Lords Sitting of 20 February 1997

Preamble
The House met at three of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Southwark.
The Earl of Cawdor—Sat first in Parliament after the death of his father.

Legal Aid Expenditure
Lord Boyd-Carpenter Lord Boyd-Carpenter asked Her Majesty's Government:
Whether they will consider reducing the cost to the taxpayer of the provision of legal aid.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, last summer's White Paper, Striking the Balance, set out fundamental reforms that will allow us to control legal aid expenditure and ensure that the money spent is targeted on cost-effective services for the people in greatest need. In the meantime, the Government are doing all they can to control expenditure within the constraints of the present system.
Lord Boyd-Carpenter: My Lords, I thank my noble and learned friend for that reply. Is he aware that the old system under which counsel of fairly junior standing were employed in this work was a great deal cheaper to operate than the present system? What is the objection to reverting to that system?
The Lord Chancellor: My Lords, the precise arrangements for particular cases are very much a matter over which the court has control in relation to certification. The controls that we are able to apply under the present system relate to the fees charged and to examination of the financial position of those who may apply. We have made some progress in providing better mechanisms for testing that than were hitherto available.
Lord Williams of Mostyn: My Lords, does the noble and learned Lord the Lord Chancellor agree how pleasant it is to see the noble Lord, Lord Boyd-Carpenter, back in his usual place and undertaking his usual function of irritating the Government? He has not attended as regularly over the past few days as we have grown accustomed to note.
Is the noble and learned Lord able to confirm that for the past six years the audit certificate relating to the administration of the legal aid budget has been limited to a qualified certificate? Is that qualification in respect of millions of pounds or hundreds of millions of pounds of public money?
The Lord Chancellor: My Lords, first, perhaps I may join with the noble Lord in welcoming my noble
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friend Lord Boyd-Carpenter. We are delighted to see him in his place. I do not of course agree that his principal function is to irritate the Government. Quite the opposite, I regard his Question as entirely in support of what I seek to achieve.
As regards the qualification of the legal aid accounts, the noble Lord, Lord Williams of Mostyn, is correct that the accounts have been qualified. The reason has been that the financial tests are applied by the justices' clerks and their staff in respect of the applications for criminal legal aid. Over the years the justices' clerks have not been able to show that those checks have been properly applied. We are trying to do everything we can to persuade them to do that properly. There has been a considerable improvement in the standard of checking. The only option available to me in this respect is to take the whole matter away from the courts altogether. That is not something that I am anxious to do because I believe that it will lead to further delay in the process of criminal justice. I would much prefer that the clerks were able to bring their checks up to the proper standard. As I say, in co-operation with them we have done all we can to encourage that, including trying to simplify the regulations.
The total sum involved is difficult to tell. One of the problems that the justices' clerks and their staff have is that it is highly probable that most of the people involved are qualified on financial grounds. It is the checking of that which requires to be done whatever one's prima facie view about the result of the check.
In respect of the last account the figure suggested by the National Audit Office that might be in question was of the order of £1.8 million. It is certainly not hundreds of millions or any of the other larger figures that the noble Lord, Lord Williams of Mostyn, mentioned.
Lord Clark of Kempston: My Lords, does my noble and learned friend agree that the amount of taxpayers' money going into legal aid is escalating tremendously? Are the terms of the Legal Aid Board—it is an independent body—sufficiently strict? Does my noble and learned friend also agree that if legal aid were extended to industrial tribunals and the borrowing requirement were to remain the same, in order to find the extra money for legal aid the Exchequer would require an increase in taxation or in the national insurance contribution at a cost to the British taxpayer?
The Lord Chancellor: My Lords, there is no question but that the budget for legal aid, the amount spent on legal aid, has risen substantially over the past few years. The problem is that the existing system which has been in operation for some time is in the nature of a demand-led system. Therefore it is extremely difficult to control the ultimate budget. The question of allowing representation of industrial tribunals under the present system would mean an add-on to the budget. I do not know any way in which that can be controlled properly. If the system were changed, the Government would have an option about the priority areas in which a given predetermined sum might be spent. That would enable the fund to be targeted on areas of greater need.

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My noble friend will know that the Legal Aid Board is concerned primarily with the civil aspect. As I said earlier, the courts grant legal aid in respect of criminal matters. The terms of reference under which the Legal Aid Board operates are terms of primary legislation. That is one of the reasons why the White Paper, Striking the Balance, requires fairly fundamental proposals if we are to effect substantial change.
Earl Russell: My Lords, as the noble and learned Lord is doubtless aware, under Treasury guidelines Ministers may not attempt reductions in expenditure without first considering the resource implications for other departments. Will he give the House an assurance that, before any further reduction in legal aid, his department will observe that guideline? Will he tell us how it will set about doing so?
The Lord Chancellor: My Lords, it will be a unique experience for me if there is a reduction of any kind in legal aid. That is very difficult to achieve. It has certainly not happened yet. I hope that, if I am here sufficiently long, I shall have a chance to achieve just that. The effects that one department's arrangements have on others is a matter for departments to take into account. I believe that I am quite exemplary in trying to do that.

Juvenile Prostitution
3.11 p.m.
Lord Hylton Lord Hylton asked Her Majesty's Government:
Whether, following legislation to limit sexual offences by British citizens against minors overseas, they will take steps to discover how many prostitutes under 18 years of age are active in the United Kingdom.
The Minister of State, Home Office (Baroness Blatch): My Lords, it is very difficult to estimate the number of prostitutes of any age, but particularly those under 18. The covert nature of juvenile prostitution makes it difficult to arrive at meaningful figures for the actual number of children involved. However, I can tell the House that in 1995 there were 364 instances of females and five of males under the age of 18 being cautioned or convicted for offences under Section 1 of the Street Offences Act 1959.
Lord Hylton: My Lords, I thank the Minister for that reply, even if her figures seriously understate the problem. I wish also to thank Her Majesty's Government collectively for introducing Part II of the Sex Offenders Act following decisions made in this House. Do the Government accept all the recommendations of the report by the Children's Society on the subject of child prostitution produced in 1995, and in particular its bearing on co-operation between the Home Office and the Department of Health and among all relevant local agencies towards full implementation of the Children Act 1989?
Baroness Blatch: My Lords, I thank the noble Lord for his comments about the Government accepting Part II of the Sex Offenders Act. I put on record our thanks to the noble Lord for being so persistent and assiduous in making sure that the changes were brought about. It would be over-simplistic for me merely to answer yes to the question and say that I do not have time to give a considered response to the noble Lord's question about the Children's Society report.
One of the key aspects of the report is the recommendation of a multi-agency approach to the issue, with local authorities, health authorities, probation services, families, the voluntary sector and the Government all playing their part. We absolutely and wholeheartedly endorse that approach.
Lord McIntosh of Haringey: My Lords, I do not want in any way to play down the issue of child prostitution or to say that it is not serious. However, may I ask the Minister a question as a survey researcher rather than as an Opposition spokesman? Has she asked the research and statistics division of the Home Office how it would tackle the problem of measuring prostitution? If so, what answer did she receive? It seems to me to be an impossible question.
Baroness Blatch: My Lords, I am inclined to agree with the noble Lord. As I said, it is very difficult. Sadly, juvenile prostitution frequently takes place behind closed doors; we are simply not aware of it.
Baroness Hollis of Heigham: So to speak!
Baroness Blatch: I do not regard it as a matter for hilarity. It is very serious. Young people are being used and abused behind closed doors. Therefore it is very difficult to be accurate about the extent of the problem. The emphasis, wherever we come across juvenile prostitution, is on the care of the juvenile. We are doing what we can. As the noble Lord is aware, we are strengthening sentencing; we are already reviewing the penalties for sex offences; and we are doing what we can to make sure that young people are diverted away from this activity. But there is no straight answer. The matter is very difficult.
Baroness Masham of Ilton: My Lords, is the Minister aware of the report by Barnardos on a project it undertook in Bradford last year? There it found many young girls aged between 13 and 17 who were prostitutes having horrific things done to them by their pimps. What are social services and the police in Bradford doing about the problem?
Baroness Blatch: My Lords, that is probably the most evil trade of all. I refer to pimps, and the way in which they use not only children but adults too. Like Barnardos, we take the matter very seriously. We know from work done in Bradford that young people are inveigled by someone much older. They are daughters whose families in the first instance feel only slight worry about the liaison; eventually, however, the liaison becomes almost ownership of the young person.

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The rest of the story is history. We are aware of the work done by Barnardos. We are doing what we can. As I said to the noble Lord, Lord Hylton, in my first answer, it is mainly a matter of working in a multi-agency way at local level to do what we can to make sure that these young people are protected and diverted away from this type of crime.
Earl Russell: My Lords, will the Minister give the House an assurance that no young person under 18 is forced into prostitution because he or she lacks legal visible means of support?
Baroness Blatch: My Lords, the means of support for people in this country—I shall not say that it is "generous" because I should be shot down in flames, but it is such that nobody needs to resort to prostitution in order to eat and live. We will do what we can to divert people from this evil trade. I give the noble Earl an assurance that it is no part of this Government's policy that people should have to resort to prostitution in order to live.

The Merchant Fleet
3.16 p.m.
Lord Clinton-Davis Lord Clinton-Davis asked Her Majesty's Government:
How they account for the fact that the United Kingdom's merchant fleet has fallen from fourth place in the world league table of merchant fleets in 1979 to 29th by the end of 1996; and what steps they propose to take to prevent any further decline.
The Parliamentary Under-Secretary of State, Department of Transport (Viscount Goschen): My Lords, the United Kingdom flagged fleet, along with those of a number of other developed nations, has declined in size for reasons that include changing trade patterns and the emergence of low-cost fleets from the developing world. We will continue to pursue targeted measures to create and maintain the conditions in which British shipping can prosper and compete in international markets.
Lord Clinton-Davis: My Lords, is that not a pathetic response? This Government inherited from the last Labour Government a fleet well in excess of 1,300 ships over 500 gross registered tonnes proudly flying the Red Ensign. Today, on the Government's own figures, it is 377 and is falling. Is the Minister aware that, at a time when there is a substantial upsurge in world shipping, there is a clear need for a strong, vibrant British marine force? Does he accept that this Government, through their neglect over the past 17 years, have failed the nation?
Viscount Goschen: No, my Lords; not surprisingly, I do not accept that for a moment. World trade patterns have changed considerably since then, including those of many other developed nations. One has only to see what has happened to France and Italy, to give just two
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examples. We have seen a greater use of low-cost shipping from the developing nations. We have taken measures to address that problem. We have: clamped down on sub-standard shipping; addressed the factors that have caused companies to want to flag out from the UK; introduced targeted measures; increased funding towards the training of UK officers; deregulated; and put in roll-over relief, together with a number of other measures. They were implemented at the request of shipowners. We want to work with them to ensure the best possible conditions.
Lord Monkswell: My Lords, bearing in mind that the Prime Minister has located Britain at the heart of Europe, have the Government decided that we no longer need a merchant navy?
Viscount Goschen: No, my Lords, nothing could be further from the truth.
Lord Greenway: My Lords, does my noble friend agree that, while the figures on the Order Paper may appear dire, British-controlled shipping still represents some 11 per cent. of world shipping? While our interest in shipping may have declined somewhat over the years, is it not a fact that British shipping is far from dead and buried? Should we not take considerable pride in the fact that one of our oldest and most famous shipping companies is currently building the largest container ships in the world and is also among the top three cruise shipping companies—an area that has been among the most successful sectors of shipping in recent years?
Viscount Goschen: My Lords, the noble Lord is quite right. The UK-owned fleet is much greater than just the UK-flagged fleet. When one includes vessels from the Red Ensign group, including the Isle of Man, it now ranks eighth in the world.
The noble Lord is right to point out that various sectors of the UK shipping industry are prosperous, lean and efficient and compete well with the rest of Europe. One only has to look at the cruise industry, the ferry industry and container ships. In addition, our ports industry is much leaner and more efficient than it used to be.
Lord Clark of Kempston: My Lords, does the Minister agree that the noble Lord, Lord Clinton-Davis, is quite wrong in suggesting that there was nothing wrong with the economy in 1979 when the Government took over a nearly bankrupt country? But does he not agree that, as far as the shipping industry is concerned, the reduction in capital allowances for shipping has in fact contributed to the reduction in our shipping fleet? Would it be a good idea to have a look at capital allowances for the shipping industry?
Viscount Goschen: My Lords, that is a matter that shipowners feel very strongly about. Equally, we have introduced roll-over relief on capital allowances balancing charges, a measure which was sorely needed. We have also introduced the foreign earnings deduction for seafarers who spend up to 183 days in the UK.

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We have put forward a number of measures. The shipping industry has welcomed them and now feels that the deregulated climate in the UK, coupled with the strength of the economy generally, is putting the industry in a good position to compete.
Lord Mackie of Benshie: My Lords, can the noble Viscount tell us how many ships flying flags of Liberia and other curious places are in fact owned by British companies? Is it the policy of the Government to deregulate down to Liberian standards in order to bring them back?
Viscount Goschen: My Lords, in an Answer to a Written Question from the noble Lord, Lord Clinton-Davis, I gave the details that the noble Lord seeks. Essentially, in 1996 there were some 514 ships owned by United Kingdom companies of 500 gross tonnes and over.
The fact is that the face of shipping has changed. Many companies from all over the world have flagged out. One should not necessarily seize upon Liberia as being a low-quality flag. We have high standards in this country and seek to impose them on other countries by a very strong policy of port-state control. We inspect some 30 per cent. of foreign-flagged ships that visit this country. We believe that this policy has been extremely effective in raising standards.
Lord Murray of Epping Forest: My Lords, does the Minister view with equanimity the fact that the Isle of Man has more British tonnage flying its flag than does the UK itself? Does he accept that this has nothing to do with comparative labour costs and everything to do with better financial and fiscal treatment? Is he aware that the Red Ensign, to which he referred, is not waving but drowning?
Viscount Goschen: My Lords, no, I certainly do not accept that. Indeed, I understand that there will be a number of foreign-flagged ferries coming on to the UK register shortly.
Companies appreciate the benefits of operating with the Red Ensign. We want to introduce as many measures as we can, consistent with safety and the investment climate here, to encourage owners to do that.
Viscount Runciman of Doxford: My Lords, is the Minister satisfied that the Government are doing enough to address the urgent and growing problem of the shortage of British seafarers, who are important not only for the British shipping industry but for a wide range of related shore-based industries and, not least, to the nation's defence?
Viscount Goschen: My Lords, I certainly believe that training is a key issue for the merchant fleet. We have introduced two schemes, the government assistance for training (GAFT) scheme, introduced in the late 1980s, and the development of certificated seafarers scheme. Between them, these two schemes have seen the number
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of cadets coming into the industry increase more than three-fold since their introduction. No eligible cadet has been refused entry to the GAFF scheme.
Lord Clinton-Davis: My Lords, it is extraordinary, is it not, that the Minister can claim comfort from a situation which is nothing short of disastrous? His views are not shared by the Council of Shipping, the trade unions or anyone who actually knows about the situation. Is the Minister not aware that the plans which he says the Government propose to introduce are 17 years too late? The Government are running out of time, thankfully; unhappily, so is the British fleet.
Viscount Goschen: My Lords, I find that very difficult to accept. I understood that the Labour Party had launched a new initiative in connection with the merchant fleet and the measures that they would take forward. I examined that carefully and could see no additional resources pledged to address this point, no additional resources for training and no other concessions.
The Government are pursuing a range of highly targeted measures which the shipping industry welcomes. The fact is that there is a very competitive market out there. We do not believe that joining an ever-increasing spiral of state subsidies is the way forward.

South West Trains Ltd.
3.28 p.m.
Lord Haskel Lord Haskel asked Her Majesty's Government:
In the light of the cancellation of large numbers of train services, what action they propose to take to ensure that South West Trains Ltd. honour the obligations into which they entered when securing the franchise to provide a high quality service; and what measures will be taken to provide services for the passengers affected.
Viscount Goschen: My Lords, compliance with franchise agreements is a matter for the Franchising Director. In the case of South West Trains, the franchisee will be financially penalised for peak-period cancellations which they have had to make following the introduction of revised working arrangements for drivers. The company has now introduced a temporary timetable to minimise disruption to passengers, particularly at peak-period services.
Lord Haskel: My Lords, I thank the Minister for that rather evasive reply. Is he aware that, as the service on South West Trains has been deteriorating, so the notices telling passengers where to complain have been disappearing? Does the Minister agree that he has been able to stand at the Dispatch Box and tell us about the improving service and the reducing number of complaints because passengers no longer know where to complain to?
Viscount Goschen: My Lords, of course that is nonsense. We have seen complaints on the privatised railway reduced by 30 per cent. If the Labour Party could point to an industry that they had run with a 30 per cent. reduction in complaints, I should be pleased to hear about it.
Undoubtedly the issue of South West Trains and its drivers could have been handled better by the company; no one disputes that. However, we know that this morning South West Trains announced that as a good will gesture travel on its services today would be free and that holders of monthly or longer season tickets would receive a free two-day extension to their tickets. In addition, passenger charter protections and compensations are in place which did not exist before.
South West Trains has a good record on reliability and punctuality since it introduced its services. I do not think we should decry that.
Lord Brabazon of Tara: My Lords, would my noble friend remind the House of how many services were cancelled in the golden age of British Rail and how many days were lost in strikes?
Viscount Goschen: My Lords, I believe that the numbers involved here are tiny compared to the days that were lost due to strikes. In recent times when there have been strikes on the railways leading to the cancellation of services—though they have been far fewer in number, and we welcome that fact—I have not seen condemnation of that from the party opposite.
Lord Allen of Abbeydale: My Lords, is the Minister aware that the concession of free travel today is limited to those travelling in standard class and that those travelling first class have to pay the full fare? Is that not a rather undesirable measure of class discrimination?
Viscount Goschen: My Lords, no doubt the noble Lord speaks with the nation fully behind him about the plight of first class rail travellers!
We know that the deal for first class travellers on the railway, as for standard class travellers, has improved hugely. We welcome the recent announcement about the south-west coast mainline franchise and all the benefits that we shall see on that line.
Lord Beaumont of Whitley: My Lords, is the Minister aware of the urgency of putting this matter right, in view of the pressure on the roads of the south west come the summer, if any?
Viscount Goschen: My Lords, we have to put this matter in perspective. I understand that there were only three cancellations in this morning's peak period, and only one of them was a planned cancellation. That compares with an average of 45 for the same period in the past couple of weeks. It is clear that South West Trains is putting this problem right. It has admitted that
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it did not handle the situation rightly and there were real problems. It is putting every endeavour into getting the service back to what it should be.
Lord Berkeley: My Lords, does the Minister agree that the Franchising Director fining South West Trains £100,000 a week is little more than the cost that it has saved by sacking 70 drivers? Does he further agree that it is derisory, and no discouragement for the company not to repeat the process? Are the Government not embarrassed by this, their first franchise, which has gone so disastrously wrong?
Viscount Goschen: My Lords, there are two points to make. Firstly, in the old days—no doubt the noble Lord would believe them to be the good old days—of British Rail, there were no such penalties or constraints. British Rail could do precisely what it wanted to do. Now penalties are imposed by the Franchising Director. Secondly, as there is now a clear commercial incentive for South West Trains to attract as many consumers to its services as it can, probably the best incentive not to have a repetition is the commercial cost as well as the bad publicity.
Lord Dixon-Smith: My Lords, does my noble friend agree that for a party with pretensions to government, the arithmetic shown by the previous question calls into doubt its competence? The sum of £100,000 to pay for 70 drivers for one week bears no relationship to any train driver's salary of which I have ever heard.
Viscount Goschen: My Lords, the proper question of mathematics that we must ask the party opposite is exactly which bits of the railway they intend to buy back and from where they will raise the finance.
Lord Clinton-Davis: My Lords, is the Minister aware that we shall be answering the questions very shortly? Is it not remarkable that today for the first time we have elicited from the Minister a whimper of criticism of one of the privatised railway companies? What real compensation—not the derisory amounts—will passengers receive for that negligence on the part of that particular company? When will he take a firm line on some of the excesses, the extortionate gains that have been made by the executives of the Eversholt leasing company—for example, Mr. Andrew Jukes, who made an investment of £110,000 and obtained a profit of £15 million; Mr. Aylwood who made an investment of £80,000 and made a profit of £10 million; and Mr. Habgood, similarly? Is he happy with that situation?
Viscount Goschen: Oh dear, my Lords, we return to the politics of envy very quickly indeed. The fact is that those businesses were sold at the market price. If the noble Lord had wanted to put up his money to buy them, we should have treated his bid extremely seriously indeed. People put their money where there mouth was. They financed the businesses at a time when there was much political uncertainty about them, largely generated by noble Lords opposite. That has diminished and I am

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sure that the railway industry, like the passengers, believe that there will be another Conservative Government coming along very shortly, with maybe further gains to be made.

Architects Bill [H.L.]
3.32 p.m.
The Lord Chancellor: My Lords, I understand that no amendments have been set down to this consolidation Bill or to the other two consolidation Bills standing in my name on the Order Paper and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee on recommitment. Therefore, unless any noble Lord objects, I shall move in each case that the order of recommitment be discharged. I beg to move in respect of this Bill that the order of recommitment be discharged.
Moved, That the order of recommitment be discharged.—(The Lord Chancellor.)
On Question, Motion agreed to.

Lieutenancies Bill [H.L.]
The Lord Chancellor: My Lords, I beg to move that the order of recommitment be discharged.
Moved, That the order of recommitment be discharged.—(The Lord Chancellor.)
On Question, Motion agreed to.

Nurses, Midwives and Health Visitors Bill [H.L.]
The Lord Chancellor: My Lords, I beg to move that the order of recommitment be discharged.
Moved, That the order of recommitment be discharged.—(The Lord Chancellor.)
On Question, Motion agreed to.

United Nations Personnel Bill
Lord Brougham and Vaux: 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.—(Lord Brougham and Vaux.)
On Question, Motion agreed to.

Sundays (Dancing and Licensing)Bill [H.L.]
Bill read a third time, and passed, and sent to the Commons.

Geneva Conventions Bill [H.L.]
Lord Lester of Herne Hill: My Lords, on behalf of my noble friend Lord Avebury, I beg to move that this Bill be now read a third time.
Moved, That the Bill be now read a third time.—(Lord Lester of Herne Hill.)
On Question, Bill read a third time.
Lord Lester of Herne Hill: My Lords, I beg to move that this Bill do now pass. It is concise and admirable in all respects.
Moved, That the Bill do now pass.—(Lord Lester of Herne Hill.)
On Question, Bill passed, and sent to the Commons.

Firearms (Amendment) Bill
3.35 p.m.
Baroness Blatch: My Lords, I beg to move that the Commons reasons and amendments be now considered.
Moved, That the Commons reasons and amendments be now considered.—(Baroness Blatch.)
On Question, Motion agreed to.
COMMONS REASONS FOR DISAGREEING TO CERTAIN LORDS AMENDMENTS, COMMONS AMENDMENTS IN LIEU OF CERTAIN LORDS AMENDMENTS, COMMONS AMENDMENTS TO CERTAIN OTHER LORDS AMENDMENTS, AND CONSEQUENTIAL AMENDMENTS
[The page and line refer to Bill (36) as first printed by the Lords.]

LORDS AMENDMENT
8 Clause 6, page 3, line 6, at end insert ("unless the pistol complies with subsection (2A) below.")
The Commons disagreed to this amendment for the following reason—
8A Because the disassembly of pistols would not provide adequate safeguards for the protection of the public.
Baroness Blatch: My Lords, I beg to move that the House do not insist on their Amendment No. 8 to which the Commons have disagreed for the reason numbered 8A.
This issue has been thoroughly discussed at each stage of the Bill, both in this House and in another place. It would not be the best use of the House's time for me to rehearse the arguments with which by now your Lordships will be very familiar. The Government's position has always been that small calibre pistols in their complete form should be stored in secure licensed clubs. The case for disassembly was put with force. It is entirely understandable and indeed proper that it was considered again in another place. It is the right of this House to invite another place to reconsider any issue.
The other place has reconsidered this issue. The elected House of Parliament, having considered the arguments put forward here and in another place, has

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come down on the side of the Bill as drafted and against the amendments. It did so overwhelmingly by a majority of 279 votes.
I believe that your Lordships should not insist on the amendments passed in this House. I accept, of course, that the arguments for and against disassembly are finely balanced, but it is the decided opinion of another place that the amendment does not provide an adequate level of protection for the public. Therefore, I invite this House not to insist on Amendment No. 8 for the reason numbered 8A.
Moved, That the House do not insist on their Amendment No. 8, to which the Commons have disagreed for the reason numbered 8A.—(Baroness Blatch.)
Lord Stoddart of Swindon: My Lords, I expected to hear from the other side of the House, but clearly those Benches wish to remain silent. I am not prepared to remain silent on this issue. Indeed, I read the debate in the other place on the amendment with increasing incredulity, especially the speeches of the Home Secretary and my honourable friend Mr. Doug Henderson, who spoke from Labour's Front Bench. Reading the Home Secretary's speech, I thought he seemed embarrassed by the whole thing. He certainly seemed embarrassed to have to object to your Lordships' amendment. Indeed, he leaned very heavily on the plea of the Association of Chief Police Officers that disassembly could not be policed. It says that about many things. We should have to repeal huge tranches of the criminal law, especially the Road Traffic Acts, if that plea were accepted.
Let me repeat that I believe that public debate on this issue has been denied. The fact that the Cullen Report was not debated in both this House and another place and throughout the country means that the public did not have the opportunity to express their view on the Bill. Quite frankly, I have been rather put out that it has been represented—indeed, from the Government Front Bench today—that the House of Lords should yield to another place and not insist on its amendments because we have had our say. That is not good enough. This House is not simply concerned with having its say. The Parliament Acts of 1911 and 1949 protect the position of the Commons as the elected House and the sovereign body. But this House also has rights under those two Acts and it is legitimate for us to exercise those rights.
If we are not prepared to insist on our amendments because we are being told that we have expressed our views and that should be an end of the matter, then we reduce ourselves to the status of a consultative council rather than a House of a sovereign Parliament. Furthermore, we would be undermining the principle of a bicameral Parliament and reducing it to a de facto unicameral Parliament. This is the only second Chamber that we have and those who believe in the bicameral system should persist in their right to insist on our amendments. Until we change the system, it is the only system we have.
The noble Baroness mentioned the large majority against this amendment in the House of Commons. However, was it a fact, as Mr. Marlow indicated on a
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point of order, that Conservative Members of Parliament—other than the payroll vote—either voted against the Government or abstained from supporting the Government? If so, Conservative Peers should take heart and insist on the amendment. Not to do so would be letting down their colleagues in another place who had the courage to stand up and be counted in support of your Lordships' amendments.
It has also been suggested to me that there should be no Division because there may be a derisory vote in favour of insisting on our amendments. That is not a good reason for not dividing. If a measure is good in itself and in principle, then it is worthy of being tested. Those who wish to change their previous position must be seen to do so. Those who wish to maintain their position in the face of a Commons rejection must be given the opportunity to do so, and be seen to do so. If nobody else divides this House this afternoon, I shall certainly do so.
Lord Campbell of Alloway: My Lords, perhaps I may put another point of view. The noble Lord, Lord Stoddart, is right in relation to the question of entitlement; no one could be more clear about that than myself. The question is, if we are to keep our bicameral structure, do we not have to be sensible and careful as to how we use it?
To ask another place to think again was our entitlement. It is our entitlement to insist; but to insist is quite another thing. To what constructive end do we insist? It is the settled will of the elected Chamber, as expressed by a substantial majority on two occasions, that this Bill in the form proposed on the Marshalled List shall receive Royal Assent. To what conceivable purpose are we to divide? The Opposition and the payroll vote would ensure that the Commons amendments and reasons would be accepted. One does not doubt the sincerity or courage of noble Lords who vote in the "Not-Content" Lobby.
Lord Stoddart of Swindon: My Lords, I thank the noble Lord for giving way. Did he take the same attitude on the War Crimes Bill?
Lord Campbell of Alloway: My Lords, I took a different attitude as a matter of conscience; I took it on my own initiative; I lobbied no one and I did not think I would win. That was a wholly different affair and not comparable on any basis. That was a decision of the majority of this House. On this occasion we must question the judgment of noble Lords who, for no constructive purpose, enter the "Not-Content" Lobby.
There is no doubt that I supported the dismantling amendment. It does not matter what one thinks personally; what matters is the constitutional position of this House. We have the guiding rope in our hands; let it not become a noose around our necks.
3.45 p.m.
Lord McIntosh of Haringey: My Lords, we can say what we like about my noble friend Lord Stoddart, but he has spirit. When many Members of this House on the Government Benches spent many hours in debate on these issues objecting strongly to the proposals in the Bill, it was my noble friend who was prepared to take it to the last ditch and suggest that the House should divide on the issue. I pay tribute to his spirit, even though I disagree with his arguments.
It was significant that my noble friend spent little time arguing the validity of the specific amendment before us. There were two amendments on disassembly. First, there was the amendment that was carried and, secondly, there was the amendment of the noble Earl, Lord Attlee, which came later in the list and was therefore withdrawn. I was inclined not to oppose the amendment of the noble Earl, Lord Attlee, which was framed in extremely cautious terms so as to avoid, as far as possible, the risk to the public of disassembly. I cannot say that—of course on these matters I speak personally and not on behalf of my noble friends—about the amendment which was carried.
I do not believe that the House should have been convinced that there was no risk involved in disassembly; it should not have been convinced that it was not at least possible and, indeed, probable, that clever people would find ways of matching up the slide assembly with the rest of the gun. I do not believe that we should have accepted the argument that it was the gun itself which should be allowed to be kept outside the licensed premises. In short, the amendment was wrong. It is on that basis, as an individual, that I ask my noble friends to oppose the proposal of my noble friend Lord Stoddart and to support the Motion that we should not insist.
The issue remains as to whether it is right, under any circumstances, to engage in opposition to the Commons when it has expressed a contrary view a second time. I plead guilty to having put to this House on occasion a Motion that we should insist on our amendments; in other words, that we should oppose another place where it seems appropriate. My noble friend silenced the noble Lord, Lord Campbell of Alloway, who was unable to find any real distinction between his action on the War Crimes Bill and what he is opposing now.
Lord Campbell of Alloway: My Lords, I am fully able to find many distinctions. The time of the House is better employed.
Lord McIntosh of Haringey: My Lords, that may be the noble Lord's view. I am always glad to hear from him. I believe the argument to be of great significance. We should acknowledge—as the noble Lord, Lord Campbell, did—that within the constitution
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my noble friend is entirely right to bring this matter forward. As to whether it is wise, I take a different view. We are in the curious circumstance that we have legislation which is brought forward in the last Session of a Parliament and is brought forward because of a perceived risk—your Lordships may not all agree—arising from a clear unpleasant danger at Dunblane. The public reaction to the tragedy at Dunblane and the demand for change in our gun control laws ought not to be underestimated.
The risk that my noble friend takes were he to win in a Division is that the whole Bill would be lost. That is a risk we should not take. We should support the Government Motion that we do not insist on our amendment.
Earl Attlee: My Lords, I agree with the sentiments expressed by the noble Lord, Lord Stoddart of Swindon. I attended the debate in the other place and, as far as I am concerned, it debated the matters very carefully. It was of some interest to me to watch the Home Secretary attempt to justify his position on disassembly. I also watched the other place waste a considerable sum of public money. But that is its prerogative.
My feelings about the Bill are exactly the same as when the Bill first came to your Lordships' House. My feelings about the wisdom of disassembly are still exactly the same. I should like to thank the noble Lord, Lord McIntosh, for his comments supporting my amendment. I think it was a shame that it was not accepted. However, I am not convinced that it would be in the interests of your Lordships' House or any sector of your Lordships' House to pursue the amendment. I therefore do not think that we should send anything back to the other place.
Lord Cottesloe: My Lords, I agree entirely with the noble Lord, Lord Campbell of Alloway, and the noble Earl, Lord Attlee, and I should like to make one point that did not perhaps come out very fully in previous debates. I do not want to rehearse all the arguments about disassembly but I think it is true to say that the Bill is unsatisfactory because in the eyes of the uninformed it appears to advance public safety when in fact it does no such thing. It does nothing to attack the real problem of hundreds of thousands of illegal firearms in this country and their continuous supplementation by more such arms being smuggled across and under the Channel.
I shall not argue about figures and how much it will cost, but it might be better to spend the money on extra customs officers to search many more vehicles entering the country. That is hardly likely to be popular with motorists but it might be better for the general public as a whole to be put to some inconvenience in the genuine interests of public safety. To my mind such a measure would be a much more effective way of spending money to prevent another Dunblane than that which the Bill represents, which throws all the burden and expense on to a small

