Inevitably the unionists—in the broadest sense—would become alarmed at the influx of new residents who would almost certainly upset the delicate electoral balance of the Province. I would guess that they would probably resist, collectively or individually, selling houses and farms to the citizens of the Republic, seeing their nationality threatened by the upsetting of that

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delicate electoral balance. Would that contravene Articles 21 and 22? Or would they be permitted to behave like the Danes, who are allowed by the Maastricht Treaty, albeit to the annoyance of many people, to keep out German settlers?
Finally, perhaps I may turn to a remark made by the Minister in her introduction. The noble Baroness said that the United Nations was urging that race relations legislation be introduced as a matter of urgency into Northern Ireland. There are a large number of countries in Europe and throughout the world which have no race relations legislation at all, even though they may need it a great deal more than the Province. Why has the Province been singled out for this legislation when it needs it a great deal less than many other countries one could mention?
7.54 p.m.
Lord Fitt: My Lords, when the Race Relations Act was going through Westminster under a Labour government in 1976, I made repeated pleas that the Act be extended to Northern Ireland. The Secretary of State for Northern Ireland at that time was Roy Mason, who is now a Member of your Lordships' House. He put forward many arguments as to why the Act should not apply to Northern Ireland. It is therefore unfair to read Hansard and to hear the words of those who are charging the present Conservative Government with 21 years of neglect. In the three years between 1976 and 1979 the Labour Government could have extended the Race Relations Act. It is unfair therefore for that criticism to be levelled at the present Government.
I welcome this legislation. However, I find bizarre reasons being given for its introduction. In my young days and even up to the present moment I can think of hundreds of Italian ice-cream shops in Northern Ireland, none of which claimed to have been subjected to any discriminatory acts. When this legislation was being introduced, the Minister of State for Northern Ireland said,
"However, the total number is approximately 0.5 per cent. of the population. It was only in the late 1980s that a public debate on the need for such legislation began. In 1995, the Secretary of State gave a commitment to introduce race relations legislation to Northern Ireland as soon as possible".—[Official Report, Commons Standing Committee, 6/2/97; col. 1.]
There has been a minority group in Northern Ireland since 1920 and it could well have done with this type of legislation. However, it took from 1988 to bring about a change of heart in the Government, according to the Minister of State. I should point out that it took much longer—since 1920—before the Race Relations Act and the other fair employment Acts came into being in 1976.
I would like to ask the Minister about the composition of the new Race Relations Board. How many members will it have and what will be their ethnic backgrounds? It will be difficult to obtain sufficient numbers from whatever religious backgrounds who are natives of Northern Ireland, and the Government will need to be extremely careful.
As it is, we are legislating for 80,000 people in Northern Ireland. The Government have gone to a great deal of trouble to bring this order before the House this
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evening. I hope that there is not the same action against ethnic minority groups in Northern Ireland as there has been against the main minority group in Northern Ireland. I urge the Government that in the composition of the board they do not deliberately create another quango. As the noble Lord, Lord Alderdice, said, there are already far too many of them in Northern Ireland.
7.57 p.m.
Baroness Denton of Wakefield: My Lords, as ever I thank noble Lords for their involvement, comments and, for the most part, welcome for this order. I am extremely grateful for that and perhaps I may share with the noble Lord, Lord Alderdice, my pleasure in bringing forward this legislation. As the noble Lord, Lord Fitt, said, it is a commitment that has been outstanding since April 1995 when the Secretary of State undertook to bring it forward.
We had extensive consultation. The absence of race relations legislation in Northern Ireland has not been due to any lack of will on the part of successive governments. I shall make certain that my honourable friend's attention is drawn to the comments of the noble Lord, Lord Fitt, in protection of the Conservative Government. The issue has been one of proportionality. Even now, the noble Lord, Lord Monson, raises the issue of numbers, to which I shall turn in a moment.
In recent years there has been a significant increase in the numbers of people in ethnic minority groups in Northern Ireland, although the total number is still small. In the late 1980s this debate put itself on the agenda and we will all be pleased to see the order moved into legislation. Perhaps I may say to the noble Lord, Lord Alderdice, that it is important that it passes into law and will not be held up by an electoral process.
The noble Lord, Lord Williams, was kind enough to say that if there are areas I miss in my response, he will be happy for me to write to him and clarify them. I hope other noble Lords will also extend me that privilege. I can say to the noble Lord, Lord Williams, that the provision of primary healthcare is covered by Article 21.
I know that many noble Lords have anxieties about the issues raised by the noble Lord, Lord Alderdice, as to where the difference in government structures relates to this order. The draft order places a duty on local government in order to emphasise the importance of the promotion of good race relations at a local level. These provisions also aim to emphasise that the establishment of the Commission for Racial Equality for Northern Ireland will not absolve local government from its responsibilities in relation to ethnic minority groups. Placing such a duty on local government will ensure that all councils, and not just those with a high level of ethnic minorities within their areas, take responsibility for promoting good race relations. That is very important.
The central government functions in Northern Ireland are subject to the policy, appraisal and fair treatment guidelines which aim to ensure that issues of equality and equity conditiona policy making and are central to all spheres of government activity. The guidelines are aimed at ensuring fairness not just between ethnic

631
groups but also between people of different religious beliefs or political opinions as well as differences in gender, age, marital status and sexual orientation. The guidelines apply to non-governmental public bodies such as health boards as well as to central government. Concentration on making them work effectively is very important.
The noble Lord, Lord Holme, raised the issue of exemption for restaurants. This covers the front of the house, so to speak, so that your marketing and presentational policy may mean that an Indian restaurant has Indian waiters and a Chinese restaurant has Chinese waiters. We should not restrict the development of small business enterprise, of which we could certainly use more in Northern Ireland.
The need for a single human rights body is an important issue. The order follows the 1976 Act. A separate body is necessary to help enforce the legislation and to carry out promotional and advisory functions. The amalgamation of all the anti-discrimination bodies in Northern Ireland into one human rights body has extremely wide implications. It requires detailed consideration and extensive consultation. The Government last addressed this issue in the mid-1980s. They concluded that separate institutions were more appropriate. But this issue may well be revisited in the context of the employment equality review currently being undertaken by SACHR. I pay tribute to the enormous load being taken on by that body in this review. That will then be the appropriate time for this issue to be considered.
It is important that the different organisations work together as closely as possible and that both the public and employers have a coherent service offered to them. The Government stress that and the department and my officials work at it. The Commission for Racial Equality has a duty to help applicants and to explain law to employers and so on. That applies to all the commissions. I hope noble Lords will accept the Government's support, and the support of the Prime Minister in particular, for citizen's charters and the ability of individuals to understand and use the law.
I am sorry that the noble Lord, Lord McConnell, is not with us this evening. I am not sure whether the noble Lord, Lord Monson, was implying that he would have been more critical of the legislation. I hope not. The noble Lord rightly drew attention to the fact that not all the incidents may have been based on the ethnicity or nationality of the people attacked. However, there is a definite need in Northern Ireland for the various groups which make up the community to have confidence. It is important for them that they should feel that they have rights extended to other parts of the United Kingdom. I pay tribute to the work of community groups in making quite certain that their members have been able to work with us in bringing the legislation forward. I believe that one racial attack is one too many. In a society which sometimes has a non-peaceful approach to life, we have to be extremely careful that all citizens are protected.
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In the responses to the proposal for a draft order there was great urging that the legislation should make clear the status of the Irish traveller community as a separate ethnic group. We believe it is definable. However, it was not thought that the ethnic distinctiveness of the Irish travellers would be so widely accepted as to ensure that a court would establish the locus of an Irish traveller under legislation. It was also thought that the inclusion of Irish travellers would have a declaratory significance in terms of government's attitude to society. Furthermore, the Irish travellers are found throughout the island of Ireland. They are included in anti-discrimination legislation which is being processed by the Irish Government. For all those reasons it was decided to include Irish travellers as an ethnic group in the race relations legislation. I believe it to be a fair protection well offered.
The key issue for ethnic minorities is the provision of goods and services, particularly public goods, access to interpretation, and so on. Employment is not a current problem but the Chinese population is concerned about future generations. That motivates almost all their decisions and it is something which I think is admirable.
Article 22 deals with discrimination in the disposal or management of premises. I do not share the fear of the noble Lord, Lord Monson, that there will be an instant emptying of the Republic of Ireland into Northern Ireland. Many advantages have been available for many years with the support of the Government in terms of support for health services and education. I think there are cultures which are very different, but Article 22 deals very specifically with discrimination in the disposal or management of premises. But I also recognise that there is cross-border traffic. It would be unlawful to refuse to sell a property in Northern Ireland to someone from the Republic of Ireland on grounds of nationality. I do not think the noble Lord raises something which will be a major issue, however far down the future we look.
The noble Lord, Lord Fitt, questioned the format of the Commission for Racial Equality. All appointments to the commission will be made on merit and in line with the recommendations contained in the Nolan Report. It is important that the commission should represent a mix of relevant skills and backgrounds. As with the Commission for Racial Equality in Great Britain, it will be important that those include some with a detailed knowledge of the needs of various ethnic minority communities. Further than that it is not possible to say what the racial balance of the commission will be. There is always the aim that a commission, when formed, should not consist of representatives but should consist of individuals with knowledge and expertise who act together as a commission.
I wish to clear up one final point. The Government do not regard barristers as a deprived group. The difference in this legislation is only that it is specifically tailored to circumstances in Northern Ireland where we have a Bar library system, which I suspect the noble Lord understands rather better than I do.

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I believe that this is a very valuable piece of legislation and that it will make a difference to what may well be a small group of citizens in Northern Ireland, but a group that has entitlement to rights as much as other members of the United Kingdom.
Lord Monson:: My Lords, I am grateful to the noble Baroness for giving way. Is she in a position to answer my question as to why the United Nations has singled out Northern Ireland as a place where race relations legislation needs to be introduced as a matter of urgency when it apparently feels no such urgency is needed in respect of a large number of other countries where race relations problems are very much greater?
Baroness Denton of Wakefield: My Lords, I cannot speak with absolute confidence about the aims of the United Nations, but I suspect—and I shall be corrected if I am wrong—that it has a sense of the need for urgency everywhere where there is no protection. Despite the noble Lord's concerns about the timetable, if we have managed to move rather more quickly than others, I can only be very proud of that.
On Question, Motion agreed to.
Viscount Long: My Lords, I beg to move that the House do now adjourn during pleasure until 8.30 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.11 to 8.30 p.m.]

Crime (Sentences) Bill
House again in Committee on Clause 10.
Lord Belstead Lord Belstead moved Amendment No. 46:
Page 6, line 43, leave out ("to prescribed persons").
The noble Lord said: This amendment concerns appeals against determinations as to early days of release. That has been gone over to some extent already so I shall be as brief as I can. When, under Clause 10(5), decisions are given to persons as to whether or not they have been awarded any early days of release, prisoners may appeal to prescribed persons, and the effect of this amendment is to leave out the reference to "prescribed persons" simply with a view to asking the Government to explain who the prescribed persons are to be.
Perhaps I may flesh that out a little. I ask that because obviously there will be some sensitivity if the award of early release days is to be decided by prison staff, a matter referred to by the noble and learned Lord, Lord Bingham, on Second Reading, and referred to earlier in the Committee today. To have prison officers who are responsible for the custody and care of prisoners being responsible for decisions as to the award of early days could put prison staff in a difficult position in relation to allegations by disappointed persons. That is why, when the parole system was set up, the first chairman, the noble Lord, Lord Hunt, made very clear the independence of the board as regards decision-making. That tradition has been handed on from one chairman to
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another. The noble Lord, Lord Hunt, used to take the Parole Board off to the different livery company halls in London. The meetings were held there in rather the same way as the Scottish board does today. That was to show the independence of the Parole Board.
It goes without saying that when, today, the board holds hearings—in other words, discretionary lifer panels—the independent position of that panel in hearing evidence from the prisoner, his legal representative and witnesses, and evidence from the Prison Service and sometimes other witnesses is made perfectly plain. I wonder whether the Government have taken on board that point in deciding who the prescribed persons are to be who will hear appeals from prisoners and how those appeals are to be made—either in writing or at an appeals hearing. Therefore, that is why I wish to move the amendment, although some of the ground was covered earlier. I beg to move.
The Earl of Mar and Kellie: I am sorry to come back to this but the words "prescribed persons" cause me to reflect on the fact that I do not believe that we ever sorted out what a prescribed minimum standard of behaviour was. The word "prescribed" appears in both. I suggested that the prescribed minimum standard was in fact a negative. It was not appearing before the governor on report. I am very anxious to establish a baseline so that we can see how the first six days in a two-month period will be allocated. Once that is done, we can then see above which line we are trying to allocate the second six days in the two-month period. If it is difficult to sell this programme to the Committee, it will be even more difficult to sell it to the prisons.
Baroness Blatch: The noble Earl, Lord Mar and Kellie, makes an important point. There will need to be some guidance for prison officers who are engaged in the assessment of behaviour. Therefore, we should expect that to be addressed as part of the prison rules to prison officers. I am not able to be absolutely specific. The noble Lord, Lord McIntosh, gave examples of proactive bad behaviour and I have given some examples of what would be good behaviour. However, important though the point is, this amendment is about who should be the members of the appellate body and whether it should be prescribed.
As my noble friend said, the amendment seeks to change the power in the Bill to make prison rules enabling prisoners who are dissatisfied with awards of earned days of release to appeal against such a decision. There is nothing between us on this point. The Bill makes provision for such appeals to be to "prescribed persons". The amendment leaves the appellate authority at large on the face of the Bill, although the rules would no doubt still make it clear to whom prisoners might appeal. Therefore, I cannot see a great deal of difference between the two approaches and there is certainly no advantage in my noble friend's proposal.
There will be full consultation with prison governors and others before proposing any appeals arrangements for inclusion in prison rules. At present, we envisage a system internal to the Prison Service. We have certainly taken on board the points made about the level of