791
number of law-abiding citizens without achieving anything other than stress and agony. We have the wrong target in our sights.
Perhaps I may conclude by saying that, to my regret, I was unable to be present at the very end of Third Reading last week. However, I have read in Hansard the compliments paid to the noble Baroness. If it is not improper for me to do so now, I should just like to say how very much I agreed with them, and, if it is not grossly impertinent on the part of a comparatively new boy, to add that I thoroughly endorse them all.
Lord Dixon-Smith: My Lords, I wonder whether I might introduce yet another consideration which is perhaps very important at this stage. I refer to the interests—the strategic interests—of those who are interested in sport with handguns. The position we now face is that the other place, for better or worse, is determined to have a Bill. There is probably general agreement in this House that the Bill itself is an awful Bill. It would be better if it were not here at all. But that is an ideal situation which we do not face.
I wish to put the following consideration into everyone's mind. If as a result of our actions today the Bill were to fail and if, as a consequence, at some point in the future an even worse Bill was brought forward—such a course has on occasions been advocated from one or two places—we would have done nothing and achieved nothing on behalf of those whose interests we say we wish to support in trying to improve the Bill. We ought to have that consideration in mind in supporting the Minister on this matter.
The Earl of Onslow: My Lords, I wish to mention something which has arisen out of these debates and which goes to the heart of your Lordships' existence. Every time some of us have supported amendments the noble Lord, Lord McIntosh, has said, "Ah, silly, old-fashioned, anachronistic hereditary Peers; that is why they should be abolished". I notice that the noble Lord, Lord Richard, is nodding his head or shaking it—I am never quite sure with him.
The arguments against the Bill have been overwhelmingly solid and sensible and we have supported Lord Cullen. For perfectly sound, historical reasons, another place has panicked because a general election is approaching and the Secretary of State for Scotland represents Dunblane. I blame none of them for doing that. I would have done exactly the same had I been in any of their positions. All I suggest to your Lordships is that had the composition of your Lordships' House been more sensibly arranged we would have had the authority to insist on sensible changes. What the Front Bench opposite proposes for change is even sillier than what exists at the moment. This shows that the sooner your Lordships' House is sensibly reformed, can sensibly do its proper job and can sensibly make the House of Commons occasionally think again, the better.
Lord McIntosh of Haringey: My Lords, before the noble Earl sits down—I shall not follow him into his constitutional argument because I think that would be quite improper—I hope he will recognise that not a single one of the contentious amendments which were carried in this House and had to be reconsidered in another place would have been carried without the hereditary peerage.
The Earl of Onslow: So what!
The Lord Privy Seal (Viscount Cranborne): My Lords, I wonder whether the House will allow me to intervene for a moment on a purely procedural matter rather than the merits of the arguments of the case.
I have taken advice about what our normal procedures are in cases of this kind. I am advised that it is the practice of the House that a Motion to insist on a Lords amendment is taken before the Motion that this House do not insist on a Lords amendment. Defeating a negative Motion, if that is what the noble Lord, Lord Stoddart, wishes to do, would not achieve, if I may put it this way, a positive result. Therefore, if he wished to push this to a Division and were he to win against my noble friend's Motion that this House do not insist, then, contrary to our present practice—but, under the circumstances, it might be sensible for us to do this—he would have to submit a manuscript amendment to the effect that this House does insist. It would be more usual, I am advised, if that Motion had been tabled earlier and it would be the normal practice of this House to take that Motion first before the do not insist Motion. I hope that is both clear and helpful to the House.
4 p.m.
Lord Swansea: My Lords, I support the noble Lord, Lord Stoddart, in what he said. What is the use of a revising Chamber if it is not allowed to revise and its views are not acted on? We have taken time to discuss an imperfect Bill at length and dispassionately. I am not going to rehearse the arguments in favour of disassembly in detail now. We have been through all that very thoroughly—at Committee stage and on Report—only to see our efforts ignored and kicked aside. We pride ourselves in having in this Chamber a variety of experts on every subject one can think of and the subject of this Bill is no exception. On these Benches we have many noble Lords who have a considerable knowledge of the subject matter of the Bill, which is more than can be said of noble Lords opposite and of many Members of the other place. I support the noble Lord, Lord Stoddart.
Lord Monson: My Lords, while the noble Lord, Lord Stoddart of Swindon, decides whether or not to submit a manuscript amendment, unlike my two noble friends on these Benches who have spoken so far I believe that it is absolutely right to support the amendment. Contrary to what the noble Lord, Lord McIntosh, suggested, there is not the slightest danger of the Bill being lost except in the extremely

793
unlikely event of the Cabinet having already decided on a 20th March general election. I do not imagine that anyone seriously believes that to be the case.
On Sunday there will be a demonstration by 25,000 shooters, their friends and families in London. If the Bill goes back to the other place, it will be able to reconsider it in the light of the views expressed at that demonstration. That is one additional reason for voting in favour of the amendment.
Baroness Blatch: My Lords, the noble Lord, Lord Stoddart of Swindon, referred to my right honourable friend in another place and also, I believe, to one of his own colleagues on the Opposition Front Bench in the other place. I say to the noble Lord and to the House that my right honourable friend was not embarrassed. He was very conscious of the genuine and deeply felt concern on the part of those who supported disassembly. My right honourable friend has said—and I repeat it—that the arguments for and against disassembly were finely balanced. He made that point on Tuesday, and I make it again today. The arguments were indeed finely balanced.
This matter has not been easy because it is not an easy subject. Having the responsibility of addressing difficult issues, such as disassembly, falls to the Government and I believe that they have taken the matter extremely seriously. They have listened to the argument and have come to a conclusion.
Perhaps I may join the noble Lord, Lord McIntosh of Haringey, in paying tribute to the noble Lord, Lord Stoddart. He has indeed shown spirit, as indeed he always does. He is assiduous and he is always consistent. I believe that this House would be the poorer without noble Lords of such spirit. So long may this House act as an effective check and balance on another place, because I believe that that is the role of this House.
This House rightly asked another place to think again, and it has done that. It has sent us a clear view on the issue of disassembly. I have already given the voting record. The noble Lord, Lord Stoddart, referred to those who voted in another place. Those who voted and how they voted is a matter of public record. What we do here today is both to consider the issue, which is the subject of the debate, but also to take into account the views expressed in another place, not once but twice, and to ask the question posed by my noble friend Lord Campbell of Alloway. It is this. What would be achieved by sending this issue back to another place knowing in advance of doing so that it has expressed an unequivocal view by a large majority? It is very probable that it would do so again. Once again I invite the House not to insist on Amendment No. 8.
4.4 p.m.
On Question, That the House do not insist on their Amendment No. 8 to which the Commons have disagreed for the reason numbered 8A.
Their Lordships divided: Contents, 197; Not-Contents, 24.

Division No. 1

CONTENTS

Aberdare, L.

Elles, B.

Acton, L.

Erne, E.

Addison, V.

Feldman, L.

Ailesbury, M.

Ferrers, E.

Ailsa, M.

Fitt, L.

Aldington, L.

Fraser of Carmyllie, L.

Alexander of Tunis, E.

Gainford, L.

Allen of Abbeydale, L.

Gallacher, L.

Allenby of Megiddo, V.

Geraint, L.

Anelay of St. Johns, B.

Gladwin of Clee, L.

Archer of Sandwell, L.

Glasgow, E.

Archer of Weston-Super-Mare, L.

Goschen, V.

Ashbourne, L.

Graham of Edmonton, L.

Astor, V.

Hailsham of Saint Marylebone, L.

Astor of Hever, L.

Hampton, L.

Balfour, E.

Harris of Greenwich, L.

Bath, M.

Haskel, L.

Beaumont of Whitley, L.

Hayhoe, L.

Beaverbrook, L.

Hayman, B.

Belstead, L.

Hayter, L.

Berkeley, L.

Hemphill, L.

Berners, B.

Henley, L.

Blackstone, B.

Hilton of Eggardon, B.

Blaker, L.

Hogg, B.

Blatch, B.

Holderness, L.

Borrie, L.

Hollis of Heigham, B.

Boyd-Carpenter, L.

Holme of Cheltenham, L.

Brabazon of Tara, L.

Hooper, B.

Brentford, V.

Hooson, L.

Bridges, L.

Howe, E.

Buckinghamshire, E.

Hughes, L.

Butterfield, L.

Hunt, L.

Butterworth, L.

Inglewood, L.

Byford, B.

Jay of Paddington, B.

Cadman, L.

Jeger, B.

Calverley, L.

Jenkins of Hillhead, L.

Campbell of Croy, L.

Jenkins of Putney, L.

Carlisle of Bucklow, L.

Judd, L.

Carmichael of Kelvingrove, L.

Kilpatrick of Kincraig, L.

Carnegy of Lour, B.

Kimball, L.

Carnock, L.

Kinnoull, E.

Chadlington, L.

Knollys, V.

Chalker of Wallasey, B.

Knutsford, V.

Chelmsford, V.

Laing of Dunphail, L.

Chesham, L. [Teller.]

Lauderdale, E.

Clanwilliam, E.

Lester of Herne Hill, L.

Clark of Kempston, L.

Lindsay, E.

Cledwyn of Penrhos, L.

Lockwood, B.

Clinton-Davis, L.

Long, V.

Cockfield, L.

Lucas, L.

Coleraine, L.

McColl of Dulwich, L.

Courtown, E.

McIntosh of Haringey, L.

Cowley, E.

Mackay of Ardbrecknish, L.

Cranborne, V. [Lord Privy Seal.]

Mackay of Clashfern, L.

Crickhowell, L.

[Lord Chancellor.]

Cromer, E.

Mackay of Drumadoon, L.

Cuckney, L.

Mackie of Benshie, L.

Cullen of Ashbourne, L.

McNair, L.

Cumberlege, B.

McNally, L.

Davidson, V.

Mar and Kellie, E.

Dean of Harptree, L.

Marlesford, L.

Denbigh, E.

Masham of Ilton, B.

Denton of Wakefield, B.

Merrivale, L.

Dixon-Smith, L.

Mersey, V.

Donoughue, L.

Meston, L.

Dormand of Easington, L.

Methuen, L.

Dubs, L.

Miller of Hendon, B.

Dundonald, E.

Milverton, L.

795

Monckton of Brenchley, V.

Seccombe, B.

Morris of Castle Morris, L.

Serota, B.

Mountevans, L.

Shaw of Northstead, L.

Mowbray and Stourton, L.

Skelmersdale, L.

Murton of Lindisfarne, L.

Soulsby of Swaffham Prior, L.

Nelson, E.

Southwark, Bp.

Nicol, B.

Strabolgi, L.

O'Cathain, B.

Strange, B.

Ogmore, L.

Strathclyde, L. [Teller.]

Onslow, E.

Strathcona and Mount Royal, L.

Oxfuird, V.

Suffield, L.

Paul, L.

Symons of Vernham Dean, B.

Pender, L.

Taylor of Warwick, L.

Peston, L.

Tenby, V.

Pike, B.

Terrington, L.

Pilkington of Oxenford, L.

Teynham, L.

Plant of Highfield, L.

Thomas of Gresford, L.

Plummer of St. Marylebone, L.

Thomas of Gwydir, L.

Prys-Davies, L.

Thomson of Monifieth, L.

Ramsay of Cartvale, B.

Tollemache, L.

Rankeillour, L.

Trefgarne, L.

Rawlings, B.

Trumpington, B.

Rawlinson of Ewell, L.

Turner of Camden, B.

Redesdale, L.

Walton of Detchant, L.

Richard, L.

Westbury, L.

Ripon, Bp.

White, B.

Rodgers of Quarry Bank, L.

Williams of Mostyn, L.

Romney, E.

Wise, L.

Rotherwick, L.

Wolfson, L.

St. Davids, V.

Wynford, L.

St. John of Bletso, L.

Young, B.

NOT-CONTENTS

Blake, L.

Howie of Troon, L.

Braine of Wheatley, L.

Monson, L.

Clancarty, E.

Park of Monmouth, B.

Congleton, L.

Rathcavan, L.

Cross, V.

Sandwich, E.

Dacre of Glanton, L.

Stallard, L.

Devonport, V.

Stoddart of Swindon, L. [Teller.]

Donaldson of Kingsbridge, L.

Swansea, L. [Teller.]

Erroll, E.

Thurso, V.

Falkland, V.

Torphichen, L.

Harding of Petherton, L.

Wrenbury, L.

Harris of High Cross, L.

Zouche of Haryngworth, L.

Resolved in the affirmative, and Motion agreed to accordingly.
4.16 p.m.
LORDS AMENDMENT
12 Clause 6, page 3, line 18, at end insert—
"(2A) A pistol shall not be a small-calibre pistol for the purposes of this section provided—

(a) the slide assembly or cylinder or other component part specified under subsection (2B) below has been removed and stored on the premises of a licensed pistol club; and

(b) the firearms certificate for the pistol specifies premises other than the licensed pistol club specified in paragraph (a) above at which the remainder of the firearm shall be stored.

(2B) If he is satisfied that it is necessary in the interest of public safety, the Secretary of State may by order specify a component part other than the slide assembly or cylinder to be stored at a licensed club, and may do so in respect of a particular model or type of pistol to which this section applies.
(2C) This section applies to pistols chambered for 22 or smaller rim-fire cartridges.")
The Commons disagreed to this amendment for the following reason—
12A Because the disassembly of pistols would not provide adequate safeguards for the protection of the public.
Baroness Blatch: My Lords, I beg to move that the House do not insist on their Amendment No. 12 to which the Commons have disagreed for the reason numbered 12A.
Moved, That the House do not insist on their Amendment No. 12 to which the Commons have disagreed for the reason numbered 12A.—(Baroness Blotch.)
On Question, Motion agreed to.
LORDS AMENDMENT
15 Clause 7, page 4, line 6, leave out from ("to") to end of line 7 and insert ("a condition requiring the pistol to be kept at a licensed pistol club")
The Commons agreed to this amendment with the following amendment—
15A Line 2, after 'at' insert 'licensed premises of',
and have made the following consequential amendment to the Bill—
15B Page 3, line 43, leave out 'and used only.
Baroness Blatch: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 15A to Lords Amendment No. 15.
With this Group, it will be convenient for me to speak to Commons Amendments Nos. 15B, 34A, 50A, 79A, 84A, 96A, 98A and 105A to, or consequential to, Lords Amendments Nos. 15, 34, 50, 79, 84, 96, 98 and 105. These are all technical and drafting amendments and have no policy implications whatsoever.
Moved, That the House do agree with the Commons in their Amendment No. 15A to Lords Amendment No. 15.—(Baroness Blotch.)
On Question, Motion agreed to.
Baroness Blatch: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 15B to Lords Amendment No. 15.
Moved, That the House do agree with the Commons in their Amendment No. 15B to Lords Amendment No. 15.—(Baroness Blotch.)
On Question, Motion agreed to.
LORDS AMENDMENT
25 After Clause 11, insert the following new clause—
COMPENSATION SCHEME FOR FIREARMS DEALERS
(".—(1) The Secretary of State shall, in accordance with a scheme made by him, make payments to persons who on 16th October 1996 were wholly or mainly carrying on business as registered firearms dealers under the 1968 Act, in respect of any loss of business directly caused by the prohibition contained in section 1.
(2) A scheme under subsection (1) above shall provide for payments to be equivalent to one year of after-tax profits of the business, based on the average after-tax profits from the audited financial statements of the business for the three financial years, or for the total period of trading if less than three years, before the passing of this Act as calculated by a qualified person.
(3) For the purposes of subsection (2) above—
"business" means only the business or that part of the business directly affected by the prohibition contained in section 1; and
"qualified person" means a person eligible for appointment as a company auditor in accordance with section 25 of the Companies Act 1989.
(4) A scheme under subsection (1) above may—

(a) restrict eligibility for receipt of payments to claims made within a period specified in the scheme;

(b) provide for the procedure to be followed (including any time within which claims must be made and the provision of information) in respect of claims under the scheme and for the determination of such claims.")

The Commons disagreed to this amendment for the following reason—
25A Because it involves a charge on the public revenue and the Commons do not offer any further reason trusting the above reason may be deemed sufficient.
Lord Lester of Herne Hill Lord Lester of Herne Hill rose to move, That the House do not insist on their Amendment No. 25 to which the Commons have disagreed, but propose the following amendment in lieu—
MOTION MOVED ON CONSIDERATION OF COMMONS AMENDMENT
25B After Clause 11, insert the following new clause—
COMPENSATION FOR FIREARMS DEALERS CONSEQUENT ON JUDGMENT OF EUROPEAN COURT OF HUMAN RIGHTS
(".—(1) The Secretary of State may, in accordance with a scheme made by him, make payments to persons who on 16th October 1996 were wholly or mainly carrying on business as registered firearms dealers under the 1968 Act, in respect of any compensation which is declared by a judgment of the European Court of Human Rights to be required to be paid as a result of a breach or breaches of Article 1 of the First Protocol to the European Convention on Human Rights arising from the entry into force of this Act.
(2) A scheme under subsection (1) shall be contained in a statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.")
The noble Lord said: My Lords, I beg to move that the House do not insist on their Amendment No. 25 to which the Commons have disagreed for the reason numbered 25A, but propose Amendment No. 25B as an amendment in lieu.
This is a matter upon which the relationship between the two Houses and their privilege is quite clear. The reasons given by another place relate to their privilege and it is perfectly right that we should not in any way seek to dispute that or to disagree. I should therefore like to explain why I seek to move an amendment in lieu.
The debate in another place on the compensation issue for registered firearms dealers took place in the shadow of their "guillotine" so that there was no time for proper consideration of the European Convention on Human Rights issues which underlay the extremely modest provision to compensate registered firearms dealers which this House approved. I have carefully studied the debate and all of the proceedings in this House, but I remain in the dark as to the Government's reasons for concluding, if they do so conclude, that to enact this Bill without providing any compensation for
798
the destruction of the businesses of registered firearms dealers would be in accordance with the obligations placed on Parliament as well as on the Executive under Article 1 of the First Protocol to the convention, read on its own and read with the non-discrimination guarantee in Article 14 of the convention.
The Government's responses so far to every attempt to clarify the position remind me of a very polite and extremely parliamentary version of the irritable father in Ring Lardner's marvellous story. Your Lordships remember that he describes a father being hopelessly lost while driving his naughty and inquisitive son through an urban wilderness. "Daddy, daddy", the little boy asks. "Where are we?" The father's reply is recorded as, "'Shut up', he explained." I am sure that the noble Baroness will do much better than that, but that is one reason for my having tabled this amendment in lieu. It is an attempt before the Bill is enacted to obtain sufficient information from the Government to enable this House and another place to know whether or not it is likely that the Parliament at Westminster is about to legislate in breach of international treaty obligations imposed upon the United Kingdom.
I do not intend to become a convention or constitution bore so I shall be brief. It is clear that the Bill will interfere with the property rights of firearms dealers registered on 16th October 1996 when the Government announced their intention to introduce the ban. It also seems clear that, taken together, the grant of a licence to such firearms dealers, the obligations imposed on Ministers by Questions of Procedure for Ministers to comply with the convention, and the rights conferred on firearms dealers by Article 1 of the first protocol created legitimate expectations on the part of firearms dealers that they would be entitled either to carry on their business under their licences or to receive compensation if the value of their licences to carry on their lawful business was destroyed or severely damaged as a result of the coming into force of the Bill.
I have previously sought to explain why in my view the fair balance required by Article 1 of the protocol cannot be struck and maintained between the general interests of the community on the one hand and the individual rights and interests of firearms dealers on the other, unless fair compensation is paid for the destruction of their businesses as a direct result of the operation of the Bill and in breach of their reasonable and legitimate expectations. To find a fair balance is the essence of the issue. An excessive burden must not be placed on any group in society. The losses that firearms dealers will inevitably sustain are excessive unless some compensation is paid to them. At no time in the debate on the issue in this House and in another place have Ministers ever stated that they consider this legislation strikes and maintains a fair balance between the general community on the one hand and registered firearms dealers on the other. They have spoken of a fair balance in general terms. That is the particular issue on which we must focus. Ministers have continued to assert that they believe that the legislation complies with our treaty obligations under the convention. They have not explained why they believe that to be so. They continue to rely on a distinction that they draw between property

799
consisting of handguns and accessories on the one hand and property that consists of the right to run a business on the other. They say that the former only is property within the scope of the convention.
On my reading of the case law neither the convention nor for that matter the common law makes such an arbitrary distinction between different kinds of property. The distinction has no rational basis. I do not understand, until it is explained to me, how it can possibly pass muster under the convention. That is my first concern.
My second concern is to try to achieve a fair and orderly means of compensating all registered firearms dealers if, and only if, any one of them were to succeed before the European Court of Human rights. That is why my amendment seeks to empower a future Secretary of State to introduce a scheme in the wake of a judgment in favour of any one firearms dealer; otherwise, there will be an unfair and shambles-like situation in which one registered firearms dealer wins his case and a number of other firearms dealers have not brought any cases. They should all be entitled in justice to receive compensation. There should be statutory authority to allow the Secretary of State to bring in a scheme to cover the entire category of firearms dealers registered on 16th October 1996 and to comply properly and speedily with the judgment of the court to cover the entire category.
My final and third concern—here we enter a more arcane and esoteric area but I mention it nonetheless—is to ensure that there is adequate parliamentary authority for recurring public expenditure that may arise, especially if there is no appropriate statutory scheme. Since the convention was ratified by the UK, and particularly since the right of petition was accepted 30 years ago, successive governments have incurred significant recurring expenditure to satisfy judgments of the European Court and to pay the costs of friendly settlements under the convention, as well as contributions towards the cost of the court and commission. It remains unclear to me whether there is proper legal authority for those payments. Two years ago I asked the Government what was the legal authority for paying out public funds for Strasbourg costs. On 3rd March 1994 I received the response:
"The costs are met from the Votes of the government departments concerned, as approved by Parliament in the annual Appropriation Act".—[Official Report, 3/3/94; col. WA83.]
I venture to doubt—when I say this I feel like the small child who observes that the emperor has no clothes—whether that is a sufficient response in respect of recurring expenditure (I emphasise "recurring expenditure") that is likely to arise if this Bill results in continuing findings of breaches of the first protocol.
Yesterday and this morning I wrote to the Minister raising my various concerns. I have also spoken to her ever-helpful private office. I am sorry that I did so only yesterday afternoon and this morning, but I had little time in which to consider the matter after the Bill had been considered in another place. I am sorry that she is faced with a series of questions. I will not bore the House by reading them out. I have raised these issues in question form. I very much hope that at the
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eleventh hour the noble Baroness will be in a position to clarify these issues for the benefit of the House as a whole and, if necessary, for the benefit of the European Court of Human Rights. That will enable us, in the words of the noble Baroness, to act as an effective check and balance. I say to noble Lords on the Opposition Front Bench that, assuming I am right, it is they who will have to pick up the pieces if they form a government in the spring election. They, too, should be interested in knowing exactly why it comes about and why the Government consider that they have a strong case under the convention, if they do. For those reasons, I beg to move.
Moved, That the House do not insist on their Amendment No. 25 to which the Commons have disagreed, but propose Amendment No. 25B as an amendment in lieu.—(Lord Lester of Herne Hill.)
Lord Campbell of Alloway: My Lords, I oppose this amendment. Taken at face value, Amendment No. 25B assumes that the Court of Human Rights will order compensation under Article 1 in excess of that allowed under the Bill when enacted. Surely, it cannot be within the province of your Lordships' House to anticipate any judgment or finding as to a breach of the convention or any measure of compensation before Her Majesty's Government have argued their case before the court.
The noble Lord refers to esoteric concepts of case law and property. It is all pie in the sky until the matter has been argued and the court has come to a conclusion. Secondly, surely as a charge on the public revenue, as another place properly claims privilege and does not offer any further reason, can it be appropriate for your Lordships to resolve that a scheme for compensation introduced by virtue of such a judgment of the court shall be subject to annulment by a single House of Parliament, your Lordships' House?
There is more behind this than meets the eye. The noble Lord, Lord Lester of Herne Hill, has introduced yet again a Bill to incorporate the convention into our law notwithstanding "any rule of our law to the contrary". It would be premature, indeed it would be presumptuous, to assume that his Human Rights Bill will ever reach the statute book. In this regard this amendment savours of pre-emption. The convention was drafted over 40 years ago. It reflects the worries and concerns of post-war Europe. The meaning of incorporation has never been properly thought out. The convention was never designed to be and is not suitable to become a substitute Bill of Rights in the United Kingdom. We have our own unwritten constitution, well-established norms of conduct which regulate the relationship between the two Houses. These evolve with time. They are not immutable. The flexibility suits us and has served us well for centuries, as distinct from a written constitution, a Bill of Rights which incorporates the European Convention on Human Rights.
4.30 p.m.
Lord McIntosh of Haringey: My Lords, I refused to follow the noble Earl, Lord Onslow, into a broader discussion of the reform of the House of Lords and I certainly refuse to follow the noble Lord,

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Lord Campbell of Alloway (or indeed the noble Lord, Lord Lester), into a discussion of the repatriation of the European Convention on Human Rights into our law. That would be way outside our proper consideration at this stage of—may I remind the House—the Firearms (Amendment) Bill. That is despite the fact that I rather like the challenge of the noble Lord, Lord Lester, that we shall have to deal with it within a very short space of time.
I want to return to the issue of compensation to gun clubs and gun dealers which is contained in the amendments which the noble Lord, Lord Lester, moved and which were carried in this House.
Lord Lester of Herne Hill: My Lords, what I am dealing with does not concern gun clubs, only registered firearms dealers.
Lord McIntosh of Haringey: My Lords, I am delighted to accept that correction, but the issue is still the same. The point about compensation, either to gun dealers or gun clubs, is that it involves very substantial additional expenditure in compensation and the Commons, in their reason No. 25A, have said it involves a charge on the public revenue. The Commons do not offer any further reason, trusting that the above reason may be deemed sufficient.
There is of course no rule which lays down absolutely that we shall not resist a Speaker's ruling of privilege or the judgment of a committee of reasons in this case. However, there would have to be extraordinarily strong reasons for us to go against that reason No. 25A.
I do not find myself very much convinced by the reasoning of the noble Lord, Lord Lester. He is a great expert: he has spent a large part of his distinguished career concerned with the law as it relates to our international obligations. I respect him for that. But he is asking, as I understand it, that we should be sure now as to whether this particular example—the compensation of gun dealers—would be within or outwith the terms of the protocol to the European Convention. I do not see that we can ever do that. We argue on all these cases from analogy. It has, of course, been made clear that there are occasions when it is right and proper for Parliament to award compensation to those who suffer as a result of Acts of Parliament. That is indeed what is proposed in this Bill (I nearly said "this Act" because it nearly is this Act)—compensation for the loss of the weapons themselves. But the examples on the other side of no compensation—
Lord Lester of Herne Hill: My Lords, I am sorry to interrupt. I wonder whether the noble Lord is aware that his own party, in its admirable consultative document on incorporation of the convention, has advocated setting up a parliamentary committee with the express purpose of informing this House and another place before legislation is passed as to whether it might breach the convention.
Lord McIntosh of Haringey: My Lords, indeed, I am aware of that. In fact, as the noble Lord knows, we have both been involved in discussions on the point at different times. That would indeed be a very valuable procedure,
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but we do not have that procedure. Without it we argue from analogy and, as I said, there are plenty of examples of compensation but there are also plenty of examples of no compensation being awarded on the basis that it is and must be an acceptable risk of being in business of any kind that one is subject to changing legislation. The examples which were given in the debates in this House, of changing health and safety legislation, changing drug approvals, and many others, seem to me to be very powerful indeed. On the merits of the issue itself as well as on the procedural matter, I would advise my noble friends not to support the noble Lord, Lord Lester, in his amendment.
Earl Russell: My Lords, the noble Lord, Lord Campbell of Alloway, has made the most delightfully ingenious speech, to which I listened with great pleasure and a great deal of interest. However, I am not at all certain that it was on the question before the House.
The noble Lord alleged first that this amendment anticipates the ruling of the convention. It does no such thing. It merely asks the Government to accept what for my part I certainly accept, and what I heard my noble friend Lord Lester of Herne Hill accept when he moved the original amendment, that any or all of us may be in error when we consider what a possible future judgment might be.
When Parliament, in a statute, prohibits certain conduct it does not make a prophecy that that conduct will take place. In the history of the statute book there are some very curious examples of that principle.
Nor does this amendment in any way pre-empt the question of incorporation. That question is not before the House. It may come before the House on some future occasion. It certainly is not now. What this amendment is concerned with is how Parliament might react to the meeting of a liability which may occur under an existing obligation. It is my understanding that it is the position of this Government, which I have heard stated many times since 1992, that this Government accept their international obligations and discharge their liabilities under them. It is an honourable position. I have heard it, I respect it, and I hear it with pleasure. We have an obligation under which a liability may arise. This amendment relates only to the means by which that obligation could be met. If the obligation should arise, I understand that legislation would be needed to accept it. Most business managers will tell you that in the middle of a busy legislative Session it is not easy to insert into that programme a major new controversial measure. I have heard the Minister many times asserting the virtues of flexibility. They are virtues. The amendment has them. It offers them to the Government, as I see it, for their convenience.
The Earl of Lytton: My Lords, I am no lawyer, as your Lordships will know. Therefore I cannot enter the fray on the matter of international or constitutional law, but I am inclined to support the noble Lord, Lord Lester, in his line of inquiry, particularly as he so ably carried forward a point, which I was unable to carry forward due to other commitments, on the whole question of compensation.

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All the arguments have been rehearsed, and I shall not go over them again. It seems to me that governments must act, and must be seen to act, reasonably, not capriciously, with due regard for all the consequences and on proper and full consideration.
My concern is that the Government's approach to all those has fallen short of what I would have hoped in this instance. It is the hallmark of a free society that, if the government of the day have to take away legitimate minority rights, compensation should follow, especially—and this may answer the point made by the noble Lord, Lord McIntosh of Haringey—if the transitional arrangements are inadequate. If you are given time to restructure, of course you can take on the changes and suffer the losses, but if you have not been given that time, then you cannot do that, and you are in a cleft stick, because there are other legislative matters, including the insolvency laws, it might be said, which might come into play as well.
We have had our fair share of legislation in the past that has gone badly wrong. I made my maiden speech in your Lordships' House on a local government finance Bill. It may be appropriate that I am following the noble Earl, Lord Russell, because when we came to repeal part of that he referred to that repeal Bill as the black pudding removal Bill. I remember those words which I hope will go down as one of those immortal phrases. I hope that we do not have a black pudding removal Bill for this Bill when we have gone a few months or years down the road.
I hope and pray, although I am fearful that it will not be so, that we will not have a re-run of the Dangerous Dogs Act or the War Crimes Act—all measures which were introduced on a tide of public opinion fuelled by media interest. I do not say that that is wrong, but I say that it is wrong to go down that road without due consideration.
On poll tax, I seem to recall saying in my maiden speech—I have not looked it up to see what I said—that a law that was not fair and was not seen to be fair would fail. That is something that we do with our unwritten constitution which may well be subject to the hot brand of some other jurisdiction. I do not feel that we can necessarily accept—I do not feel that I can necessarily accept—the argument of a democratic superiority in relation to another place when in this House we are promised all the time that is necessary to debate while in another place the proceedings are the subject of a guillotine.
It goes on from that that we cannot claim due process if the expert report—in this case the very able and full report of Lord Cullen—is not followed to the letter, and, worse still, Parliament is not given time to debate that before legislation is introduced, and introduced without pause for breath, because the Bill was produced, and the Government's response was there before there was time to turn round and read the first 10 pages, I suspect, of Lord Cullen's report. That is a poor reaction, poor treatment and poor due diligence in respect of that report.
There is reason here—I am not sure what the noble Lord, Lord Lester, wishes to do with his line of inquiry this afternoon—to have a clear statement that the
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provisions of the Bill fall short on wisdom, fairness and the proper balance to be struck. I say no more than that. But it would be wrong for the Bill to pass into law, as I am sure that it will, without that clear message going back to another place, and some Members of this House saying—I feel that my views are probably shared by many others—that, notwithstanding the procedures that have been followed through, we still have a poor piece of legislation going onto the statute book.
4.45 p.m.
Earl Peel: My Lords, I entirely endorse the remarks made by the noble Earl towards the end of his speech. It is far from clear to me whether the amendment will be helpful to those who may or may not seek redress through the European Court. That remains to be seen. I do not know whether they will do so. If they do, all I can say is that I wish them every bit of success and every bit of luck, because they deserve it.
These will be my last words on the Bill, but I have looked at the reasons why the other place decided to overturn all the amendments on compensation:
"Because it involves a charge on the public revenue … trusting the above Reason may be deemed sufficient".
I suggest that that is not sufficient. That is a pathetic reason for not giving people compensation for livelihoods which will be destroyed by the Bill.
I am immensely disappointed that another place did not take into due consideration the lengthy and considered debates of your Lordships on this matter. I take the view—I abstained on the previous Division despite the very great respect I have for the noble Lord, Lord Stoddart—that we have gone as far as we can on this matter, and we should now abide by the decisions made in another place, even though I believe that its decisions on this matter are nothing short of disgraceful.
Lord Stoddart of Swindon: My Lords, like the previous two speakers, I believe that this is a thoroughly bad Bill of which Parliament should be ashamed. This may or may not be the last word I shall say on it; I shall consider my position. I hope to be able to persuade the noble Earl, Lord Peel, to support the amendment even though he did not support the previous one.
This amendment is of course different in quality from the previous one. The other place has more right—if I may put it that way—to reject it out of hand, because it has to raise the money to pay for the financial costs. There is a qualitative difference if I may put it that way; but nevertheless I believe that the other place was mean-minded not to accept our amendment, because there are many people who will be adversely financially affected, and some will lose their business. I hope that this is not a breach of privilege, but I believe that the other place was mean-minded not to accept the modest amendment which was sent to it.
I have read the debate in the other place. One after another of the Members there instanced constituents of theirs who would be badly affected by the Bill. They repeatedly urged the Home Secretary to accept our amendment. I believe that they were right. Indeed, it is significant that 145 Members of the House of Commons

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voted in favour of our amendment. That is a large number and I believe noble Lords opposite should take it into account.
Finally, I wish to outline the reason that I shall support the amendment. It may or may not be well known that I am very suspicious of both European courts; namely, the European Court of Human Rights and the European Court of Justice. Nevertheless, I shall support the amendment because I believe that the House of Commons ought to have yet another look at the compensation provisions. So many ordinary people will be hurt, which is why I believe we should give the Commons an opportunity to reconsider what it has done and what it should do. The amendment, which would send the Bill back to the Commons, would give it that opportunity. It does not have to accept the amendment; it can table an amendment to our amendment. That is why I hope that the noble Earl, Lord Peel, who I am sure is with me on this issue, will vote for the amendment. It does no harm to the Bill and will enable the Commons to reconsider the matter. It can then, if it so wishes, table an amendment to our amendment.
Lord Monson: My Lords, to deprive people of their livelihoods, and in many cases of their houses when they are mortgaged as security for their business overdrafts, not for genuine safety reasons but the purpose of gesture politics is immoral. But if pleas of morality cut no ice with the de facto Conservative/Labour Front Bench coalition, at least let them consider pragmatically a slowly but surely turning tide of public opinion.
A recent unpublicised MORI public opinion poll reveals that 55 per cent. of the population now believe that target pistol shooters will be unfairly penalised by the changes in the law. Only 40 per cent. believe otherwise, with 5 per cent. undecided. I suggest that the proportion of the population believing that it is wrong to deprive people of their livelihoods is even greater. Let the Front Bench coalition consider at the very least the consequence of flouting this majority public sense of what is just and fair and what is unjust and unfair. I urge your Lordships to support the amendment.
Earl Attlee: My Lords, I cannot match the experience of the noble Lord, Lord Lester of Herne Hill, on European matters; the knowledge of property matters of the noble Earl, Lord Lytton; or the knowledge of the firearms trade of the noble Earl, Lord Peel.
However, during the passage of the Bill through Parliament the Government have referred to environmental and safety legislation and the noble Lord, Lord McIntosh, mentioned it today. I believe that the cost benefit analysis, if one has been carried out, is appalling. We have tragically lost 30 lives, including those at Hungerford and Dunblane, and as a result of the legislation we are to spend about £300 million. That is £10 million a life. If in respect of a road safety scheme or a hospital the idea was to spend £10 million to save a life, I suggest that the Government would not find that an attractive cost benefit analysis. That is why I believe that the Bill is appalling in terms of the use of taxpayers' money and the penalty to business, which will lose as a result.
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It is important to debate the issue and I am grateful to the noble Lord, Lord Lester, for returning to it. I support his motives, but my view on sending the matter back to another place is exactly the same as it was on the previous debate.
Lord Cottlesloe: My Lords, I shall be brief. I have some sympathy with the amendment, modest though it is, but, whatever the legal niceties, it is sad, to put it mildly, that we must resort for justice to the European Court of Human Rights. The Magna Carta has been around a good deal longer and states clearly:
"To no man will we sell; to no man will we deny justice".
I fear that we are about to deny justice to many loyal, law-abiding, decent men and women. Nevertheless, I have sympathy with the amendment and I hope that it is acceptable. Your Lordships will be glad to hear that this will be my last word on the Bill.
Baroness Blatch: My Lords, having listened to the noble Lord, Lord Lester, I am tempted to follow the example set by the father of the little boy who persisted in asking questions. But it would not be in keeping with the conventions of this House; nor, I hope, would it be characteristic of me to be so rude.
The noble Lord, Lord Lester, takes the view that the Government's proposals on compensation are not in accordance with the requirements of the European Convention on Human Rights. The Government simply do not agree with that view. It would be wholly improper to pass legislation with a view that it would be in breach of the European Convention on Human Rights, to make provision that it just might at some time in the future be challenged, and to take this moment to provide remedies in advance.
My noble friend Lord Campbell of Alloway was right in saying that if we took that route on a Bill that we do not regard as being in breach of the European Convention, it would be importing provisions and anticipating what a future judgment of the European Court of Human Rights might be on a challenge yet undefined. That certainly would mean importing the interpretation of Article 1 of the First Protocol to the convention. I do not believe that we should go down that road. Therefore, what my noble friend said was entirely pertinent to the debate and not outside it.
The noble Earl, Lord Russell, suggested that we need to introduce flexibility. This degree of flexibility would he absurd. Passing a Bill which we do not believe to be in breach of the convention, anticipating that it might be in breach of the convention at some time in the future against a challenge about which we know not, would be taking our duties too far.
If the noble Earl, Lord Lytton, were right in saying that there will be no compensation, I should have a great deal of sympathy with him. Indeed, I have a great deal of sympathy for the people on whose behalf he spoke because there will be some pain and distress as a result of the passing of the Bill. But of course there is a compensation scheme. People will be compensated for loss of stock, as will people who have guns but will not be shooting in future and will wish to surrender them.

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Therefore, there will be a generous compensation scheme which we believe will be administered efficiently and quickly.
The Government have considered the matter most carefully and we are satisfied that the proposals are in accordance with our obligations under the European Convention on Human Rights. We are satisfied that the Government have properly addressed the question of striking a fair balance, as interpreted in the cases referred to by the noble Lord, Lord Lester, within the margin of appreciation which the Government enjoy for this purpose. We have undertaken to compensate dealers for their stocks of newly prohibited firearms and ancillary equipment. We take the view that we are not obliged to compensate dealers for business losses which flow from a control of the use of handguns under Rule 3 of Article 1.
The noble Lord raised specific questions about the application of the European Convention on Human Rights. He asked, first, whether the Government accepted that the business of registered firearms dealers is within the concept of property under Article 1. Ultimately, only the European Court of Human Rights would be able to give an authoritative interpretation, but we do not dispute that the goodwill in the business of a firearms dealer could be regarded as property for the purposes of the convention. However, we would not accept that the effect of the Bill on dealers will amount to depriving them of the use of their business in the sense meant by Article 1 of the convention.
The noble Lord asked me also whether the Government accept that the coming into force of the Bill will constitute an interference with the property rights of firearms dealers. It is implicit in all that I have said that the Government do not believe that it would be. It is clear that the implementation of the legislation will have an effect on the business of some registered firearms dealers, although the extent of that effect will vary between different businesses and cannot be predicted accurately. We would not agree that the effect of the Bill amounts to expropriation of the dealers' business. We consider that the measures are contained within the margin of appreciation which the Government enjoy to determine measures of control over the use of property in accordance with the general interest.
Another question posed by the noble Lord was whether the Government accept that the grant of licences to firearms dealers creates legitimate expectations that they would receive compensation as a result of the legislation. We do not accept that the granting of licences to deal in firearms created expectations that compensation would be paid if the value of the business were to diminish. Registration of a firearms dealer does no more than give that person lawful authority to deal in firearms.
The noble Lord, Lord Lester, asked how a fair balance can be achieved between the general interests of the community and the individual rights of dealers without the payment of compensation for the loss of business in breach of their legitimate expectations. We do not accept the premise that legitimate expectations to
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compensation for loss of business will have been created by giving authority to persons to deal in firearms. We are satisfied that our proposals represent a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights.
We believe that it would be unfair and would not represent that balance if we were to establish a precedent which meant that compensation was to be paid for any loss of business which might result from legislative requirements imposed in the interests of public safety.
The noble Lord asked how the United Kingdom can justify the difference in treatment between the owners of handguns who are to receive compensation, and registered firearms dealers who are to receive no compensation. There is no difference in treatment. As we made clear all along, compensation will be available both to lawful private owners of prohibited handguns and ancillary equipment and to firearms dealers. The Government will pay fair compensation to dealers for their stock of newly prohibited handguns, just as we shall pay fair compensation to individual firearms owners for the weapons which they will no longer be permitted to hold.
The noble Lord asked how Parliament could ensure that firearms dealers were paid compensation in the event of one of them succeeding in establishing a breach of the European convention. He went on to ask that in the event of the European Court of Human Rights ruling in favour of a registered firearms dealer, would there not be recurring expenditure of public funds which would require specific legislative authority?
It follows from what I have said that we do not accept the premise of those questions. We are satisfied that our proposals are in accordance with our obligations under the European Convention on Human Rights. Those questions and the noble Lord's amendment in effect invite us to speculate about what might happen in the future if a firearms dealer were to seek to bring a case; if the Commission were to entertain such an application and if, in that event, the court were to find that a person had established a breach of his rights under the convention. We do not believe that that will happen. If it does, the Government will have to reconsider the position. But we cannot anticipate now what might or might not happen in the future and what the government of the day might or might not do in that event. Even if the court were to find that a violation had occurred, we cannot possibly predict what the violation would be nor the conclusion that the European Court might reach or in what terms it might make such a judgment. Therefore, we cannot say whether any future ruling of the court would create a need for expenditure of public funds which would require specific legislative authority.
It would be strange legislation indeed that contained a provision which said, in effect, that if other provisions of the legislation turned out to be in breach of international obligations, then we should do something else instead. That would be the effect of the noble Lord's amendment and I urge the House to reject it.

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When that has been dealt with, I shall move that the House do not insist on Amendment No. 25 to which the Commons have disagreed for the reason numbered 25A.
Lord Campbell of Alloway: My Lords, before my noble friend sits down, perhaps I may ask this. The matter was put before the House by the noble Lord as a probing amendment for information. The Minister has provided the information. Is that the end of the matter or are we now to have a Division?
5 p.m.
Lord Lester of Herne Hill: My Lords, I am probably the better person to answer that question. I shall do so in a moment. First, I thank all noble Lords who have spoken in this interesting and important debate. I make it clear also that I have not been speaking against the Bill, as some noble Lords have done. I support the broad objectives of the Bill. I have been speaking on a narrow issue, an issue which is important to me. I am not a shooter although I was once a marksman in the Army during the time of my national service. I am not in favour of or against shooters. I take no particular position on the Bill. I believe that where businesses are blighted, however, by the operation of law, and where legitimate expectation has been created, Parliament and the taxpayer should pay the consequences.
I am indebted to the Minister for the care with which she has answered each of my questions. I listened very carefully to those answers. I made it clear that the main purpose in introducing the matter was to obtain clarification. I would bet the Bank of England to a blood orange that other noble Lords remain as uncertain as I am having listened to those answers as to what is the true position.
Of course, in the end, this is a matter now for a judgment at Strasbourg rather than a matter for the judgment of this House and another place. At one point, the Minister referred to the margin of appreciation, using Euro-speak, as being that of the Government. There I think she was in error. It is not a margin of appreciation enjoyed by the Government. It is a margin of appreciation allowed to Parliament. The problem is that Parliament is now enacting a law and all these debates and everything said by noble Lords and Members of another place will no doubt be relied upon by the Government and against the Government if those proceedings take place.
The good news, no doubt for shooters as well as for the Government, is that I shall not have the pleasure of taking part in those proceedings in view of the part that I have played in my parliamentary role. But it is unsatisfactory that this House has no authoritative way of finding out what are our international treaty obligations and what the implications of passing legislation are likely to be except through the kind of exchange which your Lordships have had to bear today with me attempting to put questions to the Minister and the Minister having the disagreeable task of having to answer those questions, some of which are highly legalistic. I do not mean that the answers are legalistic; the issues are.
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One noble Lord referred to Magna Carta. Another provision of Magna Carta, chapter 39, says that no free man shall be disseized of his possessions. I am very sorry as someone who is generally pro-European that we alone in Europe have no constitutional guarantees of basic rights and freedoms, including, I believe, the right to peaceful enjoyment of one's possessions. It is that gap which cannot be cured by my amendment or any other amendment today which gives rise to that problem.
I am afraid that we must now pass the question not to another place, because I agree with those noble Lords who have pointed out the futility of seeking to do that at this stage, and not passing it as it should be passed to another place and for a judgment of both Houses, properly informed. I fear that now there must be litigation in Strasbourg which will take six years at least. Heaven knows who will then be in power to pick up the pieces. However, I am most grateful to all noble Lords who have taken part in the debate and I beg leave to withdraw the Motion.
The Deputy Speaker (Viscount Allenby of Megiddo): My Lords, is it your Lordships' pleasure that the amendment be withdrawn?
Lord Stoddart of Swindon: No.
The Deputy Speaker: My Lords, the Question is that the Motion be agreed to. As many as are of that opinion will say "Content"—
Lord Stoddart of Swindon: Content.
The Deputy Speaker: To the contrary, "Not content."
Noble Lords: Not content.
The Deputy Speaker: The Not-Contents have it.
Noble Lords: Content.
The Deputy Speaker: Clear the Bar.
5.9 p.m.
On Question, Whether the said amendment (Amendment No. 25B) shall be agreed to?
Their Lordships divided: Contents,24; Not-Contents, 160.

Division No. 2

CONTENTS

Ailsa, M.

Harris of High Cross, L.

Beaumont of Whitley, L.

Harrowby, E.

Boyd-Carpenter, L.

Hooson, L.

Carlisle, E.

Hylton, L.

Clancarty, E.

Monson, L. [Teller.]

Congleton, L.

Munster, E.

Cottesloe, L.

Plummer of St. Marylebone, L

Devonport, V.

Saint Oswald, L.

Glasgow, E

Stallard, L.

811

Stoddart of Swindon, L. [Teller.]

Warnock, B.

Swansea, L.

Winchilsea and Nottingham, E.

Thurso, V.

Zouche of Haryngworth, L.

NOT-CONTENTS

Aberdare, L.

Goschen, V.

Acton, L.

Graham of Edmonton, L.

Addison, V.

Hailsham of Saint Marylebone, L.

Aldington, L.

Haskel, L.

Alexander of Tunis, E.

Hayhoe, L.

Allenby of Megiddo, V.

Hayman, B.

Anelay of St. Johns, B.

Hemphill, L.

Archer of Weston-Super-Mare, L.

Henley, L.

Ashbourne, L.

Hogg, B.

Astor, V.

Holderness, L.

Astor of Hever, L.

Hollis of Heigham, B.

Balfour, E.

Hooper, B.

Banbury of Southam, L.

Howe, E.

Barnett, L.

Hughes, L.

Belstead, L.

Ilchester, E.

Berkeley, L.

Inglewood, L.

Berners, B.

Jeger, B.

Birdwood, L.

Jenkins of Putney, L.

Blackstone, B.

Keyes, L.

Blaker, L.

Kilbracken, L.

Blatch, B.

Kimball, L.

Borrie, L.

Kinnoull, E.

Bowness, L.

Knollys, V.

Brabazon of Tara, L.

Laing of Dunphail, L.

Braine of Wheatley, L.

Lauderdale, E.

Brougham and Vaux, L.

Long, V.

Butterfield, L.

Longford, E.

Byford, B.

Lucas, L.

Campbell of Alloway, L.

Lyell, L.

Campbell of Croy, L.

McColl of Dulwich, L.

Carmichael of Kelvingrove, L.

McIntosh of Haringey, L.

Carnegy of Lour, B.

Mackay of Ardbrecknish, L.

Carnock, L.

Mackay of Clashfern, L. [Lord Chancellor.]

Chalker of Wallasey, B.

Chelmsford, V.

Mackay of Drumadoon, L.

Chesham, L. [Teller.]

McNally, L.

Clanwilliam, E.

Marlesford, L.

Clark of Kempston, L.

Merrivale, L.

Clinton-Davis, L.

Mersey, V.

Cobbold, L.

Miller of Hendon, B.

Coleraine, L.

Milverton, L.

Courtown, E.

Monckton of Brenchley, V.

Cowley, E.

Montgomery of Alamein, V.

Cranborne, V. [Lord Privy Seal.]

Morris of Castle Morris, L.

Crathorne, L.

Mottistone, L.

Crickhowell, L.

Mowbray and Stourton, L.

Cuckney, L.

Nelson, E.

Cullen of Ashbourne, L.

Nickson, L.

Cumberlege, B.

Nicol, B.

Dacre of Glanton, L.

Norrie, L.

David, B.

Northesk, E.

Davidson, V.

O'Cathain, B.

Dean of Harptree, L.

Pender, L.

Denbigh, E.

Pike, B.

Denham, L.

Quinton, L.

Denton of Wakefield, B.

Ramsay of Cartvale, B.

Dixon-Smith, L.

Rankeillour, L.

Dormand of Easington, L.

Rawlinson of Ewell, L.

Dubs, L.

Rees, L.

Dudley, E.

Richard, L.

Dundonald, E.

Romney, E.

Elles, B.

Rotherwick, L.

Elliott of Morpeth, L.

Rowallan, L.

Elton, L.

St Davids, V.

Erne, E.

Saltoun of Abernethy, Ly.

Feldman, L.

Seccombe, B.

Ferrers, E.

Serota, B.

Fraser of Carmyllie, L.

Shaw of Northstead, L.

Gallacher, L.

Sheppard of Didgemere, L.

Gladwin of Clee, L.

Skelmersdale, L.

812

Soulsby of Swaffham Prior, L.

Thomas of Gwydir, L.

Stevens of Ludgate, L.

Tollemache, L.

Stewartby, L.

Trumpington, B.

Strabolgi, L.

Turner of Camden, B.

Strathclyde, L. [Teller.]

Westbury, L.

Sudeley, L.

White, B.

Williams of Elvel, L.

Swinfen, L.

Williams of Mostyn, L.

Symons of Vernham Dean, B.

Wolfson, L.

Taylor of Warwick, L.

Wynford, L.

Tenby, V.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
5.19 p.m.
Baroness Blatch: My Lords, I beg to move that the House do not insist on their Amendment No. 25 to which the Commons have disagreed for the reason numbered 25A.
Moved, That the House do not insist on their Amendment No. 25 to which the Commons have disagreed for the reason numbered 25A.—(Baroness Blatch.)
On Question, Motion agreed to.
LORDS AMENDMENT
27 After Clause 11, insert the following new clause—
COMPENSATION FOR CLUBS AND ASSOCIATIONS
(".—(1) The Secretary of State shall, in accordance with a scheme made by him, make payments to persons who on 16th October 1996 were operating a target shooting club or association which as a result of the provisions of this Act will be unable to continue to operate.
(2) A scheme under subsection (1) above shall provide payments in respect of loss incurred by persons who have responsibility for any debt, mortgage, lease or other liability in connection with the club or association.")
The Commons disagreed to this amendment for the following reason—
27A Because it involves a charge on the public revenue and the Commons do not offer any further Reason trusting the above Reason may be deemed sufficient.
Baroness Blatch: My Lords, I beg to move that the House do not insist on their Amendment No. 27, to which the Commons have disagreed for the reason numbered 27A.
Moved, That the House do not insist on their Amendment No. 27, to which the Commons have disagreed for the reason numbered 27A.—(Baroness Blatch.)
On Question, Motion agreed to.
LORDS AMENDMENT
34 Clause 19, page 10, line 3, at end insert—
("(2D) A small-calibre pistol delivered into police custody by virtue of a notice under section 18(2) above shall not be released to any person except on the authority of the chief officer of police into whose custody it was delivered.
(2E) The holder of a firearm certificate relating to the pistol, or any other person who may lawfully have the pistol in his possession, may apply in writing to the chief officer for the release of the pistol (whether to him or to a person nominated by him).
(2F) When such an application is made the chief officer of police may require such written statements, from any person, as he considers necessary for the purpose of determining the application.")
The Commons agreed to this amendment with the following amendment—
34A Line 3, leave out 'section 18(2)' and insert 'subsection (2)'.
Baroness Blatch: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 34A to Lords Amendment No. 34.
Moved, That the House do agree with the Commons in their Amendment No. 34A to Lords Amendment No. 34.—(Baroness Blatch.)
On Question, Motion agreed to.
LORDS AMENDMENT
40 Clause 20, page 10, line 16, at end insert—
("(3) A member of a licensed pistol club approved by the Secretary of State may, without holding a firearm certificate, use under the supervision of an officer of the club, for a period not exceeding 60 consecutive days, a small-calibre pistol and ammunition when engaged as a member of the club in, or in connection with, target shooting.")
The Commons disagreed to the above amendment but proposed the following amendments in lieu—
40A Page 7, line 26, leave out from 'premises' to first 'a' in line 27 and insert 'in connection with target shooting, unless the club is a licensed pistol club.
(1A) No licensed pistol club shall allow a small-calibre pistol to be stored or used on any of its club premises by any holder of'.
40B Page 7, line 29, leave out from beginning to second 'the'.
40C Page 7, line 35, leave out from beginning to first 'the' and insert 'Subsection (1A) above does not apply to—

(a) the storage on licensed premises of a licensed pistol club of a small-calibre pistol purchased or acquired by the responsible officer of that club for use only by members of the club in connection with target shooting;

(b) the use on licensed premises of a licensed pistol club of a small-calibre pistol by a member of the club who is permitted to have it in his possession by virtue of section 20(3) below; or

(c)'.

40D Page 7, line 40, after '(1)' insert 'or (1A)'.
40E Page 8, line 19, at end insert—
'( ) A licence may include limitations excluding or restricting the application of section 20(3) below to members of the club.'
40F Page 10, line 16, at end insert—
'(3) Subject to subsections (4) and (5) below, a member of a licensed pistol club who has not previously held a firearm certificate in relation to a small-calibre pistol may, without holding a firearm certificate, have in his possession a small-calibre pistol and ammunition on licensed premises of that club when engaged in connection with target shooting under the supervision of an officer of the club.
(4) Subsection (3) above shall not apply to a person after the end of the period of 28 days beginning with the first day on which he has a small-calibre pistol in his possession by virtue of that subsection.
(5) The application of subsection (3) above to members of a licensed pistol club may be excluded or restricted in relation to the club by limitations contained in the licence.'
40G Page 11, line 36, leave out from 'any' to 'are' in line 37 and insert 'limitations or conditions contained in the licence of the club'.
Baroness Blatch: My Lords, I beg to move that the House do not insist on their Amendment No. 40, to which the Commons have disagreed, but do agree with the Commons in their Amendments Nos. 40A to 40G in lieu thereof.
In accepting Amendment No. 40 tabled by the noble Lord, Lord Monson, at Third Reading, I undertook to explore urgently with the police and others whether a workable arrangement could be found which would allow a person to shoot at a licensed pistol club for a limited period of time without the need to hold a full firearm certificate.
The amendments tabled in another place in lieu of Amendment No. 40 are the Government's response. They make provisions for people who wish to take up target pistol shooting.
The general rule for small-calibre pistol clubs under the Bill will be that anyone who shoots there will have to have a personal firearm certificate issued by the police. However, we agree that it is unreasonable to expect people who are interested in the sport to obtain and pay the fee for a firearm certificate for a small-calibre pistol before even having a chance to try out the sport.
The amendments that the Government have now made to the Bill allow for the Secretary of State, when he issues a licence to a pistol club, to permit starter shooters to use small-calibre pistols without having a firearm certificate for a period of up to 28 days. The police expressed concerns about the length of time—60 days—which the original amendment would allow. We have taken that advice and have accepted that 28 days is a reasonable compromise. I commend the amendments to the House.
Moved, That the House do not insist on their Amendment No. 40, to which the Commons have disagreed, but do agree with the Commons in their Amendments Nos. 40A to 40G in lieu thereof.—(Baroness Blatch.)
Lord Monson: My Lords, we must be grateful for small mercies. I am truly grateful to the noble Baroness for having been able to persuade her right honourable friends of the need for an amendment along these lines.
I am not happy about the 28-day limitation. I had already reduced the trial period from 90 to 60 days in the belief that that was the period of time acceptable to the Government. Twenty-eight days may well be adequate—albeit barely adequate—for a beginner who happens to live within two, three, or four miles of a pistol club. That person could attend three or four times a week. But only a minority of clubs, as we understand it, will be licensed to accommodate what might be described as 28-day probationers. Moreover, the expensive security provisions that will be required in the absence of the disassembly amendment which was not carried will drive many pistol clubs out of business.
It therefore appears likely that the majority of beginners will be limited to practising once a week over a period of four weeks—four times in all. Realistically, although there was a lot of opposition in another place

815
to the 28-day limitation from honourable Members on both sides, it is probably too late to do anything about the matter now.
However, another possible problem arises. In the other place two days ago the Minister, Miss Ann Widdecombe, (at cols. 817 and 818 of Commons Hansard) seemed to imply that a probationer who, after 28 days, decided that he would indeed like to take up pistol shooting would have to pay for the firearm certificate, backdated to the first day of his 28-day probationary period, even though it takes several weeks for a firearm certificate to be granted. If that were to be case, he would effectively be paying for about three months in all when he would be able to shoot only four or so times.
I had been advised, confusing though the Minister's statement was, that I had misinterpreted it and there was no need to worry on that score, and that any licence taken up will run from the day that it is issued and will not be backdated. Before we leave this amendment, will the noble Baroness be so kind as to reassure me on that score?
Baroness Blatch: My Lords, I am happy to reassure the noble Lord about the position. The fee of £56 for the granting of a firearm certificate does not become payable until the certificate is granted. The certificate lasts for five years from when it is granted. The 28 days which the person spends as a starter shooter will not be deducted from that period.
For example, if a starter shooter began shooting on 1st February, he could shoot in that club until the end of February without holding or having applied for a firearm certificate. If he wanted to take up shooting, he should then apply for a firearm certificate. If the application was successful, and if a certificate was granted, for example, on 20th March, it would last five years from 20th March and he would pay the usual fee of £56 and no more.
Lord Monson: My Lords, I am entirely content with that. I thank the Minister.
On Question, Motion agreed to.
LORDS AMENDMENT
50 Clause 27, page 13, line 12, at end insert ("or a visitor's firearm or shot gun permit")
The Commons agreed to this amendment and have made the following consequential amendment to the Bill—
50A Page 13. line 12, after 'a' insert firearm or shotgun'.
Baroness Blatch: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 50A, as a consequential amendment to Lords Amendment No. 50. I commend the amendment to the House.
Moved, That the House do agree with the Commons in their Amendment No. 50A, as a consequential amendment to Lords Amendment No. 50.—(Baroness Blotch.)
On Question, Motion agreed to.
LORDS AMENDMENT
79 Clause 35, page 19, line 10, after ("rifle") insert ("or muzzle-loading pistol")
The Commons agreed to this amendment and have made the following consequential amendment to the Bill—
79A Page 19, line 16, after 'club' insert 'or, as the case may be, muzzle-loading pistol club'.
LORDS AMENDMENT
84 Clause 36, page 19, line 27, leave out second ("firearm") and insert ("rifle")
The Commons agreed to this amendment and have made the following consequential amendment to the Bill—
84A Page 19, line 32, leave out firearms' and insert 'rifles'.
Baroness Blatch: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 79A and 84A, as consequential amendments to Lords Amendments Nos. 79 and 84.
Moved, That the House do agree with the Commons in their Amendments Nos. 79A and 84A as consequential amendments to Lords Amendments Nos. 79 and 84.—(Baroness Blotch.)
On Question, Motion agreed to.
LORDS AMENDMENT
93 Clause 39, page 21, line 25, after ("11") insert ("or(Compensation scheme for firearms dealers)")
The Commons disagreed to the above amendment but proposed the following amendment in lieu—
93A Page 21, line 25, leave out 'section 11 above' and insert 'this Act'.
Baroness Blatch: My Lords, I beg to move that the House do not insist on their Amendment No. 93, to which the Commons have disagreed, but do agree with the Commons in their Amendment No. 93A in lieu thereof.
This is a technical amendment. It ensures that any sums required to be paid for compensation under the Act shall be paid for out of money provided by Parliament.
Moved, That the House do not insist on their Amendment No. 93, to which the Commons have disagreed, but do agree with the Commons in their Amendment No. 93A in lieu thereof.—(Baroness Blotch.)
On Question, Motion agreed to.
LORDS AMENDMENT
96 Schedule 1, page 23, line 7, leave out ("purchased or acquired") and insert ("contracted to acquire")
The Commons agreed to this amendment and have made the following consequential amendment to the Bill—
96A Page 23, line 24, leave out from 'possession' to end of line 25.
Baroness Blatch: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 96A, as a consequential amendment to Lords Amendment No. 96. I commend the amendment.
Moved, That the House do agree with the Commons in their Amendment No. 96A, as a consequential amendment to Lords Amendment No. 96.—(Baroness Blotch.)
On Question, Motion agreed to.
LORDS AMENDMENT
98 Schedule 1, page 23, line 36, leave out ("at a designated police station") and insert ("in police custody")
The Commons agreed to this amendment and have made the following consequential amendment to the Bill—
98A Page 4, line 24, leave out from 'from' to 'under' in line 25 and insert 'police custody'.
Baroness Blatch: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 98A, as a consequential amendment to Lords Amendment No. 98. I commend the amendment.
Moved, that the House do agree with the Commons in their Amendment No. 98A, as a consequential amendment to Lords Amendment No. 98.—(Baroness Blatch.)
On Question, Motion agreed to.
LORDS AMENDMENT
105 Schedule 2, page 26, line 39, at end insert—
(".In section 38(8) (surrender of register of transactions by dealer) after the words "this Act" there shall be inserted "(or, if the register is kept by means of a computer, a copy of the information comprised in that register in a visible and legible form)".")
The Commons agreed to this amendment and have made the following consequential amendment to the Bill—
105A Page 10, line 1, leave out from 'him' to 'within' in line 2 and insert 'the register kept by him under section 21 below (or, if the register is kept by means of a computer, a copy of the information comprised in the register in a visible and legible form)'.
Baroness Blatch: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 105A, as a consequential amendment to Lords Amendment No. 105. I commend the amendment.
Moved, That the House do agree with the Commons in their Amendment No. 105A, as a consequential amendment to Lords Amendment No. 105.—(Baroness Blatch.)
On Question, Motion agreed to.