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bureaucracy and the diversion of prison officers from other work. Those will be very important factors in any system. The noble Earl is probably experienced and knows of the systems which already operate in prisons concerning prisoners' behaviour for other reasons. It is impossible to divorce the training shops, the educational services, gang supervisors and so on from the good order of the prison. Therefore, there will be systems in place and we shall want to build on those, and not make them over-bureaucratic. The first point of appeal could be to the governor in charge of the prison, with a second appeal point in the headquarters of the Prison Service, which would be independent of the prison. Prisoners still dissatisfied could ask the Prisons Ombudsman to carry out an independent review of the case and he would make any recommendations that he thought proper to the Director General of the Prison Service.
Prisoners would also be free to seek the external remedies of judicial review and investigation by the Parliamentary Commissioner for Administration. But we would expect that to happen only when all the internal processes had been exhausted. There is nothing between us on this issue. This will be a matter for very full consultation and I hope that my noble friend is able to accept that explanation.
Lord Belstead: I am grateful to my noble friend for that clarification. I wish to make just one point before withdrawing the amendment. My noble friend referred to the process of judicial review. I do not know very much about that but I know that there are usually about half-a-dozen judicial reviews on the go in one way or another as regards the Prison Service and the Parole Board. That is an real factor in the daily life of an organisation which is liable to judicial review. It was with judicial review in mind that I asked some of the questions that I did. The procedures will be extremely important if the Prison Service is not going to be extremely vulnerable to judicial review. I am sure that the Prison Service will understand that and has time to take account of what the procedures will be. Nevertheless, I give that warning. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Earl Russell Earl Russell moved Amendment No. 47:
Page 6, line 44, leave out subsection (6).
The noble Earl said: This amendment seeks to delete Clause 10(6). That is a Henry VIII clause giving the Minister power by order to alter primary legislation. It has not caused particular concern to the Delegated Powers Scrutiny Committee, whose report I have here. It should be a routine matter that this Chamber should probe the reasons why a Henry VIII clause appears in a particular Bill. Therefore, to save the time of the Committee and perhaps to avoid unnecessary debate, I shall ask my routine question: is your Henry VIII clause really necessary? I shall conduct such further debate as the answer seems to require. I beg to move.
Baroness Blatch: Having sat on the joint Committee for some time, I am well aware that if Henry VIII clauses are to be used, the Government should be challenged on
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the importance of using them. The noble Earl will be aware that the Scrutiny Committee has already looked at the Bill with a view to seeing whether there is any abuse of power or whether the House should be invited to consider the proper use of power and question it in debate. There is a temptation to accept the amendment of the noble Earl and leave out the subsection. However, I hope that when I have explained why it is there, the noble Earl will accept that there is very good reason for its inclusion.
The noble Earl seeks to remove the power in the Bill for the Secretary of State to vary by order the number of early release days that prisoners may earn. The Bill allows for amendments to be made only in the prisoner's favour. It is not possible to use this power in any other way. For example, there is no power to reduce the number of days that may be earned. Therefore, I find it quite difficult to see any objection to its inclusion. It was thought that if when the system was up and running a future government or Home Secretary believed that it was worth recommending that the number of days available for early release should be increased, instead of altering primary legislation, the primary power would be there to be used. But the power cannot be used to reduce the number of days. The noble Earl is right to question the inclusion of a Henry VIII power in a Bill.
Earl Russell: I thank the noble Baroness for a very fair reply. She said very much what I expected she would say. She makes the perfectly fair point that the use of this power can only be beneficial. I am very glad that I have heard that said. However, I can imagine circumstances in which a future Parliament may object very strongly even to the use of beneficial powers in this respect if there were to be a demand for even longer sentences than are being considered already. That could cause concern. Nowadays, we see a good many of these clauses. That may give rise to an issue. I do not believe that the point for making an issue is here, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 48 to 50 not moved.]
Clause 10 agreed to.
[Amendment No. 51 not moved.]
Clause 11 agreed to.
Clause 12 [Provisional awards for remand prisoners]:
[Amendments Nos. 52 to 54 had been withdrawn from the Marshalled List.]
Clause 12 agreed to.
Clause 13 [Release supervision orders]:
Lord Belstead Lord Belstead had given notice of his intention to move Amendment No. 55:
Page 8, line 45, leave out from ("released") to end of line 46 insert ("under section 10").
The noble Lord said: I spoke to Amendment No. 55 with Amendment No. 36, which was withdrawn.
[Amendment No. 55 not moved.]
Lord Belstead Lord Belstead moved Amendment No. 56:
Page 9, line 27, leave out from ("any") to end of line 29 and insert ("conditions.").
The noble Lord said: I beg to move Amendment No. 56. In subsection (4) on page 9 the Bill provides for the Parole Board to be involved in the holding of oral hearings at which prisoners can be heard or represented in order to decide whether a recommendation shall be made to the Secretary of State that the prisoner shall have a hostel condition or a curfew order condition specified in the prisoner's release supervision order. The effect of this amendment is to make the Parole Board responsible for recommending to the Secretary of State any conditions which should be specified for release supervision orders.
I say in passing that perhaps I am not being wholly genuine in putting forward the matter on that basis. This would probably make for an almost impossible situation, but it is a convenient peg on which to hang what is in effect a probing amendment. I believe that it is nonetheless an important probing amendment from the point of view of administration of the Parole Board. I ask my noble friend the Minister the reason for the subsection. First, is there a special reason for requiring Parole Board intervention to recommend hostel or curfew order conditions? If so, does that special reason apply only to those two types of supervision condition? What about offence-focused work conditions? What about psychiatric or psychological oversight and treatment conditions? What about conditions not to enter a given geographical area? What about non-contact conditions which are very important for the protection of victims? What about so many of the essential conditions that are imposed on paedophiles?
Secondly, how will subsection (4) work in practice? I am now speaking about the Bill as drafted. I have been discourteous. My noble friend has given me important assurances as to how parole will be injected into the Bill. However, under the Bill as drafted the Parole Board will have had nothing whatever to do with a fixed-term sentenced prisoner who is about to have a release supervision order made. The Parole Board will go into an oral hearing "cold", as it were. In those circumstances will the prisoner have a dossier of reports? If so, who will have written those reports?
How is the Parole Board to be interpreted under subsection (4)? Is it to be a panel of the board and, if so, how many members will it comprise? In that context, have the Government given any thought to the cost of the provision and the time needed to set up these panels from a much smaller board? That is an important point. One comes to a particular moment in the process of review, in this case the review for early days of release. At an earlier point in the Bill reference is made to letting prisoners know at a prescribed time. It is important that the whole matter does not slip. If it will take quite a long time to set this up, things will slip.
Thirdly, the Secretary of State is to make rules for regulating the supervision of prisoners. Presumably, those rules will contain guidance as to the criteria for specifying a hostel or a curfew order condition. Have the Government given any thought to those criteria? I remind your Lordships that a prisoner who is released
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early will have been awarded early release days on grounds solely of good behaviour. It would seem rather strange if the criteria for a hostel or curfew order condition on release were to reduce the risk to the public. How is that apparent contradiction to be resolved?
I do not ask for answers to all these questions this evening. If my noble friend writes to me, I shall be only too pleased. These questions may appear to be a rather grudging response to the need for the Parole Board to become involved in specifying release supervision order conditions for hostels and curfew orders, but at the moment I believe that my list of questions shows that the position is not entirely clear, at least not to me, hence the amendment. I beg to move.
8.45 p.m.
Baroness Blatch: My noble friend is right. We are speaking in a vacuum in advance of any consideration of the matters that concern my noble friend and on which I have given him assurances. Given that caveat, one of the reasons why we believe that the Parole Board should be involved in commitments to bail and/or curfew orders is that both orders involve a restriction on liberty. We believe that there should be Parole Board involvement in something that restricts liberty. The Bill provides for the Secretary of State to set the conditions of supervision. In practice, this will be done by the prison governor acting on behalf of the Secretary of State, exactly as happens now in the case of short term offenders. We are discussing longer-term offenders between now and Report stage. But there are a number of standard conditions such as the need to maintain contact with the supervising probation officer, a requirement to live only where approved by that officer and a requirement to take only such employment as is similarly approved. Where necessary, additional improvements may be included which may for example require the offender to attend a treatment programme to address his offending behaviour or to live at a specific address such as a family home.
Decisions as to the inclusion of such additional conditions are made on the recommendation of the supervising probation service which will have conducted a thorough risk assessment, together with information obtained during the offender's time in custody. Relevant information will include his behaviour in prison, attitude to the offence committed and his home circumstances. This is the type of information which is considered now by the Parole Board in the case of long-term offenders who are being considered for discretionary release. When the Parole Board will not be involved in the decision to release an offender, I see no value in its routine involvement in the setting of conditions. I do not know whether my noble friend has even contemplated the volume of work that would be involved if the Parole Board moved into the area of the 90 per cent. of prisoners who received sentences below four years. This can be done efficiently and properly by the prison governor on the recommendation of the probation service, taking into account the principal aims of supervision: protection of the public, prevention of re-offending and the

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rehabilitation of the offender. If the board were to become the body responsible for setting conditions of supervision for all offenders sentenced to 12 months or more, it would face a substantial increase in the volume of cases dealt with. Let us not forget that currently the board deals only with cases involving offenders sentenced to four years or more. If it were to set conditions for all offenders sentenced to 12 months or more its workload could increase fourfold. I do not see how the board could be expected to do so much. There is a limit to the number of oral hearings that could be dealt with in a day. The board will also have, in the longer term, to deal with more life sentence prisoners in the light of Clause 1 of the Bill.
There is, however, still to be a Parole Board involvement in the setting of the two conditions mentioned by my noble friend: the requirement to live in an approved hostel and the imposition of a curfew order. The reason for this is straightforward. Both conditions involve a significant loss of liberty on the part of the offender and it is only right and proper that an independent body makes the recommendation to the Secretary of State that they should apply. The board will make their decision on the basis of recommendations from the supervising probation service which will have considered the need for such conditions as part of the on-going risk assessment process inherent in sentence planning. The primary consideration will, as always, be the need to protect the public.
The Bill allows for appropriate conditions of supervision to be set in the interests of the public and the offender; the involvement of the Parole Board would not add to this protection and would involve an impossible burden of work. Only in the specific areas of curfew orders and probation hostels is it right for the Secretary of State to have the recommendation of the board.
For these reasons, I hope that my noble friend will not press the amendment. But I end yet again with the promise that everything I have said is in advance of any consideration that we will have between now and Report stage on the whole issue of assessment of risk before the release of long-term prisoners.
Lord McIntosh of Haringey: I understand the point the Minister is making about the workload of the Parole Board and the vast number of cases that would occur for offenders with sentences between 12 months and four years. That seems to me to be a reasonable case. I am puzzled by what she said about loss of liberty, however. Of course, a probation hostel involves complete loss of liberty in that sense. But why is a curfew order more of a loss of liberty than being directed to live somewhere other than in an approved probation hostel, for example?
Baroness Blatch: If somebody is subject to a curfew order, they are actually quite literally curfewed to a particular home. It may be their family home or another home, but they are not allowed to move from that place. If somebody is allowed to live at another address, perhaps away from where they originally committed the
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crime, they can come, they can go, they can move around, they can go and meet their friends, but a curfew is quite specifically keeping somebody at home. Usually the most modern method of operating a curfew order is by electronic tagging. A person subject to a curfew order is curfewed to a particular address and for the period of time that the curfew order applies—at the moment it is up to 12 hours in any one day and up to a maximum of six months—the person simply cannot move away from that place to which they are curfewed.
Lord Belstead: This is something we can pursue subsequently. I am grateful to the noble Lord, Lord McIntosh, for intervening because it is of importance so far as the Parole Board is concerned. First of all, I am guilty of making it seem as though the objective of the amendment was to extend the remit of the Parole Board to all conditions, because that is the effect of the amendment. However, as I said when I was first speaking, it is only used as a peg by me in order to probe what the subsection of this clause really means. I hope that my noble friend Lady Blatch will forgive me for leading her along that road; that was not my intention, although she and her officials were not to know that.
Having said that, the whole pith and kernel of what we are talking about is the fact that this is a restriction of liberty, the point on to which the noble Lord, Lord McIntosh, has latched. Thinking this through for a moment, taking the remarks of the Minister at face value, because it is a restriction of liberty the Government want to be extra careful. I am not sure of whom they are being extra careful.
Before I withdraw the amendment, perhaps my noble friend would like to explain to me of whom it is we need to be extra careful. If there is somebody of whom we need to be extra careful because of a restriction of liberty, presumably we have to make sure that the procedures are absolutely A.1, that the people who are going to do this work—it is to be the Parole Board—will have the right reports.
I do not gainsay what my noble friend said about sentence planning. But the report which allows one to decide finally as to what conditions should be so far as release is concerned is the parole assessment report, which used to be called the old home circumstances report from the field or home probation officer. That is a report which sometimes, because of pressure of work, can come quite late. It may be that under a new regime the probation services of Great Britain are not going to be quite so keen to do the reports at all because they are extremely expensive. To start sending someone from the Inner London Probation Service up to a prison in Cumbria or Northumbria would be very expensive indeed. It will be necessary, before we get to that stage, to make it clear that the parole assessment reports are extremely important.
Having made the point that the paperwork has to be there, there is then a time factor. Without speaking too long about it, there comes a moment in the procedures before the prisoner is told how early he or she can be released when one has to make sure that the whole procedure does not slip. Presumably, this is going to