Crime (Sentences) Bill
5.29 p.m.
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 DEPUTY CHAIRMAN OF COMMITTEES (Lord Ampthill) in the Chair.]
[Amendment No. 65 had been withdrawn from the Marshalled List.]
Clause 24 [Duty to release certain life prisoners]:
Lord Meston Lord Meston moved Amendment No. 66:
Page 17, line 24, leave out from ("fulfilled") to end of line 26.
The noble Lord said: In speaking to Amendment No. 66, I shall speak also to the connected Amendment No. 67. These amendments provide that trial judges and not the Home Secretary should set the tariff when juveniles convicted of murder receive sentences of detention during Her Majesty's pleasure. When a child or young person aged under 18 is found guilty of murder, the mandatory sentence under Section 53(1) of the Children and Young Persons Act 1933 is detention during Her Majesty's pleasure, which is the juvenile equivalent of the mandatory life sentence that was introduced in 1908 in lieu of the death sentence.
Since 1983 the procedures following the imposition of such a sentence have been as follows. As in the case of adult life sentences, a minimum term—the tariff—is set which the offender must serve to meet the requirements of retribution and deterrence. The trial judge makes a recommendation to the Home Secretary on the appropriate length of the tariff period; the Lord Chief Justice also makes a recommendation. In the absence of any mechanism for appeal against the tariff, this is intended to help to provide a check against inconsistencies as between different judges. However, it is the Home Secretary who makes the final decision and he does not have to accept either of those judicial recommendations.
For example, in the case of the two boys who killed James Bulger, the trial judge recommended an eight-year tariff period; the Lord Chief Justice recommended 10 years; but the Home Secretary fixed the tariff at 15 years, stating that he had taken account of the judicial recommendations as well as all other relevant factors, including the circumstances of the case, public concern about it and the need to maintain confidence in the criminal justice system. That is the process at the beginning of the sentence period.
At the end of the tariff period the Parole Board considers the case and makes a recommendation as to whether the offender can safely be released. However, the Home Secretary is not currently obliged to accept a recommendation for release.
The feature of the process which is widely regarded as most objectionable is the role of the Home Secretary in setting the tariff and making release decisions. The setting of the tariff at the outset is a sentencing decision. Yet it is not taken by the trial judge, who has heard all the evidence and may well have heard that evidence tested as well as seen and heard the young offender concerned. It is a paper exercise by the executive, taken in private with no hearing, no right for the defendant to be present or represented and no right of appeal.
That procedure must contravene all the basic requirements of natural justice. When politicians make these decisions, there is a risk that they will be influenced by electoral considerations and the prospect of headlines in the tabloid media rather than by the merits of the case. One must not lose sight of the fact that these are often highly emotive cases, particularly when the victim as well as the offender is a child.
This procedure may he disturbing enough in the case of adult offenders, but in the case of children and young persons, where justice demands that the process should take account of their immaturity and their capacity for change, as well as their degree of psychological disturbance, I suggest that it is indefensible.
In February 1996, in the cases of Hussain v. the United Kingdom and Singh v. the United Kingdom the European Court of Human Rights held that the system for making release decisions at the end of the tariff period of a juvenile sentenced under Section 53(1) of the 1933 Act contravened Article 5(4) of the European Convention and that such young people were entitled to have the lawfulness of their detention reviewed by a court or by a court-like body. The Government agreed to abide by that decision, which would involve replacing the current system with one in which a judicial hearing—that is, a panel of the Parole Board sitting according to a judicial procedure—would make release decisions. It is Clause 24 which provides for this welcome change. However, the clause does not affect the procedure for setting tariffs at the beginning of the sentence.
These amendments propose that the setting of the tariff should also not be taken by the Home Secretary but should be taken out of the Home Secretary's hands and determined by the trial judge. If that happened, the tariff would be subject to appeal by the defence if they considered it too harsh or to a reference by the Attorney-General if the prosecution considered it too lenient. The process would be open, judicial and, unlike the present system, would satisfy the requirements of natural justice.
There are wider arguments relating to consistency in setting tariffs and the procedures involved in mandatory life sentences but I think the best argument is the simplest one: that tariff-setting ought to be a matter for the judge in open court, in these cases in particular. I beg to move.
Baroness Blatch: The amendments will take away from my right honourable friend the Home Secretary his powers to set the tariff to be served for retribution and deterrence for those sentenced to detention during Her Majesty's pleasure, the mandatory sentence for juveniles convicted of murder while under the age of 18.
Our well established position is that the Home Secretary has a legitimate and valuable role in the sentence imposed on those convicted of the unique and heinous crime of murder, whether they be adults or juveniles. This role is essential in establishing the distinctive nature of the penalty for murder.
To remove the role of the Home Secretary would downgrade the unique seriousness of the offence. It would mean that the penalty for murder committed by
820
juveniles would operate in exactly the same way as the life sentence for those offences where it is the maximum rather than the only penalty.
Murder is unique because it involves the deprivation of another person's life with the intent at least to cause them grievous bodily harm. It is an offence generally regarded by society with revulsion. The current arrangements allow for regard to public confidence in the criminal justice system to be taken into account and mark out the uniqueness of murder. The Home Secretary's decision is principally informed by the recommendations of the trial judge and the Lord Chief Justice. However, he takes into account all relevant factors, which may include, as your Lordships' House sitting in its judicial capacity agreed in the case of Doody,
"broader considerations of a public character than those which apply to an ordinary sentencing function".
The unique value of the Home Secretary's role lies in his ability to consider these broader considerations which judicial recommendations may not adequately reflect. Such considerations as setting the tariff for those convicted of murder is a role which falls properly to the executive and which cannot be taken by anyone who does not have the same level of direct accountability to Parliament. If the courts were to set the tariff, there would be no direct accountability to Parliament for the decisions taken, which we believe, given the particular nature of the offence of murder, there should be.
Members of the Committee may be aware that the House, sitting in its judicial capacity, has recently heard the appeal against the Court of Appeal's ruling last summer in the cases of Thompson and Venables. Thompson and Venables are the two boys convicted of the murder of James Bulger. They sought judicial review of the Home Secretary's decision to set a tariff of 15 years in their cases. Although the Divisional Court questioned the Home Secretary's powers, the Court of Appeal ruled that the Home Secretary's tariff-setting powers for those sentenced to detention during Her Majesty's pleasure were lawful. We await the judgment on the appeal. I hope that the noble Lord will not press his amendments.
Earl Russell: I must apologise to the noble Baroness for speaking after her. While my noble friend Lord Thomas of Gresford and I were deferring to each other as to who should speak next, the noble Baroness leapt into the breach with great speed and anticipated us. Perhaps I may take the opportunity to make a few remarks now.
Two issues arise from this amendment, which I think should be considered separately. One is the respective roles of the judiciary and the executive in fixing the length of punishment. That is an issue with a very long history. The basic purpose of the rule of law, as people in this country have fought for it over many centuries, has been to shift the balance to bring the process of deciding on detention more under the control of the judiciary and less under the control of the executive. My noble friend Lord Lester of Herne Hill mentioned Chapter 39 of Magna Carta—the due process provision. That arose from the conduct of King John, who on one

821
occasion imprisoned somebody for no better reason than, in his own words, "because we were cross with him".
There is always a balance to be struck between the prerogative of the Home Secretary and the powers of the judiciary. It is a matter of some concern that that balance may be tilting a little in the Home Secretary's direction. That point was addressed by my noble friend Lord Meston.
My other point concerns the treatment of the young. It is a fairly recognised procedure that, when dealing with younger offenders, one must be more capable of considering the arguments for mercy than perhaps with those one considers might be old enough to know better. That is a point of some substance. It is also an area in which we must consider circumstances. In all sentencing one should consider circumstances, but it is particularly important when considering sentencing those between the ages of 16 and 18. The noble Baroness and I have already crossed swords today at Question Time. But she must be aware, because we have had so many exchanges on this point, that people between the ages of 16 and 18 are not as a general rule free to claim benefits.
Let there be no mistake, crime is crime regardless of the circumstances. I do not wish to say anything which casts one moment's doubt on that. But the noble Baroness will recall the study by the South Glamorgan Tech of teenagers in South Glamorgan. It was shown that about one sixth of that age group at any given time was without visible legal means of support and therefore had no legal way of getting anything to eat. During one exchange with the noble Baroness, I quoted from that report that among that group of people the word "shopping" meant shoplifting. She told me that I was shockingly cynical to have said any such thing.
First, I had quoted the words of an academic study, which I believe I was entitled to do. Second, I do not feel that the noble Baroness took on board that I referred to people whose only other option was starvation. I have said that it does not excuse them but it could be something which could count towards the mitigation of a justly imposed penalty. My noble friend's amendment would make that possible and to me it is a very big point in its favour.
Lord Ackner: I expected to hear the noble Baroness utter the time hallowed phrase used in previous debates that murder is a uniquely heinous crime. I still find it difficult to accept, when thinking back to the case of Private Clegg. If that was a uniquely heinous crime, why was he given his freedom after some two and a half years? There was no issue but that he killed and intended to kill. What is uniquely heinous about the murder—it is murder—resulting from mercy killing? There is an intention to kill. But no one could look on that as being in the same category as murder carried out in an outrageously violent way.
The unique feature is said to be killing with intent to do grievous bodily harm. But that occurs in manslaughter cases, where the reason for reducing the
822
crime from murder to manslaughter is provocation: there was an intent to kill but to kill in circumstances which provided a defence of provocation.
I recall, I hope correctly, that the all-party Home Affairs Committee, while maintaining that murder should still receive an automatic life sentence, said that the Home Secretary's involvement should be removed and he should not set the tariff. The reason given—it was an all party committee—was that a politician deciding in private for how long a person should lose his liberty was repugnant to anyone with an ordinary sense of justice.
In those circumstances, it seems to me to be totally unjustified to cling on desperately—which is what the Home Secretary has been doing throughout all our debates on this subject—to the power to fix a tariff. In doing so, he deprives the accused of any right to challenge what he has done. Where the tariff is fixed by a judge, there is a right of appeal. First of all, one has the benefit of argument in open court as to what the tariff should be; then, a reasoned judgment in open court is provided; and there is an appeal, when the same process is gone through. But apparently the Home Secretary feels that it is just and proper for him to retain that tiny segment of power. I can only suggest that the reason is power for the sake of power. I wholeheartedly support the amendment.
5.45 p.m.
Lord Thomas of Gresford: The Minister justified retention of the right of the Home Secretary to fix the tariff in respect of children on the grounds that for a judge to fix that tariff would downgrade the unique and heinous nature of the crime. I do not see how that follows. I am in accord with the views expressed by the noble and learned Lord, Lord Ackner, when he pointed out that murder is a crime which can vary from a killing in the course of rape or robbery to a killing as a result of domestic violence all the way through to mercy killing. There are infinite grades of killing. The only thing that is unique about murder cases is that someone dies.
Another circumstance which should be looked at in this context is killing by children, which is a particularly highly emotive issue. Let me give two instances. The first was the Phillip Lawrence murder by a 14 year-old, which had a peculiar horror to it. I declare an interest as a defence counsel for a co-accused in that case. The fact that a child was involved in that killing gave it an emotive charge which has perhaps resulted in some useful legislation that may come before this House next week. Nevertheless, it is a subject which causes high emotion among the public.
The second instance was the Jamie Bulger case. There, the Home Secretary fixed a tariff which the Court of Appeal found to be wrong and his methods to be wrong in a number of important respects. It is illustrative of the points that need to be made. First, the Home Secretary erroneously applied the same principles to tariff setting as in adult mandatory life sentences. That was one finding of the Court of Appeal. Then, he failed to appreciate that with young children one has to

823
be more merciful, to consider rehabilitation and have in mind that children will change much more between the ages of, say, 10 years and 15 years than adults will change over the same period. And not only had the Home Secretary applied an adult approach to his decision in fixing a tariff in that case, but he took into account petitions that had been organised by a tabloid newspaper. The Committee has to think for only a moment of what public outcry there would be if a judge were presented with 50,000 names on a petition prior to sentencing in court—names collected by a tabloid newspaper. Everybody would regard that as a gross interference with the processes of justice. The Home Secretary having made those mistakes, it is right to remember that there was no possibility of the counsel appearing for the two defendants—
Baroness Blatch: It is a convention of this Chamber, when a case is before the House and not yet determined, that we do not discuss it. The noble Lord, in talking to this amendment, made subjective comments about the Home Secretary. I believe that what the noble Lord is saying is wholly inappropriate in the context of these amendments.
Lord Thomas of Gresford: If I am erring, I plead ignorance to it and apologise. I was referring to the judgment of the Court of Appeal. I appreciate that the matter is now before this House in the Judicial Committee and I shall await to hear, in due course, what the House says.
Perhaps I should move swiftly from that tragic case and say to the Committee that if a child is found guilty of murder in emotive circumstances, surely it is better that the judge fixes the tariff in open court, with all the representations being heard for both the Crown and the defence; also, that the matter be transparent and open not simply for the sake of the children themselves, but also for the sake of the victims' families and their own families. I support the amendment.
Baroness Blatch: When I looked around earlier I was surprised that nobody wished to speak to the amendments, only to be accused that I had sprung to my feet rather quickly. Therefore, if I seemed hesitant, it was because I wanted to give everybody the opportunity to speak. I shall assume when I sit down that most people who wanted to speak in fact do not intend to.
The Government will simply have to rest their case and agree to differ with those Members of the Committee who have spoken. It having been established in court that a murder has taken place, we assume that it is an activity that has taken place with intent. We also believe that the tariff set reflects the degree of seriousness of the murder.
In coming to a view in the case of murder where the Home Secretary has a role in setting the tariff, he takes into account what is said either privately or in open court by the trial judge. Equally, he takes into account what is said by the Lord Chief Justice. He submits to
824
the prisoner all the recommendations that have come to him from the trial judge, from the Lord Chief Justice and the action he is minded to take. The prisoner is given an opportunity to make representations in writing to the Home Secretary before the tariff is set.
In response to what was said by the noble and learned Lord, Lord Ackner, while not all murders are uniquely heinous, the present arrangements allow for different tariff lengths to be set which reflect the varying needs of retribution and deterrence. But the present arrangements make the sentence for murder unique. The Home Affairs Committee of the House of Commons, to which reference has already been made, agrees that there should not be any downgrading of the crime of murder. That is what the amendments would do.
Lord Meston: I avoided reference to the Jamie Bulger case in any detail, knowing that it was still subject to the appellate process.
The Minister suggested and has just repeated that, somehow or other, these amendments downgrade the uniqueness of murder as a criminal offence. I suggest that they do nothing of the sort and are not intended to do anything of the sort. Of course it must be recognised, as the noble and learned Lord, Lord Ackner, said, that murder is committed in a wide range of circumstances. That applies as much to murders by juveniles as to any other type of murder.
The noble Baroness referred to confidence in the judicial system and suggested that it was the Home Secretary's peculiar responsibility to act in those cases to uphold public confidence. But surely it is the judges who are primarily responsible for confidence in the system, and I suggest that they take that responsibility seriously.
I listened carefully to the noble Baroness for a clear exposition as to why the Executive is somehow better informed or better equipped to set the tariff in those cases. I have not been convinced. I listened carefully to the Minister's response to see whether she could explain why the paper process I described is somehow better than the process I suggest; namely, the setting of the tariff by the trial judge who has heard all the evidence at first hand. The noble Baroness has not convinced me. I suggest that the Government should grasp the nettle; but if they will not, I wish to test the opinion of the Committee.
5.55 p.m.
On Question, Whether Amendment No. 66 shall be agreed to?
Division called.
The Deputy Chairman of Committees: The Question is, That Amendment No. 66 be agreed to. As many as are of that opinion will say "Content".

825
In the absence of any Lord to say "Content" at the second Question, I declare that the "Not-Contents" have it.
Lord Rodgers of Quarry Bank: I do not know whether I can raise a point of order, and if not—
Noble Lords: No!
Lord Rodgers of Quarry Bank: I intend to persist in the matter until I am ruled out of order. There is clearly a misunderstanding—
Noble Lords: Order!
Lord Strathclyde: Perhaps I may—
Lord Rodgers of Quarry Bank: I am on my feet. I have no intention of giving way. I shall gladly give way if noble Lords on the other side stop shouting and if I may be allowed for a moment to explain why I am on my feet in the first place. The normal courtesies of the House are that if a noble Lord does not give way, even to the noble Lord, Lord Strathclyde, he shall be allowed to finish what he has to say.
I understand—and this is why the Committee is at the moment in some confusion—that when my noble friend Lord Meston called in the Division Lobby in favour of our amendment his voice was not heard. I do not know what redress there may be if the word "Content" is not heard in such circumstances but I should have thought that it was normally within the courtesies of your Lordships' House—and in this respect greatly different from what happens in another place—if your Lordships, having not heard a call of "Content", at least give the opportunity to consider whether it is a fault on their part or on the part of those who may not have raised their voices. I should be glad to give way to the noble Lord, Lord Strathclyde, now, provided there is no further shouting from the other side, to deal with this clear and particular point. If "Content" was shouted but not heard, what redress have we now in order to enable your Lordships to do what they wish to do? Clearly, a number of noble Lords are assembled for the very purpose of voting for or against the amendment. Surely it is right that they should be given the opportunity of exercising their views in a Division, because that is what your Lordships very clearly wish.
Lord Strathclyde: I think I must try to put the Committee back into some kind of order. The noble Lord, Lord Rodgers of Quarry Bank, was not speaking to a Motion. As the noble Lord knows, in this House we do not have points of order in quite the same way as they have in another place. I understand that the Question was put for the second time and no word was heard from the Liberal Democrat Benches. I am not in a position to say whether or not the word "Content" was shouted. All I know is that it was not heard and the Motion was therefore carried in favour of the "Not-Contents". There is a simple solution to this. The next amendment is in the name of the noble Lord,
826
Lord Meston. I understand that the issues are connected. If he wishes to move that amendment as soon as he possibly can, we can carry on with the Division and see which way the Vote would have gone.
Lord Meston: I thank the noble Lord. He anticipated precisely what I was going to suggest. I am sorry if this matter has been unduly prolonged, but I certainly intend to move the next amendment.
The Deputy Chairman of Committees: I call Amendment No. 67.
Lord Meston Lord Meston moved Amendment No. 67:
Page 17, line 29, after ("law") insert ("or he was under 18 at the time when he committed the offence for which his sentence was imposed").
The noble Lord said: I have already spoken to this amendment. I beg to move.
6.4 p.m.
On Question, Whether the said amendment (No. 67) shall be agreed to?
Their Lordships divided: Contents, 56; Not-Contents, 124.

Division No. 3

CONTENTS

Ackner, L.

McNair, L.

Acton, L.

McNally, L.

Addington, L.

Mar and Kellie, E [Teller.]

Bath, M.

Meston, L.

Beaumont of Whitley, L.

Methuen, L.

Broadbridge, L.

Ogmore, L.

Calverley, L.

Onslow, E.

Carlisle, E.

Oxford, Bp.

Dahrendorf, L.

Park of Monmouth, B.

Davies, L.

Rea, L.

Elis-Thomas, L.

Redesdale, L.

Falkland, V.

Robson of Kiddington, B.

Geraint, L.

Rochester, L.

Hamwee, B.

Rodgers of Quarry Bank, L.

Harris of Greenwich, L.

Russell, E. [Teller.]

Holme of Cheltenham, L.

Saltoun of Abernethy, Ly.

Hooson, L.

Sandwich, E.

Hughes, L.

Southwark, Bp.

Hunt, L.

Tenby, V.

Hylton, L.

Thomas of Gresford, L.

Jenkins of Hillhead, L.

Thomas of Walliswood, B.

Jenkins of Putney, L.

Thomson of Monifieth, L.

Kilbracken, L.

Thurso, V.

Kilmarnock, L.

Tope, L.

Lester of Herne Hill, L.

Tordoff, L.

Lincoln, Bp.

Warnock, B.

Longford, E.

Wigoder, L.

Mackie of Benshie, L.

Williams of Crosby, B.

NOT-CONTENTS

Aberdare, L.

Astor, V.

Addison, V.

Astor of Hever, L.

Ailsa, M.

Balfour, E.

Aldington, L.

Banbury of Southam, L.

Allenby of Megiddo, V.

Beaverbrook, L.

Anelay of St Johns, B.

Berners, B.

Annaly, L.

Blaker, L.

Archer of Weston-Super-Mare, L.

Blatch, B.

Ashbourne, L.

Bowness, L.

827

Brabazon of Tara, L.

Long, V.

Brougham and Vaux, L.

Lucas, L.

Butterfield, L.

Lyell, L.

Byford, B.

McColl of Dulwich, L.

Campbell of Alloway, L.

Mackay of Ardbrecknish, L.

Campbell of Croy, L.

Mackay of Clashfern, L. [Lord Chancellor.]

Carlisle of Bucklow, L.

Carnegy of Lour, B.

Mackay of Drumadoon, L.

Chalker of Wallasey, B.

Macleod of Borve, B.

Chelmsford, V.

Marlesford, L.

Chesham, L. [Teller.]

Merrivale, L.

Clark of Kempston, L.

Mersey, V.

Colwyn, L.

Miller of Hendon, B.

Courtown, E.

Milverton, L.

Craigavon, V.

Mottistone, L.

Cranborne, V. [Lord Privy Seal.]

Mowbray and Stourton, L.

Crawshaw, L.

Nickson, L.

Crickhowell, L.

Norrie, L.

Cumberlege, B.

Northesk, E.

Dacre of Glanton, L.

O'Cathain, B.

Davidson, V.

Oxfuird, V.

Denbigh, E.

Peel, E.

Denham, L.

Plummer of St. Marylebone, L.

Denton of Wakefield, B.

Quinton, L.

Dilhorne, V.

Rankeillour, L.

Dixon-Smith, L.

Rees, L.

Dudley, E.

Rowallan, L.

Dundonald, E.

Saatchi, L.

Elliott of Morpeth, L.

Saint Albans, D.

Elton, L.

St. Davids, V.

Erne, E.

St John of Bletso, L.

Feldman, L.

Savile, L.

Ferrers, E.

Seccombe, B.

Fraser of Carmyllie, L.

Shaw of Northstead, L.

Gisborough, L.

Shrewsbury, E.

Goschen, V.

Skelmersdale, L.

Haddington, E.

Soulsby of Swaffham Prior, L.

Hailsham of Saint Marylebone, L.

Stevens of Ludgate, L.

Harmsworth, L.

Stewartby, L.

Henley, L.

Stockton, E.

Hogg, B.

Strathclyde, L. [Teller.]

Holderness, L.

Strathcona and Mount Royal, L.

HolmPatrick, L.

Strathmore and Kinghorne, E.

Hooper, B.

Swinfen, L.

Howe, E.

Taylor of Warwick, L.

Inglewood, L.

Thomas of Gwydir, L.

Keyes, L.

Torphichen, L,

Kimball, L.

Trefgarne, L.

Kinnoull, E.

Trumpington, B.

Kitchener, E.

Ullswater, V.

Knollys, V.

Wise, L.

Knutsford, V.

Wrenbury, L.

Laing of Dunphail, L.

Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.
6.11 p.m.
On Question, Whether Clause 24 shall stand part of the Bill?
Lord Belstead: I have given my noble friend the Minister notice that the reason for opposing this clause is to ask whether the Government recognise that resources will be needed to bring Clause 24 into effect; yet no costs concerning that clause are mentioned, as regards the Parole Board, in the Financial Memorandum. I must of course declare an interest as chairman of that board.
The effect of this clause is to transfer from the Home Secretary to the Parole Board the responsibility for deciding on the release of prisoners under the age of
828
18 years convicted of murder and detained at Her Majesty's Pleasure. That follows a ruling of the European Court of Human Rights and is being put into effect by Clause 24 by applying the existing arrangements for the release of discretionary life prisoners by the Parole Board to Her Majesty's Pleasure prisoners.
However, discretionary life reviews on which this clause is based are the most costly of all the reviews that the Parole Board undertakes. In total I am sure that we are talking about a small sum—in fact, a very small sum—in public expenditure terms. Nonetheless, I am asking my noble friend Lady Blatch whether the Government have made an assessment of the additional costs which this work will entail, because the Financial Memorandum has not, and whether the Government will provide the necessary resources.
Baroness Blatch: Clause 24 also requires the Secretary of State to set a tariff for juvenile murderers, but does not restrict the exercise of his discretion in so doing. The clause is required to give effect to the judgment of the European Court of Human Rights in the cases of Singh and Hussain, which we have undertaken to do.
The point that has been raised by my noble friend has nothing to do with the purpose of the clause, but with the extra burdens that we put on the Parole Board and the issue of resources related to it. I am happy to confirm to my noble friend that we shall meet all of the bids for additional funding in the next financial year. Perhaps I may just remind my noble friend that they cover providing internal audit for the Parole Board; Her Majesty's Pleasure cases; an extra SEO to assume responsibility for finance and administration; a part-time AO to process board members' claims for fees, etc.; and meeting some reprographic costs. I can now confirm all of these will be met.
Lord Belstead: I am very grateful to my noble friend the Minister for that detailed reply. I hope that meeting those costs will extend beyond the forthcoming year.
Clause 24 agreed to.
Clauses 25 and 26 agreed to.
Clause 27 [Duration and conditions of licences]:
[Amendments Nos. 68 and 69 not moved.]
Clause 27 agreed to.
Clause 28 [Recall of life prisoners while on licence]:
[Amendments Nos. 70 to 76 not moved.]
6.15 p.m.
The Earl of Longford The Earl of Longford moved Amendment No. 77:
Page 19, line 44, leave out from ("directs") to end of line 1 on page 20.
The noble Earl said: I hope that the noble Baroness, in her Christian charity, will overlook the authorship of this amendment. I can assure her that it is in no way an attack on the present Government, but a straightforward appeal to common sense and decency. I realise that, looking at this amendment, no one will be able to make head or tail of its implications. I would not know what

829
it amounts to so perhaps I may explain and say at the same time why I shall move it and then, after any discussion, withdraw it; then I shall move it again at the next stage so that Members of the House will have time to understand its implications.
The purpose of the amendment is extremely simple. It is to the effect that if those who receive mandatory life sentences—in other words, murderers—are recalled to prison, they should be subject to the same process as discretionary life prisoners. It is as simple as that. I shall give one example of a mandatory life prisoner without mentioning his name. However, the noble Baroness will be familiar with the case because it has been mentioned to the Home Office in the past and I have given her notice that I shall mention it today.
This particular prisoner killed his wife in a fit of rage and spent 13 years in prison where I visited him every now and then. He came out and, after 13 months, without being convicted of any crime, his conduct was judged to be unsuitable by a probation officer. On the say-so of that officer he was returned to prison. He has now been in prison for three years where I visit him from time to time at different places. He has recently been told that within the next month or so he will go to an open prison for at least a year, which will make four years in prison and—this is the point—without ever going before a tribunal.
If he were a discretionary life prisoner he would go before a tribunal at an early stage. The finding of that body would be binding on the Government. I am simply saying that in terms of natural justice, common sense and decency, it is right that the two kinds of convicted life prisoners should be put on the same footing. I beg to move.
The Deputy Chairman of Committees: I remind the noble Lord, Lord Belstead, that if this amendment is agreed to, he will be unable to move Amendment No. 78 which, I imagine, he does not wish to move anyway.
Baroness Blatch: The noble—and dare I say—indefatigable Earl, Lord Longford, seeks to bring the procedure for dealing with the recall of a mandatory life sentence prisoner precisely into line with the procedure for a discretionary life sentence prisoner. On the first of his amendments I can offer the noble Earl the comfort that the current law, which the Bill, as drafted, would merely re-enact, already provides for the Parole Board's recommendation to be binding upon the Secretary of State. In the case of discretionary life sentence prisoners, the board has the power to direct immediate release following a recall. For those convicted of murder and serving a mandatory life sentence, the board may recommend immediate release following a recall, but Clause 28 clearly provides that the Secretary of State shall give effect to such a recommendation. I believe that is clear.
The second amendment raises a more difficult issue. First, for a discretionary lifer—and now in juvenile
830
murder cases—Parliament has accepted the need for a body with judicial procedures to decide on release once the period of punishment or tariff has been served. Such a body is also necessary to determine whether a sentence should be effectively re-commenced after revocation of a life sentence or whether the recalled licensee should be immediately released.
But as domestic and European courts have recognised, the position for adult murderers has always been different. Their initial release is determined by the Secretary of State and depends on whether he considers that they are safe to be released. The power to recall such a prisoner after release is naturally exercised with great care. In all but emergency cases, it is the board itself which must recommend to the Home Secretary that this step be taken, and since the Parole Board was set up in 1967 Parliament has given it the power to recommend the immediate release of a recalled life licensee. Where the board takes the view, upon consideration of the recalled licensee's representations, that the recall should not have taken place, the Home Secretary is required to release him. But if the prisoner is not released at this point it is again the Home Secretary alone who can decide to release him thereafter.
The board does not operate with judicial procedures in these cases because there is no need for it to do so. It is performing the function of a check on the wide power to recall a life licensee, sometimes where he is not even charged with having committed a new criminal offence. It only adopts a judicial character in dealing with discretionary lifers and juvenile murderers, who are serving sentences of a quite different nature to the mandatory life sentence.
The noble Earl would doubtless prefer the Parole Board to adopt court-like procedures for all its decisions but that is to ignore the fundamental difference between a mandatory life sentence and a discretionary life sentence. Supported by domestic and European courts, the Government remain persuaded that oral hearings are not necessary in mandatory cases and that current procedures for consideration of immediate release following recall in mandatory cases are both appropriate and just. Therefore, I hope that the noble Earl will not press his amendment.
Lord McIntosh of Haringey: The Minister has given my noble friend some reassurance on the first of his amendments and I suppose we must accept that. However, without fully understanding the literal impact of my noble friend's amendment, I am still worried about the case that he raised and about whether it is being dealt with justly. My noble friend referred to the case of someone who had served 13 years, who was out of gaol and who, simply on the say-so of a probation officer, was recalled. Because he was a mandatory life prisoner he had no access to any appeal tribunal. I understand about the differences between mandatory and discretionary life prisoners. But can that be just?
Baroness Blatch: I was not going to use the details of the case which the noble Earl raised, but I think perhaps I should now do so in response to the points raised by the noble Lord, Lord McIntosh.

831
Mr. Rundle was sentenced to life imprisonment in July 1980 for the murder of his wife whose body he burnt and later disposed of. He had a history of volatile relationships with vulnerable women. The circumstances leading to his arrest revealed a tendency to deceptive behaviour. Mr. Rundle was released in February 1993 on life licence and under the supervision of the Probation Service.
Within a few months of his release, Mr. Rundle formed a relationship with a woman. The Probation Service considered her to be unstable and advised Mr. Rundle that it was an unsuitable match which was likely to place him at risk. Threats of violence by Mr. Rundle towards the woman were investigated in December and in the light of other signs of worrying behaviour in relation to his attitude to supervision, a formal warning letter was issued by the Home Office in January 1994.
In March 1994 it was reported that Mr. Rundle had deceived his probation officer over his continuing relationship with the woman. It was also alleged that he had made threats to kill her and had abducted her. The police regarded Mr. Rundle as extremely dangerous. The Probation Service recommended immediate recall in view of the risk which Mr. Rundle was considered to pose.
The Secretary of State considered that Mr. Rundle no longer represented an acceptable risk to remain at liberty in the community and on 16th March the Home Secretary agreed to the revocation of this life licence under the emergency recall provisions set out in Section 39(2) of the Criminal Justice Act 1991.
All such cases are considered in great depth. There is no question of the Home Secretary simply taking the word of the Probation Service. However, the Probation Service takes extremely seriously its role of supervising people who are out on life licence. Probation officers are usually the first people to know when there are signs of problems and they are usually the first people to alert the authorities to any problems. I could give more details of the case, if the noble Lord wishes, but I think that there were very good reasons for recall. The matter was properly considered—and rightly so.
Lord McIntosh of Haringey: In the light of that reply, I have no criticism whatever—and no reason to make any criticism—of the Probation Service, the police or anyone else involved in that case. Incidentally, I did not name the person concerned. It was not my intention to be critical; I intervened only to ask this. Whatever the merits of the case, can it be just that there should be no appeal to a tribunal for a mandatory life prisoner when there is such a right for discretionary life prisoners? That is not taking sides in the case of Mr. Rundle. I raised a more general question.
Lord Hylton: In general support of what the noble Lord, Lord McIntosh, says, I have no doubt that the action taken in recalling that person was prudent and correct. But would it not have been very much better for the case to be reviewed by an independent and impartial body, such as the Parole Board, after he had been recalled? Can the
832
noble Baroness say anything about whether the additional seven years that the man has served since recall are justified and whether or not they have been reviewed?
Baroness Blatch: At the risk of going on for rather too long, I shall continue to give the information that I have on the case. In April 1994—
Lord McIntosh of Haringey: If the Minister will forgive me—
Baroness Blatch: Perhaps the noble Lord will allow me to finish because a particular question has been raised about the involvement of the Parole Board and about whether that gentleman was allowed to make his case. The points that I am about to make seem entirely pertinent to the questions asked by the noble Lord, Lord Hylton.
Mr. Rundle was invited to make representations to the Parole Board against his recall. He did so on 8th June and on 8th July the Parole Board considered his representations but deferred its decision pending more reports from the police and the Probation Service. I could go on but, as I have said, Mr. Rundle was given an opportunity and there was Parole Board involvement.
The Earl of Longford: I am bound to say that the noble Baroness does not know the gentleman and knows very little about him. I have known him for 17 years, so I know rather more about him. One or two points should be borne in mind when listening to the Minister's very ex parte statements. The noble Baroness should realise that that gentleman was warned against the woman on the grounds that she was unstable. As I understand it, when he was recalled the police did not rely on her evidence because she was unstable and regarded, I believe, as a bit of a dipsomaniac. At any rate the evidence of alleged attacks on the woman came from someone who was judged so unstable that the man was told that he should not go about with her. That is one aspect of the case.
Another aspect, not mentioned in the brief, is that at a certain point the Parole Board recommended that that gentleman should go to an open prison. What happened to that suggestion? It was turned down by the Home Office. I went to see the Minister's predecessor at the Home Office about that very point. No one could produce any reason, but the Parole Board was defied in that case by the Home Secretary. Perhaps the Minister has not been told about that. Before I raise the matter at the next stage, I should like to give her the opportunity to think the case over.
Finally, I should add that the probation officer who previously found that gentleman's conduct so unsatisfactory is now in favour of his release. Although, in all the circumstances, I beg leave to withdraw the amendment, I shall certainly return to it at the next stage.
Amendment, by leave, withdrawn.
[Amendments Nos. 78, 78A and 79 not moved.]
Clause 28 agreed to.
Clauses 29 and 30 agreed to.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 80:
Before Clause 31, insert the following new clause—
WARRANT OF COMMITMENT FOR NON-PAYMENT OF FINE
(". The following subsection shall be substituted for subsection (6) of section 82 of the Magistrates' Courts Act 1980—
"(6) Where a magistrates' court issues a warrant of commitment on the ground that one of the conditions mentioned in subsection (1) or (4) above is satisfied, it shall state that fact, specifying the ground. in the warrant and where it specifies the ground that the conditions mentioned in subsection (4)(b) above are satisfied it shall state in open court the reasons for its opinion that all other methods of enforcing payment of the sum are inappropriate or unsuccessful.".").
The noble Lord said: In moving Amendment No. 80, I wish also to speak to Amendments Nos. 82, 85 and 86. The purpose of Amendment No. 80 is to require a magistrates' court to give reasons if it concludes that it wishes to reject other methods of enforcing a fine when imprisoning a fine defaulter. Essentially, this derives from the judgment of Lord Justice Simon Brown in the case of R. v. Oldham Justices and another, ex parte Cawley. He said, in words that seem generally appropriate:
"In respect of each apparent option"—
that is, enforcement option—
"there must be such a reason, for it is imperative that justices rigorously examine each, and only discard it for good reason … The reasoning process must be gone through. The reasons must be clearly capable of articulation. They must indeed be articulated in open court".
That is precisely what Amendment No. 80 seeks to do; in other words, a magistrates' court, in issuing a warrant of commitment, shall state in open court the reasons for its opinion that all other methods of enforcing payment of the sum are inappropriate or unsuccessful.
The alternatives are well known: a distress warrant; deduction from income support; attachment of earnings; attendance centre; money payment supervision order; and enforcement in the civil courts. It is not without interest that there has been a dramatic reduction in what most people consider to be a social blight, namely the imprisonment of fine defaulters, from 20,157 in 1995 to 8,807 in 1996. Unfortunately, the judgment of the Divisional Court which was given by Lord Justice Staughton in December 1996 held that the obligation to give reasons for discarding alternatives did not apply to those defaulters who were 21 and over.
The reason for this amendment, therefore, is to impose upon a magistrates' court, when it is considering taking a step that most regard as a last resort to be taken only after the most careful consideration of alternatives, the statutory discipline of giving reasons for rejecting all other enforcement options. The stance that we take, which we believe to be a practical one, is that the discipline of giving reasons means that the previous discipline is enforced and that the magistrates' minds must be directed specifically to alternative sanctions. That is the basis of the amendment. I hope that the Government will see the sense of it and accept it. I beg to move.
Lord Hylton: I support Amendment No. 80. I should like to say a word or two about the experience in
834
Northern Ireland. In Northern Ireland the number of admissions to prison for fine default constitutes a very high proportion of the prison intake in any given year. I do not have the exact figure. Voluntary organisations, in conjunction with the Northern Ireland Parole Board, have worked out that it would be quite easy to have a scheme functioning at least on a pilot basis during the next 12 months under which fine defaulters and other non-payers who came before the courts would be obliged by court order to do useful work for non-governmental organisations in lieu of having to go to prison. I have urged this on the responsible Minister in Northern Ireland. The reply I have been given is that the department does not want to do it yet but prefers first to see how comparable schemes in England work out. Perhaps the noble Baroness can tell the Committee what stage the comparable schemes have reached. I hope that they are making very good progress.
The Earl of Mar and Kellie: I also support Amendments Nos. 80 and 86 to which the noble Lord, Lord Williams, has spoken. I like the fact that in Amendment No. 80 it is clearly established that imprisonment for fine default is the last resort. Amendment No. 86 establishes and gives appropriate status to a community service order or curfew order as the penultimate disposal.
Baroness Blatch: No one wishes to see fine defaulters committed to prison except as a last resort. We have consistently proclaimed our determination to see the number of fine defaulters in prison reduced, and our efforts have paid off. But equally there are occasions when detention is called for. Perhaps I may give an indication of the progress that has been made. In 1995 20,157 fine defaulters were committed to prison. In 1996 that figure had fallen to 8,806. The Government cannot prove it, but there is a view that the Cawley judgment has had a considerable impact and that courts are now much more rigorous in ensuring that any committal to prison is very much the last resort.
Section 82 of the Magistrates' Courts Act 1980 provides that a person may not be committed to prison for fine default unless the court is satisfied that his default is due to wilful refusal or culpable neglect to pay, and, furthermore, that it has considered or tried all other methods of enforcing payment and it appears that they are inappropriate or unsuccessful. If a person who is committed to prison for fine default believes that these legal requirements have not been met or that he has in any other way been treated unfairly by the court it is open to him to appeal.
The practical objections to this amendment are overwhelming. A defaulter's case is likely to be considered by the court on a number of separate occasions before the point at which commitment to prison arises. It would be a considerable additional burden on the court if there were a statutory duty requiring the court to keep a written record of the magistrates' reasons at each stage of the enforcement process in every case, so that if it reached the point of commitment to prison the justices on that occasion would be able to refer to reasons for decisions taken