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mean getting a panel of the Parole Board together to hold the hearing. I remind my noble friend that if there is to be legal representation, which apparently there is to be, of the prisoner, these oral hearings will be quite tough assignments.
I am suspicious. I do not believe that I am an ungenerous character, but I am suspicious of this provision in the Bill. I have always been suspicious of it ever since I saw it. The Minister, persuasive though she always is, has not allayed my suspicions entirely.
Baroness Blatch: I find it something of an irony that, if the Government had proposed that they could authorise as a condition of supervision a curfew order and/or hostel accommodation, somebody somewhere would have put an amendment down to this Bill saying, "This involves a restriction of liberty and there ought to be an independent view about whether that is the right thing to be doing".
Further, the Government have literally singled out these two issues. There is nothing suspicious about it. The Government believe that, because it involves a restriction of liberty, the valuable assistance of the Parole Board in giving an independent view to those doing the assessment as to whether it believes that it is appropriate for that person should be sought, just as now the Parole Board calls for reports from probation officers and others in order to come to a view about whether a certain aspect is appropriate. My noble friend will know that the conditions are set in advance of release. They have to be set in advance of release and there has to be a good deal of thinking about what those conditions should be. There will be time to do that.
I hope that my noble friend does not think there is anything devious about this. I know he is suspicious but I hope he does not think there is a hidden agenda here. There is absolutely no hidden agenda, but we believe it would be a good thing to have an independent view from the Parole Board.
Clause 13(4) requires an oral hearing before the Parole Board at which the prisoner has the right to appear or to be represented. The conditions in which the subsection applies are onerous and it is right that the offender should have an opportunity to make representations to an independent body before the conditions are imposed. We believe that would be a good thing. There is no more nor less to it than that.
Lord Belstead: I assure my noble friend that my suspicions do not extend to there being some form of deviousness. My suspicions relate to whether the proposal will work. I am still worried about that, but I shall not pursue the matter tonight. I am grateful to my noble friend for what she said and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 13 agreed to.
Clause 14 agreed to.
9 p.m.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 57:
After Clause 14, insert the following new clause—
RECALL OF PRISONERS
(".—(1) If recommended to do so by the Parole Board, in the case of a prisoner who has been sentenced to imprisonment for a term of four years or more and in respect of whom a release supervision order is in force, the Secretary of State may revoke his release supervision order and recall him to prison.
(2) The Secretary of State may revoke the release supervision order of any prisoner who has been sentenced to imprisonment for a term of four years or more and recall him to prison without a recommendation by the Parole Board, where it appears to him that it is in the public interest to do so.
(3) A prisoner recalled to prison under subsection (1) or (2) shall on his return to prison be informed of the reasons for his recall and of his right to make representations.
(4) The Secretary of State shall refer to the Parole Board—

(a) the case of a prisoner recalled under subsection (a) above who makes representations under subsection (3) above; and

(b) the case of a prisoner recalled under subsection (2) above.

(5) Where on a reference under subsection (4) above the Parole Board directs the immediate release of a prisoner under this section, the Secretary of State shall give effect to the direction and shall release him subject to his release supervision order.
(6) On the revocation of the release supervision order of any prisoner under this section, he shall be liable to be detained under his sentence and, if at large, shall be deemed to he unlawfully at large.").
The noble Lord said: I first referred to the amendment during our debate on the long list of amendments introduced by the noble Lord, Lord Belstead. I did so because a number of his amendments addressed the issue of recall and I did not believe that it was appropriate to debate them without flagging up the fact there are still major problems with recall, some of which are addressed by my amendment.
Perhaps without repeating the arguments in full I may recapitulate on what the amendment will achieve. It provides that we should continue the procedure whereby the Parole Board can organise the recall to prison of a prisoner released under a post-release supervision order from a sentence of four years or more. It also provides that in a case of extreme urgency the Secretary of State may order a recall when it is not practicable for the Parole Board to consider the case first.
The current system of parole is streamline. It provides that on the recommendation of the supervising probation officer the Parole Board can quickly recall the parolee to prison when his behaviour suggests that he is at risk of serious re- offending. Perhaps in referring to the amendment previously I was too ready to talk about breaches of the conditions of the post-release supervision order. However, other Members of the Committee referred to the need to recall someone to prison even when there had been no overt breach of the post-release supervision order but when his behaviour indicated, for example, a likelihood that he would continue with the same behaviour which had brought about the sentence in the first place. Therefore, if we are to achieve our shared objective of protecting the public and avoiding re-offending, it is extremely important that

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the supervising probation officer has a wide range of discretion of recommending to the Parole Board that a recall should be made.
I went on to explain that that is a reasonably quick procedure because the Parole Board meets every day and can and does give priority to recall cases. Those decisions can be acted upon immediately. However, in case it should be thought that there are people who might slip through the net, the amendment provides that the Home Secretary can carry out a recall in advance of a decision of the Parole Board and obtain subsequent justification for that.
The Parole Board, in its comments on Protecting the Public, which it made public, described the procedure and recall by the board as being swift and certain. It stated that the public are better protected than would be the case under the proposed new measures. The Association of Chief Officers of Probation said very much the same thing. It stated:
"The replacement of the present system would be a grave error. The present system is quick and effective. It is one of the main features contributing to the effectiveness of parole supervision, allowing as it does for prompt executive action to be initiated at any time of day or night, or at weekends".
It further stated that the court system is incapable of delivering rapid recall and that in its view the proposed change would substantially increase the risk to the public.
The Minister intervened, as was her right, and suggested to me that it would be possible for quick action to take place under Clause 14 because in certain circumstances it would be possible for someone to be arrested and held in custody, appearing before the court the following morning. I do not deny that, but it still is not as quick and effective as executive action. Since it involves arrest and a new charge, it could relate only to an arrestable offence. That is a more limited power than that which the Parole Board and the supervising probation officer have at present.
I am puzzled as to why in this clause the Government should wish to remove the executive power. It is not as though we are proposing to take away the Government's power to create a new arrestable offence. Clause 14 is already part of the Bill and this new clause is not proposed as a replacement. The only reason I can find for the Government's action was set out by Mr. David Maclean on 10th December when he pointed out that the release supervision order begins when prisoners are released from prison. It is additional to and not part of the prison term. Clearly, I do not have the attention of the Government Front Bench. Perhaps I should pause for a moment or two.
His was a technical response and not a response of substance. The fundamental question is whether the Government agree with the merits of the argument that a system of emergency recall is worth retaining. If so, of course further amendments are required. The Government would have to redraft the Bill in order to designate the period of post-release supervision as part of the sentence in order to overcome those objections. Is that so desperate an action to take? Is it so serious a
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problem in comparison with the increased flexibility and protection for the public which would be provided by the amendment? I think not. I beg to move.
The Earl of Mar and Kellie:I believe that we are getting in a slight tangle here. I agree with the noble Lord, Lord McIntosh, that recall would be a useful thing to have but, at the risk of sounding as if I were giving a lecture on an alternative to custody project, it is a separate order. Orders are dealt with by returns to court and, dare I say it, breaches of probation, breaches of community service and breaches of attendance centre orders all end up back in court. Recall was permissible because parole is part of the original sentence. Unfortunately, and perhaps not wisely, the release supervision order is not part of the prison sentence. Therefore, I would argue that you cannot have recall within an order.
Lord McIntosh of Haringey: The amendment does not provide a new order; it provides for the revocation of a release supervision order. That is why it does not have to be a new offence.
The Earl of Mar and Kellie: Yes, but the release supervision order is an order and not a licence. Therefore, one cannot organise a recall off an order.
Lord Belstead: I guess that the issue which has just been debated between the noble Lord and the noble Earl will probably form the basis of at least part of the reply from my noble friend the Minister. I believe that I am guilty of saying this before today but, where a prisoner has finished his sentence, there is the difficulty of him being made subject to an executive recall. Although this may be falling on stony ground because my noble friend made clear her views on the issue in the Committee this afternoon, perhaps I may remind my noble friend the Minister that, subsequent to the assurance that she was good enough to give that parole for long-term prisoners should be written back into the Bill, it will mean that for some months those long-term prisoners who get parole will still not have completed their sentences and could be brought within the scope of the recall procedures, which the noble Lord and I want to see, at least for a period of time.
I am aware that that suggestion probably does not commend itself to my noble friend the Minister, but the reason I say so is that I believe there is enough evidence—and the noble Lord, Lord McIntosh, may have more of that evidence in his hands than I have—to show that there is something of a problem here. For the past four and a half years what are known as ACR licences (the licences for short-term prisoners who go out on automatic conditional release) have been subject to court procedures for recalls. I am told that the picture is one of a lower level of reinforcement of licence conditions than applies to DCR licences (that is, the licences for four years and over), which have all the advantages outlined by the noble Lord.
The reason for that difference is that the level of proof required by the courts is different from the level of proof required by the Parole Board. But everyone knows that;

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indeed, the Probation Service knows it. Therefore, it will not go to court if it believes that there is no chance at all of obtaining satisfaction. Indeed, Clause 14(4) says that a sentence of imprisonment for breach of a supervision condition shall not be made unless either the court thinks it expedient to protect the public from serious harm from the offender, or the offender's breach consists of an imprisonable offence. That shows that we are talking about a different level of proof from the one that would obtain with the Parole Board and the Secretary of State as things exist at present.
There is another unattractive and difficult point. I am advised that very often victim issues are not included in ACR licences because of the knowledge that victims would have to be brought back to court in order to prove breach of conditions. I do not like that at all and I very much hope that the Home Office will look again at the matter. I shall not go on in that respect because the noble Lord, Lord McIntosh, spoke effectively on the subject. However, I hope that my noble friend the Minister will look at the matter with some care. We are actually talking about people whom it is important to prevent committing another offence, as opposed to catching them after they have recommitted. That is the nub of the matter and upon that really hangs the case put forward by the noble Lord, Lord McIntosh, this evening.
Baroness Blotch: The amendment standing in the names of the noble Lords, Lord McIntosh and Lord Williams, seeks to apply to all offenders—and I have to repeat, "all offenders"—sentenced to four years' imprisonment or more who have been released from prison and are subject to a release supervision order the same recall arrangements as those governing offenders on life licence. In other words, the Secretary of State could recall them to prison if recommended to do so by the Parole Board, or without such a recommendation on urgent public interest grounds.
I share the sentiments expressed that protection of the public is paramount and appropriate measures must be taken to ensure that offenders who fail to comply with the conditions of their release supervision order, and in so doing present a significant risk to the public, are dealt with swiftly and effectively. However, the Bill as it stands already provides for this. Clause 14 provides for offenders who breach the conditions of their release supervision order to be returned to prison on the order of the court.
Clause 15 enables the police to arrest someone who is believed to have committed a breach of supervision. The offender could then be detained and brought before the court promptly. If the supervising probation officer has reasonable grounds for believing that an offender who is subject to a release supervision order has breached the conditions and that urgent action is necessary to protect the public, then he can at once notify the police with a view to the offender's arrest and detention pending his appearance in court the next day or perhaps even later that day.
Some enthusiasts for the present law have drawn attention to the ability of the Parole Board to recall released offenders to prison within a matter of minutes in urgent cases and suggested that the absence
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of Parole Board involvement will reduce the protection of the public. The Parole Board has a vast range of experience on which we place great value. But the ability to deal urgently with such cases will not be lost under the Bill. Indeed, we are proposing to streamline the procedure. Whereas at present the probation officer has to notify the parole unit which then asks the police to detain the offender, in future the probation officer will be able to deal with the police direct. This will cut out one stage and therefore save valuable time. Moreover, the new procedures will apply to all offenders subject to a release supervision order and not just to those offenders sentenced to four years or more. This is a further improvement as short-term prisoners cannot—as my noble friend has already said—at the moment be arrested for breaching their conditions unless the breach constituted the commission of another crime.
Once the offender appears in court for alleged breach of the release supervision order it will be for the court to decide, if it finds the case proved, what the correct punishment should be. This can include return to prison if the court considers it expedient in the interests of protecting the public or the breach consists of another offence which itself is punishable with imprisonment. But under the Bill the court will have a range of other options for dealing with breach of supervision which are not available now when it is either a case of an offender being taken into custody or being sent back out into the community. We are simply saying that the court can now impose any penalty including a community sentence. That is a further improvement on the present system.
Under the Bill prisoners will serve the whole of their term in prison, save for any days of earned early release which, by definition, they will have earned by good behaviour. I believe the noble Earl, Lord Mar and Kellie, made an important point about that. The release supervision order begins on their release from prison. It is additional to, not part of, the prison term. That is a fundamental difference from current legislation where the period on licence forms an integral part of the sentence, and in the case of lifers, such a licence does not expire until death.
I have been musing while the noble Lord, Lord McIntosh, and my noble friend have been talking. I was musing on the notion that, had the Government brought forward an executive power in the Bill for the Secretary of State to recall—in the supervision period outside the sentence period—someone back to prison without any reference to the courts or to the Parole Board, there would be pages of amendments tabled to curtail the Home Secretary's draconian use of an executive power. If the Secretary of State had executive power to recall an offender to prison without the authority of a court when the latter was outside the sentence period for behaviour that had nothing to do with the conditions of supervision that were laid down, that would be a serious abuse of power. We believe that the ability to recall someone quickly is essential. We have found ways of making sure that that will be the case. We also believe it is important to have court authority seriously to restrict someone's liberty if he is to be returned to custody.