835
earlier. Let me put this proposed amendment in context. Approximately, three-quarters of those convicted by the courts are fined—almost one million people in 1995. Keeping the kind of records required by this amendment in all cases would be a heavy burden. In practice this is not a necessary burden. Informal checklists to ensure compliance with the requirement of Section 82 are already in place in many courts, and recent high profile successful appeals against commitment have highlighted to courts the need to ensure that the correct procedures as set out in that section are followed. I do not believe that the case for placing an onerous new requirement on the courts has been made out, and I hope that the noble Lord will feel able to withdraw his amendment.
Turning now to Amendments Nos. 82, 85 and 86, I agree that a court should not have the power to impose a community service order or curfew order for fine default unless it has tried or considered all other enforcement methods short of imprisonment. The Bill already provides in Clause 31(1) that the court may use the powers in subsection (2) to impose a community service order or curfew order on a fine defaulter only where it has power under the Magistrates' Courts Act 1980 to issue a warrant of commitment to prison for fine default. The 1980 Act makes clear that the court may not issue such a warrant unless it has tried or considered all other enforcement methods and they have either failed or the court has concluded that they are inappropriate. It follows that, in order to satisfy the restrictions on its power to impose a community service or curfew order which Clause 31(1) provides, the court must have previously tried or considered all other enforcement methods. Consequently, these amendments are unnecessary. We are at one on the need for this measure, but the Government do not believe that Amendment No. 80 is necessary.
Lord Williams of Mostyn: We are at one. Obviously, I have failed to make myself clear. I told the Committee of the statistical fall from 20,157 in 1995 to 8,807 in 1996. I indicated that in part the Cawley judgment had brought that about. There were two other causes. I refer to the model checklist which the Magistrates' Association and the Justices' Clerks' Society offered to magistrates, which they by and large took up, and also—credit where it is due—the Lord Chancellor's Department's working group on the enforcement of financial penalties.
The Minister said that this would impose onerous new requirements. Not so. The Cawley judgment is binding on magistrates' courts in the case of offenders under the age of 21. The difficulty arose in December 1996 in the Crown v. Stockport Justices, ex parte Conlan and the Crown v. Newcastle Justices, ex parte Keenaghan in which it was held that the requirement did not apply to those over the age of 21.
There is no great difficulty in our Amendment No. 80. It is not required that every differently constituted bench should give reasons because the preceding hearings do not lead to the issue of a warrant of committal. Amendment No. 80 is perfectly simple, practical and workable. It only relates to the magistrates' court that issues the warrant of committal, and that
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warrant of committal being issued has to have endorsed upon it the reasons in open court why the magistrates' court has decided that all other methods of enforcing payment are inappropriate or unsuccessful, virtually a paraphrase, or indeed a recitation, of what Lord Justice Simon Brown said in Cawley.
The Minister says that Cawley was an excellent decision and of course we agree. She said it has beneficial consequences and of course we agree. The Cawley ruling imposed upon the court a discipline, not an onerous new requirement. There is nothing new about what we suggest. This is a matter of such importance that unless the Minister is able to say that the Government can give Amendment No. 80 in particular further consideration—this is, I think the issue between us—I shall be inclined to test the opinion of the Committee. Since we are early on and heat has not yet been engendered and we have not had our dinner, I do not know whether the Minister is able to give that modest encouragement to me; otherwise, I shall feel obliged to test the opinion of the Committee.
Baroness Blatch: I will not prolong the debate by responding in any kind of detail to the particular point the noble Lord made except to say that in order to put the information on the warrant which would need to be put on the warrant there would have to be some recording of all the preceding occasions when the defendant was before the court and efforts were being made for him to pay the fine. However, I give the noble Lord an assurance, as I hope I always do, that of course I will study everything that has been said without prejudice to the outcome. If I cannot satisfy the noble Lord, no doubt he will not be reticent in putting down this amendment again at the next stage of the Bill.
Lord Williams of Mostyn: Bearing in mind that it is not my birthday and it is not Christmas, the Minister has been extremely generous. I therefore beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendment No. 81 had been withdrawn from the Marshalled List.]
[Amendment No. 82 not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 83:
Page 21, line 41, leave out ("community service") and insert ("supervised attendance and work").
The noble Lord said: In moving Amendment No. 83 I would like to speak also to Amendments Nos. 87, 95 and 97. Those who cast a casual eye at the amendments may think that all we are doing is making a change in name of non-custodial sentences which are presently called community service orders. That is not the case. This is a more important series of amendments than that because we are seeking different, separate arrangements for non-custodial sentences for fine defaulters from those which apply to other offenders, in particular, of course, more serious offenders. I preface my remarks by saying that we are in general supportive of the Government's proposals to seek to keep fine defaulters

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out of prison. I hope that the indications which the Minister gave to my noble friend just now will contribute to that even further. We are looking for the same objective as the Government in this part of the Bill.
There is a serious difficulty in the use of community service orders for fine defaulters. First, there is the danger of a substantial number of fine defaulters receiving this sentence which could swamp the community service order procedures. Indeed, unless there is a firm indication that there are going to be greater resources available for community service orders (in other words, that any savings produced by a reduction in custodial sentences are to be turned to community service orders) the provision of community service for more serious offenders could be damaged.
Secondly, the community service order is intended to be a substantial penalty suitable for more serious offenders as a way of keeping them out of prison. Inevitably, the orders which apply to fine defaulters, serious as they may be, are not going to be as serious as the original community service orders. Then there is the problem—we shall be debating amendments later on—that fine defaulters can buy out of any community service orders because, after all, what they are being awarded is a punishment for not paying the fine and if they do pay the fine, under the circumstances we are discussing, it will no longer be appropriate.
We propose that instead of the name and the fact of community service orders there should be an order called a supervised attendance and work order. This is an amalgamation of the proposal of the Magistrates' Association, which has proposed a comparable order to be called a work order, and the suggestion of the Association of Chief Officers of Probation and NACRO of the supervised attendance order, which is the phrase used in Scotland. We have combined the two into the supervised attendance and work order in order to avoid the potential for conflict and confusion inherent in the Government's proposals and to ensure that the content of the proposed order can be different from that of community service orders. I shall not go into details of how they could be different. But there is no reason, for example, why an order for fine defaulters should not include guidance on proper family or individual budgeting or guidance against alcohol abuse.
When this issue was discussed in slightly different terms in the Commons the Minister seemed to think that our amendments were in conflict with the need to ensure efficient and effective use of community service order resources. I want to suggest that that is not the case, and that our amendments would produce a more efficient and effective use of community service orders and a more appropriate non-custodial punishment for fine defaulters. As I said, there is the danger that the new demand on community service orders could divert resources from more serious offenders. Secondly, the supervised attendance and work order could add a different and more appropriate content to the orders, and, thirdly, as I think Ministers recognise, the supervised attendance order in Scotland actually works. It is being adopted by more and more local areas within
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Scotland. That seems to me, as a half-Scot and from a long time ago, rather a good recommendation. I beg to move.
The Earl of Balfour: I wanted to ask the noble Lord, Lord McIntosh, before he sits down to comment on the difference between the person who has money and refuses to pay the fine and the person who has perhaps a family to support and has great difficulty paying the fine. There needs to be a difference between the two.
Lord McIntosh of Haringey: I am grateful to the noble Earl. That is not really an issue in these amendments. We are talking about different forms of non-custodial sentence. When magistrates are considering whether it is a wilful refusal to pay a fine or because of difficulty in finding the money for the fine they will make their judgment as between a custodial and a non-custodial sentence. We are talking about the occasions when they have already decided that a non-custodial sentence is right.
Lord Carlisle of Bucklow: I listened with great care and interest to everything said by the noble Lord, Lord McIntosh. One has great respect for the pedigree of the amendment. However, I am bound to say, I still did not see what change he was making other than a change in name. Surely this is a community service order under another name. The only difference appears to be that rather than a period of hours of 40 to 240 there has been inserted the hours of 20 to no more than 100.
Normally anyone receiving a CSO for fine default would expect to get a period of less than 100 hours' community service. Although I am sure that the intention behind the amendment is good, my concern is that by having two tiers of community service we may reduce in the eyes of the court the importance of community service which I understand has always been looked upon as an alternative to imprisonment, whether for an offence or a fine default. I hope that we shall hear from my noble friend the Minister that she has great faith in community service. I hope that she will be able to tell us that it is working. If that is so, is it not better to leave it as it is rather than to introduce what may be a complication without any great advantage?
The Earl of Mar and Kellie: I believe that the risk of appearing to trivialise community service for offenders is too great, and that loss of status would be detrimental to the perception by offenders, recipients of help from the scheme and the general public. Community service orders and probation orders, especially those involving an intensive programme, represent the heavy end of community sentences, and are rightly classified as alternatives to custody.
As has been said, the amendment proposes the introduction of a scheme similar to the Scottish supervised attendance order. As I see it, the principal difference between a CSO and a supervised attendance order is that in the former (the CSO) the offender is matched carefully to a specific task, often on a third party's property and under the supervision of that third party, whereas in a supervised attendance order

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purposeful activity is arranged within the supervised attendance centre and organised and supervised by that centre's staff.
A typical programme, as in the one proposed for Falkirk, would be 80 per cent. physical work and 20 per cent. education and social programmes. Those programmes would discuss subjects such as drugs, alcohol, assertiveness and personal skills, which I hope include budgeting. Those supervised attendance orders have been piloted in Scotland, and are now accepted as a core part of the Scottish criminal justice system. It suits short-time attendance, so I commend the proposed supervised attendance and work order scheme to the Committee.
Viscount Tenby: I give the amendment qualified support. I say "qualified" because I should prefer the simple title "work order", a view which is shared by the Magistrates' Association, of which I am a member. I must therefore declare an interest as a magistrate. On the principle contained in the amendment, however, I am as one with the noble Lord, Lord McIntosh of Haringey. I said on Second Reading that I warmly support the initiative contained in the Bill of making CSOs available as an alternative to custody for repeat offenders and those who wilfully refuse to pay fines.
CSOs have been a success over the years. There is no reason why these new orders should not be equally useful, provided, of course, that there is sufficient will put behind them in terms of resources and so forth. However, the CSO is a serious disposal, as the noble Lord has just said, consequent on the ordering of a pre-sentence report on the grounds that the offence was serious enough to warrant such a disposal. I therefore believe that there should be a distinction between it and the new order. We must take care, surely, not to let CSOs become devalued by the new orders. Any confusion must be avoided at all costs. I realise that it is unrealistic and counterproductive to squabble over alternative titles, and since experience north of the Border, as so often, indicates that supervised attendance and work orders have bedded down well, let us run with that. I support the amendment.
Lord Hylton: I should like to give some examples of the many different kinds of work which are needed and which will be suitable for work orders. Both in town and country, there is enormous scope for the removal of litter, the scraping off and cleaning off of graffiti, the repainting of signposts of a certain old-fashioned type, and the painting even of school buildings, particularly at weekends and during holidays. In addition there are many different kinds of environmental work; dealing with oil spills, maintaining footpaths and so forth. Whether such things can be satisfactorily done by offenders will turn entirely on supervision. Here there is a case for a lower grade of supervision than that currently being used by CSOs. I believe that the amendments have merit.
Baroness Blatch: We believe that community service orders imposed for fine default and persistent petty offending should operate in the same way as other community service orders imposed as a penalty by the courts. In practice, those given community service orders,
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for whatever reason, must be dealt with in the same way. This will ensure an efficient and effective use of existing arrangements and the resources devoted to delivering community service. It was a particular pleasure for me to pick up from the Committee how much CSOs are valued.
It is not helpful to the courts, the probation service, offenders or victims to have a new name for an existing disposal. I agree with my noble friend Lord Carlisle who picked up that point. It is simply a recipe for confusion and error. There may be a case for renaming community service orders but, if so, then all community service orders should be renamed.
This amendment proposes that the "supervised attendance and work order" would not operate in the same way as existing community service, but instead would be a completely new scheme, governed by its own rules. Our proposal, which has been widely welcomed by respondents to our consultation paper, is much simpler. It is that fine defaulters and persistent petty offenders should be required to undertake community service. Everyone, and particularly the courts and the probation service, which is responsible for delivering community service, understand what is meant by community service. The probation service will be able to deal with fine defaulters and persistent petty offenders alongside other offenders upon whom community service has been imposed without any disruption to their existing arrangements.
It would be confusing and wasteful to set up what would in effect be very similar community service type schemes solely for this small group of offenders. And it is just not necessary. The existing community service arrangements are well established and we know that they work well. It is sensible to extend their application to fine defaulters and petty offenders, as we propose. It is not sensible to set up a whole new, but separate, scheme which operates in much the same way. It is not an efficient use of the disposals already in place, and the resources devoted to them.
The noble Lord, Lord McIntosh, mentioned Scotland. Even if there were to be a new name—the name suggested is supervised attendance and work order—apart from being cumbersome it is likely to risk confusion with the supervised attendance order which is available to the courts in Scotland.
A supervised attendance order is not the same as community service. It is more like an attendance centre which helps offenders. It might be unhelpful duplication to try to replicate it in England and Wales when we already have many disposals for fine defaulters, including money payment supervision orders.
Perhaps I may say to the noble Lord, Lord McIntosh, and the noble Viscount, Lord Tenby, that there is no danger that community service as a community penalty will be downgraded by its use for fine defaulters and persistent petty offenders. A change of name is not needed for that purpose. The difference in the minimum and maximum hours available in the different circumstances differentiate between the two groups. But for practical purposes, all community service orders should be managed in the same way and it is therefore proper that they should be called the same. The range proposed for fine defaulters would be a minimum of 20 and a

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maximum of 100 hours and for persistent offenders a minimum of 40 and a maximum of 240 hours, which gives greater flexibility.
The noble Lord, Lord McIntosh, referred to fine defaulters as possibly swamping community service provision. I know why the noble Lord should make that point, but we are piloting the scheme in order to see what impact it has on the Probation Service. As regards downgrading, I have already referred to the differential maximum and minimum sentences which will reflect the two types of offenders; namely, fine defaulters and persistent offenders.
There is not much between us on these amendments, but I do not believe that a change of name would achieve anything, other than cause confusion.
7 p.m.
Lord McIntosh of Haringey: I call that response stubborn. I do not call the Minister stubborn, although on reflection that might do her credit with the Home Secretary. We have not moved far since the debate on a comparable issue in another place. The Minister is simply asserting that to have two tiers of community service, as the noble Lord, Lord Carlisle, described it, would be confusing. The advice of the Magistrates' Association, the Association of Chief Officers of Probation and NACRO, which were particularly concerned with alternatives to prison, is to the contrary. When such advice has been given in response not only to the 1996 White Paper but to the earlier consultation document, I am surprised that Ministers are still making the same comments.
If the Minister prays in aid the pilot system, my response is, yes, the pilot system is good but what happens if it indicates that I am right and that the relevant associations and noble Lords such as the noble Earl, Lord Mar and Kellie, and the noble Viscount, Lord Tenby, who know more about these issues than I do, are right? What changes can be made in the provision if the pilot system indicates a view different from the Minister's? What changes are possible as a result of different experience in the pilot scheme?
Baroness Blatch: It would be most unwise of me to predict the outcome of a pilot scheme, the whole point of which is to see precisely how it works and what it is indicating about the effectiveness of the alternative proposal. We believe that the proposal is interesting and that it will work. We believe that the Probation Service will cope very well with the scheme, but the reason we are piloting it is genuinely to judge its impact.
Lord McIntosh of Haringey: I did not ask the Minister to predict the results of the pilot scheme. I asked what action could be taken. For example, if the pilot indicated it, could there be, without further legislation, a different form of non-custodial sentence for fine defaulters?
Baroness Blatch: I return to my original answer. It is impossible to give the noble Lord an answer. One can say
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that whatever comes out of a pilot scheme will be placed before the Ministers of the day who will consider its evaluation and decide how it should be taken forward. They will decide whether it should be taken into mainstream provision or whether the provision should be modified. It would be wrong for me to pre-empt the outcome of a pilot scheme.
Lord McIntosh of Haringey: I did not ask for that answer. I am not making progress. If I am not making myself understood, my management assumption is that it must be my fault.
Of course I agree with the Minister that we are 90 per cent., or whatever it is, in agreement on what we want to achieve. I do not believe that the Minister has made a case against this rather modest plea for more discrimination between more serious and less serious forms of non-custodial sentence. However, in view of the scepticism in particular of the noble Lord, Lord Carlisle, whose opinion on these matters I much respect, I shall not press the matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Courtown: I beg to move that the House do now resume. In doing so, perhaps I may suggest that the Committee stage should begin again not before five minutes past eight o'clock.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
Social Security Benefits Up-rating Order 1997
Social Security (Contributions) (Re-rating and National Insurance Fund Payments) Order 1997
Guaranteed Minimum Pensions Increase Order 1997
Social Security (Incapacity for Work) (General) Amendment Regulations 1997
Social Security (Contributions) Amendment Regulations 1997
7.5 p.m.
The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish)The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish) rose to move, That the draft orders and regulations laid before the House on 31st January and 10th February be approved [11th and 12th Reports from the Joint Committee].
The noble Lord said: My Lords, I beg to move the draft orders and regulations standing in my name on the Order Paper en bloc. I understand that is acceptable to those of your Lordships who take part in such debates.
In introducing the draft orders, we are discussing the uprating of the social security benefits from this April and allowing for the consequential rerating of national insurance. The orders before us also decrease national insurance contributions paid by share fishermen and increase the level of therapeutic earnings in incapacity benefit.
The normal procedure is that we have a wide-ranging debate on the social security system and I do not suppose that today will be any exception. Indeed, yesterday the other place dealt with the orders and had a fairly wide-ranging debate. When I went down late in the evening to hear the summing up of my honourable friend Mr. Alistair Burt, I could not help noticing that the Opposition Front Bench was supported in its endeavours by only two Back-Benchers. The Government Benches seemed to be better attended. I am pleased to see that I have a few of my colleagues here tonight—
Lord Graham of Edmonton: How many?
Lord Mackay of Ardbrecknish: My Lords, I have one more than the Front Bench of the party opposite had in another place. Given the fact that the party opposite claim almost exclusive concern on social security matters, I found the attendance in the other place an interesting reflection on the real interest that it has on these issues.
I wish to spend a few minutes discussing the progress that we have made in containing social security expenditure. For the 50 years after Beveridge, the annual growth was increasing at an average of 5 per cent.
From 1991–92 until 1995–96 there was a £15 billion real term increase in the social security budget. Of this, £10.8 billion went to the elderly and the long term sick and disabled. But despite these significant increases because the elderly, happily, are living longer, and because of the comprehensive support of the sick and the disabled, we now expect real annual growth over the next three years to be about 1.5 per cent.
A considerable part of the budget, over 40 per cent., is spent on the elderly. I know that we are all encouraged that so many are now retiring with additional pensions. My right honourable friend the Secretary of State yesterday published the latest estimates of UK pension funds which has now reached £650 billion. These assets, in savings and investments, and so forth, earning interest, exceed those of all the other EU member states put together, and as I have said on a number of occasions, leave us better placed to ensure decent pensions for our pensioners of the future.
Now that growth is contained within our means, and within the growth of the economy, it would seem that the Opposition wish to commit themselves to the same budget as the Government. However, given their record of constant criticism of our measures to control expenditure, their commitment must be in doubt. Indeed, on the many occasions that I have been at the Dispatch Box discussing these matters, the language used by the noble Baroness in opposing our measures is not the language I associate with an adequate budget but the
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language of someone who wishes to spend more. However, I must say that probably under pressure from the shadow Chancellor her language has been somewhat modified recently, as I am sure it will be this evening.
Of course, the simplest way to save money and keep within budget would be not to uprate because the uprating measure before us this evening costs £1.7 billion. That is despite the fact that it is responding to a very low level of inflation. That would be the simplest thing to do. Your Lordships may find a recent statement by the shadow Chancellor rather alarming with regard to uprating. In the speech last month he said:
"We will keep a tough grip on the cash totals of departmental spending … there cannot be an assumption that totals will he automatically adjusted upwards in the event of a change in inflation".
That statement is in marked contrast to our record of uprating annually in line with inflation. We make it clear that we continue to consider that that is an important pledge to those people who are on benefits.
In last November's Budget, a number of measures were announced which are essential to keep DSS spending within projected levels, projected levels which are now agreed by the shadow Chancellor Mr. Gordon Brown as being sensible and levels which, in the unlikely event of him becoming Chancellor, he would seek to continue for the next two years. The various savings measures that we announced will total something like £1 billion a year in the long-term; that is, by the year 2000–01. The budget is based on the assumption that they will be implemented. I should like to mention just a couple of them.
First, we propose to equalise the treatment of lone parents with that of other families. That measure will not reduce benefit to existing claimants and are fair in their own right. Ultimately that will save £05 billion each year. The proposals require legislation which we intend to introduce early in the next Session. My right honourable friend asked yesterday—and I am not sure that he received an answer and I ask again—whether the Opposition would implement those proposals. Will they agree with us when we implement them? If they are not committed to making those £0.5 billion savings, then the money must come from somewhere in order to meet Mr. Gordon Brown's commitment to live within the budgets and spending plans that we have laid down. If it does not come from that proposal, where will it come from? Will it come from married people, the single childless, the elderly or the disabled? It is extremely unlikely that it will come from the Opposition's proposals to get lone parents back to work because the Parent Plus scheme that we are currently piloting, based on studies of initiatives going on throughout the world, shows that those things do not save money. We are under no illusions. We believe that money must be spent to help people to get back to work. That is why we have made provision for extra spending in order to make sure that those schemes can run properly.
Another point of saving and another point which keeps the budget under control and down to the level which Mr. Gordon Brown says that he would continue to obey were he to be returned after the next election is the plan to reduce the complexity surrounding

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back-dating. There are so many different rules on back-dating right across the benefits system that that makes for a very difficult and complex system to administer. We are introducing a single set of rules for the back-dating of benefits. Those are important. If they are not implemented, then £100 million of long-term savings will be required from elsewhere.
I suspect that the noble Baroness will tell us this evening that huge savings can be made by getting people back to work. That tends to ignore the costs of back-to-work schemes. The truth is that unemployment in this country is down by more than 1 million since 1992 and it is continuing to fall. We have the lowest unemployment for more than six years and, indeed, it is markedly lower—and falling—than the levels of unemployment found in the countries of our fellow members of the European Union. I shall use the ILO statistics rather than our figures because the party opposite always objects when I use our figures. Therefore, I shall use the ILO figures to make sure that the point and the message is rammed home.
The message is a simple, arithmetical one. Unemployment in the UK in November was 7.5 per cent. In Germany it was 9.3 per cent.; in France it was 12.5 per cent.; in Italy it was 12.2 per cent.; and in Spain it was 22.3 per cent. Those countries are still seeing unemployment rising. Here it is falling. We have an excellent record in getting people back to work. We are seeing it happen; it is happening. More of our working age population is in employment than in the countries of our European partners. In this country, 68 per cent. of the working age population is in employment. In Germany it is 65 per cent.; in France, it is 60 per cent.; in Italy, it is 50 per cent.; and in Spain, it is 46 per cent. Therefore, the reduction in unemployment is real and the increase in employment is real. Despite competitive conditions, for the past four years we have managed to create more jobs in Britain than in all the other major European countries put together.
Through the JSA we have strengthened the link between benefit entitlement and labour market participation. I seem to recall pledges to abolish JSA. I wonder whether those pledges are still in place or have they, like so many others, been binned? We have deliberately reduced non-wage labour costs to the lowest for any major European country. We have transformed industrial relations. That is the way to get unemployment down and that is the way in which unemployment has come down in this country. But I have no doubt that we shall hear the Opposition's plans for getting people back to work. They have a recipe for reducing unemployment by 250,000 more than the 400,000 we have already achieved in the past year alone. The main ingredient would be a short-term subsidy.
There is a puzzle here. The Opposition expect employers to react to a £60 per week reduction in the cost of labour. Yet they claim also that employers would be indifferent to a £60 per week penalty which would be brought about by a minimum wage adding, say, an extra £1.50 per hour to labour costs. You cannot have it both ways. Either labour costs are important or they are
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not. If the Opposition think that they are important when it comes to giving out a subsidy, they must accept also that they are important when it comes to putting up labour costs and actually losing jobs. The minimum wage and the full on-costs of the European social model cost our European neighbours dear. From this Dispatch Box, usually in economic debates, I point out that for every £100 in wages, non-wage labour costs in this country are £15. In Germany it is double that; for France it is £41; and for Italy it is £44.
If the minimum wage and the social model so beloved by the party opposite, which it is so anxious to import into this country, is not the cause of high unemployment on the Continent, then what is? It is also no good reinforcing the argument by saying that a minimum wage will reduce the burdens on the taxpayer by significantly cutting in-work benefits. A minimum wage of £3 per hour will reduce the family credit bill by 3 per cent. At £4.50 per hour, the bill will be reduced by 15 per cent.
The harsh fact is that there is no certainty in this world that new welfare-to-work schemes will save money. That is why we pilot new approaches such as Parent Plus and we budget for the costs. For example, Project Work may be self-financing but we are certainly not banking on making savings in the way that the Opposition seem to keep hoping.
These measures, and the budget measures, are part of our continuing approach to social security expenditure. We are committed to improve the targeting of finite resources while protecting those most in need. In uprating the important benefits, these benefits continue to fulfil the objective of targeting resources on those most in need. I commend the orders and regulations to the House. I beg to move.
Moved, That, the draft orders and regulations laid before the House on 31st January and 10th February be approved. [11th and 12th Reports from the Joint Committee]—(Lord Mackay of Ardbrecknish.)
Baroness Hollis of Heigham: My Lords, we are pleased that the uprating of the standard benefits is in line with inflation. However, as we review the Government's stewardship of the welfare state over not just the past year but over this Parliament we can see little else to welcome.
As was said by my right honourable friend Mrs. Harman in another place yesterday, since 1992 and the last general election, the cost of social security has risen by £15 billion, inevitably crowding out expenditure on investment and education which is where we prefer that money to be. That growth is not so much, as the Secretary of State likes to claim, because of the increasing number of elderly or disabled—they account for about half that growth—but because of the increase in unemployment and its knock-on effects. Of that £15 billion growth since Mr. Lilley became Secretary of State, £8 billion is due to the direct and indirect costs of unemployment—not demography but poverty. The size of the DSS budget is a sign not of government generosity but of the Government's economic failure. It is widely accepted—I doubt whether there is much difference between the Minister and ourselves on this—

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that benefits alone cannot make people comfortably off. Only access to a working wage, if one is of working age, will do that.
I have studied the figures that Mr. Lilley put in the Library, on which he bantered with the shadow Secretary of State. I tell the Minister that they misrepresent the position. The difference between us is this. Mr. Lilley's figures counted only the direct cost of unemployment benefit and little of the knock-on consequences for the DSS, including money spent on lone parents, disability and in-work benefits.
We have seen a growth of £15 billion in DSS expenditure under the stewardship of Mr. Lilley. At least half of that is due to poverty and economic failure. And why? Because the DSS is spending money on keeping people out of work rather than helping them into work; we have seen a growth in youth unemployment and long term unemployment. In addition, other groups marginal to the labour market which would like to work are being squeezed out when labour is abundant; they include the partially sick and disabled. They are not able to find the work they would like. Because such groups are not sustained by the minimum wage, when we help them into the labour market the taxpayer ends up subsidising the exploitative employer by wage subsidies.
In consequence not only has money spent directly on unemployment benefit, income support and JSA for the unemployed risen, as we would expect, but so have the associated benefits of housing benefit and council tax benefit for those out of work, as the Minister knows well. Equally, sickness and disability benefits have risen in part. I emphasise "in part" because in a difficult labour market those men who are middle aged with a manual background and in poor health, who nonetheless want to work and could do some work, lose out in the competition for jobs. We can add to that the fact that the wages of the poorest have been cut since the ending of the wages boards, which effectively set a minimum wage for a large swathe of the poorest paid industries. We have seen that wages have fallen and jobs have been lost simultaneously. In consequence in-work benefits have soared and with that the need for related housing benefit and council tax benefit.
Add to that the fact, for which the Minister claimed credit a few moments ago, that 90 per cent. of the jobs created since 1979 have been part-time and/or temporary and need to be shored up by a whole array of DSS benefits if they are to provide enough to live on, and it is not surprising that unemployment, directly or indirectly—I refer to its effect on the labour market—has contributed to the burgeoning cost of the welfare state. I shall not use the term "blossoming" that a Tory MP used yesterday.
As Keynes said—and we would do well to remember it—look after unemployment and the budget will look after itself. He could have been speaking about this Government's DSS policies.
In consequence, the Government are caught in the most almighty tangle. Because unemployment and underemployment—they require in-work payments—directly and indirectly have added some £8 billion to the
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DSS bill, the Government have responded in two ways. One path is regrettable; the other to which I shall come later is deplorable.
I refer to the regrettable response from Government. As a way of capping budget, the Government have tried to target benefit on those financially most in need. And because the Minister and his department did not get their heads around the problem, the Government targeted that budget in the simple minded way of extending means testing at the expense of insurance-based budget benefits. A third of all benefit expenditure is now means tested compared with about only 10 per cent. a few years ago. JSA has a six months rather than a 12 months insurance or contributory base. Housing benefit now subsidises the individual rather than the same money being invested in building new property.
I ask the Minister for once not to use the knee-jerk, ready made, stale phrases about not subsidising bricks and mortar but instead subsidising the individual. I ask him to think, as I know he can. The same money spent by the DoE on new social housing is investment, creates jobs and adds to the stock of decent homes in this country. Because the supply is increased, rents are lower and less housing benefit is needed to afford it. It is all very virtuous. But cut housing investment and for every pound saved, 75p is spent on housing benefit. What is the result? Productive investment is converted into dead end unproductive revenue spend. Rents rise and families need more housing benefit to pay a rising rent on the same property. The only beneficiary is the landlord. Everyone else, including the taxpayer, is the loser.
That is deeply regrettable. The Government's own research last year on the take-up of means tested benefit shows that, with the exception of housing benefit, where there is automatic delivery to those in council housing, the take-up figure on those means-tested benefits is about three-quarters. One in four of those entitled do not claim. Those who claim find themselves caught in a benefit trap of dependency created by the Government's own means testing, because if every benefit is means tested they face a marginal tax rate of 97p in the pound if they move into work. Unless they can get a particularly well paid job, it is not worth doing so. How many of the Minister's friends would work at a marginal tax rate of 97p in the pound? Yet that is what we ask the poorest in our society to do. The consequence of means testing is that we trap people into dependency.
The second consequence is that, because such benefits are not just means tested but family means tested, we pull the wife in part-time work out of work because for every pound out of 10 that she earns he loses benefit, so she does not work. Yet we all know that the only way he is likely to get a job is not through the Jobcentre or dead-end government training schemes but because she is in the labour market and knows that a vacancy is coming up. It is because of that pattern that we have developed into a work rich/work poor society in which married women work only when their husbands are in work because only they can afford to; and they do not work when their husbands do not work because they cannot afford to. That is the society which family means testing has created.