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We have deliberately made it an arrestable offence to be in breach of a condition of supervision, to make it possible for the Probation Service to do its job of ensuring there is a punishment which fits the crime. That can range from custody to a community sentence or even a court discharge. Against that background it would be wrong in principle to go down the road paved by this proposed new clause which would in effect allow the Secretary of State or the Parole Board to extend a prison sentence by executive authority. That cannot be justified. Indeed I suspect that the European Convention on Human Rights would have something to say about that matter.
Under the arrangements in the Bill when the offender is released he will have served his sentence. He will not be released on licence as now. Punishment for breach of the post-release supervision order must therefore be for the courts and the courts alone to authorise. As I have said, if breach is proved, the court will be able to impose a range of penalties, including imprisonment and also community penalties, further strengthening the options necessary for the court to deal satisfactorily with an offender. In dealing with the case the court can have regard to any period during which the offender has failed to comply with the conditions of supervision. The clock effectively stops as soon as the offender fails to comply. The offender cannot avoid any part of his release supervision order. For those reasons, I hope that the amendment will not be pressed.
Lord Belstead: Normally I always take entirely the points made by my noble friend the Minister. However, in this case when the noble Baroness invokes what might be a danger with the European Court, I must take issue with her.
The fact that the Parole Board is being used at present in what otherwise would be an Executive procedure as regards recalls makes it a perfectly reasonable procedure. I moved an earlier amendment which we debated. That is exactly why the Government are using the Parole Board in order to ensure that curfew orders and hostel orders are decided by the Parole Board. I do not think that we are in jeopardy of the European Court as matters stand at present.
Baroness Blatch: I understand the point my noble friend makes. However, there are two issues. Unless one introduces two systems running in tandem to cover the supervision period, under the skeleton framework of proposals about which I spoke for consideration at Report stage, if a person were released by the Parole Board at the 84 per cent. point, it is true that up to the 100 per cent. point of sentence it would be within sentence and clearly would not breach the European Convention on Human Rights principles. I would put a question mark beyond that point during which the supervision period would run. We take the view that once someone is released either under the short sentence system or as proposed under the longer sentence system, that is deemed to be the end of the sentence and the period of supervision begins. There needs to be only one system operating for the supervision period. As it is
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deemed to be post-sentence, it is important that if anyone is to be returned to court—albeit he or she could be returned to custody quickly in emergencies—authority must come from the courts and not as a result of executive action from the Parole Board.
Lord McIntosh of Haringey: Analogies with the intrusive surveillance and executive action under the Police Bill come to mind. The Minister is saying that there is something wrong with executive action which is not authorised properly by an outside body. I am glad to say that we have persuaded the Government that external judicial prior authorisation is required for intrusive surveillance. The analogy is that the action should be taken by an independent body, the Parole Board.
All of that shows that the Government are acting on a stereotype: that the Government are tough on crime but that the Labour Party in particular is soft on crime. It is a totally false stereotype. It is certainly true that we understand being tough on crime as looking for a more effective criminal justice system which includes prevention, detection and conviction as well as sentencing. We regret the concentration on sentencing, the most populist part of being tough on crime, which is the Government's stock response to all those questions. That does not mean, as I think noble Lords will confirm, that throughout the Bill we have not been tougher about sentencing in many cases, and about enforcement of the criminal law, than the Government.
It is certainly not the case that we propose anything in the amendment which is at any risk from the European Convention on Human Rights or the European Court. It is not in any conflict with what has been done before. The only change which has taken place, and which has forced the Government to propose weaker protection for the public, is because the Government are governed by their ideology. I am getting very tired of the Minister being amused by the things that we are saying. I really do wonder whether she can be listening if she finds these matters quite as amusing as all that.
It is the ideology of saying that the period served in custody has to be the same as the original sentence which causes the problem that the Government now have; namely, that they cannot enforce quickly and easily a return to custody simply because the original sentence has expired. My suggestion is not that there should be executive action outside the period of a sentence—at least, not now; we shall return to the Butler Committee proposals on Report. My proposal is that the Government should relax their own ideological identification of the sentence with the period in custody in order to ensure that we can have a more effective system of recall, as now exists and as is proposed by these amendments.
Baroness Blatch: I apologise to the noble Lord for being amused, but I did feel that there was a little bit of electioneering going on in what he was saying.
Perhaps I may put a question to the noble Lord. It would be helpful to clarify where he is coming from on this amendment. The only way in which we can bring the whole of the supervision period into the sentence

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period is by having very much earlier eligible release dates; that is, the 25 per cent. period, the 50 per cent. period for sex offenders, and up to 10 years for certain other sex offenders. The noble Lord has tabled an amendment which he will discuss in a moment suggesting a 50 per cent. period for violent offenders.
If the noble Lord is saying that recall to prison should only be on the basis of the within-sentence period, then he has to come clean and say that he would have an eligible period for parole very much earlier in the period of a sentence. If he is not saying that, my question to him is this. Is he really saying—because it would be new to the Parole Board as it operates now, and certainly a new power for the Government—that it would be possible to give the Parole Board and/or the Secretary of State an executive power to sentence, outside a sentence period, a person to custody without reference to the court?
Lord McIntosh of Haringey: That is a smokescreen, and the Minister knows it. The amendment is about the continuation of the existing powers of the Parole Board within existing Parole Board constraints. I think the kindest way to bring this to a close is to say that my understanding is that the undertakings given by the Minister to the noble Lords, Lord Belstead and Lord Carlisle, will involve a further discussion of these matters and may involve the Government in going further to meet the kind of concerns that are raised by this amendment, as by others. On that basis alone—
Baroness Blatch: I must intervene again. The noble Lord is rather widening the terms on which I gave my noble friends assurances that I will go on to consider their points of concern between now and the next stage. I have made it absolutely clear that we will not consider automatic release; nor will we consider bringing forward to an earlier point the eligible release date. We are talking about making sure that there is a proper risk assessment for release into the community at the 84 per cent. point of sentence.
Lord McIntosh of Haringey: What is the use of having a proper risk assessment unless there is provision for recall if the risk is assessed as being too great? That is what it comes down to. If I have over-estimated the importance of the Minister's undertaking to her noble friends, then I am sorry to hear it—not sorry from my own point of view, but because it would certainly mean that the principled objection that was put forward this afternoon to Chapter I of Part II of the Bill will have to be revived as a principled objection. We would rather deal with it as a revising Chamber and by negotiation. But if the Minister does not intend to put the protection of the public first, above ideology, then so be it. That is the way in which the matter will be debated at later stages. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 15 agreed to.
9.30 p.m.
Clause 16 [Young offenders]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 58:
Page 11, line 31, leave out ("secure accommodation") and insert ("a community home, provided that there has been no absconding or attempt to abscond").
The noble Lord said: Let us try to make this a slightly less emotive issue than the one we have just been discussing. I understand that we are to debate Amendment No. 58 with Amendment No. 59 in the name of the noble Lord, Lord Thomas of Gresford, which covers part of my Amendment No. 58.
This is again a question of "If it ain't broke, don't fix it". The present position is that time spent in accommodation provided for the purpose of restricting liberty but which is not a secure unit can count towards the time of a custodial sentence. The law on this point is governed by Section 67 of the Criminal Justice Act 1967 as amended by Section 130 of the Criminal Justice Act 1988. It provides that time spent on remand by a young defendant in accommodation provided for the purpose of restricting liberty should count towards a subsequent custodial sentence.
There have been recent cases, with which I shall not weary Members of the Committee, which established that accommodation provided for the purpose of restricting liberty was not limited to secure accommodation but also covered other forms of accommodation in highly structured and closely supervised conditions. Indeed, in reflection of that view of the courts, the Department of Health issued a memorandum on 16th May 1995 to directors of social services in which it was stated:
"The Home Office …have taken the view that when a young person is remanded to local authority accommodation and placed in a non-secure children's home with education on the premises, from which he/she is not permitted to leave—
I do not care for the syntax there—
"and who is not permitted to live at home with his/her parents, then the time spent there should count against sentence. In practice this will mean all placements in community homes".
We are not proposing any change here; it is the Bill which proposes a change. The Bill proposes a restriction to the effect that only secure accommodation should count against a custodial sentence. That must be damaging to young offenders. Of course they need to have their liberty restricted (that is the basis on which we are all speaking) but at the same time they may need the wider range of education, training and facilities which would be available in a non-secure children's home—let us not hear talk of secure training establishments again because there are not any; they do not exist—and which might in many circumstances be more suitable to the young offenders without being, strictly speaking, secure accommodation.
We are not opposed to local authority secure accommodation, as noble Lords will know. We have always said that an expansion of local authority secure accommodation is a proper alternative to the secure training centres which the Government proposed. Nevertheless, it is necessary that there should be a wider

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range of the kinds of accommodation which are available to young people who need to be deprived of their liberty in anticipation of sentencing by the youth courts.
I shall not go into a tirade about the youth justice system, as I might well do; and I shall certainly not take any electioneering advantages, which I could do, about the youth justice system; but it is a fact that the Government now propose a change which is retrograde and which would restrict the availability of suitable accommodation for young people awaiting sentence. This amendment to restore the present position should be accepted by the Committee. I beg to move.
Lord Thomas of Gresford: I support this amendment. I speak also to Amendment No. 59, which is in my name.
The Criminal Justice Act 1991 changed the law by extending the Criminal Justice Act 1967, Section 67, to apply to sentences of detention under the Children and Young Persons Act 1933. It subjected offenders ordered to be detained under the Children and Young Persons Act to the same system of early release as adults sentenced to imprisonment. So, prior to the Act offenders sentenced to detention under the Children and Young Persons Act could be released at any time in the discretion of the Secretary of State; but after 1st October 1992 they had to serve half the term before being released or becoming eligible for release in the case of a sentence of four years or more.
The Act required the period of time spent in custody on remand to be treated as having been served for the purpose of determining whether the offender had served half or two thirds of his sentence for this purpose.
Section 67(1A)(c) of the 1967 Act provided that the time during which the offender was remanded or committed to local authority care and was in any accommodation provided for the purpose of restricting liberty should be treated as a relevant period for this purpose.
Those provisions came before the Court of Appeal in the case of Collins on 26th May 1994. The case is reported in 1995, 16, Criminal Appeal Court Sentencing at page 156. That concerned a youth of 14 years of age who pleaded guilty ultimately to false imprisonment and assault and had been detained in a non-secure home. He had been detained in a place that was known as Tong Park and was local authority accommodation. In considering the provisions of the Act, the Court of Appeal said:
"Looking at the matter broadly, it might be thought to be rather puzzling that it was ever suggested that the appellant was not in accommodation provided for the purposes of restricting liberty. If his liberty was not restricted during the pre-sentence period, there do not seem to be strong grounds for arguing that some deduction should be made in the sentence at all".
Mr. Justice Waller, who gave the judgment in that case, said that there was some discussion about it but the Home Office had written to say that the Home Office would have applied the automatic provisions in the case if the sentence in that case had been left alone. In other words, the Home Office view was that being
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detained in local authority accommodation, even though it was not a secure unit, satisfied the provisions of the Act and should be taken into account in determining the sentence.
That was the law as expressed by the Home Office. The Crown adopted that position in the case of Collins and the Court of Appeal said that it was perfectly correct so to do. So we have the position that at present, where a youth is detained in local authority accommodation on remand or as a result of a court order awaiting a hearing, that has to be taken into account. Now what is proposed in this Bill is a change. The onus is upon the Government again to explain why there has to be a change in this Bill, so that only a young offender who has been kept in secure accommodation can have that period of time taken into account and counted as part of the sentence that is ultimately imposed upon him. Why is there that change?
It means that under the proposals in this Bill a young offender who is taken away from his home and kept in a secure unit will have the period of time that he spends in that secure unit taken into account. For the less disruptive young offender who is taken away from home, losing his home life, all his surroundings and so on, and who is ordered to stay in local authority accommodation which does not happen to be a secure unit, that period of time when he is taken away from home does not count.
There appears to be a manifest injustice about that which needs to be resolved. Why have the Government gone back on the position clearly expressed not only by the Home Office and the Court of Appeal but also by the circular to which the noble Lord, Lord McIntosh, referred? The department issued a circular, the terms of which have been quoted and which confirm the position of the Court of Appeal. We require reasons for the change.
Lord Hylton: The amendments appeal to me for two reasons, particularly Amendment No. 58 because it is the stronger. Some young people need their liberty restricting pending their hearing in court. But during that time of restriction it is important, first, that they should be able to maintain their family links and contact as much as possible; and, secondly, that their education should suffer the minimum of disruption. The amendments will help on both those points.
Lord Williams of Mostyn: Is the Minister able to say what the Government's definition is of "secure accommodation" in these circumstances? Also, can he indicate for what period of continuous incarceration the Government believe a young offender can be kept in a community home or a community home with education?
Lord Mackay of Drumadoon: Clause 16(3) sets out the types of remand which should be credited towards a custodial sentence where the defendant is a juvenile. They are time spent on remand or committal to local authority accommodation where the offender is placed and kept in secure accommodation and time spent on committal to a remand centre or prison.

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To deal with the point raised by the noble Lord, Lord Williams, "secure accommodation" is accommodation to which the alleged offender is confined and from which he is not at liberty to depart as and when he chooses. Time spent in such a centre will count towards the sentence under the terms of the Bill as currently drafted. It is not spelt out in detail in Clause 16(3), as the matter is already covered by the definition of a remand to custody given in Clause 8.
The amendments proposed by the noble Lords, Lord McIntosh of Haringey and Lord Thomas of Gresford, would have considerable impact on Clause 16(3). As many Members of the Committee will know, juveniles who are denied bail are usually remanded to local authority accommodation. Once remanded there, the juvenile may be placed, among other places, in a community home. That may be in secure accommodation; it may be with foster parents or with relatives. It is for the local authority to decide where the individual is placed and considerable discretion is given to a local authority in such a situation.
Until recently in calculating the sentence for a juvenile the Prison Service took into account only time spent on remand in prison accommodation or in secure local authority accommodation in accordance with the intentions of Section 67(1)(c) of the Criminal Justice Act 1967. However, two court rulings—the case of Collins, to which the noble Lord, Lord Thomas, referred, and the case of Kerry—found that time spent on remand to non-secure local authority accommodation where the regime is highly structured and the people staying there closely supervised amounted to secure conditions and for that reason should count towards sentence. As a consequence of the rulings in those two cases, the Prison Service when calculating sentence currently takes into account time spent on remand to local authority accommodation even where the accommodation is not secure but where a strict regime is imposed.
Clause 16(3) seeks to reverse the position to what was understood to be the law before those two judgments were passed. The effect of Clause 16(3) is that only the following types of remand will count towards sentence: remand or committal to a remand centre or prison; remand to a local authority where the juvenile is placed and kept in secure accommodation; and, in the future, where a court has ordered a secure remand.
Amendment No. 58 will go even further than either the Kerry or Collins judgments and provides that time spent on remand to an open community home, whatever the nature of the regime, should be credited towards sentence. The only caveat is whether the remanded juvenile has absconded or attempted to abscond.
The Government cannot agree with either of the amendments. Juveniles who are given custodial sentences are held in a young offender institution, in local authority secure accommodation or in a youth treatment centre run by the Department of Health where there are secure conditions. Periods of detention in open conditions in a community home, during which period a juvenile defendant may go to school or take part in leisure activities outside the community home, are not
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equivalent to the period of time spent under a custodial sentence. The Government believe that time spent under such conditions should not fall to be credited towards any sentence that has been imposed.
Whether or not the defendant absconds or even tries to abscond from a community home with open conditions is irrelevant, as the important point is the conditions under which the juvenile is held while on remand. The proper question is whether the remand conditions are comparable to those encountered while serving a custodial sentence. The amendments seek to equate the period on remand with the period of sentence. All that is quite apart from the practical problems that would undoubtedly occur in deciding, on the basis of any objective assessment of evidence, whether or not a particular defendant had attempted to abscond, or had been successful, and had thereby been disqualified from remand credits. The fact that it has not proved necessary to keep an untried juvenile defendant in secure accommodation may be a powerful factor in mitigation in deciding what sentence is to be imposed, but treating a period of remand in non-secure accommodation as part of that sentence is a different matter altogether.
For those reasons, on the clear understanding that all the amendment seeks to do is to restore the law to what it was understood to be before the two cases to which I referred, I hope that neither noble Lord will feel it appropriate to press the amendment.
9.45 p.m.
Lord Williams of Mostyn: Before the Minister sits down, will he deal with the second part of my question? What is the Government's view on how long a young offender can be kept continuously in secure accommodation on a 24-hour basis?
Lord Mackay of Drumadoon: That is a matter for the people running the secure accommodation. As currently framed, the intention of the Bill is that if someone is kept in secure accommodation the extent to which he can leave the accommodation would be entirely under the control of those who run the accommodation. Non-secure accommodation would involve an element of flexibility where, provided the individual kept in contact with the accommodation, he would be abiding by the rules of the accommodation. For the life of me, I cannot imagine a situation where accommodation was secure but individuals were allowed to come and go from it for any part of the day. But it is not impossible that people running secure accommodation for young offenders, having got to know the individual concerned, took the view that it was appropriate for them to allow the individual to leave for a couple of hours during the day. I do not think that would necessarily render the accommodation non-secure. But, as I understand it, secure accommodation makes it clear that those running it determine as and when an individual leaves, if they leave at all.
Lord Williams of Mostyn: What the Minister is saying simply illustrates the absurdity of the Government's stance. Of course the secure

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accommodation remains secure, but the question is whether the young offender is in it. If he is not in secure accommodation, are the Government saying that that counts as time served in custody or not? Are the Government aware of the existence of specific regulations dealing with how long young offenders can be kept in secure accommodation?
Finally, as I am intruding unfairly on the time of the noble Lords, Lord Thomas and Lord McIntosh, what is the difference between a young offender on remand in a community home in relatively open conditions and someone who serves a sentence in an open prison?
Lord Mackay of Drumadoon: The noble Lord makes my point. If the prisoner is serving his sentence in an open prison, that prison is still under the control of those running it as regards the extent to which the prisoner is free to leave the boundary of the prison. He is still serving his sentence. And so it is with secure accommodation. If it is appropriate in a particular case for those running it to release the individual—I find it very difficult to imagine that they would choose to do so—that does not of itself render the accommodation non-secure.
However, if the individual is free to come and go as he wishes, which is certainly the position if he is placed with a relative or a foster parent, then we are in a different situation altogether. That is why the Government believe that it is important to restrict the position to that set out in Clause 16(3). Although the noble Lord poses certain difficulties with the argument that I advance, as I understand it, that was the law for many years prior to the two cases to which I have referred.
Lord Thomas of Gresford: Before the Minister sits down, can he answer this question which arises from his reply to the question that I posed? I asked: why change the situation set out in the case of Collins? The Minister's reply to that, which he repeated a few seconds ago, was that it is the Government's view that they are reverting to the position as the law was understood to be prior to the Collins case. If that is so, what was it in that case that made the Home Office write to Leeds Social Services to say that the automatic provision would have applied to the situation that had arisen where Collins was kept in a non-secure home? Why was it that the Crown adopted that position, presumably on instructions? Later, in the memorandum of 16th May 1995, which the noble Lord, Lord McIntosh of Haringey, has quoted, why was it said:
"The Home Office … have taken the view that when a young person is remanded to local authority accommodation … from which he is not permitted to leave and who is not permitted to live at home with his/her parents, then the time spent there should count against sentence"?
On all those occasions that was expressed to be the Home Office view and also that of the prosecution and their understanding of the law. How can it be said today that the alteration that this Bill proposes to the decision of the Court of Appeal in the case of Collins, and which was repeated in the case of Kerry, is a reversion to what
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the law was previously understood to be? Prior to the case of Collins who understood the law to be as the noble and learned Lord now says it is?
Lord Mackay of Drumadoon: I am sorry if I have not made myself clear. I had understood quite clearly that prior to the case of Collins the law was as I understood it to be. The position had to be reviewed in the light of the two cases of Collins and Kerry to which I have referred. Prior to these cases I am unaware of any dissatisfaction with the law because many people—lawyers and non-lawyers—can readily draw a distinction between keeping alleged young offenders in secure accommodation from which they are not free to come and go as they please, with keeping them in accommodation such as foster homes, staying with relatives or wherever, where they have a measure of ability to come and go to school; to go out to meet their friends; go to youth clubs or whatever else they wish to do, but requiring them to stay somewhere else other than the family home.
That was something that was deemed to work. That was what the law was understood to be. As I understand it, Collins and Kerry changed people's understanding about what the law was. The Government take the view that the division which existed prior to Collins and Kerry was sensible and acceptable. That is why this Bill, in the form in which it is currently framed, draws a distinction between secure accommodation on the one hand and other accommodation on the other.
Lord McIntosh of Haringey: I am sorry to say it but the answers of the noble and learned Lord the Lord Advocate are all over the place. At one stage he said that the amendments go further than Collins or Kerry but then at another stage of his reply he says that the Government are seeking to restore the situation which existed before Collins or Kerry and that this would undo that by confirming the situation after Collins and Kerry.
At one stage he speaks as though the amendment would allow time spent at home or in a foster home or some other designated place as counting against sentence. But then he must recognise that the phrase "community home", which we use in the amendment, has a very precise meaning and it is a precise meaning which has been used by the Home Office in the Department of Health circular which I quoted and which has been referred to since.
In response to my noble friend Lord Williams, the noble and learned Lord acknowledges that a prison sentence is a prison sentence whether or not it is in an open prison. And yet he is not prepared to make that exactly comparable distinction between remand in secure accommodation and remand in a community home. Both of them are places where time is spent on remand and both involve the deprivation of liberty. Both of them are as much capable as counting against a custodial sentence as is a sentence in a secure prison as compared with a sentence in an open prison.
We have protected the position of the community home in Amendment No. 58 by saying that, if it were to be used in the way that the noble and learned Lord suggests and the young person then absconds or tries to

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abscond, the provision would no longer apply. In other words, absconding or attempting to abscond automatically disqualifies the period from counting against the sentence.
The noble and learned Lord the Lord Advocate refers time and again to the purposes of Clause 16(3) but, if he turns to subsections (4) and (5), the assumption, for the purposes of subsection (2) or (3) of the clause is,
"that the prisoner's behaviour had been such as to entitle him to the maximum number of early release days available under that subsection."
The analogy is very precise. If it applies for early release days, it should apply whatever kind of deprivation of liberty has been undergone.
Let us leave aside the legal arguments. The social reason for proposing the amendments is that a wider range of accommodation on remand is for the benefit of the young person concerned and for the benefit of society. If the balance between, for example, education and training in a community home is in favour of that choice as opposed to the real necessity for security against absconding, that should be the proper place of remand; that should be the decision of those responsible for the remand; and that should not affect the ultimate sentence which is served by the young person.
If there is not to be a proper judgment based on the needs of the young person concerned as between secure accommodation and a community home, and if that judgment is to be distorted by the length of the sentence that is finally awarded, the interests of justice are not being served. The public is not protected and the chances of weaning a young person away from crime are not being properly considered.
This is not the time of night at which to divide the Committee on the matter; but I am profoundly dissatisfied with the answers of the noble and learned Lord the Lord Advocate. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 59 not moved.]
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 60:
Page 11, line 36, leave out ("16") and insert ("21").
The noble Lord said: I beg to move Amendment No. 60. The amendment refers to Clause 16(4). This is an interesting illustration of the problems that arise from the regime proposed by the Government. The prescribed person shall assume that the prisoner's behaviour has been such as to entitle him to the maximum number of early release days available if he is under 16. I do not know whether that is a rebuttable or irrebuttable assumption. Does it mean that the prescribed person starts off by assuming that the prisoner is entitled to the full amount but it can be reduced if the prisoner does not satisfy the prescribed minimum conduct? What does it mean?
The essential purpose of this amendment is to ask the Government why it is set at 16. Young offender institutions contain people between the ages of 15 and 21. A cut-off point of 16 seems to be an arbitrary
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decision. Up to 16 there is an assumption, rebuttable or irrebuttable, that days of release have been earned. If the Government seek to draw a distinction they will create trouble within young offender institutions, as has been said so many times today. What people look for is their early release date to discover when they can get out. If there are to be distinctions all kinds of tensions are likely to arise in young offender institutions. We seek to discover why 16 has been arbitrarily chosen.
Baroness Blatch: Clause 16(4) specifies that prisoners under 16 years of age, or those who have been detained in local authority accommodation or in a home provided under Section 82(5) of the Children Act 1989, should be awarded the maximum number of provisional early release dates available under Clause 10. Amendment No. 60 proposed by the noble Lord, Lord Thomas, would extend this provision to all prisoners under the age of 21. Amendment No. 61 to Clause 16(5) makes a similar change in respect of remanded prisoners. Clause 16(5) makes provision that those who are under 16 years of age or those who are remanded or committed to local authority accommodation and placed and kept in secure accommodation under Section 23 of the Children and Young Persons Act 1969, or Section 37 of the Magistrates' Courts Act 1980, should be provisionally awarded the maximum number of early release days. Amendment No. 61 would extend these provisions to those under the age of 21.
Both Clauses 16(4) and 16(5) provide adjustment to other parts of the Bill so as to take account of the special arrangements that are necessary for children and young people who offend or are so accused. They recognise in part that some children and young people under 16 years of age lack a level of maturity appropriate for the adult provisions to apply directly to them. In addition, some of these children and young people will be held in accommodation outside the prison estate where the regimes are different and where it would be inappropriate to operate the earned early release provisions in the Bill in exactly the same way as in prison. Such children are usually under the age of 16. Young people can, however, also be held in a young offender institution from the age of 15. To ensure equal treatment of such young people, we have provided for the same release arrangements to apply to them wherever they are held.
The two amendments proposed by the noble Lord, Lord Thomas of Gresford, would significantly affect Clause 16, subsections (4) and (5), and widen these special provisions to include those aged under 21 years of age. The proposed widening of these provisions to include young adults aged 16 to 20 years is entirely inappropriate because this older age group, which would be included by the proposed amendment, does not fit well with either of the two special reasons which underpin these provisions. The older age group typically has a greater maturity which is well able to understand and comply with or exceed minimum standards, and the vast majority will be held in young offender institutions within the prison estate under regimes which are comparable to those applicable to adults. We see no reason whatever to extend the provisions in this way.