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The result is that while in three families in five both husband and wife work, in one family in five of working age neither parent works; and the result for them and their children is calamitous.
The third consequence of means testing is that those men in the twilight decade of their 50s who are pushed out of the labour market but are too young to draw a pension have to survive increasingly on means tested benefits like JSA because they are no longer eligible for the invalidity benefit, using up any savings that they may have. That means that in that twilight decade the unemployed, the semi-employed, the temporarily unemployed or the seldom employed enter their old age with no cushion. They therefore face old age on benefit as well. They carry the poverty of their unemployment with them from their working life into their old age. So the more the Government seek to curb DSS expenditure by shifting it on to a means-tested basis, the more DSS expenditure they are likely to incur in the longer term. Everyone is trapped—not just the claimant and his family, but the Government and the taxpayer as well. All of this is regrettable, and we shall try to sort it out. The only way to sort out the problem is to encourage people back into work.
I accept, indeed welcome, that, belatedly, the Government are coming up with various schemes—for instance, earnings top-up, Parents Plus and the like. We support such schemes—not surprisingly since many of them were proposed in the 1994 Borne Report. But, as they are not underpinned by a minimum wage, they will ultimately not be cost-effective either for individuals or for taxpayers.
I had hoped that the Government might avoid reiterating the stale stuff about the minimum wage. If the Minister will just think, as I know he can, he will realise that if Labour had done what the Minister is now doing, he and his Right-wing think-tanks would be the first to tell us that we were throwing taxpayers' money at landlords and employers who should be paying the market wage and charging the market rent, not, instead, paying a low wage on one hand and a high rent on the other because they know that both will be artificially subsidised by the Government.
Of course there is a place for in-work benefits to help those who are marginal to the labour market, and a place for housing benefit to help the poorest afford decent housing. But the Government have abused the role of in-work benefits and housing benefit. The DSS bill reflects the cost of their failure. All of that is regrettable. It is the price that we have paid for moving away from an insurance base to a means-tested system.
I now turn to the second way in which the Government have sought to cut the DSS budget—and the cuts are indeed deplorable. This uprating incorporates two of the most disastrous, and I shall refer to a third. It continues an attack on lone parents; it seeks to cap housing benefit for single people under 60; and it continues to remove benefits from asylum seekers.
The Government propose to cut the one-parent benefit, though this requires primary legislation for it ever to be enacted. I am baffled by the Government's
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attitude to single parents. On the one hand they blame them for the burgeoning DSS bill. It is perfectly true that some £10 billion of DSS expenditure goes to lone parents. Yet on the other hand, at least until the eleventh hour, the Government have failed to work with the grain of choice of single parents; that is, as soon as childcare and after-school arrangements are in place, like everyone else, lone parents want to work. They want the money; they want the company; they want a life—and rightly so. If the Government had spent less time abusing lone parents at the party conference and more time over the past 15 years devising constructive paths for them to move out of poverty and dependency, the world for lone parents, their children and, incidentally, the taxpayer would have been a better place.
However, in this uprating, by simultaneously cutting future lone-parent benefit and therefore making it harder to spring the dependency trap, the Government have simply ensured that children will inherit not only their mother's poverty but quite possibly her dependency and unemployment.
We welcome the belated moves in the past two years of the childcare disregard for family credit. But it is worth absolutely nothing for those who are on full family credit and need it most. We welcome Parents Plus, though we wish it had been introduced far earlier. It is too little, too late. Yet at the same time as recognising that lone parents need support and help to come back into work, the Government are cutting the lone-parent benefit which, precisely because it is not means-tested, can be carried as a modest dowry back into work. It is one of the very few benefits that do not trap a parent in dependency. So, lo and behold, the Government propose in future to remove it. Why? What on earth are the Government thinking of?
I hope that the Minister will not reiterate that we should not privilege lone parents over those who are married. That is like saying: we will not go for Job Match or other employment schemes for those who are not in the labour market, because we are otherwise privileging the unemployed over the employed. Why is it that the Government think straight when they deal with men, as most of the long-term unemployed are, and think bent when it comes to women, as most lone parents are? Why is it that lone parents act rationally, and want to work, and the Government act irrationally and remove the one benefit that helps them back into work? In any case, the reason married women can, and do, return to work is not that they have more moral fibre—as evidenced by the fact that they are and remain married—but because they have the support of their husbands and in-laws for childcare; and, as the husband is likely to be in work, the married woman faces no benefit penalty for doing so. In other words, married women do not need help to get back into work, and lone parents do. It is as simple as that, and the Government are removing one of the very few benefits that target help on lone parents without a means-testing penalty. It is batty.
The second, utterly disgraceful area of cuts is the limiting of housing benefit for those under 60 to shared accommodation. I find it hard to give voice to my anger. It will be bad enough for men who lose a job and who

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may need to claim housing benefit and who will then probably lose their home as well. A third of a million single people currently live in accommodation that would not be adequately funded by housing benefit if they should lose their jobs. Each of those will now be at risk under these proposals.
However, it is infinitely worse for women. They are more physically vulnerable and are at risk of abuse and assault. The middle-aged woman, the widow, the carer—poor, vulnerable and bereaved—will, from next October, if she loses her husband or her elderly parent, lose her home as well unless she has generous savings. She will be forced into the grubbiest, shabbiest and most dangerous housing on the market—a room in a house in multiple occupation, where she will share a soiled kitchen and a soiled bathroom possibly with ex-offenders, alcoholics and drug users. For women, it will be the stuff of nightmares. I know. I have inspected that kind of housing. I do not know how the Government can do this.
I wish briefly to touch on the third area of cuts; namely, removal of benefit from asylum seekers who apply in-country. The Government believed that if enough of them collapsed on the streets, it would deter the Nigerian or Somali from coming to Britain. The Government in the other place cruelly overturned our "three working days" amendment which would have saved some unnecessary suffering. Now, the courts have effectively overturned the rest of the Government's policy. In his reply, will the Minister please tell the House, on the assumption that any appeal to the House of Lords is lost, what the Government now estimate will be the net savings to public expenditure given that the DSS has exported its costs to local authorities and, in turn, the DoH is having to reimburse them? At the end of all this unfortunate churning, what will be the full cost to public funds, and what amount is estimated to be net government savings? We warned the Government that this would happen. They would not listen. So we have a burgeoning DSS budget—the sign of economic failure—which is subverting sound public finances.
Yet what has been the Government's response during the period of their stewardship? It has been to increase means-testing and to lock people on to benefit dependency; to support exploitative landlords and exploitative employers; to stigmatise and impoverish lone parents and asylum seekers; and to cap housing benefit by forcing vulnerable middle-aged women into insanitary, substandard and sometimes dangerous housing. It is a pretty record, is it not? That is how the Government have acted as steward for the welfare state. I hope that, if and when we introduce the uprating statement next year, we shall be able to show how we are renewing and rebuilding the welfare state.
Earl Russell: My Lords, Don Bradman, whom I used to enjoy watching when I was a boy, once had a nightmare. He was playing at Lord's on the sort of dreadful day that only an English June can produce. It was so dark that you were hardly certain it was daylight, so cold that you were hardly certain it was not December and the air was so moist that you could not tell whether it was raining or not. But still the game
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went on. There was one solitary spectator high up in the stands. When Bradman was fielding on the boundary, he turned to the spectator and said: "Why don't you pack it in and let us go home? You must be very cold". The spectator stood up and, as he did so, Bradman saw a long tail projecting from the back of his overcoat. He said: "Yes, I am cold, colder than I've been in a million years, but I'm waiting to take one of you home".
Those of us who attempt electioneering in the House of Lords in the dinner break might well remember that story. After all, the audience we address here does not contain any voters. None of us has the vote. Therefore we speak more for conversation between ourselves and for the written record.
I should like to begin by welcoming the good news—because there is good news. The Minister was entitled to say what he said about the success of the present Secretary of State in maintaining the annual uprating during his term of office. I should like to congratulate him on it. However, in saying that, I do not wish to imply that I am happy with benefit levels as they are at present.
I believe that the Minister is entitled to ask us to welcome lower unemployment. I do not know how much lower it is, but I believe it is lower, and I am glad of that. The Minister asked us why there was the difference between this country and continental European countries. I think the answer is quite simply that we are running on a rather different cycle. There was a period when they were doing much better than we were and Ministers did not welcome comparison at all. Now it is the other way around and comparisons are constantly made. I think that economic comparisons need to be made over a full cycle, in which case there is probably not much difference in it, though I have not studied the figures today.
With a reduction in the level of unemployment, social security becomes cheaper, but not by as much as it should. I think it is common ground that the reduction in unemployment has largely taken place in low-wage, part-time jobs. The Equal Opportunities Commission recently made some comments about that which I think deserve attention. That reduces the gain to the Exchequer in two ways. One is by continuing expenditure in in-work benefits where the total wage is below benefit level; the other is by lower yield in contributions—in national insurance, income tax and VAT.
If I may digress for a moment into another Bill, some of your Lordships probably heard the noble Lord, Lord Bingham of Cornhill, say that if you abolish discretion, you simply move it to another place. I sometimes suspect that if you try to abolish costs, you simply move them to another place. The Minister made great play on labour costs to employers. That is a real issue; it has a real effect. But, by keeping those costs down, if you diminish revenue to the Exchequer, you simply force the Exchequer to put higher taxes on a diminishing tax base. So at the end of the day we go round the mulberry bush and the game is not what people might have wished it to be.

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In looking at the national insurance contributions uprating order, I looked at the lower earnings limit. As near as I can work it out without using a calculator, it came out at something like £3 per hour for a 40 hour week. I say nothing, any more than the party on my left does, about the level at which a minimum wage might be fixed, and I hope that nothing I say will be interpreted as anything but illustrative. Assume for the sake of argument that a minimum wage were fixed at £3.50 an hour. That would make a considerable difference in revenue, both in terms of employees' national insurance and employers' national insurance. The PSBR effect would be considerable. Such matters need to be taken into account as well as the points about labour costs which the Minister perfectly properly made. We need to strike a balance between them.
In thinking about national insurance rates, I have had a look at the report of the Comptroller and Auditor-General on the National Insurance Fund. He makes a series of technical points to which I hope we might return in the course of the Social Security Administration (Fraud) Bill about the way the accounts are put together. He says that they are not sufficiently developed to provide the information required for accruals-based accounting. That makes it difficult to investigate the extent of debt and underpayment and to have proper communication between national insurance and the Inland Revenue.
I understand that the department is aware of the problem and is taking action. I hope that when we come back to the fraud Bill we may hear something about that.
There seems to be a problem of underpayment of national insurance. The Inland Revenue and compliance officers have found underpayments of £291 million. If the Minister gets out his proverbial calculator, he can do quite a lot with £291 million. We should all be looking at maximising revenue. Where the money is already legally due, it should be paid by those who are liable to pay it rather than by those who pay their taxes already. I hope that that matter will receive some consideration.
I notice that in the uprating order the savings figure for family credit, disability working allowance, income support, housing benefit and council tax benefit remains at £3,000. I should be grateful if the Minister could tell me when that figure was last uprated for inflation.
I should also be grateful to know exactly how the savings limit is supposed to work. Are the savings calculated as income or as capital? It makes a considerable difference to how the savings limit ought to be calculated. If it is calculated on the assumption that the capital provides income, ought we not to take interest rates into account in uprating the savings limits and, with falling interest rates, ought we not to have a rather higher savings limit?
If it is considered as capital, ought not the sum to be at least high enough to equate to one year's income support? Would there be sense in index-linking it at that figure? Do we need another Rooker-Wise amendment to cover savings limits? I suspect that we do.
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I welcome the uprating of child benefit. I welcome the success of the Secretary of State in preserving it, as he pledged to do, throughout the length of this Parliament. But the words have always been "during the lifetime of this Parliament". I hope that fairly soon we shall be hearing what, if they should be given the opportunity, the Government might do in the next Parliament.
I agree with everything that the noble Baroness has said with regard to asylum. When the Minister writes to her in reply to her questions about net savings, I should be extremely grateful if he would send me a copy.
To turn to housing benefit and shared residence, we already know of cases where people are losing accommodation because a shared residence is not available and because, having to find accommodation which is not a shared residence, they cannot afford a place at all on the housing benefit that they receive. I notice from a Written Answer to my honourable friend Mr. Bruce at the beginning of this week that the Government have already downgraded by £3 million the savings they expect to make. That is an interestingly precise figure. I should like to know why.
The Minister again outlined his case for, as he put it, equalising the treatment of single parents and married parents. Is "equalising" the correct way to describe identical treatment of two things that are not equal? I recall asking the Minister at Question Time, following a question by the noble Baroness, whether he could recall any other country which had practised this principle of equality, from biblical Israel to the present day.
The Minister confined himself to saying that he is not an historian. That is fair enough, but one does not have to be an historian to know about the treatment of single parents in our main industrial competitors within the European Union and the United States. If any of those practise the principle of equality, as the Minister set it out, I should be rather glad to hear about it. The work has been done and the Bradshaw study of 20 countries has the research base for answering that kind of question. I entirely agree with what the noble Baroness said about giving single parents a chance to return to work, including that it is a chance for company. I also hope she will agree with me that single parents who have young children also have a right not to work. We are concerned about freedom of choice. Mr. Tony Blair, in his lecture at Amsterdam, talked about interviews with single parents to investigate whether ways might be found of getting them into work. He can ensure that the interviews are so conducted by officials—some of them a very long way down the chain—that no element of threat is found. If the noble Baroness is able to intervene and give me an assurance on that I should be most grateful.
Baroness Hollis of Heigham: My Lords, I am not sure about the propriety of responding across the Benches in this way. However, what the noble Earl said is certainly right. Our policy is to work with the grain of lone parents' choices, to encourage them and to help them find ways back into work, which we know from all the research evidence, including that of Jonathan

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Bradshaw, is exactly what lone parents want. Personally, I accept entirely the implication of the noble Earl's comments to the effect that parenting of young children is at least as important a social responsibility as it is to get off benefit and back to work.
Earl Russell: I thank the noble Baroness warmly for that response, by which I am considerably reassured.
I move on to the application of JSA and the actively seeking work regulations under it. I recently received a figure from unofficial sources (which is why I shall not use it) about the number of people totally disentitled to benefit since JSA came in. I should be grateful to be told—not at the moment but in writing when the Minister has had an opportunity to check it—the correct figures for the number of people totally disentitled to benefit and the number of people partially disentitled to benefit. He knows my view on total disentitlement to benefit. I do not need to delay the House by repeating it.
The Minister also knows my view from the first day of Committee on the Jobseekers Bill about the difficulties of introducing JSA in a short time scale. If he has looked, as I am sure he has done, at the last social policy bulletin of the citizens advice bureaux, he will have found considerable evidence of a certain amount of confusion in the administration of JSA. There are several different computer streams operating at the same time which have to be interlocked. One unfortunate claimant had two letters on the same day, one which told him that he had been awarded JSA and the other which assured him very firmly that he had not. The claimant did not know which of them to believe.
Another case which caused me some concern comes from the same source. A man who had no money on which to live—he was destitute and without means—had a claim to JSA with an entitlement to backdating. He was told that if he gave up the claim to backdating, his claim could go through one channel which would give him payment immediately; but if he claimed the backdating, his claim had to go through a different office with a different computer procedure and he would have to wait several weeks. So he gave up the backdating.
There are difficulties which clearly need ironing out. I hope that we can hear, either today or later—I gave the Minister very late notice of this point—that something is being done. The next time that any major new change in the benefit system is made, I hope that someone will study the wise words of Sir Michael Partridge when he gave evidence in the other place to the Select Committee. He said that the DSS should never attempt at one and the same time to introduce a major new benefit, a major new computer system and a major change in the administrative structure. Those were wise words. I hope that they will not again be forgotten.
Lord Mackay of Ardbrecknish: My Lords, a little like last night, we have had an interesting debate with the usual suspects taking part, as in last night's debate on sending information on the convergence criteria to the European Commission. As usual, this has been an interesting debate. On some matters, all three of us agree; on other matters two out of the three agree; and
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on yet other matters, I suspect that I am still alone and both the noble Baroness and the noble Earl still disagree with me.
The noble Earl rightly reminded me—perhaps I should say "us"—that none of us has a vote. So there is no point in making electioneering speeches. Last night I had to remind his noble friend Lord McNally of that fact, as the noble Lord began to launch into a suggestion that we might vote for his party. I told him that he was wasting his time because none of us has a vote—aside from the fact that none of us would listen to his advice. So I agree with the noble Earl and shall try not to fall into the trap against which he cautioned me.
We have covered a number of issues. I shall try to manage as quickly as I can to deal with them. If I have to write about one or two matters, I am sure that the noble Baroness and the noble Earl will understand.
I know that there is some dispute—I think that is the word—over the £15 billion increase in real terms in social security expenditure between 1991–92 and 1995–96. The fact seems to be that £3.3 billion is down to the elderly and £7.5 billion is down to the long-term sick and disabled, which in my view and my arithmetic makes £10.8 billion out of the £15 billion increase. Then £4.1 billion relates to the family, and unemployment has fallen by £0.6 billion, for all the reasons I have just mentioned. So, as I said in my introduction, two thirds of the extra expenditure in real terms since 1991–92 is clearly down to the elderly and to the sick and disabled. There are a number of reasons for that. There is the increase in the number of elderly; but also we have rightly increased the number and range of benefits, especially for the sick and disabled, over the past few years. That increases the cost. Lone parents, as the noble Baroness said, are one of the growth areas in expenditure, for the reason that they form one of the growth areas in numbers. I shall return to them in a moment.
The noble Baroness mentioned youth unemployment. We consider it a problem and are working very hard, especially the Department for Education and Employment, on helping young people who leave school without qualifications to find routes into the job market. We have had success in that regard. The position in this country is not one with which we in government are happy. It was 13.8 per cent. in November last on the Eurostat figures. In that regard, taking the noble Earl's point to heart—namely, that I must look at the good figures as well as the bad ones—the Germans do better than we do at 9.8 per cent. But—my goodness!—when I look at France, Italy and Spain, respectively at 29 per cent., 32.6 per cent. and 42.9 per cent., again I ask myself what part the social costs that I mentioned in my original speech—minimum wages and the like—play in those figures, which none of us would want to see in this country.
Perhaps I can move to one point raised specifically by the noble Earl in relation to the National Audit Office report on the National Insurance Fund. When he reads the report—I am sure he has already read it—the noble Earl will see that the fund saw an increase in net national insurance contributions collected from £37.7 billion in

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1994–95 to £39.8 billion in 1995–96. In November the Contributions Agency secured resources for the next three years to combat fraud and abuse. We take seriously the question of fraud and abuse in relation to national insurance contributions.
Under this initiative, in its first year, the Contributions Agency will receive an additional £9 million in order to combat fraud and abuse and expects to secure additional national insurance revenue of £82 million. I hope that that reassures the noble Earl that we are indeed mindful of the need to collect all the money we possibly can from national insurance and ensure that people are not finding a way to escape their obligations to pay national insurance charges, any more than they find ways to escape their obligations to pay tax.
One other self-standing point—if I can call it that—came out in the speech of the noble Baroness, and the noble Earl indicated his support. That related to asylum seekers. I do not want to go over some of the speeches I have made from this Dispatch Box on the subject of asylum seekers. We are no longer prepared—we believe that the country is with us on this—to pay social security benefits to all asylum seekers when it is clear that the vast majority of applications are unfounded.
Your Lordships will remember the statistics I explained in our debates last summer. In fact, since those debates, the number of people applying for asylum has reduced—comparing one month to the same month in the previous year—by around 50 per cent. time after time. That can only indicate and reinforce the points I made; that is, that many of those asylum seekers were not fleeing from persecution. They were economic migrants. If they were fleeing from asylum, they would be continuing to apply for asylum regardless of what we had done to the benefit system. They would have continued to apply for asylum. The fact that they are not continuing to apply underlines my argument.
Baroness Hollis of Heigham: My Lords, I thank the Minister for giving way. If he looks at the monthly breakdown of figures for 1996 and 1995, he is correct that the figures reduced sharply through April, May, June and July. But will he not accept that from October onwards they have grown by up to 3,000 a month and are almost—not quite, but almost—back to the equivalent figures and equivalent levels of the preceding year?
Lord Hylton: My Lords, while the Minister is thinking about his reply, will he bear in mind that the burden that used to fall on central funds has now largely been shifted onto the backs of local authorities, particularly in London?
Lord Mackay of Ardbrecknish: My Lords, I do not believe that the burden should fall on either the taxpayer or the local council tax payer. We have responsibility to genuine asylum seekers and that responsibility includes making sure that the vast numbers who came into this country last year and the year before and who did not qualify for asylum, but who stayed here for some years on benefit, should not be able to do that. It is not fair to
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the British taxpayer; it is not fair to the council tax payer; and it is not fair to the genuine asylum seeker who has to wait longer for his case to be considered because all the other cases are clogging up the system unjustifiably.
Earl Russell: My Lords, when we debated this matter—I hope we do not prolong it—the Minister admitted that he could not, in any individual case, tell at the moment of withdrawing benefit whether or not the claim was genuine. I hope he does not withdraw that statement.
Lord Mackay of Ardbrecknish: My Lords, I do not see any need to do that. The point is that anyone coming to this country claiming asylum and who does so at the port of entry will receive benefit. That is the position.
I am not entirely sure where the noble Baroness obtained her figures. As I read September, October, November and December, the decrease is 50 per cent., 53.16 per cent., 59 per cent. and 35 per cent. Those are significant reductions. We believe that the withdrawal of benefit from in-country applicants will save around £200 million a year. The cost to local authorities of supporting refugees will be nowhere near that figure. As I explained, we are discussing with local authorities the problems that they experience to see how we can best help them.
The noble Earl asked me about jobseeker's allowance and about the numbers disentitled to benefit.
Baroness Hollis of Heigham: My Lords, perhaps I can ask the Minister one last point. Will he be giving in letters to myself and the noble Earl rather more hard information about what he expects will be the total cost to public funds of the Government's response to asylum seekers? He expects to save £200 million. What does he expect to be the cost incurred by local authorities and to what extent will the Government reimburse them?
Lord Mackay of Ardbrecknish: My Lords, I have been over that point before. I said that we are discussing these matters with local authorities. I gave hard evidence about the reduction in applications, which rather contradicts the looser evidence given by the noble Baroness.
On jobseeker's allowance I was about to say that I shall need to consult my colleagues in the Department for Education and Employment before I can respond to the question in relation to disentitlement to benefit. It has been a complex arrangement to introduce, with a new computer system. There have been difficulties. My understanding—I discussed some of the problems the other day with officials—is that the difficulties have been worked round and overcome and that the system, given its complexity, is working remarkably well. I am afraid that no matter how much time and effort we put in, there will always be the odd person in a system as big as the one we try to operate who will receive letters which appear contradictory or are wrong. In the real world we can never escape from that. However, I believe the system is working reasonably well.

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I turn now to housing benefit. We have to be sure that there is a balance between those people who are in work—perhaps not well paid work—looking after their housing needs and looking for housing, and those people who are on housing benefit looking for housing. Restricting housing benefit to the local reference rent and, for single people, restricting housing benefit to the single room rate means that such claimants are not able to obtain better or larger accommodation at the taxpayers' expense than other people in similar circumstances who have a job. Those who are employed have to try to measure their housing needs against the amount of money they earn. In relation to hard cases, local authorities have a discretion to pay up to the full value of eligible rent in order to prevent exceptional hardship.
The increasing number of lone parents is a problem, particularly the increase in the number of "never marrieds". Increasingly, we have placed an emphasis on work incentives to help them to work. The introduction of family credit in 1988 and subsequent improvements in benefit have all had a positive effect which has been shown by independent research. In April 1992 the qualifying hours for family credit were reduced from 24 to 16 hours, which was particularly helpful to lone parents working part time. A disregard for the first £15 of maintenance was introduced in 1992, and in October 1994 a disregard of £40 a week for childcare expenses was introduced for children under 11 cared for by a registered childminder or nursery.
Since 1992 over 200,000 lone parents have moved from income support into work supported by family credit. Other measures beneficial to lone parents include, from April 1996, an increase in the disregard for childcare expenses and in-work benefits from the £40 I mentioned to £60 and housing benefit and council tax benefits to be paid for four weeks after taking up a job for those out of work for six months or more. From October 1996 the back-to-work bonus, which allows those on income support or JSA and working part-time to build up a bonus of £1,000 payable as a tax-free lump sum on leaving benefit to take up work, will be helpful. From April 1997 the new parent-plus pilot scheme which is expected to offer help to up to 100,000 lone parents on income support who want to work will be introduced. The introduction of the child maintenance bonus, worth up to £1,000, which will be payable to parents with care who have been receiving maintenance on leaving income support or JSA (income based) in order to take up work, are all there in order to try to help and encourage lone parents into work.
The noble Earl, Lord Russell, has made a hat trick of asking why the capital limits of £3,000 and £8,000 have not been increased, having done so on each of the previous outings we have had on these matters. I regret to tell him that my answer is the same as last year's. We believe that capital limits are not a first priority. The cost of our uprating these amounts for pensioners in 1997–98 by prices since their introduction would be £50 million and the cost of doubling the upper limit to £16,000 would be £40 million. We believe that, in the
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language of priorities, it would be better spending that money in other ways, particularly on the general uprating.
I answered a Question the other day about uptake. I do not want to speak at any length on that. However, we are actively pursuing campaigns of information, posters and so on to make sure that people know about benefits, so that if they wish, they can apply for them and take them up. That is particularly true of pensioners, who have the information on the back of their pension books about the other benefits, who will see posters in the post office when they go in and so on. We do a great deal to try to make sure that people understand about the benefits that are available.
On a number of occasions the noble Baroness has rightly drawn our attention, as she did again today, to the question of what we all know as "no work households". There are a variety of reasons for them. One is the growth of single adult households—lone parents—where it is less likely that the lone parent will be an earner, so the household is without an adult earner. An increase in the number of students is one of the factors leading to an increase in the number of households where no one works.
I do not want to go into a long discussion about that but it is not unique to this country—not by any means. All our friends in the European Community are seeing similar levels of this phenomenon—partly for the reasons I have mentioned and also for the reason that the number of jobs for those with few qualifications or perhaps with a lot of brawn to offer rather than brain has been reduced. At the other end of the scale—this is important when one considers averages—there has been a huge increase in the number of two-earner households. That means that even if the bottom position stays the same, averages and medians begin to go upwards as the top is pulling away because of the two-income families.
I can assure your Lordships that I do not therefore conclude that we should not allow women to go out to work. One of the great advances over the past 50 years has been the number of women who have continued to be able to pursue their careers. That has been of great value to themselves and of even greater value to their families and to the economy. One just has to accept that, if one is encouraging women to go out to work and have two income families, inevitably, households which are in that situation will pull away from those households with either only one earner or with no earners. That is a simple fact of life. I can conceive of ways by which a redistributive party could tax people in order to remove the advantage they have from both going out to work. However, I certainly do not believe that I would ever find it comfortable to countenance doing anything like that.
Perhaps I may conclude by reminding your Lordships of the simple fact of the employment position and unemployment position in our country. Our approach works. Over the past year our employment has risen by 300,000. Unemployment is down by 1 million—the lowest unemployment for six years. Unemployment in France and Germany is at very high levels. While I think the noble Earl would have a justification for his

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argument about positions in the economic cycle, the unemployment levels being experienced by some of our friends on the Continent are way beyond those which one would expect in the normal economic cycle that those countries have had. That is especially true of Germany, which over many years has had an extremely good record on unemployment. I think it is a little more than just an economic cycle.
Of course some of the jobs are part time. But 85 per cent. of people who have part-time jobs tell interviewers that that is what they want. They do not want full-time jobs. They want part-time jobs. The idea that the new jobs that have been created in this country are temporary jobs does not stack up. I commend to your Lordships table 4.11 in Social Trends which shows the percentage of employees in temporary jobs in comparison with our European friends. If your Lordships had been listening to the Opposition you would think that the figure in this country is very high indeed. The figure in this country is 7 per cent. In comparison, the European average is 11 per cent.; the figure in Germany is 10 per cent.; in France it is 12 per cent.; in Sweden it is 12 per cent.; in Finland it is 16 per cent.; and in Spain it is 35 per cent. The part-time jobs are, by and large, for people who want part-time jobs and the full-time jobs are full-time permanent jobs. They are not temporary jobs, as we often hear.
As I said in my speech, and as I have said on a number of occasions, low non-wage labour costs and a flexible labour market, as the noble Lord, Lord Currie, reminded the readers of the Economist Intelligence Unit just the other day, are very important factors when it comes to looking at the success of our economy. I agree with the Opposition that the more people we can get back into work the better. But one does not get them back into work by the Government piling on more and more money on the one hand and taking more and more money from employers on the other. I have not heard a convincing argument to the point that if a job subsidy is needed, as the Opposition think it is, in order to get employers to take people on, how can putting the burden of the minimum wage and other social charges on to employers do anything other than lose jobs? Indeed, it was Mr. John Prescott who admitted that in his blunt and usual manner. I do not think we can afford to take the kind of risks with jobs and opportunities that the party opposite would do.
What we have in front of us this evening in the uprating statement is a clear indication that we honour our obligation and pledge to uprate benefits year after year. We have done that. We have also honoured our pledge to reform social security in order to make it affordable, not just this year but into the years ahead. The reforms in the past four Budgets will save £6 billion by the year 2000–2001. That is a very significant amount. We have had to get there on our own. I do not think I have ever come to the Dispatch Box and had any agreement from the party opposite on any of the measures we have taken to contain social security spending. It is important that we contain social security spending for our economy's sake so that we can pay
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benefits to the people who need them and so that we can also, as we are doing this evening, approve the uprating, by £1.7 billion, of the benefits that go to those people who need them. I commend the orders to the House.
On Question, Motion agreed to.

Deregulation (Validity of Civil Preliminaries to Marriage) Order 1997
8.18 p.m.
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish rose to move, That the draft order laid before the House on 20th January be approved [13th Report from the Deregulation Committee].
The noble Lord said: My Lords, at the risk of tempting fate, I think this will be one of the least controversial measures I will have introduced to your Lordships' House. However, I am afraid that I shall have to say a few words about it if only to make sure that people reading the record will understand and appreciate what we have been doing.
This order is under the Deregulation and Contracting Out Act 1994 and it is concerned with removing the burden imposed on couples whereby a marriage may only be solemnised within three months of the date that the notice of marriage was given to a superintendent registrar and entered in the marriage notice book. The proposal has completed a preliminary scrutiny procedure for deregulation orders under the 1994 Act. The Delegated Powers Scrutiny Committee of your Lordships' House and the Deregulation Committee of the other place have separately assessed and reported on the proposal. Both Committees have indicated that they are content.
The purpose of the order is to amend the Marriage Act 1949 to extend the period in which notice of marriage can be attested from three months to 12 months, which will remove an unnecessary restriction. This should allow couples to enter into firm legal arrangements for their wedding further in advance if they wish to do so. The present three months' period does not always give couples sufficient opportunity to make firm arrangements for their marriage, including legal preliminaries, the booking of the wedding service, the arrangements for photographers, dress hire, caterers and so on. The proposed change to 12 months will remove the uncertainty for couples who wish to make these arrangements with confidence. Any of your Lordships who have daughters who have been recently married will understand the need for a lot of forward planning in this regard.
The proposal should also ensure that there is a consistency in the booking of civil wedding services in England and Wales. All couples will have the opportunity to give notice of marriage much further in advance of their wedding if they so wish. The Government are satisfied that the measure will not reduce the necessary protection. The Marriage Act affords the necessary protection for the solemnisation of

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marriages and that protection, including the attestation of notices of marriage in the prescribed manner, will be continued if the draft order is approved.
The order has been fully examined since it was first laid before Parliament in draft form in July 1996. No changes have been proposed. As I have said, it has been reported to the Delegated Powers Scrutiny Committee as being in a form satisfactory to be submitted to the House for affirmative resolution. Finally, the Committee reported that there was nothing in the draft order which the Statutory Instruments Joint Committee would have needed to draw to the special attention of the House. I commend the draft order to your Lordships. I beg to move.
Moved, That the draft order laid before the House on 20th January be approved [13th Report from the Deregulation Committee].—(Lord Mackay of Ardbrecknish.)
On Question, Motion agreed to.