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I hope it was a slightly rhetorical question: what is the difference between the number 16 and the number 21? Those of us who are parents know that there is a very real difference between a child aged 16 and under compared with a person who is 21 years of age.
Lord Thomas of Gresford: Let not the noble Baroness assume that I do not have children of my own. That is not the case; I have been there, done it. But would the noble Baroness be good enough to answer my specific question as to whether this assumption is rebuttable or not? She used two different expressions. She said that the person concerned should be awarded the maximum number of early release days; then later in her reply she said that they should be provisionally awarded the maximum number of early release days. Which is right? Is it the first, an irrebuttable assumption, or is it the second, that if they do not reach the minimum standard, just like anybody of an older age, they do not get their maximum number of early release days?
Baroness Blatch: The intention is that it should be an irrebuttable assumption.
Lord Thomas of Gresford: On that assurance, I seek leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 61 not moved.]
Clause 16 agreed to.
Clause 17 [Sexual offenders]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 62:
Page 13, line 40, at end insert—
("(7) The Secretary of State shall secure the availability of facilities to provide programmes of treatment designed to reduce the likelihood of further sexual offences so that any requirement that a sexual offender shall participate in such a programme as a condition of his release supervision order may be complied with.").
The noble Lord said: This is an amendment of great importance, particularly bearing in mind what the noble Baroness said earlier this afternoon, with which I for one entirely agree. She said on one occasion that the Government attach great importance to the breach of conditions of supervision. I entirely agree with that. It is critical to the assessment of these measures.
Secondly, she said that the Government were concerned with better protection for the public. Of course, we entirely agree with that. This amendment, in the context of Clause 17, is to make proper provision for conditions of supervision and therefore to provide a better protection to the public in particular circumstances.
Sexual offenders, in my belief and in the experience of many practitioners, offer a particular problem. They are a menace to the public. Many of them are extremely devious. Many are quite able to reconcile themselves to "good behaviour", to put it neutrally, in prison—that is conformist behaviour. But it is difficult to deal with what may be a pattern of recurring sexual offences, particularly where small children are involved.
This amendment obliges the Secretary of State to make available facilities to provide programmes of treatment designed to reduce the likelihood of further sexual offences so that any requirement that a sexual offender shall participate in such a programme as a condition of his release supervision order may be complied with. In other words, if there is a sexual offender who is going to be released, part of the condition of his release supervision order may be that he attends at a programme of treatment which is designed to reduce the likelihood of re-offending in a sexual context. It should be an obligation on the Secretary of State to make those facilities available.
There would be a degree of expense and I put that in the context to which the noble Lord, Lord Carlisle, referred on Second Reading; £0.5 billion a year for new prisons. It is a prudent step for the protection of a particularly vulnerable section of the public and their relatives and friends. It means that one has conditions of supervision which can be carefully accommodated within the provision that the amendment would require. I beg to move.
Lord Carlisle of Bucklow: I do not pretend fully to understand the detail of the amendment, but it appears to be the way in which the Committee, the Government and Parliament should be proceeding in dealing with the real problems of sex offenders, in particular those who offend against children. I hope that, even if the amendment as it stands is not appropriate, the Government will welcome the intention behind it.
Earl Russell: It is not within the purpose of the present amendment but in a redrafted amendment that I have another aspect which I hope will be included. It is the treatment of men who repeatedly perpetuate domestic violence. It is an offence in which there is a large recidivist tendency which causes a great amount of hardship, dislocation, dismay and expense.
Punishment alone does not seem to have the necessary curative effect. Attempts have been made to provide treatment and the Home Office has been involved in funding some of them. It could be a cost-effective, humane and sensible way of dealing with a real mischief.
Baroness Blatch: Perhaps I may begin with the point made by the noble Earl because I regard it as being very important. Those of us who knew Baroness Faithfull will know that she was a doughty fighter for what was originally the Gracewell Clinic. It closed due to problems but reopened as the Faithfull Clinic. I was most pleased to carry on that doughty fight within the Home Office. We secured funding for the clinic, which is working well and hope to evaluate its work. That such a programme is important is beyond doubt.
It is true that the rehabilitation of sex offenders causes all the authorities the most difficulty. The noble Earl was right in saying that recidivism is high among sex offenders. It is a particular problem and any way in which one can address it is important. The increase

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in the number of programmes in our prisons is particularly pleasing. It means that during the custodial part of the sentence treatment programmes are in order.
I share the concern that sex offender treatment programmes should be readily available to meet an identified need, but we do not need the amendment to achieve that. Perhaps I may say to the noble Lord, Lord Williams of Mostyn, because I know that it is the premise behind the amendments, that if it is a condition of supervision the provision must exist. It is no good making breaching a condition of supervision an arrestable offence if the person in default is the Secretary of State or the Probation Service, which would be the front line service for making the provision.
The Probation Service already has the responsibility, which it is used to meeting, to design, provide and promote effective programmes to tackle all aspects of offending behaviour, including sex offending. I am aware that when the issue was discussed in another place concern was expressed that the proposals in the Bill would place an additional burden on the Probation Service. Although we expect the overall effect of the provisions to be broadly cost neutral for the Probation Service, we have promised to keep the matter under review.
There will of course be some savings arising from the "honesty in sentencing" proposals in the Bill—the point made earlier by the noble Lord, Lord McIntosh, that some sentences will be longer on custody and shorter on supervision—which are largely likely to offset the additional costs arising from the provisions for extended supervision for sex offenders. Probation committees receive grant allocations to support their programmes based on workload and demographic indicators of needs. It is for individual services to decide on spending priorities.
Well-designed and properly delivered sex offender treatment programmes will obviously play a major part in assisting sex offenders to tackle their offending behaviour. That is borne out by research. In October last year the results of a Home Office research study concerning the two-year reconviction rates of a small sample of sex offenders who received treatment in the community were published. The study indicated that such treatment not only has a positive effect on offenders' attitudes but also on their reconviction. Although the probation service has no national equivalent to the prison service sex offender treatment programme, treatment programmes are nonetheless widely available within the community. Almost all probation services now run treatment programmes and, in addition, the Government provide funding to the Wolvercote Clinic, a residential sex offender treatment programme which specialises in treating men who have abused children with whom they have established a relationship.
To aid the probation service in its work, Her Majesty's Inspectorate of Probation has embarked on a thematic inspection of probation service work with sex offenders. The outcome of that inspection, which should be available later this year, should provide a
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useful tool for probation services to improve the quality and effectiveness of sex offender treatment programmes provided locally.
Programmes to tackle all aspects of offending behaviour—which, interestingly, is why sex offending should be particularly singled out on the face of the Bill—are made available by the probation service on the basis of need. The issue is best left to the probation service, which will play an integral part in determining and influencing conditions of supervision. The service is best able to identify the need for, and take steps to provide, the specific treatment to tackle a particular type of offending, including treatment for sex offending. For those reasons we cannot support the amendment going on the face of the Bill but we have every sympathy and empathy with the sentiments behind it.
10.15 p.m.
Lord Williams of Mostyn: I am disappointed not with the tone of what the Minister says but with the conclusion that she offers us. Of course, I agree—and this is the motive behind the amendment—that there is no national equivalent for the treatment of sex offenders out of the prison system to correspond with a national regime within the prison system. That is what troubles us.
We are suggesting a scheme which, as the Minister said, the sample shows to be cost effective, practical and one which would bring about proved public protection. Leaving it to individual probation areas simply will not do, for two obvious, practical reasons. First, if a judge is sentencing someone and has in mind particular treatment for a sexual offender who may be a sexual recidivist, he can only sentence on the basis of available resources. If the available resources are not there, that is one sentencing option which will not be open to him.
Secondly, if the probation service in the area is tightly strapped for resources, which many of them are, in preparing the appropriate report for the court the probation officer will simply not be able to offer such an alternative for the court to consider. That is not a criticism of the Minister, because I know that she shares my views about the particular problem of recidivist offenders. This has nothing to do with party politics at all. When one considers the resources that may be applied elsewhere in other aspects of the Bill, it is very disappointing that the amendment cannot be accepted by the Government. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 17 agreed to.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 63:
After Clause 17, insert the following new clause—
EXTENDED RELEASE SUPERVISION ORDER FOR VIOLENT OFFENDERS
(".—(1) Subsection (2) applies where—

(a) an offender who has been sentenced to imprisonment for a term of four years or more in respect of a violent offence

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committed after the commencement of this Chapter is released under this Chapter; and

(b) the court by which he was sentenced gave a direction under subsection (3) below.

(2) Section 13 above shall have effect in relation to the offender as if for subsection (2) there were substituted the following subsection—
"(2) On his release, the offender shall be subject to a release supervision order

(a) where he is released otherwise than under section 9 above, for such period as is specified in the direction under section (Extended release supervision order for violent offenders) (3) below;

(b) where he is released under section 9 above, for a period equal to the aggregate of—

(i) the period mentioned in paragraph (a) above; and

(ii) a period equal to so much of the remainder of his term as he would have served but for his release under section 9 above;

and in applying paragraph (b) above account shall be taken of any early release or additional days awarded to the offender before his release."
(3) Where a court sentences an offender to imprisonment for a term of four years or more in respect of a violent offence committed after the commencement of this Chapter, it may give a direction under this subsection.
(4) A direction under subsection (3) above shall direct that the offender's release supervision period shall be such period as is specified in the direction.
(5) The period so specified shall be a period equal to more than 25 per cent but not more than 50 per cent of the offender's term of imprisonment (rounded up to the nearest whole day).").
The noble Lord said: The effect of Amendment No. 63 would be to extend the period of supervision for serious offenders; in other words, those sentenced to four years or more who are also violent. I shall not go over the ground that we dealt with earlier this afternoon when we considered whether Clause 7 should stand part of the Bill and subsequent amendments. I shall draw attention only to the conclusion of that discussion when we drew attention to the remarks of Mr. Maclean in another place on 10th December last year on the issue of parole and whether parole improved the chances of a prisoner staying straight.
There was disagreement about the evidence from the Home Office. However, the important point to refer to here is Mr. Maclean's observation when he said:
"There is no evidence whatsoever that parole, rather than well-targeted and effective supervision, leads, of itself, to a reduction in offending".—[Official Report, Commons, Standing Committee A, 10/12/96; col. 342.]
I do not agree with that. I think that his assessment of the effectiveness of parole is based on, at the very least, a misinterpretation of the Home Office research. However, I draw attention to the point about,
"well-targeted and effective supervision.
That is the thrust of this amendment.
A similar amendment was moved in Standing Committee in another place. The Minister pointed out that the provisions of Clause 1 of the Bill would create a larger number of automatic life sentences which would therefore make extended supervision possible. He said that,
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"Of the 1,900 violent offenders sentenced to custody of four years or more in 1995, we estimate that 120 would have been eligible for an automatic life sentence had the Bill been then in force".—[col. 341.]
Regardless of any amendments carried last week, the point is that even under the Government's proposals, that is only 6 per cent. of violent offenders; 94 per cent. of violent offenders would not have received automatic life sentences and would not therefore have the possibility of continued supervision—indeed, supervision for life.
What is the position about extended supervision under the Bill? It is difficult to sort out. We are clear about the present situation. In the case of a prisoner who receives an eight-year sentence, with parole that means four years in custody, two years on parole and a further two years at risk. The Government may not like that; indeed, they clearly do not, but that is the present situation and it is reasonably clear. The question of whether there will be more or less supervision now under the provisions of the Bill is much less clear. Someone who is released on parole would receive a shorter period of post release supervision under the new proposals, whereas the long-term prisoner who does not receive parole would receive a longer period of supervision under the Bill's proposals. We have to accept that there are pluses and minuses in terms of supervision for different cases under the Bill's provisions.
I wish to draw an analogy with what the Government themselves have stated about sex offenders. This relates to the amendment just moved by my noble friend Lord Williams of Mostyn. As recently as June 1996 the Government's consultation document Sentencing and Supervision of Sex Offenders stated:
"the length of post-release supervision for the majority of sex offenders is at present directly proportionate to the length of time spent in custody … The longer the period of supervision on release from custody, the greater the opportunity for the probation service to continue to work with the offender to address his offending behaviour, to assess the risk he poses to the community and to take steps to minimise that risk by arranging further treatment or helping the offender to avoid a relapse".
Those are wise words but, I suggest, they should apply also to serious violent offenders—those covered by the amendment. I believe that we are all in agreement about the way in which sex offenders should be treated. I am encouraged to believe that by the responses of the Minister to my noble friend's arguments. But we want to provide an extended supervision period for violent offenders. That is not adequately provided by Clause 17 of the Bill. It is provided for by the new clause.
In relation to the supervision of violent offenders, the provision does not go as far as Clause 17 for sex offenders. It does not require the courts to order extended supervision, but merely gives them a discretion to do so. It is limited to the more serious cases where sentences of four years or more have been passed. That is equivalent to six years or more under the existing rules.
It is, therefore, a rather modest amendment. In cases involving serious, violent offenders the amendment gives the court a discretion to award longer periods of supervision. In other words, in keeping with the way in which we have been approaching this part of the Bill

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throughout, the provision is concerned primarily with the protection of the public. On that basis alone, I believe that it should commend itself to the Committee. I beg to move.
Baroness Blotch: I share the concern that the law should provide greater protection for the public from the most serious violent offenders. That is why in Clause 1 of the Bill we have automatic life sentences for those who commit repeat serious violent offences. I also support the view that a period of supervision is valuable for any offender who is released from a significant spell in prison. We have provided for that in the Bill by way of a statutory period of post-release supervision which, following an amendment in another place, now represents a period equivalent to 25 per cent. of the sentence length. This means that an offender sentenced to four years' imprisonment will, on completion of his sentence be subject to 12 months' supervision by the probation service during which time the service will continue to work with the offender to build on work started in prison to tackle his offending behaviour.
But, however valuable the supervision period, the case for increasing it still further for a particular group of offenders, and violent offenders in this case as this new clause proposes, I believe should be considered further.
The group of violent offenders covered by the proposal are among those who receive the longest sentences. Some of them will receive an automatic life sentence under Clause 1 of the Bill and will be supervised for life. As the noble Lord mentioned, of the 1,900 violent offenders sentenced to custody of four years or more in 1995, we estimate that about 120 would have fallen into this category.
Those who do not will nevertheless receive long prison sentences. And we have made one particularly important improvement in supervision arrangements as compared with the present arrangements for prisoners when they are released. Under present arrangements an offender who is held until the two-thirds point of sentence because he is not granted parole is supervised for only 8 per cent. of sentence—or less if he has any additional days to serve. Under the Bill, an offender's supervision period will be 25 per cent. of sentence whenever he is released. This means both that serious violent offenders will spend a lengthy period of time in prison, during which time they are very likely to be involved in treatment programmes to tackle their offending behaviour, and that they will be subject to a lengthy period of supervision when released, which will allow action to build on the work begun in prison.
Perhaps I may illustrate the point by giving an example. In the Bill as it stands, an offender who receives a four-year sentence will serve between three years and four months and four years, and, on release, will be supervised for 12 months. The equivalent sentence under present arrangements is six years. An offender who received no parole would serve four years and be supervised on release for only six months. In other words, the supervision period under our proposals would be twice as long as it is at present.
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The amendment tabled by the noble Lord, Lord McIntosh, seeks to apply to some serious violent offenders supervision arrangements similar to those which the Bill provides for sex offenders. But it has long been recognised that sex offenders are considered to be different from other offenders including violent offenders, and it was on that premise that the Criminal Justice Act 1991 made provision for a longer period of supervision for sex offenders. For example, sex offenders tend to continue offending for much of their lives; many violent offenders stop offending earlier. Sex offenders tend to escalate in their offending; often violent offending appears to be more random, sometimes the result of loss of control, alcohol or drugs. Sex offences are clearly defined in the Criminal Justice Act 1991; violent offences cover a very wide range of behaviour.
It is important to target supervision effectively. The Bill provides lifelong supervision for the most serious violent and sex offenders. It provides extended supervision for other sex offenders because for those offenders there is a clear and specific need. And it provides supervision periods commensurate with the seriousness of the offending and proportionate to the prison sentence imposed for other offenders.
We see one or two problems in relation to the amendment before us. I do not reject the noble Lord's proposed amendment out of hand; indeed, I am very sympathetic to it. We share the same aim. But, first, can I assume that, as the noble Lord wishes supervision to be within the sentence period (if one takes all the amendments together that the noble Lord is supporting) then the eligible release date for a violent offender would have to be at the 50 per cent. point in order to contain the supervision period within the period of sentence.
Secondly, there is not a definition of violence. My question is: would it include Section 47, Section 18 and Section 20 violent offences; or would it include any violent offence that attracted the sentence set out in the amendment?
Thirdly, does the reference to "four years" mean four years as of now—which would mean a sentence of two years and eight months—or would it be four years under the new proposals, which represents a sentence equivalent to six years? It is important to know whether the noble Lord is using an old or a new version of the four years.
Under the amendment the court is not required to give reasons for the extended supervision. I can only imagine that is an omission that the noble Lord would want—if the court varied the supervision order, reasons would be given in open court.
I recognise that the noble Lord has moved from the rather inflexible position of the amendments tabled in the House of Commons proposing a fixed period of 50 per cent. for violent offenders—again without definition and without explanation of the four-year period. It would be right, were we to go down this road, that the discretion of the judge should be considered because of the wide variety of violent offences that can be considered. In that case it would be very important

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for the court to spell out precisely why there was an extension and a movement away from the standard 25 per cent.
The amendment introduces a discretion for the courts. We accept that. I should like to consider that further. But we have a number of questions about the amendment before us. I wonder whether the noble Lord will help us with the answer to some of those questions.
Lord McIntosh of Haringey: That is very interesting. The Minister is saying in effect not only that the intention of the amendment is good but that, subject to a number of relatively minor reservations of which I took a note and can certainly answer, the Government may well be prepared to consider a proposal along these lines at a later stage. I am deliberately putting words into the Minister's mouth because I do not believe that her reservations about the wording were particularly serious.
The first one, which relates to the release date and the fact that it is our wish that the release supervision order should be considered within the period of the sentence, is probably the most serious. That, of course, is exactly the kind of issue which is open for discussion.
Baroness Blatch: Let me make it plain once more. I have said several times today that we are not contemplating an earlier release date. The discussions we are having with my noble friends address their concerns about the safety of releasing prisoners, the arrangements for that release, a proper risk assessment at the time of release and the conditions to set down for supervision. We are not talking about the whole supervision period being within the sentence period. I have said this to the noble Lord once; I say it again and I shall continue saying it: we are not contemplating earlier release dates for anybody.
Lord McIntosh of Haringey: The Minister indeed said that before and I give the same response as I did then: behind all the amendments we have been proposing has been a principled objection to what is in effect the abolition of parole and the remission system.
Release dates are one of the considerations in that change. Unless either release dates are a matter for discussion or there is the possibility of supervision continuing outside the period of sentence—which, as I said before, comes back to the reviewable sentence proposals of the Butler Committee—we shall not get very far in discussions.
Lord Carlisle of Bucklow: I wish to make it clear, in view of what my noble friend said, that I fully accept that what she said is exactly what she said earlier to me and, I assume, to my noble friend Lord Belstead.
I must also make it clear that, in welcoming the fact—as I hope I did at the end of the discussion on Clause 7—that the Minister is willing to consider the restoration of parole, I should not be taken as in any way accepting the limitations of her argument that there
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should be no movement in the release date. I do not think that my noble friend thought for a moment that I was accepting those limitations.
Maybe the Government will not agree, but I hope she did not think that I in any way implied that I did not intend to continue to press her to reconsider the matter, although I accept that she made it clear that at the moment the Government's intention to look at this matter was based merely on restoring parole. I would argue that, if the question of the restoration of parole is considered, some area wider than the 84 per cent. should be covered.
Baroness Blatch: I understand what my noble friend is saying. Perhaps I can separate the two matters. In agreeing to consider the matter further for the Report stage, I have made two things very clear. We are not prepared to go down the road of contemplating automatic release; nor do we wish to go down the road of earlier release than that we have been talking about. I shall continue to be pressed by my noble friend because it would be entirely characteristic for him to continue to press me. However, the only way in which this amendment can be accepted within the sentence is that a violent offender would have to be released at the 50 per cent. point of sentence. The whole purpose of the Bill is that we shall not release violent offenders, or indeed anybody, into the community at 50 per cent. of the sentence.
Lord McIntosh of Haringey: All of these matters have knock-on effects on each other. If it is indeed the case that we cannot persuade the Government either by force of argument or by force of numbers that they are mistaken, we shall have to look at the other options available to us. One of those options is reviewable sentences and the possibility that supervision might continue after the end of the sentence. That cannot be wholly ruled out.
The Minister challenged me on the definition of violence. There are plenty of definitions of violent offenders, as she well knows. I am sure that in discussion we can reach an acceptable definition, just as there are acceptable definitions of sex offences.
The noble Baroness challenged me on the question of whether I meant four years now under the present situation or four years then. I thought that I had made it clear in the example I gave that I meant the four and six years rather than the four years and two years, eight months. But, again, that is a matter for negotiation. I do not feel strongly about it. I think she will realise that there will have to be amendments at Report stage which will seek to redefine the definition of serious offences in terms of the length of the sentences.
The noble Baroness's fourth challenge was that I had omitted to say that the courts should give reasons for extended supervision periods. I readily agree with that. Of course they would have to do so. I cannot imagine that it would have to be on the face of the Bill, but, if necessary, a further amendment could be introduced to that effect. However, I shall consider whether it should be on the face of the Bill.

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I emphasise again that this amendment would merely give a discretion to the courts to award a longer supervision period. Since we all agree that that would be desirable, I cannot believe that it is beyond the wit of man or woman to reach a conclusion about a suitable wording to achieve it. In hope of that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 18 agreed to.
Clauses 19 to 21 agreed to.
Clause 22 [Continuity of sentencing]:
Lord Carlisle of Bucklow Lord Carlisle of Bucklow moved Amendment No. 64:
Page 16, line 19, leave out from ("to") to end of line 21 and insert—

("(a) two-thirds of any term of four years or more which, at that time, it would have held to be appropriate if the offence had been so committed; or

(b) 60 per cent of any term of less than four years which, at that time, it would have held to be appropriate if the offence had been so committed.").

The noble Lord said: If, in moving this amendment, I were to say that it was my intention to divide the Committee, I believe that I should be listened to with a degree of derision. Therefore, I can assure the Committee that that is not my intention. But that does not mean that there is not a serious point behind the amendment, which is to try to meet what the Government say are their intentions.
We now come to a clause which attempts to meet the contention of the Government that one can move to real time sentencing without in fact increasing the period spent in prison by those whom the courts sentence to imprisonment. To achieve that end, it is the intention of the Government, as clearly set out in this clause, that when this part of the Bill comes into effect courts should impose sentences shorter than they are imposing at the moment. The Home Secretary will then be able to say that the time spent in prison equates with the length of the sentence passed—not by bringing the time spent in prison up to meet the length of the sentence passed but by reducing the length of the sentence passed to equate with the time spent in prison.
This was first spelt out in the White Paper, where the Government said in terms that that was their intention. The White Paper states that it is expected that judges will,
"take into account, when passing sentence, the abolition of parole and the changes in early release arrangements".
It further states that:
"the Government does not expect these proposals to result in a general increase in the period of time offenders serve in prison".
As I said, to achieve that end the Government have said in that section that in future when coming to sentence the court will be required to ask, "Now, had I been sitting in 1997 in the early months of that year before the passing of this Act, what is the sentence that I would have passed? And, having decided in the year 2002 what is the sentence I would have passed in 1997, I must, since this Bill is now in effect, reduce that sentence by two-thirds."
If one is dealing with cases in which a sentence is about four years, then I accept that, by saying the sentence should be 66 per cent. of the sentence which would be passed at the moment, the Government achieve their aim that the sentences passed for the longer-term offenders are likely to accord with the period they at present spend in prison. They will equate the 66 per cent. sentence to the 66 per cent. of the existing sentence that those who do not achieve parole serve, and whether or not parole is achievable is undefinable in advance.
But what of those who at the moment come out at the 50 per cent. point because their sentences are shorter than four years? There, the Government have said that the sentences should be reduced by 66 per cent. to take account of the fact that, rather than coming out at the 50 per cent. point of their sentence, they are in future apparently to come out at the 84 per cent. point. But, having done those mathematics, the fact remains—as the Minister agreed earlier today—nevertheless the effect is to increase all prison sentences for those sentenced to up to four years (which, as she said, is the vast majority of offenders) by 11 per cent. Therefore the purpose of this amendment—which says that for sentences up to four years, the court should give a sentence of 60 per cent. of the sentence it would otherwise have given—is to try to meet that problem. If it gave 60 per cent. rather than 66 per cent. of the sentence it would have given, then the period in prison, if the person received the full advantages of early release, would equate to the 50 per cent. of the sentence that is served at the moment.
Of course that is nonsense, and I accept that it is nonsense. That is why I said I do not propose to press the amendment to a Division. I wish to make the point that, if the Government say that their intention is that sentences should not be increased, then they should be saying that courts must give 60 per cent. of the sentence they would pass rather than 66 per cent. I hope that by raising this issue I shall persuade the Government at least to consider the problems they may be causing by the increased pressure which will be brought to bear on our prisons.
Perhaps I may make one final point. I was interested to hear and accept totally the point made by my noble friend, though I was surprised when she said that the predictions of the future prison population had taken account of the fact that the Bill's effect would increase by 10 per cent. the time spent in prison by those sentenced to up to four years. I say that because the White Paper said a key assumption was that, when imposing a sentence other than the mandatory minimum sentences, courts would take full account of the changes. Therefore it was not intended that there should be a general increase in the time served in prison.
It would be reasonable to assume from that point that the Government's proposals were neutral. I believed that that was the intention until it was pointed out to the Home Secretary that what was said in the White Paper would in fact lead to a reduction in sentences rather than the reverse, as a result of which the proposal for 66 per cent. was included in the Bill. Of course I accept

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that that is so, but I still believe that the additional pressure put on prisons is unnecessary and that the money could be better spent elsewhere.
At this late hour I am encouraged by one thought. If one looks at the end of that same chapter on resources, paragraph 13.7 deals with how these matters might be implemented. It states:
"The remaining proposals for honesty in sentencing and mandatory minimum sentences for domestic burglars could then be implemented [subject to the building programme) two years later—in October 1999".
Should, regrettably, another political party be in government at that stage, the provisions may not see the light of day. Should, as I desperately hope, my own party be in power at that stage, I trust that by 1999 it will have been persuaded that the provisions introduced in 1992 were so sensible that it would be unwise to alter them after all.
Lord Hacking: Perhaps I may intervene for a few moments. I am very glad that my noble friend told us at the beginning of his address to the Committee on this amendment that we should not take the amendment seriously. I was therefore happy to hear him say that what we should be taking seriously is the need of the Government to have to place Clause 22 in the Bill at all. That need arises out of what I believe to be a most regrettable change in the Government's penal policy in introducing new measures which (but for this clause) would result in, if the Bill goes all the way to enactment and enforcement, prisoners serving different sentences in prison for the same offence.
We must look at the clause itself and how it would operate. I have to say to my noble friend and to the noble Lord, Lord McIntosh, that their amendment does not help one whit in the actual operation of the clause. If a judge was thinking of passing a sentence of three years, six years or nine years, it would be a matter of fairly easy arithmetic for him to apply his mind to Clause 22(1) and (2) and reach a period of imprisonment which was at a rounded figure. But if the learned judge was thinking of a different period of imprisonment—for example, five years—he would then face a somewhat difficult arithmetical calculation.
I do not tell the Committee that I am necessarily right, without a calculator and sitting in the Chamber as the noble Lord was speaking, in my calculations, but I have calculated that if the judge was wishing to impose a five-year sentence or would have wished to impose a five-year sentence, before the Bill came into force, and therefore had to turn his mind to Clause 22, the actual result of that would be that under Clause 22(2) he would have to apply a sentence of 3 years, 108.32 days. One would hope that he would not go to that detail but that is the consequence of the kind of arithmetical calculation that the judge—I have to put it this way—would absurdly have to apply.
I took the period of five years for a reason. When my right honourable friend the Home Secretary was
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originally having his first thoughts—if I may describe it in that way—about this new sentencing policy he actually said at a Conservative Party conference that, "Five years will now mean five years". Therefore, one must assume that five years is a period of imprisonment that the Home Secretary had in mind when he was introducing this Bill. That is why I chose the period of five years and made the calculations, which I put to the Committee, on the basis of five years. Indeed, in the law courts, five years is the kind of rounded figure that judges choose when appropriate for the offence.
So the basic question which I understand my noble friend to be asking and which I certainly ask of the Committee, is this: Does this change in penal policy make sense? Is it meeting a public demand that more should be done to deal with the problems of criminality now, at the end of the 20th century and at the beginning of the 21st?
When my noble friend the Minister addressed the Committee earlier on this matter she said, stepping aside from the views of the judiciary, that she was travelling on the upper deck of a London bus. I speak as a lawyer, but she did not choose to say that she was on a Clapham omnibus and, therefore, that she would have had next door to her "the reasonable man" who was somehow identified in the 1930s, I believe, by Lord Atkin—I hope that the noble Lord, Lord McIntosh, is enjoying this little legal seminar—in order to establish the test of reasonability in civil cases.
But what I am concerned about, with my noble friend, is that I believe she misjudges the views of her fellow passengers. All I can do is to encourage her, in a very humble way, to start talking to our fellow passengers on the upper deck of the omnibus even if she is not travelling on the Clapham omnibus. If she talks to them I believe that she will find that her fellow passengers will say, at the point of sentence, when somebody has committed a very serious crime, "Yes, there should be a severe sentence. They should be passed at 10 years, 15 years or even longer". I believe that she will also hear from them that in certain cases that period of imprisonment should mean exactly that—10 years or 15 years. The most painful example of that is the Moors murder case, where the view has been taken by successive Home Secretaries that a life sentence for the two accused means a life sentence.
However, when my noble friend is travelling on the omnibus, I believe that she will find many fellow passengers who say, "There is a time for clemency; there is a time for the operation of the parole system; there is a time to let people out; that the public need for the condemnation of the offence and the passing of a severe sentence has been spent and that we now should move on because we cannot stay there. The Chief Whip is acting as the conductor at the moment and he is wanting to collect the tickets. I say to my Government Chief Whip that this is the only intervention that I have made in Committee this evening, and therefore if I have taken a little time I apologise to the Committee. But I have a very serious point, which is that Clause 22