Crime (Sentences) Bill
8.22 p.m.
House again in Committee on Clause 31.
The Deputy Chairman of Committees (Baroness Serota): In calling Amendment No. 84, I should point out to the Committee that if this amendment is agreed to I cannot call Amendment No. 85.
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 84:
Page 21, line 42, leave out from ("order") to end of line 43.
The noble Earl said: This amendment, my noble friend's Amendment No. 89 and my Amendment No. 96, are all aimed at removing the youth curfew order from the list of community alternatives available to the court when a fine remains unpaid. I believe that a curfew order may be appropriate for certain offenders as a first attempt at sentencing, but I find it unlikely to be appropriate in many cases where the problem is inability or unwillingness to pay a fine.
It will be the case that the offender was initially judged to be suitable for a fine and not for a curfew order, on the basis of both his circumstances and the nature of the offences. I persist in believing that a curfew order, where the only supervision will be by electronic monitoring, has limited application. That limited application is for willing and generally law-abiding offenders who will accept the monitoring and have a suitable lifestyle. If the curfew order was to be based on a human monitoring system with regular contact, I can see that having wider application.
At worst, electronically tagged offenders may be seen as being branded, and that is a punishment which we gave up a long time ago. That will do little to improve the circumstances and prospects of the offender. Inability or unwillingness to pay is a symptom of a chaotic lifestyle and a lack of self-esteem. These
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features need to be worked on if there is to be a chance of any behavioural change. I hope that the Committee will see the merits of these amendments. I beg to move.
Lord McIntosh of Haringey: I have been sceptical about electronic tagging on a number of occasions in this House, the first being after the 1989 experiment. We have not had much opportunity to debate the more recent experiment. It has always seemed to me that the pilot schemes have shown not so much that electronic tagging is a failure, but that it is—at least in the context of a pilot scheme—enormously expensive. Therefore, my initial reaction was to oppose the extension of curfew and tagging orders for fine defaulters, which is the subject of Amendment No. 84, and for low-level offenders, who are the subject of Amendment No. 96.
But I am not so sure. On reflection I believe that much of the problem with the pilot schemes was specifically that they were pilot schemes. There was difficulty in persuading magistrates to give those sentences; there were too few cases which were eligible for those sentences; and the whole of the on-cost of the development of the tagging systems, which must be a considerable amount of capital expenditure, was being loaded on to the pilot schemes that we have seen in action.
I do not want to see any alternative to custody abandoned too readily. It seems to me, therefore, that the effect of extending the range of offences, including fine default as well as low-level offences, which could be eligible for tagging might overcome some of the financial difficulties and could be justified.
I appreciate the arguments about the problem of a tagging device which is difficult to conceal. I do not see why such a device could not be devised which is easier to conceal. I do not believe that the equivalent of being put in the stocks is part of the objective of electronic tagging. I would rather continue with tagging experiments and extend their range in order that the capital costs can be amortised over a larger number of cases and then see whether at the end it is an acceptable alternative. Those of us who are keen on alternatives to custody cannot lightly turn down any of the alternatives that are offered to us.
Baroness Blatch: The curfew order provides an ideal way of restricting the liberty of an offender but without the need for him to be removed from the community by committal to prison. The potential benefit of curfews in the context of fine default is that they provide a way of restricting liberty comparable in many ways to imprisonment, and which can be strictly enforced. Imprisonment must remain available as the ultimate sanction against those who can pay the fines imposed upon them by the courts but who will not pay. However, we do not wish to see fine defaulters committed to prison unless there is absolutely no alternative. The provisions of this clause will give courts practical additional alternatives to imprisonment, which should ensure that fines are enforced effectively with the minimal use of imprisonment.
Turning to the amendment to Clause 33, the courts need to have suitable penalties available to them to deal with the cases that appear before them. Magistrates have

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told us that they need alternative penalties to be made available to them to deal with persistent petty offenders, where a fine is the obvious penalty but the offender's means, because of outstanding fines, make it impractical to impose a further fine at a level which reflects the seriousness of the offence. It is our intention to provide the court with a range of penalties to enable the court to sentence in a way that may better reflect both the seriousness of the offence and the circumstances of the offender.
The flexibility of the curfew order makes it a useful alternative penalty for persistent petty offenders who are unable to pay a fine commensurate with the seriousness of the offence. Such cases are extremely varied. The curfew order gives the court the flexibility to restrict the offender's liberty during periods that relate directly to offending patterns, for example, imposing an order to remain at home on Saturday afternoons on a football hooligan. Furthermore, it is possible to have a very short order: the minimum is two hours a day for one day. It is also possible to have longer and therefore more restrictive orders to deal with those who have been convicted of more serious offences.
This Bill provides the courts with a range of sentencing options to deal with the fine defaulter and the persistent petty offender. The curfew order is only one option within this range. It is a matter for the court to decide which penalty to impose in a particular case having considered all the circumstances of the offender and the offence. Because using the curfew order as an alternative to imprisonment for fine defaulters, and as a penalty for less serious offences is a new extension of its use, the Bill provides for it to be piloted. This will allow a full evaluation of the operation of these powers in practice to be made, and any refinements considered before they are introduced nationally.
I welcome what the noble Lord, Lord McIntosh, said and the fact that he is prepared to keep an open mind on this. I have kept closely in touch with those involved in the early pilot schemes and this pilot scheme on curfew orders. I have met people who have been "curfewed" and those administering the scheme. The results so far are impressive. Despite the unforgiving and comprehensive nature of the supervision, only 18 per cent. have had their curfew orders revoked for breaches of their order, for re-offending during the currency of the order, for offences predating the order or for breaching bail conditions set separately. An impressive 82 per cent. have completed their curfew orders without termination by the courts for breach or for further offending. This compares favourably with other community sentences despite the inescapable and comprehensive nature of the supervision.
The equipment is working well and we believe that the early signs are encouraging. The monitoring staff in all areas are carrying out their jobs to a very high standard. The cost of an average curfew order with electronic monitoring is estimated at less than that of an average probation order although slightly more than a community service order. It is a good deal less than the cost of imprisonment.
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It is important that we keep an open mind on this for some of the reasons given by the noble Lord, Lord McIntosh, who referred to the way in which magistrates have had to get used to this as a disposal. Magistrates are growing in confidence as they use the order.
Perhaps I may pick up the noble Earl, Lord Mar and Kellie, on one point which, because of his experience, I suspect was a slip of the tongue. If it is established by the court that somebody is unable to pay—we are not talking about somebody who can pay but will not pay, but about somebody who is unable to pay—the court would remit the fine either in part or in whole. Nobody in this category is unable to pay. I repeat that if inability is established, the courts have the power to remit the fine in part or in whole.
I believe that curfew orders are an effective alternative to imprisonment. I hope that we shall all keep an open mind on this, like the noble Lord, Lord McIntosh, and allow the pilot schemes to go forward.
8.30 p.m.
The Earl of Mar and Kellie: Perhaps I may ask the Minister a question about the pilot schemes that have already taken place. I believe that two types of monitoring were piloted: human contact by a curfew officer and the electronic variety. Can a curfew order take either form or is it restricted solely to electronic tagging?
Baroness Blatch: Perhaps I may make a distinction between what we are going to pilot for fine defaulters and the way in which the curfew order pilot schemes are running at the moment. The existing curfew orders are dispensed in three parts of the country—Berkshire, Norfolk and Manchester. The courts could combine any of the community service orders with a curfew order. Indeed, we should like the courts to make better and more imaginative use of that because we believe that they have not yet realised the breadth of the disposal. A curfew order can confine somebody to a particular place. Another part of the Probation Service, through probation orders or community service orders, could work with the person concerned at the same time.
As I understand it, for fine defaulters it will only be a case of imposing a curfew order. That is an alternative to imprisoning somebody for, say, seven days. On average, a male fine defaulter is sent to prison for seven days; the average for a female fine defaulter is only five days. A curfew order is a narrowly focused restriction of liberty and, for the purposes of the pilot, would not be combined with other community service orders. However, as I have said, this is a pilot study and lessons will no doubt be learned from it.
The Earl of Mar -and Kellie: I am grateful to the Minister but I am still concerned about "stand-alone" curfew orders. I have almost no problem with curfew orders being linked to some other form of supervision. However, I got the impression that this is restricted to electronic tagging and that it is not a case of curfew

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officers visiting or telephoning the "curfewed person"—I am not quite certain of the correct word for someone who is subject to a curfew.
I am concerned about those who will have to wear the device, and particularly about women. Presumably, the device is attached to the arm or the ankle; male dress is appropriate for that. I wonder whether the noble Baroness can help me on that point.
Baroness Blatch: I know what the noble Earl is concerned about, but first I must say at once that we are talking about people who wilfully will not pay a fine. We are talking about cases where a court has established that somebody has the ability to pay but will not do so. We need to accept where we are coming from on this disposal.
I turn secondly to the case of females. It is far better that a young mother or somebody with family commitments should wear an electronic tag and be at home with the family, cooking and caring for the children than be sent to prison. The same applies to fathers. They may continue to go to work, and will be subject to the curfew only in periods outside their working hours. That is how electronic tagging curfew orders actually work. That is better than them being incarcerated in prison for short terms, dislocating the family and perhaps even causing the children to be taken into care.
There are benefits in this, but if somebody is wilfully not paying a fine and has been found culpable by a court, the consequence is that their freedom will be restricted and they will have to wear a tag. I have seen the tags and I suggest that the noble Earl might like to visit one of the companies, such as Geographics or Securicor, because some of his fears may then be allayed.
The Earl of Mar and Kellie: For a moment I thought that the Minister was going to ask me to wear one!
Obviously, I shall seek to withdraw my amendment, but before doing so I should say that I share everybody's desire for a search for a number of community-based sentences. In some ways, the Minister's alternative was on a scale of awfulness, but I agree that going to gaol is worse than wearing a tag. I hope that the devices will be developed so as to be as discreet as possible. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 85 to 87 not moved.]
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 88:
Page 22, line 27, leave out from ("things") to end of line 28.
The noble Lord said: In moving this amendment I should like to speak also to Amendment No. 90. Were they to be accepted, their effect would be to provide that if there were a breach of a community service or curfew order imposed for fine default, in considering that breach the court would be obliged to take into account whether or not part of the order had been successfully completed. At present the provisions governing curfew and community service orders stipulate that on a breach
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the court shall take into account whether part of the order has been successfully completed. That seems sensible and just since if an offender has been sentenced to 100 hours community service and has totally failed to comply or co-operate he should, in sense, reason and justice, suffer a more severe penalty for a breach than someone who perhaps has completed 90 hours but not the remaining 10.
The unfortunate consequence of Clause 31 is that that provision shall not apply in the case of a breach of an order imposed for default of fine payment. If the courts are not supposed to take into account the partial completion of orders it means that for a breach they must pass the same penalty on an offender who has completed most of his community service as that imposed on an offender who has carried out none of it. That seems inappropriate and unjust. At the moment there is perhaps a degree of inconsistency. Clause 31(13) enables an offender to "buy" himself out of part of an order by paying a pro-rata amount of the fine. Therefore, these amendments are intended to adjust the scheme, which by and large we support, to give the courts greater flexibility.
I listened carefully to what the Minister said in answer to the last amendment. She spoke of the curfew order being comparable with imprisonment and an effective alternative. I agree with both descriptions. But if both descriptions are right on a fine default in the context of a breach of community service or curfew order, surely it must be right for the court to take into account whether or not part of the order has been successfully completed.
8.45 p.m.
Baroness Blatch: I hope that I can provide the noble Lord, Lord Williams, with an explanation. The primary purpose of all methods of fine enforcement is to make the offender pay the fine or other financial penalty imposed upon him by the court. At present fine defaulters can reduce the period of imprisonment imposed on them by paying off the fine. Similarly, under the Bill as it stands a person who is sentenced to a community service or curfew order for default can reduce the term of that order by paying off the fine. We do not accept the premise that offenders should be able to elect to "work off' part of their fine by completing part of a community service or curfew order. If an offender fails to comply with a community penalty imposed as a punishment for defaulting on a fine the fine remains outstanding in full. That is a point of principle. An offender should not have the freedom to choose a package of measures acceptable to him from among a range of penalties available, which would be the practical effect of the amendments. The court decides the appropriate penalty. If the offender does not comply with an order of the court, then the court has a range of options open to it to punish that breach.
Periods of imprisonment for fine default relate to the amount of the unpaid fine. We believe that this should continue to be the case. If the length of imprisonment were reduced by partial compliance with a community service or curfew order it would reward the offender by reducing his prison term imposed for fine default despite

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the fact that he had not paid off any of his fine. This would subvert the intention of the court in imposing the fine. Serving the community penalty in full will discharge the financial penalty in full. But, short of total compliance with the community penalty, the only way to reduce the term of imprisonment which may be imposed by the court is to pay part or all of the outstanding fine.
There are practical considerations to be taken into account as well as matters of principle. We do not wish to encourage partial compliance, particularly given that these orders will be relatively short term. Our proposal is clear and perfectly logical. If an offender is given a community order for fine default he must comply fully, pay off the fine or go to prison for the period appropriate to the amount of the unpaid fine. I hope that the amendment will not be pressed.
Lord Williams of Mostyn: I hear the explanation of the Minister but there is no intellectual consistency or internal coherence about it. The Minister contends for the principle that the offender shall not have the choice. But the offender will already have paid a penalty by serving out, in many cases in substantial part, the community service or curfew order which the Minister rightly described as comparable with imprisonment. Why is it that if the offender cannot choose, Clause 31(13) allows precisely that choice? As I indicated a moment or two ago, an offender can "buy" himself out of the rest of the order by paying the pro rata amount of the fine. There is no consistency here at all. It is mulish insistence—I do not direct my remark to the Minister but to a mulish government—on non-flexibility in part of the Bill whereas the rest of it aims to provide a flexible scheme of workable alternatives available to a court. I am not at all convinced by the Government's stubbornness. I stress that my remark is not directed at the Minister personally, because she always deals with my questions with the utmost courtesy and care. This is inflexibility in a scheme designed to be flexible and to provide a wider pallet of alternatives to the court. On this occasion I shall not test the opinion of the Committee, since all of my noble friends have gone into the night and I, almost alone, linger here. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 89 and 90 not moved.]
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 90A:
Page 23, line 36, leave out subsection (13).
The noble Earl said: Amendment No. 90A and the associated amendment, Amendment No. 91, have the purpose of removing from the Bill the opportunity of a fine defaulter to buy his or her way out of a community service order or curfew order which has been imposed after a default. Subsection (13) suggests that the offender can hand money to the community service staff or curfew operating staff and be released from the scheme. I would have thought that it should at least be
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specified that the money should be paid to the court house, as would the original fine, and notification subsequently sent to the community service organiser or the monitoring staff.
I am against this opportunity in principle. The community service scheme gives serious undertakings to do work for other agencies and bodies. The evaporation and sudden disappearance of the workforce would be quite inappropriate because the tasks undertaken would have to be real work that needed to be done. I suspect that Amendment No. 91 may contain a workable compromise. I am sure that that will be explained to the Committee.
The case against being able to buy oneself out of a curfew order is weaker. This type of order is focused wholly on the individual and his or her whereabouts and so early termination will not have the same effect as it would have with a community service order. I beg to move.
Lord McIntosh of Haringey: I thank the noble Earl for referring to my amendment as a workable compromise. That is certainly what it is intended to be. I hope that the Government take the same view. This is always a difficult balance. The balance is between the kind of flexibility that the Government propose, which has the advantage that the paying off of a fine properly discharges the disposal that has been awarded because it has not already been paid off, and the costs of implementing community service orders and curfew orders. The fewer the number of people who have to do it for this reason the better for all concerned. But the problem that the noble Earl rightly recognises in his amendment is the administration of community service orders. Work has to be found for these people. It must be organised, supervised, booked and paid for. Administrative arrangements must be made. Indeed, the community service order contract has some sort of commercial benefit even if it is not expressed in that way. I can imagine that it could be extremely difficult if an unknown number of people turn up for a programme of community service which has been carefully worked out and hand over the sum and the supervisor, the work and all the materials and organisation go to waste.
We propose not to make any change on curfew orders but to make a change on community service orders, saying that, using the provisions of Clause 31, offenders can buy off a certain amount but they cannot buy off more than half the sentence unless they do so at the time when the obligations of the community service order are first spelt out. I hope that that justifies the phrase "workable compromise" and commends itself to the Government.
Lord Hylton: I should like to support Amendment No. 91 and at the same time ask the noble Baroness whether she would be kind enough to look at the drafting of the last four lines of page 23 of the Bill. One would think that they could be more elegantly expressed.
The Earl of Balfour: I wonder whether this particular clause covers the position where somebody

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pays reparations for the damage done. May I use an example. Somebody is drunk and smashes the plate glass window of a shop. He agrees with the court to pay for the replacement of that window and at the same time is involved with a fine. As I understand it, he has to pay off the repair bill before his fine is cleared. I feel that does not quite come into the provisions of this clause if, say, he has paid for the repairs and then he is very dilatory over paying the fine.
Baroness Blatch: May I start by giving an absolute assurance to the noble Lord that I will always look at the wording and, if it is possible to make it more elegant without compromising the accuracy of it, I will persuade counsel to agree to do that. I have to tell him at the same time that counsel are not easily persuadable in these matters and I never find legalese elegant at all, but I will do what I can.
In answer to my noble friend Lord Balfour, in the particular example he gave of somebody getting drunk and smashing a shop window, even if that person does offer to pay for the damage, nevertheless he has committed another offence and I am not sure quite what the courts would think about that. I am assuming that he is already paying the fine one way or another. Therefore it is open to him to continue to go to court to present his circumstances to the court and for the court to determine whether easy payments can be considered or whether there should be some other way of paying the fine because at the end of the day—and that was going to be my starting point in responding to this amendment—the key principle is to get the person to pay the fine. That is why we find it difficult to accept the amendment.
If Amendment No. 90A were agreed, a fine defaulter would have no incentive to pay off the fine imposed upon him once a community service or curfew order had been imposed. The defaulter would still be required to complete the whole of the community service or curfew order imposed upon him regardless of how much of his fine he had paid. If the court decides that a fine is an appropriate way of punishing an offender, then the outcome we wish to see is that he pays that fine in full. It may be that the imposition of a community service order, a curfew order, or even a custodial sentence, is required to persuade him to do so but we do not want merely to replace the fine with a community penalty. We must therefore not remove incentives for payment.
Although different, Amendment No. 91 is also fraught for similar reasons. Under this amendment the fine defaulter would have an incentive to pay off up to half of his fine because his community service order would be reduced proportionately. However, if the amendment were accepted, not only would there be no incentive for him to pay off more than half of the fine, but he would not be allowed to do so because of the limit imposed by this amendment. That is inconsistent and indeed illogical, particularly as these restrictions would not apply to curfew orders imposed in the same circumstances. If a fine defaulter has the means to pay off the majority of his fine and is prepared to do so, we wish to continue to encourage him to pay the fine and not to prevent him from doing so.
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The noble Earl, Lord Mar and Kellie, referred to the issue of to whom payment should be made. The Bill provides for the fine to be paid to an authorised person. In the light of the comments made by the noble Earl, we would want to explore in the pilots whether this should include anyone other than court staff.
The Earl of Mar and Kellie: I am very grateful for that final comment because the precise wording "any person authorised to receive it" struck me as being very vague. Having been a community service supervisor, about the last thing of all the things one had to deal with was working out how many hours of community service someone could buy themselves out of which, in the midst of getting everything organised, was not easy.
I am also grateful to the noble Earl, Lord Balfour, for raising the subject of what I am going to end up calling "compensation order defaulters". I have to ask the noble Baroness, first: do you have compensation orders in England?
Baroness Blatch: Yes, we do. Could I say to my noble friend that my understanding is that compensation orders must be paid before a fine. That is important.
The Earl of Mar and Kellie: Having established that we have compensation orders in England, does a fine defaulter include a compensation order defaulter?
Baroness Blatch: The provisions of the Bill will apply to the enforcement of financial penalties, which includes compensation orders.
The Earl of Mar and Kellie: Thank you very much. I think I have debated this one far enough. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 91 not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 91A:
Page 24, line 6, leave out from ("instrument") to ("House") in line 7 and insert ("; but no such order shall be made unless a draft of the order has been laid before and approved by a resolution of each").
The noble Baroness said: Clause 31(14) contains a power to amend, by order, the minimum and maximum hours of community service or days of curfew order which can be imposed on fine defaulters under the provision in that clause. Clause 31(15) provides for such an order to be subject to a negative resolution. The Select Committee on the scrutiny of delegated powers recommended that the negative resolution procedure would be appropriate for orders where the default period is to be decreased, but that the affirmative resolution procedure would be appropriate if the default period were to be increased.
We are happy to accept the recommendation of the committee but, to avoid unnecessary complexity, we propose to make all orders made under this section subject to the affirmative resolution procedure, whether they increase or decrease the period. This is what is proposed in the amendments tabled by the noble Lords,

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Lord McIntosh of Haringey and Lord Williams of Mostyn. I am happy to agree with their amendments in principle.
However, as I have already indicated privately to the noble Lord, Lord McIntosh of Haringey, I am advised by lawyers that the drafting is not quite right. I take no credit whatever but I understand that counsel's version of these amendments is rather more elegant and accurate. I beg to move.
9 p.m.
Lord McIntosh of Haringey: I have no objection to being told that the Government amendments are more elegant. That is par for the course. But I do object to the Minister sneaking in and getting her amendment higher up the Marshalled List than mine. That is supposed to be the province of the Opposition. If there is any more of this, I shall start to introduce paving amendments.
On Question, amendment agreed to.
[Amendments Nos. 92 and 93 not moved.]
Clause 31, as amended, agreed to.
[Amendment No. 94 not moved.]
Clause 32 agreed to.
Clause 33 [Persistent petty offenders]:
[Amendments Nos. 95 to 97 not moved.]
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 98:
Page 24, line 39, after ("apply") insert ("and instead the following paragraph shall apply—
"(a) the reference in section 14(1A)(a) of the 1973 Act to 40 hours shall have effect as if it were a reference to 20 hours and the reference to 240 hours shall have effect as if it were a reference to 40 hours;".").
The noble Lord said: I shall speak also to Amendment No. 99. These amendments provide that CSOs and curfew orders imposed on low level offenders should be for shorter periods than when they are imposed for more serious offences. The present legislation provides that CSOs and curfew orders can be made only where an offence passes a certain level of seriousness. As I understand the Government's aim in Clause 33, it is to provide courts with alternative non-financial penalties, as the Minister indicated earlier, where the offence is a minor one which would not currently be considered serious enough for a community sentence but where the offender's circumstances make a fine inappropriate. That, I must confess, is a sensible aim which therefore deserves support.
We are concerned that there should be sufficient flexibility for the sentencing court for the lower level offender, which is why we propose, as is clear on the face of the amendments, that there should be a lower threshold to which the court may address its mind. I beg to move.
Baroness Blatch: Our intention in making community penalties available to the court for use in place of a fine for persistent petty offenders is to provide magistrates with the flexibility to be able to deal
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appropriately with the cases that appear before them, taking into account the seriousness of the offence and the circumstances of the offender. To give such flexibility on the one hand while constraining the amount of community service which may be imposed to a narrow range of only 20 hours limits the power of the courts unnecessarily and unhelpfully. Magistrates may wish to impose a curfew order for a period of more than two months in certain cases. For example, if the offender is employed a curfew order limited to the weekend only may be the appropriate penalty.
The minimum of 20 and maximum of 240 hours and a curfew order of up to six months will provide sentencers with considerable flexibility. If the court is to take proper account of the wide variety of persistent petty offending and be able to pass a sentence that reflects this variety, then the penalties available need to have as much flexibility as the fine. It is a matter for the court to decide the appropriate penalty in individual cases. It is a matter for Parliament to provide the court with sufficient options to enable it to do so.
I return to two points. One is the importance to the courts of flexibility. The other is to enable them to reflect the lower end of the sentence, which I know is the concern of the noble Lord, Lord Williams of Mostyn, and also to recognise the seriousness and level of persistency. We believe that reducing the upper limit would tie the hands of the courts in this matter.
Lord Williams of Mostyn: I believe that the Minister and I both desire the same objective. We both desire flexibility. As the Minister of State in another place said, courts need flexibility to be able to impose appropriate sentences. The amendments are designed to offer the courts precisely those opportunities, whether in terms of hours or months served. It is difficult to understand how an "appropriate sentence", to use the words of the Minister of State in another place, can include passing more severe sentences for lesser offences than some of those passed in cases which are more serious. This is again an attempt to improve the Bill, because the spirit in which the Minister approaches it is the same as the spirit in which we approach it. I hope that the Minister will be able at least to consider the points that we have sought to put forward briefly. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 99 not moved.]
Clause 33 agreed to.
Clause 34 [Abolition of certain consent etc. requirements]:
On Question, Whether Clause 34 shall stand part of the Bill?
The Earl of Mar and Kellie: I oppose the inclusion in the Bill of Clause 34. I can think of no useful reason for its inclusion. It seems to defy reality, although I accept that in its latter subsections it concedes that consent should be required for some additional conditions. Those are to do with consenting to forms

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of medical treatment, for mental health matters, or the treatment of addiction. I suspect that medical law requires that in any case.
My objection to the concept of the clause is that I can see no occasion when it would be efficient to impose a community sentence on an offender who has withheld his consent. I believe that to do so is unjust, as that probably constitutes agent provocateur action. The person would be liable to punishment for a breach of the order and of course re-punishment for the original offence.
But more critically, community sentences have a purpose. The CSO is used when it is believed that doing work for others for free is an appropriate disposal for the offender. A probation order, with any number of conditions, is imposed when a clear behaviour modification task is identified. That will, of course, involve considerable intrusive work by the probation supervisor, and requires not just the consent but the co-operation and motivation of the offender if it is to be effective.
The few conversations that I have had with magistrates in this House suggest that the clause is unworkable, if not redundant. I shall be interested to hear from the Minister how the powers contained in the clause will have any practical or beneficial use. I beg to move.
Lord McIntosh of Haringey: I am worried about the proposal to oppose Clause 34. I shall be interested to hear what the Minister says because the noble Earl makes a grave charge. He says that the clause is unnecessary and damaging—a phrase which I have heard previously from the Government Front Bench.
I am worried that perhaps we are being led astray by words rather than reality. In these circumstances, consent does not mean very much. If the alternative to consent to a non-custodial sentence is being put away in prison, that is Hobson's choice; it is not a real choice that is being offered. In those circumstances, enforced consent does not mean consent. Would we not do better to require that the offender should acknowledge the award of a period of community service rather than consent to it? In that way, we would not get into the difficulty identified by Mr. David Maclean in Committee in another place—that it would amount to the offender dictating the sentence to the court. That is not at issue, but when in this context we say, "consent" we do not mean consent in any free way.
Viscount Tenby: As a magistrate, I associate myself with the remarks made by the noble Lord, Lord McIntosh. I fully understand the arguments advanced by the noble Earl and those who support him. It can be psychologically advantageous to get an offender to agree to a course of action being proposed in the sentencing exercise—theoretically, at least. But my experience is that such a formula repeated time after time has become something of a mechanical exercise alongside—dare one say it?—the use of the oath in court proceedings, which to a largely non-practising Christian part of the population becomes something of a farce. The phrase, "Do you consent to such an order being
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made?", used endlessly is, as the noble Lord, Lord McIntosh, said, preposterous. It is Hobson's choice and I agree with the noble Lord.
Lord Monson: I believe that there are at least three valuable aspects to Clause 34. First, with regard to people under the age of 16, information about their family circumstances and the impact of the order on those, and vice versa. Secondly, treatment for a mental condition. Thirdly, treatment for dependency on drugs and alcohol. I should have thought that all Members of the Committee would be greatly concerned to maximise the amount of effective treatment that can be provided.
Lord Thomas of Gresford: I support my noble friend Lord Mar and Kellie. In my experience, the sentencing process is such that frequently one can he faced with a defendant who has been found guilty or has pleaded guilty to an offence but who appears to be in a complete daze as to what exactly is going on. The effect of asking for his consent frequently produces a reaction from him which otherwise does not exist. It is a useful provision to be able to speak directly to a young person in particular and to require from him some undertaking—his consent—that he will obey the order that is being imposed. It breaks the barriers which lie between the sentencer and the individual. I do not consider that it is helpful to have a defendant before the court who remains mute throughout the whole of the proceedings. It is a useful provision to have.
Baroness Blatch: The courts are not required to secure the consent of an offender before passing a custodial sentence or even a fine. Therefore, it is nonsense that they should be required to do so before passing a community sentence. It gives the impression that an offender or, in the case of a child, a parent or guardian can dictate to the court what kind of punishment he or she receives simply by withholding consent. That seems anomalous to many sentencers, and the Government agree. It is quite wrong for the court to have to seek an offender's consent before it can even pass the sentence which it believes the case merits. The measure will end that position. It will help to maintain public confidence in sentencing decisions and allow the courts to exercise their authority with more confidence. There is a psychology involved here whereby the sentencer is meant to be sentencing but rather goes cap in hand to the offender and says, "Do you mind if we impose upon you 100 hours of community service?"
In any event, as the noble Lord, Lord McIntosh, and the noble Viscount, Lord Tenby, have said, the consent which an offender gives to a community sentence is not consent in the usual sense of the word. If an offender does not consent, the court may impose a custodial sentence. Consent given in such circumstances cannot be regarded as an offender entering into any sort of sentencing contract with the court and it is no guarantee of an offender's likely compliance with the order. Besides, it is already the case that one of the community sentence options available to the courts—the attendance sentence order—does not require the offender's consent. Therefore, I see no reason why the imposition of any

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community sentence should not be made consistent with general sentence procedures. The courts must be allowed to impose the sentence that they think appropriate.
However, we recognise that the inclusion of requirements in a supervision order for a young offender may have implications for his family. That is why in cases involving offenders under 16, Clause 34 includes a provision that the court must obtain and consider information about their family circumstances and the likely effect of the requirements on those circumstances before it imposes such a supervision order. Such requirements might include participating in specified activities, a night curfew order, or residing with a named individual. The need to take account of family circumstances is consistent with the provisions in Clause 40 concerning the imposition of curfew orders on young offenders, and should help to ensure that supervision orders are applied in appropriate cases.
The Government recognise that there are some circumstances where the court should continue to seek an offender's consent before imposing a probation order. We need to uphold the general principle that a person should not be compelled to undergo medical treatment. Clause 34 makes provision for that. Where the court is minded to impose a probation order which includes a mandatory requirement that the offender undergoes treatment for a mental condition, or for drug or alcohol dependency, it must first seek the offender's consent. This is not only desirable but practical—it is unlikely that a doctor would agree to provide treatment without consent having been given. Retaining consent will avoid the situation arising in which an order is made, cannot be carried out and then has to be brought back to the court to be varied. Those provisions strike a good balance. They will enable the courts to impose the sentence they think right while retaining the need for an offender's consent only where it is necessary to do so.
Courts will continue to have the option of calling for a pre-sentence report to inform their sentencing decision. In the light of last Thursday's debate, it is interesting that research findings recently published by the Home Office Research and Statistics Directorate has found that it is rare for the courts to impose a community sentence without seeing a pre-sentence report. Pre-sentence reports include an assessment of an offender's suitability for a particular community penalty. Where an offender is shown to be unsuitable for a community sentence, the courts will wish to consider other sentencing options.
The noble Lord, Lord McIntosh, raised the issue of acknowledgement of sentence. There is a statutory duty on the court to explain in ordinary language the purpose and effect of the community service order. That is to be found in Section 14(5) of the Powers of Criminal Courts Act 1973 so that the offender understands the sentence imposed upon him. In the Green Paper on sentencing, we emphasise the importance of more transparency in court. I have almost a personal fetish about sentences being dispensed in court in terms of hours, months, weeks or years. It seems to me that it is helpful not only to the offender to know what the sentence means but it
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is also helpful for the public. Very often the offender does not know what the sentence actually means before he meets representatives of the probation service who explain it to him.
9.15 p.m.
Lord McIntosh of Haringey: I spoke in favour of the retention of this clause in the Bill and against the proposition of the noble Earl, Lord Mar and Kellie. But I am worried by some of the Minister's replies. She acknowledges that you cannot order somebody to undergo medical treatment without his consent because the doctor would not agree to treat anybody unless he had agreed to the treatment.
But surely to some extent, that applies also to a community service order. You could not administer a community service order with people who had totally denied that it was appropriate for them to have such an order or who have failed to acknowledge—I come back to that word—that that was the sentence of the court.
I appreciate that there is no one answer for any single disposal and that circumstances must suit cases. But I am worried about taking away consent and not replacing it by anything more formal than an explanation of what it means.
Lord Thomas of Gresford: I must challenge the rhetoric of the offender dictating the sentence to the court. In my experience, that never happens. An offender is faced with a number of possible methods of disposal. One method of disposal would be a community-based sentence. If a court were minded to pass a community-based sentence, the reaction of the defendant and his family is not one of smug satisfaction but of gratitude that they have been allowed to escape a more serious future.
Whoever thought of the rhetorical phrase of the defendant dictating the sentence to the court cannot have been in a proper court and cannot begin to appreciate the dynamics of the situation. The sentencer who has the power to dispose of the individual before him, and the attitude of the defendant awaiting his fate, are completely opposite to the concept of dictating the sentence. I support my noble friend Lord Mar and Kellie.
The Earl of Mar and Kellie: I still wonder why the clause was put into the Bill. It creates nothing new. It changes a provision which has been operating. Whenever a probation officer, or in Scotland a criminal justice social worker, prepares a report for the court recommending probation with a condition such as community service, if he could not state that the subject of the report expresses his or her willingness to comply there would be no basis for making that recommendation.
I accept that the offender may not understand exactly what has been said to him or her in court when the community sentence was passed. But one of the first tasks at the beginning of a probation order is to serve the order and to go through what it says. It states that the court accepts that the offender committed the

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offences and on being informed by the court that a probation order will be made the defendant gives his consent. I believe that the probation order document will have to be changed. I do not have such a form with me; nor do I expect the Minister to have one. Perhaps we can resolve the issue by letter afterwards. But not to have consent renders the offender liable to further punishment. I find that difficult.
However, I have listened to Members of the Committee. A number agreed with me. Some disagreed in varying degrees. However, I shall not press the issue.
Clause 34 agreed to.
Clause 35 [Offenders]:
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 99A:
Page 26, line 13, at end insert—
("( ) Where a court orders a person to be disqualified from holding or obtaining a driving licence under this section, the degree of punishment inflicted by the order, or by the combination of the order and any other order or orders made in respect of the offence, shall he such as in the opinion of the court are commensurate with the seriousness of the offence.").
The noble Lord said: The amendment deals with the proportionality of the sentence of disqualification from holding or obtaining a driving licence under the proposed section. I shall deal with the desirability of driving disqualifications in the course of discussion on the next amendment.
However, in sentences which involve custody, community sentences and fines, provisions in legislation require proportionality; that is, that the degree of punishment inflicted should be appropriate to the seriousness of the offence. For example, Section 1 of the Criminal Justice Act 1991 provides that the main criterion for passing a custodial sentence is that,
"the offence … was so serious that only such a sentence can be justified".
It is the formula which judges will always pronounce at the beginning of sentencing a person to a term of imprisonment. Under Section 2 of the same Act, the length of the custodial sentence must normally be,
"commensurate with the seriousness of the offence".
Section 6 provides that the restrictions on liberty imposed by community sentences must be commensurate with the seriousness of the offence. Section 18 of the same Act provides that the amount of the fine shall be such as in the opinion of the court reflects the seriousness of the offence.
If, in relation to each of those methods of disposal (punishment) the court is enjoined to consider before passing such sentences the proportionality of the sentence—what is appropriate to the seriousness of the offence—why should that not happen with driving disqualification in non-motoring cases?
Both the Magistrates' Association and the Justices' Clerks' Society have expressed concern that the use of driving disqualification in non-motoring cases could involve a degree of punishment that is disproportionate to the offence. The most obvious example is that of a person who relies on his motor vehicle in order to get to work or to carry out his particular livelihood. The result to him of a driving disqualification could be the
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loss of many thousands of pounds—a financial penalty which, were it to be imposed as a fine, would he regarded as appropriate to an offence of extreme seriousness.
The Magistrates' Association has urged statutory guidance, stipulating that disqualification should be used only for offences which are serious enough to qualify for a community sentence. The purpose of this amendment is to introduce that standard approach to sentencing into the proposed new order on driving disqualification for non-motoring offences. I beg to move.
The Earl of Mar and Kellie: I support my noble friend's amendment. I am concerned about the indiscriminate use of this new community sentence. I am not against new community sentences as such, nor necessarily against this particular one. However, I hope that it will be piloted and evaluated properly.
The scheme allows for the use of a driving ban for non-motoring offences. Sentencers will need to he very clear about the effect that such a scheme will have. If, for example, it would lead to a loss of livelihood, it should be applied only in extreme circumstances—if indeed there are circumstances in which the punishment should be that the offender should lose his job. As that clearly does happen when someone is imprisoned, this driving ban would be appropriate for an imprisonable offence for someone who needs the car at work. However, in the case of the recreational driver, the driving ban would have substantially less effect and could be used for much less serious offences.
My main concern about the new sentences relates to the effects of non-compliance. The prospect of the driving ban being ignored and yet another uninsured driver being on the road suggests that a full social background report will be required prior to the passing of this type of sentence. This amendment would probably ensure that.
Baroness Blatch: I do not disagree in principle with the intention behind the amendment. However, I believe that the amendment itself is unnecessary. The general principles of sentencing that apply to all sentences will ensure that these aims are met without a specific statutory requirement.
The fundamental principle of sentencing is that the punishment should fit the crime. In determining what sentence to impose for an offence, the judge or magistrate must consider the nature of the offence, its seriousness or otherwise and any aggravating or mitigating circumstances. The sentence must also always be appropriate to the particular circumstances of the offender as well as the circumstances of the offence.
It follows therefore that, in deciding to impose disqualification from driving for an offence and in deciding how long the period of disqualification will be, a court will consider the degree of punishment involved and will decide on a sentence that it believes is appropriate to the seriousness of the offence. The new subsection which this amendment would insert is unnecessary.