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identifies the mistaken policy of the whole Bill and produces an absurdity. That is why I believe that it should not be there.
Lord McIntosh of Haringey: I have no particular objection to legal lectures, but I am not very keen on them at nearly 11 o'clock at night. I suspect that my attention span is shorter than it might be at other times of the day. I shall confine my remarks to Clause 22 and not to the generality of the Government's policies.
It is a self-contradictory clause, which purports to say in subsection (1) that people should spend the same time in prison as they would have served if the offence had been committed before the commencement of this part of the Bill. Subsection (2) fails to achieve that because it fails to recognise that there is a difference in the release procedures between those sentenced to more than four years and those sentenced to less than four years.
The amendment which has been moved and to which I have added my name, is a gross over-simplification. To correct the matter should not be to put in two-thirds for over four years and 60 per cent. for over four years. It should be an algebraical formula which reflects that part of the spectrum of sentences which is over four years and that part which is under four years. But there is no doubt—and Mr. David Maclean in the Commons acknowledged this—that, mathematically, subsection (2) does not achieve the objectives of subsection (1). Therefore, purely rationally and objectively, this amendment is better than the Government's proposals, even though it is not sufficiently accurate.
I am sorry to say that my fear is much more that judges will not find it possible to reduce the nominal sentences so that there is not an increase. I find the memorandum on the financial effects of the Bill totally unsatisfactory. It states:
"It is estimated that the proposals in Parts I and II for mandatory custodial sentences and new early release arrangements would eventually result in an increase of around 11,000 in the prison population".
It is an insult to Parliament to add together the totally different effects of Part I as regards mandatory minimum sentences and Part II as regards early release arrangements and to give only the total effect without distinguishing between the two. That is insulting to Parliament. If those are different influences on the prison population, they should have been given separately in the memorandum on the financial effects of the Bill.
I am sorry that this question has only just occurred to me but since we have made some changes in Committee to the mandatory minimum sentencing procedures, it will now be necessary to table Written Questions in order to establish what is the differential effect of those two parts of the Bill on the prison population. I shall table those Questions. In the meantime, this amendment, although imperfect, is certainly an improvement on the self-contradictions in Clause 22 as it stands.
11 p.m.
Earl Russell: I listened with fascination to the noble Lord, Lord Carlisle of Bucklow. He reminded me vividly of my former headmaster attempting to demonstrate the difficulties of long division in Roman numerals by doing it on the blackboard and waiting for the bright mathematician at the back of the class to put up his hand and say, "Sir". We do not appear to have a bright mathematician in the Committee at the moment. But the noble Lord, Lord Carlisle of Bucklow, has illustrated with quite painful clarity the difficulties of operating the procedures laid down in Clause 22. Of course, I have heard many people speak to precisely that point. I have never understood with such clarity quite how difficult an operation we are asking our judges to perform.
It is very much like the operation that some of us attempted to perform when we converted to decimal currency. I very soon discovered that it was quite impossible to convert the new prices at which I was looking into what they would have been in old prices and, first and foremost, it was because prices in different commodities inflated at different rates. In very much the same way, sentences for different offences inflate at different rates. First one offence and then another attracts the spotlight of attention and sentences go up.
Therefore, I do not think that this job can be done at all. The clause asks the judge to impose the sentence that he would have considered appropriate if the offence had been so committed. It is asking the judge to answer a hypothetical question. I understand very well why Ministers do not like answering hypothetical questions. It seems to me that that argument can apply equally well to judges. The judge might well reply, perfectly logically, "Well, I wouldn't have started from here in the first place". If he had been in a different situation, he would not have been thinking the thoughts that he is then. I do not see that he can know what sort of sentence he would have imposed if this Bill had not come into effect. The implications of that for the costings of this Bill, as the noble Lord, Lord McIntosh of Haringey, points out, are very serious. I was equally fascinated by the noble Lord's point about the costings of the two parts of the Bill. I will look at the Written Answers with a great deal of interest.
Lord Thomas of Gresford: The noble Lord, Lord Carlisle, has illustrated the nonsensical nature of this provision. One sees that in subsection (2) it is provided that,
"the court by which a person is so sentenced at any time shall impose a term which is equal to two-thirds of the term which, at that time, it would have considered to be appropriate".
The position would be a little difficult if the court were not a judge at that time. If in 10 years' time there is a completely new judiciary, what is it supposed to do? It cannot look at the experience of 1997 and consider what it would have done at that time. I suppose that it would begin to consult the books. Thomas on Sentencing—no relation—would become the Bible from which everything moved. The noble Lord, Lord Carlisle, said that he did not seek to move a serious amendment but to illustrate the absurdities of the position. He has done

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it extremely well. I conclude by sharing with noble Lords the picture that comes irresistibly to mind of the bus with the Minister comfortably and sedately sitting on the top deck, the conductor being the Government Chief Whip and the driver the Home Secretary, with hair all over the place, driving into the brick wall of an election—hopefully.
Baroness Blatch: As my noble friend Lord Carlisle has pointed out, for a sentence of less than four years the 60 per cent. formula will result in a prison term closer to the term that would currently be served than the two-thirds formula in Clause 22 as it stands. There is no dispute about this. Arithmetically, 60 per cent. would produce a more accurate and precise approximation to the status quo than two-thirds for prisoners serving less than four years.
But Clause 22 cannot be regarded as simply an arithmetical exercise. It is part of the sentencing process and accordingly has to be readily understood by the public and offenders and easily operated by the courts. From that perspective the 60 per cent. formula proposed in this amendment is considerably less satisfactory than two-thirds. I shall explain why.
Prison sentences are typically imposed by the courts in multiples of three months: that is to say, three months, six months, nine months, 12 months, 18 months and so on. To ask a judge or magistrate to impose a sentence equal to two-thirds of the sentence that he would previously have imposed is therefore an easy calculation to make and results in a perfectly sensible result. A sentence of 12 months becomes eight months; a sentence of 18 months becomes 12. But to ask a judge or magistrate to sentence at the 60 per cent. level is a very different matter. A 12-month sentence would translate into seven months and six days, while an 18-month sentence would become 10 months and 24 days. Such a result would plainly import a somewhat spurious degree of precision into the sentencing system, but that is exactly the result that the amendment would have if strictly applied. It is in my view an unnecessarily complicated piece of fine tuning.
Our objective in framing Clause 22, as amended, is to provide the courts with simple, sensible and straightforward guidance on how to take account of the changes in early release arrangements. In my view that is exactly what Clause 22 now does. By contrast, the 60 per cent. formula proposed in this amendment would add considerable complexity to the Bill. It would create two slightly but not significantly different systems for adjusting sentences, depending on whether the court would previously have imposed a sentence of less than four or more than four years. This is likely to lead to confusion and uncertainty. If strictly applied it will result in what can best be described as very untidy sentences. What we have set out to do in Clause 22 is to provide the courts with simple and practical guidance which will result in a reasonable approximation to current effective sentence lengths.
In reply to my noble friend Lord Hacking, there is no contradiction in what my right honourable friend the Home Secretary said at the conference. Five years
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should mean five years. When the proposals in the Bill are up and running, five years will mean, both to those in the court and the public who look on, five years. That will be altered only by the number of days earned by the defendant himself under the early release scheme. Remand will be spelt out in court, unlike now when it is spelt out in prison and can create even more confusion. The important thing is that the sentence shall be more closely related to that which had been given.
Secondly, with regard to what my fellow bus passengers will say, in all my moving around the country, and I do a good deal of it, I have not yet met anyone during my visits who would agree that an offender should receive a sentence of perhaps 10 years, be eligible for release at five years and be automatically released at the two-thirds point. People simply do not support that. That is being said to me day after day after day. If Members of the Committee oppose me in that view, they obviously do not travel in buses, or certainly do not travel up and down the country meeting some of the people whom I meet. It is the most strongly held view that people receiving a sentence walk free from courts frequently at the halfway point of sentence. People do not always see too much evidence of what happens to them post-release, especially those who walk free from sentences of less than four years.
I am puzzled and somewhat amused by the constant references to the fact that judges will not feel it possible to reduce the sentence, they will not feel able to do so, they will go up tariff. I have been arguing on occasions that we should trust the judges. The judges believe at this moment that only a certain amount of a custodial sentence should be served; they know when they pass the sentence what that should be. We have taken custody and supervision together, and custody and supervision together will certainly add up to a sentence at least comparable to and slightly tougher in some cases than the present situation. Therefore, it is appropriate that the judges should look at the two-thirds formula. I have said that it would be easy to apply.
As for the poor lost souls—these judges who will be all at sea because they were newly appointed post the Bill—I have to ask, what does a newly appointed judge do now? He looks across at his fellow judges; he has guidance; he has books to which he can refer. I do not know whether judges learn on the job or whether they have some training before they go into the courts, but the truth is that judges will always come newly into the system and will always have to pick up whatever the sentencing formula is at the time.
Reference was made by my noble friend Lord Hacking to the fact that the Government's proposals would mean that different sentences would be attracted for the same offence. That happens today. In fact, because the judges have such discretion—and we have limited it to a very small extent in Clauses 1, 2 and 3 of the Bill—they will hear similar offences in different parts of the country, and people will receive different sentences. We have always said, "Vive la différence" in that sense, that it is the judge's view about what the sentence should be. We are saying that if the judge, as indeed, the noble Viscount, Lord Colville, said earlier, wished to apply under the present system the longer

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sentence, he would take that into account, apply the two-thirds formula and then pass the sentence. I see no difficulty with that at all. We do not see these judges as being all at sea or lost souls under the new system.
The amendments were used as a mechanism for making different speeches. The noble Lord, Lord McIntosh, was right; the speeches that have been made have borne very little relationship to applying the 66 per cent. formula. I have to say that we would not wish to see the differential. We believe that taking the general two-thirds formula would make it much easier for the courts to apply.
Lord Carlisle of Bucklow: Despite the lateness of the hour, perhaps I might make two points. The first is to say that I expected the answer that the noble Baroness gave; I was not surprised by it. I made it clear that my purpose in moving the amendment was not seriously to expect that the Government would accept it, but to point out what I saw to be the illogicality in the clause. Of course, I accept her answer on that point.
The other point I wish to make to the Minister is a serious one. It is something which has worried me more and more as the day has gone on. The Minister repeatedly said, and I accept it, that the public are outraged that people are sent to prison and come out so early. First, I wonder whether that is their outrage or whether it is the length of the original sentence. When one hears someone say, tragically, that the death of his child was caused by dangerous driving and that the
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person concerned received only two years, which means he will be out in 18 months, I am not sure whether his outrage will be assuaged if in future the court gives only 18 months. I am not sure that it is the difference between the sentence passed and what is served. I believe that the outrage is caused by the length of the sentence passed.
The point which sadly divides us on this side of the Committee—certainly myself, the Minister and the Home Secretary—is the repeated comment that today people are outraged at the suggestion that the person sentenced to three years will come out after 18 months. They say, "It is absurd, it is ridiculous, it is outrageous". I repeat that we have had a system of early release since 1837. Until 1992 people were coming out having served one-third of the sentence rather than today having served one-half. Why have people suddenly become outraged when they have not been outraged during the previous 90 years? I believe that, to an extent, it is because in various ways—I cast no aspersions—they have been conditioned to he outraged. The system was accepted and was working perfectly well until the matter came to the forefront of the political debate. I shall not carry out my threat to divide the Committee. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 22 agreed to.
Clause 23 agreed to.
House resumed.
House adjourned at eighteen minutes past eleven o'clock.