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The noble Lord, Lord Thomas of Gresford, referred to the seriousness of the offence in relation to disqualification. It may be that some guidance for sentencers will be required in imposing disqualification for non-driving offences and it will be open to the Magistrates' Association and the senior judiciary to develop such guidance. That is not a matter for the Government but we certainly believe that, as this would be a new disposal for the courts in this context, guidance would indeed be appropriate.
Again there is nothing between us. I believe that what I said is commensurate with what is contained in the amendment. I shall read Hansard carefully following our deliberations today but, from where I stand and from what I have seen of the amendment, I believe that it is unnecessary.
9.30 p.m.
Lord Hylton: As this is a completely new type of penalty which in theory could be applied to a wide range of offences, it is important to have a provision such as that contained in the amendment on the face of the Bill so that those who have to apply this penalty can find all the information in one place.
Baroness Blatch: In order to make a disposal in court, a sentencer would need to have all the information in place before deciding what the sentence should be. We come back to the pre-sentence reports. The court would have all the information that was presented to it in the course of the hearing of the case and could call for whatever reports it felt appropriate, such as reports from medical people or probation officers. Only with all the information which it believed it needed in order to make a disposal could the court then apply a sentence.
We are adding this sentence for the court's disposal in a new context. As the noble Lord knows, until now it has been driving-related or car-related offences for which this disposal has been used. We are simply widening that base. The principle of courts making penalties fit the crime is not compromised at all by what is proposed.
Lord Thomas of Gresford: What a pleasure it is that for once there is nothing between the Minister and myself on the principles of this matter. I cannot accept that the proposals contained in the amendment are unnecessary. If they are unnecessary in this context, why is it necessary to have statutory requirements which govern the discretion of the court sentencing a person to custody, community service or a fine? Why is it necessary that in those instances sentencers should have the issue of what is appropriate and what is proportionate statutorily thrust upon their minds?
As the noble Lord said in his intervention, the fact that this is a new kind of sentence which will be imposed by magistrates all over the country, as well as by Crown Courts, is an important reason why a statutory provision such as that contained in my amendment should be included.
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I should like to reflect on what has been said. This is not the time to seek the opinion of the House. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 35 shall stand part of the Bill?
Lord Thomas of Gresford: In opposing the clause I am likely to part company with the Minister on the principle of disqualification from driving for non-motoring offences. What is so surprising about this provision is that it was introduced without any consultation. It is such an infliction upon people's freedom that one would have thought that the widest consultation would have taken place before it was introduced. The Magistrates' Association has expressed serious reservations about the wisdom of the measure and the Justices' Clerks' Society has opposed it. Those are people very much concerned with the nitty-gritty of the criminal justice system. They see it at grassroots level.
My first criticism of the proposal to take away a person's driving licence for something which is completely unrelated to driving is that it will inhibit the offender's rehabilitation. In the course of the discussions that have taken place on the Bill, time and again—no doubt ad nauseam—I have stressed the importance of rehabilitation of the offender, so that further offending is prevented. One of the most important features of rehabilitation is that a person gets a job. In today's society that very often requires the ability to get to work in the absence of public transport or the ability to get a job which is driver-related. That is my first objection; namely, that it will affect the rehabilitation of the offender.
Secondly, I have some sympathy for the police who are required to enforce disqualifications of this nature. Bearing in mind that disqualification of this kind has nothing whatsoever to do with the particular offender's manner of driving, the temptation upon that offender to continue driving will be very considerable. As things are at present, it is difficult enough for the police to enforce driving bans, but it is unlikely that anybody who is disqualified under these provisions will ever get caught unless he is involved in some accident or is stopped for some road traffic offence. The police will have very considerable problems with the large number of disqualifications which are likely to arise if this measure is introduced.
My third difficulty concerns the problems of the person driving without a licence who is thereby uninsured. It is extremely difficult for a person injured in a road traffic accident to obtain compensation from an uninsured driver. There are procedures through the Motor Insurers' Bureau but they are lengthy and outside the ordinary system. I am sure the Committee is well aware of the numerous injustices that occur because a person has been injured by someone who is uninsured by reason of being disqualified.
The Justices' Clerks' Society has said:
"Disqualification has been based on issues of road safety and there is therefore no merit whatsoever in extending its use to cases where no motor vehicle was used to commit or facilitate the offence.

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Punishment must fit the crime. There are real dangers of this particular punishment being disproportionate to the offending, with the cost of resultant appeals. In addition, enforcement difficulties which will undermine the sentence cannot be underestimated".
A person who is found guilty of dangerous or careless driving or who has been breathalysed understands perfectly well why he or she is being disqualified as a result of the motoring offence that has been committed. It is related to that particular offence and, no doubt, if not acceptable is understandable by the defendant who is disqualified in that particular way. But the persons who appear before the court, generally speaking, for offences which have nothing to do with driving are bound to feel resentment and anger if a sentence which has no connection with their offending is imposed upon them.
Strong criticisms of the Bill were made by Sir Ivan Lawrence in another place. He highlighted a number of objections as he saw the matter. First of all, his view as a Conservative chairman of the Home Affairs Committee was that the measure offends the fundamental principle of sentencing that the punishment should fit the crime. Secondly, he said that the courts were unhappy about disqualification sentences for the simple reason that a car is necessary in many cases for getting to work, and disqualifying someone as a punishment puts a great deal more pressure on him to commit more crimes. If we are trying to rehabilitate the offender, the least that can be done is to get him to work. For all those reasons, I oppose the addition of this clause to the Bill.
Lord Carlisle of Bucklow: Before the noble Lord, Lord Thomas, completes his speech—he may say that it is already complete—I invite him to expand on one comment that he made. He said that one of the most surprising things about this clause was that it had been introduced without any consultation with any of the parties involved in the Bill. Can he tell me which parts of the Bill did involve prior consultation? With whom did those consultations take place? Why is it surprising that this clause was not the basis of any consultation with anybody?
Lord Thomas of Gresford: I am grateful to the noble Lord, Lord Carlisle, for his intervention. Since the noble Lord sits on the other side of the Chamber, it would be churlish of me to suggest that these proposals were rushed through with a view to securing the re-election of his party. But that seems to me to be the reason why there has been no consultation. These proposals throughout the Bill have been brought forward to gain publicity for electoral purposes. It is not the first time I have said that; I have repeatedly said it in relation to the provisions of the Bill.
Lord McIntosh of Haringey: Before I comment in more detail on the objections of the noble Lord, Lord Thomas of Gresford, perhaps I can ask whether line 9, page 26 of the Bill should read,
"disqualified from holding or obtaining a driving licence",
rather than,
"disqualified for holding or obtaining a driving licence".
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If I am right and there is a mistake, I immediately give the credit to my noble friend Lord Williams of Mostyn who pointed it out to me.
I find this issue to be genuinely difficult. On the one hand one wants to see the billiard shark, when caught, suffer by being made to dwell in a dungeon cell in a spot that is always barred and all the rest of it, including making him play with elliptical billiard balls. But, at the same time, driving a car or a vehicle is a more widespread activity.
There has been debate in the columns of the press as to whether driving is a privilege, a right or whatever, and whether it is proper to take that away. I tend to the view that the objections—for example, from the motoring organisations—do not have much validity. There are difficulties about a driving disqualification. The obvious one is that it is of differing importance to different people and the magistrates will not sensibly disqualify someone who needs a car to get to work, to take children to school or some other essential purpose. I cannot believe that magistrates would disqualify someone under such circumstances.
There are some people, like myself, to whom a car is only a thing with a wheel on each corner and one to hold on to. I have no interest whatever in driving and disqualification would not inflict on me any psychological damage. But some people are passionate about their cars and it makes a great deal of difference as to whether they are allowed to drive.
Then there is the question that is not raised in the clause on the relationship of such a disqualification to other driving offences. Will such a disqualification count on the tariff of driving offences? Does it mean that a subsequent disqualification for a driving offence will be that much worse? The Minister should tell us. I do not believe that has been thought out.
Having made those uncivil remarks, I am fundamentally in favour of searching for other forms of non-custodial sentence. I recognise that subsection (3) of the clause says that the sentence is on a trial basis and can be withdrawn at any time if it does not work. On that basis, if the specific questions can be answered, I would on balance be prepared to give it a fair wind.
9.45 p.m.
The Earl of Mar and Kellie: I wish to ask about the use of such penalties in rural areas. It strikes me that their use in such areas would impose an impossible burden. People who live in cities or large towns, where there is adequate public transport, could get by. Will one of the pilot projects be in a rural area?
Earl Attlee: I hesitate to speak on this matter because I have been somewhat overexposed recently, particularly with the noble Baroness the Minister. I support the principles of the Bill. I was sad that the Bill was comprehensively wrecked at an early stage of the Committee.
Lord Carlisle of Bucklow: It was not wrecked.
Earl Attlee: I feel that it was and I am sorry about the damage. However, this issue is of great concern to

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me for the reasons that have already been so ably set out by other noble Lords. I shall be particularly interested to hear how the Minister intends to justify the provision.
Lord Williams of Mostyn: I wish to raise a matter of detail in Clause 35(1). The court is given an extraordinarily wide power—ordering disqualification,
"for such period as it thinks fit".
That is entirely different from the regime that sentencers and defendants know at the moment with regard to totting up and the speeder; and for driving with excess alcohol there is a minimum disqualification of one year and for a second offence within 10 years a minimum disqualification of three years. There is some sense to that structure. By and large, it works well. It seems an extraordinarily wide power to be given to a court to be able to order disqualification,
"for such period as it thinks fit",
without any other qualification.
Earl Russell: We can agree at the moment that driving is a privilege and not a right. I do not think we have yet reached the American situation where they seem to think that a driving licence is handed out with a birth certificate. We all accept that if we are given charge of a potentially lethal weapon—which a car is—we must expect the privilege of driving that weapon to be taken away if we do it unsafely. But it is quite another thing to propose taking it away for an offence entirely unrelated to the conduct of the motor vehicle. It is a little like telling one's children that if they do not go to bed, they cannot have any sweets tomorrow. It is all right if one knows every circumstance of the daily life, as one does in that situation, and can make sure that there is a fit between the two things. However, we do not have that kind of knowledge about people whom we are sentencing.
Why, among all the things they could do, have the Government fixed on withdrawing the right to drive a car rather than something else? Why not, for example, the right to ride a horse or a bicycle? There are many other things they could have done. They might think about why they have not withdrawn from people the right to wear spectacles. If they think about that, they might begin to see why I have such grave misgivings about this clause.
The point has already been made that many people without a car cannot work. If this punishment were inflicted, for example, on a taxi driver, or on the man who came at nine o'clock this morning to repair our dryer, it would be a penalty of instant dismissal from a job. There is nothing in the clause which shows any recognition of whether the punishment is particularly severe in a particular occupation. There is no recognition of the basic principle of Magna Carta that no man shall be punished so as to take away his living. That is a good principle and an important one. I rise to back it up because I believe that there is a vitally important social security angle to this clause which no one has touched on.
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There are a great many places, as my noble friend Lord Mar and Kellie, has mentioned, where it is, regrettably, simply impossible to work without the aid of motor transport and, since the stagecoach is an unreliable method of transport at the best of times, one must expect these places to become more numerous. I hear of cases of this kind from places like South Moulton, the North Yorks Moors or Henley-in-Arden where, if the job is some distance away, people simply cannot work unless they can afford to run a car. So if one suffers that penalty in one of those places one is being deprived of the right to work.
During the debate on the Social Security Benefits Up-rating Order during the dinner break, all three Front Benches were in agreement that what we should be looking for are ways of helping people to come off benefit and back into work and that we need that not only to give people genuine freedom of choice, but also for the vitally important task of reducing the biggest single item in government spending. But here we have the Home Office undoing all the good that all three Front Benches were agreed in trying to achieve. It does not seem to make very much sense. It is piling up a much bigger bill for a government—it does not matter which in this case—to pay. I do not see why.
I ask the noble Lord, Lord McIntosh of Haringey, to consult his noble friend, the noble Baroness Lady Hollis of Heigham, and ask what she has to say about the costs of this clause. He may find that it is very similar to what I have just said. I entirely agree with the noble Lord, Lord McIntosh of Haringey, about the need to think of other non-custodial sentences. I have thought that for many years. We are seeing why that has not been done before. It is something which is badly needed but extremely difficult. The Home Office might have stopped to think about some of the difficulties before tabling this clause.
Lord Hacking: Perhaps I may intervene for just a moment. I have been able to listen to the entirety of this debate although I confess I have not been in the Chamber. I was disappointed by the speech of the noble Lord, Lord McIntosh, because I felt that insufficient connection was being made between the offence and the punishment. Having heard the whole of the debate, and in particular the speech of the noble Lord, Lord Thomas, I believe that this is an unfortunate clause. It has to be recorded—and I say this with great respect—that the fundamental opposition to this Bill in this Chamber has come from the noble Lords who sit on the Social Democrat Benches and that is most welcome.
Lord Carlisle of Bucklow: Having made a very brief intervention in the course of the speech of the noble Lord, Lord Thomas of Gresford, perhaps I may try to make a more serious intervention on Clause 35 as a whole. What is it intended to achieve? Of course, one appreciates that removing a driving licence is a serious matter for many people and the threat of it is a major one. But what is this particular clause intended to achieve?
As I understand it, it relates to the power to disqualify from driving someone who, according to subsection (2), is convicted of an offence under Clauses 1(2), 2(2),

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or 3(2) of the Bill. If I am right about that, what does that mean? Is it seriously to be said that if one is sentenced to life imprisonment, as Clause (1)(2) requires, say, for an offence of wounding with intent, that on top of being sentenced to life one should be then disqualified from driving for a certain period of years? And what is the purpose?
If you are sending someone to prison for a minimum of seven years for trading in drugs and we take the sort of case about which we were talking earlier—not the major trafficker, but the very small-time drug addict who buys and then feeds his own addiction by passing on some of his drugs to friends—what is the suggested additional threat? He probably does not drive. He has probably never driven. He is going to prison for seven years anyway. Are we to say to him, "Incidentally, when you come out, you cannot drive for 10 years?" What is the object of it? I question why the clause is in the Bill at all and whether it is anything more than merely gesture sentencing.
Lord Rodgers of Quarry Bank: I believe that I am the only noble Lord present who at one time had ministerial responsibility for driving licences. That is my reason for speaking on the subject of those who want to take them away.
I very much take the view on the clause which has been expressed on all sides of the Committee. I take also the point made earlier by the noble Lord, Lord Carlisle, about the absence of consultation on the clause not being exceptional to the Bill as a whole. What I think is exceptional—although not exclusively exceptional, if I may put it that way—is that the clause was introduced as a new clause at the tenth sitting of the House of Commons Committee on the Bill. It would be of great advantage to the Committee if the Minister could explain where the clause comes from. If the clause was not included in the Bill as drafted—the Bill was in preparation for some time—why was it suddenly inserted into the Bill at a late stage? What were the motives, incentives or circumstances which made it urgent on 10th December but not when the Bill was being drafted?
Proper questions have been asked—not only on these Benches but on all sides of the Committee—about the consequences of taking away driving licences. I have a feeling that none of those points was considered due to the hasty way in which these provisions were prepared and introduced so late in the day.
As has been revealed by this debate on clause stand part, the more one thinks about it, the more one sees increasing objections which do not appear to have been foreseen. Someone who has a car has it in the expectation of being able to drive it. They may have newly acquired the car and the driving licence for that purpose. If that person loses his or her driving licence, the car serves no purpose for them. If their licence has been removed for a substantial period, not only is there no point in having a car licensed and on the road; there is no point in having a car at all. There are some who may lose their driving licence for whom the obvious next step is to sell a car lately acquired at a penalty which would approximate to a further fine.
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Whatever the Minister's reply—and whether or not my noble friend finds it acceptable—I hope that the noble Baroness will consider carefully what purpose the clause really serves. It seems to me not only to involve a loss of liberty and a loss of mobility but to have much wider consequences for those who need a car for work, and for the family as a whole.
If the Bill, including this clause, proposes the removal of a driving licence, why not take away the television licence? The principle is exactly the same. If there is no link between the offence and the penalty of driving disqualification, there is no reason why we should not find that in some future Bill the removal of television licences is proposed as a further penalty. These questions need to be looked at with great care.
I do not know what the Minister will say in reply or what my noble friend may have in mind. I say in parenthesis, even at this late hour, that I am struck by one peculiar aspect of our procedures. We consider amendments to a clause and then decide whether or not we want the clause in the first place. It is almost as though one has conducted the Committee stage on a Bill before the Second Reading debate. Of course, this is not a matter for the Minister, who will forgive me for occupying the time of the Committee, but it is interesting that we had a short debate on the amendment—there was only one amendment to this clause—because we had not had the debate on stand part that has revealed aspects of the clause hitherto hidden from us. As we have no other way of proceeding with our business, I believe that if this remains part of the Bill at Report some noble Lords will want to consider seriously ways of amending it.
10 p.m.
Lord McIntosh of Haringey: Perhaps I may quickly respond to the noble Lord's intervention on our procedures. Surely we do it the right way round. We try to get the best clause that we can and then decide whether or not it is good enough.
Baroness Blatch: If the noble Lord, Lord McIntosh, had not said that, I would have opened with that very point. It is extraordinary that one should oppose a clause standing part before there has been any attempt whatever to modify it. The whole point of coming to the end of discussions on a clause, whether or not there have been attempts to modify it, is that your Lordships can then decide whether or not it should stand part of the Bill.
The clause allows for the introduction of the provision on a pilot basis in courts specified by the Secretary of State. It is a punishment and another disposal which is available to the court. It would be dispensed as a punishment. Taking away the freedom to drive is already an effective penalty for a range of road traffic offences and other offences where a vehicle is involved—for example, theft of a car. We believe that disqualification from driving can usefully be used more widely and that its extended use will give the courts greater flexibility to deal with offenders in the most effective way. Disqualification from driving is not just a means of keeping bad drivers off the road. Noble

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Lords will know that it is not used only in this way. It can be an effective punishment because it denies the offender the freedom to drive. Thus, it restricts his liberty in the same way as a fine restricts his economic liberty and community sentences restrict his liberty to determine how to spend his time. Curfew orders and custodial sentences restrict liberty. This is just another way of restricting liberty.
I believe that the noble Lord, Lord Thomas of Gresford, and my noble friend Lord Carlisle spoke about the effects of disqualification from driving. All of the effects that they have spoken about apply to those who lose their right to drive when this measure is used by the courts now. Lots of people come before the courts and are disqualified from driving. That will be a restriction on their liberty. Sometimes it will affect their livelihood and their families. It will almost certainly have an effect on their leisure activities—unlike the noble Lord, Lord McIntosh.
Very recently I spent a night with the police force in my own authority. I admit to my shame that I started off the evening, as many armchair critics do, by criticising the police for spending far too much time dealing with motoring offences and not enough time chasing criminals. Having spent the evening in a police car travelling along the roads of Cambridgeshire, my views made a complete U-turn, because I realised that criminals are out on the roads driving from one burglary to another. They commit an offence in one part of the country and then travel to another part to commit another offence. The police found that by gathering intelligence about people driving without number plates or without lights they could identify drug runners and so on.
Indeed in the course of that evening the police were able to apprehend a number of people because they were able to use all of the powers available to them under the Act. What impressed me more than anything else was that a lot of people up to no good were driving around in motor cars. If disqualification can be used as a punishment to keep some people off the road, then I believe that that would be a good thing.
While disqualification from driving would be particularly appropriate for offences in which a vehicle was used, it will be for the courts to decide whether or not to use the penalty in any particular case. In reaching this decision they will of course take into account the circumstances of the offence and of the offender. They will be able to use disqualification from driving, alone as a punishment for the offence or in combination with any other penalty as part of the punishment. Both the Crown Court and the magistrates' court already have a discretion to disqualify offenders from driving for quite a range of offences. They are experienced in weighing up the circumstances of each case where such discretion is available to them before deciding whether or not the penalty is appropriate.
The clause allows for the proposal to be introduced by way of pilots. We intend to pilot the provisions to ensure that they can be put to most effective use. The pilots will also help to identify whether any sentencing guidelines by the judiciary, such as those already
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produced by the Magistrates' Association, would be helpful. Extending the power to deprive criminals of the ability to drive whatever the offence will be an additional and powerful tool for the courts.
I take on board the point made by the noble Earl, Lord Mar and Kellie, when he referred to pilot schemes running in rural areas. We have not made decisions as to where pilot schemes will take place but the point that the noble Earl made is certainly one I shall take back to my right honourable friend.
Reference was made by the noble Lord, Lord Williams of Mostyn, to the phrase "such periods as he thinks fit." Again we go back to the fundamental principle of sentences in courts, and that is that courts will sentence as they think fit, which also includes and subsumes the appropriate sentence for the crime that is being considered by the court. I would also use that in relation to the point made by my noble friend Lord Carlisle. There is no question of gratuitously adding this to a sentence unless it is appropriate in the minds of the court to do so. My noble friend referred to life prisoners in Clause 35. It simply means that one cannot be disqualified from driving instead of receiving a mandatory or automatic life sentence. It can, however, be added for such a sentence if the court in its discretion thinks fit, and of course if it is appropriate, and that would be absolutely fundamental.
The noble Lord, Lord Williams of Mostyn, referred to Clause 35 being anomalous. The provision follows Section 44 of the Powers of Criminal Courts Act 1973 in providing no limitation for the length of the disqualification period for offenders who have used a vehicle in committing an offence. There is nothing anomalous about it in this respect. I am almost afraid to give the noble Lord, Lord McIntosh, this answer because I do not ever accept this as an explanation, but it is the explanation for using the word "for" rather than "from", which was discovered by his noble friend Lord Williams of Mostyn. I am told it is not a mistake. It follows the language of another Act of Parliament, in this case the Road Traffic Act 1988. I would invite noble Lords to look up Section 103(1).
Lord McIntosh of Haringey: Will the Minister introduce the amendment to the Road Traffic Act 1988 or shall I, because it is clearly wrong?
Baroness Blatch: What I was going to say to the noble Lord is that I never think it is the best explanation to give. It happens to be the explanation that I am offering at this moment but I am not sure that any government would find time in their parliamentary programme to allow the word "for" to be changed to "from" in primary legislation. That indeed is the explanation and I do not believe that the sky will fall in if we change the word "for" to "from" in this Bill, but I have no doubt counsel will have something to say to me on that score.
I have given an assurance that we will pilot these powers for driving disqualification to see the practical implications of allowing the courts to make what they will of them and of the impact that they have.

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The noble Earl, Lord Russell, raised a number of important points. Since it will be for the courts to decide whether or not to disqualify from driving, taking account of the circumstances of the offence and of the offender, there is no reliable way of calculating the cost or indeed of identifying the implications of national roll-out in advance of the pilots. The noble Earl's amendment much later in the Bill—Amendment No. 109—impacts on the debate we have had this evening. It would prevent such pilots from being introduced. We should consequently be unable to calculate the resultant costs which he would like identified. In a sense, it is chicken and egg. We need the pilot schemes to identify costs. I should perhaps point out that a court will not impose disqualification from driving unless the court itself is satisfied that such a penalty is appropriate to the nature and the seriousness of the offence. Courts will consider the likely result of disqualification upon the offender, and will look at any implications for the offender. Employment, of course, would he one consideration put forward in mitigation.
The pilots will also identify any need to produce guidelines for the courts such as those produced in other circumstances by the Magistrates' Association. I was asked, why these provisions. I have to say that it is because it is another form of punishment. I suggest that for some people it will be an effective form of punishment, but it will be for the courts to make that decision. They will have to consider the impact on, perhaps, other members of the family—taking children to school, and the car is the only form of transport, especially in rural areas, and is essential for the family. Given that there will be pilot schemes, those are the type of things for which one would be looking in the course of the pilot schemes. I believe that Clause 35 should stand part of the Bill.
Lord Carlisle of Bucklow: I hope that I shall not be accused of being difficult, but I am concerned about what my noble friend the Minister has said about the clause. I share her view. I believe that disqualification for driving is a penalty. It is a penalty which has a considerable effect on many people. The power to prevent a person from using a car is not just a penalty, it discourages the person from doing anything that may lead him into that situation.
I hope that I am wrong, but quickly reading Clause 35, am I to understand that since subsection (1) starts:
"Subject to subsections (2) and (3) below",
and subsection (2) below states:
"Where the person is convicted of an offence the sentence for which is fixed by law or falls to be imposed under section 1(2), 2(2), or 3(2) above"
the whole of the clause applies only—
Lord Williams of Mostyn: That is not right.
Lord Carlisle of Bucklow: I am glad to hear that I am wrong. I am not sure what is the purpose of the clause.
Lord Williams of Mostyn: To be helpful, the purpose of the clause—I shall be disqualified from this side—is that one needs to put one's eye to, "or instead of". I believe that that is the point of Clause 35(2).
Lord Carlisle of Bucklow: I am sorry, but I do not think that the noble Lord, Lord Williams, gets my point.
"Subject to subsection (2)(3) below"
implies that the clause relates only to those who are convicted of offences under Clause 1(2), 2(2) or 3(2) of the Bill.
Lord Williams of Mostyn: What the Minister is about to say is that you can have disqualification as a free-standing sentence except in the circumstances described and prescribed in Clauses 1(2), 2(2) and 3(2).
Lord Carlisle of Bucklow: I happily withdraw. I have had too good a dinner. I have got it the other way round. I could not believe that it was as mad as it appeared to be, but I still repeat my original view that I should like to know—if my noble friend the Minister will tell us—with whom any parts of the Bill were discussed before they were announced.
Lord McIntosh of Haringey: We do not need to wait for the election. My noble friend has clearly changed sides.
Baroness Blatch: I am glad that my noble friend is satisfied with the answers. I am deeply grateful to the noble Lord, Lord Williams of Mostyn. It has been a long day, and I am grateful for any help whatsoever at this time of the evening.
Lord Thomas of Gresford: Perhaps I may respond to some of the things that the Minister said. She paints an interesting picture of the roads around Cambridgeshire, filled with criminals driving in all directions. One cannot help but wonder what the Member of Parliament for Huntingdon is doing about that disgraceful situation on his patch.
Baroness Blatch: He is supporting this legislation.
Lord Thomas of Gresford: He is supporting legislation which quite clearly requires limited police resources to be used for the Minister to pursue criminals around his patch. That is taking things a little far.
The Government ought to think about the clause from scratch and start again. As my noble friend Lord Rodgers said, it was introduced as an amendment at a late stage; it did not form part of the structure of the original Bill; it is ill-thought out; it is ill-considered; and, as we have heard from the Minister, it is uncosted. No attempt has been made to discover how much the provisions will cost.
I addressed the Committee on proportionality in relation to another amendment, but I wish to return to the topic in order to consider the differences that are likely to arise, for example, between an offender who lives in a rural area and an offender in an urban area who commits the same type of offence: perhaps they commit it together. In the one case, disqualification from driving is a huge penalty. In the other, within the urban environment and where public transport is available, it

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is not such a great penalty. What will happen? Are people who live in rural areas to receive lesser sentences of disqualification than those who live in urban areas?
Let us compare someone who is holding down a job which requires a car either to carry out the job or to get to work with someone who works round the corner or who is unemployed. Let us suppose that together they commit the same offence. A disqualification on the one will be extremely hard, expensive and difficult to bear. The other may be able to shrug it off without any particular difficulties. All those disproportionate sentences between people who commit similar offences will undoubtedly cause considerable problems in the future.
The clause is opposed not by the motoring organisations—this is not a motoring matter—but by the Magistrates' Association and the Justices Clerks Society, which, I respectfully suggest, know better than the Home Office what it is like to try to deal with people who have been disqualified at the magistrates' court level where most of the offences are dealt with. In the face of their hostility and in the face of public hostility to the idea of disqualification for non-motoring offences, I urge the Government to think the matter through again before the Report stage.
The Earl of Balfour: I know that in cases of people living in rural areas the DSS gives them money to acquire a car. That must be borne in mind.
Baroness Blatch: When I addressed the amendment, I made the point that those are the kind of issues that the
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courts must take into account when passing any kind of sentence. Whether the offence was driving or motor related, the courts must consider those particular factors. We believe that the measure is effective to punish criminals. The noble Lord, Lord Thomas of Gresford, once again came to the defence of magistrates and judges using their discretion. It would be a matter for magistrates and judges to use their discretion in court and for the court to consider all the circumstances which relate to the offence and the offender. The circumstances described by the noble Lord, in which the disqualification from driving would be a disproportionate punishment, would be out of kilter with the fundamental principles which are operated by the courts. Judges and magistrates would dispense the punishment appropriately, taking into account the circumstances relating to the offence and the offender. Of course, it is to be piloted, and the pilot schemes will tell us whether it is as effective as we believe it will be.
Lord Monkswell: I listened to the debate, although I am sorry that I came in late and may not have heard the particular response to my question. Surely if you have a law-abiding person, he will abide by the disqualification. But it will have no impact on a criminal who pays no regard to the law.
Baroness Blatch: Nobody will be disqualified from driving under these provisions unless he is a person who has already disobeyed the law.
Clause 35 agreed to.
House resumed.
House adjourned at twenty-one minutes past ten o'clock.